Why you should support the annulment of the IT Rules, even if you think regulation is necessary

by Anja Kovacs

At the Internet Democracy Project, we have been extremely pleased that Shri P Rajeeve, CPI(M) MP in the Rajya Sabha from Thrissur, Kerala, has filed a motion to call for the annulment of the Intermediary Guidelines Rules 2011 (or for short, the IT Rules). Since April 2011, when they were first issued, a lot of our work has focused on raising awareness about the grave shortcomings and potential dangers of those rules. We salute Shri Rajeeve for this important initiative, and encourage you to support it by asking your MP to vote in favour. You can register your support by signing the petition or by writing to your MP here.

What exactly is the problem with the IT Rules? 

There are a range of reasons why the IT Rules are extremely problematic. Anyone can file a complaint with an intermediary, such as Facebook, Google or Yahoo!, about content they find, among other things disparaging”, grossly harmful”, hateful” or ethnically, racially objectionable”. The company has to act on the complaint within 36 hours. The initial poster of the content need not be informed about the complaint or the fact that his or her content has been taken down. And an appeals procedure is not provided.

Why is all of this problematic? For one thing, terms such as disparaging”, grossly harmful”, hateful” or ethnically, racially objectionable” are extremely vague and in many cases not part of Indian jurisprudence. It’s thus difficult to decide when they apply to a particular tweet, YouTube video or Facebook status update. It could also well be argued that these terms entail restrictions on freedom of expression that go well beyond what the Indian constitution allows for. In that sense, they have the potential to significantly harm the right to freedom of expression of India’s one billion plus citizens.

Moreover, when a complaint is filed on the above grounds, it is not the Indian courts who will decide whether or not the complaint is legitimate: it is private companies such as Facebook, Google and Yahoo! who have to do so. And their first interest is not your right to free speech, but their profits. As a consequence, when these private actors need to take decisions such as these, it is likely that they will err on the side of caution, thus further aggravating the chilling effect on free speech these rules will have. Yet when someone believes their content has been taken down for the wrong reasons, the rules do not provide a mechanism for them to argue their case. The only recourse they have will be to go to court – a process that takes money, time and other resources, and thus for many people is an intimidating prospect.

But shouldn’t there be some rules regulating what can be said on the Internet? 

Sure, regulation is required. In fact, section 79 of the Information Technology (Amendment) Act 2008 actually instructs the Government to make rules that provide guidelines to intermediaries as to what to do. The IT Rules are supposed to fulfil that requirement.

But the Parliament has a supervisory role over any regulation that the Government makes, and if such regulation is felt to be inadequate for the purposes it is supposed to serve, Parliament can ask the Government to go back to the drawing board.

This is what the annulment motion proposed by Shri Rajeeve will do. It is clear that in their current avatar, the IT Rules are not clear and just, and do not support the right to freedom of expression as provided for by the Indian constitution. With the passing of the annulment motion, the Government will be required to make a new set of rules that ensure that your right to freedom of expression as an Indian citizen is protected online, while of course also making sure that that right is not abused to harm the rights of others. By asking your MP to support the annulment vote, you are asking Parliament to take its supervisory role serious.

So what exactly does the motion say?

It’s a little technical, but for your information, here is the exact text of the motion:

That this House resolves that the Information Technology (Intermediaries Guidelines) Rules, 2011 issued under clause (zg) of sub-section (2) of Section 87 read with sub-section (2) of Section 79 of the Information Technology Act, 2000 published in the Gazette of India dated the 13th April, 2011 vide Notification No. G.S.R 314(E) and laid on the Table of the House on the 12th August, 2011, be annuled; and

That this House recommends to Lok Sabha that Lok Sabha do concur on this Motion.

I want to help. What can I do?

The annulment motion will require a vote to be passed, and so it is important that as many MPs as possible support it. Let your MP know that you hope he or she will indeed do so. You can register your support by signing the petition or by writing to your MP here.

And ask your friends to do the same! It is by creating a groundswell of support and by letting our MPs know that we care about the quality of our democracy and want them to do so too that the motion can get passed and that the road towards a much stronger regulation that protects your right to speak online, thus, opens up.