In support of free speech

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The judiciary – not the government – should determine whether online content is censored, argues Amitabh Lal Das, the India general counsel of Yahoo!

India’s constitution guarantees the fundamental right to freedom of speech and expression limited only by reasonable restrictions. However, questions about such freedom were raised by the media recently when the Indian government attempted to impose censorship on the internet. The government was reportedly unhappy about caricatures and cartoons of some of its members. It demanded that internet companies that provide platforms for public comments ensure that such caricatures never appear on their websites. Reports say the same action was later extended to content on the internet that could hurt religious sensibilities.

Amitabh Das
Amitabh Das

Of course, everyone who visits Indian social media websites saw the caricatures of the politicians but no one aside from those who typed in keywords to search specifically, deliberately and intently for anti-religious content came across a deluge of material devoted to religious hatred.

The government’s sudden urge to censor came hot on the heels of Anna Hazare’s mass protest against corruption, during which the Indian public’s mood of cynicism and disenchantment with their political leaders was strongly felt. It also came in the wake of the Arab Spring. Some analysts have therefore speculated that the move was a knee-jerk reaction driven by the government’s insecurity as it watched other governments totter under internet-fuelled revolutions.

But perhaps more important than the motivation behind the move is the question of whether in asking for content screening, the government has acted outside of the country’s legal framework. India’s laws on defamation, obscenity, etc., are not black and white. For example, some observers perceive artist MF Hussain’s paintings to be obscene even though Delhi High Court has ruled otherwise. Anyone and everyone will have their own interpretation and thus judicial application of mind is required to form a responsible judgment that reflects the norms of society. In that light, whether cartoons are defamatory is neither for the government nor for a website owner to decide. In the absence of judicial determination, any governmental effort to place curbs on such content would amount to censorship.

The logical question, therefore, is, if judicial determination is required, does the government have any locus to assume power or take steps to prevent the publication of such content online? So far, it has used section 79 of the Information Technology Act and rules thereunder to force websites to remove content. Section 79 is a safe harbour provision, protecting intermediaries against liability for third-party content. It states that intermediaries are not liable for third-party information, data, or communication links made available or hosted if they fulfil certain conditions. These include limiting their services to provide access to a communication system, not initiating transmission, not choosing recipients or modifying contents of transmission, and observing due diligence and guidelines prescribed by the central government.

However, the safe harbour provisions do not apply if the intermediary conspired, abetted, aided or induced the commission of an unlawful act and did not expeditiously remove or disable access to any content upon “receiving actual knowledge” or being notified by the “appropriate government” that such content was being used to commit an unlawful act.

The rules under the Information Technology Act direct intermediaries not to publish content that the intermediary may be in no position to determine as “grossly harmful”, “harassing”, “blasphemous”, “defamatory”, “obscene”, “libellous”, “invasive of another’s privacy”, “hateful, or racially, ethnically objectionable”, “disparaging”, or a threat to “public order or causes incitement to the commission of any cognizable offence or prevents investigation”. So an intermediary can only be deemed to have “received actual knowledge” if there is a court order to that effect. A notice from the government based on its own interpretation may not stand the test of judicial scrutiny.

Furthermore, what if the “appropriate government” has not been named and in the absence of such notification it is the Department of Information Technology (DIT) that has arrogated to itself the mandate to determine whether content is obscene or defamatory or unlawful in any other manner? The DIT may not be technically competent to rule on such subject matters and notify, but even if it was, it could not compel an intermediary to remove content.

The intermediary may choose to disregard the notification and risk the non-availability of the safe harbour and in that situation the government may not be able to do more than impose a residuary penalty. The censorship concerns stem from news that the government threatened intermediaries with dire consequences, all of which were in excess of what the extant law envisaged.

The legality of the rules has been challenged in Kerala High Court and the issue has been discussed in the upper house of parliament, the Rajya Sabha, on a motion to annul the rules. It is heartening to note that the minister in charge of the DIT has agreed that the rules will be re-examined and that all stakeholders will be consulted. This is a positive development in the overall best interests of the growth of the internet industry in India.

If judicial intervention is not feasible, it may be worthwhile to establish an impartial body to notify internet users and website owners of the likelihood of content being objectionable. The users and websites could then submit their views and arguments and only after examining those would the body conclude, with a reasoned order, whether something is objectionable.

Amitabh Lal Das is the India general counsel of Yahoo!. The views expressed in this article are personal and do not in any way represent the views of Yahoo!