THE RISE OF INTERNET

In recent years, internet usage in India has seen an exponential
rise driven by the easy availability of smart devices, cheaper
internet data plans, and increased proliferation of content
creation and e-commerce platforms. Internet usage patterns have
also sharply peaked in the current COVID-19 crisis, with several
businesses moving entirely to internet based operational models. In
tandem with increased internet usage, there has been a
corresponding rise in the incidence of illegal activities on the
internet, which has re-kindled the debate regarding the
availability of legal measures to curb such activities.

Incidents of malicious actors using the internet to circulate
unlawful information (such defamatory, obscene or incendiary
material or information infringing intellectual property rights,
etc.) are not uncommon in India, and have in fact witnessed a rapid
surge in recent years. Such information is often circulated through
dedicated websites, or content creation and sharing platforms
(CSPs) operated by third parties. Such activities have been causing
tangible losses to affected parties, and adverse impact on public
order. Regulatory authorities in India have typically responded to
such incidents by prohibiting access to such internet resources.
Recently, such measures were reportedly taken in relation to
blocking of certain websites running campaigns pertaining to social
and environmental issues.

INTERNET RESOURCE BLOCKING – TECHNICAL AND LEGAL
MEASURES

Blocking in India:

Internet resource blocking is achieved through numerous
technical mechanisms (such domain name system (DNS), internet
protocol (IP) or uniform resource locater (URL) based blocking or
deep packet inspection) and at various levels (such as at end-point
level, local network level, internet service provider (ISP) level
or national level). Interestingly, the applicable rules in India
are silent regarding the mechanism of blocking to be adopted by
intermediaries to implement internet resource blocking
directives.

Generally speaking, the regulatory response in India to such
activities has involved criminal or civil action against the
perpetrators, and issuance of directives (either by the Government
or courts) to ‘intermediaries’ (such as hosting providers,
ISPs or CSPs) to block public access to such offending internet
resources. In this context, the question arises whether Indian
regulations permit blocking of internet resources (including
information) at a narrow and specific level, or allow for broader
targeting of entire platforms.

Multiple frameworks exist under Indian law that legitimise
blocking of internet resources. At the outset, Indian authorities
are entitled to issue directives under the Telegraph Act, 1885 and
Temporary Suspension of Telecom Services Rules, 2017 for blanket
stoppage of internet services. Such directives are typically region
specific and issued in exigent circumstances. Importantly, such
internet stoppage powers have been used in the past to
‘whitelist’ internet resources, effectively blocking access
to ‘non-whitelisted’ information. Further, mechanisms (such
as virtual private networks or VPNs) were also prohibited by the
Government to prevent circumvention of the above directives.

On the other hand, the Information Technology Act, 2000 (IT
Act), permits issuance of directives to intermediaries to block
information which may inter alia affect interests of
national security or public order. Notably, directions under the IT
Act are typically targeted to specific instances of unlawful
content, but have also been used in the past for wider purposes
(such as in relation to wholesale blocking of pornographic
websites). Indian regulations also permit outlawing ‘usage’
of specified internet resources by the public (thereby indirectly
impacting their access/use by public), even though there are
limited instances of the exercise of such powers.

It is also relevant to mention that telecom licensees (which
includes internet service providers) are bound under a separate
licensing regime, under which blocking of specified internet
resources and platforms may be mandated by binding contractual
stipulations imposed by the Government.

However, from an Indian constitutional law perspective, broad
directives mandating blocking of internet resources may be viewed
as disproportionate restrictions on the fundamental rights and may
be subject to constitutional scrutiny.

Situation outside India:

In a similar vein, content blocking frameworks in other
jurisdictions (such as the EU) prefer internet blocking in a narrow
and specific sense. In fact, broader internet resource blocks have
been viewed by judicial authorities as violations of rights
relating to freedom of speech. Specifically, in the context of EU,
the ‘E-Commerce Directive‘ provides a notice and
takedown framework similar to the framework prescribed under the IT
Act, and recent recommendations issued by the European Commission
prescribe non-binding protocol to ensure effective and time bound
disabling of unlawful content. However, broad provisions mandating
resource wide blocking have also been incorporated in EU law with
respect to consumer rights. Under the ‘Consumer
Cooperation Regulation‘, national consumer protection
authorities are entitled to issue various directions, which also
include directions to hosting providers to disable access to
‘online interfaces’ (which broadly involve software or
websites facilitating commerce) for ensuring protection of consumer
interests.

CONCLUSION

With limited guidance from Governmental authorities and courts,
the Indian regime relating to internet resource blocking is
currently at a nascent stage, with numerous dichotomies and grey
areas. This regime is likely to witness major changes in the near
future considering the Government has initiated efforts to
modernise the existing regulatory regime. Powers to direct stoppage
of services operating in violation of data protection conditions
have also been proposed under the upcoming Data Protection Bill,
and this would add a new dimension and increase compliance
requirements. Given the above, it is advisable for CSPs and other
intermediaries operating in India to be aware of the applicable
requirements, legal remedies and proposed amendments, to design
legally compliant frameworks and effective operational
practices.

The content of this document do not necessarily reflect the
views/position of Khaitan & Co but remain solely those of the
author(s). For any further queries or follow up please contact
Khaitan & Co at legalalerts@khaitanco.com