Cyber community feels new norms may gag free speech

Cyber community feels new norms may gag free speech

New Delhi/Mumbai: India’s Internet community is outraged by the new set of rules (notified under the Information Technology (Amendment) Act 2008), that aim to regulate content posted over the medium and which it sees as a means to gag free speech.

The so-called Information Technology (Intermediaries guidelines) Rules, 2011 were notified last month. They require the hosts or owners of websites to take action on “objectionable content" on their portals within 36 hours of receiving a complaint.

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The problem is that the rules provide a wide definition of what is objectionable. They say the content should not be “grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever".

That’s a definition which could include anything. Pavan Duggal, a Supreme Court advocate who specializes in cyber law said that the rules follow the “one-size-fits-all" approach which is flawed. “It will be extremely detrimental to the entire electronic ecosystem in the country... I expect a significant jump in litigation and abuse post these rules."

The rules also say intermediaries—telcos, network, Internet and web hosting service providers, search engines, online payment portals, auction sites, online market places and cyber cafes—have the responsibility of making sure nothing objectionable is posted on their site or using their channel.

This would mean that Internet giant Google Inc. which owns blogging platform Blogspot will have to act on a complaint; so would a network service provider, which is merely providing the bandwidth for the portal.

Mahesh Murthy, founder, Pinstorm, a Mumbai based digital marketing agency said that the fact that any complainant can simply directly complain to the intermediary means there is no authority that can judge whether a complaint is fair or not. “It’s an open invitation to anarchy."

An official of the department of information technology (DIT), who has worked closely on drafting the rules expressed surprise at the outrage. The official said that the underlying principle behind the guidelines is to protect the interest of the individuals by making intermediaries more responsible for the content.

“All we want is that they should follow due-diligence... The government is nowhere in the picture. It is not to regulate or gag freedom of speech in any way," asked this person who did not wish to be identified given the controversy the new rules have generated.

“It provides individuals the option of instant redressal in case someone posts pictures or phone numbers or other damaging stuff. The entire motive behind the rules is to protect the interests of the consumer and also of the intermediaries. The rules prescribe due-diligence by the service provider so that they can claim exemption from any sort of liability," the official added.

No one is convinced by that argument

Nikhil Pahwa, editor and publisher of a digital industry news and analysis blog, MediaNama said, “The problem is that the norm will not be impacted by the rules, but the exceptions will be."

Who defines blasphemous, harassing, “ethnically objectionable" or even grossly harmful, he asked. Murthy agrees that the definitions are ambiguous. “So an article that says ‘God damn’ can be blasphemous; another that examines a politician’s overseas bank accounts can be both ‘invasive of privacy and grossly harmful’, one describing the betting at IPL can be ‘encouraging of gambling’, a Facebook post calling for a demonstration supporting Anna Hazare can be ‘threatening public order’ and another that calls Pakistan a nation that supports terrorism can be censored as it might ‘offend another nation’," said Murthy.

“In my opinion, these guidelines give ample room for abuse by any policing body, and can easily be used to gag free speech... This is just one part of a larger move by the Indian government to increase monitoring and interception," added Pahwa, who has been at the forefront of the online protest against the rules. His blog was the first to report on and critique the rules.

The rules are also unclear on the legal liability of an intermediary. The DIT official said that if the person making a complaint about content on a website approaches a court, then the intermediary would not be liable, and only the content creator and publisher would be.

Duggal said that wasn’t how things worked. “The intermediary will also be pulled into it and will have to defend its action (or rather inaction) like the person who has posted the comment."

He added that in most cases, the intermediary would rather remove the content instead of fighting a case in court. “This is effectively gagging the press or the freedom of speech as there is no opportunity to be heard."

Still, the rules are a step in the right direction, said an expert, echoing a popular sentiment, especially in the establishment, that the Internet is really like the Wild West. “Somebody has to be take ownership of user generated contents which is not audited before being published... These rules create the grounds for that," said Akhilesh Tuteja, executive director, IT advisory, at audit and consulting firm KPMG.