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Caught in a net-P Rajeev

The new IT rules violate the right to freedom of speech and expression

New media has come to play a major role in the process of opinion making, as was evident in the recent Arab uprisings and the campaign against corruption in India. It is a means of propaganda and a tool for mobilising the masses. The strength of new media lies in the opportunity for creative participation that it offers and in the formation of communities around shared content.

Every day, millions of tweets are posted on Twitter, 250 million photographs are put up on Facebook and every minute, more than 48 hours worth of videos are uploaded on YouTube. In several countries, government has started taking control of social media sites to impose censorship of content. Alarm bells went off in the cyber world when Saudi Prince Waleed bin Talal acquired a $300 billion stake in Twitter and accepted a $5 billion initial public offering by Facebook. This was an attempt by the ruling powers to curtail freedom of the internet and clamp down on public criticism of their activities.

India has not been spared this authoritarian trend. Kapil Sibal, the Union minister of communications and information technology, had issued a directive that any objectionable content must be scanned before it is posted on social media sites. He obviously failed to recognise the absurdity and the physical impossibility of implementing this. Sibal managed to introduce arbitrary censorship of the internet through the Information Technology (Intermediaries Guidelines) Rules 2011. These rules violate the constitutional right to freedom of speech and expression, and the right to privacy. They are, above all, ultra vires of the parent act.

Intermediaries are entities that provide services enabling the delivery of online content to the end user. It includes Internet Service Provider (ISP) search engines like Google, Domain Name System (DNS) providers, web hosts, interactive websites like Facebook and Twitter, and cyber cafes. The IT (Amendment) Act made changes to Section 79 of the act to provide harbour protection to the intermediaries. The intermediaries have no editorial control over content. So the amended Section 79 gives the intermediaries protection from liabilities that could arise from any legal action initiated on the basis of user-generated content. But this is conditional upon observing “due diligence” while discharging their duties and observing government guidelines, issued in the form of the IT rules.

This obnoxious provision means that each intermediary must publish terms of use. These terms of service are required to prohibit the user from posting content that is “grossly harmful, harassing, blasphemous, defamatory, obscene”, “hateful, or racially, ethnically objectionable”, or “unlawful”. Once the intermediary has the knowledge that the content hosted by it violates the rules, it is required to initiate action for removal of the content within 36 hours. The intermediary may also terminate the user’s access. Some of the categories of content specified under the rules are ambiguous. For instance, “grossly harmful” and “blasphemous” are not defined in the rules. This enables the executive to interpret these conditions according to its whim, and based on vested interest.

Article 19(1) of the Constitution guarantees freedom of speech and expression. Article 19(2) lays down the grounds for “reasonable restrictions” that the state may impose. Sub-rule 2 of rule 3 of the IT Act has provisions which go beyond reasonable restrictions.

Some content mentioned in the rules as objectionable cannot be prosecuted under any existing law. The word “blasphemy”, for instance, is not mentioned in Indian laws. Certain content prohibited by the act is permitted in other media. For example, a newspaper can publish a blasphemous article, but the same article may not be reproduced in its web edition.

The rules mandate the intermediaries to disable content without hearing out the user who posted it. The denial of self-defence is a violation of natural justice and highly arbitrary. Sub-rule 4 of rule 3 has endowed the intermediary with an adjudicating role, which should be reserved to a competent court only. This rule legalises private censorship by the intermediaries.

Such arbitrary and unconstitutional rules cannot be allowed in a democratic country like India. The Centre should revisit the act and hold a national consultation to finalise the amended rules. As an interactive medium, the internet opens up new possibilities of communication and should serve as a force multiplier in our struggle for substantive democracy. Any move to regulate cyberspace should respect the netizens’ right to free speech, and any unreasonable barrier to the dissemination of knowledge and ideas must be resisted by the public.

The writer, a CPM MP in Rajya Sabha, has moved a motion to annul the IT (Intermediaries Guidelines) Rules