Leading cyber lawyers have warned that total lack of clarity in the rules pertaining to social networking sites/intermediaries was harming e-commerce in the country and could impact financial viability and future investments in Net firms.

Calls have also grown stronger for amending the Information Technology Act (IT Act) to bring it in sync with the growing Internet usage, especially to tackle cases such as the one against social networking sites, including Facebook and Google.

On Friday, the Government submitted before a Delhi Metropolitan Magistrate court its sanction to prosecute Internet companies such as Facebook, Google, YouTube, Yahoo, Microsoft and Orkut on a complaint against them for allegedly allowing objectionable content on their Web sites. The court has asked the accused firms to appear before it on March 13.

Lawyers have questioned the wording of the Information Technology (Intermediaries Guidelines), Rules, 2011, notified under Section 79 of the IT Act.

“These Rules have many inconsistencies and have led to multiple interpretations. It is time that the rules are completely redrafted. Or else, it can have an impact on investments into Net firms and the financial viability of Internet companies,” Mr Apar Gupta, Partner at law firm Advani & Co, told Business Line.

‘Unlawful' content

For instance, Rule 3 (2) specifies conditions under which a Web site can be asked to remove certain content.

But these conditions do not define offences clearly and since they are generalised, it can be used to curb freedom of speech and expression, Mr Gupta said.

Also, Rule 3 (4) states that the intermediary, on whose computer system the information is stored or hosted or published, can be asked to ensure that the ‘unlawful' content is removed within 36 hours of the notice given to it.

Mr Gupta wonders how the intermediary companies can come to the conclusion in just 36 hours as to the legality of the content, give opportunity to the user/owner of the ‘unlawful' content to explain their stand and then remove them.

Efforts are on by civil society to ensure that these Rules are referred to the Parliamentary Committee on subordinate legislation to ensure that it is not violative of the rights granted by the Constitution of India as well as the IT Act.

The IT Act was passed in 2000 and was amended once only in 2008, that too only to make some cosmetic changes. Besides, the amendments also made a majority of the cyber crimes bailable.

As a result, there has been no conviction after 2008, and many companies are wilfully violating the law, cyber law expert Mr Pavan Duggal, told Business Line.

“None of the amendments made so far pertain to social networking sites,” he says, highlighting that social media converts every single user to a publisher or a broadcaster.

“Therefore, the law needs to be clearer as to what are the rights and obligations/duties of these new set of publishers/broadcasters, as they are not traditional broadcasters. Also, there is a need to incorporate the various crimes that are committed using social networking sites,” he said.

Besides, the law has to appropriately address issues pertaining to privacy and data protection, Mr Duggal said.

He said until the law makes a majority of cyber/social networking crimes non-bailable offences and provide stringent punishment, it will be difficult to effectively enforce the law.

arun.s@thehindu.co.in

(This article was published on January 14, 2012)
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