Intermediary Liability and Free Speech

Mapping stakeholders’ response

Through a close reading of Draft Intermediary Rules of Department of Electronics and Information Technology, Ministry of of Communications & Information Technology, Government of India, Merlin Oomen discusses in this write-up loopholes in the process of policy making in India. An alumnus of  Centre for Culture, Media & Governance, Jamia Millia Islamia, New Delhi from 2010-2012, she can be contacted at john.merlin89@gmail.com 

On 17th February 2012 the Department of Electronics and Information Technology (DEIT) of Ministry of Communications & Information Technology, Government of India published the Draft Intermediary Rules on its official website and invited responses from the public before 25th February 2012. Various Civil Society and Stakeholders had responded to the DEIT. The respondents also included Google and Yahoo who had several reservations with the proposed “Due Diligence Observed by Intermediaries Guidelines”. They questioned the unconstitutionality of these proposed guidelines with respect to the infringement of the freedom of speech and expression.In India right to free speech and its limitations is provided under Article 19 of the Indian Constitution. The media also falls under the same purview, there exists no special statute that safeguards the interest of the media.

The Intermediaries[1] are “Hosting Providers” such as Yahoo, Google and Facebook etc., these rules are a set of guidelines according to which they will function.

Government. Vs Intermediaries

DIR puts the onus of removing objectionable contentonthe intermediaries of internet which is seen as ultra vires to section 79 of the IT Act2000 that promises safe harbour to the intermediaries. Section 79 of the act states that the intermediaries will not be held liable if the content is posted without prior knowledge. Sub rule 3(3) sets out guidelines to not host or display any information which belongs to another person, is harmful, causes annoyance, is threatening, abusive, harassing, blasphemous etc. The Due Diligence Intermediary Rules provides a long list of “do nots” in sub rule 2.

The rules stated in Draft Rules of Intermediary provide a very subjective framework for the intermediary to work upon. The intermediary upon receiving a complaint has to act expeditiously to remove content from the intermediary’s website. Draft Rules of Intermediary puts the onus on the intermediaries to work(contact the user and remove content) with the “user” (who posted content on the website) to remove access to the content and inform the incident to the police within 90 days.

Therefore any person who feels that the content posted on any website is “Vulgar, Blasphemous, Defamatory, Obscene, Pedophilic, Pornographic, Libelous, Hateful, Racially or Ethically Objectionable, Disparaging, Relating or Encouraging Money Laundering or Gambling, or Otherwise Unlawful in any matter whatever” can ask the intermediary to remove the content posted.

Censoring or Regulating Content

Draft Rules of Intermediary poses a serious threat to the Fundamental Right to “Freedom of Speech and Expression”, underliningits unconstitutionality. If a complainant feels any comment posted to be “vulgar, defamatory etc.”, it can ask the intermediary to expeditiously remove the content and the intermediary will have to comply as DIR clearly fails to provide any form of redressal to the user who has posted the comment. Both Google and Yahoo have called for a public redressal system whereby any complaints received can be viewed and reviewed after which necessary action should be taken. Jayant Chaudhary, Member of Parliament, from the Rashtriya Lok Dal, spoke against DIR and made certain points against the rules:

  •  The 2011 IT Rules is discriminatory against the medium of information.
  •   The conditions mentioned in sub rule 2 differ from the Press Councils norms of journalistic conduct.
  •  The Reasonable Security Practices Rule allows agencies of the Indian government to access personal information from service providers through written complaints whereas crime requires warrants from a magistrate.
  • Draft Rules of Intermediary violates free speech and violates the IT Act which removes intermediary liability.[2]

Similar arguments were made against these rules by the both the civil society and the stakeholders. The final draft titled “Information Technology (Intermediary Guidelines) Rules 2011”(ITIGR) have not addressed the main concern raised by these stakeholders. Even though the ITIGR have incorporated certain suggestions made by them the pertinent question to infringement of free speech and intermediary liability was never answered. The suggestions regarding the removal of sub rule 2, 3 and 4 which talks about removal of content and intermediary liability was never taken into consideration and the ITIGR still support these sub rules.

The Argument

The central argument drawn is that Right to Free Speech is an important asset for any individual residing in India, a liberal democracy. The Right to Free Speech is also a fundamental right which is granted to all it citizens. Rule 3 (4) of ITIGR asks the intermediary to remove objectionable content from the internet within thirty six hours of the complaint received. This rule has ensured greaterstate regulation of the cyber content. An RTI filed by the Center for Internet and Society shows that eleven websites were blocked by the Department of Telecommunications. The rules (ITIGR) provide vague parameters on content removal. While it is important that content such as child pornography, hate speech towards any particular community, region or religion should be blocked, blocking online content based on a flimsy argument of defamatory speech, blasphemy etc. should be curtailed since the “intent to cause harm” is different from a person airing his/her opinion on the internet and should not be confused with defamatory speech. People posting child pornography on the internet should be punished and the website hosting the content must be blocked.

National Security is also frequently invoked to justify is the internet regulation. Autocratic countries such as China regularly monitor and block content. The Indian state seems to have taken the similar route of monitoring and blocking content. The intermediary rule gives the government the right to monitor content on the internet for investigative and protective purposes. The government can ask the intermediary to furnish reports and information for the sake of protecting the national security.

The DIR and ITIGR fail to address these issues raised by the stakeholders and bolster any sort of reprieve to the intermediary. Despite inviting responses from the civil society and stakeholders the Department of Information Technology ignored major issues raised by all of them.

REFERENCES


[i]Intermediaries are defined in the IT Act as ” With respect to any particular records means any person who on behalf of another person receives , stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web hosting service providers, search engines, online payment sites, online-auction sites, online market places and cyber cafes”

This entry was published on March 7, 2013 at 4:09 pm and is filed under Media Policy. Bookmark the permalink. Follow any comments here with the RSS feed for this post.

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