Caveat Scriptor

First page of Areopagitica, by John Milton

This article has been written for the bar and bench blog and is accessible at http://barandbench.com/brief/3/1526/caveat-scriptor in my capacity as a Programme Director, Freedom in the Net at the Software Freedom Law Center, New Delhi. Kindly note until expressly stated my other posts reflect my personal opinion and in no way are associated with my position at SFLC, India.

The statistics are overwhelming. Intermediaries are the Internet, at least most of it. Today, content created by individuals is naturally driven on the backbone of content and service hosting platforms which provide tremendous scale and benefits. These Intermediaries act as ushers helping us communicate across distances, voice our opinions and carry on discussions. The plurality of views that such platforms allow individual users, makes them inherently democratic and friends of our fundamental right to free speech and expression. Hence, it is with some amount of suspicion that the Internet community views the recently promulgated Intermediaries Rules, 2011.

Before we start picking apart the rules, let’s see how we got here. The Information Technology (Intermediaries guidelines) Rules, 2011 which have invited widespread criticism from civil society, Internet activists and domain experts, have been made pursuant to the rule making power of the Central Government under Section 79 of the Information Technology Act, 2000. Section 79 contains the principle of not holding the messenger liable for the contents of the message. Hence, the provision states that an Internet Intermediary is not ordinarily liable for the actions of its users. Just as a telephone company is not held responsible for the dolt who dials in a bomb threat, by virtue of Section 79 an Internet Service Provider (or another class of Intermediary) is not ordinarily liable for the dullard who emails in the bomb threat.

However, as with most privileges and immunities allowed by law, Section 79 has its limits. Here an Internet Intermediary has to satisfy two statutory touchstones to avail of the exemption from liability for the acts of the end user. The first ingredient is that the Intermediary has to observe due diligence measures and secondly it has to act expeditiously on gaining actual knowledge by disabling access to the illegal resource or content. If an Intermediary does not observe such due diligence or removes the information on a notification, then it risks loosing the immunity granted to it. Since, both these ingredients are reasonably broad the draftsman in their wisdom provided the government with the power to make rules and specify the scope of the due diligence as well as the expeditious compliance on notification. It is under this power and mandate the Intermediaries Rules, 2011 have been made.

There are problems aplenty with the Intermediaries Rules, 2011 but what is most striking is that how far these Rules depart from our time honored safeguards with regard to censorship. Censorship in India, though may not be appreciated by many, is legally tolerated. Courts have held in a catena of judgments that when the State seeks to censor, it has to do so within the Indian Constitutional framework of imposing reasonable restrictions. This is settled law, beyond dispute and beyond subjective interpretation. One of the necessary ingredients of imposing such reasonable restrictions through a legal provision, is having specificity under which the censorship power is exercised. Moreover, any such censorship if exercised by a private party should be pursuant to court or a governmental order. Such an order will necessarily contain reasons, provide the creator of the content an opportunity of a hearing to reply to the charges as well as incorporate other necessary ingredients of natural justice.

It seems all our constitutional wisdom built over six decades of trial, tribulation and adjudication has been conveniently bleached away by the Intermediaries Rules, 2011. The conspicuous generality of the grounds under which content may be censored is apparent even to a casual reader. Some grounds which have appeared on the statute books for the first time through this remarkable piece of subordinate legislation are, “blasphemous”, “belongs to another person”, “disparaging”, “harm minors in any way” etc. At the same time, some grounds in the Rules that are so unduly vague that they render most forms of opinion open to censorship are, “grossly harmful”, “harassing”, “hateful”, “racially or ethnically objectionable” etc. Contrast with this with the power of the Government to Ban books and newspapers and the liberal approach towards censorship adopted under the Intermediaries Rules, 2011 is evident.

The Code of Criminal Procedure, 1973 which contains this banning power, clearly states that books and newspapers may be banned only when the publication makes out distinct offenses under the Indian Penal Code. These offenses are in the nature of sedition, promoting enmity between different groups, obscenity etc. The Code of Criminal Procedure, by making reference to such specific offenses which contain distinct ingredients under a body of law, place a limitation on the power of state censorship with respect to newspapers and books. However, no such guidance is present under the Intermediaries Rules, 2011 as they contain several vague grounds which do not make reference to existing substantive provisions of law. In some cases, the rules purportedly create new grounds of censorship in the absence of any legislative provisions. Hence, it is only reasonable to expect that the censorship powers will be interpreted subjectively and to paraphrase Justice Hidayatullah, the generality of the grounds may force a Frenchman to see woman’s legs in everything.

The second major area where concern has been focused has been with regard to the structure of the censorship power. The Censorship power under the book banning provision is reserved for State Governments and with good reason. Whenever the State Government makes an order to ban a book, it states a detailed opinion which is in the nature of a speaking order. Such an order is published in the official gazette which brings transparency in the exercise of the censorship power. Further, it also provides any person aggrieved by this abridgment of speech an opportunity to approach a high court and challenge the banning order, disputing the reasoning of the State Government. Over and above this if a private person wants a publication banned, such a person has the remedy to approach a court and make a specific plea with regard to a private injury or a public interest. However, the Intermediaries Rules, 2011 seem to have completely bypassed all such government and court procedures which bestow a modicum of safeguards on the power of censorship.

Under the Rules, censorship is exercised by an Intermediary who has to act on a complaint of any aggrieved person within a period of thirty six hours. If the intermediary does not act within the given thirty six hours then it risks losing its protection under Section 79. Not only does this form of private censorship completely fail to incorporate any legal safeguards, it also pressures an Intermediary to act on a complaint within a short period of time. Couple this with the porous grounds under which content may be censored and we are presented with an unguided and unprecedented power of censorship.

Internet Intermediaries today provide essential platforms for voicing opinion and dissent, functions which should be jealously guarded in any democracy. The rules by incentivising an Intermediary to censor rather than to protect free speech convert a helpful usher to a burly bouncer, which throws out users from its platform at the slightest hint of trouble. It is also worth noting that the Internet Rules, 2011 are not only a departure from our democratic traditions but also our constitutional framework. It seems that in the time and age where Sakal Newspapers has moved online the Internet Rules, 2011 are nothing but the Newspaper (Price and Page) Act, 1956 in a different avatar.

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