Guest Post: Evaluating MIB’s emergency blocking power under Rule 16 of the 2021 IT Rules (Part II)

This post is authored by Dhruv Bhatnagar

Part I of this two part-series examined the contours of Rule 16 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“2021 IT Rules”), and the  Bombay High Court’s rationale for refusing to stay the rule in the Leaflet case. This second part examines the legality and constitutionality of Rule 16. It argues that the rule’s constitutionality may be contested because it deprives impacted content publishers of a hearing when their content is restricted. It also argues that the MIB should provide information on blocking orders under Rule 16 to allow them to be challenged, both by users whose access to information is curtailed, and by publishers whose right to free expression is restricted.

Rule 16’s legality

At its core, Rule 16 is a legal provision granting discretionary authority to the government to take down content. Consistently, the Supreme Court (“SC”) has maintained that to be compliant with Article 14, discretionary authority must be backed by adequate safeguards.^[1] Admittedly, Rule 16 is not entirely devoid of safeguards since it envisages an assessment of the credibility of content blocking recommendations at multiple levels (refer Part I for context). But this framework overlooks a core principle of natural justice – audi alteram partem (hear the other side) – by depriving the impacted publishers of a hearing.

In Tulsiram Patel, the SC recognised principles of natural justice as part of the guarantee under Article 14 and ruled that any law or state action abrogating these principles is susceptible to a constitutionality challenge. But the SC also found that natural justice principles are not absolute and can be curtailed under exceptional circumstances. Particularly, audi alteram partem, can be excluded in situations where the “promptitude or the urgency of taking action so demands”.

Arguably, the suspension of pre-decisional hearings under Rule 16 is justifiable considering the rule’s very purpose is to empower the Government to act with alacrity against content capable of causing immediate real-world harm. However, this rationale does not preclude the provision of a post-decisional hearing under the framework of the 2021 IT Rules. This is because, as posited by the SC in Maneka Gandhi (analysed here and here), the “audi alteram partem rule is sufficiently flexible” to address“the exigencies of myriad kinds of situations…”. Thus, a post-decisional hearing to impacted stakeholders, after the immediacy necessitating the issuance of interim blocking directions had subsided, could have been reasonably accommodated within Rule 16. Crucially, this would create a forum for the State to justify the necessity and proportionality of its speech restriction to the individuals’ impacted (strengthening legitimacy) and the public at large (strengthening the rule of law and public reasoning). Finally, in the case of ex-facie illegal content, originators are unlikely to avail of post-facto hearings, mitigating concerns of a burdensome procedure.       

Rule 16’s exercise by MIB

Opacity

MIB has exercised its power under Rule 16 of the 2021 IT Rules on five occasions. Collectively, it has ordered the blocking of approximately 93 YouTube channels, 6 websites, 4 Twitter accounts, and 2 Facebook accounts. Each time, MIB has announced content blocking only through press releases after theorders were passed but has not disclosed the actual blocking orders.

MIB’s reluctance to publish its blocking orders renders the manner it is exercising power under Rule 16 opaque. Although press statements inform the public that content has been blocked, blocking orders are required (under Rule 16(2) and Rule 16(4)) to record the reasons for which the content has been blocked. As discussed above, this limits the right to free expression of the originators of the content and denies them the ability to be heard.

Additionally, content recipients, whose right to view content and access information is curtailed through such orders, are not being made aware of the existence of these orders by the Ministry directly. Pertinently, the 2021 IT Rules appear to recognise the importance of informing users about the reasons for blocking digital content. This is evidenced by Rule 4(4), which requires ‘significant social media intermediaries’ to display a notice to users attempting to access proactively disabled content. However, in the absence of similar transparency obligations upon MIB under the 2021 IT Rules, content recipients aggrieved by the Ministry’s blocking orders may be compelled to rely on the cumbersome mechanism under the Right to Information Act, 2005 to seek the disclosure of these orders to challenge them.   

Although the 2021 IT Rules do not specifically mandate the publication of blocking orders by MIB, this obligation can be derived from the Anuradha Bhasin verdict. Here, in the context of the Telecom Suspension Rules, the SC held that any order affecting the “lives, liberty and property of people” must be published by the government, “regardless of whether the parent statute or rule prescribes the same”. The SC also held that the State should ensure the availability of governmental orders curtailing fundamental rights unless it claims specific privilege or public interest for refusing disclosure. Even then, courts will finally decide whether the State’s claims override the aggrieved litigants’ interests.

