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Updated: Get Ready for India’s Blogger Control Act

March 5, 2011

Sanchar Bhawan, office of the Ministry of Communications and Information Technology in New Delhi

The Internet in India is regulated by the Information Technology Act (2000) to which amendments were passed in 2008 and in 2009 the IT (Amendment) Act 2008 was passed. The Ministry of IT has now gotten down to notifying additional rules for the Act. Amongst the set of rules is one specifically for cyber cafes, about which I’ll write another post, and there’s one on ‘due diligence on intermediaries’. Intermediaries in the context of internet means that if you post any comment on this blog, I am legally responsible for your comments too. Intermediary liability is a favourite tool of internet censorship by repressive regimes the world over.

To those familiar with Indian laws, this will appear to be routine stuff, the sort of laws that regulate newspapers, for instance, or freedom of expression in India in general. However, three main problems here: one, the over-emphasis on blogs and bloggers, indicating the government’s anxiety over controlling blogs; two, the vagueness and vast scope of the reasons for which the government can block websites; and three, the utterly regressive move of introducing ‘intermediary due-diligence’, a favourite tool of repressive regimes against bloggers.

It is interesting that while “Blogs” and “Blogger” are defined in the Definitions section of this rule, the words aren’t used in the rules per se. In other words, they had blogs in mind while making the rules. These rules, if notified, will basically be India’s Blogger Control Act.

The last date for giving the government your comments on these rules has passed but perhaps it’s never too late. Read them and if you have something to object, write to Kapil Sibal, Minister for Communications and Information Technology, and his junior minister Sachin Pilot.

The draft rules are pasted below, with the bits in bold highlighted by me.  You can see comments on the rules made by Prashant IyengarVickram Crishna and Nikhil Pahwa. Please add your own on this post. If you can explain point 13 to me, I’d be very grateful.

*

Draft Rules – Due diligence observed by intermediaries guidelines

[To be published in THE GAZETTE OF INDIA, EXTRAORDINARY, Part II,
Section 3, Sub-section (i) of dated the ----------, 2011]

Government of India
MINISTRY OF COMMUNICATIONS AND INFORMATION TECHNOLOGY
(Department of Information Technology)

NOTIFICATION
New Delhi, the ————, 2011

 

G.S.R. ……. (E).― In exercise of the powers conferred by clause (zg) of subsection (2) of section 87, read with sub-section (2) of section 79 of the Information Technology Act, 2000 (21 of 2000), the Central Government hereby makes the following rules, namely: ―

1. Short title and commencement.―

(1) These rules may be called the Information Technology (Due diligence observed by intermediaries guidelines) Rules, 2011.

(2) They shall come into force on the date of their publication in the Official Gazette.

2. Definitions.― In these rules, unless the context otherwise requires,–

(a) “Act” means the Information Technology Act, 2000 (21 of 2000);

(b) “Blog” means a type of website, usually maintained by an individual with regular entries of commentary, descriptions of events, or other material such as graphics or video. Usually blog is a shared on-line journal where users can post diary entries about their personal experiences and hobbies;

(c) “Blogger” means a person who keeps and updates a blog;

(d) “Computer resource” means computer resource as defined in clause (k) of sub-section (1) of section 2 of the Act;

(e) “Cyber security incident” means any real or suspected adverse event in relation to cyber security that violates an explicitly or implicitly applicable security policy resulting in unauthorised access, denial of service or disruption, unauthorized use of a computer resource for processing or storage of information or changes to data, information without authorisation;

(f) “Data” means data as defined in clause (o) of sub-section (1) of section 2 of the Act;

(g) “Electronic Signature” means electronic signature as defined in clause (ta) of sub-section (1) of section 2 of the Act;

(h) “Indian Computer Emergency Response Team” means the Indian Computer Emergency Response Team appointed under sub section (1) of section 70(B) of the Act;

(i) “Information” means information as defined in clause (v) of sub-section (1) of section 2 of the Act;

(j) “Intermediary” means an intermediary as defined in clause (w) of sub-section (1) of section 2 of the Act;

(k) “User” means any person including blogger who uses any computer resource for the purpose of sharing information, views or otherwise and includes other persons jointly participating in using the computer resource of intermediary.

