Before taking social networking sites to court, he should have first invoked the ‘take down' provision in Indian cyber law on objectionable content. That even the government is ignoring this mechanism and instead advocating prior restraint is especially worrisome.

On December 23, 2011, in a criminal case filed by Vinay Rai, editor of a Delhi-based Urdu daily called Akbari, the Metropolitan Magistrate, Patiala House, directed the Ministry of External Affairs to have summons served on over 21 websites based abroad on the grounds that offences of sale of obscene books and obscene objects to young persons and criminal conspiracy could be made out against these sites under sections 109, 120-B, 153(A), 153(B), 292, 293, 295(A), 298 and 500 of the Indian Penal Code (IPC).

The Department of Information Technology reportedly submitted to the Metropolitan Magistrate that the “Government of India, after being satisfied that such content are (sic) violative of the provisions of the Information Technology (Intermediaries Guidelines) Rules, 2011, found it appropriate to grant sanction under section 196 of the Criminal Procedure Code to proceed against the accused persons in the aforesaid complaint in national harmony, integration and national interest.”

The websites concerned appealed the Magistrate's order and sought an order quashing the criminal summons in the Delhi High Court which was denied. Instead, on January 13, 2011, the Delhi High Court granted sanction to prosecute Google, Facebook, Yahoo and 18 other social networking sites for allegedly promoting enmity between different groups and causing prejudice to national integration under the above-mentioned sections of the IPC. Justice Sait of the Delhi High Court warned that the websites could be blocked as in China if the websites failed to find a way to remove the objectionable material.

Cyber laws

Interestingly, despite the Department of Information Technology's report that the content was violative of the IT (Intermediaries Guidelines) Rules 2011, Vinay Rai never sought to invoke section 79 of the Information Technology (IT) Act and the IT (Intermedaries Guidelines) Rules 2011, of which Rule 3(4) is clear that any ISP or other intermediary, upon receipt of an email or other written complaint by any affected person about any information falling within the specified categories, has 36 hours to disable access to such information.

What are the categories? Rule 3(2)(b) expressly includes obscene content. It further includes content that is “hateful or racially, ethnically or otherwise objectionable.” Rule 3(2)(e) includes content that “violates any law for the time being in force.” Rule 3(2)(i) applies to content that “threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any other nation.”

But Vinay Rai chose not to send an email to Google, Facebook, Yahoo or the other sites asking them to remove the offensive content even though they would be required to do so within 36 hours under the Rules. He reportedly stated, “I did not think it appropriate to speak to private parties. We met the Ministry on this issue as we thought there was no point speaking to these private companies.” Instead, he approached the Ministry of Information Technology. When the Ministry took no action “despite constant reminders and follow ups from my end,” he proceeded to file a criminal complaint against the websites concerned under the IPC.

Even more curious is why the ministry itself has chosen to advocate prior censorship of content on the web in the name of self-regulation instead of invoking the take-down provisions provided for in its own guidelines. Since August 2011, Mr. Kapil Sibal, Minister of Communications and Information Technology, has reportedly held meetings with the Indian heads of Facebook, Google, Microsoft and Yahoo and expressed concern regarding content on the sites hosted by these companies which maligned politicians and religious figures. The executives were reportedly shown content from their sites that could hurt religious sensibilities, as well as obscene images of Indian political leaders, and were told to screen user content and remove offensive material before it was uploaded. In particular, the executives were shown a Facebook page that maligned Congress president Sonia Gandhi. Notably, no other specifics of the objectionable content have been reported in the press.

Initially, the executives from all the above-mentioned companies refused to agree to screen user content and remove content it found offensive or incendiary. Subsequently, each of these companies has been capitulating more or less to the demands of the government.

It is extremely troubling that the government advocates prior restraint and pre-screening of the allegedly objectionable content instead of following the procedures provided under law.

Requests to remove content

Whether the objectionable content is limited to criticism of political leaders or whether it is truly content that is obscene or threatens the peace and harmony of the nation can be judged by the following numbers: from July to December 2010, Google reportedly received requests to remove 236 communities and profiles from Orkut because they were “critical of a local politician.”

“In the first half of 2011, there were requests to remove 236 communities for criticism of the government while there were 19 requests to remove on grounds of impersonation and pornography.” According to Google's Transparency Report, in 2009, they complied with 77 per cent of the requests. However, in the last half of 2010, Google agreed to remove only 22 per cent as the company felt that the requests did not violate the community standards or local laws.

The government's attempts to impose prior censorship of content on the web is in flagrant disregard of well-established law laid down by the Supreme Court of India in which time and place restraints on free speech may be necessary in certain circumstances, for example, a restriction on shouting “fire” in a crowded theatre. A blanket prior restraint or censorship of content is squarely in violation of the constitutional right to freedom of speech in India as well as in the U.S. and other democratic countries. Moreover, it is of great concern that the mechanisms provided under Indian cyber law, namely, the take-down provisions are not being invoked either by the government or by litigants such as Vinay Rai who prefer criminal prosecution over sending an email to a website asking them to disable offending content. Sadly, if the rule of law either in the field of cyber law or constitutional rights is not followed and the government succeeds in imposing prior censorship of internet content, the telling observation by Twitter, “we will enter countries that have different ideas about the contours of freedom of expression” would be an apt description for India.

( The writer is with Viswanathan & Co., Advocates, New Delhi, Bangalore and Chennai.)