Q&A: Sec.66A, Digital wills, Net-neutrality & more!

In conversation with Mr. Rodney D. Ryder

Q: Recently, in a landmark judgment, Section 66A of the Act was struck down in its entirety, it being violating Article 19(1)(a) and not saved under Article 19(2) by the Supreme Court of India. 

Does the striking down of Section 66A means that speech on the Internet is completely free and completely unregulated?

A: Not at all, because Internet freedoms; it must be remembered, have their limits. Even constitutional freedom of speech is limited. So, while we are talking about fundamental rights and make no mistake about that, every right has its limit. And it must be remembered that the Section which was found unconstitutional was in itself badly drafted though I can’t say that it was badly intended and one of the other problems was that it lacked a certain decisive implementation measures. So that aside, we have a number of laws which will regulate speech as far as content is concerned. Freedom of speech is a very powerful fundamental right but it has its limit.

Q: Section 69(1) of the Information Technology Act provides enormous powers to the government to monitor communications with minimal safeguards. This is further complicated by the lack of a Privacy Act, which could have ensured some protection to citizens against intrusion by the government.  Do you think that we are paying the cost of security by sacrificing our privacy?

A: To an extent, yes but, that is not only throughout India. Globally, with the rise in terrorism; we have seen governments being forced to protect its citizens partially through surveillance and surveillance measures. So, when that kicks in, you have a situation when governments actually are conducting surveillance- spying on their own citizens. So, it is a natural outcome of our struggle against terrorism. India has privacy safeguards in the constitution but what we need is an actual functioning apparatus through perhaps, a Privacy Act.

So, you think that there should be a specific legislation on privacy- let’s say a Privacy Act? Yes, there should be because specific legislation what it does is that; it puts in place a working apparatus. Privacy, like I said is a constitutional right and has been interpreted as a constitutional right by successive Supreme Court judgments. But, I can just draw a parallel with say the right to information. The right to information was recognized by the Supreme Court as a constitutional right in Raj Narain’s case about 30 odd years before passing the Right to Information Act. But, despite of the constitutional right, what we needed was an apparatus- a mechanism to enforce that right, a procedure to make compliance- so that’s perhaps what we need vis-a-vis privacy law in India.

Q: The Information Technology Act does not provide regulatory provisions to prohibit an Internet Service Provider from controlling the internet to suit their business interests. Do you think that we should have a law regarding network neutrality?

A: I believe so, but more than just India oriented or India’s specific law, I think the global community needs to act together for a harmonized network-neutral internet. It must be remembered that service providers and internet businesses are an important pillar of internet governance. So, network neutrality is important- as important as the government ensure it through legislation.

And everybody should have a right to free access to the internet. So, what are your views on that? Yes, that is the only way in which problems like so called the problems on governance who should govern because right now the reason why I am saying is “so-called” is that there are entities that govern the internet. We must not forget that it’s not only the government. Indian architecture also plays a role in governance. So, does service providers, so does the way the existing infrastructure is laid out. So, it’s very important for us to look at infrastructure policies, to look at network neutrality problem and to look at how we can create a level playing field as far as the access is concerned.

Q: The concept of 'digital wills' is slowly gaining popularity in India. The legislations in India presently do not recognize the concept of a 'digital will' and in the absence of any specific law, the execution and enforcement of the same poses a huge challenge. Should we expect a legal recognition of this concept soon?

A: I think this is very important because again, here is another problem of there being a framework. Now, it’s not that digital wills lack any recognition but there are aspects of the digital will which fall into the grey end. So, it’s very important for us, if we want to make this a serious help for our citizens, we want to make it easy, we want to make it accessible then we need to ensure that the legislation completely recognizes it and also that there is a mechanism for this.

Q: What is the scope of cyber and information technology laws and practice?

A: See, the way the modern world is structured and the way the new media and the internet prevails in our lives, information technology cannot be overlooked. It’s too important to know. So, every practicing lawyer needs to have a knowledge of IT and IT laws. So you have IT practice prevailing in criminal law, you have IT practice prevailing in matrimonial law, succession and wills, which you were referring to in the previous question. But, apart from that, I see a great future for lawyers who are practicing in this area because, risk is moving to the internet world. So, the risk that an individual faces to his reputation, a risk that a corporate faces to its reputation is all online. Security issues are not confined to the boundary walls of the society, they are now confined to and beyond even service, beyond even servers across jurisdiction so, these are growing dynamics and exciting areas to practice. 

Q: The academics of law is totally different from what exactly happens in a courtroom.  What should educational institutions and students do to bridge this gap? 

A: I feel that while there is a gap, I don’t deny that there is a gap, over the years, law schools have done their best to bridge that gap. Now, I believe that law schools can be grounds to train people in government, in law enforcement, in industry. And law schools should do their best to get industry, law enforcement down on their campus and that would lead to the bridging in the gap significantly. Law schools should also think of moving away from conventional teaching methods. For e.g. the moot court, a very powerful teaching method and very much needed but, should also give some time to may be trial advocacy, may be client counselling so, different skill-sets can be developed in students: skill sets that they will need in the real world.

Mr. Ryder, you are a successful lawyer. So, what is your message to the young budding lawyers, especially to those lawyers who want to practice in information and technology laws?

A: Well, I think one very important thing about being a lawyer is that you get this chance, this opportunity to be a part of the justice process and I think that is something that has always appealed to me but the another thing is that the law is so dynamic and evolving and that means that we, at every stage, have to be ready for new challenges, learn new things. I think this is a part of this challenge and I think anyone who accepts this challenge of learning something new everyday is going to be a very successful lawyer. The other thing is ethics, honesty and being true to everyone in society with whom you are in touch- not only your clients but everyone, the other side- courts, the society and being a part of the justice process and I think this is an exciting profession for any youngster.