3. Due Diligence observed by intermediary.—

The intermediary shall observe following due diligence while discharging its duties.-

(1) The intermediary shall publish the terms and conditions of use of its website, user agreement, privacy policy etc.

(2) The intermediary shall notify users of computer resource not to use, display, upload, modify, publish, transmit, update, share or store any information that : —

(a) belongs to another person;

(b) 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;

(c) harm minors in any way;

(d) infringes any patent, trademark, copyright or other proprietary rights;

(e) violates any law for the time being in force;

(f) discloses sensitive personal information of other person or to which the user does not have any right to;

(g) 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;

(h) impersonate another person;

(i) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource;

(j) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation.

(3) The intermediary shall not itself host or publish or edit or store 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).

(4) The intermediary upon obtaining actual knowledge by itself or been brought to actual knowledge by an authority mandated under the law for the time being in force in writing or through email signed with electronic signature about any such information as mentioned in sub-rule (2) above, shall act expeditiously to work with user or owner of such information to remove access to such information that is claimed to be infringing or to be the subject of infringing activity. Further the intermediary shall inform the police about such information and preserve the records for 90 days.

(5) The Intermediary shall inform its users that in case of non-compliance with terms of use of the services and privacy policy provided by the Intermediary, the Intermediary has the right to immediately terminate the access rights of the users to the site of Intermediary.

(6) The intermediary shall follow provisions of the Act or any other laws for the time being in force.

(7) The intermediary shall not disclose sensitive personal information.

(8) Disclosure of information by intermediary to any third party shall require prior permission or consent from the provider of such information, who has provided such information under lawful contract or otherwise.

(9) Intermediary shall provide information to government agencies who are lawfully authorised for investigative, protective, cyber security or intelligence activity. The information shall be provided for the purpose of verification of identity, or for prevention, detection, investigation, prosecution, cyber security incidents and punishment of offences under any law for the time being in force, on a written request stating clearly the purpose of seeking such information.

(10) The information collected by the intermediary shall be used for the purpose for which it has been collected.

(11) The intermediary shall take all measures to secure its computer resource and integrity of information received, stored, transmitted or hosted shall be ensured.

(12) The intermediary shall report cyber security incidents and also share cyber security incidents related information with the Indian Computer Emergency Response Team.

(13) The intermediary shall not deploy or install or modify the technological measures or become party to any such act which may change or has the potential to change the normal course of operation of the computer resource than what it is supposed to perform thereby circumventing any law for the time being in force.

Provided that the intermediary may develop, produce, distribute or employ technological means for the sole purpose of performing the acts of securing the computer resource.

(14) The intermediary shall publish on its website the designated agent to receive notification of claimed infringements.

*

Update: What will they do for violation of the above rules, if notified? Well, that they have already notified. And the Gazette notification for that, they have scanned it and posted as a heavy .pdf to protect its legal sanctity, lest plain text format vitiate it and deprive it of the authority of the State! Download it here. (Damn, I feel like typing it out. They don’t even have the Gazette of India online!)

The rules for blocking of websites are called “Information Technology (Procedure and Safeguards for Blocking for Access of Information By Public) Rules, 2009″. It should have read “Blocking of Access” but then I suppose I’m hurting the integrity of India by asking such questions.

In true sarkari style, there’s even a pro-forma for anyone to copy in case you want to write to a Nodal Officer if you want a site blocked. One line in the form reads, “Please attach screenshot/printout of the offending information.” So I did exactly that!

 

From Kafila archives:

SEE ALSO: Crazy internet censorship time in India, again


59 Comments leave one →
  1. ravi nayar permalink
    March 5, 2011 3:04 AM

    Well if Dr.Binayak Sen can be charged with sedition for allegedly carrying 3 letters, it stands to reason that the blogger can be similarly incarcerated for carrying unwelcome criticism of the government on his site . Welcome to George Orwell’s 1984. Does it mean that you can be arrested for saying Holy Cow judging from the reaction a Congress spokeswoman had a few months back when Shashi Tharoor mentioned the word?

  2. aisha permalink
    March 5, 2011 5:13 AM

    I wonder if 13 has anything to do with the distributed denial of Service attacks that groups like Anonymous launch, marshalling thousands of computers to send messages via hidden software.

