An advocate from Kerala Mr.Shojan Jacob has filed a writ petition challenging the Information Technology (Intermediary Guidelines) Rules, 2011.
Bar and Bench has reported this development, which was brought to my attention by Mr.Aditya Arun Kutty, Advocate before the High Court of Delhi.
Reportedly, Rule 4 of the Intermediary Guidelines and Rules 8 and 16 of the Information Technology (Procedure and Safeguard for Blocking of Access to Information by Public) Rules, 2009 have been challenged as being illegal, arbitrary and unreasonable. It has also been alleged in the petition that the Rules curtail fundamental freedoms of speech and expression. Rule 4 of Guideline Rules is as follows:
(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.
The requirement of taking down the content within 36 hours of being apprised of the content could be accused of not affording the intermediary sufficient time to apply his mind to the content, and decide if at all there is an infraction of a third party’s legitimate interests. On the other hand, it could be said that given the lightning speed with which the medium is capable of creating a multiplier effect if the content is indeed damaging, 36 hours could be justified on the grounds of “intelligible discrimination” when compared to other media.
In other words, the basic question that ought to be asked is- why should take down rules apply against an intermediary when it comes to the internet, when the norm applied to print medium is different? It would be interesting to see how the issue is dealt with by the Kerala High Court.
Among the reliefs sought in the petition are guidelines to the Centre from the court to the effect that owners of content, which is sought to be taken down, must be given prior notice before the content is banned. Also, after the content is taken down, a reasoned order must follow clearly stating the objections and the basis for the objections to the content.
In short, the petition seeks infusion of principles of natural justice in the Rules. Not an unreasonable petition, but given the wind blowing these days, this petition may draw the ire of the establishment for raising genuine concerns.