In this article, Himanshi Srivastava of Amity Law School, Lucknow discusses the laws regarding blocking of website.
There are various laws which regulate the working of websites. These laws are meant to regulate the content of websites in order to maintain the peace and morality among the public. A wrong content of a website can mislead public, at large. The Information Technology Act, 2000 is the statute came to prevent the cyber crimes against public. There were lots of cases of cyber attack to the mass number of people, which made a need for the lawmakers to bring a separate law statute for the cyber crimes.
There are two laws which laid down the provision for blocking the Websites
- Information Technology Act, 2000 (Section 69 A)
- Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009
Information Technology Act, 2000
Section 69 A: Power to issue directions for blocking for public access of any information through any computer resource-
- Where the Central Government or any of its officer specially authorised by it in this behalf is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above, it may subject to the provisions of sub-section (2) for reasons to be recorded in writing, by order, direct any agency of the Government or intermediary to block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource.
- The procedure and safeguards subject to which such blocking for access by the public may be carried out, shall be such as may be prescribed.
- The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with an imprisonment for a term which may extend to seven years and shall also be liable to fine.
This Section can be read as:
The central government must have a designated officer “not below the rank of a Joint Secretary” for the aim of issuing direction for blocking under Section 69. Nodal officers receive complaints on behalf of central and state governments, and after assessment, forward these complaints to the designated officer. The grievance shall be examined by a Committee of government Personnel who initially have to build all affordable efforts to identify the originator or intermediary (hosting companies/ISPs/telecom operators/Social Media sites/publications) who has hosted the data. The intermediary will be asked to look before the committee within 48 hours. The committee will consider whether or not the request is covered by 69A, and if it is, the designated Officer must submit the recommendation to the Secretary, Department of IT, who will approve such requests, which will be sent to the intermediary to block.
In cases of emergency, the blocking might occur without any hearing, and therefore the designated Officer shall bring the interim direction to the committee.
A Review Committee shall meet a minimum of once in 2 months and record its findings on whether or not directions issued are in accordance with Section 69A(1)
Critical Analysis of Section 69 A
Section 69 of the IT Act provides the government the authority to intercept/monitor/decrypt data in special situations regarding with sovereignty, unity, friendly relations with foreign states,public disorder etc. Thus, this act places India in a category where it’s comparatively easy for a govt. to get access to data, unlike US that has high restrictions on data access . The recent spat in US between Apple and Federal Bureau of Investigation over user privacy vs security has some lessons for India .
Lessons for data protection standards
India presently has low data protection standards. This has serious security and economic consequences :
- Low data protection standards compromises the privacy and security standards of the users,
- This discourages companies like Apple, that are believed to ensure high data protection, to produce in Indian markets,
- Also, this offers a legal opportunity to several Indian based mostly firms to produce lower security devices by lowering their prices. This creates a negative competitive atmosphere where the businesses that ensure ignore greater security face a drawback.
- Low encryption standards for ISPs makes them a lot of vulnerable to cyber attacks,
Thus, India needs to adopt high encryption standards.
Lessons for data access standards
Section 69 provides govternment the power to access data under certain conditions. This discourages investors, puts users security in danger and conjointly provides a chance to state to misuse the provision.
Thus, India has to achieve a balance in setting data standard furthermore as its use for interception if needed under special circumstances by amending the specific provisions under the IT Act and bringing a comprehensive encryption policy.
Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009
In exercise of the powers conferred by clause (z) of sub-section (2) of section 87, to be read with sub-section (2) of section 69A of the Information Technology Act 2000, the Central Government hereby makes the following rules:
Blocking of information in cases of emergency
- Notwithstanding anything contained in rules 7 and 8, the Designated Officer, in any case of emergency nature, for which no delay is acceptable, shall examine the request and printed sample information and consider whether the request is within the scope of sub-section (1) of section 69A of the Act and it is necessary or expedient and justifiable to block such information or part thereof and submit the request with specific recommendations in writing to Secretary, Department of Information Technology.
- In a case of emergency nature, the Secretary, Department of Information Technology may, if he is satisfied that it is necessary or expedient and justifiable for blocking for public access of any information or part thereof through any computer resource and after recording reasons in writing, as an interim measure issue such directions as he may consider necessary to such identified or identifiable persons or intermediary in control of such computer resource hosting such information or part thereof without giving him an opportunity of hearing.