  3. Balaji Narasimhan permalink
    March 5, 2011 5:22 AM

    Here’s my interpretation of 13:

    If they block your site, they want you to play nice and let it stay blocked. You shouldn’t try to defeat the blocking somehow. For example, by creating mirror sites. Or by supporting … whatever.

  4. Ashish permalink
    March 5, 2011 2:58 PM

    My interpretation of 13 is, e.g. if one is asked to keep traffic logs, and instead of modifying the logging configuration, you do something which anonymises those logs or renders them useless.

  5. March 5, 2011 3:50 PM

    Three varying interpretations already of point number 13. See my point guys?

    • Zero permalink
      March 16, 2011 11:48 AM

      Good point. That could be grounds for arguing that Rule 13 confers vague, arbitrary and uncanalized power.

  6. March 5, 2011 5:45 PM

    The key swing here would be how the intermediaries act ?

    If intermediaries pass on information from CERT-IN and DoT transparently to end users that would be a win.
    If intermediaries can make the government bear the cost of regulation passed down to them we’ll have a bigger victory and also bring down the cost of Internet to the end users.

    • March 6, 2011 10:58 PM

      Tarun can you explain what you mean when you say, “If intermediaries pass on information from CERT-IN and DoT transparently to end users…”? Thanks

      • March 7, 2011 3:22 AM

        Right now what we seem to have is evasive replies from ISPs about the existence of any censorship orders. It would be better if they told us as it is.

        • March 8, 2011 2:04 AM

          I think you are taking the word intermediary to mean (only) ISPs whereas this is talking about blogs

          • March 9, 2011 3:56 PM

            We shouldn’t mind a blogger being called an intermediary. Atleast the vocal bloggers can help other intermediaries without a voice like us (webhosts) have sane laws governing us. We are people too :-)
            -Tarun

  7. March 5, 2011 9:07 PM

    There is also a clause that intermediary should not disclose sensitive personal details .I dont know what does that mean because to an extent most blogs are personal experiences and they would include personal details so how do we differentiate between what is sensitive personal and casual personal.
    And also i think that if this bill becomes an act the govt can virtually censor any blog under some or the other clause

  8. Tanmay Mandal permalink
    March 5, 2011 11:40 PM

    Is this absolute? cant we protest or do something?

    • March 6, 2011 12:08 AM

      When the people of a country start asking ‘Can’t we protest or do something?’ you know we’re in deep shit.

    • Circe permalink
      March 6, 2011 11:18 PM

      For what it is worth, I don’t think this can survive judicial review(I am not a lawyer, but that is my hunch). For one thing, I don’t think the judiciary is going to like the clubbing together of “victimless crimes” like blasphemy and really heinous crimes like paedophilia.

      • Zero permalink
        March 10, 2011 11:10 AM

        Even though that isn’t really how judicial review works (or atleast how judicial review, in theory, is *supposed* to work), I think you’re partly right. Just not about blasphemy.

        Courts have held that over-inclusiveness (including things in a particular class which have no rational relation to the other items in that class) violates Article 14. To that extent, I don’t think all of Rule 2 should survive since, as you point out, some of the prohibited acts have no relation whatsoever with some of the other prohibited acts and should not be clubbed together into the same class. However, to the extent that some of the prohibited acts are already criminal offences, the courts would probably have to let them stand (I’m sure our courts would have no doubts that criminal offences constitutes a valid classification).

        Blasphemy (of a sort), however, is a criminal offence under Sections 295A and 298 so I doubt that the prohibition on blasphemy would be struck down on the ground of over-inclusiveness, atleast. I doubt that the “annoyance” and “inconvenience” bits would stand up to an over-inclusiveness review, though. Being annoying isn’t illegal. Yet.

  9. Sundeep Dougal permalink
    March 6, 2011 12:52 AM

    Yes, the lunatics are clearly still at large.

    Granted that the likes of those of us posting comments do not hang around in the, well, corridors of power, where such fine print is dreamt up and let loose in the world and also granted that ignorance of the law is no excuse but I wonder whether the fact that comments were “invited till 28.02.2011 which [could] be sent by email to: grai AT mit.gov.in” was publicised enough.

    So do we have ideas for a draft letter of protest?

