Communicating and gathering information over the Internet are deliberate and well-thought-out actions. That’s because the Internet user seeks or shares specific information and does so voluntarily. It usually takes several steps to find the information one is looking for, because that does not appear automatically on one’s computer screen. Clearly, it is not easy to decide the extent to which content should be regulated.
Illustrations: Jayachandran / Mint
However, far from being foxed about the extent of regulation, lawmakers in India have not even come up with an applicable law for online content. Over two years ago, when the chief executive of an auction website was arrested because a sexually explicit MMS was posted on the site, there was an uproar about the law enforcement agencies’ lack of awareness about how the Internet works. Since then, there has been no constructive initiative to examine which aspects of online content should be regulated or whether Indian law has what it takes to regulate online content.
The first question asked by a foreign company, wanting to operate a website targeted at the Indian audience, is about the laws dealing with online content. It is difficult to answer that question. At present, the only provision of the Information Technology Act, 2000, that deals with online content is Section 67, which specifies that an offence has been committed if an obscene material is (a) published (b) transmitted or (c) caused to be published. Section 79 of the Act carves out the exception to the liability under Section 67 by stating that network service providers are not to be held liable for any third party information or data if it can be proven that the offence was committed without the knowledge of the service provider or that the service provider exercised all due diligence to prevent the commission of such an offence. It is a struggle to advise a company on how to give “due diligence” when there are millions of Internet users worldwide.
Although the term “obscenity” is not defined, the description of “obscene material” in Section 67 of the IT Act has been drawn from Section 292 of the Indian Penal Code, which is the only other statutory provision under Indian law that deals with obscenity. This description of obscenity under Section 292 is antiquated. Section 292 uses words like “material which is lascivious (lustful!) or appeals to prurient (given to unclean thoughts!) interest” or material which has the effect to “deprave (to make bad!) and corrupt” any person. Going by this description, a lot of the content in today’s magazines and newspapers would qualify as illegal!
Without even a serious debate on regulating online content, the Indian government has made the Indian Computer Emergency Response Team (CERT-In)—the only agency that has the authority to block a website.
CERT-In instructs the department of telecommunications in the ministry of communication and information technology to block a website after verifying the authenticity of the complaint and is convinced that blocking the website is absolutely essential. The department’s order dated 7 July 2003, that prescribes the procedure for blocking websites, recognizes that blocking may amount to censorship and therefore can be challenged if it constitutes restriction of freedom of speech and expression. The order, however, does clarify that websites with content that promotes hate, gambling, racism, violence, terrorism, child pornography and violent sex, or content that is slanderous and defamatory, can be blocked, because these sites cannot claim the constitutional right of free speech. The government perceives this as a service in the public interest — as clearly stated in the order—and not as a regulation of online content. The technical and legal feasibility of even blocking websites is so full of flaws that it might as well not be seen as having any role in regulating online content.
The US looks at acts such as substitution or redirection of a website; use of misleading domain name; Internet fraud (such as phishing); credit card fraud (accessing a computer and obtaining information from a financial institution or credit card user); intellectual property theft (trafficking in recordings of live musical performances); electronic harassment; cyber stalking; invasion of privacy; child pornography; economic espionage (theft of trade secrets or disclosure of confidential information); or spam, as unlawful online conduct subject to serious action under the law.
There is a serious need for the evolution of an Indian law on online content that is not just restricted to the posting and transmission of obscene material, which is in any case outdated. There is no reason whatsoever to assume that the majority of Internet content is sexual. There are a plethora of non-sexual actions that take place over the Internet — e-commerce and plagiarism, for example—that need regulation so that the interests of Internet users can be protected.
Time to start a debate on the legal framework for online content in India is long overdue considering the Internet is now used so widely in the country. And providing a legal framework for online content—as long as it is in keeping with the 21st century—is the need of the hour.
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This column is contributed by Sunila Awasthi of AZB & Partners, Advocates and Solicitors.