Comments on Draft Intermediaries Guidelines, 2011

Comments on Information Technology (Due diligence observed by Intermediaries Guidelines) (Draft) Rules, 2011

1. PREMISE OF THE GUIDLINES

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1.1. The Information Technology (Due diligence observed by Intermediaries Guidelines) (Draft) Rules, 2011 (hereinafter Draft Intermediary Rules, 2011) which are sought to be formed under Section 79 seek to draw brightline rules for internet intermediaries to avail exemptions from liability for the services facilitated by them. Before offering comments on the rules it is pertinent to mention the background to their introduction as well as the changes to Section 79 through the 2009 amendment. The introduction of the rules as well as the amendments to Section 79 were necessary due to the increased litigation against online service providers who were arraigned as parties and co-accused in cases of unlawful or illegal conduct by end users. This was most prominently on display in the highly publicized case of Avnish Bajaj v. NCT Delhi [hereinafter bazee.com case].

1.2. Due to the bazee.com case there was demand for more clarity on the rules exempting intermediaries from liability for illegal conduct of end-users. Section 79 was thereafter suitably redrafted to remove several deficiencies and proceed on the premise of an intermediary not being liable as long as it, (a) was not a source of the illegal content; (b) on receiving notice took steps to cure the illegal activity or disable access to the illegal content. In this respect Sec. 79(2)© states that the intermediary should, “observe due diligence while discharging his duties and other such guidelines as the central government may prescribe”. Further Sec. 70(3)(b) provides that the intermediary shall be liable if, “upon receiving actual knowledge, or on being notified by the appropriate government or its agency… the intermediary expeditiously fails to expeditiously remove or disable access to that material or resource”. Hence, it is essential for the rules to precisely define, (a) the sort of due diligence which should be followed by an intermediary; (b) the framework and the timelines of providing the actual notice and the intermediaries compliance.

2. DEFINTIONS

2.1. The first suggestion is with regards to the definitions under Rules 2(b) and 2(c), which define “blog” and “blogger” respectively. The definition of a blog defines a category of websites, which consist of a, “shared on-line journal where users can post diary entries about their personal experiences and hobbies”. The definition of blogger further states that a, “blogger” is a “person who keeps and updates a blog”. These definitions are linked to the definition of a “user” under Rule 2(k) which states that a “user”, “means any person including blogger who uses any computer resource for the purpose of sharing information…”. Since the definition of a user would ordinarily include a blogger, there is no utility which is served from the definitions contained under Rules 2(b) and 2(c). While it is acknowledged that there have been frequent complaints against blogs with most of the blocked websites under the directions to block website dated 13th July, 2006 being blogs, there is no rationale to treat blogs under a different footing from other forms of websites.

2.2. It is also pointed out that the definition of a “user” under Rule 2(k) of the Draft Intermediary Rules, 2011 marks a departure from the definition of an “originator” present under Sec. 2(za) of the Information Technology Act, 2000. Though the two definitions employ different expressions they both contain the same concept. Hence there is duplication in purpose though differences in expressions which leads to inconsistency and ambiguity. It is suggested that the definition of a, “user” may be removed in favour of an “originator” as it exists under Sec. 2(za) of the Information Technology Act, 2000.

3. DUE DILIGENCE OBSERVED BY INTERMEDIARY

3.1. As previously set out the purpose of the present guidelines is to bring clarity to the circumstances in which intermediaries can escape liability. Hence, Rule 3(1) which provides for the intermediary to publish,”the terms and conditions of use of its website, user agreement, privacy policy etc.” should be suitably amended to, “terms and conditions, user agreements and other forms of legal agreements which provide an originator with notice as to the terms of the access.”.

3.2. Rule 3(2) further provides for various classes of content which the intermediary shall not allow the originator to, “use, display, upload, modify, publish, transmit, share or store”. The various classes of content include, sub-rule (a) which contains a prohibition against content which, “belong to another person”, and sub-rule (d) which prohibits content which, “infringes any patent, trademark, copyright or other proprietary rights”. This provides for a private right of action, which is quite distinct from the scheme of Section 79 inasmuch it provides for the intermediary to act in terms of a government notification (See Sec. 79(3)(b)). Moreover, conferring such a private right of action in terms of enforcement of intellectual property rights calls for a notice and take down system which should be provided in detail as provided under Sec. 512 of the Digital Millennium Copyright Act as existing in the United States. This includes provisions as to the specification of a valid take down notice which is not found under the Draft Intermediary Rules, 2011. In the absence of such a detailed procedure, intermediaries will be under an obligation to comply with requests to take down content from private parties which may cause “chilling effects” on free speech. It is recommended that the referred sub-rules should be deleted with a separate set of rules be made under the Copyright Act, 1957 and the Trademarks Act, 2002 to accommodate the potential safe harbors in case of infringement of intellectual property.

3.3. Further sub-rules 3(2)(b) and 3(2)(g) provide for blocking content which, “is harmful, threatening, abusive, harassing, blasphemous, objectionable, defamatory, vulgar, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever” and “causes annoyance or inconvenience or deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;” respectively. Both these categories are overbroad and go beyond the blocking of content which is contemplated specifically under Section 69A. It is again stressed that the provisions of Section 69A have been evolved keeping in mind the fundamental rights of right to life as well as the right to freedom of expression and going beyond them would vest extraordinary powers of censorship on private intermediaries. In this respect these sub-rules may be omitted and a reference may be made to the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (hereinafter the Blocking of Information Rules, 2009).

3.4. The Blocking of Information Rules, 2009 provide for an elaborate and well defined mechanism for blocking information and it also contains safeguards for preventing a chilling effect on free speech. In Rule 3 of the Blocking of Information Rules, 2009 specifically provides for the appointment of a “designated officer” through a notification in the Official Gazette for the purpose of issuing directions for blocking access. The Draft Intermediary Rules, 2011 go much beyond this in Rule 3(4) when it states, that “the intermediary upon obtaining actual knowledge by an authority mandated under law for the time being in force…” should block access to the information. This provision does not only go beyond the concept of the “designated officer” but due to its generality is susceptible to abuse. It is strongly recommended that Rule 3 may be completely redrafted keeping in view the concerns of infringement of the right to speech and expression.

3.5. With regard to Rule 3(9) of the Draft Intermediary Rules, 2011 it is suggested that the rule may be completely deleted as it is broader than the well defined set of rules which have been formed under Sec. 69 of the Information Technology Act. For the reasoning to this suggestion attention is invited to paragraph 4.3 and 4.4 of the previous section where a substantially similar provision is analyzed and recommended for deletion.

3.6. With regard to Rule 3(14) it is recommended that the rule may be suitably redrafted to include the complete contact details of a person or an agent who is designated as the compliance officer for the purposes of the rules. It is also recommended that the proposal of maintaining an online registry of such compliance officers may be contemplated by the Ministry of Information Technology.

Information Technology (Due diligence observed by Intermediaries Guidelines) (Draft) Rules, 2011

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