A dubious move to pre-screen internet contents

KOCHI: The reports on unpublicised meetings of Communications Minister Kapil Sibal with social media operators demanding pro-active and pre-emptive screening of internet contents had unleashed a huge outrage. The New York Times India Ink suggests that the embarrassment caused by a Facebook page maligning the Congress president had triggered such a requisition. The report also says that  Sibal had appealed for a man-monitored regulatory scheme within these sites to screen the contents at the pre-publication stage itself. This appears to be a dubious move especially when the Information Technology Act, 2000 offers adequate safeguards to regulate the unlawful and defamatory contents within these portals. The IT Act provides for a two-fold protection scheme to tackle such a scenario; firstly, by incorporating necessary provisions to punish the culprits acting behind such illegal contents, and secondly, by imposing regulations upon the service providers.  Under Section 66 A of the Act,  a person sending any content which is of offensive nature or menacing character from any communication device can attract up to three years of imprisonment and fine. The same punishment is also extended to persons circulating any false information over theses portals with a motive to insult or for causing annoyance to any person.These provisions if implemented vehemently can catch hold of many culprits taking advantage of these platforms for making defamatory comments and publicising unsubstantiated information targeted on personal and political gains. The terminology used in Section 66A will also encompass the online contents targeted on stirring violence or hurting religious sentiments. The law further mandates the service providers to store and retain any information posted on these networking sites for a period of at least ninety days.This will help  negate any attempt made by the offenders to destroy the evidence. On the flipside, Section 69A(1) of the Act empowers Central Government to insist on the networking sites to block access to their contents if they are likely to affect the sovereignty, integrity, defence, security of the country and friendly relationship with foreign states or if they constitute incitement to an offence.A failure to comply with such requisition can attract an imprisonment up to seven years. Apart from this, the rule 3(4) of the Information Technology (Intermediaries Guidelines) Rules of 2011 gives right to the persons affected by such contents to demand disabling their  access to public on the ground of those being defamatory, harassing, obscene or grossly harmful.   The rules obligate such contents to be disabled within 36 hours. A failure in doing so may open the chances of service provider being prosecuted as a co-accused. Further reinforcing the safeguards, the law imposes upon these sites a duty to maintain strict due diligence over their contents. Thus a colossal reading of the Act and rules demonstrate an unbridled power left with the government to curb any menace caused by circulation of nefarious contents.From a judicial stand-point, it is worth mentioning that Supreme Court through its decisions on a plethora of cases starting with Romesh Thapar v. State of Madras, has explicitly expressed its intolerance towards the idea of censorship before publication. There is overwhelming judicial consensus against extending executive arms of the government for censoring the press contents. However, a regulation asking for pre-screening of online contents by these private portals will be adjudged on a different paradigm. Thus if such a regulation is implemented, it will be interesting to see how the courts will respond to it on the touchstone of freedom of speech and expression under Article 19 of the Constitution. (The writer is a lawyer. The views expressed  in the article are the author’s own.E-mail: [email protected]

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