 Hello and welcome to NewsClick. Close to 100 million people in the country today use the internet and it is not just a means of communication today, it is the medium has exploded into it becoming a vibrant medium for dissemination of news, information and even opinions. So which means that the form and nature of internet and therefore IT regulation in the countries of paramount importance to us internet users. So we have this year today, Rishabh Bailey, a young advocate and someone who is associated with the Knowledge Commons Collective and Nikhil Pawar, the editor of the popular digital media analysis website, can I call that, media.com and we shall discuss with them or let them discuss the controversies surrounding the guidelines under the IT Rules Act which have been recently in the news. So let me start off with you, Nikhil, one of the major concerns with the new rules under the Information Technology Act 2000 is that it has these guidelines about what are called intermediaries and that are problematic. Let's start off with what do you really mean by intermediaries? Yes, they define intermediaries as any entity whose computer resource has been used to access information on the internet and if when you are trying to access information on the internet, there are hundreds of thousands of resources both within the country as well as outside the country that you use and by this broad definition they are all intermediaries. So for example, if the ISP that you use that becomes an intermediary then ISP connects to other bandwidth providers, they all become intermediaries. Any cabling network that takes that bandwidth or that connection to international websites, they all become intermediaries. There are three or four landing stations from which India connects to the rest of the world and that's where we connect our internet to the rest of the world and they are all intermediaries according to these rules. The IT Rules are basically about regulating content on websites, if I can put it. They are basically about regulating websites, not just content but commerce, every single type of website uses some internet resource, some computer resource and their existence depends on how these rules are implemented. If I could just comment there, now see two of the biggest problems that the internet raises for a regulator or for a state authority is firstly dispersion and secondly anonymity. Dispersion meaning that you have millions of people all over the world and there's no particular location, you can need not necessarily able to pinpoint a geographical or physical location. Secondly, you have the question of anonymity over the internet which I mean you understand very well. Now what these rules therefore seem to do is to create a method which can be used irrespective of whether you know where a person is or you know who the person is where you can block information from being put up. Therefore, and what the government has felt is that every linkage from me as a user, their two ends of the chain is me as a user at one end and there's your content at the other. Between these two as Nikhil just pointed out, there are various number of links. Now those could be from your cyber cafe, I'm going and accessing internet at a cyber cafe which is getting broadband from somewhere which has servers somewhere else so on and so forth. The government essentially has now given itself the power or has under these rules said all these various dots along the chain are intermediaries. So therefore this regulation applies to everyone who even touches the internet whether it's you, me or any intermediary. So what do you think is problematic about these regulations that I've been framed in this set of rules? Now I think there are various problems with the intermediary guidelines as they stand. Most importantly I think firstly since we were talking about the definition of intermediaries I think it's very important to recognize that all intermediaries do not do the same thing on the internet. So while your definition of intermediaries recognizes for example that intermediaries include both telecom service providers and internet service providers, it also includes in that very definition online auction sites and cyber cafes. Now I think it's very clear that these do not provide the same function and therefore I would argue that the responsibility on each to police what it is doing should also similarly depend on its function and therefore it should be differing. Now that is one issue with what the intermediaries are. I think it needs to more rational differentiation based on their function. Secondly what the intermediary guidelines essentially do is that they prescribe various information and they make it illegal for anyone to put this information online. Now if this information is put online and if an intermediary receives knowledge of this information it can be actual knowledge based on its own trolling of the web or it can be based on a third party report. It must take down this information within 36 hours and without an opportunity being provided to the party whose information is being taken off. Now that is probably the biggest issue with these rules in that essentially the state is farming out a judicial function to an intermediary and secondly the state is also farming out a police function. Now this function was previously bestowed with the state itself. We had these instances of blogger.com or wordpad.com then blocked because of possible violations. There were no specific violations by blogger.com or typepad.com or for that matter bhaji.com. There were violations by users, specific users of those services and the core issue here is the implementation of these rules. The definition of intermediaries and of some of the provisions in these rules is so broad that it is almost as if the government is giving itself the opportunity to use them as and when they want, as and when they please, effectively however they please. So in 2006 what happened was that they had issues with some 10, 12 specific sites. So there was something called, I forget the names, but there were specific blogs on Blogspot xyz.blogspot.com and they wanted that blocked. The way the rules were implemented by the, the government directors were implemented by the ISPs, they blocked the entire domain Blogspot. I was running a blog at that time in 2006 and I couldn't access my blog, I couldn't access my friends blogs and I couldn't post anything there. Today there are far greater number of people online, you've got Facebook and Twitter. Now if the government and the