A whole host of issues, from the definition of ‘offensive’ content, the procedures to take down content deemed offensive and the responsibilities and jurisdiction of intermediaries are all at stake in the ongoing case against Internet Service Providers (ISPs) Google and Facebook.
However, the crucial issue is how exactly a civilised society must tackle content that is seen to be ‘objectionable’, at sites that poke fun at holy cows (political leaders included) and utterances or material that seem to be derogatory to different religions or castes or mischievous and defamatory, violative of privacy or hate-filled content that incites violence.
Print media has had a long history of battles over content that is problematic, with the fundamental right to freedom of speech and expression being tested at every turn. In broadcast media, the struggle over self-regulation by the broadcast industry is still an open one, as the Indian government periodically speaks of the need to have stringent regulations but also affirms a commitment to self-regulation.
The internet has been a medium without borders, according a much higher degree of permanence to content than, say, broadcast media. Social networking sites and blogs on the internet have been struggling to define the lines between the public and private domain and a good example of how Indian society has viewed this is the suspension of students who posted messages and status updates expressing hatred for some teacher or the other on their own Facebook pages.
Clearly, each instance will only test our commitment to freedom of expression and help us refine our own understanding of the limits to free speech or of the legitimacy of restrictions that are sought by governments at different points in time.
But the unseemly rush to initiate punitive action against Google, Facebook and other sites illustrates our systemic inability to deal with ‘problematic’ content. And our laws only fossilise this intolerance. What is more essential at this stage is an open debate and discussion on these issues instead of rushing towards punitive action or privately sponsored agendas that smack of vendetta or seek to crack down on dissent. Do we have what it takes for an open debate?
A brief backgrounder
The companies have challenged Metropolitan Magistrate Sudesh Kumar’s summons in the Delhi High Court. The summons were issued on December 23, 2011 following a private criminal complaint filed by Vinay Rai, a journalist with an Urdu weekly ‘Akbari’, that content on 21 sites, including Google, Orkut, YouTube and Facebook were objectionable and could promote enmity between different groups.
The next hearing of the case challenging the summons is on February 2 in the Delhi High Court while the case in the metropolitan court is scheduled for March 13. The Delhi High Court has not given any stay on the summons issued by the metropolitan court.
Senior Supreme Court advocate Mukul Rohatgi, who is representing Google, told this writer that the summons were violative of Articles 19 and 21 of the Indian Constitution. “We will not leave this matter. We are willing to go up to the Supreme Court if necessary,” he said.
Earlier, Rai had provided the trial court with ‘evidence’ (in a sealed envelope) of content in 21 websites deemed offensive to Hindu and Muslim religious figures as well as Indian politicians. In his order, the magistrate maintained that the publication of these ‘offensive and inflammatory material which has a tendency to inflame minds’ cannot be considered an expression of freedom of speech.
The summons were issued under Sections 292 and 293 (obscenity and sale of obscene material) and 120-B (criminal conspiracy) of the Indian Penal Code. Furthermore, the order said that prima facie the accused are also liable to be summoned for offences under section 153-A (promoting enmity between classes), 153-B (assertion prejudicial to national integration) and 295-A (insulting religion or religious belief of any class) IPC but due to an embargo under section 196 of the Code of Criminal Procedure, the court cannot summon them under these offences without prior sanction of the Central or state government or district magistrate.
The petitions before the Delhi High Court from Google and Facebook challenging the summons received no relief in that no stay was granted by the court. Justice Suresh Kait, hearing the petition, has observed that there was no undue haste in hearing the matter and in contrast, it was urgent enough to be taken up promptly.
The judge also expressed annoyance at the response of the company when asked for the URL of a website: “You are taking the matter very casually. When I have given you a website address, you are raising more questions. One of the articles shows a national leader in bad light. Such things could be posted about a family member of any of us and maybe we will then act promptly.”
Last Friday, the Indian government also sanctioned permission for the prosecution of the companies for hosting obscene content and content that promotes enmity between ethnic and racial groups.
In subsequent hearings, Google India maintained that it was not a service provider but was a subsidiary of Google Inc. Moreover, it was a separate entity distinct from its holding US-based firm.
Advocate Rohatgi agreed that articles that may seem objectionable do keep cropping up on the internet. “There are probably billions of articles and it would be difficult to filter them all. But, if you do have a grievance, under the amended Information Technology Act, 2000, there was a procedure for registering abuse and making a complaint to all social networking sites about matter that may be ‘objectionable’, ” he felt.
“Some solution can be found but this remedy is far worse than the disease,” he said, adding that he had never seen any government so proactive on any issue. Google India, he had explained to the court, was only a subsidiary and did not have the werewithal to provide filters or block content or sites. In criminal law, there is no vicarious liability for the company, he averred.
Why this brouhaha?
What is the genesis of the present fracas?
Perhaps it is in the objections raised by Union Information and Technology minister Kapil Sibal last December when he held meetings with the ISPs Google, Facebook, Microsoft and Yahoo! to screen online content. The move led to widespread condemnation, as netizens expressed fears of censorship of online content.
The minister was forced to backtrack and clarify that he and his government were, in fact, committed to freedom of expression and were not in favour of censorship.
(Interestingly, Rai has gone on record to state that he did not file complaints with the social networking sites and instead, pursued the matter with the IT ministry for over a year before the latter called for a meeting with the ISPs).
Perhaps the genesis of the current fracas is in the IT rules framed in connection with the amended IT Act. For long, online freedom activists have pointed out that the rules are draconian and open to extremely wide interpretation. The intermediaries are expected to take down content within 36 hours of receiving a complaint of ‘objectionable’ material. What is deemed to be ‘objectionable’ is anything that is seen to be:
‘grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever;
(c) harm minors in any way;
(d) infringes any patent, trademark, copyright or other proprietary rights;
(e) violates any law for the time being in force;
(f) deceives or misleads the addressee about the origin of such
messages or communicates any information which is grosslyoffensive or menacing in nature;
(g) impersonate another person;
(h) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource;
(i) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation.
It appears that the complainant, Vinay Rai, decided to bypass this provision under the IT Act and directly seek the removal of the content by filing a criminal complaint under the IPC and CrPC.
In this free-for-all, everyone gets to be censor and regulator – true democracy, anyone?