Backdoor Censorship Alias Intermediary Pre-Screening

Kapil Sibal's diktat to social networking sites to pre-screen user generated content has generated a fresh debate on the issue of freedom of expression. The Minister in an interview to the Hindu clarified that the intention was to block incendiary communal material posted on these sites. The minister further insists on the need to have standards on content that will be considered acceptable. sflc.in has the following observations on the issue.

1. Why the government is not above the law?
The Minister's demand for pre-screening of user generated content is not supported in any way by any Act or Rule. The demand is nothing other than bullying these social media sites to submit to the Government's demands and is plainly illegal. Such an action by the Government will not be a "procedure established by law", be clearly arbitrary and will not stand judicial scrutiny. In an interview given to IBNlive on December 9, 2011, the minister clarified that " I want the solution today and not wait for a long legal procedure. Any legal remedy will be absolutely impractical." Seriously, when it becomes onerous, let's resort to bullying? He further insisted that "The platforms are failing to live up to the law that they are themselves enforcing in their own country," Exactly Mr Minister, which country's law are we subject to?

2. The act is against international norms and standards. Almost all democratic countries, from the members of the European Union to the US(DMCA & Communications Decency Act) follow the principle of providing intermediaries protection from liabilities arising out of user generated content. This is also the principle behind Section 79 of the Information technology Act, 2000. Frank La Rue, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression in his report to the General Assembly states that "censorship measures should never be delegated to a private entity, and that no one should be held liable for content on the Internet of which they are not the author".

3. Technical impossibility Social media sites like Facebook and Twitter and blogging sites like Blogspot and Wordpress have millions of users and is humanly impossible to pre-screen each and every post on these sites. A report on Economic times states the number of users of Facebook in India at 43 million while Twitter and Google + have 3.5 million users each. The content uploaded by this user base on these sites ranging from text to images to video is so huge that it would require a huge work force to monitor and pre-screen this content. It is estimated that there are 140 million tweets posted on twitter per day, 250 million photos are uploaded per day on Facebook and 48 hours of video are uploaded every minute on on Youtube. The pre-screening process will also require these sites to modify the software running them to provide for a monitoring mechanism. Thus, mandating pre-screening of content is a technical impossibility and making the intermediaries liable for non-compliance with such directives is highly arbitrary.

4. Pre-screening is unconstitutional
A major concern here is the direct effect that such a pre-screening will have on freedom of speech and expression of citizens. The Supreme Court has held in Bennett Coleman case that while considering the constitutionality of a statue "The true test is whether the effect of the impugned action is to take away or abridge fundamental rights". It is true that freedom of speech is not absolute in India when compared to the 1st Amendment provision in the US, and reasonable restrictions can be imposed on it under Article 19(2) of the constitution. However the Courts have held that'if any limitation on the exercise of the fundamental right under Art. 19(1)(a) does not fall within the four corners of Art. 19(2) it cannot be upheld'. Pre-screening of user generated content with its wide discretion of what could be considered unacceptable content will surely result in violation of the fundamental rights of free speech. The Supreme Court has held in Brij Bbhushan v State of Delhi 1950 AIR 129 that pre-censorship of news paper content is unconstitutional. This would hold true in the case of online media too as the Internet is now a medium for public debate and discourse.

5. Private entities cannot be saddled with adjudicative functions Asking Facebook or Google to decide whether any content is unacceptable is akin to asking them to adjudicate on a legal dispute. These entities are least equipped to decide what constitutes defamation or hate speech and hence there is every chance that they will err on the side of caution and censor content which could be perfectly legal. This will have a chilling effect on free speech as evidenced by the sting operation carried out by CIS.

6. Destroying the crops while clearing the weeds The act of curbing the freedom of citizens in the light of a few isolated alleged instances of defamation against the Congress president or the Prime Minister is unacceptable and goes against the basic ideals cherished by the framers of our Constitution. It has been held in Romesh Thappar vs The State Of Madras, 1950 AIR 124 that ..

"Thus, very narrow and stringent limits have been set to permissible legislative abridgement of the right of free speech and expression, and this was doubtless due to the realisation that freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible. A freedom of such amplitude might involve risks of abuse. But the framers of the Constitution may well have reflected, with Madison who was "the leading spirit in the preparation of the First Amendment of the Federal Constitution," that "it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits.".

7. The right to have a dissenting view is important in a democracy.
The question of whether some content could be considered incendiary should not be based on how it could affect a person who is easily swayed. In the Tamas case the Supreme court held that the "effect of the words must be judged from the standards of reasonable, strong minded, firm and courageous men, and not those of weak and vacillating". The Government, here, instead of taking a firm stand on the issues of communal posting has in fact acted in a weak, yielding manner in trying to stifle freedom of expression altogether. Recently, there have been many instances of banning books or films on the flimsy reason that these could create law and order problems.

8. The intermediary rules are bad and this is worse The intermediary rules notified in April 2011 have resulted in back-door censorship of user generated content by its broad list of descriptions of unacceptable content that includes disparaging, blasphemous, grossly harmful and harassing. Various civil society organisation including sflc.in have been campaigning to get the rules amended and it is surprising to find that the Government has now gone one step ahead and come out with a proposal to pre-screen content. The rules by using vague expressions like blasphemous, grossly harmful, hateful and disparaging, without any legal basis in the parent act or other statutes, results in broadening of what is considered unacceptable content and forces the intermediaries to censor even legitimate content. The rules also affect the privacy of citizens by including provisions for government agencies to gain access to user information on a mere written request, without any safeguards against misuse, as mandated by the Supreme Court in the PUCL telephone tapping case. sflc.in has submitted a representation to the Parliamentary Committee on Sub-ordinate legislation which would review the rules.

We hope that the Government would reconsider the proposal and engage with various stake-holders to keep the Internet free and open.