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Constitutionality Of The Website Blocking Law Of India And The Procedure Followed By It

There are numerous laws which operate specifically to regulate the working of websites. These laws are fundamentally required to check and restrain the spread of fallacious and misleading information over the internet which can be a reason for manipulation of public opinion at large. Website blocking acts as a tool to prevent the fabrication of falsehood and is done using section 69A of the Information Technology Act, 2000 read along with the Information Technology (Procedure and safeguards for blocking of Access of Information by public) Rules, 2009 which is also referred to as the 'Blocking Rules, 2009'.

Two laws which lay down the detailed provision for blocking the websites are as follows:

  • Information Technology Act, 2000 with detailed focus on the Section 69A which grants the power for the blocking of public access to any information.
  • Information Technology (Procedure and Safeguards for blocking for Access of Information by Public) Rules, 2009 which highlights the legal procedure to be followed to block any content for public access.

Information Technology Act, 2000

Section 69A is the prince among all the sections and is also found to be one of the most controversial in the recent year. Blocking of various Chinese apps last year, withholding of several accounts on Twitter recently have all been associated with Section 69A of the IT Act,2000.

Section 69A: Power to issue directions for blocking for public access of any information through any computer resource:

  1. Where the Central Government or any of its officer specially authorized by it in this behalf is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defense of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above, it may subject to the provisions of sub-section (2) for reasons to be recorded in writing, by order, direct any agency of the Government or intermediary to block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource.
  2. The procedure and safeguards subject to which such blocking for access by the public may be carried out shall be such as may be prescribed.
  3. The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with an imprisonment for a term which may extend to seven years and shall also be liable to fine.

Analysis of Section 69A:

According to this particular section if the central government or any of its authorized officer acting on its behalf is satisfied and find it necessary to block a certain online content or website they can do so. But such a blocking can happen under five circumstances namely:
  • In the interest of sovereignty and integrity of India
  • Defense of India
  • Security of the state
  • Friendly relations with foreign states or public order
  • Preventing the incitement of any cognizable offence relating to the above mentioned circumstances.

However, there must be a written order which should state the reasons behind such an order and the same must be recorded. Such an order can instruct any agency of the government or an intermediary to block public access to any information that has been generated, stored, and hosted in any computer resource. Moreover, the failure to comply with such an order issued would result in an imprisonment extendable up to seven years along with fine. While making such a blocking order certain safeguards and procedures mentioned in the blocking rules must be duly followed.

Validity of Section 69A of the IT Act, 2000:

In the case of Shreya Singhal vs. Union of India, (see here) few sections of the IT Act, 2000 were in great controversy. In this case the Supreme Court struck down Section 66A of the IT Act, 2000 by the use of which online offensive comments were made a crime which was punishable by jail. The section was struck down on the grounds that it had a detrimental effect on the fundamental rights such as the right to free speech and expression over the internet.

During this case Section 69A was also under velitation. But the Supreme Court was of the view that this section was quite narrow and also had various safeguards to be followed while blocking an online content. The court ruled that the blocking order can only be passed when the committee was satisfied with the same and found adequate reasons for blocking the public access to the online content. The bench noted that It is only when the committee finds that there is such a necessity, that a blocking order is made.

Moreover, the intermediary is also given ample time for representing his/her cause and also such a restriction falls within the ambit of reasonable restrictions to freedom of speech and expression. However, comfort can be drawn from the fact that a written order is passed and the record of which is maintained can be utilized by the affected parties to file a writ petition against the blocking order. Therefore, Section 69A was declared to be constitutionally valid and all the writ remedies were made available for any breach that takes place with respect to the protocol which are supposed to be followed.

Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009

Along with the IT Act, 2000 the procedures and safeguards mentioned under this act has to be duly abided by. It states the requisites which have to be fulfilled for an order to be passed.

As per this act every organization needs to appoint a Nodal officer who will be responsible for receiving complaints related to websites that are broadcasting 'misleading and derogatory' information. As per Rule 6(1) any person can send their complaint to the Nodal officer of the concerned organization requesting the blocking of any content being 'generated, transmitted, received, stored or hosted in any computer resource'. Moreover, such a request generated by the Nodal officer can be sent directly to the designated officer but request other than the one from the Nodal officer would require the assent of the Chief Secretary of the concerned territory or state.