Considering the SC’s clear reasoning, MIB ought to make its blocking orders readily available in the interest of transparency, especially since a confidentiality provision restricting disclosure, akin to Rule 16 of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (“2009 Blocking Rules”), is absent in the 2021 IT Rules.   

Overuse

Another concerning trend is MIB’s invocation of its emergency content-blocking power as the norm rather than the exception it was meant to be. For context, the 2021 IT Rules provide a non-emergency blocking process under Rules 14 and 15, whereunder impacted publishers are provided a pre-decisional hearing before an Inter-Departmental Committee required to be constituted under Rule 13(1)(b). However, thus far, MIB has exclusively relied on its emergency power to block ostensibly problematic digital content, including fake news.

While the Bombay High Court in the Leaflet case declined to expressly stay Rule 14 (noting that the Inter-Departmental Committee was yet to be set up) (¶19), the High Court’s stay on Rule 9(3) creates a measure of ambiguity as to whether Rules 14 and 15 are currently in effect. This is because Rule 9(3) states that there shall be a government oversight mechanism to “ensure adherence to the Code of Ethics”. A key part of this mechanism is the Inter-Departmental Committee whose role is to decide “violation[s] or contravention[s] of the Code of Ethics” (Rule 14(2)). The High Court even notes that it is “incomprehensible” how content may be taken down under Rule 14(5) for violating the Code of Ethics (¶27). Thus, despite the Bombay High Court’s refusal to stay Rule 14, it is arguable that the High Court’s stay on the operation of Rule 9(3) to prevent the ‘Code of Ethics’ from being applied against online news and curated content publishers, may logically extend to Rule 14(2) and 15. However, even if the Union were to proceed on a plain reading of the Leaflet order and infer that the Bombay High Court did not stay Rules 14 and 15, it is unclear if the MIB has constituted the Inter-Departmental Committee to facilitate non-emergency blocking.     

MeitY has also liberally invoked its emergency blocking power under Rule 9 of the 2009 Blocking Rules to disable access to content. Illustratively, in early 2021 Twitter received multiple blocking orders from MeitY, at least two of which were emergency orders, directing it to disable over 250 URLs and a thousand accounts for circulating content relating to farmers’ agitation against contentious farm laws. Commentators have also pointed out that there are almost no recorded instances of MeitY providing pre-decisional hearings to publishers under the 2009 Blocking Rules, indicating that in practice this crucial safeguard has been rendered illusory.  

Conclusion

Evidently, there is a need for the MIB to be more transparent when invoking its emergency content-blocking powers. A significant step forward in this direction would be ensuring that at least final blocking orders, which ratify emergency blocking directions, are made readily available, or at least provided to publishers/originators. Similarly, notices to any users trying to access blocked content would also enhance transparency. Crucially, these measures would reduce information asymmetry regarding the existence of blocking orders and allow a larger section of stakeholders, including the oft-neglected content recipients, the opportunity to challenge such orders before constitutional courts.

Additionally, the absence of hearings to impacted stakeholders, at any stage of the emergency blocking process under Rule 16 of the 2021 IT Rules limits their right to be heard and defend the legality of ‘at-issue’ content. Whilst the justification of urgency may be sufficient to deny a pre-decisional hearing, the procedural safeguard of a post-decisional hearing should be incorporated by MIB.

The aforesaid legal infirmities plague Rule 9 of the 2009 Blocking Rules as well, given its similarity with Rule 16 of the 2021 IT Rules. The Tanul Thakur case presents an ideal opportunity for the Delhi High Court to examine and address the limitations of these rules. Civil society organisations have for years advocated (here and here) for incorporation of a post-decisional hearing within the emergency blocking framework under the 2009 Blocking Rules too. Its adoption and diligent implementation could go a long way in upholding natural justice and mitigating the risk of arbitrary content blocking.

---

^[1] State of Punjab v. Khan Chand, (1974) 1 SCC 549; Virendra v. The State of Punjab & Ors., AIR 1957 SC 896; State of West Bengal v. Anwar Ali, AIR 1952 SC 75.

