Legal experts in India too are puzzled by the new restrictions when there are already reasonable restrictions on freedom of expression that the Constitution defines. “There are anti-defamation provisions in the law. Then why include ‘disparaging’ in the new rules? Why is impersonating being made illegal? For example, on online dating websites for gays, users may not feel comfortable revealing their identities straightaway. And if somebody is impersonating to commit fraud, there are laws that already exist that deal with it. Instead of incorporating existing offences, the scope of what may be considered illegal is being broadened,” says CIS’s Abraham.
The new rules are so broad-based that anyone can claim they are offended and demand that content be taken down, even out of business rivalry.
For example, Zone-H.org, run by Italy-based Roberto Preatoni, was one of the 11 websitesblocked by the Department of Information Technology. This was done after the Delhi High Court passed an ex-parte interim order (where the other party is not present) in the E2 Labs versus Zone-H case to block the website. “This seems unnecessary since it is some kind of private business battle between E2 Labs and Zone H. Where was the need for the Indian government to get involved?” asks Abraham.
Bangalore-based cyber law expert N Vijayashankar agrees. “Websites are being blocked using interim orders. There is no national interest involved in some of these cases. Plus, there is no need to block the entire website, just a particular page could be blocked.”
In fact, one of the webpages blocked was an opinion piece Vijayashankar had written about the Zone-H case on BloggerNews.net. “I had no intimation that the webpage was being blocked,” says Vijayashankar, who got to know about the blockage only after CIS published the DIT’s response.
Learn from the world
Globally, excessive regulation of online discussions, particularly those related to political and social issues, can kill the open exchange of information. “In many countries, we saw that new laws, prosecutions, or proactive government censorship contributed to greater self-censorship among users. This is particularly pernicious when it affects discussions that relate to public interest or that affect people’s well-being — such as an Indonesian housewife facing high fines for circulating critical comments about a local hospital, the Chinese authorities censoring content on torture in police custody, or the Korean government prosecuting a blogger who posted pessimistic predictions about the country’s economy,” says Cook.
Cook acknowledges that balancing the right to freedom of expression against security threats, hate speech or child pornography is quite difficult — even for nations that rank high in their study. But there are a few best practices that India could learn from. “Examples of good practices would include no criminal defamation provisions (though criminal penalties for inciting violence would be appropriate), immunity for online content providers from being held liable for the information posted by their users (there is such a law in the United States), and multi-stakeholder consultations prior to the passing of regulations related to the internet/digital media.”
The new rules India has come up with fly in the face of such best practices. Authorities and netizens alike should be on the guard, lest we go the China way.
Comments
