Is freedom of expression more restricted on the Internet than in the real world? The 2011 amendments to the Information Technology (IT) Act, 2000, mean just that. There are two levels of restriction on free speech on the Internet, one decided by the Constitution, and the other by the IT Act.

In the Constitution, freedom of speech is not an absolute freedom—there are certain “reasonable restrictions", which deal with issues of national interest, such as causing communal unrest, for example. Section 66 of the IT Act, however, extends this to cover a much wider range of topics, including content that is “likely to cause offence" and “blasphemy".

Blogger Vidyut Kale has run www.aamjanta.com for six years. Mumbai-based Kale has written about corruption in the past and when someone sends her proof about a scam or a particular case, she posts the details on her website. In September, she received documents about a shady land deal and she published them. A fortnight later, she received a defamation notice. “I clarified the details on the blog, but where I had proofs, I kept the material about that scam on the site, and I would’ve been very happy to take it to court," she says.

A day later, she got a second notice, this time under the IT Act, ordering her to remove the post. This time, Kale felt she didn’t have an option because the rules themselves are not clear, and she could have been in the wrong even if the facts published online were correct.

And that highlights two big problems with the IT rules. First, it’s possible to censor almost anything. Second, they essentially empower private censorship.

Anyone can raise an objection to content and unless you remove or block the material, you may be held liable, as in Kale’s case. “The IT rules at no point need a government body to be involved; you can have content removed without a course of law or any other oversight. The process is never monitored or transparent," Kale says.

Anja Kovacs, a Delhi-based activist working with the Internet Democracy Project, a pan-Indian Internet and free speech advocacy group, says: “India has traditionally dealt with controversies by suppressing the information about them. There is a certain social acceptance of it, and this is also reflected in your laws for online restrictions on free speech. It’s ridiculous that the rights you have as a citizen go away when you are on the Internet."

What can be done?

In August, threats of violence caused an exodus of North-Eastern people from cities such as Bangalore. The pressure of protests led to meetings between the government and interested groups, such as Internet companies, Internet service providers (ISPs) and civil society groups to take suggestions to update the IT Act.

Experts say public awareness is the best way to bring about change. Alok Dixit, who alternates between Mumbai and Delhi, is a grass-roots activist who has been spreading awareness about the IT Act since the amendments in 2011. “Earlier, freedom of speech didn’t affect common people like me. It was an issue for a small handful of people. Painters, whose works drew ire, writers whose books were banned, politicians, these were the kind of people who cared about free speech, not the common man," says Dixit in Hindi.

“The common man is now heard at a larger level and free speech is an issue for us all. The laws, as they exist, are unfair, and so we have taken to going to small towns and holding blogger camps or holding protests at public spaces," he adds.

To get people involved, and interested, Save Your Voice holds public demonstrations. Dixit says, “One thing which gained a lot of attention was the Langda March (a protest about the lack of freedom on the World Wide Web)—where we dressed up with crutches and bandages, because without the Internet we are all handicapped. We’ve done this all over the country."

Kovacs agrees: “The problem is a larger one than just Internet censorship. The laws, as they exist, are very bad but the real issue is a high level of tolerance for censorship in India. You have to get the people involved."

Issues with the Act

Prabir Purkayastha of Knowledge Commons, an organization that supports open-source movements, explains: “There was a case in 2004 where the (then) CEO of Baazee.com (an online marketplace), Avnish Bajaj, was taken to court because someone else used the site to auction a pornographic MMS. The seller was anonymous, so when the Act was invoked, Bajaj was the only person who could be held liable.

Section 79 was added to the Act to address this shortcoming, and was meant to provide protection to intermediaries. “If someone finds content objectionable, then instead of taking the matter to court, they could ask the intermediary to remove the content. The intermediary is given 36 hours to check the content and provide a response, so if the intermediary doesn’t find the content offensive, they don’t have to remove it."

This left loopholes which could be exploited to make the “intermediaries" (including Internet service providers such as Reliance and Airtel) act as censors. As Purkayastha notes with a chuckle, “In India, everything is offensive to someone." And as Kovacs points out, “The Act doesn’t define ‘interested parties’ so anyone at all can file a complaint against content on the Internet."