We are not a totalitarian state and cannot be asked to moral police: AG tells SC in the Porn Petition

The Kamlesh Vaswani matter that has asked the Court to direct the Government to block all pornography over the Internet and was used conveniently by the Government to order the disablement of over 850 website last week came up before the bench headed by the Chief Justice today.

Image: https://lmindia2.global.ssl.fastly.net/sites/lovematters_india/files/styles/medium/public/field/image/porn_dos_and_donts.jpg?itok=u2h406Wf

Mr. Mukul Rohatgi, the Attorney General of India represented the Union along with ASG Ms. Pinky Anand. He stated that after the last hearing the petitioners gave a list of 857 websites to the Government, which were blocked by the Department without any verification. Subsequently, the Department verified the list and then asked the Internet Service Providers to only block websites with child porn.

He said that if someone wants to watch porn in the confines of their bedroom how can we interfere. He subsequently stated that there are various kinds of pornography- hard-core, soft, violent porn. At this juncture the Chief Justice quipped ‘Mr. Rohatgi how do you know all this’, to which the AG replied ‘your lordship I have not watched it, but I do plan to, since that is the only way to understand the concerns, moreover my juniors are very tech savy’. He also stated that pornography is a grey area and there are no straight answers.

The AG argued that the geographical frontiers are no frontiers on the Internet and it is a borderless space, and it is very difficult to block anything on it. He said that if we block ten sites another five would pop up with new names at new locations.

He again reiterated that if someone wants to watch this in the privacy of their bedroom, the state cannot be a moral police or enter peoples bedrooms. He added that there are issues of freedom of speech and expression under article 19(1)(a) involved in the case.

The AG stated that the Government is committed to Internet freedom and has launched the ambitious Digital India project, which aims to connect crores of people to the Internet. He added that the MyGov website is becoming the converging point of lots of people to send ideas to the Government and connect with it.

He stated that the petitioner’s argument that the law as it stands today is ineffective and thus unconstitutional is not a valid argument. He cited an example of a case of customs officers in Mumbai who were booked as they were watching porn within a bungalow and the High Court acquitted them, as that is not an offence. He stated that the case is pending before the Supreme Court.

The AG submitted that there is no doubt that child porn has to be banned and the Government will make every effort to do that. However, he added that effective banning on the Internet is very difficult. He also stated that sites these days pick up profiles of the surfer and then the person gets targeted advertising, which the Government cannot block and we are not willing to take up the mantle of moral policing.

He stated that as of today our position is that child porn needs to be banned, beyond that if someone gives us a site which has child porn we will block it or block sites based on court orders as laid down in Shreya Singhal. Beyond that this issue is a larger debate, which can happen in court or outside it in Parliament or in the society.

At this point Mr. Vaswani’s lawyer, Vijay Panjwani stated that a criminal activity is a criminal activity whether in public or in private and transmission of pornography is a criminal activity, which the ISPs are doing. He added that we have the technology to block these sites, parties including people from Banaras Hindu University have filed affidavits in the case stating the same. He said that there is a seven-years imprisonment for anyone transmitting absence content under the Information Technology Act, but we are not even asking for that, we are just asking for the sites to be blocked.

The Attorney General interrupted at this point and stated that today every computer has a child/parental lock and can be used to limit children’s access to such sites and there are other softwares being developed for mobiles and other devices.

He added that the best filter is not to block this content at the gateway but if individuals want they can do it on their devices, as if two adults want to watch it for entertainment we cannot enter their houses. The AG further stated that we cannot become a totalitarian state and there is right to information and entertainment under article 19(1)(a).

Ms. Meenakshi Arora, Senior Advocate being briefed by AoR Mr. Rahul Narayan appearing for the Internet Service Providers Association of India argued that there is a conflict between the two orders issues by the DoT on 31^st July and 4^th August 2015. She added that ISPs are not responsible for the content added by intermediaries.

The first order asked ISPs to disable 857 websites, but the subsequent orders asked us to unblock 857 URLs. She stated that there is a difference between a website and a URL and added that we will block whatever we are asked to under the law and our license agreements but we need to have clear instructions regarding what needs to be blocked. The Government cannot ask us to identify and block content and that is unreasonable burden on the ISPs.

