Intermediary Rules challenged before the Kerala High Court Centre to file reply within 8 weeks

A petition challenging the recently promulgated “Intermediary Rules” has been admitted by the Kerala High Court. The Ministry of Communications & Information Technology has been asked to file reply within 8 weeks. The petition was filed by Shojan Jacob who is an Advocate himself and an Information Technology Law expert.

A petition challenging the recently promulgated “Intermediary Rules” has been admitted by the Kerala High Court. The Ministry of Communications & Information Technology has been asked to file reply within 8 weeks. The petition was filed by Shojan Jacob who is an Advocate himself and an Information Technology Law expert.

The petition challenges Rule 4 of the ‘Information Technology (Intermediaries Guidelines) Rules, 2011 and Rules 8 and 16 of the Information Technology (Procedure and Safeguard for Blocking for access of information by public) Rules, 2009 as being arbitrary, unreasonable and illegal. The petition further states that the above said Rules curtail internet users’ right to freedom of speech and expression guaranteed under Article 19 1(a) of the Constitution of India and seeks to set them aside.

The petition urges the Court to issue guidelines to the Centre to the effect that before banning the content, it shall be done with the prior notice to the owner of the content/user concerned in accordance with the principles of natural justice. The petition also urges that immediately after the blocking, banning or censoring of the content; a copy of the order stating reasons should be communicated to the owner of the content/ user concerned so as to enable him/her to resort to judicial remedies.

The petition also seeks a direction to instruct the Internet Service Providers (ISP) to develop the technical competence to block only the specified webpages/websites which have been directed by the Courts/ orders of the government. The petition also asked the Court to direct the Centre to take away the deciding power and censoring power from the intermediaries and escalate such issues to a government appointed body like Computer Emergence Response Team (CERT-In) so as to ensure uniformity in the blockings. A copy of the petition is available with Bar & Bench.

The petition has been filed amidst a raging controversy over online censorship and monitoring of content. Last year, HRD Minister Kapil Sibal faced much ire for his stand advocating pre-screening or filtering data before it is posted online.

Thereafter, a civil suit was filed by Ajias Arshad Qasmi, founder of FatwaOnline.org , before the Rohini District Court in Delhi against online companies including Google, Yahoo and Facebook for hosting objectionable content on their websites. Interestingly, a few days later, a criminal complaint was also filed by Vinay Rai as reported by Bar & Bench. The online companies had approached the Delhi High Court to quash the criminal proceedings filed against 21 companies including Facebook and Google, for posting ‘objectionable content’ on their websites. Interestingly this plea was quashed by the Delhi High Court and instead the Court directed the companies to comply with the trial court order and devise a mechanism to control objectionable content.

However, recently both civil and criminal complaints against Yahoo have been dropped. The civil case against Microsoft too has been dropped as it was found that evidence of objectionable content produced by the plaintiff did not include content from Microsoft's sites.

Bar & Bench spoke to Shojan Jacob on the same. Shojan after graduating from the National University of Advanced Legal Studies (NUALS), Cochin, in the year 2007; had a short stint at Kerala High Court. After practising for a year, he did his post graduation in Cyber Laws and Information Security from the Indian Institute of Information Technology (IIIT), Allahabad. After graduating from IIIT, Shojan has returned back to active practice. Below are the excerpts of the conversation.

Bar & Bench: What prompted you to file the PIL?

I am a Techno-Legal researcher and I have been reading about this issue for quite some time now. After the site www.cartoonsagainstcorruption.com was blocked, I looked at the laws in this regard and I understood that even the principles of natural justice like notice and fair hearing are not followed while blocking websites. There is no communication of the order. There is no option for a review or an appeal. An aggrieved party needs some basic material even to approach the courts. As an internet researcher I need access to information; I have a right to know and as an online publisher I have the right to express my views. While the state has the right to place reasonable restrictions on this right, it cannot be done in secrecy and in violation of the basic principles of natural justice. I share the same concerns with all internet users. This can happen to me and you tomorrow. There has to be transparency in the process.  

Bar & Bench: Why do you think there is a violation and can it be argued that these are only reasonable restrictions in larger interests of security of the nation?

Yes, the State can place reasonable restrictions on free speech. I am fully in support of that. But there has to be transparency while placing reasonable restrictions. One cannot impose his views on another by simply asking an intermediary to block a website because he does not agree with the content posted there. 

Bar & Bench: Do you think these regulations are Indian counter parts of Stop Online Piracy Act (SOPA) in the US?

It’s much broader than that. While SOPA deals only with copyrighted content, the intermediary guidelines, 2011 enables an individual to send a complaint to an intermediary on a variety of reasons. According to the rules the intermediary receiving any complaint has to block content within 36 hours, without even going into the genuineness of the complaint. Some intermediaries have clearly stated that this is not proper as they are not the right people to sit on judgement on such issues.  

NB: Anyone who has filed Right to Information applications with regard to similar issues or who would like to support the case by providing additional resources can contact the petitioner Shojan Jacob by email at keralapetition@gmail.com.