IT Rules Vis-À-Vis International Standards
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IT Rules vis-à-vis International Standards India’s Intermediary Liability Regime Shehla Rashid Shora Fellow, Asia Internet Coalition New Delhi, 2013 Contents Executive Summary 3 Introduction 5 Intermediary Liability and Freedom of Expression in India 6 The Constitution of India and IT Rules 7 Intermediary liability and human rights 8 Toward Alternatives 11 Appendix A- Section 79 of the Information Technology Act and the Information Technology (Intermediaries Guidelines) Rules, 2011 (IT Rules, 2011) 12 Executive Summary free speech guarantees under Article 19 apply equally well to the Internet and other electronic communication. Furthermore, in a joint declaration in 2011, India’s Information Technology Act four UN special rapporteurs, including (2000) was amended in 2008 to include, Mr. Frank La Rue, recommended that among other provisions, Section 79- intermediaries should not be held liable the ‘safe harbor’ provision under which for content generated by others unless they Internet intermediaries like Facebook, have specifically intervened or refused to Google, etc. can claim exemption from obey a court order. The IT Rules stand in prosecution or liability for user-generated opposition to these recommendations, as content. In 2011 the rules under this intermediaries can be held liable for third- provision, commonly known as IT Rules, party content even if they are not involved were notified, and these contain “due in the creation or modification of such diligence” requirements for intermediaries- content. They can also be held liable even conditions under which the intermediaries when no court order has been issued, that can claim exemption from liability. These is, in the event of non-compliance with a Rules have come under severe criticism private complaint. for their adverse effects on freedom of expression and their constitutionality is Apart from being arbitrary and broad, the now being challenged in the Supreme IT Rules also allow private censorship. Court of India. That is, a private party can send a takedown notice to the intermediary, who, The Constitution of India provides fearing prosecution, might take it down to for reasonable restrictions to freedom be on the safer side, and the user whose of expression under limited grounds. content has been taken down will not be However, the restrictions under the IT notified, meaning that, unless the affected Rules go much beyond these grounds. user discovers on their own, they would The IT Rules are also in violation of not be aware of the takedown. This takes international human rights standards away from the user a chance to defend relating to freedom of expression herself or himself, or to challenge the and provided mainly in the ICCPR takedown. The UN Special Rapporteur for (International Covenant of Civil and freedom of expression, Mr. Frank La Rue, Political Rights) to which India is has made it clear that private censorship a signatory. The UDHR (Universal mechanisms are unacceptable. This view Declaration of Human Rights) and the is echoed by civil society, industry and ICCPR make it amply clear that the choice policy experts. of a medium does not constitute grounds for putting additional curbs on freedom of Finally, although not directly concerned expression. Article 19 of the ICCPR states with takedown requests, is the “due that every person shall have the right to diligence” requirement under which an freedom of expression, including the right intermediary must provide information to seek, receive and impart information and assistance to the government or any of through the medium of their choice. its agencies, in order to claim exemption from liability. No procedure or tests for The UN Human Rights Committee has proportionality and necessity for such an issued a clarification, by way of general exercise have been mentioned anywhere. comment number 34, stating explicitly that India does not have a privacy law at the time of writing and this requirement, therefore, can have severe chilling effects on freedom of expression. It is, thus, clear that the IT Rules are in contravention of both India’s own constitutional guarantees of freedom of expression as well as the internationally accepted human rights standards. India must revisit its intermediary liability regime to uphold human rights. Companies like Facebook, Twitter and Google (through its various services such as YouTube, Google plus, Blogger, GMail etc.), which serve as platforms to Introduction facilitate communication over the Internet, are known as “intermediaries”, as they are not usually involved in producing According to the IAMAI (Internet and content but only in hosting it. There are Mobile Association of India) the number other types of intermediaries such as of Internet users in India had reached Internet Service Providers (ISPs) which 205 Million in October, 2013 and was operate at a lower level and control the projected to increase to 213 Million by physical infrastructure