The CJI speaking for the bench stated that we have never passed any order in this case or asked for any blocking. The AG agreed with the Court and stated that since there has been no order by the Court, he will ask the Department of Telecom (DoT) and Department of Electronics and Information Technology (DeitY) to meet with ISAPI and sort out the difficulties.

The AG informed the court that they are working on some self-regulation mechanisms and requested to court to list the matter in October.

(Sarvjeet is a Senior Fellow & Project Manager at the Centre)

IT Ministry’s Response to Questions in Rajya Sabha (includes Blocking of Content, Net Neutrality, Amendments to IT Act, Website Accessibility)

The Ministry of Communication and Information Technology recently (8th May) provided answers to a number of questions (here and here), which were raised by the parliamentarians in the Rajya Sabha. We have extracted a set of 10 questions below, that deal with a number of issues including IAMAI’s role in blocking of content, Net Neutrality, proposals for amendment to the IT Act and accessibility of government website among others.

Question 1: (Monitoring and blocking of offensive online content) 

(a) Whether it is a fact that the Cyber Regulation Advisory Committee, in its meeting held on 5th September, 2014, has delegated the task of preparing a list of pornographic sites for blocking, to the Internet and Mobile Association of India (IAMAI), an industry organization.

(b) If so, the reasons for entrusting a private entity with a function that ought to be discharged by Government agencies in public interest; and

(c) The measures being taken by Government to enhance and strengthen the capacity and technical expertise of Government agencies for monitoring and blocking of offensive online content?

Answer:

(a) and (b) In Writ Petition in the matter of Kamlesh Vaswani vs. Union of India, the Hon’ble Supreme Court in its order dated 29.8.2014 directed that it would be appropriate if the Government places the copy of the writ petition and interlocutory applications before the Cyber Regulation Advisory Committee (CRAC), which has members from all sections of the Society including Government, Industry, Civil Society and Academy, for its consideration. The constitution of the Committee (CRAC) was revised and notified in Oct. 2010. The last CRAC meeting was held on 5th September 2014 to discuss issues relating to availability of pornography material on the Internet and filtering of the same by the service providers in the country. CRAC requested Internet and Mobile Association of India (IAMAI), an association of members from content providers to lead the effort as part of Social responsibility, to collect and maintain the repository of blacklisted pornography sites from various sources including list of child pornography sites maintained by other countries. Further, IAMAI was requested to set up help lines and web portal for reporting of such sites through Crowd sourcing mechanism. IAMAI would regularly provide the list of such sites to Government for further appropriate action. Similar approach is adopted by other countries like Australia, United Kingdom and Unites States of America, where the Governments are working with Non – Government Organizations (NGOs) to filter pornography sites.

(c) The filtering of web sites with obscene / objectionable content poses significant technical challenge. These websites keep on changing the names, domain addresses and hosting platforms from time to time making it difficult to filter or block such websites using technical tools available in the market. Further “https” websites with encrypted content are used to transmit the pornographic content which makes filtering difficult as the data is encrypted. Therefore, the tools provide filtering to a limited extent only. The tools, in the process may also filter genuine content and degrade the performance of systems.

To address the issues effectively, Government is in regular touch with Internet Service Providers to upgrade their infrastructure and technology to effectively address the shortcomings with regard to identifying and blocking encrypted websites /URLs. Further, Social Networking sites are monitored by the security agencies in order to check / remove objectionable contents from the web sites in consultation with Indian Computer Emergency Team (CERT-In) in accordance with the provisions of Information Technology Act, 2000. Government is in regular touch with Social Networking sites, having their offices in India, to disable objectionable contents at the source from their websites. Government has also initiated Research and Development programmes to deal with technical issues relating to encrypted communications from the point of monitoring and blocking.

Question 2: (Secure flow of public and private communications)

(a) The steps Government has taken or proposes to take to protect privacy and security of our citizens and elected leaders in view of recent global incidents of tapping of communications by US and UK agencies;

(b) Whether Government will control foreign agencies handling internal communications of our citizens and Government; and

(c) Whether Government will take initiative in this respect to bring together various Governments to ensure secure flow of public and private communications and protect exchange of communications of national interest among Government officials?