    • March 8, 2011 2:05 AM

      of course it wasn’t, and everyone should still write in – not to that ID but directly to the ministers

  10. Circe permalink
    March 6, 2011 6:22 AM

    Blasphemy? really?

    • Ammu Abraham permalink
      March 6, 2011 7:33 PM

      I too took note of the Blasphemy bit (mainly because I cant understand the rest). Who decides what is balsphemy for the govt of the day?

  11. March 6, 2011 10:56 PM

    I suppose blasphemy in the Indian context would be saying something against the Nehru-Gandhi family :)

    • Circe permalink
      March 6, 2011 11:15 PM

      Then let me set the ball rolling by denouncing Indira Gandhi who had the temerity to condone such statements as “Indira is India” (presumably folks like us are, well, I don’t know what), and Rajiv Gandhi who figured electoral benefits mattered more than the rights of Muslim women.

      I’ll also throw in a bit more: I hereby denounce people like MM Joshi and LK Advani who decided a temple meant more to them than human lives.

      Do I get banned for this?

  12. Rajneesh permalink
    March 7, 2011 9:21 PM

    Blasphemy,
    Dude, Is this the Indian act or an Pakistani act? 2 politicians have been killed in pakistan since, they spoke against a ‘Blasphemy’ act in Pakistan.

    Just as it is misused there, will it also be misused here? I’m flying off to California, then..

  13. fierce pajamas permalink
    March 7, 2011 11:33 PM

    I’m going to blaspheme/be seditious and tell Circe that s(he) would be appalled at what the judiciary would not “like”.

    Do december last and Chattisgarh ring any bells? There’s fire in paradise, and all the gatekeepers are asleep!

  14. March 8, 2011 12:06 AM

    Kudos to The Hindu for an editorial on growin internet censorship in India: http://www.thehindu.com/opinion/editorial/article1515144.ece

  15. March 9, 2011 10:38 PM

    Dang! Looks like my days of freedom are numbered.

    This is so wrong on so many levels that it is incredible that the government can’t see it. What purpose will it achieve? People who want to criticize will go ahead and do it anyway. Newspapers will not take this quietly. Banning facebook and twitter is near impossible. All it will achieve is youngsters learning to use proxies.

    This is a totally insane thing to do, and I protest. I want to criticize the government on my blog whenever the whim hits me, which is often. They don’t like it, they can always refuse to contest the next election. As a citizen of a democratic country, it is my right.

    For the record,

    I PROTEST THIS BULL SHIT!

  16. Zero permalink
    March 10, 2011 10:57 AM

    This may come as a surprise to some, but blasphemy laws are alive and well in India. Chapter XV of the IPC deals with “offences relating to religion”. Offences under this Chapter include “Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs” (Section 295A) and “Uttering words, etc., with deliberate intent to wound religious feelings” (Section 298).

  17. March 11, 2011 9:07 PM

    Even the most oppressive countries in the world allow people to say things which are popular, unoffensive, and don’t offend others. When we say that India has “freedom of expression,” it has to mean something more.

    It means we can say things that are unpopular and offensive without being afraid of being muzzled. Only speech which actively calls for violence, divulges state secrets etc. should be disallowed.

  18. March 14, 2011 9:57 PM

    Unbelievable!

    The voices that has been blogged by the citizen’s of India in the democratic country is again under scan .
    One really appreciated work : 3. Due Diligence observed by intermediary.— (a) to (j) is important
    But,
    Few blogs can be ruled out esp..when it comes under giving voices for the country on a positive Note !

  19. March 16, 2011 2:17 AM

    The draft rules for blocking can be found in text form in a pdf here:

    http://www.naavi.org/ita_2008/draft_rules_ita_2008/sec69A_Rules.pdf

  20. Zero permalink
    March 16, 2011 12:02 PM

    Shivam, FYI, it seems that the reason that the defined terms “Blog” (Rule 2b) and “Blogger” (Rule 2c) aren’t used in the rules per se is because the defined term “User” (Rule 2k) includes the defined term “Blogger” (and the defined term “Blogger” includes the defined term “Blog”).

    That is, a “Blogger” is someone who keeps a “Blog” and a “Blogger” is a “User” within the meaning of these Rules (I know that might sounds slightly strange read out loud but lots of legal definitions work like this).

