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Google External Lawyer on India’s Net Rules by Amol Sharma
Bangalore-based lawyer Sajan Poovayya is an outside counsel to Google Inc. and other Internet companies who have been sued in India for content on their Web sites that users or authorities deem objectionable.

Having been through many such cases, he’s in a good position to assess how a new set of controversial Indian Internet regulations affect the landscape. His verdict: the rules are sloppy, vague, perhaps unconstitutional, and wind up exposing Internet companies to liability they didn’t have to worry about before.

“These regulations make it worse,” Mr. Poovayya said. “You need to be very, very careful in the words you choose.”

What’s the wording he’s concerned about? As we’ve written previously, the rules India enacted last month require Internet companies to remove, within 36 hours of being notified by authorities, a range of content deemed offensive, including anything that is “grossly harmful,” “harassing,” “ethnically objectionable,” “disparaging” or “hateful.”

Mr. Poovayya says he is particularly puzzled and concerned by the bar on content that “harm[s] minors in any way,” a standard he says is much too general and open to interpretation. He said the entire set of regulations goes far beyond the legislation it is seeking to implement–the Information Technology Act of 2008–and is thereby “impermissible under the constitutional scheme in this country.”

Indian authorities defended the rules in a statement Wednesday and said the government has no intention of restricting free speech on the Web.

Mr. Poovayya isn’t a spokesperson for Google; he assists the company as an external counsel. He says the firm already receives numerous requests to take down content that is considered defamatory or that might spark public unrest, such as negative statements about revered historical or religious figures. One recent example: Google was recently forced after a Web user’s legal complaint to remove a YouTube video of the “Ramayana” Hindu epic that was edited so the audio included foul language.

In a statement Wednesday on the new Indian rules, Google said it believes a free Internet is essential for the growth of the digital economy and added, “If Internet platforms are held liable for third party content, it would lead to self-censorship and reduce the free flow of information. The regulatory framework should ideally help protect Internet platforms and people’s abilities to access information.” The Wall Street Journal reported extensively on Google’s specific concerns earlier this week.

Just what kind of liability could Internet companies face if they don’t take down objectionable content within 36 hours? That still isn’t entirely clear, lawyers say. Mr. Poovayya said Internet companies would likely be held liable for the underlying offending content. So if Google or another firm failed to take down a defamatory statement on a blog, he says, a company executive could be prosecuted under Section 499 of the Indian penal code and face up to three years imprisonment.

Okay, that’s for content that is illegal under Indian law. What about “grossly harmful” or “ethnically objectionable” content where there is no such ban in Indian statutes? Mr. Poovayya says that under his reading a user could bring civil charges against a firm for hosting the offending content and demand financial damages.

While China’s notorious Internet content regulations may be more restrictive than India’s, Mr. Poovayya said, Indians have come to expect relatively strong free speech protections. “Relative to what rights my Constitution gives me in this country, this is much worse than China,” he said.