BANGALORE: The draft rules proposed under the Information Technology Rules 2011 (due diligence observed by intermediaries guidelines) by the Indian government could lead to unprecedented levels of online censorship.
Intermediaries include telecommunications companies, internet service providers (ISPs) and blogging sites. Under the draft rules, intermediaries will have to notify users of their computer resource not to use, display, upload, publish, share or store a variety of 'objectionable' content.
This includes infringement of proprietary information, blasphemy or abuse, information that could harm minors, content that impersonates another person or discloses sensitive personal information etc.
Sunil Abraham, executive director at the Centre for Internet and Society, said that these moves would have a chilling effect on internet freedom. For example Sec 3 (2)(a) states that any website with social media integrated into it and allows the public to add content comes under the blanket surveillance regime. Sec 3 (h), which talks about impersonating another person, will potentially discourage cases like the fake IPL player who revealed rich information while keeping his real identity under wraps.
The draft rules use a standard set of rules across a variety of intermediaries including telecom service providers, blogging sites, online payment sites, e-mail service providers, and web hosting companies.
Abraham believes that the government is explicitly targeting bloggers as a community and the draft rules are far from being tech neutral. "The government has come out with standard terms of use for due diligence. But you can't treat a small blogger on par with others who have large-scale commercial interests," he said.
According to the draft rules, an intermediary has to inform users that in case of non-compliance of its terms of use of the services and privacy policy, it has the right to immediately terminate the access rights of the users to its site. In case of infringement, the intermediary has to work with the user or owner of the information to remove access to the information.
Apar Gupta, partner in Accendo Law Partners, said intermediaries like blogs and search engines would have censorship powers. "It will not directly impeach the freedom of speech and expression. But intermediaries have to comply with some standards such as notifying users on compliance issues," he said.
Some also fear that certain terms are so vague that to stay on the right side of the law, intermediaries may remove third-party content that appears even slightly controversial.
While some terms like obscenity have been defined by the Supreme Court, others like sensitive personal information are loosely defined and vague. Sajan Poovayya, managing partner of law firm Poovayya & Co, who has represented companies like Google and Yahoo in legal matters, thinks Sec 3 (2)(a) deals only with proprietary information. "It has been loosely worded as belonging to another person," he says. But such loose wording is the big worry for many.
Under the current IT Act, an intermediary is not liable for any third-party information, or data hosted as long as he/she has observed due diligence as per the rules. But experts feel that the new rules will give rise to subjective interpretations, thus giving discretion to non-judicial authorities to decide whether the intermediary has observed due diligence or not.
The draft rules also add new provisions to give the government easier access to content from intermediaries. Intermediaries will be required to provide information to authorized government agencies for investigative, protective, cybersecurity or intelligence activity. Information will have to be provided for the purpose of verification of identity, or for prevention, detection, prosecution and punishment of offenses, on a written request stating clearly the purpose of seeking such information, the rules add.
Draft rules
The worry