CENSORING THE UNCENSORABLE

WHAT IS THE FUSS ABOUT?

The statement of Kapil Sibbal regarding censoring online content has recently come to the fore of public debate. The World Wide Web has long been heralded as the great equalizer of information. Indeed, this incredible medium has revolutionized the way the world communicates, and has allowed information to become more available and accessible than ever before in human history. However, the availability of so much information to so many people has created a controversy as to what exactly should be allowed on the Internet[i]. Recently, there has been rapid circulation & transmission of hate speech against political leaders\famous personalities on social networking sites like Facebook and impunity with which the such hate speech were propagated by the offenders successfully hiding themselves by the anonymity the internet offers, has raised many eyebrows. The Hon’ble Minister of Human Resource, Mr. Sibbal himself a renowned senior lawyer has opened the Pandora box of an unending controversies by advocating censorship of objectionable content on internet. The minister apparently overreacted on hate speech doing rounds against his political masters on the social networking sites. Sibbal said if foreign social networking sites are not willing to cooperate with the overnment on stopping “incendiary” material, “then it is the duty of the government to think of steps that we need”. He showed reporters choice examples of material that maligned Islam, the PM and Sonia Gandhi, among others, and insisted that companies like Facebook, Google, Twitter, etc, make sure they conform to India’s “community standards” and weed this stuff out themselves. He insisted that the terms should be in line with Indian community standards so that they do not offend local sensitivities & reiterated that the government is against censorship, but US laws and community standards could not be applied in India, ‘‘We have to take care of the sensibilities of our people… Cultural ethos is very important to us,’’. The minister stated that the foreign social networking sites are not cooperating with the government agencies in filtering out the objectionable or offending content, and if the social networking sites are not so cooperative, the government must think of the steps it need to take. The minister further suggested that the networking sites set up a proactive prescreening system, with staffers looking for objectionable content and deleting it before it is posted. The minister further clarified that by proactive prescreening system suggested by him, he didn’t mean automatic filters but human monitors.

THE PROBLEM

The social networking websites have evolved into forums for posting rumors, hate speech & obscene materials about individuals, mostly politicians. In fact, the controversy came to light when the minister showed the material that maligned a particular religion, the PM and Sonia Gandhi, among others. Further, the networking sites are full of fake profiles containing sexually explicit content freely accessible to everyone, particularly the children. On the wall of FB, the grossly offensive content regarding the political figures are regularly appearing and given the nature of the FB, it is often easy to spread false rumors when it gets circulated on the wall of users when the like button is clicked or comment is shared by their friends. There must be some regulations or proactive measures in place to counter such offending material circulating on internet, after all Freedom of Speech and Expression guaranteed by the Constitution of India is not absolute as the constitutional provisions expressly qualifies this right by a reasonable state restriction in the interest of public order, decency or morality etc.

THE LAW

The nature of internet prompted the government to come up with the internet specific legislation in India, known as Information Technology, Act 2000 and with the passage of time and varying nature of use of internet, some of the emerging phenomena, challenges and cybercrimes, led to voices clamoring for change in the Indian cyberlaw.  The IT Amendment Act 2008 brings about various sweeping changes in the existing Cyberlaw. The Provisions dealing with offensive or objectionable contents are Section 66A (posting of offending content), Section 66E (posting on the networking site the image of a private area of any person), Section 67 (transmission of obscene material in electronic form), Section 67A (grossly obscene i.e. containing sexually explicit act[ii]), Section 67B (Child pornographic content). Further, Section 69 gives power to the Central Government for interception or monitoring or decryption of any information through any computer resource, Section 69A provides for power of the central government or any of its officers to direct the blocking of any content on the website.

The aforesaid objectionable contents are most often posted by the anonymous persons, thereby making it difficult to fasten the liability. Therefore, IT Act, 2000 by virtue of Section 79 scan the liability on the ISP and also define the ambit of immunity to ISP from frivolous prosecution. Section 79 of the IT Act has been revisited in the line with EU Directives on E- Commerce to determine the extent of responsibility of intermediaries for third party data or content. In line and in consonance with the aforesaid EU directive, the amendment to the IT Act revisited the wordings of Section 79 describing the liability of the intermediary and liberalized the liability of the intermediary which was hitherto strict under the existing section. Now the intermediary is not liable for third party information, data or communication link hosted by him if –

  • The intermediary function is limited to providing access to communication system (transmissions, temporary storage etc.)
  • The intermediary has not initiated the transmission, selected the receiver of the transmission and interfered/modify the transmission.
  • The intermediary observes due diligence and guidelines of the central government.

However, the intermediary would be liable,

  • if the intermediary has conspired or abetted or aided or induced whether by threats or promise or otherwise in the commission of the unlawful act or
  • if it has actual knowledge or the appropriate government or its agency has notified it that any information, data or communication link residing in or connected to a computer resource controlled by it is being used to commit the unlawful act, and it fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner

One of the significant amendments in the section 79 is the shift of liability on prosecution to prove the intermediary liable, i.e. prove the preconditions viz. “conspiracy” or “abetment” in commission of offence. Hitherto under the existing provision, the onus was on the intermediary itself to prove its innocence.

