A Kerala High Court writ petition by local lawyer Shojan Jacob, on Friday struck at the government’s blocking of websites and content in India under the controversial Information Technology (Intermediaries Guidelines) Rules 2011.

The ministry of communications & information technology has been asked to file its reply before the division bench of acting chief justice Manjula Chellur and Justice PR Ramachandra Menon within eight weeks.

Kerala-based advocate and cyber law specialist Jacob, who graduated from Nuals Kochi in 2007, filed the writ (WP(C) 5236 of 2012) challenging the constitutional validity of Rule 4 of the ‘information technology (Intermediaries Guidelines) Rules, 2011 and Rule 8 and Rule 16 of the information technology (procedure and safeguard for blocking for access of information by public) Rules, 2009, and calling them “arbitrary, unreasonable, illegal and unconstitutional”.

He challenged the rules as violating the fundamental right of internet users to freedom of speech and expression, guaranteed under article 19 1(a) of the Constitution of India.

Jacob told Legally India: “I was more concerned after cartoonsagainstcorruption.com was blocked on December 26. It can happen to me and you also tomorrow. All I wanted is to ensure transparency in the manner of blocking. The government can impose a restriction, but while it does that there should be transparency.”

The petition cited the practice of content being blocked in all cases without notice, fair hearing, or even a copy of the order being made available to the content’s owner. It added that most of the time content was blocked in secrecy and when questioned by the public or aggrieved party, the authorities washed their hands, citing technical faults.

In the absence of specific directions in this regard, there was widespread online censorship imposed by the ‘intermediaries’ and the government empowered body, CERT-India.

According to Medianama, which first reported the petition, besides praying for the impugned rules to be struck down, Jacob prayed for issuance of guidelines to the government to provide notice, fair hearing, and a copy of the order to the owner of the content before banning content.

Jacob also pointed out the impropriety in making liable for censure internet intermediaries, which are “private companies who have their own business interest to protect and cannot be expected to be guardians of free speech”, according to the petition.

He told Legally India that in January 2011 he had also made a representation to the government on the very issues listed in this petition but that the government did not respond. He is aware of a number of other Right to Information (RTI) crusaders raising similar issues regarding the IT Act and rules, and said he would like to receive other relevant information at the email address .

Legally India had earlier reported research from the Centre for Internet and Society (CIS), which revealed that most Indian intermediaries showed few if any protests in complying with self-censorship requests. In June 2011, Legally India had also found itself at the receiving end of the Indian IT Act’s new rules, followed by a number of social networking websites facing criminal cases and content take-down requests in October 2011, at the behest of Congress party secretary Digvijay Singh.

• Click here to read Legally India’s other IT Act coverage.

Synopsis from petition:

3. As per Rule 4 of the ‘Information Technology (Intermediaries Guidelines) Rules, 2011, the Government has transferred the power to censor, block or ban the websites and contents that appear in the Internet to the intermediaries. The Intermediaries are private companies who are functioning in the backend and who deliver content to the users of the internet. The above said Rule is arbitrary, unreasonable and unconstitutional and hence liable to be set aside for the following reasons:

1) The intermediaries are private companies who have their own business interest to protect. The intermediaries cannot be expected to be guardians of free speech. They engage in blocking, censoring internet content arbitrarily and on the basis of any frivolous complaint. They do not have the responsibility to verify the genuineness of the complaint received. The blockings are arbitrary and not in conformity with the principles of natural justice like notice and fair hearing. The Rule requires the intermediary to work with the user concerned before censoring any content. But the user concerned is not given any notice or a chance for a hearing in the matter by the intermediaries. This is a gross violation of the fundamental right of free speech and expression guaranteed under Article 19 (1) a of the Constitution of India.

2) The owner of the content or the user concerned has no opportunity for understanding the reasons for censoring his content. The orders by which the content is censored or blocked are never communicated to the concerned content owner/user by the intermediaries. Since the orders are never communicated, the aggrieved party cannot redress his grievance before any judicial forum. There is also no provision in the Rules to file an appeal. The right to judicial remedy is totally taken away by the drawbacks in the Rules and this is a clear infringement of the fundamental rights including the right to constitutional remedies.

4. Rule 8 of the Information Technology (Procedure and Safeguard for Blocking for Access of Information by Public) Rules, 2009 is also unreasonable, illegal and unconstitutional and liable to be set aside for the reasons stated below:

1) According to this Rule the government has empowered the ‘Designated officer’ of Computer Emergency Response Team (CERT-India) to block websites, blogs and content. Even though the above Rule mandates that a notice has to be given to the user concerned before blocking/banning/censoring any content, it is not complied with and the user concerned is not given a fair hearing.

