Regulations under the IT Act

IN Resources | 14/09/2012
1) Which laws regulate content on the internet in India?
Online content, whether on the Internet or in mobile media, is regulated through the Information Technology Act 2000 (amended in 2008) and the rules formulated under the act. Besides, other laws governing content in all media include provisions (including those for defamation, incitement to offence, obscenity etc) in the Indian Penal Code, the Cinematograph Act, the Copyright Act, the Broadcasting Regulations, the advertising code, etc.
 
2) Who is an intermediary?
An intermediary, with respect to any particular electronic records, is defined as any person, who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes
 
Telecom service providers (companies like Airtel or Vodafone that provide mobile wireless communication and mobile internet)
 
Network service providers (companies like …. that providesbackbone services to an Internet Service provider and used by web users for access to the Internet)
 
Internet service providers (companies like MTNL, Airtel that provide Internet access services) 
 
Web hosting service providers (companies like godaddy.com, bigrock.com that rent their server space for people to host their websites
 
Search engines (companies like Google.com, Bing.com that help user search information on the web by providing links to the sites providing information.
 
Online payment sites (websites like Paypal.com that authorise and facilitate monetary transactions online)
 
Online auction sites (websites like ebay.in that offer bidding services)
 
Online market places (e-commerce sites like Flipkart.com)
 
Cyber cafes
 
3) What role do intermediaries play in the regulation of content?
Intermediaries are expected to lay down terms and conditions governing Internet use, so as to exhibit their due diligence. Due Diligence refers to adequate steps taken by a person as expected by the law in a given situation. An intermediary is supposed to inform their users as a part of the user agreement several clauses under which a user is not supposed to upload, store, display, modify, publish, transmit or share content.
 
4) What happens ifa complaint is made against content on my site?
A blog host (the intermediary) will receive a complaint made against the content of your site. The intermediary is expected to take down the content within 36 hours. If they fail to do so, then they will be liable to legal action, if the case is taken to the court. The intermediary might choose to inform you or might put up a notice on your page citing the reason.
 
5) If the intermediary does not adhere to the take down notice within the stipulated 36 hours, what will they be liable for?
The entire onus for the takedown of the website is on the intermediary instead of the person who is responsible for uploading the content. If the intermediary fails to take down the content within the stipulated 36 hours, then according to 69 a (3) of the IT Amendment Act, the intermediary may be punished with an imprisonment ranging up to maximum of seven years with a fine.
 
6) What kind of online content is considered objectionable under the IT Act, 2000?
Under Sec 79 (3) (2) of the rules framed under the amended IT Act, 2000, intermediaries must observe due diligence to see that all content that:
(a) belongs to another person and to which the user does not have any right to;
(b) is grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, paedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever;
(c) harm minors in any way;
(d) infringes any patent, trademark, copyright or other proprietary rights;
(e) violates any law for the time being in force;
(f) deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;
(g) impersonate another person;
(h) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource;
(i) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation.
 
7) What happens when someone is offended by your content and files a complaint with your Internet Service Provider? What is the process of operation?
If a person is ‘offended’ by your content, s/he will first sent a written complaint with an electronic signature (link to glossary for definition) to the intermediary (link to the glossary for definition), which is the blog host or the free blog hosting sites. The intermediary has to ensure that the ‘offensive’ content is taken down within 36 hours. By doing this, the intermediary guarantees him/her self protection from legal liability that may arise from legal action related to the case.
 
8) If a complaint is made against content on my site, what is my next step?
If a complaint is made against the content of your site, the intermediary i.e. the blog host will receive the complaint. They are supposed to take down the content within 36 hours. If they fail to do so, then they will be liable to legal action, if the case is taken to the court. The intermediary might choose to inform you or might put up a notice on your page citing the reason.
 
9) If the intermediary does not adhere to the take down notice within the stipulated 36 hours, what will they be liable for?
The entire onus for the takedown of the website is on the intermediary instead of the person who is responsible for uploading the content. If the intermediary fails to take down the content within the stipulated 36 hours, then according to 69 a (3) of the IT Amendment Act, the intermediary may be punished with an imprisonment ranging up to maximum of seven years with a fine.
 
10) Under what clause of the IT Amendment Act 2008, can your website be monitored, intercepted or decrypted?
The Central Government may direct any agency including the intermediary to intercept, decrypt and monitor websites if it suspects of any website, social network violation of article 69 (1) of the Act.
According to 69 (1) of the IT Amendment Act, 2008, officers specifically authorised by Central government can block a site if they are satisfied that it is necessary to do so in the interest of sovereignty and integrity of India, security and defence of the country, friendly relations with foreign states, public order or to prevent incitement to the commission of cognizable offence. The reasons for initiating the monitoring, decrypting and intercepting of the site have to be recorded in writing.
 
