There has been a change of guard in India. After years, the oldest political dynasty (Congress) is no longer in power. The BJP headed by Narendra Modi is expected to implement policies and regulatory reforms that will usher in economic growth in India. In the current global economy, the fact is (supported by numerous reports) that there is a strong correlation between economic growth and internet access/internet freedom. It is with this perspective that the new governments actions specifically relating to Sections 66A, 69A and 79 (accompanying intermediary rules) of the Information Technology Act, India takes on immense significance.
Section 66A deals with “Punishment for sending offensive messages through communication service”. A person is criminally liable for sending, via computer, “any information that is grossly offensive or has menacing character,” information the sender knows to be false “for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will,” or electronic messages sent “for the purpose of causing annoyance or inconvenience, or to deceive or mislead the recipient about the origin of such messages.” With its broad framework and ambiguous terms that are open to interpretation, this section provides wide leeway to government authorities to curb free speech. In fact there are several PIL’s filed against this provision as violating the constitutional rights of citizens.
Section 69A deals with “Power to issue directions for blocking for public access of any information through any computer resource”; Essentially the government is allowed to block access of information through any computer resource if it “is satisfied it is necessary or expedient so to do, in the interest of the sovereignty or integrity of India, defense of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offense.”
Section 79 requires an Intermediary to observe certain guidelines in order to avail of exemption from liability. These guidelines (issued in 2011) in pertinent part mandate that the Intermediary must take down any information that “is grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, paedophilic, libelous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner, harm minors in any way, violates any law for the time being in force; threatens the unity, integrity, defense, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognisable offense or prevents investigation of any offense or is insulting any other nation.”
With their over broad powers and wide latitude in terminology, section 66A, 69 and 79 of the IT Act have been used by the government in various instances to block access to/delete web pages, screen user content and essentially censor content. The effect is not only on individual rights but is more pervasive in terms of the restrictive impact on global technology companies with operations in India.
Bearing the above in mind, the policy/regulatory direction that the current administration heads in with regard to internet policies will have a significant impact on India as a thriving democratic and economically progressive economy. As the Index on Censorship aptly put it: “India is not only setting internet policies for its 10 percent of users today, but for its 1 billion citizens yet to come online. The decisions it makes, both domestically and on the international stage, are likely to set powerful precedents for regional neighbors, and other emerging democratic powers.”