By Vikas Bhadauria
Wikipedia Foundation, a no-profit organization has raised several concerns over the proposed changes to the intermediary rules under the Information Technology (IT) Act. The organization, in its letter to the Union IT minister Ravi Shankar Prasad, has raised serious concerns that the amendments would curb free access to information that it seeks to provide.
Earlier this year, after the release of the intermediary rules, technology giants like Wikimedia, Microsoft, and Mozilla had written to the ministry expressing their worries about the burden and adverse implications the rules will have on the internet access.
The Intermediary Guidelines Rules were last notified on April 13, 2011. Notification of the Intermediary Guidelines (Amendment) Rules 2018 is likely to be completed by January 15, 2020, the Ministry of Electronics and Information Technology (MeitY) said in its affidavit to the Supreme Court in a petition by Facebook.
The Intermediary Guidelines Rules require intermediaries to prohibit users from hosting certain content on its platform. The draft rules prohibit a new category of information which are a potential threat to ‘Public Health or Safety’. Intermediaries must, within 72 hours, are required to provide assistance to government agencies, and they must provide a mechanism to enable tracing of the originator of the information on its platform. The intermediaries must deploy technology-based automated tools to identify and remove public access to unlawful information, and further intermediaries with more than fifty lakh users must incorporate a company in India.
Who are intermediaries? As provided in section 2(1)(w) of the Information Act, the Intermediaries are entities that store or transmit data on behalf of other persons and include internet or telecom service providers, and outline market places.
Internet Service Providers (ISP) – ISPs like Airtel and MTNL, Search engines like Google and Bing, social media sites like Facebook and Twitter, blogging platforms like Blogspot and WordPress, auction sites like eBay, and payment gateways like PayPal, DNS providers all fall under the definition of Intermediary.
The Draft Rules provide that intermediaries are required to put in place technology to monitor, identify, filter and remove access to unlawful information or content. This provision is similar to Section 79 (3) (b) which was given a narrow interpretation by the Supreme Court in a petition challenging the Constitutionality of the provisions of the IT Act. The section required intermediaries to remove or disable access to certain types of content on the basis of user requests. The Supreme Court observed that it would be difficult for the intermediaries to judge the legitimacy and veracity of the contents given the high volumes of content produced every single second. The Court held that the content can only be removed or disabled only on the order of a court or government, and that order must pertain to one of the reasonable restrictions under Article 19(2) of the Constitution.
The intermediaries across the world enjoy impunity from the legal liability that could arise from the user-generated content. However, new intermediary rules mandate the intermediaries to impose a set of rules and regulations on users, prohibiting them from posting a broad list of categories of content which includes, information that is grossly harmful, hateful, harassing, blasphemous, defamatory, obscene, pornographic, and invasive of another’s privacy, ethnically objectionable, or otherwise unlawful in any manner.
The language of the rules is too ambiguous and vague, which leaves open a window for arbitrary application and misuse by overly-broad interpretation of the law. Any person aggrieved by any content posted online can ask the intermediaries to take down such content. The rules apparently are in consonance with the principles of natural justice, as third-party users or information providers whose content is to be taken down or censored is not given an opportunity of being heard or to prove his cause, let alone intimating him/her of such a decision. Hence, the rules do not provide the creator of the content to respond to the complaint and justify his case.
Like most of the counties, the IT Act also provides protection from the liability for the content posted by the third party, however, if an intermediary doesn’t comply with the take-down for any reason whatsoever, it will lose the protection from any legal liability that could arise over user content.
The rules don’t provide a redressal mechanism or an appellate body for the aggrieved third-party content creator to appeal the decision of the take-down by the government agencies.
The words like”blasphemous”, “grossly harmful”, “harassing”, “invasive of another’s privacy” are highly subjective and are neither defined in the Act nor under any other law of the land. The frivolous application of the rule by broad interpretation would possibly be used to silence the dissenting voices and legitimate criticism of the government and its authorities. Hence, the rules are highly violative of Article 14 of the Constitution of India on grounds of being arbitrary, unreasonable and giving wide discretionary powers to the executive.
Pranesh Prakash, from Centre for Internet and Society says, “Most of the startups are intermediaries and all of them are required to have uniform terms of service and to prevent disparaging speech on their platforms. However, the term “disparaging’ has not been defined anywhere. Suppose if there is a website that allows users to complain about a service and if someone negatively reviews the service, it may amount to a disparaging speech. Such small set-ups and organizations would face a threat of losing protection from the liability.”
Sub-rule (4) of rule 3 also fails the test of reasonableness as it mandates that the intermediary, upon obtaining knowledge by itself or gets to know about any content being violative of the grounds stated in sub-rule (2) of rule (4), then it ought to act within thirty-six hours to disable or take down such content. It vests adjudicating powers to the intermediaries to decide the questions of fact and law, which only courts are authorized to do under the legal set-up of the country.
The draft rules are surely going to have serious implications on the privacy and right to free speech and expression. The new draft rules are yet to be released by the Ministry and we hope all the concerns raised by the civil society and all the stakeholders are taken into account.