Answer:

(a) and (b) Sir, taking note of the disclosure by foreign media reports in June, 2013 about extensive electronic surveillance programmes deployed by the U.S. agencies to collect internet and telephony data, Government has expressed concerns over reported U.S. monitoring of internet traffic of India. Concerns with regard to violation of any of Indian laws relating to privacy of information of Indian citizens as well as intrusive data capture deployed against Indian citizens or Government infrastructure have been conveyed to the U.S. Government. In addition, the issue of U.S. cyber surveillance activities was discussed during the India-US Strategic Dialogue meeting held in New Delhi on 24 June 2013.

Government keeps on taking appropriate protective measures by way of an integrated approach with a series of legal, technical and administrative steps to ensure that necessary systems are in place to address the growing threat of cyber attacks. In this direction, Government has approved a framework for cyber security, including protection of critical sectors in country that envisages a multi-layered approach for ensuring defence-in-depth with clear demarcation of responsibilities among various agencies and departments. Government is also engaged with world community towards promoting the evolution of better international Internet governance-norms, through ongoing discussions at international fora.

(c) Government is promoting Indian players in the IT field to develop and offer Internet Services by having the servers located in India, in order to protect the interests and secrecy of communication of Indian citizens. Already Rediff and Indiatimes have set up Servers and accessories in the country to provide email and other services to Indian citizens.

Further, Government has notified email policy of Government of India on 19^th Feb. 2015 to protect exchange of communications of National interest among Government officials. The policy mandates that only Government of India email service shall be used for official correspondence, the objective of the policy includes sensitizing the Government officials regarding protection of critical Government data and mandating the use of Government mail service for official communication. Government has also planned to install Secure & Dedicated Communication Network (SDCN) for Intra-Government Classified Communication.

Question 3: (Net Neutrality on the use of Internet)

(a) Whether TRAI has come out with a discussion paper on the use of internet particularly the Net Neutrality in the country

(b) If so, the details thereof

(c) Whether it is a fact that many people in the country are in favour of Net Neutrality and have given their comments to TRAI in this regard; and

(d) The stand of Government on Net Neutrality?

Answer:

(a) and (b) Telecom Regulatory Authority of India (TRAI) has released a consultation paper on “Regulatory Framework for Over-the-top services” on 27th March, 2015 for inviting comments from various stakeholders. This consultation paper also covers the issues related to Net Neutrality. The last date for receiving comments and counter comments is 24th April, 2015 and 8th May, 2015 respectively. Further, this consultation paper is available on TRAI website http://www.trai.gov.in.

(c) TRAI has received a large number of comments (more than 10 Lakh) in response to the consultation paper on “Regulatory Framework for Over-the-top services”. This consultation paper also covers the issues related to Net Neutrality. These comments are uploaded in TRAI website http://www.trai.gov.in.

(d) Government notes with assurance the growth of internet in India and wide platform it has offered for innovation, investment and creativity. Government is committed to the fundamental principles and concept of net neutrality and strives for non-discriminatory access to Internet for all citizens of the country.
At present the issues pertaining to net neutrality are in consultation stage. Department of Telecommunications has constituted a committee in January, 2015 to examine various aspects of net neutrality and recommend overall policy and technical response to net neutrality. The committee has already held stakeholder consultation meetings with Over the Top (OTT) players, Telecom Service Providers/Internet Service Providers, Civil Society Member & Consumer groups, Multi stakeholder Advisory Group (MAG) of Department of Electronics & Information Technology (DeitY) and various Associations/Industry bodies.
Based on the report of committee and TRAI recommendations Government will take a considered decision.

Question 4: (Resolving Net Neutrality Issue)

(a) How does Government proposes to address and resolve the Net Neutrality issue; and

(b) How does Government plans to ensure that telecom operators won”t pass on to the customers the burden of high spectrum price paid by them to the Government?

Answer:

(a) Government notes with assurance the growth of internet in India and wide platform it has offered for innovation, investment and creativity. Government is committed to the fundamental principles and concept of net neutrality and strives for non-discriminatory access to internet for all citizens of the country.

At present the issues pertaining to net neutrality are in consultation stage. Telecom Regulatory Authority of India (TRAI) has released a consultation paper on “Regulatory framework for Over-the-top services” on 27th March 2015. This consultation paper covers the views of the service providers and OTT providers and related issues including net neutrality. The last date for receiving comments and counter comments is 24th April, 2015 and 8th May, 2015 respectively.

