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Caught in the web; draft rules stir a hornet's nest

May 25, 2009 09:34 IST

The IT Amendment Act, 2008, if notified, will give the government blanket power to block news portals and other sites for 'offensive' content.

Internet experts and lawyers are miffed over the newly-proposed internet censorship draft rules (especially Section 69A) under the IT Amendment Act, 2008, which, if notified, will give the government blanket power to block news portals and other websites for "offensive" content. These rules, they said, could end up violating the rights of internet users and corporates if not implemented in a "fair and just" manner.

Most newspapers, Websites, Internet service providers and social networking sites currently have a lot of content and provisions for bloggers to post their views. While the content in the newspapers is regulated, the blogs are not moderated since it's impractical to do so. Moreover, social networking sites, by their very definition, thrive on user-generated content which is unregulated.

However, the government, under Section 69A of the amended IT Act, can "block public access of any information generated, transmitted, received, stored or hosted in a computer resource" in the interest of sovereignty or integrity of India; defence of India; security of the state; friendly relations with foreign states; public order; and to prevent incitement to the commission of any cognisable offence relating to the above.

These orders will be carried out by government-appointed officers, not below the rank of a joint secretary, whenever a complaint that satisfies the above conditions is received.

"How can one define 'friendly relations with foreign states' or for that matter 'offensive' content? There's a due process of law to do so. Let's leave the task to the law of the land," said internet expert Vijay Mukhi, adding, "And how on earth will the government enforce these rules and regulate the internet, which sweeps across borders?"

He adds that designating officers will simply open up cases to endless litigation.

"You cannot have different standards for online and offline properties," said Suhaan Mukerji, principal associate of law firm Amarchand & Mangaldas. "The adjudicating (designated by the government) officers will need to have a nuanced understanding of social issues and the law to take an informed decision in this regard. Else, there's potential for misuse. I believe the government could instead have a body (rather than a designated officer) similar to the Press Council," said Mukerji.

"The proposed rules under Section 69A of the amended IT Act, 2000, could end up violating the fundamental tenets of the principles of natural justice since they condemn the affected website unheard and hence are ulta vires the Indian Constitution and, if implemented, could be struck down by any court of law," said Pavan Duggal, advocate, Supreme Court of India.

It is increasingly necessary to ensure that the powers under Section 69A are exercised in a just and fair manner and that there are appropriate checks and balances on the exercise of such a power.

Meanwhile, the government, under Section 70B of the IT Act, has appointed the Computer Emergency Response Team to monitor offences under the Act. A highly-placed government source defended the drafting of Section 69A.

"I do not see any reason for so much criticism. We had given industry bodies and corporates enough opportunity to react before the Act was passed. We have followed the due process," he said.

The Internet & Mobile Association of India, on its part, declined to comment on the issue, and the Internet Service Provider Association of India said its lawyer was studying the draft rules after which it would give a comment.

There could be more bad news on this front, say lawyers and corporates, who are more concerned about the draft rules pertaining to Sections 43A, and 79 of the Act that they think will be out soon.

These draft rules will cover telecom operators, internet service providers, business process outsourcing units, IT services providers and banks since Section 43A of the Act asks corporates dealing with third-party data to adopt reasonable security practices, failing which they are liable to pay Rs 5 crore (Rs 50 million) by way of damages.

"Protection of sensitive data is a good practice. However, how can we as a company with hundreds of subscribers take care that no frivoulous complaints are entertained? Any subscriber can complain that his data have been compromised. Imagine the amount of time one will have to spend on litigation," said a lawyer of a major Indian telecom operator.

Section 79 of the IT Act, on the other hand, deals with the liabililty of third-party service providers. These cases had come to light earlier too. For instance, social networking site Orkut (which belongs to internet search giant Google) was held responsible when a user insulted the Indian flag with a "Hate India" campaign.

"How can we be held responsible for an irresponsible post on our site? We can only remove the post when alerted," said an official of a prominent ISP on condition of anonymity.

Duggal, meanwhile, describes the appointment of designated officers as a "failed experience". "There has not been a single case of anyone being awarded damages in the last eight years since the IT Act was instituted. I wonder how things will change."

Incidentally, it's just recently that a private company called Cryptohippie Inc, which surveyed 52 countries for having the most aggressive procedures to monitor residents electronically, ranked India No. 20. The report, called The Electronic Police State, assessed the status of government surveillance around the globe for 2008.

In an Electronic Police State, every surveillance camera (CCTVs, etc) recording, every email you send, every internet site you surf, every post you make, every cheque you write, every credit card swipe, every cellphone ping - are all criminal evidence, and they are held in searchable databases, for a long, long time.

This system hasn't taken its full shape in India but the basics are in place and it is not far from complete in some places, notes the report. The new draft rules, if notified, may alter the scenario drastically.

Leslie D'Monte in New Delhi
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