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Dont Try to Play Big Brother

by Rajeev Dhavan, 16 January 2012

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Mail Today, 16 January 2012

King Canute’s attempt to command the waves seems less demanding than the threats of the Delhi High Court to Google, Facebook and others to precensor objectionable material and eliminate them from circulation.

The recent story has deeper roots.

According to the New York Times, in October 2011, IT Minister Kapil Sibal called internet service providers to protest a Facebook page maligning Sonia Gandhi. Following another meeting in November, on December 5, 2011, Sibal called Google, Yahoo, Facebook, Microsoft and others to proclaim that “ the Indian government doesn’t believe in censorship. It believes in self- regulation”. But his request from the service providers was Herculean. They were to create a mechanism to identify and, perforce, excise “ inflammatory” and “ defamatory” material. The service providers were to be simultaneously regulators and spies.

Machinations

All “ objectionable” and “ controversial” matter was to be reported to the government.

In full form at a press conference on December 6, 2011, Sibal expressed a responsibility “ to take care of the sensibilities of the people … ( because) cultural ethos is very important to us”. The IT ministry was now the cultural ministry. This expanded universe of threatened censorship was clear. Sibal’s broad concerns were about defamation, obscenity and offending religious sensitivities, or were they? The websites took the view that they would not prescreen material. Sibal was positively threatening: “ If you do not co- operate, we will have to take action”. Under the IT Act 2001, the website service provider was not liable for third party information where its supply was without its knowledge and there was due diligence on its part. According to certain rules notified on April 11, 2011, the IT ( Intermediary Guidelines) Rules 2011 required the service provider to publish rules and regulations about offensive material and to act within thirty six hours on the information brought to its notice. More strict was Section 69A, which gave government powers in relation to national security, foreign relations, sovereignty, defence, public order, incitement of offence — the sort of restrictions permissible under Article 19 of the Constitution, if reasonably and not cataclysmically exercised.

Indian law permits a system of complaints.

Indian Law Enforcement agencies have felt free to ask for the content of material they wanted removed. Google reported that one such agency sought to remove 236 communities and profiles from networking sites. Between January and June, 2011, Google was reportedly asked for 2,439 user data requests. Google’s transparency report says that most Indian requests to remove are about defamation. In many cases, requests to remove are complied with. All this is far away from Sibal’s plea to create a case for prescreening and, therefore, pre- censorship of social networking sites on “ objectionable material”. Individual remedies are available. The Delhi High Court in the SMC Pneumatics case, ( 2001) passed an interim order against cyber defamation. But the reason for bringing the government engine on the tracks with brimstone and fire is to frighten people from interactive internet exchange.

The biggest threat perceptions come from politicians who would hesitate to file civil cases against newspaper or TV channels on similar matters because that would bring more adverse publicity. But covert operations to request for data and threaten requests through police and security agencies attract less publicity.

The threat is a system of control by the service providers under the overall threat of governmental action. This is the biggest and most comprehensive global censorship the world has ever known — throwing free speech, privacy and permissible restraints out of the window.

The service providers are in no mood for pre- screen censorships. Google did not want to play the government’s game or be cowed down by its threats. Following the interface with the Minister, Google promised to enforce the law and the conditions it had imposed on users — but no more; and in any case, after it was informed and not as a pre- screening exercise. No doubt, huge caricatures of political people were circulated.

News of fictitious film advertisements such as Loot Lo India starring Sonia Gandhi, Manmohan Singh, Baba Ramdev, Anna Hazare and a supporting cast were objected to. What was this? Defamation or satire? The government harps on the words “grossly offensive and of a menacing character”, which could mean anything.

In January 2012, the Delhi High Court was asked to stay criminal proceedings against Facebook India and Google India. The case itself was astonishing. A complaint was filed by Vinay Rai under the obscenity and other provisions of the Indian Penal Code. What the trial court did next was to summon representatives from 21 sites including Google, Yahoo, Facebook, YouTube. This was an extraordinary summons on an ambiguous complaint, about allegedly derogatory articles, asking these providers to submit to censorship in respect of free speech exercised by others through a pipeline they provided, but over the contents of which the providers had no control. The summons took place after the Metropolitan Magistrate had examined four witnesses and the Delhi Police affirmed the authenticity of the information. This was clearly enough to conquer the cyber world.

Law

In the HC, Justice Suresh Kait is reported to have said “ you ( websites) must have a stringent check. Otherwise, like in China, we may pass orders banning all websites.” If real, the Court’s threat sought to usurp a wide jurisdiction of the kind the HC does not have in this kind of case. Indeed, nor was the Metropolitan Magistrate, Sudesh Kumar, empowered to take such a magnum view of its jurisdiction. The question was whether the government of India would support such a catastrophic step? Three days before the Magisterial order, a Civil Judge, Mukesh Kumar, responding to a case filed by Mufti Aijaz Arshad Qasmi, passed an ex- parte order ( that is, without hearing the other side) that the 22 defendant social networking sites, should remove objectionable material. What was the basis of the civil suit? Or the order? Why was it pronounced ex- parte? There is a much respected hallowed principle that while time and place restraints can be imposed, the contents of speech should be maximally free. Of course, free speech must remain within the seven constitutional limitations prescribed in Article 19(2), namely public order, decency or morality, security of state, obscenity, contempt of Court, defamation, incitement to offence, the sovereignty and integrity of India and friendly relations with states.

Broadly interpreted, these restrictions could silence free speech altogether.

Although India has pre- censorship in cinema, this has safeguards. In all other matters, the best system is thought to provide for self- regulation

Methods

Then, there is the question of practicality.

There are billions of internet users in the world. After China and America, India ranks third. One way is to block, or threaten to block, service providers unless they pre-censor. This will bring the social purpose of internet down. So far, huge numbers of internet users do not look over their shoulder to see if Big Brother is watching while communicating with each other. Internet is a different kind of conversation from telephone. Both are protected by privacy. This does not mean that nasty incitory hate speech will prevail. But, it will be dealt with when detected. A system of preemptive pre- censorship will only stifle the Internet as a means of communication.

The Congress has a long history of muzzling the press as in the cases of Sakal (1962) and Bennett & Coleman (1973), the Emergency (1975 - 77), the Indian Express case (1986), and the Defamation Bill 1988 among others. It seems to get paranoid when its leaders are portrayed in bad light or lampooned. The Congress should play big brother for the poor and not be so obsessed about attacks on its leaders in the name of cultural ethos. Ominously on Friday, the 13th of this month, the government sanctioned a pervasive criminal proceeding because the content of websites was against national interest. Have they been taking lessons from China?

The writer Rajeev Dhavan is a Supreme Court lawyer

P.S.

The above article from Mail Today is reproduced here for educational and on commercial use.