Saturday, 21 January 2012

Censorsing Online Content (Part-I)

Geeta Seshu
Columnist, The Hoot 

A whole host of issues, from the definition of "offensive" content, the procedures to take down content deemed offensive and the responsibilities and jurisdiction of intermediaries are all at stake in the ongoing case against Internet Service Providers (ISPs) Google and Facebook. However, the crucial issue is how exactly a civilized society must tackle content that is seen to be "objectionable" at sites that poke fun at holy cows (political leaders included) and utterances or material that seem to be derogatory to different religions or castes or mischievous and defamatory, violative of privacy or hate-filled content that incites violence. 

Print media has had a long history of battles over content that is problematic, with the fundamental right to freedom of speech and expression being tested at every turn. In broadcast media, the struggle over self-regulation by the broadcast industry is still an open one, as the Indian government periodically speaks of the need to have stringent regulations but also affirms a commitment to self-regulation. The Internet has been a medium without borders, according a much higher degree of permanence to content, than say, broadcast media. Social networking sites and blogs on the Internet have been struggling to define the lines between the public and private domain and a good example of how Indian society has viewed this is the suspension of students who posted messages and status updates expressing their hatred for some teacher or the other on their own Facebook pages. 

Clearly, each instance will only our test our commitment to freedom of expression and help us refine our own understanding of the limits to free speech or of the legitimacy of restrictions that are sought by governments at different points in time. The unseemly rush to initiate punitive action against Google, Facebook and other sites illustrates our systemic inability to deal with "problematic" content. Our laws only fossilize this intolerance. What is more essential at this stage is an open debate and discussion on these issues instead of rushing towards punitive action or privately sponsored agendas that smack of vendetta or seek to crack down on dissent. Do we have what it takes for an open debate? 

The companies have challenged Metropolitan Magistrate Sudesh Kumar's summons in the Delhi High Court. The summons were issued on December 23, 2011 following a private criminal complaint filed by Vinay Rai, a journalist with an Urdu weekly "Akbari", that content on 21 sites, including Google, Orkut, Youtube and Facebook were objectionable and could promote enmity between different groups. The next hearing of the case challenging the summons is on February 2 in the Delhi High Court while the case in the metropolitan court is scheduled for March 13. The Delhi High Court has not given any stay on the summons issued by the metropolitan court. 

Senior Supreme Court advocate Mukul Rohatgi, who is representing Google told this writer that the summons were violative of Articles 19 and 21 of the Indian Constitution. "We will not leave this matter. We are willing to go up to the Supreme Court if necessary," he said. Earlier, Vinay Rai had provided the trial court with "evidence" (in a sealed envelope) of content in 21 websites deemed offensive to Hindu and Muslim religious figures as well as Indian politicians. In his order, the magistrate maintained that the publication of these "offensive and inflammatory material which has a tendency to inflame minds' cannot be considered an expression of freedom of speech." The summons were issued under Sections 292 and 293 (obscenity and sale of obscene material) and 120-B (criminal conspiracy) of the Indian Penal Code. Furthermore, the order said that prima facie the accused are also liable to the summoned for offences under section 153-A (promoting enmity between classes), 153-B (assertion prejudicial to national integration) and 295-A (insulting religion or religious belief of any class) IPC but due to an embargo under section 196 of the Code of Criminal Procedure, the court cannot summon them under these offences without prior sanction of the Central or state government or district magistrate.

The petitions before the Delhi High Court from Google and Facebook challenging the summons received no relief in that no stay was granted by the court. Justice Suresh Kait, hearing the petition, has observed that there was no undue haste in hearing the matter and in contrast, it was urgent enough to be taken up promptly. The judge also expressed annoyance at the response of the company when asked for the URL of a website: "You are taking the matter very casually. When I have given you a website address, you are raising more questions. One of the articles shows a national leader in bad light. Such things could be posted about a family member of nay of us and maybe we will then act promptly." The Indian government also sanctioned for the prosecution of the companies for hosting obscene content and content that promotes enmity between ethnic and racial groups.  

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