In May this year, the department of Information technology under the ministry of Communication and information drew up draft rules under the amendments of the Information technology Act that seek to monitor, among other things, news content on the Web. The rules will be enforced shortly.
Sec 69 of the IT amendment Act, 2008, gives the Govt the power to intercept, monitor or decrypt any information transmitted, received or stored in any “computer resource” in a public or private place.
Under sec 2k of the IT Act, 2000 a “Computer resource” implies a “computer, computer system, net work, data, computer data base or software”.
The draft rule states that once a person complains against any information posted on Web, the authority concerned will decide whether it goes against the interests of the sovereignty or integrity of India, defense of India, security of the state, friendly relations with foreign states, public order or whether it amounts to incitement to commit any cognizable offence.
If it is felt that the information needs to be blocked, a request will be sent to “designated officer” selected by the Secretary of the Central IT dept. A committee headed by the designated officer will decide whether request should be accepted or not. If Committees recommendation is approved, the designated officer will ask the web host to take off the information from the web site within a prescribed time limit.
The IT Act, 2000 focused mainly on the decryption of messages. Sec 69 of the ITAct of the latest legislation broaden its scope by including interception and monitoring.
But the important features of the amendment are that the powers will be exercised not only when national security interests are threatened but also when cognizable offences are committed.
The argument in favour of the aforesaid rules is: 1. that though under constitution of India Article 19 guarantees freedom of expression, the reasonable restrictions for security of the country is allowed. No one has the right to post anything and everything on the web and national concerns will always take precedence. In USA also there are national centres to monitor web content, although there are considerable emphasis on the right to privacy and freedom of speech.
2. Among the existing laws in the country, Indian Telegraph Act, 1885 gives the Govt. the right to intercept messages or other forms of communication.
Clause 5(2) of the Act says: “On the occurrence of any public emergency or in the interest of public safety, the central Govt. or a state Govt.or any officer specially authorized in this behalf by the central Govt. or a state Govt. may ….direct that any message or class of messages to or from any person or class of persons or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph………shall be intercepted or detained, or shall be disclosed to the Govt. making the order…..”
In 1991, People’s union for Civil Liberties challenged this clause on the ground of curb on fundamental right of expression.
Supreme Court observed that “Unless a public emergency has occurred or the interest of public safety demands, the authorities have no jurisdiction to exercise the powers”
Public emergency so defined by the Supreme Court was “prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action”
.
Criticism: 1. Such stringent legal provisions subvert the very idea of freedom in cyberspace. If these rules are imposed, the biggest losers will be bloggers and independent citizen journalists who do not enjoy the kind of support that big media organizations do.
2. The beauty of web is that we can express ourselves freely and honestly. But how can we record our experiences and views sincerely when such rules can become a potent tool of abuse?
3. The most dangerous thing /lacunae in the draft rules under the Act is that there seems to be no provision to give affected web host a hearing before or after his or her portal is blocked. There in lies the arbitrariness of the draft rules. Why the affected party should not be given pre or post –decisional hearing.
4. What happens if the information is posted from outside India? The rule is silent on the aspect.
However the draft rules do have some safe guards. For example, a review committee will meet every two months to check whether or not orders to block portal have been issued in accordance with IT Act.
Sec 69 of the IT amendment Act, 2008, gives the Govt the power to intercept, monitor or decrypt any information transmitted, received or stored in any “computer resource” in a public or private place.
Under sec 2k of the IT Act, 2000 a “Computer resource” implies a “computer, computer system, net work, data, computer data base or software”.
The draft rule states that once a person complains against any information posted on Web, the authority concerned will decide whether it goes against the interests of the sovereignty or integrity of India, defense of India, security of the state, friendly relations with foreign states, public order or whether it amounts to incitement to commit any cognizable offence.
If it is felt that the information needs to be blocked, a request will be sent to “designated officer” selected by the Secretary of the Central IT dept. A committee headed by the designated officer will decide whether request should be accepted or not. If Committees recommendation is approved, the designated officer will ask the web host to take off the information from the web site within a prescribed time limit.
The IT Act, 2000 focused mainly on the decryption of messages. Sec 69 of the ITAct of the latest legislation broaden its scope by including interception and monitoring.
But the important features of the amendment are that the powers will be exercised not only when national security interests are threatened but also when cognizable offences are committed.
The argument in favour of the aforesaid rules is: 1. that though under constitution of India Article 19 guarantees freedom of expression, the reasonable restrictions for security of the country is allowed. No one has the right to post anything and everything on the web and national concerns will always take precedence. In USA also there are national centres to monitor web content, although there are considerable emphasis on the right to privacy and freedom of speech.
2. Among the existing laws in the country, Indian Telegraph Act, 1885 gives the Govt. the right to intercept messages or other forms of communication.
Clause 5(2) of the Act says: “On the occurrence of any public emergency or in the interest of public safety, the central Govt. or a state Govt.or any officer specially authorized in this behalf by the central Govt. or a state Govt. may ….direct that any message or class of messages to or from any person or class of persons or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph………shall be intercepted or detained, or shall be disclosed to the Govt. making the order…..”
In 1991, People’s union for Civil Liberties challenged this clause on the ground of curb on fundamental right of expression.
Supreme Court observed that “Unless a public emergency has occurred or the interest of public safety demands, the authorities have no jurisdiction to exercise the powers”
Public emergency so defined by the Supreme Court was “prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action”
.
Criticism: 1. Such stringent legal provisions subvert the very idea of freedom in cyberspace. If these rules are imposed, the biggest losers will be bloggers and independent citizen journalists who do not enjoy the kind of support that big media organizations do.
2. The beauty of web is that we can express ourselves freely and honestly. But how can we record our experiences and views sincerely when such rules can become a potent tool of abuse?
3. The most dangerous thing /lacunae in the draft rules under the Act is that there seems to be no provision to give affected web host a hearing before or after his or her portal is blocked. There in lies the arbitrariness of the draft rules. Why the affected party should not be given pre or post –decisional hearing.
4. What happens if the information is posted from outside India? The rule is silent on the aspect.
However the draft rules do have some safe guards. For example, a review committee will meet every two months to check whether or not orders to block portal have been issued in accordance with IT Act.
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