Department of Telecommunications has constituted a committee in January,2015 to examine various aspects of net neutrality and recommend overall policy and technical response to net neutrality. The committee has already held stakeholder consultation meetings with Over the Top (OTT) players, Telecom Service Providers/Internet Service Providers, Civil Society Member & Consumer groups, Multi stakeholder Advisory Group (MAG) of Department of Electronics & Information Technology (DeitY) and various Associations/Industry bodies.

Based on the report of committee and TRAI recommendations Government will take a considered decision.

(b) Tariff for telecom services falls under purview of Telecom Regulatory Authority of India (TRAI). As per the existing tariff framework, tariff for telecommunication access service is under forbearance except for National Roaming and Rural Fixed Line Services. The service providers have the flexibility to decide various tariff components for different service areas of their operation. Tariffs are offered by service providers taking into account several factors including input costs, level of competition and other commercial considerations.

Question 5: (Position on Net Neutrality)

Whether in view of the fact that a committee has been formed within the Ministry to evolve its position on Net Neutrality, Government would ensure that the position on Net Neutrality is discussed in the Parliament and with the public, the details thereof?

Answer:

Government notes with assurance the growth of internet in India and wide platform it has offered for innovation, investment and creativity. Government is committed to the fundamental principles and concept of net neutrality and strives for non-discriminatory access to Internet for all citizens of the country.
At present, the issues pertaining to net neutrality are in consultation stage. Telecom Regulatory Authority of India (TRAI) has released a consultation paper on “Regulatory Framework for Over-the-top services” on 27^th March, 2015 for inviting comments from various stakeholders. This consultation paper also covers the issues related to Net Neutrality. The last date for receiving comments and counter comments is 24^th April, 2015 and 8th May, 2015 respectively. Further, this consultation paper is available on TRAI website http://www.trai.gov.in.

Department of Telecommunications has constituted a committee in January, 2015 to examine various aspects of net neutrality and recommend overall policy and technical response to net neutrality. The committee has already held stakeholder consultation meetings with Over the Top (OTT) players, Telecom Service Providers/Internet Service Providers, Civil Society Member & Consumer groups, Multi stakeholder Advisory Group (MAG) of Department of Electronics & Information Technology (DeitY) and various Associations/Industry bodies. The committee has been asked to submit its report by May, 2015 end.

Further, Statement on Calling Attention Notice by Sh. Derek O’ Brien Hon’ble MP, Rajya Sabha on ‘Issue of safeguarding Net Neutrality in the country’ was made by Hon’ble Minister of Communications & IT on 05.05.2015 and he replied on various queries, issues and aspects raised by Hon’ble Members of Rajya Sabha. (Copy of statement is annexed).

Based on the report of committee and TRAI recommendations Government will take a considered decision.

Question 6: (Amendment to IT Act, 2000)

(a) Whether Government is planning to amend the Information and Technology (IT) Act 2000 in the aftermath of the recent Supreme Court judgement that struck down Section 66A as unconstitutional, with a view to de-criminalize posting of offensive content on the Internet;

(b) If so, whether Government is planning to include procedural safeguards in such a provision to ensure that such provision is not misused by fundamentalist elements in Society to harass law-abiding citizens; and

(c) if so, the details thereof and if not, the reasons therefor?

Answer:

(a), (b) and (c) Presently, there is no proposal with the Government to amend the Information Technology (IT) Act 2000. However, Ministry of Home Affairs has constituted a Committee to examine the implications of the Hon’ble Supreme Court’s judgment quashing Section 66A of the Information Technology Act 2000 and to suggest appropriate legal remedy to fill gaps in the legal regime, if any, in the wake of the aforesaid judgment.