After the Nodal Officer observes the merit in the complaint it is forwarded to the Designates officer who then chairs a committee to scrutinize the validity of the request. The committee under Rule 7 of the Act consists of the Designated officer as its chairperson and representatives who should not be below the rank of Joint Secretary in Ministries of Law and Justice, Home Affairs, Information and Broadcasting and the Indian Computer Emergency Response Team.

The committee shall examine the complaint thoroughly along with the printed sample information and take measures to satisfy itself about the reasons behind such a complaint and its validity.

After the complaint is received by the committee the Designated Officer takes adequate steps to identify the person or the intermediary responsible for hosting such content and even the computer resource which has generated or is hosting the content. The intermediary after identification, is served a notice to appear before the committee and submit its reply and clarification to the same at a specified date and time which in any case shall not be less than 48 hours.

If the intermediary happens to be a foreign entity or body then the notice shall be sent in the form of fax or emails and the intermediary shall respond to the same within the specified time.
In the case of non-appearance before the committee by both the intermediary within the country as well as those as a foreign entity or body the committee shall issue recommendation based on the complaint received and presented by the Nodal officer along with the sample information available with the committee.

The recommendations of the committee are submitted to the Secretary in the Department of Information Technology under the Ministry of Communication and Information Technology under the Government of India. After getting the approval of the Secretary, Department of Information Technology, the Designated officer has the power to mandate any agency of the government or an intermediary to block the misleading and offensive information having being generated, received, stored or hosted in their computer resource for public access.

However, the procedures followed in the emergency situations are quite different. In cases where no delay is admissible the Designated Officer shall inspect the request as well as the sample information and determine whether such a complaint is justifiable and necessary. After which the complaint along with the sample information is forwarded directly to the Secretary, Department of Information Technology who after being adequately satisfied may record the reasons behind the blocking order in writing and may pass an interim order for the blocking of the public access to the contentious content to the intermediary responsible for hosting the website or the person who is in control of the computer resource where such an information is stored or being hosted in.

As a result the intermediary will not be getting any possible opportunity to present his clarifications and reply before the committee. The Designated officer at the earliest but not later than 48 hours is responsible for presenting the request before the committee for its consideration and recommendation. If the committee approved then the order shall be regarded as the final order and in case if it is not approved then the interim order shall be quashed and the intermediary would be directed to unblock the information for public access.

The committee under Rule 14 shall meet once in two months and take into account whether the directions issued under the blocking order has been followed upon and if not the committee shall set aside the directions earlier issued and generate an order for the unblocking of the said information.

Concerns associated with Rule 16:

The Rule 16 talks about the request and complaints to be confidential and states that strict confidentiality shall be maintained regarding all the requests and complaints received and actions taken thereof
This particular Rule is quite vague and controversial as it allows the responsible committees and officers to hold information and maintain 'strict confidentiality' in relation to the entire request and complaints as well as any action taken in association with it. This causes less answerability as such an order is not put through parliamentary or judicial scrutiny. The reasons behind the blocking of the content is known only to the committee members and officers involved and such reasons never sees the light of the day. This leaves behind enough lacunas which is adequate to cause opaque censorship and creation of a totalitarian state which is quite dystopian in nature.

Understanding the current standoff between Twitter and the Indian Government

Recently Twitter, a micro-blogging website was served with several blocking orders associated with the farmers protest. Among the blocking orders two were emergency blocking order which were immediately complied with. Twitter took steps to reduce the visibility of the offensive hashtags and misleading tweets which also included the permanent suspension of more than 500 accounts. Moreover, according to Twitter it withheld a portion of the accounts identified in the blocking order under the Country Withheld Content Policy within India only while the accounts will continue to be available outside of India. But astonishingly after blocking access to several Twitter accounts and hashtags it was later restored by Twitter following which it was served with a non-compliance order as it did not abide and obey an order issued by the Government of India.

Troubles associated with the blocking order of the government

The blocking orders are prone to contention as there are a few issues associated with it which needs attention and demands to be resolved.

There have been rightly raised concerns regarding the secrecy which has built up around the blocking orders being issued by the government. The rule and procedures allow the complaints received and actions taken to remain confidential in nature. This allows the reasons behind the blocking of tweets and several accounts, to remain unknown. By using the Section 69A the government seems to block and take down the accounts of several journalists, media houses who do not seem to support the ideologies of the government of India. The blocking process is quite messy and does not answer the justifiable and legitimate questions moreover it is quite opaque in nature.