government has no control over Twitter as such. So what they're going to do is they're going to contact an intermediary saying please block this particular comment by this individual on Twitter and ISP has no ability to block a specific statement. Let's say if I say xyz is essentially breaking the law and that's a lie, right? So if I'm saying something which may be disparaging to that particular individual, my comment can be supposedly they believe that an intermediary can block my specific comment if Twitter does not comply. What will happen is Twitter will be blocked in its entirety the way they operate. So in essence there are two sets of issues here. One is that the liabilities are not clearly defined on various intermediaries and also the kind of content that is supposed to be blocked is so vaguely defined and so randomly defined that anything or anything. As you see the content that is prescribed is fairly wide and includes content that is not prescribed under similar laws for example pertaining to your blocking so on and so forth. So under these rules any information that is grossly harmful harassing, blasphemous, defamatory, obscene so on and so forth or is disparaging most of these blasphemous for example is not even a crime in India. So what is harassing? I mean can an intermediary decide whether I'm harassing someone else based on one complaint or based on one email which in fact the rules say on the basis of an email it is supposed to act. And that's exactly where the problem lies. What an intermediary will do is he will say that I don't want to take any liability on myself. For example as someone who is running a website I'm an intermediary, my company is an intermediary. If someone files a complaint my first reaction is I don't want to take on any liability. In particular if it's copyright material. No, not even if it's copyright. If it's something which is perhaps blasphemous or it's something misleading it's something that might be disparaging. I'm going to say that someone's filed a complaint if I don't act upon it I will be held liable for not acting upon it. So to safeguard my existence my first step will be let's block. So you're making not only is the in this case is the government looking to police content on the web. They're making honest intermediaries they're forcing them to police. Yeah right and there's also we don't want that choice. And just to connect it to what we were talking about earlier also in terms of earlier it was state regulation in terms of blocking crucially intermediaries will not be forced to give out information we will never know why something was blocked when it was blocked and so on. The government however is susceptible to the right to information. So if you have a government authority which is overseeing blocking as under 69 A of the Information Technology Act you can for example get out the site's names that haven't blocked and say why have these been blocked. Even that has been tricky because what we found is there are several sites which have not been accessible at various points in time. At the same time when we tried to get a list of sites from the DOT we got only 11 sites and some of the sites that for example Mobango.com which is an applications marketplace was not in that list. So why is it being so imagine if I'm Mobango right India is my main market I'm an Indian company and my site is blocked I don't know why it's been blocked I don't know how to get that block removed. So basically there is an element of arbitrariness in the year. More importantly there's also opacity if there is transparency there's a public listing of sites that have been blocked or specific instances you know of each and every URL that's been blocked also why it's been blocked who's taken the decision to block it and how is it that can block that the block can be removed then I would say there is fair play involved. Right now there is no fair play if my site gets blocked tomorrow my business will start down and I wouldn't know what to do about it. I'll get to the larger question of the legality of you know here you know you just now told us that you know content can be defined as harassing disparaging blasphemers as well does it not violate you know constitutional rights you know. Sure absolutely I mean 19-1 does recognize the right to freedom of speech and expression though it is subject to 19-2 which you know lists out various conditions under which it's restricted. So undoubtedly yes you could say that these words in and of themselves might well fall foul of 19-1A but of course the greater problem is how will it be used by intermediaries and as Nikhil points out essentially what is going to happen is that intermediaries are going to block chunks of sites or entire sites or entire blogs which clearly will lead to a lack of dissemination of information. There is one other issue as well so far any blocks that have been instituted have been on the basis of either a government directive or a court order. Under these rules any individual can file a written complaint and this just opens up kind of want anyone can start filing complaints. On any basis because you have such wide terminology being used here I can say any video put up by someone on YouTube is harassing to me and it is then the intermediary responsibility to remove it has to remove it. This reminds me of what Google had pointed out sometime back you know they came up with this listing of instances where governments and I mean chief ministers had asked for certain videos to be removed from YouTube and so on and so on. And they had refused by the way in quite many instances they refused but not every intermediary is going to be as correct or as aware of their responsibility. Right. Google can take on a government possibly. I can't as an intermediary I cannot do that. Just a second Sheen on this issue of blocking again I mean I think it is important that Nikhil did raise it because when 69A for example was introduced in the IT Act I mean it was specifically in the wake of the fact that you had the PUCL decision and the rules that were therefore laid down in the context of telephone tapping. So now the rules required for blocking they are fairly specific in nature they mostly look at national security issues public order issues commission of cognisable offences and so on and so forth. However what we have here is a far more is a far larger gamut of crimes firstly and secondly the method with which they are dealt. So for example under 69A you have a clearly laid out process where the home secretary so on and so forth are