Indian Government and Courts Ignore Common Sense and Laws of the Land in a Drive to Leash the Internet
By on January 16th, 2012

Even as the anti-SOPA protests continue to gain momentum in the US, time may have come for a similar campaign in India. A Delhi High Court judge, while hearing a criminal complaint against Google, Facebook and other online services, threatened to block all such websites “like China”. This comes just weeks after Kapil Sibal, India’s Minister of Communications and Information Technology, courted controversy by asking Facebook and Google to pre-screen content.

Backstory

CensorshipThe latest controversy began when, Vinay Rai, the editor of an Urdu-language newspaper, moved the lower court to prosecute 21 websites on which he discovered objectionable content. Speaking to the WSJ, Rai stated that the content he found “offends several religions including Hinduism, Islam and Christianity” and “involves pages and groups where users have mocked Hindu gods and goddesses, Prophet Muhammad and Jesus Christ”. In response, the trial court issued summons to the concerned organizations, which were approved by the Ministry of External Affairs.

“The sanctioning authority has personally gone through the entire records and materials produced before him and after considering and examining the same, he is satisfied that there is sufficient material to proceed against the accused persons under section 153-A, 153-B and 295-A of the IPC,” the Government said in its report.

Google, Facebook, and several others named in the complaint moved the High Court to seek exemption from the trial court as a similar case was already pending with the High Court. However, the HC judge – Justice Suresh Kait, not only refused to stay the trial court proceedings, but also threatened to go the China way if web-services didn’t clean up their act. He asked websites to develop a mechanism to keep a check and remove offensive and objectionable material from their web pages.

As you might expect, the court’s remark sent alarm bells ringing and have elicited sharp criticism both within and outside the country. Google’s advocate N K Kaul, remarked, “The issue relates to a constitutional issue of freedom of speech and expression and suppressing it was not possible as the right to freedom of speech in democratic India separates us from a totalitarian regime like China”. Manoj Nigam, VP-IT, Vodafone India, termed the demand to monitor and remove content “slightly absurd”, while Tamal Chakravarthy, CIO of Ericsson India believes that “Its (sic) highly improbable that such an act would come into existence”.

Legality

The aforementioned internet services are currently being charged under three sections of the Indian penal code: “292 (sale of obscene books etc), 293 (sale of obscene objects to young person etc), 120-B (criminal conspiracy)”. As you might have noticed, none of these are laws that are designed to tackle the new challenges posed by the internet. This is slightly befuddling as India already has laws equipped for handling information technology related complaints. The Information Technology Amendment Act was passed in December 2008, and received the President’s assent in February 2009.

The IT Act has an entire section dedicated to the culpability of social networks, search engines, and web hosting providers. Section 79 states that “an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him”. Of course, this comes with its own reasonable restrictions. I have embedded below the clause pertaining to exemption of liability.

India-IT-Act-2008

In 2011, the government issued another notification to elaborate on the ambiguous and contentious portions of the IT Act. Here’s what the “Information Technology (Intermediaries Guidelines) Rules, 2011” states:

The intermediary shall not knowingly host or publish any information or shall not initiate the transmission, select the receiver of transmission, and select or modify the information contained in the transmission as specified in sub-rule (2): provided that the following actions by an intermediary shall not amount to hosing, publishing, editing or storing of any such information as specified in

sub-rule: (2) —
(a) temporary or transient or intermediate storage of information automatically within the computer resource as an intrinsic feature of such computer resource, involving no exercise of any human editorial control, for onward transmission or communication to another computer resource;
(b) removal of access to any information, data or communication link by an intermediary after such information, data or communication link comes to the actual knowledge of a person authorised by the intermediary pursuant to any order or direction as per the provisions of the Act;

I am not a lawyer, but it does appear that the Indian IT Act offers a safe harbor to companies like Google, Facebook, and Microsoft. However, even without getting into technicalities, it’s surprising that no one mentioned the provisions of the IT Act, even though they are infinitely more relevant to the case at hand.

Practicality

Moving ahead, let us forget about the country specific laws and amendments for a moment, and take a look at the bigger picture. One of the most pervasive lines of thinking is that if movies and books can be censored then so should the WWW. However, the trouble arises due to a fundamental difference between the modern web and movies. On websites like YouTube, Facebook, Google Plus, and Google Search, almost all of the content is generated by the user, whereas in traditional media the user is essentially a mute observer.

Justice Kait insisted on stringent checks. However, what he didn’t or couldn’t elaborate on was how those checks are going to be imposed. To the layman, these checks might imply something as simple as the magical filters they have seen in many a Hollywood movie. Unfortunately, computer science still has a long way to go before it can catch up with Hollywood. With todays science, creating a context aware filter with low false-positives and high hit ratio is not just mind bogglingly complex, but virtually impossible.

Highlighting the challenges that Google faces, its advocate, Mr. Kaul told the court that an online search for a word like “virgin” returns 82.30 crore search results within 0.33 seconds and the idea of blocking a word like this would deprive internet users the required information. “The queries could relate to Virgin Airlines or for that matter ‘virgin areas for inventions’”, he added.

Since automated checks are unlikely to be good enough, the only other open option is to manually pre-screen each and every piece of content before it’s allowed to appear online. Again, this is a preposterously idiotic idea that contradicts the IT Act. Let us ignore for a moment that the death of real-time web will stifle the free flow of information and essentially paralyze the web. How is anyone supposed to run a sustainable business while maintaining the manpower required to comb through the 48 hours of video uploaded every minute on YouTube and 250 million photos uploaded every day on Facebook?

Censorship-Fail

Morality

Censorship is a slippery slope. As we have seen in countries like Denmark, censorship begins with an extremely narrow mandate, but is then misused for more self-serving purposes by the self-serving interests.

Google, Facebook, Microsoft and most other major internet brands already comply with the laws of the land. Both Google and Facebook have dedicated teams for monitoring take down requests filed by governments as well as users. However, expecting them to proactively screen and censor content created by users is ludicrous. Shashi Tharoor, who previously served as the United Nations Under-Secretary General for Communications and Public Information and is currently a member of the parliament, hit the nail on its head with the following tweet.

Shashi-Tharoor-Censorship

Indeed, search engines and social networks are in many ways analogous to a cell phone carrier. Search engines merely point the user towards third-party content they might be interested in, while social networks connect users and allows them to create and distribute content.

Perhaps even more crucially, how does one define what is objectionable and what is not? Why should Google and Facebook be put in the difficult position of having to judge morality and offensiveness of a piece of content, when courts often take months and years to reach the same decision? Why should citizens be compelled to accept censorship from private organizations?

The Indian government is engaging in a misdirected power game in which one thing is certain – whatever happens, India is going to lose.

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Author: Pallab De Google Profile for Pallab De
Pallab De is a blogger from India who has a soft spot for anything techie. He loves trying out new software and spends most of his day breaking and fixing his PC. Pallab loves participating in the social web; he has been active in technology forums since he was a teenager and is an active user of both twitter (@indyan) and facebook .

Pallab De has written and can be contacted at pallab@techie-buzz.com.

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