Apar GuptaAn article published on the New York Times, India blog, “India Ink” has revealed a disturbing measure being contemplated to regulate user generated content on social networks such as Facebook and Google+. The article has disclosed that Mr. Kapil Sibal the Union Minister for Information and Technology:
called legal representatives from the top Internet service providers and Facebook into his New Delhi office, said one of the executives who was briefed on the meeting. At the meeting, Mr. Sibal showed attendees a Facebook page that maligned the Congress Party’s president, Sonia Gandhi. “This is unacceptable,” he told attendees, the executive said, and he asked them to find a way to monitor what is posted on their sites.In the second meeting with the same executives in late November, Mr. Sibal told them that he expected them to use human beings to screen content, not technology, the executive said. The three executives said Mr. Sibal has told these companies that he expects them to set up a proactive prescreening system, with staffers looking for objectionable content and deleting it before it is posted.
The publication of this article kicked up a storm with most newspapers picking up the story and the Minister feeling the need to address a press conference to clarify his stand. In this post I will point out how the proposals are not only without a legal basis but also if given the necessary legal framework could be termed as unconstitutional.
1. What is being proposed?
Before going further let us try to understand what kind of measure is being proposed by the GOI. As per the news story,
- the regulation will target user generated content on social networks;
- such user generated content will be screened before it is posted;
- the screening will be done by a person and not a technical process;
- the person who will be doing the screening will be a staffer of the social network.
2. is there a legal basis for this ?
As a lawyer who deals with laws which affect the technology sector I am yet to chance upon one which allows the government to make such demands. Even if we go with the government’s euphemism that this is only a consultation to devise ways to make these social networks more pro-active in their policing of their networks, it still remains without legal basis. On the contrary, the sparse law which is applicable points in the opposite direction and is resting on rewarding content providers to remain as passive conduits.
The law which is primarily contained under Sec. 79 of the Information Technology Act, 2000 incentivizes such passivity by providing the intermediaries immunity from prosecution for the content which is posted by their users. While it is true that these content providers have to act on complaints (and this ambit has been dangerously stretched by the Intermediaries Rules, 20111), they in no way have a legal obligation imposed by any law to be proactive in taking down content. Even under dangerously broad Intermediaries Rules, 2011 content providers are presumed to be deaf, dumb and blind to what’s going on their networks till someone informs them in writing.
3. What if they pass a law?
India does legally permit censorship, however it is permitted only through law which passes constitutional muster. One of the most frequent forms of how censorship is imposed on the public is the process of mandatory certification for movies which are exhibited publicly. To certify such movies, grant them certificates and classifications for restricted or unrestricted exhibition as well as to ask for revisions and cuts, a Censor Board has been created under the Cinematograph Act 1952.
Our Supreme Court in the case of K.A. Abbas v. Union of India, [1971] 2 SCR 446 examined the constitutional validity of the Cinematograph Act 1952 and whether it was permissible for the state to impose pre-publication censorship. Here it had to reconcile the opposing interests of freedom of speech and expression as well as concerns for public order, morality and safety. Even in this case, while upholding the Cinematograph Act 1952 the Court stated unequivocally that it’s finding was on a fine balance which when disturbed would render censorship unconstitutional. I have highlighted the reasoning of the Court under the heads below and then contrasted by contrasting them with the present proposal shown how it will in all likelihood be questioned as offending our fundamental right to freedom of speech and expression.
(a) That the medium which they were concerned was film and its ruling would not extend to print;
Hence, if the government does intent to bring a law which forces private content providers to police content it has to be limited to audio-visual content and cannot extend to print. Here a quote from another Supreme Court case is instructive:
22. We may now consider whether the State or its officials have the authority in law to impose a prior restraint upon publication of material defamatory of the State or of the officials, as the case may be ? We think not. No law empowering them to do so is brought to our notice. As observed in New York Times v. United State (24 (1971) 403 US 713 : 29 L Ed 2d 822 (197 1) 649), popularly known as the Pentagon papers case, “any system of prior restraints of (freedom of) expression comes to this Court bearing a heavy presumption against its constitutional validity” and that in such cases, the Government “carries a heavy burden of showing justification for the imposition of such a restraint”. We must accordingly hold that no such prior restraint or prohibition of publication can be imposed by the respondents upon the proposed publication of the alleged autobiography of “Auto Shankar” by the petitioners. This cannot be done either by the State or by its officials. In other words, neither the Government nor the officials who apprehend that they may be defamed, have the right to impose a prior restraint upon the publication of the alleged autobiography of Auto Shankar. The remedy of public officials/public figures, if any, will arise only after the publication and will be governed by the principles indicated herein. (In R. Rajagopal vs State Of T.N on 7 October, 1994)
(b) The pre-publication restraint was permitted as the restraint was enforced in each case distinctly by a government body;
Rather than setting up an expert body, the present proposals seem to outsource the scissors to the content providers themselves. Hence, rather than the State complaining for certain, specific items which it terms to be illegal it is instituting a network design for taking down content down en masse. To just get an idea as to how distinct this is from the present system of censorship imposed I am quoting the scheme of the Cinematograph Act 1952 below:
The Cinematograph Act 1952 (“The Act”) which permits censorship on movies is a comprehensive enactment. Section 3 of the Act provides for constitution of Board of Film Censors. Section 4 speaks of examination of films. A film is examined in the first instance by an Examining Committee. If it is not approved, it is further reviewed by a Revising Committee under Section 5. Section 5A states that if after examining a film or having it examined in the prescribed manner, the Board considers that the film is suitable for unrestricted public exhibition, such a certificate is given which is called ‘U’ certificate. Section 5(a) provides principles for guidance in certi- fying films. It is significant to note that Article 19(2) has been practically read into Section 5(B)(1). Section 5(C) confers right of appeal to Tribunal against refusal of certificate. Under Section 6, the Central Government has revisional power to call for the record of any proceeding in relation to any film at any stage, where it is not made the subject matter of appeal to the Appellate Tribunal. Under Section 8 of the Act, the Rules called the Cinematograph (Certification) Rules 1983 have been framed. Under Section 5(B)(2) the Central Government has prescribed certain guidelines for the Censors Board. Guideline (1) relates to the objectives of film censorship. The Board shall ensure that: (a) the medium of film remains responsible and sensitive to the values and standards of society; (b) artistic expression and creative freedom are not unduly curbed and © censorship is responsive to social change. Guideline (2) requires the Board to ensure that: (i) anti-social activities such as violence not glorified or justified; (ii) the modus operandi of criminal or other visuals or words likely to incite the commission of any offence are not depicted; (iii) pointless or avoidable scenes of violence, cruelty and horror are not shown; (iv) human sensibilities are not offended by vulgarity, obscenity and depravity; (vi) the sovereignty and integrity of India is not called in question; (vii) the security of the State is not jeopardised or endangered; (viii) friendly relations with foreign states are not strained; and (ix) Public Order is not endangered. (S. Rangarajan Etc vs P. Jagjivan Ram on 30 March, 1989)
There is no doubt there is incredible amount of content online which is defamatory and racially hateful. I agree with the minister that such content if found illegal has no basis to remain online. However, the finding of legality should be best left to a court or to an executive order, which is on a case to case basis and which contains reasons. It is to no one’s benefit other than unemployed telemarketers to make internet companies hire content supervisors who make subjective assessments and act as the purveyors of good taste.