Report of Committee on Subordinate Legislation on Intermediaries Rules tabled

The Thirty-first Report of the Committee on Subordinate Legislation (2012-2013) was presented in the Lok Sabha today on 21 March , 2013 by Shri P. Karunakaran, Chairman of the Committee.

Committee Report

 

 

 

The Committee examined the following rules:-

(i) The Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011[GSR 313(E)]

(ii) The Information Technology (Intermediaries Guidelines) Rules, 2011[GSR314 (E)]

(iii) The Information Technology (Guidelines for Cyber Cafe) Rules, 2011[GSR315(E)]

(iv) The Information Technology (Electronic Service Delivery) Rules, 2011[GSR316 (E)]

The Committee made the following observations:

The Committee have observed that the terms, grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, pedophilic, libelous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, or otherwise unlawful in any manner whatsoever used in Rule 3 of the Information Technology (Intermediaries Guidelines) Rules, 2011 have not been defined either in the Rules or in the Information Technology Act, 2000. These words / terms have, however, been dealt within the Indian constitution and also defined in relevant Indian laws such as Indian Penal Code, Cr. PC, Prevention of Money Laundering Act, etc. and have been also interpreted by Hon’ble Supreme Court and High Courts in their various judgements. The Committee while drawing the attention of the Ministry of Communications and Information Technology (Department of Electronics & Information Technology) to the recent instances of reported misuse of Section 66A of the IT Act due to absence of precise definitions of terms used in the Section, have recommended that in order to remove ambiguity/misgivings in the minds of the people, the definition of those terms used in different laws should be incorporated at one place in the aforesaid rules for convenience of reference by the intermediaries and general public and the terms which have not been defined in any other statute should be defined and incorporated in the rules to ensure that no new category of crimes or offences is created in the process of delegated legislation. (Para No. 25)

The Committee have desired the Ministry of Communications & Information Technology to have a fresh look at the Information Technology (Intermediary Guidelines) Rules, 2011, and make such amendments as necessary to ensure that there is no ambiguity in any of the provisions of the said rules. (Para No. 26)

As per rule 3 of the Information Technology (Intermediaries Guidelines), Rules, it is mandatory on the part of the Intermediary to disable non-compliant information within 36 hours, which in Intermediary’s view contravenes the laid down rules/regulations. The Ministry of Communications & Information Technology, however held the view that the guidelines in Rule 3(2) are of only advisory nature and self regulation. The Committee have, therefore, felt that there is need for clarity as the Department of Electronics and Information Technology has presented a conflicting picture with regard to legal enforceability of these guidelines. (Para No. 49)

The foreign intermediaries, on whose server infringing information is posted, reportedly do not cooperate with the Govt. of India to share the information related to user posting such content. It has been stated that they refuse to honour Indian laws, with the result, the malicious content posted on their websites is not removed on the pretext that it does not violate the law of their country . The Committee have not expected an expression of helplessness from the Government in this regard and have urged the Ministry of Communications and Information Technology to take such steps as deemed necessary to enlist their co-operation. (Para No. 50)

Sub rule (2) of Rule 6 of Information Technology (Guidelines for Cyber Café) Rules, stipulates that screens of the computers installed other than in partitions and cubicles should face open space of the cyber café. The Committee felt that by allowing every computer screen to be seen by a bystander, the privacy and security of every user would be invaded. The Committee have, therefore, recommended that the sub-rule (2) of Rule 6 should be modified suitably to ensure that privacy of the users is not intruded for legitimate purposes. (Para No. 72)

The Cyber Regulation Advisory Committee (CRAC) which was constituted when the IT Act was enacted in the year 2000, met only twice, once in the year 2000 and then in 2001 and thereafter, no meeting was held. On the matter being taken up by the Committee, the CRAC has been reconstituted. The Committee have urged upon the Ministry of Information Technology (Department of Electronics & Information Technology) to make the CRAC functional and benefit from its advice particularly in the context of having a fresh look at the rules and amendment of rules recommended in this report. (Para Nos. 79)