In the Public Interest litigation (PIL) challenging the constitutional validity of the Internet censorship rules proceeding in the Kerala High Court, the Indian Music Industry (IMI) has come in support of the much debated Information Technology Rules, 2011.
The PIL was filed in March by Shojan Jacob, an IT lawyer based in Kerala. The petition was filed in the backdrop of arbitrary blocking of several websites by the Indian Government.
Shojan Jacob, in his petition, has challenged the constitutional validity of Rules 8 and 16 of the Information Technology (Procedure and Safeguard for Blocking for Access of Information by Public) Rules, 2009 and Rules 3 (2) and 3(4) of the ‘Information Technology (Intermediaries Guidelines) Rules, 2011.
The provisions are challenged on the grounds of violating principles of natural justice and lack of transparency/ accountability and Rule 3 (2) for being vague and overboard.
The reliefs claimed in the petition are:
- Declare the particular rules as arbitrary, unreasonable, illegal and unconstitutional
- issue guidelines to the Government to the effect that censoring activity shall be transparent, incorporating principles of natural justice.
- To issue guidelines to the Government to communicate to the owner of the content/ user concerned immediately after the blocking, banning or censoring the content a copy of the order stating reasons to enable them to resort to judicial remedies.
- To direct the Government to instruct the Internet Service Providers (ISP) to develop the technical competence to block only the specified webpages/websites which have been directed by the Courts/ orders of the government.
- To direct the Government to take away the deciding power and censoring power from the intermediaries and escalate such issues to a government appointed body like Computer Emergence Response Team (CERT-In), to ensure uniformity in the blockings.
The ‘Information Technology (Intermediaries Guidelines) Rules, 2011 have been a topic of discussion from the moment it was notified last year.
In May this year, a motion for annulment of the rules was brought in the upper house of the Parliament. However, the motion was defeated after the Government gave an assurance on broader discussions.
Jacob’s petition originally filed in March was subsequently amended in August to incorporate various inputs received under the Right to Information Act, 2005.
Government of India is yet to file its statement in the Kerala High Court.
It is at this juncture that the Indian Music Industry (IMI) has come in support of one of these rules which were challenged in the petition.
IMI, in its petition for impleading which was filed on October 16th, has supported the much debated rule 3(4) of the ‘Information Technology (Intermediaries Guidelines) Rules, 2011.
Under rule 3(4) of ‘Information Technology (Intermediaries Guidelines) Rules, 2011, intermediaries are under a legal obligation to take down content within 36 hours of receipt of a complaint. The chilling impact of this provision was demonstrated by CIS last year.
IMI has stated that Rule 3(4) enables them to issue a direct notice to the Internet Service Providers (ISPs) to block the websites hosting pirated content. In support of the contention, IMI has cited orders received from the Kolkatta High Court, which allowed its application to direct all 388 ISPs to block 104 websites for hosting copyrighted content, without issuing notice.
Placing reliance on S.33 of the Copyright Act, IMI has demanded that the websites should take licenses from copyright societies to host copyrighted content, if not, the website should be blocked.
IMI has stated that if notice is issued to the website owner, they would shift their service to a different website. Therefore, there was no need to issue notice before blocking the same.
Incidentally, the website www.songs.pk which was thus blocked without issuing notice soon resurfaced as songspk.pk
The Music Industry’s petition comes at a time when the government is contemplating on the Copyright rules, 2012.
Rule 74 of the draft talks about a ‘take-down’ procedure. However, unlike the DMCA method, the rule does not contain a ‘counter-notice’ mechanism or liability for frivolous take-down requests.
Similar to the Information Technology (Intermediaries Guidelines) Rules, 2011, no public notice / transparency is envisaged in the take-down process.
According to the current draft, the publisher/ uploader remains unaware of the takedown. The ‘right to be notified’ of the take-down is missing in the rules.
To claim as a right the ‘put-back’ procedure under rule 74 (4), the publisher should be made aware of the take-down, which is exactly what Jacob’s petition calls for.
Another noteworthy aspect is that IMI has sought for blocking the entire website where pirated content resides.
Earlier the film industry procured John Doe orders and blocked several websites including video-sharing websites like Daily motion, torrent and piratebay.
The action enraged internet users and activists in the country. The internet hacktivist group ‘Anonymous's opIndia' expressed their fury by attacking the websites of the Indian Supreme Court, the All India Congress Committee, Copyrightlabs.in, the country's Department of Telecommunications, and the Ministry of Information Technology.
The position with respect to the John Doe orders issued was clarified by the Madras High Court stating that only specific URLs carrying the pirated content can be blocked, and not the entire website, which is again one of the reliefs claimed by Jacob in his petition.