The ill advised decision of the Government of India to block certain blogs
following the Mumbai blasts has raised a debate on whether it was justified on
the basis of "Right to Freedom of Speech". Coming close on the heels of the
controversial
amendment
to the "Right to Information Act" proposed by the Government to keep certain
information outside the purview of the RTI act, the Blog issue has rightly cast
a doubt on the democratic intentions of the present Central Government.
Apart from the Netizen Rights issues involved in the case, it is necessary to
address three other issues of equal importance.
1. Under what provisions of law did the Ministry of Information Technology
issued the said notification blocking the sites.
2.Under what provisions of law did the ISPs act beyond the apparent mandate of
the notification
3.How does the proposed amendments to ITA-2000 would affect a similar instance.
Let us now look at these issues in some detail.
Legal Provisions
The notification itself does not state under what powers the instructions have
been given. Since it is issued by the "Department of Telecom", it is understood
that this is under the contractual agreement between DOT and ISPs as a part of
the licensing conditions. Even in such a case, it would have been necessary to
quote the legal authority or contractual clause under which such an instruction
was given. The notification is uncharacteristically silent on the reasons for
blocking or the authroity and makes a mockery of democratic traditions.
It can therefore be argued that the official who issued the notification did not
apply his mind before issuing the notification which could be called
"Censorship" of the Internet.
It must be noted that the said ban on the blogs has not been issued under
ITA-2000 since there is presently no provisions under the Act for such a
purpose. The nearest provision of ITA-2000 that indicates such a provision is
Section 69 where the Controller of Certifying Authorities has been given powers
"To intercept" and "call for assistance for decryption" as indicated below.
Section 69 : Directions of Controller to a subscriber to extend facilities to
decrypt information
(1)
If
the Controller is satisfied that it is necessary or expedient so to do in the
interest of the sovereignty or integrity of India, the security of the State,
friendly relations with foreign States or public order or for preventing
incitement to the commission of any cognizable offence, for reasons to be
recorded in writing, by order, direct any agency of the Government to intercept
any information transmitted through any computer resource
(2)
The
subscriber or any person incharge of the computer resource shall, when called
upon by any agency which has been directed under sub-section (1), extend all
facilities and technical assistance to decrypt the information
(3)
The
subscriber or any person who fails to assist the agency referred to in
sub-section (2) shall be punished with an imprisonment for a term which may
extend to seven years
The present notification is clearly outside this section.
Another relevant provision under the Act is the Notification dated 27th
February 2003 under which CERT has been designated as the authority empowered
to issue instructions for blocking of websites. The
notification specifies that
"CERT shall be the signle authority to issue instructions for blocking of
websites..". It also specifies that "CERT shall issue such instructions to DOT
(LR Cell) after satisfying that such action is absolutely essential". The
notification also specifies who can complain to CERT in this regard. This
entire provision is however restricted to the implementation of Section 67 of
ITA-2000 which relates to obscene web publishing.
This notification therefore does not address the requirements of the current
case where the need is to maintain communal harmony etc..
It can therefore be said that ITA-2000 does not provide any powers to CERT or
to DOT to issue the order for blocking of blogs.
If there are websites which promote disharmony in the community etc, necessary
notification should be made perhaps under powers derived under IPC/CRPC. For
this purpose the relevant authroity would be the Police in specified
jurisdiction or the Ministry of Home Affairs. Further it is debatable of the
"Power to Intercept" is equivalent to "Power to Block". Perhaps "power to
Intercept" means only "Power to tap" and not "Power to Block".
The notification is therefore not supported by legal powers and ISPs are not
bound by the same except under the contractual agreement represented by the
license.
Liability of ISP
In case the said notification was bad in law, ISPs were bound to reject it or
seek further clarifications. Blindly following it and that too exceeding the
authority to block sites other than those for which request was made is an
illegal act in itself for which ISPs should be liable.
Such a liablity can stem from the ITA-2000 itself since "Blocking of Access to
Information Residing inside a computer resource" could be considered as an
offence under Section 66 of the Act and also a contravention under Section 43
of the Act.
Again under Section 85 every official in charge of business in the ISP and the
ISP as a Company will be found guilty and under "Lack of due diligence" (Which
included seeking clarification), they would be liable under Section 66. Every
affected blog owner has the right under Section 43 to claim damages upto Rs 1
crore through the adjudication process.
Proposed Amendments
The new provisions contemplated under the amendments proposed to be made to
ITA-2000 indicate the following.
The amended Section 69 is proposed as follows:
69.
Power to issue directions for interception or
monitoring or decryption of any
information through any computer resource
(1) If the Controller Central
Government is satisfied that it is necessary or
expedient so to do in the interest of the sovereignty or integrity 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, 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 to intercept
or decrypt or cause to
be monitored any information transmitted
through any computer resource.
(2) The Central Government shall prescribe safeguards subject to which such
interceptions or monitoring may be done.
(2)
(3) The subscriber or any person in-charge
of the computer resource shall, when called upon by any agency which has been
directed under sub-section (1), extend all facilities and technical assistance
b.
to decrypt the information; or
c.
provide
access to the computer resource containing such information
(3)
(4) The subscriber or any person who fails
to assist the agency referred to in sub-section (2)
(3) shall be punished with an imprisonment for a term which may extend to
seven years
The amendments remove the "Commission of Cognizable
offence" from the list of reasons that can prompt action under this section
and takes over the powers from the Controller to "Central Government". The
reasons for which the section can be invoked indicates that it should be the
ministry of External Affairs or the Ministry of Home that can invoke this
section.
Additionally, under the proposed amendments, section 66 has
been revised and under the revised provisions, ISPs would not be liable both
because "Fraudulent and Dishonest" intention has to be proved for invoking the
attention as well as under the revised Section 79, ISPs are immune from any
law if they cannot be accused of abetting the crime. Further the term of
punishment would be one year instead of 3 years as at present and also this is
compoundable at the instance of the IT Secretary or the Controller. ISP and
its Executives would further be protected under Section 85 since "Proof of
Connivance" is a prerequisite to invoking section 85.
It can therefore be categorically stated that if the
proposed amendments were in place, it would be possible for ISPs to block
websites without any legal liability even if such blocking is incorrect.
Naavi
July 22, 2006
Related article:
Blanket ban
may be overturned :
Manmohan urged to lift blog ban :
The order
(Comments and suggestions Welcome)
