Indian Government v Social Networking sites: Expert

Views
Bar & Bench News Network

Dec 08, 2011

The Indian Government in its latest move has asked the internet companies like Google, Facebook,

Microsoft to create a framework to prescreen the data before it goes up on the website.

The Indian Government found some defamatory content on one of the social networking sites and in that

pretext has asked the internet companies to find a way to ensure that defamatory or inflammatory material is

screened before it goes online.

Kapil Sibal told media that the government was not trying to censor the freedom of speech and expression

or the press; it merely wants to stop offensive material from being uploaded on social networking sites. The

telecom minister said the Internet giants did not come up with a solution though he had lodged complaints

with them three months ago over "unacceptable" images.

According to the Google Transparency Index

reported in the Hindu, for January to June 2011, the Internet search giant received requests from the Indian

government – which seems to include State and Central governments, police and courts – to remove 358

items. In a breakdown of reasons for such requests, 255 items were classified under the “government

criticism” category. It is not clear if Google would classify offensive items about a political leader under the

category of defamation or government criticism. Hindu further reported that “Interestingly, the biggest chunk

of this is accounted for by a single “request from a local law enforcement agency to remove 236

communities and profiles from [social networking site] orkut that were critical of a local politician.” Google did
not identify this politician, but it did state that “we did not comply with this request, since the content did not

violate our Community Standards or local law.”

Kapil Sibal met executives from Facebook, Google, Yahoo and Microsoft on Monday. However, the

executives informed Kapil Sibal that his demand is impossible, given the volume of user-generated content

coming from India, and that they cannot be responsible for determining what is and isn’t defamatory or

disparaging.

Kapils Sibal’s comments have created a storm in the cyberspace with internet and cyberspace groups

criticizing the governments to censor internet. The groups have addressed this move as anti-democratic and

impractical.

There are already rules in place where defamatory or derogatory content can be removed on a complaint

being filed. Earlier this year, Intermediaries Rules 2011 under India's Information Technology Act were

framed which were criticized to a great extent. These Rules require intermediaries like Internet service

providers to remove content that is found objectionable within a period of 36 hours of being notified of the

content.

In a recent development, a yet-to-be-published study by the Center for Internet and Society (CIS) in

Bangalore concludes that free speech on the Internet in India

is already being curtailed in a “chilling” manner. Rather than carefully studying take-down notices,

intermediaries are erring “on the side of caution,” and over-complying after complaints are filed, perhaps

because they don’t have the legal or administrative manpower to examine every complaint.

In the study, a researcher working for CIS sent notices to intermediaries in seven different situations, saying

he found specific user-generated material offensive. In six of the seven, these companies took down the

“offensive” material, and often removed more than was asked for, reports NDTV. The study does not name

the specific intermediaries involved, but they are understood to be the big social media and Internet

companies that dominate the industry.

The issue definitely raises some interesting questions: Is the government trying to control the cyber space?

Even if the government does, is it possible to regulate content on the Internet? What haapens to
constitutional right to freedom of speech and expression? How will the internet sites decide whether the

content is defamatory or not?

Bar & Bench spoke to Apar Gupta, Partner at Advani & Co and Pranesh Prakash of CIS to get their

views on whether there should be censorship on social networking sites.

Bar & Bench: Internet companies already have a framework to remove illegal content from its

website. What kind of framework or mechanism are the internet companies expected to evolve to

keep the offensive material off the internet, especially in India where there are violence on the basis

of communal and social issues?

Apar Gupta: Internet companies, especially those which provide facilities for user generated content have

content reporting and community policing platforms by which they try to keep their forums clean. However,

these proactive content policing measures are not mandated as per law, but as per the desire of these

companies to appear as responsible corporate citizens or keep their networks clean. The present proposals

which have emanated from the Ministry of IT with regard to evolving a framework and/or mechanism point

towards building a pre-publication filter. This will vastly change the legal position of these companies from

being passive pipes for our data transmissions, to choosing what transmissions to allow and which to

prevent. Secondly, I do not think communal and social strife is a reasonable excuse for prohibiting speech

and expression which is otherwise legal. We have a host of precedent on this including recent rulings by our

Supreme Court which has struck down orders by state governments to prohibit the exhibition of movies

which obtain certification under the Cinematograph Act.

