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#SOPA blackout day? Bah. Where’s the kolaveri about India’s IT Act Intermediaries Rules?

The Net: Dark under SOPA; Already darkening in India?
The Net: Dark under SOPA; Already darkening in India?

Netizens world wide ‘celebrated’ today, with websites such as Wikipedia taking their content offline as a mark of protest against the tabling of the potentially draconian US Stop Online Piracy Act (SOPA). Google, whose doodles usually denote a birthday or other notable day of feast, replaced its logo with a black square for US users. But what’s the fuss about? We have long had it as bad if not worse in India.

SOPA proposes to allow the US attorney general to seek a court order against targeted offshore websites infringing copyrights – or ‘rogue sites’ as they have been dubbed. The order would be served on Internet providers in an effort to make the target literally and virtually disappear by blocking its internet protocol (IP) address.

Section 102 provides that, after being served with a removal order:

A service provider shall take technically feasible and reasonable measures designed to prevent access by its subscribers located within the United States to the foreign infringing site (or portion thereof) that is subject to the order... Such actions shall be taken as expeditiously as possible, but in any case within five days after being served with a copy of the order, or within such time as the court may order.

Read simply, this Act makes it possible for companies getting websites sentenced to death online by alleging “infringement” without the owner’s case even being heard. After going through the months long process of getting their site taken off the blacklist, the aggrieved owner could have lost tons of business and perhaps permanently damaged it, argue CNET and others. The ‘disappeared’ website can’t sue for damages either, because there was nothing illegal about it under SOPA.

Unfair as it is, this has eerie parallels to the Indian Information Technology (Intermediaries Guidelines) Rules 2011. [download the Rules here]

Rule 5 of the Indian Rules, which were created by the Department of Information Technology, state that:

The Intermediary shall inform its users that in case of non-compliance with rules and regulations, user agreement and privacy policy for access or usage of intermediary computer resource, the Intermediary has the right to immediately terminate the access or usage rights of the users to the computer resource of Intermediary and remove non-compliant information.

Furthermore, Rule 4 provides that the intermediary:

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

The Indian Rule emulate SOPA in spirit, steamrollering the little thing in law known as “due process”. SOPA helps drop the surprise bomb of dislodgment of an entire website on its owner, intermediaries in India are burdened with the

According to the Intermediaries Guidelines Rules, intermediaries can be liable and:

“shall not knowingly host or publish any information or shall not initiate the transmission, select the receiver of transmission, and select or modify the information contained in the transmission” for any information from “users” that 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”

That language is far wider than anything currently contained in SOPA, or its spiritual precursor the Protect Intellectual Property Act (PIPA), which mostly try to constrain themselves to copyright infringement.

In case it was not clear, by way of additional reminder, the Indian IT Rules kick in against content that is “grossly harmful, harassing, blasphemous, obscene, pornographic, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, or otherwise unlawful”. Yes, these include vague-to-the-point-of-meaningless, potentially everyday terms such as “disparaging”. And “invasive of privacy”.

Legally India found itself at the receiving end of the Indian IT Act’s new rules in June 2011, in October 2011 Congress Party secretary Digvijay Singh filed criminal cases and takedown requests against Facebook, Twitter and other web sites, and according to research from the Centre for Internet and Society (CIS), most Indian service providers are only too happy to over-comply with self-censorship requests.

CIC’s Pranesh Prakash wrote an excellent summary on Kafila last week.

Those examples are just the thin end of the wedge as lawyers will no doubt get used to showcasing the potential power of the legislation to paying clients (or if Kapil Sibal gets his way).

After anti-SOPA’s pervasive PR campaign, is it time for a blackout of the Indian web to reform this outmoded piece of legislation? More likely in the Indian scenario, things will meander along until some enterprising lawyer files a PIL against the Rules and the court will take years to keep meandering.

The Indian IT Act Rules may not have the same global significance or catchy acronym as SOPA or PIPA have, mostly by virtue of the US’ dominance online, but the principles at stake are identical.

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