Also, an Expert Committee under the Chairmanship of Shri T.K. Vishwanathan, former Secretary, Law Commission & Secretary General has been set up by Ministry of Home Affairs to study and examine the existing domestic cyber laws and International Cyber legislations and recommend a road map with measures and amendments to the present laws for consideration of the Government.
Further, in order to comprehensively address the issues of Cyber Crimes, Ministry of Home Affairs has set up an Expert Group consisting of Academicians and Professionals of repute to prepare a roadmap for effectively tackling the Cyber Crimes in the country and give suitable recommendations on all facets of cyber crime. The five-member Expert Study Group comprises of Dr. Rajat Moona, Director General Centre for Development of Advanced Computing (CDAC), Professor Balakrishnan, Indian Institute of Science, Bengaluru, Dr. Gulshan Rai, then Director General Indian Computer Emergency Response Team (Cert-In), Professor Manindra Aggarwal, Indian Institute of Technology (IIT), Kanpur and Professor D. Dass, International Institute of Information Technology (IIIT), Bengaluru. Shri Kumar Alok, Joint Secretary, Ministry of Home Affairs is the Convenor of the Expert Group. The Terms of Reference of the Expert Group are:

i) To prepare a Road Map for effectively tackling the Cyber Crime in the country and give suitable recommendations on all its facets.

ii) Recommend possible partnerships with Public and Private Sector, NGOs, International Bodies and International NGOs.

iii) Any other special measures / steps the Expert Group may like to recommend with regard to tackling Cyber Crimes.

Question 7: (Broadband penetration in the county)

(a) Whether it is a fact that our country is ranked below Bhutan and Sri Lanka in terms of broadband penetration and ranks 125th in the world for fixed broadband penetration;

(b) Whether Telecom Regulatory Authority of India (TRAI) has suggested that the multi-layered structure involved in the decision making for the sector needs to be overhauled;

(c) If so, the details thereof;

(d) Whether it is also a fact that TRAI has also suggested that the licence fee on the revenue earned from fixed line should be exempted for five years; and

(e) If so, the view of Government in this regard?

Answer:

(a) As per ‘The State of Broadband 2014: Broadband for All’ report, published by the Broadband Commission of the International Telecommunication Union (ITU) and the United Nations Educational, Scientific and Cultural Organization (UNESCO) which was published in September 2014, the ranking of Bhutan, Sri Lanka and India with respect to Fixed Broadband penetration for 2013 are as under:

Fixed Broadband Penetration

                     (per 100 inhabitants)     Rank

Bhutan                       2.7                     108

Sri Lanka                    2.0                     115

India                            1.2                    125

(b) to (e) Telecom Regularity Authority of India (TRAI) in its recommendations “Delivering Broadband Quickly: What we need to do?”, dated 17.04.2015 has inter alia, recommended the following

(i) Overhauling of multi-layered structure involved in the decision making in respect to National Optical Fibre Network (NOFN) project

(ii) Exemption of the license fee on the revenues earned on fixed line Broadband for at least 5 years.

A committee has been constituted on 29.04.2015 in Department of Telecommunications to examine the TRAI recommendations.

Question 8: (Law with the concept of Net Neutrality)

(a) Whether Government is bringing a law with the concept of Net Neutrality for consumers; and

(b) if so, by when?

Answer:

(a) and (b) Government notes with assurance the growth of internet in India and wide platform it has offered for innovation, investment and creativity. Government is committed to the fundamental principles and concept of net neutrality and strives for non-discriminatory access to internet for all citizens of the country.
The issues pertaining to net neutrality are in consultative stage. Telecom Regulatory Authority of India (TRAI) has released a consultation paper on “Regulatory Framework for Over-the-top services” on 27th March, 2015 for inviting comments from various stakeholders. This consultation paper also covers the issues related to Net Neutrality. The last date for receiving comments and counter comments is 24th April, 2015 and 8th May, 2015 respectively.

Department of Telecommunications has constituted a committee in January, 2015 to examine various aspects of net neutrality and recommend overall policy and technical response to net neutrality. Committee has been asked to submit its report by May, 2015 end.

Based on the report of committee and TRAI recommendations Government will take a considered decision, in the best national interest.

Question 9: (Regulation of Over the Top services)

(a) The stand of Government in protection of Net Neutrality;

(b) Whether Government proposes to regulate Over-the-Top (OTT) services;

(c) The argument for and against for regulation of OTT services;

(d) The details of the growth of internet traffic and internet users over the years;

(e) The details of the revenue generated by different telecom companies over the years; and

(f) Whether the move to regulate OTT services will affect the growth of start-ups in the country?

