Shojan Jacob, a Kerala based lawyer, has filed a Public Interest Litigation in the Kerala High Court, challenging the constitutional validity of Rule 4 (intermediaries guidelines) of the IT Rules 2011, and Rules 8 and 16 of the IT Rules 2009 (Procedure and Safeguard for Blocking for access of Information by Public) deeming them as arbitrary, unreasonable, illegal and unconstitutional. The petitioner has said that the rules are in violation of the fundamental right of the internet users to freedom of speech and expression guaranteed under art 19 1(a) of the Constitution of India. MediaNama is in possession of a copy of the petition, shared with us by the petitioner, who informs us that the matter came before the division bench of acting Chief Justice Manjula Chellur and Justice PR Ramachandra Menon.

In his petition, Jacob has asked the Court to:

– Declare the particular rules arbitrary, unreasonable, illegal and unconstitutional, and issue guidelines to the Government to the effect that ‘before banning the content it shall be done with the prior notice to the owner of the content/user concerned in accordance with the principles of natural justice.’

– To issue guidelines to the Government to communicate to the owner of the content/ user concerned immediately after the blocking, banning or censoring the content a copy of the order stating reasons to enable them to resort to judicial remedies.

– To direct the Government to instruct the Internet Service Providers (ISP) to develop the technical competence to block only the specified webpages/websites which have been directed by the Courts/ orders of the government.

– To direct the Government to take away the deciding power and censoring power from the intermediaries and escalate such issues to a government appointed body  like Computer Emergence Response Team (CERT-In), to ensure uniformity in the blockings.

Jacob has pointed out in his petition that:

– Intermediaries can’t play judge: that Rule 4 of the IT Act transfers the the power to censor, block or ban the websites and contents that appear in the Internet to the intermediaries, which private companies who have their own business interest to protect and cannot be expected to be guardians of free speech.

– Not fair to intermediaries either: Section 69A of the Information Technology Act, 2000 imposes a heavy liability on the intermediary for not acting on a complaint received, thus forcing them to act or face legal consequences.

– Users don’t get a fair hearing: He has said that companies can engage in arbitarary blocking and removal of content, and since the end-user/content owner is not given notice or a hearing in the matter, it is violation of his fundamental right of free speech, and he can not file an appeal for redressal since there’s no provision for the same in the rules, which is an infringement of the fundamental rights including the right to constitutional remedies.

He points towards the blocking of www.cartoonsagainstcorruption.com on December 26th, 2011, on the basis of a complaint which was forwarded by the Mumbai crime branch police to an Indian intermediary ‘Big Rock’, which blocked the website without providing an opportunity to the content holder for a hearing before taking down the content.

Jacob has also pointed out flaws in Rule 8 according to which, the government has empowered the ‘Designated officer’ of Computer Emergency Response Team (CERT-India) to block websites, blogs and content. Even though the Rule mandates that a notice has to be given to the user concerned before blocking/banning/censoring any content, it might not be complied with and the user concerned might not be given a fair hearing.

– No information given to users: The owner of the content or the user concerned has no opportunity for understanding the reasons for censoring his content. According to the petition, Rule 16 of the IT Rules 2009 (Procedure and Safeguard for Blocking for Access of Information by Public) is also unreasonable, illegal and unconstitutional since it enables the designated officer not to serve a copy of the complaint or order so as to curtail the rights of the user concerned to resort to judicial remedies.

– CERT-India Uses Rule 16 of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (“Strict confidentiality shall be maintained regarding all the requests and complaints received and actions taken thereof”), to censor the internet; Rule 16 defeats the purpose of the Right to Information Act, 2005.

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Meanwhile, a case against Microsoft was dropped by a Delhi Civil Court, after the company submitted evidence to prove that it was not hosting any objectionable content. The case is in response to a civil petition filed by Ajiaz Arshad Qasmi, which names 22 internet companies and alleges content offensive to religious communities was being hosted by them, and could spark unrest in the country. Earlier, Google had said that it had removed controversial content making it inaccessible from search, YouTube, and Blogger services, on the direction of the Court.