Minister clarifies, concerns continue

An interview given by Mr. Kapil Sibal, Union Minister for IT and Telecom on NDTV clarifies that he did not ever intend or propose to place a pre-screening mechanism for user generated content on social networking websites in India. You can watch part of the video here (Kapil Sibal’s Interview with Barkha Dutt | Dec. 9, 2011).

He also categorically stated that the NYT before running the story did not contact him and did not confirm the quotes attributed to him.

Other notable points from the interview

  1. He called representatives from various social media companies (such as Facebook and Google) and showed them content which due to its religious insensitivity had the capability to incite riots. In the meeting only content which was grossly offensive on communal and religious lines was discussed. There was no discussion of political criticism and he welcomed satire.
  2. No pre-publication screening for such content was suggested in the meeting however he wanted them to evolve a mechanism for taking down such content.
  3. Though he agreed with the principle of such companies being passive intermediaries, since they did not reveal the identity of the users who posted the content there was no option but to make them liable. He also sated that the present system of getting court orders was long and arduous and due it prolixity there was a need to evolve a better mechanism for taking down such content.
  4. This was entirely a “consultative” process and it was not made public due to the nature of the content which was considered dangerous.
  5. Out of the 280+ items in the Google Transparency Report which were requested for removal by various government authorities in India, his ministry only asked for the takedown of 3–4 items, on which no action has been taken by Google.

the deficit thing

The interview paints the Minister’s efforts to explore solutions to illegal online content rather than to place a straight-jacket on internet freedom. To be fair, it is quite possible that the proposals made by him during this private consultation were not so egregious as well. Moreover, now there is a clear statement on record that there is no proposal to pre-screen user generated content.

Even with this clarification, I sense a lingering sense of doubt and distrust amongst the chatter on Facebook and Twitter. Going beyond broader reasons such as a general distrust of government and the ramdev-anna hazare ruckus, this lack of confidence in the Ministers statements may remain for sometime due to a couple of reasons.

First amongst them is the consultative process and the content of the Information Technology (Intermediaries Guidelines) Rules 2011 which were formed in April, 2011. These rules prescribe broad subjective standards on which any person can directly complain to an internet company to take down content within 36 hours.

When these rules were first proposed as a draft, they were extensively critised by internet companies, trade associations, industry experts, civil society groups and lawyers engaged in the area (me!). There was also several articles which highlighted the dangers to online speech and expression if those draft rules were made into law.

However, at the end of the consultation process, not only did the Ministry of IT make the draft rules into law with cursory changes, but it also resisted disclosing the responses it received through the public consultation. (Nikhil Pahwa from Medianama has gathered these responses through filing an RTI).

After such an experience many in the online community started doubting the intentions of the government. Following this civil society organisations such as Software Freedom Law Center, India (SFLC) started an online signature campaign to have the rules examined by the parliamentary committee on subordinate legislation. It is also relevant to note that an unpublished empirical study by CIS has confirmed the chilling effect of the Intermediaries Rules, 2011 on online speech.

Private Consultation ?

In this background, the words, “private consultation” seem nothing but a euphemism for secrecy and coercion. While one may assume, that the content under discussion was extremely inflammatory and could lead to riots it is beyond assumption that the meetings were to examine and evolve a broader framework. Here it is quite possible that a wider public consultation could be opened up without reference to these specific items which are considered inflammatory.

Not only is this possible, but this is also appropriate as making reference to specific inflammatory items may act as using extreme examples which are an exception to the large body of content which is eminently legal. In using such examples there is also a danger of cherry picking examples to design an excessively stringent regulation.

Though the consultation happened in the ministers office, the debate on internet freedom and the framework for internet content regulation has seen broad public participation over the past week. It can only be hoped that the Minister picks up on the sentiment on twitter, facebook and orkut and involve all stakeholders in a formal consultation on internet content regulation.

social media is our canvas

One of the many complimentary stories of Mr. Kapil Sibal when he was a leading member of the Supreme Court bar is of his defense of M.F. Hussain. In large part due to Mr. Sibal’s intelligence and good sense we had the benefit of Indian Courts resisting claims to penalize one our most brilliant contemporary artists.

It is the same defense of expression and speech the Internet community expects from the Minister. Having a wide public consultation and preserving our constitutional rights to speech and expression are two essential first steps in this.

(As a extra nugget, click here to see Mr. Kapil Sibal as painted by M.F. Hussain)

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