Will we follow China in imposing restriction on Social Networking websites?

Delhi HC Judge, Justice Suresh Kait’s recent ‘threat’ in relation to imposing a ban on social networking sites such as Facebook, Google, Yahoo etc. has attracted substantial criticism. The civil judge instructed these sites to remove any “anti-religious” or “anti-social” contents by February 6, 2012 even while the media and public kicks up a hornet’s nest on the issue.

The matter stemmed from the Government filing inter alia, the following charges against 21 parties:

• Section 292, Indian Penal Code (IPC): penalizing the sale, possession, exhibition, distribution, circulation etc of representations that appeal to the prurient interest and tend to deprave and corrupt person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.

• Section 153 A IPC: Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.

• Section 153B IPC: Publishing imputations, assertions prejudicial to national-integration.

• Section 295A IPC: punish deliberate or malicious intent to insults or attempt to insult the religious sentiments of the citizens of India by words, either spoken or written, or by signs or by visible representations or otherwise.

Thus have Indian Courts made an attempt to leash the digital dragons of the internet with the shackles of penal provisions. What remains to be seen is how effective these provisions can be, when applied on subjects not contemplated by the drafters of the Code for curbing freedom of speech and expression on the internet.

There are two points that I’d like to make through this post.

One, my disapproval of the charges framed, which I believe is due to the ambiguity in the IPC. These ambiguities make themselves apparent when the Indian position is compared to that in the United States. The second is, that maintaining editorial control over content posted on such sites cannot be filtered before publication.

An examination of the laws raise the question: how do you define a‘publisher’? To make understanding the legal soundness of the charges easy, one must juxtapose these charges with the relevant provisions of United States law, which is more specific to cyber crime.

For the sake of brevity, the position of US law can be thus briefly summarized: it is clear that sites like Facebook are distributors, similar to booksellers, news vendors and libraries, and thus have no liability for libel unless they are negligent. They could be considered as publishers by the fact that they have editorial control over their publication (here, website or online forum).

How did this position evolve?

Section 230 of the Communications Decency Act of 1996 (CDA) protects providers of an interactive computer services such as blogs, websites, online forums etc immunity from tort liability so long as such information is provided by a third party. Section 230 does not allow such providers to be treated as publishers. In Cubby Inc. v. CompuServe Inc. (1991) the defence of ISPs being a distributor, not publisher was accepted and CompuServe was classified as a functional equivalent of a lending library. However the decision went in the opposite direction in Stratton Oakmount v. Prodigy (1995) because the site had content guidelines and an enforcement mechanism thus exercising editorial control over its content. The US District Court in Zeran v. AOL (1997) protected AOL in accordance to the rules in section 230 of CDA, since the information posted was by a third party. The position became clearer in Lunney v. Prodigy Services Company Opinion (1999) wherein the Court of Appeals held that it was not justified to impose a duty on ISPs to “employ a process for verification of the bona fides.” However the recent case of Finkel v. Facebook (2009) made the position in this context clearer. It was held that “there was no claim Facebook had any hand in creating the allegedly defamatory content,” although some of its users had. The Court rejected the plaintiff’s allegation that Facebook took an ownership interest in the private group’s messages.

It is now appropriate to examine the charges filed by the Government. It is necessary that the charges be examined ‘through the web’ of the Information Technology Act, 2000. Despite that no provision of the IT Act is a perfect fit into the situation like the CDA of the United States, s. 66A of the IT Act penalizes sending of any content which is of offensive nature or menacing character. By s. 69A (1) the Central Government can compel social networking sites to block access to their contents if they are likely to affect the sovereignty, integrity, defence, security of the country and friendly relationship with foreign states or if they constitute incitement to an offence. Any failure on the part of the ISP can attract prosecution as co accused. Thus, in a way they have a duty to remain duly diligent about their content.

How realistic is that, though? Consider the facts. There are billions of users of such sites. Those billions of users post several gigabytes of data every minute. Given this immense flow of traffic, it is humanely impossible to filter or monitor everything posted before it is published. The automated filter on such sites is incapable of filtering defamatory content as such matter is contextual in nature. Google issued a statement saying that they have a mechanism of taking down content that is illegal as per the local law. However, if the matter is legal but controversial, peoples’ differing views must be respected. In addition, when certain content is reported by other users as unacceptable, the content is taken down.

The crux of the matter is: the charges filed by the Government are ultimately  ambiguous, as the IPC has not been duly amended as per the IT Act, and the shortcomings of the IT Act do not make it clear if online ‘publication’ means ‘circulation’. Bennett Coleman & Co. v. Union of India held that that ‘publication means dissemination and circulation’, but it is not yet clear if the term publication includes circulation of information in electronic form. Thus, ‘publication’ needs to be defined in the perspective of the IT Act and charges have to be framed accordingly.

This brings us to another aspect pertaining to intention or a guilty mind. It is relevant to note that, charges under s. 153A and 295A require an essential component of mens rea which cannot be proved against the service provider since it is the user who has generated the information, not the service provider. Moreover, the service provider can be prosecuted as co accused and the entire responsibility of the content cannot be imputed to them. The third party generating the defamatory matter must be included as a party too.

It is thus clear that India needs laws like the CDA which not only lay down the liabilities of the service provider with clarity, but also are at par with the technological developments unlike the IPC. I believe that certain provisions in the IPC are obsolete and cannot be saved even if constructed harmoniously with the IT Act. Besides, concern about monitoring and filtering content do not hold good due to practical difficulties which cannot be completely overcome.

We’re all too old to be told how important free speech is. Free views and thinking is the very basis of a democracy; it stems from lack of fear and paves way for development of a mature and tolerant society. According to The Living Internet, the internet is a world community and no community’s standards can govern the type of speech permissible on the internet. Our Government needs to realize that network neutrality is the call of a free society. It requires all information to be treated equally, without censorship, blocking or delay. However, censorship must be imposed only when the content meets certain criteria. The first few bits that we had read about our Constitution included Article 19 (1) (g). No doubt, 19 (2) spoke about restrictions, but it must be noted that it spoke of ‘reasonable restrictions’. Censoring or blocking speech on the internet is in no way reasonable as it is an attempt to choke free speech. There is no doubt that freedom of speech cannot excuse immoral, defamatory, blasphemous or seditious content. But there is no excuse for killing speech before dissemination. Thus, it is unjust on the part of the High Court to demand social networking sites to regulate their content even before it is published. Furthermore, it is inconceivable for the Court to ban social networking sites in the country. After all, man is a social animal.