supposed to give orders or else it is based on a judicial order as he said. So there is a clear process in India's case it is all executive action but again there is a clear process laid out here there is nothing. So the absence of any guidelines as to how any determination is to be made the absence of any sort of redressal mechanism it is also I mean it is funny to note that the guidelines themselves say that a grievance redressal mechanism must be set up but only to take complaints and not to deal with complaints as such and not to deal with people whose information has been censored. We must have studied regulations elsewhere you know other nations here could you tell us what is the situation elsewhere? Sure now see in the US and England which is where these laws initially started coming up because that is where the internet grew till 1996 there was legal legislative vacuum in the sense cases till then were based generally on common law principles. In America of course with their first amendment rights they are very very strong about their free speech rights and therefore when they passed their telecommunications act in 1996 they gave specific safe haven to intermediaries irrespective of anything they did as long as they showed that they were not actively conniving so on and so forth. So they under section 230 of the communications act in the US they have absolute liability however then later on due to industry pressure and so on particularly in the case of copyrights it was felt that a takedown and notice system similar to what we have here under these rules would be would be better. So right now what you have in the US under digital millennium act is a takedown and copyright notice. But is it as restrictive as it is here? It is it is as restrictive in fact you have various systems even even in But copyright is not covered by this particular set of rules. Exactly but that however is only in the case of a copyright okay whereas this covers copyright as well and it also covers various other things that is part of the issue also. I would disagree with the American rules as well because I don't they don't give a case for hearing for example and you've had practical instances where it has been misused for example during your last election when Barack Obama and John McCain were facing off. You had political parties taking off other people's videos from YouTube claiming they were copyright violations purely as a political tactic but using these laws. Similarly something worse could happen in India given that these laws are far broader and actually this is an interesting point because this is something I wanted to say earlier I think there has to be a classification of the various offenses also in the act. I don't think you can deal with terrorism on the same scale as harassing someone so clearly there has to be a differentiation there. Now as far as the UK is concerned the UK also follows a similar take down and notice procedure however in the case of blocking and so on they have far more stringent procedures it's far more transparent they are tribunal set up to deal with issues of complaints so on and so forth. I think there's address to all the complaints that Nikhil had in mind. No and separately they're the only deal with defamation. England has no laws at the moment anyway which deal with copyright violation as far as this is concerned. That takes us to the last question. Do you think this set of rules are redeemable? What remedies do you think should be shown? Definitely I mean I think it's very easy to change the rules because firstly the rules are on the table of parliament right now and so they can be amended as they stand they can also be looked at by committees once they have been passed and also amending the rules is not I mean making changes to the rules to incorporate what I think are rational changes for example differentiating between crimes differentiating between intermediaries are not things that the act itself need necessarily does not contemplate because the act itself also does recognize that intermediaries have different roles okay because it recognizes the fact that an intermediary could take the defense that it was merely providing transient services or it was merely acting as a storage vehicle for instance so why can't these differences be made I mean rational fair and put into the rules because yes while it while intermediaries might include X to Y well and good you can treat them differently if they have to perform different functions so Rishabh you are arguing for rational fair and robust set of regulations do you agree completely yes I think this should be rational fair and robust but I would like to specifically mention what I consider fair which is that anything that's not really a crime right just because something is disparaging or that can impact friendly relations between nations doesn't mean that people shouldn't have the opportunity to voice their opinion so there is there is a lot of content that maybe deserves to be taken down but I think there's a greater good involved in in people being allowed to voice what they want to say so that's I would say that if it's not a crime it should not be covered by these rules the other thing is that there needs to be a fair and inexpensive recourse available to people whose content gets blocked and there needs to be there needs to be transparency above all my core belief is that if there's transparency then people will feel that they can be held accountable who's taken a decision to get something blocked right who's filed the complaint for a block what is what what are the reasons you know for instituting a particular block and how can that block be removed you know that information needs to be there more and even more importantly today when a site is blocked quite often you just get a 404 error saying that you can't access it I'll give you the example of of of quake when quake blocks a site and you and you visit it that there's a landing page which informs you that the that a particular department has got it blocked and in case you won't you have certain issues with this decision it gives an even address for people to contact India has not even gone down that part we just get that it's not working and quite often we think it's a problem with the ISP so there needs to be transparency and there needs to be fairness I think you can end on that note thank you so much Nikhil and Rishabh I hope our lawmakers listen to you and make those rational fair and robust changes that you want to be incorporated with this IT Roads Act thank you