In the wake of concerns that the government is increasingly using ambiguously-phrased terms in legal codes to crack down on online speech, the Parliament’s Committee on Subordinate Legislation has asked for greater clarity and definition on terms which can serve as grounds for restrictions.
In 2011, the government issued Intermediary Guidelines under Section 79 of the Information Technology (IT) Act. Rule 3 requires intermediaries – including Internet Service Providers (ISPs), web hosts, cyber cafes, blogging platforms, search engines and others – to inform users not to ‘host, display, upload, modify, publish, transmit or share information’ that is ‘grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, or otherwise unlawful in any manner whatsoever.’ Any person aggrieved by the content can ask intermediaries to take it down, and if they do not do so within 36 hours, they can be legally liable.
The committee has heeded the views of NGOs that these terms have not been defined either in the IT Act or the rules. In a report submitted on March 21, it has drawn the attention of the Ministry of Communication and IT to the ‘reported misuse’ of Section 66A of the IT Act in the absence of precise definitions, and said it was important to remove ‘ambiguities/misgivings in the minds of people.’
In its report, the committee, chaired by MP P. Karunakaran, suggested that the definition of those terms in other laws be incorporated in one place for the ‘convenience of reference’ of intermediaries and general public. It has added that those terms not mentioned in other laws be defined in a way that ‘no new category of crimes or offences is created in the process of delegated legislation.’ The committee said it expected the Ministry to have a fresh look at the guidelines and ‘make amendments to ensure there is no ambiguity.’
Highlighting the significance of the committee’s directive not to create new offences, Pranesh Prakash of the Centre for Internet and Society said that this was recognition that ‘many categories of speech prohibited by the Intermediary Guidelines Rules are not prohibited by the statute, and hence cannot be prohibited by the government through these rules.’
The committee has also pointed out that there was a ‘conflicting picture’ regarding the ‘legal enforceability’ of these guidelines. In its response, the Ministry told the committee that these are of ‘advisory’ nature; it is not ‘mandatory’ for the intermediary to disable information and this does not amount to ‘censorship.’ But the rules state the intermediary ‘shall act’ within 36 hours of complaint.
The committee said there was a need for ‘clarity on the aforesaid contradictions,’ particularly on the process of ‘take down of content,’ and install ‘safeguards to protect against any abuse during such process.’
Mr. Prakash of CIS said that this had exposed the ‘government’s Janus-faced stance on the issue of mandatory nature of these rules.’