Free and Open Source Software developer moves Kerala High Court against Part II of IT Rules, 2021

A petition has been filed before the Kerala High Court by a Free and Open Source Software (FOSS) Developer seeking to quash Part II of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021..Single judge Justice PV Kunhikrishnan directed the Central Government to file its counter affidavit in the matter within three weeks.While Assistant Solicitor General P Vijayakumar informed the Court that a transfer petition has been filed before the Supreme Court clubbing all the cases challenging the IT Rules, 2021, advocate Prasanth Sugathan, appearing for the petitioner, pointed out that the instant case challenges Part II of the Rules as opposed to Part III which is challenged in the cases to be transferred. .The petition was filed by one Praveen Arimbrathodiyil who is a free and open-source software (FOSS) developer and a volunteer member of the Free Software Community of India (FSCI) for quashing part II of the IT Rules, 2021 and declaring them violative of Articles 14, 19 and 21 of the Constitution of India..As a FOSS developer, he claimed that he is a part of the community that runs various services that act as replacements/alternatives to proprietary applications like Facebook, Zoom and WhatsApp.Free and Open source is a development method for software that harnesses the power of distributed peer review and development to build better software.The resulting software is globally available, and provides more user flexibility and reliability, at a cost which is substantially lower than traditional, centralised software development methods..On February 25, 2021, the IT Rules, 2021, were notified by the The Ministry of Information Technology and Electronics which prescribes guidelines for intermediaries and replaced The Information Technology (Intermediaries Guidelines) Rules, 2011..Some important features of the IT Rules, 2021, as pointed out in the petition, include segregation of social media intermediaries into the two categories of “social media intermediaries” and “significant social media intermediaries”; requirement to prominently display privacy policy and usage of personal data by the aforementioned intermediaries; requirement to remove certain information by exercising due diligence, among others..The IT Rules, 2021 are challenged primarily on the following grounds: Places unreasonable restriction on users in expressing their views online which violates their right to freedom of speech and expression, and fundamental right to privacy;Rule 4 read with Rule 6 of the IT Rules, 2021 places unreasonable restrictions on users in expressing their views online;Violates the fundamental right of free speech and expression guaranteed to citizens by Article 19(1)(a) of the Constitution of India and right to privacy as a fundamental right under Article 21 of the Constitution of India and are thus void and unconstitutional in view of Article 13 of the Constitution of India;The terms used in Rule 3(1) are vague and ambiguous.Aims to introduce traceability and break end-to-end encryption which is a subset of right to privacy and is protected under Article 21 of the Constitution as settled in Justice K.S. Puttaswamy vs. Union of India;Draws no intelligible differentia between the not-for-profit FOSS communities and for profit proprietary companies;Places huge compliance burden on the FOSS entities, including the petitioner, thus impacting their right to free trade and profession under Article 19(1)(g);Lack of consultation with stakeholders which contravenes the Government of India’s Pre-Legislative Consultation Policy;Contravenes the Supreme Court’s judgment in the Shreya Singhal v. Union of India which had recognised the concept of “chilling effect on free speech” due to broad framing of a law. The top court's decision also stated that an intermediary is mandated to take down content only on the basis of a court order or on being notified by the appropriate Government agency;Prescribes technology based solutions such as automated tools which would bring in inherent societal biases and prejudices leading to more problems than it intends to solve;The Rules are a delegated legislation and are ultra vires as they are inconsistent with the parent legislation i.e, the Information Technology Act, 2000;Delegates an adjudicatory role to the intermediaries who, including the petitioner, are not equipped to handle;Delegates essential executive function to private parties forcing them to censor and restrict free speech and expression of citizens or be denied the “safe harbour” protection as guaranteed by the Information Technology Act, 2000.According to the petitioner, the IT Rules 2021 unfairly impact small intermediaries like the petitioner and other volunteers in the FOSS space , by placing a heavy compliance burden on them which they might not be able to fulfill..The plea contended that the new rules would lead to a risk of losing the user base for the services offered by the FOSS community, addition of compliance costs, exercise of censorship by the FOSS community and incurring legal costs as well as facing criminal action for third party, user generated content in case of non compliance of Rule 4 read with Rule 6..This would in turn deprive civil society and the Indian technology community of crucial technological tools of development and communications, the plea said. .Therefore, he approached the High Court seeking, among other reliefs, to quash Part II of the IT Rules, 2021 as illegal and ultra vires of the Constitution. .The matter will be taken up after the Centre files its counter affidavit.

Free and Open Source Software developer moves Kerala High Court against Part II of IT Rules, 2021

Giti Pratap

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