The blocking of a blogging website, even if only for a short period, raises the disturbing question of curbs imposed on free speech in India through executive fiat. There is a clear pattern of Internet censorship that is inconsistent with constitutional guarantees on freedom of expression. It is also at odds with citizen aspirations in the age of new media. What is worrying is that the rules governing online publication are being tinkered with periodically to facilitate such filtering. This is done under the Information Technology Act, 2000. The Department of Information Technology recently published the draft Information Technology (Due diligence observed by intermediaries guidelines) Rules, 2011 that specifically mark bloggers for scrutiny, and require intermediaries such as service providers not to themselves host or publish any information. Evidently, this can be interpreted to cover blogs and other websites. What is worse, the rules propose to authorise the intermediaries to remove access to ‘infringing' material if they themselves have actual knowledge or are asked to do so by a mandated authority. These are retrogressive provisions that weaken constitutional freedoms and the parent law. As it stands, the IT Act merely requires the intermediary to exercise due diligence and does not talk of not hosting or publishing information. Ideally, the only criterion online publications should have to meet is compliance with the general laws of the land.
The emergence of the WikiLeaks phenomenon and the use of online tools in North Africa and West Asia to inform and organise people underscore the power of citizen publishing. This is a new reality governments must learn to live with. Conflicts are bound to arise if the rules for online publication are modified specifically to prevent such publication. For instance, draft rule 3(2)(a) for intermediaries requires the user not to publish or display information that belongs to another person. Potentially, secret documents ferreted out by investigative journalists or whistleblowers in the public interest may be interpreted to belong to a third party — and blocked from the public domain. It is inconceivable that such a restriction could be applied to traditional media, which have a robust record of exposing corruption in high places. What all this makes clear is the need for wide public debate on any move to impose restrictions on online publishing. It is unacceptable that access to some websites is blocked through executive orders issued by technical bodies such as the Indian Computer Emergency Response Team, with no explanation on why such action was taken.