Kapil Sibal & Co shoot down motion to kill IT Rules: cite terrorism, drugs

This blog post by Prachi Shrivastava was published in Legally India on May 18, 2012

Telecom Minister Kapil Sibal was heard on Rajya Sabha TV saying: “We are more liberal than US and Europe but let’s not cut our arms.”

Sibal countered Rajeeve’s annulment motion arguing that the government needs to be armed to meet the “new challenges” posed by “new media”, according to Mint.

"Kapil Sibal reminds me of badly briefed counsels fumbling in the High Court" tweeted Pranesh Prakash of the Centre for Internet and Society (CIS) as Sibal was mid-delivery in contending that online media not registered in India escaped the ambit of Indian legislation and thus created the peril of terrorism and increased drug peddling.

Another person tweeted: "The gist of Sibal’s argument was that we need to censor the internet because people are doing drugs."

Sibal’s answer to MP Ram Yadav’s attack on The Rules for being inconsistent with their parent act – the Information Technology Act 2000 (IT Act) – was that Rule 3(2) which prescribes “due diligence” to be observed by an internet intermediary, originates from Section 66A of the IT Act, thus making the rules consistent with the parent act.

Section 3(2) obligates the intermediary to take down content posted on a website, on the basis of several undefined criteria.

"Minister you have created perverse incentives for censoring speech through law. That is regulation, not merely a definition of due diligence” proclaimed Supreme Court advocate Apar Gupta in a tweet posted during Sibal’s defense of the rules.

Prakash tweeted: "The IT Rules don’t just prescribe ‘due diligence’ but create a takedown mechanism. That’s not the same thing Mr. Sibal."

Sibal went on to establish that the government’s motive was not censorious by stating: “It is your choice, you are free to work with the user who complains to an intermediary. Where does the government come in?”

To which quipped Prakash: “Government is not censoring. It has created a system by which anyone can censor with impunity.”

Jaitley in-perspective

Leader of the opposition senior advocate Arun Jaitley objected to The Rules holding that terms such as “disparaging”, ”libellous”, “defamatory” not defined in the Act or the Rules but enabling take-down of content, could be misused, according to Times of India.

IBN Live reported him as urging Sibal to "reconsider the language of restraints".

Sibal addressed the house inviting objections from MPs on specific “words” contained in The Rules which provide for control of speech over the internet, according to PTI.

He further proposed to call a meeting of “stakeholders” to discuss the MPs’ objections, and assured that the consensus that emerges from the meeting will be implemented.

Draconian Censorious Rules

Legally India reported last month how Rajeeve was trying to spread awareness among MPs about the draconian effect of the Rules which censor free speech and expression, by over-scrutinising users of the internet, over-authorising intermediaries to monitor content posted over the internet, and letting the government, individuals and institutions by-pass the due process of law.

The Rules in their present form require intermediaries - providers of internet, telecom, e-mail or blogging services, including cyber cafes - to publish terms of use prohibiting users from publishing content of the nature specified in the Rules.

Once the intermediaries have knowledge of posted content that is in violation of such terms of use, they are liable for compensation if they fail to initiate action for removal of the posted content.

Some of the categories of prohibited content specified in the Rules are undefined, are not an offence under existing law, and are claimed to be in violation of article 19(1) of the Constitution guaranteeing the freedom of speech and expression.

CIS uncovered an additional problem the rules pose - that of “over-complying” intermediaries who in order to minimize the risk of liability may block more content than required, adversely impacting the fundamental right guaranteed under article 19(1).

"By and large, the impression is that India is going in the direction of censorship," Mint reported cyber law expert and supreme court lawyer Pavan Duggal as saying, yesterday.