The new IT rules 2011 notified by the government last month have become a subject of criticism not only from civil society organisations on privacy concerns but also from the industry for making the intermediaries liable for the user-posted content.

The department of information technology (DIT) in exercise of the powers conferred by clause (zg) of subsection (2) of section 87 read with sub-section (2) of section 79 of the Information Technology Act, 2000, has framed these rules. Section 79 authorises the government to define due diligence which an intermediary needs to follow while offering services but the government has gone far beyond that.

As per the new rules the intermediary has to inform the users not to host, display, upload, modify, publish, transmit, update or share any information that belongs to another person; 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; harm minors in any way; infringes any patent, trademark, copyright or other proprietary rights; violates any law for the time being in force; deceives or misleads the addressee about the origin of messages; impersonate another person; contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource; 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.

Further, the intermediaries have to appoint a grievance officer who can look into complaints on above parameters. These intermediaries have to remove a comment within 36 hours in case of complaint. In this case the user content generator will suffer as the intermediary will not give him opportunity to present his point of view and remove the content within 36 hours on individual complaint as per the new IT rules. 

The language of these rules (for example, a phrase like ‘objectionable content’) is open to widespread interpretation and put a huge responsibility on the intermediary. The rules, some argue, go against the fundamental right of freedom of speech and expression. It will also increase compliance cost of industry and for intermediaries like Google, Rediff, Facebook, Yahoo, Twitter, YouTube, eBay, newspaper websites, matrimonial websites and so on. The information flow is so huge that it is practically impossible for the intermediary to monitor it. Also the user content has to be removed within 36 hours of complaint without listening to the user point-of-view will harm freedom of speech and expression.

The intermediaries are just providing a platform for users to post their views and holding them responsible for third party contents may not be in best interests of free speech.