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Recently blocked VLC Media Player
What are the situations in which the government can order restrictions on online content? Are the current IT rules satisfactory?
VideoLAN Client (VLC) website has been banned in India. Although there is no official information about the ban, VLC says that according to its statistics, its website has been banned since February of this year.
What is VideoLan?
VLC gained popularity in India in the late 1990s when advances in information technology led to the penetration of personal computers into Indian households. It continues to be one of the most popular media players. In addition to being free and open source, VLC integrates easily with other platforms and streaming services and supports all file formats without the need for additional codecs.
Do we know why VLC was banned?
Due to VLC’s popularity, banning VLC websites caused quite a few problems. Civil society organizations have repeatedly submitted RTI applications to the Ministry of Electronics and Information Technology (MeitY). These requests were met with similar responses that “no information is available” from the ministry. This is despite the fact that the previous attempt to access the website showed the message “The website has been blocked based on the regulations of the Ministry of Electronics and Information Technology under the IT Act, 2000”. The lack of authoritative information from the government led to speculation that VLC was banned along with 54 Chinese apps in February this year. Although VLC is not a Chinese application, reports from cybersecurity firms such as Symantec in April this year suggested that Cicada, a hacking group allegedly backed by China, was using VLC Media Player to deploy malicious malware. It is believed to have been part of a longer campaign of cyber attacks that began in mid-2021 and was still active in February 2022. It highlighted that Cicada targets were spread across a number of regions, including India. This is also used to explain why the current ban is a soft ban rather than a hard ban. While the VLC website has been disabled, the VLC app remains available for download on the Google and Apple stores. This is probably because app store servers that host mobile apps are considered more secure than servers that host desktop versions.
In what situations can online content be blocked from the public?
There are two avenues through which content can be blocked online – executive and judicial. First, given the reach of the Internet and its potential to cause significant harm to online users, governments around the world reserve the power to monitor and issue guidelines to regulate online content available in their jurisdictions. The Indian government derives this power under Section 69A of the Information Technology Act, 2000. Section 69A allows the government to order an intermediary to “block public access to … any information generated, transmitted, received, stored or hosted on any computer resource”, is if it is “necessary or expedient in the interests of the sovereignty and integrity of India, the defense of India, the security of the State, friendly relations with foreign States or public order or to prevent incitement to the commission of any cognizable offence”. Section 69A derives its authority from Article 19(2) of the Constitution, which allows the government to reasonably restrict the fundamental right to freedom of speech and expression. Second, courts in India also have the power to direct intermediaries to make content unavailable in India to provide effective redress to victims/claimants. For example, courts can order ISPs to block websites that provide access to pirated content that infringes the plaintiff’s copyright.
What is the procedure for blocking access to online content?
A detailed procedure for blocking content is provided by the Information Technology (Procedure and Safeguards for Blocking Public Access to Information) Rules, 2009 (IT Rules, 2009), which were formulated under Section 69A of the Information Technology Act, 2000. It is important to note, that this power to order intermediaries to directly block access to online content can only be exercised by the central government, not state governments. The procedure usually provides for the central or state authorities to appoint a “nodal officer” who passes the blocking order to a “designated officer” of the central government. The Designated Officer as part of the committee will examine the application of the Nodal Officer. The committee consists of representatives from the Ministries of Law and Justice, Ministries of Information and Broadcasting, Home Affairs and Cert-In. A notice is sent to the creator/host of the content in question to provide explanations and responses. The Commission will then recommend whether the Nodal Officer’s application should be accepted or not. If this recommendation is approved by MeitY, the designated official may order the intermediary to remove the content.
How can this process be improved?
Civil society organizations have been pushing for some reforms to the 2009 IT rules for some time. The first concerns the transparency aspect. As witnessed in the VideoLan website blocking case, it is not clear why its website was blocked. Reasons for the same continue to be expressed on the basis of conjecture. Rule 16 of the IT Rules 2009 states that strict confidentiality must be maintained with respect to any request or action under the IT Rules 2009. This should be reviewed and an element of transparency should be introduced where VideoLAN will state the reason why such an order was made, something that was made in the recent order in the Tanul Thakur case. Second, although the IT rules provide for the opportunity to hear content creators/hosts, given VideoLAN’s cluelessness, it appears that this opportunity may not be afforded to affected parties in all cases. Lack of opportunity to submit explanations/replies on the part of the creator/host violates the principles of natural justice. It can also lead to faulty decision-making by a committee that may not have the full facts, which can have significant financial consequences for the blocked online service provider.
Third, a recent RTI revealed that the review committee, which has to meet every two months to review the commission’s orders, disagreed with a single decision of the commission. This raises doubts about the effectiveness of the review mechanism that was provided as a safeguard against committee excesses.
Fourth, given that failure to comply with the guidelines under the IT Rules can lead to a loss of immunity from liability for the content that is hosted, it has been argued that intermediaries are overly compliant with these guidelines, which can have a chilling effect on freedom of expression. The Supreme Court in Shreya Singhal upheld the procedure enshrined in the IT Rules, 2009 on the ground that it ensures adequate application of mind and transparency. The government would do well to follow its own rules, both in form and spirit.