PIL in Kerala to axe the vexed Intermediary Rules

(The following post is contributed by Rohan Bagai)
In the midst of the tempestuous brouhaha over internet censorship and filtering of online content while US corporations like Microsoft and Yahoo are being let off on account of scanty evidence of objectionable content in their court battles at Delhi, a public interest litigation (PIL) has been filed in the Kerala High Court contesting the constitutional validity of the allegedly vexed provisions of the much hyped ‘Information Technology (Intermediaries guidelines) Rules, 2011 (“Intermediaries Guidelines”), and the Information Technology (Procedure and Safeguard for Blocking for access of information by public) Rules, 2009 (“IT Rules 2009”).
The Hon’ble High Court has reportedly admitted the PIL [WP (C) 5236 of 2012] and sought the Ministry of Communications & Information Technology, Government of India to file its response within 8 weeks. The petition specifically challenges Rule 4 of the Intermediaries Guidelines and Rules 8 and 16 of the IT Rules 2009 and labels these Rules as arbitrary, unreasonable and violative of the fundamental right of the internet users to “freedom of speech and expression” guaranteed under Article 19 (1) (a) of the Constitution of India.
Rule 4 of the Intermediaries Guidelines empowers the intermediary, on whose computer system the information is stored or hosted or published (upon obtaining knowledge by itself or been brought to actual knowledge by an affected person), to act within thirty six (36) hours and where applicable, work with user or owner of such information to disable such information/content that is unlawful or objectionable in accordance with these Guidelines. Essentially, this gives the  intermediary the power to censor, block or ban the websites and/or content that appears on the internet.  
The petitioner casts aspersions on the intermediaries submitting that “these are private companies who have their own business interest to protect. The intermediaries cannot be expected to be guardians of free speech. They engage in blocking, censoring internet content arbitrarily and on the basis of any frivolous complaint. They do not have the responsibility to verify the genuineness of the complaint received. The blockings are arbitrary and not in conformity with the principles of natural justice like notice and fair hearing. The Rule requires the intermediary to work with the user concerned before censoring any content. But the user concerned is not given any notice or a chance for a hearing in the matter by the intermediaries. This is a gross violation of the fundamental right of free speech and expression guaranteed under Article 19 (1) (a) of the Constitution of India.”
In the petition, the petitioner alleges that the owner/user of the content is not provided any opportunity to understand the reasons as to why his content has been censored or blocked and no order in this respect is ever communicated to the concerned content owner/user by the intermediaries. As a result, the aggrieved party has no redressal before any judicial forum, which is a clear infringement of the fundamental rights including the right to constitutional remedies.
One such instance cited in the petition is that of www.cartoonsagainstcorruption.com, in respect of which, on December 26th, 2011, the website was blocked on the basis of a complaint which was forwarded by the Mumbai crime branch police to the intermediary. The Indian intermediary ‘Big Rock’ which was the domain name registrar and also the web hosting company blocked the website without providing an opportunity to the content holder for a hearing before taking down the content.
Further, Rule 8 of the IT Rules 2009 authorizes the ‘Designated officer’ of the Computer Emergency Response Team (CERT-India) to identify the person or intermediary and issue a notice to appear and submit their replies at a specified date and time, upon receiving any complaint for blocking of access of any information by the public.
To this, the petitioner has asserted in the petition that “even though notice has to be given to the user concerned before blocking/banning/censoring any content, it is not complied with and the user concerned is not given a fair hearing. There is no mandate to issue notice to the ultimate affected user/owner of the content. The said Rule places a discretion to issue notice to the affected user or the intermediary. The intermediary is not an interested party and would not have an objection to block any content. The intermediaries, being private companies, are established for profit making objectives and are not concerned about blocking content”.     
Rule 16 of the IT Rules 2009 requires all requests and complaints received and actions taken thereof to be kept strictly confidential. Since the said Rule enables the Designated Officer to keep confidentiality the petitioner disputes that the said Rule can be misused by secretly engaging into censoring the internet. This is for the reason that “the provision enables the designated officer not to serve a copy of the complaint or order so as to curtail the rights of the user concerned to resort to judicial remedies”.
In effect, the PIL besides the highlighting the alleged constitutional invalidity of the above impugned provisions, urges the Hon’ble High Court to issue guidelines to the Respondent (the Government) in respect of the following:
(a)     Before banning the content it should be done with the prior notice to the owner of the content/user concerned in accordance with the principles of natural justice;
(b)    Immediately after the blocking, banning or censoring the content a copy of the order stating reasons should be communicated to the owner of the content/ user concerned so as to enable them to resort to judicial remedies;
(c)     To instruct the Internet Service Providers (ISP) to develop the technical competence to block only the specified web pages/websites which have been directed by the Courts/ orders of the government; and
(d)    To take away the deciding power and censoring power from the intermediaries and escalate such issues to a government appointed body like Computer Emergence Response Team (CERT-In) so as to ensure uniformity in the blockings.
There is no doubt that the process of filtering of content in the internet needs to be streamlined by ensuring transparency (by publishing all orders issued for blocking content on the website of CERT-India) and maintaining consistency (by giving a fair hearing to the users and not allowing the intermediaries to apply varying policies and yardsticks) in the standards in blocking content. However, it remains to be seen if the Government agencies in India can be steadfast in remaking public faith as “the people of this country have a right to know every public act, everything that is done is a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security”. (New York Times Co. V. United States ((1971) 29 Law Ed. 822= 403 U.S. 713)
Let’s see if this constitutional challenge goes any far. For now, we can only wait and watch.
 – Rohan Bagai

About the author

Umakanth Varottil

Umakanth Varottil is an Associate Professor at the Faculty of Law, National University of Singapore. He specializes in corporate law and governance, mergers and acquisitions and cross-border investments. Prior to his foray into academia, Umakanth was a partner at a pre-eminent law firm in India.

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