Sibal's sabre-rattling against online freedom!

IN Media Freedom | 07/12/2011
In May this year, the Union government was forced to issue a press release that it would not be heavy-handed in censoring intermediaries nor would it acquire regulatory jurisdiction over content.
But these seem like famous last words, says GEETA SESHU. Pix: Rajeev Bhatt

The Union Information Technology minister Kapil Sibal’s directive to internet companies to regulate content only seems to confirm all the fears voiced by internet freedom activists of the censorship and arbitrary crackdown on online content inherent in the rules framed for the amended Information Technology Act, 2000.

The minister had summoned the Indian representatives of Microsoft, Facebook, Yahoo! And Google on Monday reportedly to express his government’s annoyance at content on some of the social networking sites that were derogatory to politicians. In interviews with the media, the minister said that he was against censorship but would like internet companies to adopt some kind of self-regulation.

The minister was reportedly exercised over ‘blasphemous and incendiary depictions of religious communities as well as of morphed pictures of Prime Minister Manmohan Singh and the Congress party leader Sonia Gandhi on social networking sites. He had been trying to get a discussion going with the internet companies since September over this but the latter, who accepted his contentions orally, backtracked when asked to put something down in writing, the minister said in a press conference in New Delhi yesterday.

Sibal also said later in an interview, that he was forced to take such a stand since internet companies refused to block hate speech. Oddly, the minister argued that it was not possible to prosecute those who uploaded such hate speech since most of these individuals are overseas, the internet companies do not disclose information on them and if it did become subject of an open court hearing, it would further incite mob violence!

The minister’s prescription seems to be to take down material deemed to be offensive quietly and without debate or review.

However, this is only the latest attempt by the Indian government to get internet companies to behave or else...The minister’s demand for self-regulation is surprising considering the range of curbs that already exist in law!

As intermediaries, the government believes that the internet companies host sites that carry ‘objectionable’ material and must be responsible for the content on the sites. In the rules framed for responsibilities of the intermediaries, complaints can be made against any content that is seen to be disparaging, harassing, blasphemous or obscene (amongst other provisions). The intermediaries have to take down such content within 36 hours of the receipt of a complaint.

In contravention of all principles of natural justice, the intermediaries can only approach courts after the content is taken down, not before.

Internet Service Providers (ISPs) have long argued that they cannot verify all the content that is put up on the scores of websites, or blogs or all other electronic communication that is put out daily. As a medium that provides the widest possible platform for all manner of expression, it would be against freedom of expression to regulate any of its content, except under very special circumstances and only after a transparent, fair and just process is initiated to do so.

While the Indian government has been trying, unsuccessfully, to get the companies to discuss a self-regulatory code, it was also worried about the spate of newspaper articles criticising the new rules under the IT Act. In May this year, the Union government was forced to issue a press release to state that it was not going to be heavy-handed in censoring the intermediaries nor would it acquire regulatory jurisdiction over content.

But these seem like famous last words.  Google’s Transparency Report of January-June 2011, for instance, outlines the 68 requests received from the government in that period for the removal of items (368) in Youtube, Orkut, Picasa, Blogger, Google Earth/Maps etc. At least 2439 user data requests were received for the same period. In all these requests, criticism of the government is the primary reason.

Now, in response to the minister’s demand for a code, Facebook, in a statement, says it does have a code in place- a policy that enables people to report abusive content. “We will remove any content that violates our terms, which are designed to keep material that is hateful, threatening, incites violence or contains nudity off the service”, its statement said, adding that it recognises the government’s interest in minimizing the amount of abusive content available online.

On its part, Google has maintained that it abides by local law to take down content. However, if the content is legal but may violate its own terms and conditions, Google would take down that content too. When content is legal and doesn’t violate Google’s own policies, it does not take down such content, even if it is controversial.

Yahoo! And Microsoft have yet to come out with their own stand on the issue but the stand of the former may become clear, if its current tussle in the Delhi High Court is any indication.

The Yahoo! Case

Apart from verifying content before it is put up, the government would also like internet companies to disclose sensitive information, privacy be damned. A few weeks ago, Yahoo! Was fined Rs 11 lakhs because it refused to share profile details of some email Ids that were under surveillance allegedly by Islamic terrorists and Maoists.

The company filed a writ petition before the Delhi High Court arguing that it was bound by a confidentiality clause and that the right to privacy of its users would be violated if it disclosed the information. The company also said that the sections the government was citing under the IT Act to demand this information (i.e. Sec 29 and Sec 29, IT Act, 2000) does not empower the government to do so.

In an interim order, the Delhi High Court has stayed the fine that was imposed on the company.  The case is scheduled to come up for hearing in January, 2012.

Internet freedom

Perhaps the greatest seduction of the internet is its promise of far greater freedom of expression than other media. In several ways, it has been difficult for governments across the world to regulate the internet but this has not been for lack of trying. This was more than obvious from the experiences outlined by internet freedom activists, journalists and cyber lawyers from Nepal, Bangladesh, Sri Lanka, Pakistan, Afghanistan, the Maldives and India in a three-day meeting on Internet and Freedom of Expression held in Kathmandu from November 4 this year .

Organised by The Internet Democracy Project (India) along with Point of View (India), the Centre for Policy Alternatives (Sri Lanka) and Gobal Partners and Associates (UK), the meeting looked at the multiple issues that affected internet freedom – first and foremost, the lack of access to the internet.

In a region where internet penetration is uniformly low, the lack of cheap, reliable and equitable access to the internet must be a priority. The internet, participants agreed, was a major source of information about the world today and it was important to enable marginalised communities and groups to use the internet.

Other issues that affected internet freedom included various efforts by governments to filter and block content , increasing surveillance and mining of data, privacy issues and the liabilities sought to be imposed on intermediaries.

Interestingly, governments across the world, including India, have endorsed the recommendations of the UN Rapporteur on Freedom of Expression, Frank La Rue, on the need to ensure internet freedom.

But Sibal’s sabre-rattling only underlines how much of the Indian government’s commitment to internet freedom is just lip-service.

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