Union minister for communications and information technology Kapil Sibal may claim to executives of Internet companies that he is ready to set fundamentalist hound-dogs belonging to a certain unnamed community on them. He is more loyal than the king, sorry, queen! But his bark could prove far worse than his bite. He has sought to first threaten, then browbeat and finally cajole representatives of Google, Microsoft, Facebook, Twitter, Orkut, Youtube, Blogspot etc. into toeing the government’s line. He wants them to become his lapdogs.
Although there are indications that some of these organisations may buckle under and while their spokespersons are wary of speaking out because of pending lawsuits, the controversies that have been generated are not going to disappear. The reason is simple: the Information Technology (Intermediary Guidelines) Rules under the Information Technology Act of 2000, that were notified on April 11, 2011, are so arbitrary and draconian that these appear to have been specifically designed to institute a regime of post-censorship. (It is surely evident to all concerned, including Mr Sibal, that pre-censorship of content on websites hosted, say, in Iceland, is neither possible nor feasible.)
Across the world, debates are currently raging on a host of ethical issues relating to freedom of expression on the Internet. Does freedom of expression include the right to offend, the right to remain anonymous and/or the right to pirate content over which someone claims intellectual property rights? These debates are highly contentious and are unlikely to be resolved in a hurry. Those in charge of governments in different countries, including in the US and India, are finding it difficult to come to terms with a new global order in which control over flow of information — and with it, power and authority — is slipping out of their hands.
In recent times, the Indian government in particular has displayed arrogance coupled with sheer ineptitude in dealing with these complex issues, quite reminiscent of the manner in which the authorities dealt with Anna Hazare a larger-than-life character by arresting him and then blamed the Delhi Police.
On September 5, 2011, Mr Sibal met representatives of four Internet firms. He showed them examples of what he described as “offensive” content — much of these were apparently of a political (not pornographic) nature. On November 4, his ministry’s secretary R. Chandrashekhar convened a follow-up meeting to discuss issues relating to the “filtering” of content and modalities of “taking down” content deemed offensive. On November 24, the head of the computer emergency response team in the department of information technology, Dr Gulshan Rai, circulated a note on a “framework for code of conduct for intermediaries”.
The note first pointed out that under the IT rules, intermediaries “shall scan and screen/filter the content hosted on their websites for objectionable content (other than those of nature of political satires but not of lascivious nature [sic]) about Constitutional authorities, council of ministers in Centre/states, political leadership” and disable such content “expeditiously” either on their own or when “brought to their knowledge in writing by an authorised representative of such authorities”. Further, the so-called code of conduct suggested that intermediaries “shall disclose to the government information such as IP (Internet protocol) address, time stamp, details of content, creator/poster, registrant, logs…” Moreover, intermediaries were called on to publish contact details of grievance officers and mechanisms for receipt and redress of grievances and complaints.
Five days after this note was circulated, on November 29, Mr Sibal convened another meeting with representatives of intermediaries, during which he publicly made the remark about “setting the (unnamed members of a community) on you” in the presence of his own officials. Though some of those present were offended by what the minister said, they kept silent. The last of this series of meetings with Mr Sibal took place on December 5 when representatives of intermediaries registered their objections with the propose code of conduct.
The problem essentially lies with the definition of an intermediary under the new rules. Section 2(1)(w) of the IT Act states that an “intermediary with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record” and includes telecom service providers, network service providers, Internet service providers, web-hosting service providers, search engines, online payment sites, auction sites and cybercafes.
Section 79 of the Act provided for a “safe harbour” for intermediaries by protecting their liability with respect to any third party information hosted by them, notwithstanding anything contained in any law. This section lists various conditions to be satisfied by the intermediary to avail of the protection, one of which is that the intermediary observes due diligence while discharging his duties under the IT Act and also observes such other guidelines as the government may prescribe. The problem is that the guidelines do not differentiate between various classes of intermediaries and hence applies to all intermediaries.
The new rules have defined as “unlawful” content considered “grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating to or encouraging money laundering or gambling…” The rules expect the intermediaries to identify such content and remove it on their own within 36 hours. Thus, the concerned intermediary is saddled with an adjudicating function, for which they are just not equipped, neither capable.
Many believe that the existing rules exceed the “reasonable restrictions” imposed on the fundamental right to free expression under Article 19 of the Constitution of India relating to national security and sovereignty, friendly relations with foreign countries, public order, decency, morality, contempt of court, defamation or incitement to an offence. These rules need to be amended. The sooner the better.

The writer is an educator and commentator