is pre-screening a part of due diligence ?

In the last post I briefly examined the constitutional validity of a proposed framework for pre-screening user generated content on social networks. This got me thinking as to what other grounds for constitutionality can be examined if a law for pre-screening is actually passed. Since we will be dealing with a whole lot of it, for the sake of convenience I am calling this proposed framework as the Draft IT (Polite Discourse) Rules, 2012.

As we already have a statute in place which contains specific powers for the executive to make rules, I sensed if a law has to come into place it will most probably be made through subordinate or delegated legislation. This also ties in with the practice of the IT ministry which in April made the Intermediaries Rules, 2011.

While making such subordinate/delegated legislation may undoubtedly be quicker and more convenient, since it does not have to pass through a vote in the legislature, such rules and regulations are made under certain constitutional limitations. One such condition is that the rules and regulations cannot exceed the breadth of the statute under which they are made. This is a little like saying that if the principal enactment which has been passed by parliament allows the government to do X and make rules to define how it would achieve X, then it cannot go ahead and make rules for X+1.

The Information Technology Act, 2000

This principal act under which the rules may be made will most likely be the Information Technology Act, 2000 which under Sec. 79 contains provisions for regulating companies such as facebook and twitter which provide networks for user generated content. Sec. 79 also contains a rule making power and also contains the term, “due diligence” under which the Government may make rules for pre-publication screening. Since we are going to be discussing quite a bit of it, I am quoting it below:

S. 79. Exemption from liability of intermediary in certain cases. —

(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-section (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.

(2) The provisions of sub-section (1) shall apply if —

(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or

(b) the intermediary does not —

(i) initiate the transmission,

(ii) select the receiver of the transmission, and

(iii) select or modify the information contained in the transmission;

© the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.

(3) The provisions of sub-section (1) shall not apply if —

(a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act;

(b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.

Explanation. — For the purpose of this section, the expression “third party information” means any information dealt with by an intermediary in his capacity as an intermediary.

From reading Sec. 79 one can notice that,

  1. As a general rule an intermediary (such as facebook and twitter) are not liable for content which is posted by us (the users).
  2. This protection is available to them only if they do not tamper or alter the content which is posted. Hence, if you look at Sec. 79(2)(b)(iii) it states, “(iii) select or modify the information contained in the transmission”.
  3. That said these companies have to observe certain “due diligence” (Sec. 79(2)©.

Once you read further, this “due diligence” has been left to be prescribed by the Central Government. This prescription is nothing but a delegation of rule making power, for which the Central Government recently made rules defining this “due diligence”.

Information Technology (Intermediaries Guidelines) Rules, 2011

The Information Technology (Intermediaries Guidlines) Rules, 2011 define “due diligence” under Rule 3. Due to the incredible generality of the grounds contained under Rule 3, the Intermediaries rules were subjected to extensive criticism. It was pointed out due to the incredible generality of grounds under which content would have to be taken down, as well as due to the design of the regulation, an intermediary would be forced to gauge the legality of speech on its platform. A recent empirical study by CIS-India confirms this.

However, the system which was contained under Rule 3 still at the least contemplated that an Internet Company which was an intermediary had to act only once it was notified through a complaint. In a sense there was no duty for pro-active policing of content. The only pro-active steps which an intermediary had to take were with respect to establishing a system for receiving complains and acting on them after receipt.

Infact the Intermediaries rules, stated categorically that,

3. The intermediary shall not knowingly host or publish any information or shall not initiate the transmission, select the receiver of transmission, and select or modify the information contained in the transmission as specified in sub-rule (2):

provided that the following actions by an intermediary shall not amount to hosing, publishing, editing or storing of any such information as specified in sub-rule: (2) —

(a) temporary or transient or intermediate storage of information automatically within the computer resource as an intrinsic feature of such computer resource, involving no exercise of any human editorial control, for onward transmission or communication to another computer resource;

(b) removal of access to any information, data or communication link by an intermediary after such information, data or communication link comes to the actual knowledge of a person authorised by the intermediary pursuant to any order or direction as per the provisions of the Act;

Now while the Intermediaries Rule may have had numerous defects and unconstitutional provisions, what it did get right was following a system of post-notification enforcement. This follows Sec. 79(2)(b)(iii) which states that the intermediary shall not, “(iii) select or modify the information contained in the transmission”.

IT (Polite Discourse) Rules, 2012

The IT (Polite Discourse) Rules, 2012 as explained by me earlier would call for,

Before going further let us try to understand what kind of measure is being proposed by the GOI. As per the news story,

  1. the regulation will target user generated content on social networks;
  2. such user generated content will be screened before it is posted;
  3. the screening will be done by a person and not a technical process;
  4. the person who will be doing the screening will be a staffer of the social network.

The first problem is that if these rules are sought to be made under the “due diligence” provision of Sec. 79, except the words, “due diligence” all others promote passivity. This is quite clear if one looks at Sec.79(2) which asks intermediaries to have limited role of providing transmission and hosting to third party data.

The second one is that, the already existing Intermediaries Rules, 2011 which have been made under Sec. 79 when defining due diligence heavily make reference a post notification take down method as opposed to a pre-publication filter. Though the Central Government may amend these rules, the point remains that the natural construction of language under under Sec. 79 does not include a system of imposing pre-publication filters.

Finally even if you accommodate the language of Sec. 79 which calls for passivity through doctrines of “harmonious construction”, what do you do about, Sec. 79(2)(b)(iii) which expressly calls on intermediaries not to modify or select data.

I am no soothsayer, but if the IT (Polite Discourse) Rules, 2012 are passed then it may find the going tough if someone challenges for exceeding the permissible limits of delegated legislation. What do you think ? Is the GoI’s proposal on solid legal grounds ?

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