Monday, 11 February 2013

PIL on Internet Censorship posted for Hearing

The Public Interest Litigation (PIL) proceeding in the Kerala High Court challenging the Internet censorship rules of the country has been posted for hearing.

The PIL was filed last year by Shojan Jacob challenging the constitutional validity of Rules 8 and 16 of the Information Technology (Procedure and Safeguard for Blocking for Access of Information by Public) Rules, 2009 and Rules 3(2) and 3(4) of the ‘Information Technology (Intermediaries Guidelines) Rules, 2011

The impleading application of the Indian Music Industry was allowed by the court recently and the industry has filed its final statement. The Kerala government which is party to the litigation has also filed its statement.

However, the central government has not filed any statement in response to the petition till date. The court had earlier asked the standing counsel for the central government to take steps to file its statement immediately.  

The division bench comprising the Chief Justice finally decided to post the matter for hearing.  The petition is likely to be taken up for hearing next month. 

Monday, 24 December 2012

Kerala files statement in support of IT Rules 2011

The Kerala Government which is a party in the ongoing Public Interest Litigation challenging the internet censorship rules of the country has filed its statement in support of the IT Rules, 2011. 

The Kerala government in its statement has stated that:

“ The above provisions are incorporated with the salient object of preserving the right of the citizens against invading of their privacy. There are incidents of publishing of obscene articles, morphed videos, copyright violations etc., wherein the ‘intermediaries’ have blocked such publications in order to protect the privacy of individuals. If such power to act immediately is not given to the intermediaries, the damage done through such publications may not be effectively rectified. In such circumstances' sub rule (4) of Rule 3 may be upheld as it is introduced in the better interest of the citizens.”

In his reply to the statement, Shojan Jacob, the petitioner of the case has stated:

“5. Censorship measures should never be delegated to private entities. The Sub-rule (4) which forces an ‘intermediary’ to play the judicial role is against the established international principles. Such questions of fact and law are to be decided by the courts of the country. The role of the intermediary should be confined to the mechanical role of complying with the orders of the court / decision making agency. 

6. A conjoint reading of Sub-rule (2) and Sub-rule (4) of Rule 3 of the Information Technology (Intermediaries Guidelines) Rules, 2011 thus creates a private censorship regime without any checks and safeguards. The lack of transparency in the process further facilitates the misuse of these provisions by vested interest groups. Thus, these provisions are only to be struck down for being unreasonable and arbitrary.” 

Monday, 29 October 2012

Indian Music Industry supports draconian Internet Rules: Files petition in Kerala High Court

In the Public Interest litigation (PIL) challenging the constitutional validity of the Internet censorship rules proceeding in the Kerala High Court, the Indian Music Industry (IMI) has come in support of the much debated Information Technology Rules, 2011. 

The PIL was filed in March by Shojan Jacob, an IT lawyer based in Kerala. The petition was filed in the backdrop of arbitrary blocking of several websites by the Indian Government.

Shojan Jacob, in his petition, has challenged the constitutional validity of Rules 8 and 16 of the Information Technology (Procedure and Safeguard for Blocking for Access of Information by Public) Rules, 2009 and Rules 3 (2) and 3(4) of the ‘Information Technology (Intermediaries Guidelines) Rules, 2011.

The provisions are challenged on the grounds of violating principles of natural justice and lack of transparency/ accountability and Rule 3 (2) for being vague and overboard.

The reliefs claimed in the petition are:

- Declare the particular rules as arbitrary, unreasonable, illegal and unconstitutional

- issue guidelines to the Government to the effect that censoring activity shall be transparent, incorporating principles of natural justice.

- To issue guidelines to the Government to communicate to the owner of the content/ user concerned immediately after the blocking, banning or censoring the content a copy of the order stating reasons to enable them to resort to judicial remedies.

- To direct the Government 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.

- To direct the Government 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), to ensure uniformity in the blockings.

The ‘Information Technology (Intermediaries Guidelines) Rules, 2011 have been a topic of discussion from the moment it was notified last year. 

Jacob’s petition originally filed in March was subsequently amended in August to incorporate various inputs received under the Right to Information Act, 2005.

Government of India is yet to file its statement in the Kerala High Court.

It is at this juncture that the Indian Music Industry (IMI) has come in support of one of these rules which were challenged in the petition.

IMI, in its petition for impleading which was filed on October 16th, has supported the much debated rule 3(4) of the ‘Information Technology (Intermediaries Guidelines) Rules, 2011.

Under rule 3(4) of ‘Information Technology (Intermediaries Guidelines) Rules, 2011, intermediaries are under a legal obligation to take down content within 36 hours of receipt of a complaint. The chilling impact of this provision was demonstrated by CIS last year.

IMI has stated that Rule 3(4) enables them to issue a direct notice to the Internet Service Providers (ISPs) to block the websites hosting pirated content. In support of the contention, IMI has cited orders received from the Kolkatta High Court, which allowed its application to direct all 388 ISPs to block 104 websites for hosting copyrighted content, without issuing notice.

Placing reliance on S.33 of the Copyright Act, IMI has demanded that the websites should take licenses from copyright societies to host copyrighted content, if not, the website should be blocked.

IMI has stated that if notice is issued to the website owner, they would shift their service to a different website. Therefore, there was no need to issue notice before blocking the same.

Incidentally, the website which was thus blocked without issuing notice soon resurfaced as

The Music Industry’s petition comes at a time when the government is contemplating on the Copyright rules, 2012.

Rule 74 of the draft talks about a ‘take-down’ procedure. However, unlike the DMCA method, the rule does not contain a ‘counter-notice’ mechanism or liability for frivolous take-down requests.

Similar to the Information Technology (Intermediaries Guidelines) Rules, 2011, no public notice / transparency is envisaged in the take-down process.

According to the current draft, the publisher/ uploader remains unaware of the takedown. The ‘right to be notified’ of the take-down is missing in the rules.

To claim as a right the ‘put-back’ procedure under rule 74 (4), the publisher should be made aware of the take-down, which is exactly what Jacob’s petition calls for.

Another noteworthy aspect is that IMI has sought for blocking the entire website where pirated content resides.

The action enraged internet users and activists in the country. The internet hacktivist group ‘Anonymous's opIndia' expressed their fury by attacking the websites of the Indian Supreme Court, the All India Congress Committee,, the country's Department of Telecommunications, and the Ministry of Information Technology.

The position with respect to the John Doe orders issued was clarified by the Madras High Court stating that only specific URLs carrying the pirated content can be blocked, and not the entire website, which is again one of the reliefs claimed by Jacob in his petition.