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“Indian authorities appear to be unnerved by the explosion of the Internet, and have stumbled in their efforts to regulate it.” – Human Rights Watch

Human Rights Watch (HRW) has called for the Indian government to institute process for independent review and bring transparency to Internet blocking in India.

In a sharply worded 108 page report on how India stifles free speech and dissent, which even calls for training judges peaceful expression standards, HRW also highlights curbs on free expression online, saying that laws such as India’s IT Act, “can and do easily become tools to criminalize speech, often to protect powerful political figures,” and while pointing to the Supreme Court judgment on Section 66A, it says that “any new laws should be consistent with the safeguards set forth in the court’s ruling and with international human rights standards.”

Internet specific issues raised

1. Issues related to blocking of Government sites: The blocking rules (under Section 69A of the IT Act) allow the central govern­ment to direct any agency or intermediary (ISPs, Websites etc) to block access to information, and if they fail to comply, they can be punished with fines and up to seven years in prison.

  • Intermediaries don’t raise objections: Even though the blocking rules allow the intermediary to raise objections, this rarely happens.
  • Grounds for blocking not specified: The government doesn’t specify grounds on which the content is being blocked, and asks for the orders to be kept confidential;
  • ISPs can’t even disclose the number of websites blocked.
  • There’s no provision for appeal.
  • Lack of transparency with the reviews: A review committee is expected to meet once every two months to examine blocking orders, but the working of the committee is not public and lacks transparency.
  • Committee doesn’t check for validity of blocks: “An anonymous employee of a popular social networking site told Human Rights Watch that the committee only examines whether procedure was followed, not the validity of the block itself.
  • No disclosure to citizens: It isn’t disclosed to users that a website is blocked: they usually see a “server not found” notice.
  • Contradictory disclosures: the government told to the Supreme Court that 2,455 URLs were blocked from January through December 6, 2014. In April 2015, the minister for communication and information technology told the parliament that 2,346 URLs had been blocked in 2014.
  • Issues with emergency measures: Even though what is an emergency isn’t defined, the blocking rules allow blocking in emergency situations, without a notice. A committee is supposed to look at the blocks within 48 hours, but there is no opportunity to challenge the decisions, nor is there a clause for revoking the block after the emergency has passed.

The report cites instances of arbitrary blocking:

  • August 2012: the North Eastern exodus issue, wherein, 309 webpages, including news articles of mainstream media outlets, images, and links on sites including Facebook, Twitter, Wikipedia, Australia-based news channel ABC, and the Qatar-based media organization Al-Jazeera were blocked.
  • January 7, 2015: Mumbai police, citing law and order concerns, reportedly responded by blocking 650 posts and pages on a social networking site for uploading controversial cartoons from the magazine.
  • December 17 order to block 32 websites, including video sharing sites such as Vimeo and Dailymotion, for allegedly posting “jihadi propaganda”, led to some of these sites to be completely blocked.

Human Rights Watch has recommended that the Indian government should Amend section 69A and blocking rules to strengthen process requirements to include:

  • Sending a notice to the author of the content
  • The ability to challenge the blocking order through an independent legal review process,
  • The ability restore the content if it is found to be legal.
  • Mandatorily publishing a copy of each blocking order, along with the reasons for blocking, on the blocked website and on a public page of the website of Department of Electronics and Information Technology under the Ministry of Communications and Information Technology.
  • Allow Telecom operators and ISPs to disclose the number of requests for website blocking they receive and number of websites blocked over a given period of time.

MediaNama’s Take

The recommendations made by the HRW are in line with some which we had made back in 2013. Even today, there are frequent blocks without adequate disclosures or recourse. In addition, there are issues with Section 69A which we had pointed out last year, which appear to have been missed:

–  Nodal officers receive complaints on behalf of central and state governments, and after assessment, forward these complaints to the Designated officer. What if the Central government’s Nodal and Designated officer are the same?
– If all the executives in the Committee are largely from the Ministry of Home Affairs and the DoT, who are involved in issuing the orders, then how is the committee going to take an independent decision?
– If someone in the Review committee ever dissents on a particular order, does it make a difference if the rest are in favour? Will we ever know of the dissent? Will anyone ever dissent?
– If the person asking for the block or directed by the government to block is the same person who decides, or is of the same department, how can we be sure of a fair hearing?
– Will a government appointed committee of government executives ever oppose a government order?

Governments are known to fix committees so they are aligned with their own leaning. Where are the external checks and balances for Section 69? Who watches the watchdogs – the Review Committee?