that allows us to December, 2013. India is next only to access the Internet. At one level or the the US and China in terms of number of other, we all use services provided by Internet users. The number of Facebook these ‘intermediaries’ to communicate and users has been registering phenomenal to express ourselves over the Internet. growth with around 114 Million MAUs Internet intermediaries are bound by (monthly active users) at the end of certain laws governing the content that November, 2013, representing over 50% of the total Internet user base. they host. They can be asked to take content down, pass on user information to In July, 2013 India had crossed 20 million the government or block access to a Twitter users, according to a study website. Takedown of content is made by IAMAI and IMRB International, a possible by the rules notified under market research firm. China, the world’s Section 79 of India’s Information most populous country, maintains strict Technology Act. These rules, being the controls over the content that can be focus of this paper, have been reproduced accessed in its territory. Chinese users in Appendix A for the reader’s do not, officially, have access to Twitter; convenience. These will be analysed in the and Google transferred delivery of their light of international human rights search results from China to Hong Kong standards as well as the Indian in 2010 following heavy regulation on Constitution itself. Failure, on part of content and apprehensions of liability. intermediaries, to take down content can This places India, with its growing Internet result in prosecution. Since the user base, as an increasingly important intermediary is not the author of such emerging market for Internet giants such content, prosecution in this way goes as Facebook, Google, Twitter, eBay, against the principle of natural justice. etc. In fact, research firm eMarketer has Furthermore, these rules provide for predicted that India will overtake the US private censorship in that a private party in the number of Facebook users by 20161. can send a takedown request and failure to These statistics point out that an increasing comply with it can result in prosecution. number of people in India are using social Additionally, the grounds for takedown media platforms to express themselves in are extremely broad and also vague in overwhelming numbers. their applicability. The intermediaries are not required to inform the user whose Newer platforms such as Quora and content has been taken down, implying Youth Ki Awaaz are emerging as popular that the affected user does not get a chance forums of discourse and debate among to appeal against censorship. young people. This means that Indians are not only consumers of technology Finally, the IT Rules make it mandatory but also active producers of content. for intermediaries to provide user information to the government or any of its involvement of law enforcement agencies agencies for the investigation of any crime, or courts at all. This provision has been as part of the “due diligence” requirements misused, most famously, in the case of for seeking protection under Section 79 of political cartoonist Aseem Trivedi whose the IT Act. However, no clear procedure website hosting provider was forced to for demanding user information has take down his been defined. Also, it is not required website ‘cartoonsagainstcorruption.com’ that disclosure of user information be in on a private complaint. The hosting conformity with principles of necessity provider, Big Rock, later issued a 2 and proportionality . This assumes more statement clarifying that they were forced importance, given the fact that India to affect the takedown because failure to does not have a law for the protection of do so could have resulted in criminal privacy. prosecution4. Trivedi, along with his aide, Alok Dixit, launched a campaign against the IT Rules known as ‘Save Your Voice’ Intermediary Liability and in January, 20125. Freedom of Expression in India An annulment motion, seeking to overturn the IT Rules, was moved in the upper house of the Parliament of India by an MP, Mr. P Rajeev in May, 2012. Even though In India, intermediary liability became a the motion was defeated, the Minister contested issue in the early 2000’s when for Communications and Information the CEO of an e-commerce portal, Avnish Technology, Mr. Kapil Sibal assured the Bajaj, was arrested for a leaked sex tape house that broader discussions on the that was uploaded to the portal by a third 6 Rules would be held . The Centre for party. The portal, baazee.com was later Internet and Society (CIS), a leading civil acquired by e-bay3. Although India’s society organisation based in Bangalore, Information Technology Act was passed 7 has developed an alternative to IT Rules . by the Parliament in the year 2000, Bajaj’s In what CIS calls a ‘policy sting’, it sent arrest in 2004 highlighted the need for frivolous complaints to seven Internet offering some protection to Internet intermediaries asking for removal of intermediaries.