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New internet rules open to arbitrary interpretation

by Prasad Krishna last modified May 06, 2011 04:58 AM
Six years after an e-commerce CEO's arrest for a pornographic CD sold from his website, the government has introduced a liability on intermediaries such as Facebook and Google to "act within 36 hours" of receiving information about offensive content. This article by Manoj Mitta & Javed Anwer was published in the Times of India on April 27, 2011.

Six years after an e-commerce CEO's arrest for a pornographic CD sold from his website, the government has introduced a liability on intermediaries such as Facebook and Google to "act within 36 hours" of receiving information about offensive content.

Under the rules notified on April 11 under the Information Technology Act, the intermediaries are required to work with the internet user "to disable such information that is in contravention" of the prescribed restrictions. While most of the restrictions in the rules are based on the criminal law (stuff that is blasphemous, obscene, defamatory, paedophilic, etc), some are so loosely worded that they could easily be misused against netizens accustomed to speaking their mind freely, whether on politics or otherwise.

One glaring example of an ill-thought-out provision is the prohibition on saying something that is "insulting any other nation". Since this expression has been mentioned without any qualifications, it could be invoked against anybody who talks disparagingly about other countries.

Apart from encroaching on free speech, the subjective notion of insulting a nation — as opposed to valid criticism — opens scope for arbitrariness and politically motivated interpretation. The authorities may not, for instance, take action against any content that is bashing Pakistan but may be touchy about similar attacks on the US.

Since such violations and the remedial action taken on them could become a subject of police probe, the rules state that "the intermediary shall preserve such information and associated records for at least 90 days for investigation purposes".

Given their legal repercussions, activists termed the new rules "draconian". Pranesh Prakash of Centre of Internet and Society alleged, "The rules seek to expand government's reach to control content on the internet. This is neither reasonable nor constitutional as the rules undermine the free speech guaranteed by the Constitution."

The intermediaries are also required to appoint a grievance officer and publish his contact details as well as the mechanism by which "users or any victim who suffers" can notify their complaints. The grievance officer is required to redress the complaints within one month of the receipt of the complaint.

Industry sources hold that the 36-hour deadline imposed on the intermediaries to take action on complaints would unduly affect their freedom as service providers in the Indian jurisdiction. A Google spokesperson told TOI that the proposed guidelines could be "particularly damaging to the abilities of Indians who are increasingly using the internet in order to communicate, and the many businesses that depend upon online collaboration to prosper."

Read the original article published by the Times of India here

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