11)What are clauses under which a site can be blocked?
If the Government officials find that the concerned website is found in violation of provisions of 69 (1) of the act, then they can block the web site under section 69 A (1) of the Act. According to 69 (A) (1) of the IT Amendment Act, 2008, officers specifically authorised by Central government can block a site if they are satisfied that it is necessary to do so in the interest of sovereignty and integrity of India, security and defence of the country, friendly relations with foreign states, public order or to prevent incitement to the commission of cognizable offence. 
 
12)How does one know that their site is blocked?
In the past, when someone has tried to access a blocked website, there is a message on the main page of the website informing that the website was blocked as per the request of Department of Telecom. However, there is no additional information explaining the reasons for the block. Some organisations have also found out list of sites that were blocked by filing an RTI application.
 
13)What is the administrative mechanism for blocking a site?
A complaint sent to a Nodal officer can only be forwarded to a Designated Officer after it has the approval of the Chief Secretary of the concerned State or Union territory. Then the request is looked into by a Committee, which has a Designated Officer as its chairperson, and representatives not below the rank of Joint Secretary in the Ministries of Law and Justice, Home Affairs, Information and Broadcasting and the Indian Computer Emergency Response Team. An order can be issued by the Secretary (Department of IT) to intermediaries (ISP), via the designated officer, to block access to the sites[1].
 
However, in case of an emergency, the Designated Officer can expedite the blocking of any site by submitting a specific recommendation to the Secretary, Department of Information Technology, though this will have to be examined by a committee within 48 hours. The other instance is in case a court issues orders blocking of certain information on the web[2].
 
14) How will I get to know if my site is being monitored or intercepted?
You won’t.
 
15) How can I ‘unblock’ my site?
The IT Act has not laid down any provisions by which this can be done. However, you will need to write to your web host or service provider to find out why the site was blocked. Then, you can challenge it in a court of law.
 
16) What are blogs, blog-posts, bloggers?
Usually a blog is a shared online journal where users can post diary entries about their personal experiences and hobbies.
 
According to the IT Rules, a blog means a type of website, usually maintained by an individual with regular entries of commentary, descriptions of events, or other material such as graphics or video. 
 
A blog post is a separate entry or article made on a periodic basis.
 
A blogger means a person who keeps and updates a blog on a periodic basis.
 
17) If you have written a report or a blog post that has received comments that are considered ‘offensive’, who is responsible for this?
The blog owner is responsible for the comments on his/her blog. The responsibility also extends to the websites offering free blogging services or the blog hosts.
 
The intermediary is solely responsible for taking down content.
 
If a report elicits comments that are deemed offensive, then the web editor, the reporter, the publisher of the website (if any) will be held primarily responsible and a suit can be filed against them even after takedown of the content.
 
18) Can a blogger get away with a disclaimer that the comments on his/her blog do not belong to him/her and belong to that of the person who has commented?
No. If you blog elicits comments, you are considered an intermediary[3]. A disclaimer may provide limited protection if it establishes that ‘due diligence’ was taken to show that comments are not endorsed by the blog-owner. Besides, the blog owner or a website owner will have to remove the ‘offensive’ comments within 36 hours if there are any complaints as part of due diligence.
 
19) Is moderation of comments mandatory for a blog owner or website owner?
No. Moderation of comments is not mandatory for a blog/website owner. But remember that comments on a site are also the responsibility of the blog owner.
 
20) If you own the domain for a site, does that give you more legal protection over your content than if you use space offered by free platforms like Wordpress or Blogger?
No, owning a domain for a site does not give you any special protection over your data in comparison to having your content hosted on free platforms like Wordpress or Blogger. Usually the web-hosts end up being served notices to take down content on the websites hosted by them. 
 
21) In which court of law or forum can I defend myself if a complaint is lodged against content on my site or blog?
Currently, under the IT Act, there is no provision or forum for you to challenge a complaint or a take down notice. You will have to take down the content within 36 hour of receipt of the complaint and then challenge it in a court of law.
 
22) Can one blog anonymously?
Yes, you can blog anonymously. But your content is as vulnerable of takedown as any other.


[3] An intermediary is defined as any person, who on behalf of another person receives, stores or transmits that records or provides any service with respect to that record and includes Telecom service providers, network service providers, Internet service providers (ISP), Web hosting service providers, Search engines, Online payment sites, Online auction sites, Online market places and Cyber cafes.
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