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IT (Amendment) Act, 2008, 69A Rules: Draft and Final Version Comparison

Posted by Jadine Lannon at Apr 26, 2013 10:55 PM |
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Jadine Lannon has performed a clause-by-clause comparison of the 69A draft rules and 69A rules for Section 69A of the IT Act in order to better understand how the two differ. While there has been reshuffling of the clauses in the official rules, the content itself has not changed significantly. Notes have been included on some changes we deemed to be important.

Below is a chart depicting the 69A Draft Rules and the 69A Rules:

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There was a lot of structural change between the draft rules and the official rules—many of the draft clauses were shuffled around and combined—but not a lot of change in content. Many of the changes that appear in the official rules serve to clarify parts of the draft rules.

Three definitions were added under clause (2), two to clarify later references to a “designated officer” and a “nodal officer” and the third to indicate a form appended to the official Rules.

Clause (3) of the official rules then clarifies who shall be named the “designated officer”, which was not done in the draft rules as there was no inclusion of an official title of the officer who would have the responsibilities of the “designated officer”. Interestingly, clause (3) of the draft rules requires the Secretary of the Department of Information Technology, Ministry of Communications & Information Technology, Government of India to name an officer, whereas clause (3) of the official rules states that the “Central Government” shall designate an officer, a change in language that allows for much more flexibility on the government's part.

Clause (5) in the draft rules and clause (4) in the official rules deal with the designation of a Nodal Officer, but omitted in the official rules are responsibilities of the designated officer, which includes acting on the “direction of the indian competent court”. This responsibility does not appear in any part of the official rules. Further, clause (4) of the official rules requires the organizations implicated in the rules to publish the name of the Nodal Officer on their website; this is an addition to the draft rules, and a highly useful one at that. This is an important move towards some form of transparency in this contentious process.

Clause (5) of the official rules significantly clarifies clause (4) of the draft rules by stating that the designated officer may direct any Agency of the Government or intermediary to block access once a request from the Nodal Officer has been received.

Clause (7) of the official rules uses the word “information” instead of “computer resource”, which is used in the corresponding clause (12) in the draft rules, when referring to the offending object. This change in language significantly widens the scope of what can be considered offending under the rules.

The sub-sections (2), (3) and (4) of clause (9) of the official rules are additions to the draft rules. Sub-section (2) is a significant addition, as it deals with the ability of the Secretary of the Department of Information Technology's ability to block for public access any information or part thereof without granting a hearing to the entity in control of the offending information in a case of emergency nature. The request for blocking will then be brought before the committee of examination of request within 48 hours of the issue of direction, meaning that the offending information could be blocked for two days without giving notice to the owner/controller of the information of the reason for the blockage.

An important clarification has been included in clause (15) of the official rules, which differs from clause (23) of the draft rules through the inclusion of the following phrase: “The Designated Officer shall maintain complete record of the request received and action taken thereof [...] of the cases of blocking for public access”. This is a significant change from clause (23), which simply states that the “Designated Officer shall maintain complete record [...] of the cases of blocking”. This could be seen as an important step towards transparency and accountability in the 69B process of blocking information for public access if clause (16) of the official rules did not state that all requests and complaints received and all actions taken thereof must be kept confidential, so the maintenance of records mentioned in clause (15) of the official rules appears to be only for internal record-keeping. However, just the fact that this information is being recording is a significant change from the draft rules, and may, if the sub-rules relating to confidentiality were to be changed, be useful data for the public.

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