How Cartoons Against Corruption was taken down
A spokesman for the cyber cell in Mumbai’s Crime Branch, which received Mr. Pandey’s complaint, noted that he did not “particularly recall this case.” But he added that such complaints were usually forwarded to web domains to screen content based on prescribed regulations.
It was only on Dec 27th, the next day, when he received an email from BigRock, the domain name registrar with which his website was registered, that he realized what was wrong. “We have received a complaint from Crime Branch, Mumbai against domain name ‘cartoonsagainstcorruption.com’ for displaying objectionable pictures and texts related to flag and emblem of India. Hence we have suspended the domain name and its associated services,” the mail read.
Dangers of private adjudication
Rather than looking at the Indian Penal Code, 1860, the law on intermediary liability springs from Section 79 of the Information Technology Act, 2000. The rules made under it in April last year, titled as the Intermediaries Rules, 2011 further supplement it. The Rules are a marked departure from the approach of the principal enactment under which they are made. Whereas Sec. 79 as a general principal aims to prevent liability for an intermediary, the Rules prescribe incredibly stringent criteria for a intermediary to avail such an immunity.
Rule 3(2) of the Intermediaries Rules, 2011 contains a wide body of grounds which have to be incorporated by an intermediary such as Bigrock in its customers terms of service. This provision contains incredibly broad grounds under which almost all types of user generated content may be taken down representing a threat to freedom of expression. One of the better drafted grounds is, “violates any law for the time being in force”.
Further Rule 3(4), states that an intermediary on receiving knowledge of a contravention of one of the grounds under Rule 3(2) should, “act within 36 hours”. Even though Rule 3(4), does not explictly say “take down within 36 hours”, “act within” is nothing but a eumphemism for it. The reasons are that if the intermediary does not take down the content within 36 hours it will risk loosing its exemption from third party liability.
Last year in a criminal defamation case titled as Google India Pvt. Ltd., v. M/S.Visaka Industries Limited the Andhra Pradesh High Court refused to quash proceedings initiated against Google on the ground that Google did not take down the offending content after receiving a complaint on it. The judge remarked,
“the petitioner did not move its little finger to block the said material or to stop dissemination of the unlawful and objectionable material. Therefore, the petitioner cannot claim any exemption either under Section 79 of the Act as it stood originally or Section 79 of the Act after the amendment which took effect from 27.10.2009.”
This is before the Intermediaries Rules, 2011 were made. However, rather than providing respite to intermediaries the rules have tightened the noose on them. Not only does an intermediary have to act within 36 hours but it has to make the determination of the legality or illegality of the content itself. Hence, in a lot of ways it is acting as a entity making legal determinations on the the nature of the content within 36 hours. Though many have questioned the constitutionality of the Intermediaries Rules, 2011, till the time it is on the statute books it represents valid law. Hence, though the actions by BigRock may have resulted in censorship they appear to be within the bounds law.
Intermediaries Rules as a proxy for blocking websites ?
All this also begs the question why was a complaint not made to block the website as per the the specific rules available for blocking websites. These rules which are called the Information Technology (Procedure And Safeguards For Blocking For Access Of Information By Public) Rules, 2009 allow the blocking of websites in India. The rules provide for a a Designated Officer of the Department of Information Technology (currently Mr. Gulshan Rai) to block websites on receiving a complaint.
I sense action under these rules was not taken because it is easier to write to a private intermediary which under the fear of liability will put down the content. Proceeding under the Information Technology (Procedure And Safeguards For Blocking For Access Of Information By Public) Rules, 2009 will require a reasoned order, a review of the order and several other safeguards. Hence, the Intermediaries Rules, 2011 are being used as a proxy for website blocking.
What about the cops ?
Before parting the practice of the Mumbai Crime Branch also needs to be called into question. The qouted press reports indicate that they forward such complaints to service providers. Now even if these complaints are carried with a forwarding letter I doubt they disclose substantive offences. In all probability they will be making reference to the complaint, stating when it was received and calling on the intermediary to act on it.
This is being said because there are no reports that a FIR was registered on the legal notice which was originally sent to the Mumbai Crime Branch. The Mumbai Crime Branch has all the authority and even a legal obligation to register an FIR if offences under the Indian Penal Code, 1860 are disclosed. Having not done so, not only did it not prima facia express an opinion as to the legality of the content, it left the decision to a private intermediary with its covering letter. The covering letter would obviously coerce the intermediary into putting down the content.
Hundreds of Cartoons Against Corruption
On a broader note, this case was connected to the Anna Hazare campaign and generated enough interest to be mentioned in the press. However, there may be hundreds of cases where content may be taken down daily without even a whisper. This is due to the defective design of the Intermediaries Rules, 2011 under which all such enforcement does not require an executive or judicial order or even the registration of a FIR.
- if one looks at Big Rock’s Customer Agreements they refer to themselves as “Parent”. Given how they acted, I found this funny.
- Cartoons against corruption has now shifted to blogger, which is a google property. Given how Google is resistant to web censorship this is hardly surprising.