Update: In a statement (below), Faisal Farooqui, Founder of MouthShut.com has said that the company has “been threatened with hundreds of legal notices, cybercrime complaints and defamation cases. At other times, officers from various police stations call our office, demanding deletion of various reviews or face dire consequences under the IT rules”, and the problem is that IT Rules”would require MouthShut.com to remove any negative review about a company or brand simply because they don’t like it, irrespective of the facts stated in the review.”
“The petition pleads to the Hon’ble Supreme Court that the IT Rules, 2011 should be struck down
because they are so vague that it cannot be predicted with certainty as to what is prohibited and what is permitted. A consequence of this law would be the delegation of essential executive function to private parties like MouthShut.com to censor and restrict free speech of citizens or else face legal challenge for user’s content.”
Read the entire statement below.
Earlier today: MouthShut.com‘s petition challenging the IT Rules based on section 79 of the IT Act 2008 has been admitted by the Supreme Court of India, MouthShut.com founder Faisal Farooqui has confirmed to MediaNama. From what we’ve heard, the court has issued a notice to the Union of India, Department of Information Technology and various states; We’ll have more info on this, once we have a copy of the order, and a statement from Farooqui. Harish Salve appeared on behalf of MouthShut.com. The petition challenges all the section 79 rules, including clauses 2, 4 and 7 (details below), which define the due diligence to be observed by the intermediary, and intermediary liability.
The Section 79 rules put the onus of censorship on intermediaries – on everyone from ISPs to Cybercafes and websites like ours. The rules are structured in a way that intermediaries will comply with any complaint in order to free themselves of any liability; the rules put the onus of playing judge on intermediaries, hamper freedom of expression, and do not provide a recourse to the person whose content or comments are being censored. The terms defined in clause 2 (see below) are too broad, and provide room for censorship of free speech.
Because of the structuring of the rules, intermediaries are much too trigger happy, if only to protect themselves. This was proven by a sting operations that the Centre for Internet and Society had conducted last year, wherein they sent frivolous complaints intermediaries to test the IT Rules, and found that the content was removed in most cases. Mishi Choudhary, founding Director of the Software Freedom Law Center India, told MediaNama that “There is a problem in the IT rules issued under section 79. They go far beyond the legislative intent, and safe harbor should be provided to intermediaries to protect free speech”.
MediaNama’s views on how the IT Rules should be amended can be read here.
Clause 2, 4 and 7 of IT Rules, section 3 of the IT Rules:
3. Due diligence to he observed by intermediary – The intermediary shall observe following due diligence while discharging his duties, namely : —
(2) Such rules and regulations, terms and conditions or user agreement shall inform the users of computer resource not to host, display, upload, modify, publish, transmit, update or share any information that —
(a) belongs to another person and to which the user does not have any right to;
(b) is grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever;
(c) harm minors in any way;
(d) infringes any patent, trademark, copyright or other proprietary rights;
(e) violates any law for the time being in force;
(f) deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;
(g) impersonate another person;
(4) The intermediary, on whose computer system the information is stored or hosted or published, upon obtaining knowledge by itself or been brought to actual knowledge by an affected person in writing or through email signed with electronic signature about any such information as mentioned in sub-rule (2) above, shall act within thirty six hours and
where applicable, work with user or owner of such information to disable such information that is in contravention of sub-rule (2). Further the intermediary shall preserve such information and associated records for at least ninety days for investigation purposes,
(7) When required by lawful order, the intermediary shall provide information or any such assistance to Government Agencies who are lawfully authorised for investigative, protective, cyber security activity. The information or any such assistance shall be provided for the purpose of verification of identity, or for prevention, detection, investigation, prosecution, cyber security incidents and punishment of offences under any law for the time being in force, on a request in writing staling clearly the purpose of seeking such information or any such assistance.
Update: MouthShut.com Press release
MouthShut.com approaches Supreme Court to safeguard freedom of expression
MouthShut.com, India’s leading online community for consumer reviews has filed a Writ Petition under Article 32 of the Constitution of India before the Hon’ble Supreme Court, inter-alia for quashing the Information Technology Rules (Intermediaries Guidelines), 2011 and declaring them violative of Articles 14, 19 and 21 of the Constitution of India. “We are pleading with the highest court in the land to protect the rights of Indian citizens, consumers that are granted by the Constitution of India,” said Faisal Farooqui, the Chief Executive Officer of MouthShut.com.
Mouthshut.com provides consumers the ability to write reviews on any product or service offered in India. Several lakh reviews have been written over the last decade and they are made available free of cost to everyone. MouthShut.com is a very popular and highly trusted destination for consumers who wish to better inform themselves before making purchasing decisions. The feedback also allows businesses to learn from consumer experience and improve the quality of their offerings.
According to Farooqui, “a very small percentage of companies wish that negative reviews about them would simply go away. Under the guise of ‘harmful speech’ they approach us to remove such reviews.
The new law is vague and would require MouthShut.com to remove any negative review about a
company or brand simply because they don’t like it, irrespective of the facts stated in the review.”
Farooqui adds, “We have been threatened with hundreds of legal notices, cybercrime complaints and defamation cases. At other times, officers from various police stations call our office, demanding deletion of various reviews or face dire consequences under the IT rules” Farooqui asserts that MouthShut.com “investigates every complaint and has a policy of not removing a review simply because someone doesn’t like it. The challenged rules take away our ability to stand up to such demands.”
The petition pleads to the Hon’ble Supreme Court that the IT Rules, 2011 should be struck down
because they are so vague that it cannot be predicted with certainty as to what is prohibited and what is permitted. A consequence of this law would be the delegation of essential executive function to private parties like MouthShut.com to censor and restrict free speech of citizens or else face legal challenge for user’s content
“It is a privilege to be a citizen of a democracy like India where an ordinary citizen can appeal to a powerful court,” said Farooqui. “Laws are meant to ensure the well-being of the nation – its people and institutions. Despite good intentions, IT Rules fall short of doing that. This law has the potential to weaken or, worse, entirely corrode the robust protection that the constitution of India offers to the freedom of speech. “
“The Internet simply changes the mode of communication,” said Farooqui. “It does not alter the
fundamental fact that behind those reviews are the views of Indian citizens who have previously been expressing themselves freely in face-to-face meetings, articles in newspapers, newsletters and magazines and other public forums. Curbing that right as applied to online reviews or attaching strings to it is a disservice to the right of self-expression guaranteed by the Constitution.”
Senior advocate Mr. Harish Salvi appeared for MouthShut.com and the brief was filed by M/s Lawyer’s Knit & Co.