BY INDIAN HOMEMAKER
In the previous post, Apar Gupta, a litigator, explained the rights and responsibilities that bloggers have under the legal framework in India. In this post, Indian Homemaker provides a blogger’s perspective on the Intermediary Guidelines Rules, or IT Rules, and finds… that they are impossible to follow. Read on to find how the rules affect you as a blogger. You can find the original post, published on 1 March 2012, here.
“I attended Make Blog Not War – a freedom of expression training workshop for bloggers, organized by the Internet Democracy Project recently.
The idea was to be able to write confidently about issues close to my heart with more awareness and clarity about a blogger’s legal rights and responsibilities.
As someone who thinks the best thing about India is it’s Democracy, I wanted to be aware of the rules that ensure it functions smoothly; to understand, if and when objective criticism of social norms or religion or a book or a Court verdict could become a legal offense.
What did I learn? (Please correct me if I am wrong)
Blog owners are responsible for not just the content they publish but also for the links they share and the comments on their blog. As “intermediaries” they are,
…not to host, display, upload, modify, publish, transmit, update or share any information that —
…is grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever;
(Read more: Intermediary Guidelines) I have more problem with “disparaging”, “obscene” and “blasphemous”.
1) Disparaging to whom? So, if we are to criticize without breaking any laws, it would have to be without being ‘disparaging’?
Does it mean when we rant against Dinesh Reddy, C C Patil, Muthalik and even Mamta Banerjee and Kapil Sibal, are we breaking a law?
This is confusing because Kapil Sibal clearly said we are not; in his own words, “I think that the media has the right to criticise, the media has the right to be satirical and that’s part of the freedom of expression that we ourselves in government cherish.”
And what did Kapil Sibal mean when he said we could even say we hated him?
2) Obscene includes what? Are discussions/opinions about premarital sex obscene? The Supreme Court has made it clear they are not. “At the most it is a personal view. How is it an offence? Under which provision of the law?”
There should have been clarity, since “pornographic” and “paedophilic” are separately listed.
3) Blasphemous reminded me of Pakistan’s Blasphemy law.
It also seems unconstitutional.
In Jan 2010, Bombay High Court,…brought joy to civil rights activists when it held that,
in our country, everything is open to criticism and religion is no exception. Freedom of expression covers criticism of religion and no person can be sensitive about it.
…Healthy criticism provokes thought, encourages debate and helps us evolve. But criticism cannot be malicious and must not lead to creating ill-will between different communities… (it) must lead to sensible dialogue.
4) It seems these Intermediary Guidelines also make us responsible for the links we share? What if a blog post was edited after we have shared a link to it?
Why make rules that are impossible to follow?
The new ‘Intermediary Guidelines‘ and the Cyber Café Rules that have been in effect since April 2011 give not only the government, but all citizens of India, great powers to censor the Internet.
…Such censorship existed during Stalin’s rule in the Soviet Union. Not even during the Emergency has such censorship ever existed in India.
(Read more at Kafila.org)
I had expected clarity – well defined rules so that law abiding citizens could feel confident when they blogged for what they cared about – social justice in my case.
What is the government trying to achieve by these guidelines? Has the government forgotten,
It is not the task of the criminal law to punish individual merely for expressing unpopular views. The threshold for placing reasonable restrictions on the ‘freedom of speech and expression’ is indeed a very high one and there should be a presumption in favour of the accused in such cases. (Click to read more of what the Supreme Court had to say…)
In Feb 2009, 19 year old Ajith D was told by Supreme Court, “…if someone files a criminal action on the basis of the content, then you will have to face the case. You have to go before the court and explain your conduct.”
But perhaps we should not lose heart, because MediaVidea explains, “…all the court has done is to say that “let the law take its own course and let the Maharashtra High Court look into the matter.” (Do read!)
He further says, “… I have faith in our Justice system. Bloggers are not going to face a million lawsuits in India.”
That’s true perhaps, and I think Ajith D will win the case – but the problem is, “The process is the punishment — just going through arrest, bail or being banned can unsettle anyone”.
Blogging in a democracy should not be like walking on egg shells.
So what is it that we cannot discuss on our blogs?
“Are Indians not allowed to have any (to put it mildly) uncharitable opinions against Shiv Sena (or any political party, for that matter)?” and “If no, is it a crime to open that opinion to discussion — in print or online?” (Karthik S, Feb 2009)
But there is hope,
The Supreme Court observed in Union of India v. Assn. for Democratic Reforms:
Onesided information, disinformation, misinformation and non information, all equally create an uninformed citizenry which makes democracy a farce. Freedom of speech and expression includes right to impart and receive information which includes freedom to hold opinions (Freedom of Expression in India, Wikipedia)
Reminds me of what I have always believed:
Freedom of expression comes with responsibility. The responsibility to protect it from censorship”.