India is the second-largest market for social networking sites. Delhi High Court has observed in recent cases that some such sites have been used in ways which have insulted public and political personalities, among others.
Recently, the central government granted sanction to prosecute around 21 companies, including 10 foreign companies. The Department of Information Technology had placed a detailed report before a Delhi court, after which the court directed the Ministry of External Affairs to have summonses served on the companies, which include Google, Facebook and Yahoo!
The court observed that offences punishable under sections 292 (sale of obscene books, etc.), 293 (sale, etc., of obscene objects to a young person) and 120B (criminal conspiracy) of the Indian Penal Code, 1860, could be made out against the accused websites/companies.
The court also directed the central government to take appropriate steps and file a report after it received a complaint that these websites were hosting content considered objectionable. The court observed that the websites were also responsible under sections 153A (promoting enmity between different groups on ground of religion, etc., and doing acts prejudicial to maintenance of harmony), 153B (imputations, assertions prejudicial to national integration), and 295A (deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs) of the Indian Penal Code.
Fake and anonymous accounts have been the source of unsuitable content, which is reported to include images that degrade religious figures and discussions using language that offends Indian sensibilities. Facebook has enhanced its system to prevent fake or anonymous accounts from being created, but it is unclear whether the system is strong enough to ensure the identity of the user. Another concern is that deleted Facebook user accounts are not permanently removed from its system. Reducing fake profiles would diminish the source that generates unsuitable content.
Further, internet giants Google and Facebook removed content from some Indian domain websites following a court directive warning them of a crackdown “like China” if they did not take steps to protect religious sensibilities and alter their methods of authentication to suit the Indian market.
China is set to introduce a mandatory real-name verification system which will require microblog users to validate their profiles with an official ID. A similar approach is being contemplated for India.
In a civil suit brought by an Islamic scholar, a lower court in New Delhi this month told the companies to put in writing the steps they had taken to block offensive content, and submit reports within 15 days.
Google, Facebook, Yahoo! and Microsoft have appealed in Delhi High Court against the findings in a criminal case successfully brought by a Hindu petitioner. The petitioner also urged in the media that, if the companies have removed some content due to a court’s order, they should put in place a mechanism to do it regularly.
The case Google v Vinay Rai demonstrates the role of the intermediary under the Indian Information Technology Act, 2000.
“Intermediary” with respect to any particular electronic message means any person who, on behalf of another person, receives, stores or transmits a message or provides any service with respect to that message. Section 79 of the act exempts the intermediary in certain cases, stating that, “An intermediary shall not be liable for any third party information, data or communication link made available or hosted by him.”
Google and Facebook are fighting back against increasing censorship demands, arguing that they aren’t legally responsible for monitoring their websites and proactively removing user content that regulators deem objectionable. Many of the websites, such as Yahoo!, argue that they don’t even fall under the purview of “intermediary”, as their sole function to send/receive e-mails and make available chat functions. Therefore, liability regarding the contents must not be fastened on websites which are not responsible or cannot possibly manage and/or censor the uploaded content.
The number of internet users in India is expected to almost triple over the next three years. Despite the various isolated attempts to block offensive content, India’s internet access is still largely uncensored.
While civil rights groups oppose proposals to control the internet, political groups maintain that posting offensive images/contents on a website in a socially conservative country, which has a history of violence between religious groups, presents a grave danger to the public. The fundamental question is, can the right to freedom of speech and expression in its true sense ever really be exercised in India?
Naik Naik & Co, founded by Ameet Naik, is a full-service law firm with specific focus on entertainment, real estate, retail and technology. It has three offices in Mumbai and two in New Delhi. Madhu Gadodia ([email protected]) is a partner and Ravi Suryawanshi ([email protected]) is a senior associate at the firm.
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