Sunday, 22 January 2012

Censoring Online Content (Part-II)

Geeta Seshu,
Columnist, The Hoot

In subsequent hearings, Google India maintained that it was not a service provider but was a subsidiary of Google Inc. Moreover, it was a separate entity distinct from its holding US-based firm. Advocate Rohatgi agreed that articles that may seem objectionable do keep cropping up on the Internet. "There are probably billions of articles and it would be difficult to filter them all. But, if you do have a grievance, under the amended Information Technology Act, 2000, there was a procedure for registering abuse and making a complaint to all social networking sites about the matter that may be "objectionable", he felt.

"Some solution can be found but this remedy is far worse than the disease," he said, adding that he had never seen any government so proactive on any issue. Google India, he had explained to the court, was only a subsidiary and did not have the werewithal to provide filters or block content or sites. In criminal law, there is no vicarious liability for the company, he averred. 

What is the genesis of the present fracas? Perhaps, it is in the objections raised by Union Information and Technology minister Kapil Sibal last December when he held meetings with the ISPs Google, Facebook, Microsoft and Yahoo! to screen online content. The move led to widespread condemnation, as netizens expressed fears of censorship of online content. The minister was forced to backtrack and clarify that he and his government were, in fact, committed to freedom of expression and were not in favour of censorship. (Interestingly, Vinay Rai has gone on record to state that he did not file complaints with the social networking sites and instead, pursued the matter with the IT ministry for over a year before the latter called for a meeting with the ISPs). 

Perhaps the genesis of the current fracas is in the IT rules framed in connection with the amended IT Act. For long, online freedom activists have pointed out that the rules are draconian and open to extremely wide interpretation. The intermediaries are expected to take down content within 36 hours of receiving a complaint of "objectionable" material. What is deemed to be "objectionable" is anything that is seen to be:

"grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever; 

c) harm minors in any way
d) infringes any patent, trademark, copyright or other proprietary rights.
e) violates any law for the time being in force;
f) deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;
g) impersonate another person;
h) contains software viruses or any computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource;
i) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any other nation.

It appears that the complainant, Vinay Rai, decided to bypass this provision under the IT Act and directly seek the removal of the content by filing a criminal complaint under the IPC and CrPC. 

In this free-for-all, everyone gets to be censor and regulator--true democracy, anyone?

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