New Indian Rules May Make Online Censorship Easier

Under the draft rules, intermediaries will have to notify users of their services not to use, display, upload, publish, share or store a variety of content, for which the definition is very vague, and liable to misuse.

Content that is prohibited under these guidelines ranges from information that may "harm minors in any way" to content that is "harmful, threatening, abusive."

Some of the terms are so vague that to stay on the right side of the law, intermediaries may in effect remove third-party content that is even mildly controversial, said Pavan Duggal, a cyberlaw consultant and advocate in India's Supreme Court.

While the definition of some of the terms like obscenity have been ruled on by India's Supreme Court, some of the other terms do not have a precise legal definition, said Pranesh Prakash, program manager at the Centre for Internet and Society, a research and advocacy group focused on consumer and citizen rights on the Internet.

"Would creating a Facebook profile for a minor, for example be considered as harming a minor ?" Duggal said.

The draft rules are secondary legislation framed by the government under the country's Information Technology (Amendment) Act of 2008. Under the IT Act, an intermediary is not liable for any third-party information, data, or communication link made available or hosted by him, if among other things, he has observed due diligence under the draft rules.

The new rules will give rise to subjective interpretations, thus giving a lot of discretion to non-judicial authorities in the country to decide whether the intermediary has observed due diligence or not, Duggal said.

According to the draft rules, an intermediary has to inform users that in case of non-compliance of its terms of use of the services and privacy policy, it has the right to immediately terminate the access rights of the users to its site. After finding out about infringing content, either on its own or through the authorities, the intermediary has to work with the user or owner of the information to remove access to the information.

Rather than recognizing the diversity of the businesses of intermediaries, the draft rules use a "one-size, fits all" set of rules across a variety of intermediaries including telecom service providers, online payment sites, e-mail service providers, and Web hosting companies, Duggal said.

An intermediary such as a site with user-generated content, like Wikipedia, would need different terms of use from an intermediary such as an e-mail provider, because the kind of liability they accrue are different, Prakash wrote in his blog.

The draft rules also add new provisions that appear designed to give the government easier access to content from intermediaries. Intermediaries will be required to provide information to authorized government agencies for investigative, protective, cybersecurity or intelligence activity, according to the rules.

Information will have to be provided for the purpose of verification of identity, or for prevention, detection, prosecution and punishment of offenses, on a written request stating clearly the purpose of seeking such information, the rules add.

The IT Act already has specific procedures in this connection for very specific information requirements, but the draft rules have broadened this to a general requirement for intermediaries to provide information, Prakash said. The new rule could in fact be a way of circumventing the earlier laws, he added.

The draft rules assume significance in the context of recent moves by the Indian government to get Research In Motion to provide access to information on BlackBerry services in India. While providing lawful access to its consumer services like BlackBerry Messenger, RIM has declined to provide access to its corporate service, BlackBerry Enterprise Server, claiming that it does not have access to customers' encryption keys.

The Indian government has previously also said it would demand lawful access from Google's Gmail and Skype, but has not taken any action so far in this direction.

The draft rules will require compliance from a number of entities who until now had thought they were outside the ambit of compliance, Duggal said.

Google did not immediately respond to e-mailed requests for its comments on the new rules. Microsoft said that the government should set the policy objectives and provide directional framework, and still allow flexibility to intermediaries to set the data protection measures as they deem fit for different situations and services.

"We believe that the intermediary should be obliged to take down non-compliant content on being notified of the same as well as terminate access rights for those who use these platforms for dissemination of non-compliant content," Microsoft said in an e-mailed statement. Non-compliance include, but is not limited to, copyrights, it added.

John Ribeiro covers outsourcing and general technology breaking news from India for The IDG News Service. 

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