Pranesh Prakash: Kapil Sibal's proposal is, as yet, only available in the form of various news reports

(notably from the NYT blog post by Heather Timmons who broke the story), and in the form of information

gleaned from Mr. Sibal's press conference yesterday. So it is not possible to lay down what exactly his

proposal is in any definitive sense.It seems to be requiring Facebook, Google, Yahoo, and Microsoft to come

up with a code of conduct (which will be duly approved by the government) by which they will conduct pre-

scrutiny of any user-generated content before it is allowed to be published.

On the question of what the Internet companies ought to do, they should be subjected to the same law as

other media, the answer is: nothing. Illegal speech is illegal regardless of the medium of publication. I have

never known a book or an internet site with inflammatory content to directly cause a riot in the absence of

ground-level inflammatory speeches which incite violence. So while the book or the Internet site are just as
illegal, my point is that it is more important to prevent inflammatory speeches inciting violence and it is of

secondary importance to ban, block or otherwise remove the book or the Internet site.

Bar & Bench: Rules framed earlier this year around India's Information Technology Act require

intermediaries like Internet service providers to remove content that is found objectionable within a

period of 36 hours of being notified of the content. Is there a provision that requires intermediaries

to filter and remove disparaging or defamatory content even before it is posted? Your views.

Apar Gupta: No such provision exists. Here the entire structure of enforcement qua the intermediaries is

post publication. The law under Sec. 79 of the IT Act, 2000 does require intermediaries to observe “due

diligence”. However, the way “due diligence” is defined under the act and then further substantiated under

the Intermediaries Rules, 2011, it essentially means that the intermediaries should put into place systems for

taking down content once they are notified that it is illegal. Just to be clear, there is presently no legal

obligation on internet companies to pre-screen content, whether through employees or an automated

process.

Pranesh Prakash: Filtering? No. Active monitoring? Possibly, but one would have to stretch the

requirement in Rule 3(3) that "the intermediary shall not knowingly host or publish any information... as

specified in sub-rule (2)" to include that. Rule 3(4) also includes "upon obtaining knowledge by itself" in

addition to the requirement of "actual knowledge" (which is what is present in s.79 of the Act, so is probably

ultra vires the Act), which may be read to mean active monitoring.

Bar & Bench: A demand for filtering raises the question as to which content should be filtered? How

will it be decided what constitutes "objectionable" or, for that matter, who will decide what is

"objectionable" that tantamount to "hurting" religious sentiments or an individual's personal

integrity?

Apar Gupta: Filtering in the context of the present proposals will lead to system design which will reduce

our online conversations to sanitized and non-controversial subjects such as wishing our friends on their

birthdays and anniversary. There is no way you can expect even a highly paid lawyer to make judgment

calls on “sentiments”. We have to keep this debate contained to speech which is legal and which is illegal.

Not what is moral, tasteful or idiotic. A way out of this is, (a) having well defined offences; (b) having the

adjudication done by a court, rather than an internet company. Any act which contains broad, subjective

standards on the basis of which prosecution may be done is a sure recipe for abuse. When you outsource

this duty to a private party you also lose the checks which are imposed by a judicial officer.
Pranesh Prakash: Good question. I don't think it can be decided by any non-judicial authority.

Bar & Bench: There are contents that are legal but controversial, the same is not removed so long as

they are legal. Internet Intermediaries today provide essential platforms for voicing opinion and

dissent. Do you think this is a gag on freedom of speech and expression? Whether this is

censoring? How can the sites screen every bit of the content?

