Christopher T. Bavitz and Bryan Han
India’s Information Technology Act (the “IT Act”), enacted in 2000, covers several aspects of online and new media technologies in the country, including the security of electronic records and digital signature certificates.1 In 2008, the IT Act was amended to allow for broad government control and authority over the Internet in many circumstances.2
Three features of the amended Act are particularly worthy of note. First, the Act contains provisions that allow for government blocking of websites. Second, provisions in the IT Act (and analogous provisions in India’s Copyright Act) provide for “safe harbors” available to online intermediaries. And, third, the Act creates several computer-related criminal offenses that directly relate to online speech and the ability of Internet users to engage in free expression.
Under Section 69A of the IT (Amendment) Act, the government is allowed to block access of information through any computer resource if it “is satisfied it is necessary or expedient so to do, in the interest of the sovereignty or integrity of India, defense of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offense.” Section 69 also allows the government to intercept, monitor, or decrypt any computer resource for the reasons outlined in § 69A, or to investigate a criminal offense. Section 69B allows the government to monitor and collect any information in order to enhance cyber security or prevent the spread of a computer virus. The government has relied on the IT Act’s broad provisions to take sweeping action, disabling access to online content deemed to be of concern. In the summer of 2012, fake videos of Muslims being tortured and promising retaliation—allegedly posted online by radical groups in Pakistan—led to clashes between Muslims and migrant workers from the northeastern state of Assam, causing a massive exodus of Assamese from other parts of the country. In response, the Indian Telecommunications Ministry ordered ISPs and intermediaries to block access to around 300 websites and threatened legal action against those who did not comply.3 These sites included legitimate news organizations such as ABC and Al Jazeera, as well as social media sites such as Facebook, Twitter, and Google. Social networking sites complied with the governments’ orders, while ABC issued a statement saying it was “surprised by the action.”4 A report by Pranesh Prakash of The Centre for Internet & Society noted many technical errors and inconsistencies in list of blocked sites and questioned the effectiveness of the government’s efforts.5
Section 79 of the Act outlines liability for intermediaries hosting content that may violate India’s laws. To qualify as an intermediary under the IT Act, a website must either (1) function only to provide access to a communication system over which information made available by third parties is transmitted or temporarily hosted; or (2) not initiate, select the receiver of, or select or modify the information contained in transmissions by users. Intermediaries are not liable for third-party information, data, or communication links they host. They lose this immunity, however, if they conspire, aid, or abet the commission of an unlawful act, or if they fail to remove material that violates the law after receiving notification from the government or “actual knowledge” from any source that the material is being used to commit an unlawful act.
Guidelines issued by the Ministry of Communications and Information Technology in April 2011 limited the scope of the safe harbor, requiring intermediaries to prevent access to objectionable content across a broadly defined range of content if requested by a public official or private individual. This includes material that is “grossly harmful, harassing, blasphemous,” “hateful, or racially, ethnically objectionable, disparaging,” “communicates any information which is grossly offensive or menacing in nature,” “threatens the unity, integrity, defense, security or sovereignty of India, friendly relations with foreign states,” or “is insulting any other nation.”6
Courts in India have interpreted the IT Act to not cover alleged copyright or patent infringement.7 In June 2012, amendments to the Copyright Act created a safe harbor provision for websites for copyright infringement. Under § 52(1)(c) of the Copyright Act as amended, “transient or incidental storage” of a work, where the links, access, or integration have not been expressly prohibited by the right holder, is not copyright infringement unless the person responsible for the copy has reasonable grounds for believing it is copyright infringement.8
Section 66A of the amended IT Act extends criminal liability beyond receipt of stolen computer resources, identity theft, cheating by impersonation, violation of privacy, cyberterrorism, obscenity, and child pornography to cover the sending of offensive messages through a communications service. A person is criminally liable for sending, via computer, “any information that is grossly offensive or has menacing character,” information the sender knows to be false “for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will,” or electronic messages sent “for the purpose of causing annoyance or inconvenience, or to deceive or mislead the recipient about the origin of such messages.” In response to public outcry against arrests made under §66A, the government issued a directive on January 9, 2013, requiring prior approval by senior police officials before making arrests.
Vikas Baijaj, “India Puts Tight Leash on Internet Free Speech,” New York Times, April 27, 2011, http://www.nytimes.com/2011/04/28/technology/28internet.html.
Department of Electronics and Information Technology, Ministry of Communications Technology, Government of India, Cyber Security Strategy: Overview, http://deity.gov.in/content/overview.
Department of Electronics and Information Technology, Ministry of Communications Technology, Government of India, Cyber Security Strategy: Current Scenario, http://deity.gov.in/content/current-scenario.
Manoj Mitta, “Lessons from UK on misuse of Section 66A,” The Times of India, December 1, 2012, http://articles.timesofindia.indiatimes.com/2012-12-01/india/35530325_1_section-66a-facebook-post-lords.
United States Library of Congress, Country Profile: India (December 2004), available at http://lcweb2.loc.gov/frd/cs/profiles/India.pdf.