Recipe for killing internet in India
Times of India
TNN
NEW DELHI: There is a clear and present danger to
internet in India. If the recommendations of the
parliamentary standing committee were to go through,
you might as well pull the shutters down on the net in
the country, because the committee seeks to raise the
liability of internet service providers for
any third party content in a manner that it will
become difficult to run the service and stay away from
jail.
This isn't an exaggeration. Over 85% of internet deals
with third party content. This includes search
engines, mail services, messengers, blogs,
communication
and community sites. If they were to be held
responsible for the sites searched, mails sent, blogs
filed or scraps on community sites then service
providers
would be hauled up by the police for acts they are not
even faintly responsible for.
Why, then, is the committee proposing this insanity?
The answer is simple the committee has failed to
understand the internet. Frankly, there's no
difference
between the phone and the postal service and the net
it's just that one delivers voice or post and the
other data. Both deal with third party content
which is impossible to verify.
How would a mail service know, for instance, if two
friends exchange copyright material? Or, how would a
search engine track if someone accesses sites
spreading hatred, or worse, promoting terror? It's all
out there the responsibility of who fetches what
should be that of the individual, not the service
provider. Therefore, what the standing committee is
seeking to do is something like making a postal
service responsible for every mischievous mail it
delivers
perhaps by a drug dealer giving details of a
consignment or a student sending photocopies of a book
and hence infringing on copyright. Or, something
like making a phone service, such as MTNL or BSNL,
responsible for every bit of dirty talk or criminal
conspiracy over its wires.
Perhaps the committee is confusing internet with media
like TV or print. In the latter, content is either
self-generated or by designated news or TV agencies.
The content goes through several layers of vetting and
checks. This is not true of internet sites that
provide mail service, aggregation of communities,
picture sharing, etc. This is possibly why in its
report last month on the Information Technology
(Amendment) Bill 2006, the committee headed by
Congress
MP Nikhil Kumar has called upon the government to
abandon the proposal to reduce the liability of
service providers or intermediaries in the wake of
industry
outrage over the 2004 arrest of Baazee.com's CEO for
the auction of a CD containing an infamous student
porn MMS.
The bone of contention is Section 79 of the IT Act
2000 which says that no service provider shall be
liable for any third party information if he proves
that the offence was committed "without his knowledge
or that he had exercised all due diligence" to prevent
the commission of such contravention.
Since the existing safeguard failed to save Baazee.com
CEO Avnish Bajaj from being subjected to the ignominy
of arrest and detention, the government sought
to reduce the liability further in its 2006 Bill. The
Bill raises the bar for taking action against ISPs by
stipulating that they are not liable unless
it is proved that they have conspired or abetted in
the commission of the unlawful act.
T his is really how the law is in both Europe and in
the US. To the industry here, the proposed amendment
seemed a fair safeguard. But the standing committee,
far from endorsing the change, has recommended that
the existing Section 79 should be strengthened by
casting "a definite obligation" on the service
providers
to ensure that the third party information was within
the parameters of the law especially because "it is
very difficult to establish conspiracy or abetment"
on their part.
The committee also took objection to the Bill's
proposal to relieve the service providers of the
burden of demonstrating that they had exercised due
diligence
to prevent the third parties from misusing online
market places and auction sites. "The committee are of
the firm opinion that if explicit provisions about
blocking of objectionable material through various
means are not codified, expecting self-regulation from
the intermediaries, who basically work for commercial
gains (sic), will just remain a pipedream," it said.
For all its efforts to make out a case for increasing
the liability of service providers, the committee
glossed over the fact that the Bill was in tune
with the approach adopted by advanced countries that
have given sufficient thought before framing their
Internet laws. Take, for instance, the relevant
law in the European Union. It says that a service
provider storing third party information is liable to
criminal action only when he "by intent is storing
illegal information or assisting in illegal
activities."
What is even more contrary to the committee's report
is the express clarification in the European law that
its provisions "do not impose a general obligation
on service providers to monitor the information, which
they transmit, or store on the request of a recipient
for the service, nor a general obligation
to seek facts or circumstances indicating illegal
activities." Similarly, in the US, both courts and
legislation broadly seek to reduce the liability of
service providers on charges such as copyright
infringement and defamation.
The Digital Millennium Copyright Act, for instance,
spells out the criteria for establishing liability and
makes it difficult to sue service providers
vicariously for copyright infringement committed by
third parties. So, which way should Indian laws go?
The way the advanced countries have gone, or in
accordance with the wishes of some misinformed MPs
that would spell the death of Internet in India?
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