Making the intermediary responsible for content in this manner incentivises censorship—for while a Google or Facebook can stand up to the time and cost of a court trial for not removing content, a small start-up can not.

Kovacs says: “Section 79 is extremely bad for any Internet start-up. For a country which is so proud of its role as an online power, it is ridiculous that the Indian government insists on defending a law which penalizes online start-ups, and does so in a way which it would not for offline business."

Against free speech

Sunil Abraham of The Centre for Internet and Society in Bangalore sums up some of the big issues with the IT Act: “The real ID requirement for mobile phones, Internet services and cyber cafés means that you have no actual anonymous speech.

“This is compounded by unconstitutional limits on communication, and there are also problems with intermediary liability. The person who was censored is not told about it, and the general public is also not told. You can’t get your speech reinstated. Private actors engage in censorship without the involvement of the court," he says.

The solution, Kovacs believes, is to more deeply involve the judiciary. “The courts definitely need a bigger role in this. Today, the way the law is set up, private companies are being asked to make decisions around censorship, and that is completely wrong. There is no precedent to draw upon, any legal guidelines, and only vague Acts."

In fact, according to Apar Gupta, a Delhi-based lawyer working with Internet companies, the courts see things a little differently from the government.

“There isn’t much precedent on the matter at present, but given the technical limitations of blocks, the only feasible solutions are wide censorship, which is against the Indian Constitution," Gupta says, adding: “There is a 2001 judgement which has a bearing on this. A PIL (public interest litigation) was filed in the Bombay high court where the petitioner said that Indian laws prohibit pornography, so the court is obligated to devise a mechanism to block porn sites in India. The court actually commissioned a study with advocates and technical experts, and the final judgement stated that the Act would constitute censorship because of unscientific filtering technology. It is simply not technologically feasible."

For Kale, the legal advice was that since she is the author of the post, and not just the publisher, the intermediary rules (Section 79) do not have to apply to her. She has written to the lawyers she got the notice from, and is waiting for their response. But as she points out, “This all happens quietly and there is no way to tell if someone has been silenced. The law is definitely easy to abuse and needs to change."

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The Information Technology Act, 2000 (amended in 2011)

Why it is important

The Internet is now intertwined with most aspects of day-to-day life. The existing laws are nebulous and unclear, and online this can lead to censorship that is not possible in other public forums. If the government takes on board the suggestions from stakeholders it could lead to greater transparency and accountability. Also, the courts should be involved in decisions on the acceptability of content—the current rules incentivise intermediaries to remove content themselves without giving the content owners a chance to defend their work.

What we need to discuss further

uThe Act was substantially amended in 2008 and later in 2011, and includes Section 79, to provide “safe harbour" to intermediaries such as Baazee. However, experts say the rules are framed in a way that encourages censorship by intermediaries.

uThe Act’s criteria for restrictions on free speech allow for a wide interpretation, over and above the restrictions in the Constitution.

uThere is no “put back" clause in the IT Act, or any other recourse for people whose content has been blocked. According to the Act, intermediaries must decide whether or not to block content, essentially asking companies to make decisions about the validity of content.

uThere is a complete lack of transparency and oversight under the current rules. It’s possible to act without issuing a notice to the content creator or to block content without any government oversight.

Source: The Centre for Internet and Society, Knowledge Commons and the Internet Democracy Project.

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HOW YOU CAN CONTRIBUTE

THE CENTRE FOR INTERNET AND SOCIETY

One of the biggest organized initiatives to protect consumer and citizen rights on the Internet, working in a wide range of areas, from free speech to adding Indic scripts content on Wikipedia, CIS is involved in both research and grass-roots activities.

What it needs

The Bangalore-based organization manages a fund which is used to carry out on-ground activities and research work and pay the salaries of people involved in the project. The group also hires interns to help with various projects.

Contact

Write a cheque in favour of The Centre for Internet and Society and mail it to No. 194, 2nd C Cross, Domlur, 2nd Stage, Bangalore, or visit www.cis-india.org

INTERNET DEMOCRACY PROJECT

Research, advocacy and debate to unearth the changes wrought by technology on democracy and the implications of these changes for progressive development.

What it needs

The group needs people with good research and writing skills, strong communicators who are media-savvy and willing to travel.

Contact

People interested in working with the Internet Democracy Project can write to anja@internetdemocracy.in

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