2) There is no mandate to issue notice to the ultimate affected user/owner of the content. The Rule places a discretion to issue notice to the affected user or the intermediary. The intermediary is not an interested party and would not have an objection to block any content. The intermediaries, being private companies, are established for profit making objectives and are not concerned about blocking content.

3) The owner of the content or the user concerned has no opportunity for understanding the reasons for censoring his content. The orders by which the content is censored or blocked are never communicated to the concerned content owner/user by the designated officer. Since the orders are never communicated, the aggrieved party cannot redress his grievance before any judicial forum. There is also no provision in the Rules to file an appeal. The right to judicial remedy is totally taken away by the drawbacks in the Rules and this is a clear infringement of the fundamental rights including the right to constitutional remedies.

5. Rule 16 of the information technology (Procedure and Safeguard for Blocking for Access of Information by Public) Rules, 2009 is also unreasonable, illegal and unconstitutional and liable to be set aside for the reasons stated below:

1) The provision 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 and is therefore arbitrary, unjust, illegal and unconstitutional. The Rule enables the designated to keep confidentiality and secretly engage in censoring the internet.

For the said reasons stated above, the petitioner seeks the following reliefs.

- to declare Rule 4 of the ‘information technology (Intermediaries Guidelines) Rules, 2011 and Rule 8 and Rule 16 of the information technology (procedure and safeguard for blocking for access of information by public) Rules, 2009 as arbitrary, unreasonable, illegal and unconstitutional and set aside the same.

- to issue guidelines to respondent 1 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 respondent 1 to the effect that immediately after the blocking, banning or censoring the content a copy of the order stating reasons shall be communicated to the owner of the content/ user concerned so as to enable them to resort to judicial remedies.

- to direct the respondent 1 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 respondent 1 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) so as to ensure uniformity in the blockings.

- Pass such other orders, as this Honourable Court may deem, fit and proper in the circumstances of the case.

The petition further argued:

16. It is submitted that these Rules are more than ‘reasonable restrictions’ which are legally permissible under the Constitution. Any reasonable restriction when implemented and exercised in an arbitrary, unfair, unjust, unlawful, undemocratic and unreasonable manner becomes unconstitutional. These Rules are vague, ambiguous and abstract with no proper definitions for the terms or illustrations of provisions like the Indian Penal Code (IPC) leaving room for very wide interpretation. These Rules in the present form are more than reasonable restrictions imposed on free speech and its exercise by incompetent individuals in an arbitrary and mechanical manner violates the fundamental rights of free speech guaranteed under the Indian Constitution. The Rules do not prove for any safeguard against abuse of power. The intermediaries are left to decide on the issue. The intermediary, a private entity cannot be the right body to decide on the fundamental rights of citizens.

[…]

29. Lastly, the petitioner wishes to invite the Honourable Courts attention to practise of internet censorship in countries like the Kingdom of Saudi Arabia and United Arab Emirates (UAE). The UAE and Saudi Arabian government despite being an absolute monarchy maintains a clear transparency policy while censoring internet. The Communications and Information technology Commission (CITC) in Saudi Arabia which is responsible for filtering the illegal and harmful content and regulating the services that are provided by ISPs (Internet Services Providers) while blocking content also displays information of the block and also has a service on its website that allows Internet users to request to block or unblock any websites. Whenever a website/webpage is blocked, the information of blocking is showing to the user. The aggrieved user is also given an opportunity to take up the matter with authorities. A true copy of the screen shot of such displayed information is produced and marked as Exhibit. 9.(a) The petitioner also submits before this Honourable Court a screenshot image of the message displayed by Youtube, an intermediary, when it removed content on the basis of a copyright claim from a music company in India. A true copy of the screenshot is produced and marked as Exhibit 9.(b).

30. The petitioner wishes to submit that the process of censoring content in the internet needs to be streamlined by ensuring transparency and maintaining consistency and uniformity in the standards in blocking content. The blocking of content has to be in compliance to the principles of natural justice and with provisions providing for appeal and judicial review. The right to know, receive and impart information has been recognised within the right to freedom of speech and expression. One sided information, disinformation, misinformation and non information, all equally create an uninformed citizenry which makes democracy a farce.

Legally India has been asked to remove from download the full copy of the petition.