Concern over impact of Internet control rules on free speech

“An attempt to give intermediaries the right to control content”

Cyber activists, bloggers and legal experts are crying foul over the new rules and guidelines under the Information Technology Amendment Act 2008, that lay additional focus on content regulation and information security, besides dealing with cyber terrorism and data protection.

They have termed it an attempt to gag free speech by giving intermediaries like Internet Service Providers, web hosting companies, search engines and cyber cafes the right to control content. The new rules require hosts or owners of websites to take action against “objectionable content” that is considered “disparaging,” “harassing,” “blasphemous” or “hateful.”

Also included is anything that “threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign countries, or public order.”

And if an intermediary fails to act on a complaint within 36 hours of receiving it, the firm's top management is liable to face civil or criminal proceedings that could involve huge penalties and even imprisonment.

Denying any move to restrict free speech, the government claims “canards” are being spread by “vested interests” that thrive on misuse of the Internet.

But Nikhil Pahwa, Editor and Publisher of the news and analysis website, MediaNama, is not convinced.

“These rules give the Indian government the ability to gag free speech, and block any website it deems fit, without publicly disclosing why sites have been blocked, who took the decision to block it, and, just as importantly, providing adequate recourse to blogs, sites and online and mobile businesses, for getting the block removed. These rules are applicable to intermediaries, through whom access to content will be controlled,” Mr. Pahwa points out.

Similarly, Pavan Duggal, a Supreme Court lawyer and expert on cyber laws, says the government's entire approach is flawed.

“Though there is no dispute on the proposition of content monitoring, there are huge grey areas in the rules. For instance, there are various categories of intermediaries where a one-size-fits-all approach cannot be applied… We need to frame separate guidelines for separate categories or there will be huge practical problems while implementing the rules,” Mr. Duggal says.

On his part, Minister of State for Communications and IT Sachin Pilot says all valid views and suggestions of the stakeholders were incorporated in the new rules.

“There is no question of gagging free speech… the government is all for freedom of expression. India is an open society and it also has one of the world's best systems of jurisprudence. If anybody thinks he has been wronged, he has all the right to take legal recourse,” Mr. Pilot told TheHindu.

The Department of IT insists that critics' fears about this new rule — and another which allows an individual's sensitive personal information to be handed over to government agencies — are unfounded.

Pointing out that a fair open house discussion was held by the IT department before framing the rules, Rajesh Chharia, president of the Internet Service Providers' Association of India (ISPAI), says that with broadband penetration growing fast, it is all the more important to regulate and monitor content.

“It is in everybody's interest. Whosoever is putting content on the Internet needs to exercise self-control and self-restriction. Bloggers and celebrities who have a huge online following have a responsibility to ensure that their comments do not hurt anybody's sentiments,” Mr. Chharia says.

Mr. Duggal, however, disagrees, insisting that the new rules will adversely affect legitimate free speech and also press freedom. “The sufferer will be the content generator as he will not be heard, while intermediaries will take no chance while dealing with complaints, be they legitimate or illegitimate,” he says.