Last week, a US judge ruled that a search engine’s right to censor was part of its free speech rights. The ruling was about Chinese search engine Baidu, and its blocking of articles and videos that advocated greater democracy in China. Eight New York writers and video producers had brought the suit, saying Baidu users could not see their work. Since Baidu has 78% of the search market in China, the block was wiping them out of the public discourse in China.
The judge did not buy their argument and said, “The First Amendment protects Baidu’s right to advocate for systems of government other than democracy (in China or elsewhere) just as surely as it protects plaintiffs’ rights to advocate for democracy.” He likened a search engine’s “editorial judgment” to that of a newspaper editor, who decides which stories to publish.
This ruling has a bearing on the future of the Internet. So will the Indian Supreme Court’s hearing next week of a bunch of petitions regarding the constitutionality of the amendments brought to the Information Technology (IT) Act in 2008, including section 66A, which has caused much grief. It criminalizes electronic mail or messages which are “grossly offensive” or “menacing” or cause “annoyance” or “inconvenience” and so on.
Six of the eight petitions the Supreme Court will take up relate to the constitutionality of section 66A, three of the petitions relate to the constitutionality of the Information Technology (Intermediaries Guidelines) Rules, 2011. Though section 79 of the IT Act exempts intermediaries from liability for the content they carry in certain cases, the rules water down these exemptions and force intermediaries to screen content and exercise online censorship.
One of the cases filed, a writ petition by website MouthShut.com, argues that the rules place unreasonable restrictions on the exercise of free speech and expression, as well as the freedom to practise any profession, or to carry out any occupation, trade or business as guaranteed by Articles 19(1)(a) and 19(1)(g) of the Constitution.
As for section 66A, the last few years have seen a string of arrests of citizens under this section for posting “objectionable” content online.
The Supreme Court has directed that these eight cases be listed to be heard on merit on 11 April. Substantial questions of technology law, which have an impact on civil liberties and business, are at stake.
In the run-up to next week’s review, public discussion on this issue has identified two problems to be dealt with. One, the rule of law requires certainty and definitiveness, not vague terms such as offensive, or menacing, which are open to very varying interpretation. Two, the amendments passed by Parliament in the aftermath of the 26/11 Mumbai terror attacks and the rules written for these amendments cover certain classes of speech which are not part of the exceptions to free speech listed in the Constitution.
As the petition submitted by member of Parliament Rajeev Chandrasekhar puts it, section 66A “imposes statutory limits on the exercise of Internet freedom which are well beyond the Constitutional parameters of ‘reasonable restrictions’ enshrined in Article 19(2)”. And its operation “has led to a constitutionally unsustainable position wherein the protection afforded to free speech under the Constitution is practically done away with on the Internet”.
The intermediary guideline rules are equally amazing in listing the types of information which cannot be carried on a computer system and in decreeing that these need to be taken down in 36 hours when notice is given by the government to the Internet services provider (ISP). Now the apex court is being asked to take a call on what these laws do to a citizen’s freedom to use the Internet.
In the first three months of this year, there have already been five instances of cyber censorship including a Hyderabad ISP blocking MouthShut.com for a few days without giving any reason. Over the past one year, the government asked for 1,299 URLs, or websites, to be blocked by social networking sites.
Earlier this year, US telecom firm Verizon said India was one of the five countries that had asked it to block websites. The latest Google transparency report puts India’s 2,513 requests for user data at the fourth highest among the world’s governments.
Now that we are in an election season with much debate about the direction the country needs to take, has anyone been asking our aspiring prime ministers where they stand on freedom of expression and the matter of regulating the Internet? Or even what their broadband policy is, so that rich or poor, every Indian can have access to the Internet? Why is it not a political issue?
There is more to the Internet than social media, and using the latter as a campaign tool. But the limited vision that journalists have does not allow them to see beyond their squeaky excitement on how a politician is using YouTube and Twitter. They cannot conceive of the Internet as a something that the political class can shape, not merely use. The media’s poverty of imagination has led to Internet policy and freedom of expression being left out as a campaign issue.
Sevanti Ninan is a media critic, author and editor of the media watch website thehoot.org. She examines the larger issues related to the media in a fortnightly column.