- The Designated Officer, at the earliest but not later than 48 hours of issue of direction under sub-rule (2), shall bring the request before the committee referred to in rule 7 for its consideration and recommendation.
- On receipt of recommendations of committee, Secretary, Department of Information Technology, shall pass the final order as regard to approval of such request and in case the request for blocking is not approved by the Secretary, Department of Information Technology in his final order, the interim direction issued under sub-rule (2) shall be revoked and the person or intermediary in control of such information shall be accordingly directed to unblock the information for public access.
Process of order of court for blocking of information
In case of an order from a competent court in India for blocking of any information or part thereof generated, transmitted, received, stored or hosted in a computer resource, the Designated Officer shall, immediately on receipt of certified copy of the court order, submit it to the Secretary, Department of Information Technology and initiate action as directed by the court.
Expeditious disposal of request
The request received from the Nodal Officer shall be decided expeditiously which in no case shall be more than seven working days from the date of receipt of the request.
Action for non-compliance of direction by an intermediary
In case the intermediary fails to comply with the direction issued to him under rule 9, the Designated Officer shall, with the prior approval of the Secretary, Department of Information Technology, initiate appropriate action as may be required to comply with the provisions of sub-section (3) of section 69A of the Act.
Intermediary to designate one person to receive and handle directions
- Every intermediary shall designate at least one person to receive and handle the directions for blocking of access by the public any information generated, transmitted, received, stored or hosted in any computer resource under these rules.
- The designated person of the Intermediary shall acknowledge receipt of the directions to the Designated Officer within two hours on receipt of the direction through acknowledgement letter or fax or e-mail signed with electronic signature.
Is Section 69 A of IT Act unconstitutional?
In Shreya Singhal vs Union of India case , Supreme court while declaring Section 66A of IT Act had kept 69A which deals with blocking the content of websites if their content harms the security and integrity of India, public order and friendly relation with other countries. However Supreme Court gave 3 guidelines to restrict the misuse of this section: The central government can resort to this section if it is fully satisfied that it is necessary to do; can be done only in cases set out in Article 19(2) of constitution; these reasons should be recorded in writing so that can be assailed in writ petition.
It is not unconstitutional, because it may be used in cases prescribed in constitution, it provided a lot of freedom to centre to misuse the provision and thereby against the spirit of freedom of expression included in constitution. The misuse arises from overall non-transparent nature to choose the character of content of a website. Procedure for approval is provided in the act itself involving senior official from ministry of law and justice, home affairs, information and broadcasting and Computer Emergency response Team of India. But the procedure can be bypassed in case of emergency. These emergency situations are not defined by the act.
Rather than clear reasons, government is more inclined to use broad terms like national security. In the face of these terms it can restrict the honest criticisms posted on a site against and disagreement with government and its policies. The cases of banning books in the name of harming culture can be used against the sites also. Also it did not opportunity to the originator to put her point or withdraw the content from website. Content on one page can be used to block the full site.
The growing use of internet for dissemination of information is a potential tool to spread information which have potential to damage the nation. But options to restrict these contents should be used in genuine cases and with proper procedure followed. Restricting criticism and research should not be part of project. Section 69A though not unconstitutional but can be arbitrarily used.The necessity is to provide transparency by putting info regarding blocking and therefore the reason for blocking in clear terms in public space in order that can be scrutinized by civil society and therefore the originator of content for further action.
Section 69A of the IT Act deals with the blocking of internet sites which might cause problems of national sovereignty unity and integrity. India being a rustic with non secular, cultural, ethnic, linguistic, social diversities there might be problems of each internal and external threats which will disrupt the prevailing peaceful and harmonious setup of the country. thus in the interest of the national sovereignty and integrity there’s a necessity to keep up laws like Section 69A of IT act and in no manner that’s unconstitutional.
The incidents of propagating hate speech, promoting communal dissonance, raising rumours etc are being done by anti social elements and from time to time by some sections within society for partisan gains. it is the duty of the state to protect the government to guard the people societies against such acts as they might create violence, insecurity. further with the exaggerated usage of social media the chance of such incidents has raised. terrorism is one in all major threats to the country and world nowadays and banning such websites that promote it is a must for the peace. different areas of potential threat to society are communalism and regionalism, child pornography, Naxalism etc and promotion of them through websites etc is prohibited in the interest of the state and law like Section 69A could be a need for promoting peace, diversity, integrity and holistic development of the country.
 AIR 2015 SC 1523