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The Pandora’s Box opened: the IT Act 2011

May 14, 2011

After attending the conference headed by Medianama’s editor Mr. Nikhil Pahwa to discuss the new IT Act, I really appreciate the great work that they are doing to bring awareness to the general public regarding the devious way the rulings of this new Act are being formulated. Read on…

Following is an excerpt from Medianama.com :

The Centre for Internet and Society has published a point-by-point rebuttal of the statement issued by India’s Department of Information Technology on India’s Internet Control Rules.

In its press release on Wednesday, May 11, 2011 , the DIT stated:

The attention of Government has been drawn to news items in a section of media on certain aspects of the Rules notified under Section 79 pertaining to liability of intermediaries under the Information Technology Act, 2000. These items have raised two broad issues. One is that words used in Rules for objectionable content are broad and could be interpreted subjectively. Secondly, there is an apprehension that the Rules enable the Government to regulate content in a highly subjective and possibly arbitrary manner.

There are actually more issues than merely “subjective interpretation” and “arbitrary governmental regulation”.

  • The Indian Constitution limits how much the government can regulate citizens’ fundamental right to freedom of speech and expression. Any measure afoul of the constitution is invalid.
  • Several portions of the rules are beyond the limited powers that Parliament had granted the Department of IT to create interpretive rules under the Information Technology Act. Parliament directed the Government to merely define what “due diligence” requirements an intermediary would have to follow in order to claim the qualified protection against liability that Section 79 of the Information Technology Act provides; these current rules have gone dangerously far beyond that, by framing rules that insist that intermediaries, without investigation, has to remove content within 36-hours of receipt of a complaint, keep records of a users’ details and provide them to law enforcement officials.

So to equate the effect of these Rules to merely following ‘existing practices’ is plainly wrong. An intermediary—like the CIS website—should have the freedom to choose not to have terms of service agreements. We now don’t.

“In case any issue arises concerning the interpretation of the terms used by the Intermediary, which is not agreed to by the user or affected person, the same can only be adjudicated by a Court of Law. The Government or any of its agencies have no power to intervene or even interpret. DIT has reiterated that there is no intention of the Government to acquire regulatory jurisdiction over content under these Rules. It has categorically said that these rules do not provide for any regulation or control of content by the Government.”

The Rules are based on the presumption that all complaints (and resultant mandatory taking down of the content) are correct, and that the incorrectness of the take-downs can be disputed in court. Why not just invert that, and presume that all complaints need to be proven first?

Now coming to my take on this:

I believe that blatantly removing an individual’s post on frivolous accounts is a mighty misuse of the freedom of expression. But that said, anything that jeopardises safety of any person, group, community or country such as threats or harrassing content or content that sparks extreme communal and religious fanaticism should be brought to book.

The pen is mightier than the sword as we saw in recent times how Egypt and Libya and many such other oppressed countries could break themselves out from the shackles of dictatorial anarchy. And these positive changes are brought about only thanks to this new voice of the middle class youth that is getting a platform only due to the internet. We dont want this positive voice to be stifled and told to shut up.

So in my opinion, what we need here is a comprehensive list to be generated to classify incidents and scenarios between what is frivolous or attacks person’s freedom of expression and what can be a potential cause of extreme repulsion or hatred or fanaticism which is threat to a person or group or country.

And this list needs to be very tightly grounded on the principles of fairness and democracy in our country. Any case should be water-tight ,i.e, able to be classified as one or the other. We need the rules to be mature enough to be such. And I think there should be some way of making people realise that frivolous complainants can also be pulled up for wasting other people’s precious time. I know this last idea in itself is a double edged sword but it isnt difficult to implement if we have work done on the two specific mutually exclusive scenarios that I mentioned earlier in this paragraph.

Whats happening now is really interesting… from the Medianama article… it can be seen that the GoI is overlooking all the comments sent by Civil Society voices, Companies and Industry Experts pointing the concerns regarding the provisions of this new Act. On one hand it calls the process transparent and this is the grossly undermining the people’s voice even before the Act becomes officially enactable.

The latest on this can be found on Medianama’s site if you follow this link:

http://www.medianama.com/2011/05/223-point-by-point-rebuttal-of-indian-governments-statement-on-internet-control-rules/

Comments are welcome guys and gals!

-therhymeoflife

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