    Therefore, whichever rule in these Rules applies to a “User”, that rule applies to a “Blogger” as well, since a “Blogger” is a “User” within the meaning of these Rules.

  21. March 22, 2011 4:10 PM

    “Annoying” words especially blaspheming an ex HC judge were cited in an internet arrest reported last year on the front page of Mumbai Mirror morning paper. Here is it for you: http://www.mumbaimirror.com/article/15/20100415201004150444035498c0a203/Ecole-Mondiale-staffer-arrested-for-defaming-exBombay-HC-judge.html

    You know what, it says “defaming” but invokes the dangerous provisions of the IT Act criminalising “annoying words”, to sledgehammer some hapless whistleblower or protestor.

    It is also curious that in 99% of such cases reported you will never see any further follow up in the media. Why ? Affected bloggers just shut down their blogs under the crushing boots of the rich and famous. That is the end of the story. The rich and powerful would have cleaned up the internet after destroying somebody’s life and carer. There is no story in it for the media.

    Incidentally the blog mentioned in that arrest was one used by parents for protesting fee hikes by the same private school. (DNA India: http://www.dnaindia.com/world/report_indian-expats-fight-fee-hike-through-blogs_1166668 ) Sounds familiar ?

    So I protest this Blog Control Act because it will mean there will be more such arrests of whistle blowers, more blogs shut down, and more injustice. That is certain.

  22. April 11, 2011 10:55 PM

    I think my website has been blocked. Its up and running. Getting hits, but I can’t access it. MTNL!!! No clue why that is so. I haven’t written anything really bad about the govt. Is there a way to confirm if other people can access it?

  23. April 11, 2011 11:00 PM

    The only thing that comes to mind was that the indiaagainstcorruption.org site was down on the second day of Anna Hazare’s fast, and remembering this blocking thing, I had copied the list of protest locations. So I spread the link around.

    There is nothing to imply that the IAC site itself had been blocked to begin with, and the govt has agreed anyway now, so doesn’t make sense to block mine.

    It is pro democracy, nothing illegal or even family unfriendly. Any advice welcome. I can access the site with a proxy, but not directly.

  24. April 11, 2011 11:00 PM

    Is there a way of figuring out which sites are being blocked?

    • sixer permalink
      April 14, 2011 12:08 PM

      @Vidyut Kale: Your site is probably OK and harmless but just in case you want to know…

      Blocking and takedowns are under CERT-IN organisation. CERT-IN need good reasons to issue any web blocking request to national ISPs. In unreasonable cases they will always refuse, for example Techgoss had a piece on CERT-IN refusing to ban three school blogs requested by some school:

      http://www.techgoss.com/Story/406S11-CERT-refused-to-ban-3-school-blogs.aspx

      If you are concerned, you should write to CERT-IN at http://www.cert-in.org.in email: info@cert-in.org.in or FAX +91-11-24368546, Indian Computer Emergency Response Team (CERT-In) Department of Information Technology Electronics Niketan, 6, C.G.O. Complex Lodhi Road, New Delhi, PIN-110003.

      If your website is hosted outside (international space) then, even if CERT-IN has ordered national ISPs to block your site (this is a written order, list of blocked sites like savita bhabhi), your site will still be visible in many other countries, for example in USA which blocks very few sites. Blocking varies from country to country, I was told that in China many sites visible from India cannot be seen and vice versa (think of Tibet, Arunachal Pradesh sticking points).

      For take down, CERT-IN is the only high powered authority which can direct Google, Go Daddy etc to take down any web site or domain, for the interest of the nation. Obviously your site is still there so not to worry…

      • April 14, 2011 2:35 PM

        Thanks. This is useful information. Yeah, from what you say, it seems unlikely now. Also, traffic has started returning. Inexplicably. Not to old levels, but getting better slowly. Probably some temporary DNS configuration goof up on the sarkari servers and me having this issue on my mind. That would explain the trickling decrease and increase as the wrong settings proliferated and then the right ones…. just a guess. Anyway, the site is up and fine now from increasing number of places. Sorry about the scare mongering.

  25. June 10, 2011 4:13 PM

    OK, it helps to compare with China on “what you are allowed to say on social networks”

    http://spectrum.ieee.org/telecom/internet/what-are-you-allowed-to-say-on-chinas-social-networks

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