Apar Gupta: It is not humanly possible to screen the amounts of data which are generated by each of us

individually. Even if it is, there is a real possibility that there will be widespread abuse. If these companies

face potential liability for controversial but legal speech, they will most probably take it down. They are

corporates, they have to turn a profit. They may be interested in free speech but they follow the balance

sheet. Here they would not like to waste their time and resources in litigation and regulatory actions. The

present proposals are a dangerous extension of the Intermediaries Rules, 2011 which had broad subjective

grounds for which a person could ask an intermediary to take down data. That time several people who

offered comments on the law stated that it would have a chilling effect. I fear if the present proposals get

through India may face its first online ice age.

Pranesh Prakash: No, sites cannot. It is physically impossible to screen every bit of content. Each minute,

48 hours of content gets uploaded on Youtube. How can you manually examine that? (A wag has suggested

that in reality this is not a scheme of censorship, but of employment guarantee and a form of social welfare

for censors and editors.) And Kapil Sibal has squarely rejected automated filtering as a solution, as he

himself has admitted that that is inaccurate and fraught with dangers of over-censorship.

As Frank La Rue, the UN Special Rapporteur on Freedom of Opinion and Expression stated in his report to

the UN Human Rights Council earlier this year, "The Special Rapporteur believes that censorship measures

should never be delegated to a private entity, and that no one should be held liable for content on the

Internet of which they are not the author. Indeed, no State should use or force intermediaries to undertake

censorship on its behalf..."

And as Kapil Sibal himself said in an interview with the Wall Street Journal in May 2011: "To make the

intermediary liable for the user violating that code would, I think, not serve the larger interests of the market".
Bar & Bench: Is it fair for the government to control cyber world?

Apar Gupta: Yes, it is. However, the control should be within our constitutional framework. When the

government prescribes limitations on speech online, at the least it should afford the same protections it

makes available to print publications and movies.

Pranesh Prakash: Not in the way the Indian government is trying to.

Bar & Bench: Indian laws are only applicable in India and Internet has no geography or boundary.

Anything anywhere can be written in the world then what is the sanctity of the law when there will be

breach outside India? You views.

Apar Gupta: There will be a limited effect. As a realist, law will only have power if there is enforcement.

Hence, the Information Technology Act, 2000 may be prescribed extra-territorially, but it is enforced within

the territorial borders of India. Hence you notice that an ultra-right wing website such as Hindu unity which

was blocked in India under the provisions of the IT Act remains accessible outside.

Pranesh Prakash: Through Section 1(3) and Section 75 of the IT Act, the Indian state arrogates for itself

the power to enforce Indian law on the Internet regardless of the origin of the content.

Bar & Bench: Is the existing legal platform sufficient to provide the government and the online

companies to either take action or defend (as the case may be)? Or do we need any amendments in

the IT Act compliant to the global practices.

Apar Gupta: I think the present system is not as broken as it is made out to be. Sure you have cases of

abuse but on the whole there is relative order and freedom of speech online. You do notice that there is a

tremendous amount of vulgar and abhorrent content particularly of political leaders, however having a

system for pre-publication censorship is only going to threaten legitimate satire. We have adequate

remedies under law where companies block websites and take down content pursuant to executive and

judicial orders. For once, I find myself saying, we do not need more law but a more sensible application of

the already existing one.

Pranesh Prakash: Yes. The Indian Penal Code, the IT Act, and many other laws already restrain speech

both online and offline. There's already (excessive) self-regulation, and the 'report abuse' option in many

platforms is itself abused. Amazon and Mastercard could arbitrarily stop providing services to Wikileaks,

despite Wikileaks not having broken any law or terms of service.

The IT Rules (regarding intermediary due diligence) of April 2011, on the other hand, go overboard and are

both ultra vires the parent Act as well as unconstitutional.

As CIS research has shown, 6 out of 7 intermediaries took down content upon request under the IT Rules,

despite our requests making ridiculous claims and being severely flawed. Some even removed more content

down than we had requested. This shows that the IT Rules are having a chilling effect on the freedom of

speech and expression, with intermediaries being over-cautious to avoid liability and thus removing perfectly

legal speech