As the Modi government releases new guidelines for matrimonial sites, one wonders if it's a slippery slope to complete shutdown.
In late 2015, the Women and Child Development ministry, Home ministry, Department for Electronics and Information Technology (DeitY) and the representatives of matrimonial websites came together to create a panel. Their purpose? To regulate portals like Jeevansathi, Bharat Matrimony and Shaadi.com.
Now, this panel and the recently-announced regulations might not seem like Big Brother material because, on the surface, they seem to target pernicious defrauders who use these websites to cheat and exploit others. Many such instances have been reported recently, and the proposed steps do seem helpful to curb this.
For example, the guidelines require websites to have an IP address registry of site-visitors, and for users to upload ID proof docs when they join -- probably useful for reducing fake profiles and identifying culprits in case of cyber crime.
But when a part of the advisory reads: "Service providers should make a declaration that website is strictly for matrimonial purpose only and not a dating website and should not be used for posting obscene material," one is hard-pressed to wonder if the government’s intentions are that pure.
The Communications and Information Technology Minister Ravi Shankar Prasad posted on June 2:
Twitter responses to the announcement were caustic:
Can the Internet, the domain of free speech and expression, be subject to this much regulation? Can the government shut down matrimonial websites over this?
Maybe.
The Information Technology (IT) Act of 2000 is a double-edged sword. Where it protects, it also prevents.
It gives the government a lot of power, including the power to block public access to information under Section 69A, if it is a threat to public order or incites anyone to the commission of offences listed in Sections 65-67, including sending offensive messages, cheating by impersonation, identity theft and publishing obscene content. All of which is being found a-plenty on these websites.
The government can also make rules, including any about reasonable safety practices, which is what it’s doing.
Matrimonial websites could easily fall into the sinkhole of 'obscene content', if users attempt to use these sites for hook-ups, or post anything that could be deemed even mildly objectionable. Obscenity is notoriously hazy as a legal concept, not only in India but world over, with no firm consensus as to what is ‘obscene’.
Obscenity is dealt with under Section 67 of the IT Act (also S 292-294 of the Indian Penal Code.) In cases involving obscenity, Indian Courts have moved from applying the ruling in the English case Regina vs. Hicklin (the Hicklin test) to using the vague determinant of contemporary community standards. A tricky proposition in a society that is conservative and hypocritical at the same time. For example: this survey by a leading daily found that while 61% of India doesn’t believe pre-marital sex is taboo, 63% wants their spouse to be a virgin.
But would websites pay the price for the shenanigans of the Internet’s lowlife?
They generally don’t.
Websites take the stand that they are platforms and not publishers of content, and so can’t be liable. It's not always a solid argument though as this Guardian article says.
In fact, Shaadi.com in its Terms of Use calls itself an ‘advertising platform providing targeted advertising services for matchmaking alliances,’ a replacement for a newspaper classified ad.
Facebook, for example, says in its Statements of Rights and Responsibilities:
‘Facebook is not responsible for the actions, content, information or data of third parties, and you release us, or directors, officers, employees and agents from any claims and damages, known and unknown, arising out of or in any way connected with any claim you have against any such third parties.'
A matrimonial website, as an Internet service provider, is an ‘intermediary’ under Section 2(w) of the IT Act. It can probably not be held liable under Section 79 for third party data it hosts, as it merely provides a platform for persons to communicate.
But that doesn’t mean it gets a free pass under Section 79 if it fails to exercise due diligence, or aids or abets the commission of an unlawful act. If it isn’t verifying profiles and weeding out the creepies, it’s failing on both counts.
An intelligent lawyer would also tack on Section 43A which says that corporates having any sensitive personal information on their computers are liable to pay damages if they don’t maintain reasonable security practices.
Plus, the guideline to maintain an IP address registry is validated by Section 67C under which intermediaries need to preserve any information that the government thinks necessary in whatever manner it believes they should.
In short, matrimonial websites had better solve their own problems before the Government steps in to solve them out of existence.
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 "Marriage is a click away, they say")
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