Answer:

(a),(b),(c) & (f) Government notes with assurance the growth of internet in India and wide platform it has offered for innovation, investment and creativity. Government is committed to the fundamental principles and concept of net neutrality and strives for non-discriminatory access to internet for all citizens of the country.
At present the issues pertaining to net neutrality are in consultation stage. Telecom Regulatory Authority of India (TRAI) also has released a consultation paper on “Regulatory framework for Over-the-top services” on 27th March 2015 for inviting comments from various stakeholders. This consultation paper also covers the issues related to Net Neutrality. The last date for receiving comments and counter comments is 24th April, 2015 and 8th May, 2015 respectively. This consultation paper covers the views of the service providers and OTT providers and related issues including net neutrality.

The main arguments in favour of OTT regulation is loss of traditional revenues from data and voice to telecom service providers, telecom service providers are subjective to all licensing and regulatory conditions whereas the OTT providers are not subjected to similar restrictions and that large scale OTT service in traditional services could significantly hampered the TSPs investment capability and growth. The TSPs are insisting on ‘Same Service Same Rules’ to maintain regulatory balance.

The main argument against OTT regulation is that the OTT players offer services through internet provided by TSPs and the TSPs are paid for internet services consumed by end users and OTT service lead to increase data usages and revenue to TSPs.

Department of Telecommunications has constituted a committee to examine various aspects and recommend overall policy and technical response to net neutrality.
Based on the report of committee and TRAI recommendations Government will take a considered decision in the best national interest

(d) Details of Internet subscribers are as under

For the period ending      Dec-2013          Dec-2014 Internet subscribers (in Crores)

As per TRAI                       23.87                  26.74

As per IAMAI-IMRB report ‘Internet in India 2014’  > 30

(e) The trend of revenue from data usage from full mobility service (GSM+CDMA) segment is given below:

                       Quarter ending Revenue from data usage (in Rs. crore)

June 2013           3057.83

September 2013 3594.83

December 2013 4240.01

March 2014        4637.89

June 2014           5259.18

September 2014 5911.05

December 2014  6457.06

Question 10: (Government websites meeting international standards of web accessibility)

(a) Whether any survey has been conducted by Government regarding the number of Government websites that meet the international standards of web accessibility;

(b) if so, the details thereof;

(c) Whether it is a fact that in an accessibility survey conducted by National Centre for Promotion of Employment for Disabled People (NCPEDP), not a single Government website was accessible; and

(d) The steps taken to improve web accessibility?

Answer:

(a) Yes, Sir.

(b) The Guidelines for Indian Government Websites (GIGW) have been adopted by the Department of Administrative Reforms & Public Grievances (DARPG) and have become a part of the Central Secretariat Manual of Office Procedure (CSMOP). The GIGW accessibility guidelines are based on W3C”s Web Content Accessibility Guidelines (WCAG) 2.0. These are internationally accepted guidelines on web accessibility and cover a wide range of recommendations for making web content more accessible.

DeitY has initiated the Website Quality Testing project which is being executed by Standardization Testing and Quality Certification (STQC) for testing and certifying the government websites. Under this project, 1000 websites have been undertaken for testing. Currently, around 950 websites of various Ministries/Departments, attached offices, societies have already been tested by STQC and test reports have been sent to the concerned Ministries/Departments for addressing the issues of non-compliance.

(c) and (d) No, Sir. However, as per the Web Accessibility Survey Report for Indian Government websites – 2012 of National Centre for Promotion of Employment for Disabled People (NCPEDP), none of 10 Government websites were able to meet even the basic accessibility standards. The Government has undertaken following steps in this regard:

(i) The Guidelines for Indian Government Websites (GIGW) have been adopted by the Department of Administrative Reforms & Public Grievances (DARPG). The GIGW guidelines adhere to the requirements of persons with disabilities and ensure compliance with level A of Web Content Accessibility Guidelines (WCAG) 2.0 as laid down by World Wide Web Consortium (W3C). GIGW has incorporated all the level A success criteria and a few success criteria from level AA. This is sufficient to make the websites accessible.

(ii) Department of Electronics and Information Technology (DeitY) has had three rounds of meetings with the Website Information Managers (WIMs) of various Government departments to sensitize the departments regarding addressing the non-conformance issues of their websites with GIGW. STQC along with e-Governance division of DeitY and NIC has conducted one-to-one discussion with the concerned departments and ministries to close the non-conformance areas.

(Sarvjeet is a Project Manager and Research Fellow at the Centre for Communication Governance at National Law University, Delhi)