The Central Government under powers conferred to it under Section 87 r/w subsection (2) of Section 79 of the IT Act, 2000 has incorporated the Information Technology (Intermediaries guidelines) Rules, 2011 (hereinafter Intermediary Rules) which inter-alia provides for the guidelines as due diligence to be followed or observed by an intermediary (a website or company hosting the content).  The rule (1) & (2) of intermediary rules provides that the intermediary shall publish its rules & regulation, privacy policy whereby it shall inform the users of computer resource not to host, transmit offensive, objectionable etc. information. Further, rule (4) cast a obligation on the intermediary to remove   the objectionable content like grossly harmful content, harassing, blasphemous defamatory, obscene, pornographic etc. upon obtaining knowledge by itself or been brought to actual knowledge by an affected person. Thus, the Section 79 r/w Intermediary Rules works on “Notice & Take Down Approach” in lines with US Digital Millennium Copyright Act and the intermediary shall be liable to remove such objectionable content when it is brought to its notice by the affected party within a period of 36 hours[iii]. The immunity granted to the ISP by virtue of Section 79 is subject to the condition that they observe the due diligence or guidelines as prescribed under the Internet Rules and if the ISP is negligent in not removing the objectionable content after it is brought to its notice, the ISP would be deemed to be a co-accused or abettor of the crime, even if the actual crime was not committed by it as acts done also extends to illegal omissions as mentioned under Section 32 of the Indian Penal Code.

CONTROLLING THE MENACE

The menace of the posting of material that is “offensive and objectionable” on the social networking has grown to such a proportion which has not only affected the Minister or famous personalities but a common man also. Nobody will approve of such a thing. Everybody will condemn it. The initiative taken by the Minister to tackle the menace is quite appreciable though his way of approaching the issue may not be correct.  The contention of the minister that has raised the controversy by suggesting manual filtering mechanism to be put in place by the ISPs. Now the question arises whether the content filtering is possible. The content filtering can be either done by automatic filtering mechanism or manual mechanism like one suggested by Mr. Sibbal where a group of persons look for objectionable content before it is posted online. However, the experience has shown that automatic filtering mechanism has a very limited scope as few words like, Sex, Porn can be blocked but if generic words are blocked, then many genuine contents would be blocked. Further, automatic filtering mechanism has its own technical limitations. Further, it is near to impossible to search & scan huge data traffic manually that flows from the internet and it would further hamper the free flow of information through the internet.

No doubt, the government   under powers conferred to it under Section 87 r/w subsection (2) of Section 79 of the IT Act, 2000 can further notify the rules making it mandatory the prescreening the material which is inflammatory/hate speech/ objectionable but such pre-screening may not qualify as reasonable restrictions under Article 19(2) of the Constitution of India and may spell the death nail of real time communication, being an essential element of Internet and social media.”  Apart from the non- feasibility of the filtering mechanism, the another issues is the terms, ‘offensive’, hateful and objectionable have not been defined under the information technology act and whether such interpretation can be left to the Social Media Sites which, on the contrary could be misused in the future.

On the other hand, the contention of ISP’s say that they have already have policies and on-site features in place that enable people to report abusive content. They will remove any content that violates their terms, which are designed to keep material that is hateful, threatening, incites violence or contains nudity off the service. But whether these policies are consistent with the Indian laws and Community Standards, certainly not, and our Minister has correctly remarked that the terms should be in line with Indian community standards so that they do not offend local sensitivities & reiterated that the government is against censorship, but US laws and community standards could not be applied in India, ‘‘We have to take care of the sensibilities of our people… Cultural ethos is very important to us,’’.  

Thus, the laws stipulating what the site’s administrators have to do in such cases need to balance an individual or institution’s right to protection against defamation with the right to freedom of expression, but precensorship by anybody of social networking sites is not a workable proposition.

WHERE THE REAL PROBLEM LIES

  • Who actually post the objectionable content like grossly harmful content, harassing, blasphemous defamatory, obscene, pornographic etc? Certainly the individuals and for all these offences, even criminal remedies exist in the Information Technology Act, 2000 & other Indian Laws. The FIR against such person who is posting such contents can be registered and they can be arrested and prosecuted. The initiating criminal action against such content providers shall have more deterrent impact rather than any other coercive measures. But whether the law enforcement agencies is acting on the complaint of the aggrieved persons, certainly not, even the FIR is not being registered on one percent of the complaint which are being filed with the law enforcement agencies.
  • The immunity to the ISP/intermediaries granted under Section 79 for the third party content is also subject to their adherence to the due diligence guidelines issued by the government. Now the  Information Technology (Intermediaries guidelines) Rules, 2011 cast an explicit obligation on the Intermediaries to remove  within thirty six hours the objectionable content like grossly harmful content, harassing, blasphemous defamatory, obscene, pornographic etc. upon obtaining knowledge by itself or been brought to actual knowledge by an affected person. If the intermediaries even upon obtaining knowledge did not remove, it can be prosecuted for illegal omission even under the criminal law.

Thus, there are sufficient stringent provision under the existing law which if enforced in true spirit would have deterrent effect to curb this menace. The government instead of enforcing the existing laws is trying to shift its own burden to the ISP which may be misused by the ISP and have the ramifications for which then there would be no recourse and even may be detrimental to the freedom of speech and expression. The enforcing of the existing law itself will make the ISP to self regulate themselves and adhere to Indian laws and community standards. Though, a limited censoring of posting of the material from across the borders would certainly be required due to absence of International Treaties to curb the menace.


[i] Censoring Cyberspace: A Free Speech Analysis of the Problems, Controversies, and Possible Solutions Posed by International Internet Regulation- Mark Joyce

[ii] The term “sexually explicit act” is not defined under the IT Act, 2000. However, the 18 USC defines it as “Actual or simulated sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; bestiality; masturbation; sadistic or masochistic abuse; or lascivious exhibition of the genitals or pubic area of any person”.

[iii] Rules 3 & 4 of the Intermediary rules under Section 79. the IT Act (Rules 3 & 4 of the Intermediary rules under Section 79) also specifically empowers the website to regulate, disable and remove the content — if the person who has hosted it is not willing to remove it himself. The stricter clause relates to Section 69A, under which the government can, on its own, disable content by blocking the relevant web page on grounds of a specified five areas relating to national security, sovereignty, defence, public order, etc.

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