I received a few queries recently on the law regarding blocking of websites and remedies under the law against blocking. These queries were in the wake of the government's recent directions to block twitter handles of prominent journalists and commentators who were critical of the government's policies. I had an opportunity to address the issue in another forum last month. This post reiterates the broad points addressed by me in that forum.
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Under the Constitution, the Government cannot muzzle free speech except if a reasonable restriction is imposed in order to preserve the sovereignty and integrity of the country, national security, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence (Article 19(2) of the Constitution)
MECHANISM UNDER THE IT ACT TO BLOCK WEBSITES
Below is Section 69A of the Information Technology Act, 2000, which was inserted in the Act through the Information Technology (Amendment) Act, 2008 (available here):
“69A. (1) 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.
(2) 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.
(3) 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 also be liable to fine.”
A reading of Sub-section (1) of Section 69 informs us that the provision may be invoked to preserve public order or to prevent incitement to the commission of any cognizable offence which relates to the areas mentioned in the provision.
The procedure for blocking of websites referred to in Sub-section (2) of Section 69 was notified in October 2009. This was called Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules, 2009 (available here).
In cases of emergency, the Govt may invoke Rule 9 of the Blocking Rules which is titled “Blocking of Information in cases of Emergency”.
Under Rule 9, a request is made by any govt department or agency to the Designated Officer (click the hyperlink to check the relevant notification on Designated Officer) under the Rules asking for blocking of information. The Designated Officer evaluates the request and forwards it to Secretary of the Department of Information Technology with his recommendations.
Upon receipt of the request and recommendations from the Designated Officer, if the Secretary, DIT is of the opinion that the information must be blocked, he issues an appropriate interim order to an intermediary such as an internet service provider or web-hosting service provider. The interim order could be to block the website/information which is deemed harmful.
Critically, under the Rules, Neither the intermediary nor the owner of the information/website needs to be heard before the interim order for blocking is issued.
Within 48 hours of the interim order directing blocking of the website, the Designated Officer must place the request for blocking of the website for final determination before a Committee consisting of the Designated Officer, representatives from Law Ministry, Home Affairs and Information & Broadcasting and the Indian Computer Emergency Response Team.
In the meantime, the Designated Officer must issue notice to the intermediary against whom the interim order was passed, giving the intermediary at least 48 hours from the receipt of the notice to appear before the Committee.
The Committee considers the defense/reply offered by the intermediary with respect to the blocked information, after which the Committee forwards its recommendations to the Secretary, DIT. Based on the recommendations, the Secretary may issue final orders for blocking of the information.
This, in a nutshell, is the procedure the Govt is expected to follow when a website is blocked in cases of emergency.
HOW CAN INTERMEDIARIES/WEBSITES CHALLENGE THE BLOCKING OF INFORMATION?
Under the Information Technology Act, there is a Cyber Appellate Tribunal which sits in appeal over certain orders passed under the Act. Section 57 of the Act tells us which orders may be appealed before the Tribunal. However, an order under Section 69A does not appear to fall within Section 57.
Simply put, there does not appear to be a provision for appeal before the Tribunal against orders of blocking of information passed under Section 69A. The only option that aggrieved intermediaries or websites have is to approach High Courts challenging the decision of the Secretary, DIT in a Writ Petition filed under Article 226 of the Constitution.
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