Various concerns have been raised after rules relating to the internet were notified on 11th April 2011. Objections have been raised on mainly three fronts: one, that an unreasonable standard has been imposed on the intermediaries and cybercafé owners who will face liability for acts that are not strictly within their control; two, that the said rules abridge the fundamental right to freedom of speech and expression that has been enshrined in Article 19 of the Indian Constitution and three, that the right to privacy has been contravened through the power conferred on government agencies to access sensitive personal information of internet users.
To start with, it must be noted that the liability imposed on intermediaries is not absolute. They are not in fact responsible for all the activities of their users. They are only required to publish relevant rules and policies and inform the users that specific kinds of materials have been disallowed through the rules (Rule 3, the Information Technology (Intermediaries guidelines) Rules, 2011). In addition to this, hosting or transmitting illegal information is only problematic if it is done “knowingly.” The intermediary is required to remove the offensive information within thirty six hours of it being stored or hosted or published, but only if it is brought to his notice, or he otherwise obtains knowledge. This does not seem to be as tyrannical as it is being made out to be, and the idea that intermediaries bear the “extremely onerous responsibility to be able to police every bit of content before it goes out” seems to be a misconception.
Another report claims that the effect of the new rules is that cybercafé owners must now make sure their equipment is not used for illegal purposes. On the contrary, the whole thrust of the new rules is towards ensuring that if cybercafé equipment is in fact used for illegal purposes, the user is easy to trace. No unrealistic expectations have been put on café owners. Duties include maintaining log record of the uses to which their equipment is put, collecting copies of identification from all users and complying with the physical layout mandated by the rules.
Secondly, concerns regarding freedom of speech and expression have disturbed the online community. The prohibition on materials that have been described in vague terms such as “disparaging”, “grossly harmful” and “objectionable” have caused great alarm. In the words of Nikhil Kumar Verma, one of India’s top ten most influential tweeters, "No-one has a say of what is right, and what is wrong... if someone objects you can't talk about it." According to the head of a digital marketing agency in Mumbai, “Any individual can write to us and say that piece of content offends us and without any recourse we have to take it down." This does not seem to be a tenable objection. It is absurd to assume that the standard laid down in the rules is a subjective standard. Terms such as “objectionable” are surely to be adjudged based not on what overly sensitive people might regard as objectionable but what a reasonable man might perceive as such.
Still, it is well worth noting that these terms have not been defined and are open to misuse. Already, Google has received reports from the State asking them to take down content that is critical of leading politicians, prompting them to publicly reject the rules as anti-democratic. This obviously raises concerns that these terms might be open to a broad, arbitrary interpretation.
While examining this objection in the light of the Constitution, one way of looking at these provisions is through the lens of the basic norm of statutory interpretation which requires that if it is possible to interpret a statute in two ways, only one of which is constitutional, then “a narrow pedantic interpretation running counter to the constitutional mandate ought always to be avoided.” This means that these terms are to be read in such a manner so as to be consistent with the reasonable restrictions on the freedom of speech and expression that have already been laid down in Article 19(2) of the Constitution of India. Given this interpretation, these rules merely impose additional duty on intermediaries in the light of existing restrictions, rather than imposing any new ones.
However, the lack of definition also leads us to a discussion surrounding the “void for vagueness” doctrine. According to a 5 judge bench of the SC,
“It is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. It is insisted or emphasised that laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Such a law impermissibly delegates basic policy matters to policemen and also judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. More so uncertain and undefined words deployed inevitably lead citizens to "steer far wider of the unlawful zone ... than if the boundaries of the forbidden areas were clearly marked".”
A provision is therefore vitiated by vagueness if it creates scope for “guiltless and innocuous innocent people” to be “arrested and prosecuted by abusing or misusing or misapplying this definition.” This idea has been recognized on other occasions as well, in the form of the “void for vagueness” doctrine, an idea borrowed from American jurisprudence. According to this doctrine, laws should be sufficiently clear so as to give notice of the conduct that is proscribed.
In the current matrix, there are three implications of this observation. Firstly, these ill-defined restrictions may well be held violative of the principles of natural justice, because the general public has not been given due notice of what sort of conduct is being sought to be controlled by these rules.
Secondly, the direct and inevitable impact of these rules, as bolstered by the SC’s observations, that people would “steer far wider of the unlawful zone”, i.e., people may hesitate before exercising their right to freedom of speech and expression for fear of violating these rules. This would amount to a violation of Article 19(1)(a) read with 19(2).
Thirdly, since it is vagueness that leads to such massive scope for abuse by enforcement agencies, it might be possible to successfully challenge the constitutionality of some of these measures. The only catch here is that high standard that has been articulated by the SC while invoking this doctrine may prove to be a hurdle. In the words of the apex court, this can be done if a Statute is “absolutely vague and its language wholly intractable and absolutely meaningless.”
Last, but most troubling, is the fact that these new rules allow for transfer of personal information, without the consent of the user, to government agencies as they state the reason for soliciting this information and don’t disclose it further on. Such personal information includes, inter alia, “sexual orientation” and “any of the information received under above clauses by body corporate for processing, stored or processed under lawful contract or otherwise.”
This sweeping provision has to be viewed against the fact that privacy has been recognized as a facet of the right to life in India. It is true that the right to privacy in India is subservient to compelling state interests, but recent case law has aimed at expanding this right. The Selvi judgment has recognized that the right to privacy has both mental and physical aspects. In the celebrated Naz judgment that deals in particular with the right to privacy of people of varying sexual orientations, the Delhi High Court described the right to privacy as “private space in which man may become and remain himself.”
While the relaying of information that strictly relates to a compelling state interest might be lawful, the Centre may perhaps want to review the unregulated powers that have been granted to the Government under Rule 6 of the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011, in the light of the broadening contours of the right to privacy. But the Government does not seem interested in answering these criticisms.