Updated: Get Ready for India’s Blogger Control Act
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 Iyengar, Vickram 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)
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.-
(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.
(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:
- Supreme Court of India on the Liability of Bloggers
- A Curtain Call for the World’s Largest Democracy: Neerja Dasani
- The Day India Will Shut Down the Internet
- ‘How Leaving the Internet Fueled Our Revolution’
- Here’s What India’s Communications and IT Minister Thinks About Online Freedom
- Get Ready for India’s Blogger Control Act
- Crazy Internet Censorship Time in India, Again
- Of Journalist Citizens