11 March 2011

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Understanding Due Diligence observed by intermediary a suggested new law or provision in Information technology act 2008

Understanding Due Diligence observed by intermediary
a suggested new law or provision in Information technology act 2008

Our blogger friend A, gave the following comment on my post

firstly it is a proposal right now anyway. I think this is a complex problem. Being blogger does not mean we can post anything. Just like news papers have to make sure they have enough evidence or facts to support their claims, for a strong allegations bloggers should have the same.
But we do not have much to worry...because typically we state facts.
Freedom of speech should be abused.

Currently this is not the part of law but it may become part of law.
This is the proposal or say plan of government.
This notification not only deals with the true facts,
It controls our thinking, power of writing, expressing indirectly.

Who is Intermediary?

Blogger, Word press and Google, Every ISP, Telecom service provider all are intermediary.

Under the Act, an 'intermediary' is defined as any entity which on behalf of another receives stores or transmits any electronic record.
Hence, telecom networks, web-hosting and internet service providers, search engines, online payment and auction sites as well as cyber cafes are identified as intermediaries.

I am using the name of Google only for the purpose of example.
To make it simple to understand.

Understand current law.

A blogger writes an article on a foreign policy which involves Pakistan, America.
Blogger is using BlogSpot platform, the article is hosted in USA.

Government does not agree with the content of article.

Now government files a case against blogger, tells Google to provide information and tells Google to shutdown the blog.

Now what happens as Google is not responsible for this, Google demands a court order from Government.

After Introduction of this Due Diligence clause, what will happen?

Google will become accused person for the article written by a blogger.

In this case government will give notice the Google and Google has not obeyed the notice.
It does not obey it will be charged, have to face consequences.

Now Google will immediately shutdown that blog.
Why Google will fight and spend money for freedom of speech case which blogger has to fight.

Thus Government will get the one tool which will make Google or any ISP obey the notice of government.
Even if server is UK or USA it will not matter.
They have to obey the notice or become the co accused with the blogger.

Who will become co-accused willingly without doing anything?

Government will not need the court order to get the information from
Google or any ISP that is intermediary.
Government will send the notice to ISP or Google and they will shut down the blog.

Section 4 Read again –

The intermediary upon obtaining actual knowledge by itself or been brought
To actual knowledge by an authority mandated under the law for the time being
In force in writing or through email signed with electronic signature about any
Such information as mentioned in sub-rule (2) above, shall act expeditiously to
Work with user or owner of such information to remove access to such
Information that is claimed to be infringing or to be the subject of infringing
Further the intermediary shall inform the police about such information
And preserve the records for 90 days.

S.6 –
The intermediary shall follow provisions of the Act or any other laws for the
time being in force.

Thus it’s important to understand what the notification means.

It means we will lose our freedom to write and express freely.

It will give power to government to censor our blog or remove any content which government does not like.

In this case once this notification becomes part of law, government will not need a court order to order the Google to shutdown particular blog.

This is the important point.

Reality views by sm –
Thursday, March 10, 2011

PS – For explanation, example purpose I have used the name of Google.

Keywords – Government censorship, Information Technology act 2008, due diligence clause, Freedom of expression, Censorship by government in India

Suggested Reading –
Google will be responsible directly for blog articles, content of BlogSpot blog authors.



Neha March 11, 2011  

hmmm, I still don't see any threat in this notification! we all are aware about our judicial system..the moment it is proved that the existance of this act is against directive principles and constitutional rights under article 19 (1) (a), it will automatically become invalid!

SM March 11, 2011  


Amrit March 13, 2011  


Sorry I could not come back earlier. I was very engaged in a few other things. But I always intended to come back.

Thanks for clarification. But I do not believe anything changes. I am not lawyer but this is what I think and have seen.

Freedom of speech is good. But Freedom of Speech comes with responsibility. For example, can one use Freedom of Speech as an excuse to say 'wrong' things about SM. Can one post doctored dirty pictures of SM and say - hey it is freedom of speech. Now assume some does post it. What are your option? You go to Google/ISP and threat to sue and they will remove it. If they don't remove, you actually file defamation case...I know people have done it ....and successfully WON in the USA.

What is different in the government proposal?

Government is not asking us to stop blogging and disabling Blogger (like China). In China one cannot SEE/ACCESS blogger/blogs of Google and Wordpress.

Freedom of speech shall not be abused.

sm,  March 13, 2011  

After introduction of this law, i will lose this capacity to express myself.
Indirectly it will work as censorship.
India is a nation where Binayak Sen goes to Jail,
CWG and Aadarsh and Lavasa enjoy, Hasan Enjoy the life.
TO understand my point please read the history about how and why our freedom fighters operated their news papers.

Also read about Tehealka sting operation and the after effects.
How they suffered for doing that sting.

Amrit March 13, 2011  
This comment has been removed by the author.
Amrit March 13, 2011  


You can always express yourself. If you do not have facts for sure, do not write. If you do have facts, state the source e.g. you did on your Japan

If you there is a something subjective, you can start with 'In my opinion...' and that is it. You can always state your opinion.

Like I can say "In my opinion, SM is an awesome blogger....." Some people may not agree but they cannot do anything about as it is my opinion and I am not asking others to agree or disagree.

Law will be used if someone lies and makes up lies.

SM March 13, 2011  

Here We are talking about In my opinion India, In my opinion Religion, In my Opinion
this where the censorship will come, this is not about Individual.

For exposing electronic voting machine one is jailed in India,
on other hand in past same activity happened in USA that person was awarded.
this is difference.

In India if You demand and Use Right to Information Act, you do not get punishment but you are murdered.

This is not a democracy.
this is mobocracy.
Jiski Kathi uski Cow works in India.

Govt now understands the power of bloggers. they want to control them.
without going into problems, order the ISP and they will shutdown my blog.
this Government is safe, ISP is owner so i have no protection.

Amrit March 14, 2011  


I agree with you on what you say about India. Totally agree. 100% agree with your last statement.

But the cause is not LAW. Cause is people NOT FOLLOWING the law. People in power DO NOT follow law and use unfair means to harass people who speak against them.

If they want to get a blogger, they can do it now too without change in law or without introducing a new law....

Google will happily tell them IP address of the person posting the blog if Government threats to bar Google. For example in case of Blackberry, Blackberry has to provide means to access encrypted text messages

Amrit March 14, 2011  


I hope you do not mind this discussion. I read your posts with interest and can disagree sometimes :))

SM March 14, 2011  

I do not mind.
I hope more and more bloggers will discuss.
and debate.
Just see the American and British Blogs they got 300 and 400 Comments.
Never saw Indian blog particularly political legal blogs with more than 50 comments.

Thanks for writing and replying.
I always like discussion as it helps me as well as others.

Rakesh Vanamali May 02, 2011  

SM - Thanks very much for this detail.

sm May 02, 2011  


INCORP July 04, 2014  

Thanks lot I got some useful information from your discussion