While the process of blocking takes place the intermediary is supposed to appear before the committee and present its reply and clarifications however through these reply and clarifications the government is not looking for ways to be challenged in relation to its decision. Through these replies and clarifications the intermediary cannot comment on significant issues relating to freedom of speech as it would be considered that the intermediary is not complying with the order issued.

Moreover, the government issues order to block the entire Twitter accounts instead of taking down only those offensive and controversial tweets selectively. In order to prevent the damage to the integrity, defense and sovereignty of India it is not necessary to block the accounts altogether as it could carry both the derogatory and false as well as the normal content. The taking down of neutral content shall affect the freedom of speech and expression of the individual affected.

There have been ample examples which show that several accounts which in no way seemed to attract the Section 69A have been blocked and hashtags were taken down which were considered to be propagate offensive content. However, the controversial hashtags which were being used by the Twitter account holders does not necessarily prove that those Tweets used the hashtags in the way which was censorious.

Need for re-designing the approach related with Section 69A

Although the Rule 16 of the Act permits the actions and the complaints to remain confidential yet there is a necessity of some transparency in the blocking orders. Through these blocking order the freedom of speech of individuals are being curtailed but they are not being furnished with any reasons or grounds as to why their Tweets or content have been taken down and their accounts have been blocked. Until and unless there is sufficient transparency it cannot be comprehended whether the accounts blocked were propagating illegal activity or was it associated with free speech and were newsworthy. The blocking order should be such that it answers the legitimate questions of the individuals and is transparent enough to seem justifiable.

Even though the intermediaries are given enough time to appear before the committee and present there replies and clarifications the government does not want to be challenged or confronted. This should not be the case, rather the intermediary should be given the opportunity to present its own defense before the committee. This would allow both the committee and the intermediary to back their opinions with reasons and permit the honorable committee to arrive at a rational judgment.

Instead of blocking the entire account on a website, measures must be taken to segregate the illegal and offensive content from the normal and legal content. Restraining the normal content along with the illegal ones will have a detrimental effect on the fundamental rights enshrined by the constitution of India.

Lastly, the government through the blocking orders demands that the provocative hashtags must be taken down but it is also possible that the account holder had not used that particular hashtag which was manipulative and provocative. There are media houses who in the course of stating the facts use these hashtags and are not using the same in a sense that would cause the tweet to be removed. Therefore, efforts must be made in order to narrow down the ambit within which such hashtags are being done away with, so that only the provocative and misleading contents are targeted efficiently.

Conclusion
In this digital age it is of paramount importance to have some kind of surveillance in order to curb and have a control over the misuse of the cyberspace. With the rocketing use of mobile phone and the internet, the availability of information has become trouble-free and effortless but this also permits misleading and manipulative information to spread at a greater pace. Therefore, these state of affairs demand that there are some laws to prevent the happening of undesired events in the society.

The era which was limited to telephonic conversation have turned into days of yore and with the advancement of technology there needs to be advancement of laws to have a check on it. But it must be acknowledged that while preventing the misuse of internet and social media sites the government does not takes a step which violates the fundamental rights of speech and privacy of the citizens. Because if this happens the government would itself become an offender of a lethal crime.

Therefore, the process of blocking online content must be the one that is transparent and presence of surveillance laws that does not confers unchecked powers over the executive. Since there is a fine line between a surveillance that is required to check the spread of falsehood and arbitrary surveillance therefore, such a line must not be crossed as it can cause far reaching consequence for the freedoms possessed by the citizens.

References:
  • https://theprint.in/theprint-essential/all-about-section-69a-of-it-act-under-which-twitter-had-withheld-several-posts-accounts/597367/
  • https://theprint.in/opinion/can-chinese-apps-appeal-india-ban-section-69a-of-it-act-has-answer/455316/
  • https://www.lexology.com/library/detail.aspx?g=9c25c4f8-63db-405c-a599-64e3440eb91a
  • https://indiankanoon.org/doc/10190353/
  • https://blog.ipleaders.in/surveillance-and-privacy-vis-a-vis-section-69-of-the-information-technology-act/
  • https://sflc.in/analysis-recent-app-blocking
  • https://blog.ipleaders.in/laws-regarding-blocking-website/#_ftnref2
  • https://cis-india.org/internet-governance/resources/information-technology-procedure-and-safeguards-for-blocking-for-access-of-information-by-public-rules-2009
  • https://thewire.in/tech/twitter-modi-government-block-section-69-a

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