Updated 24 May, 2012, 1:00 pm IST

What Sibal's censorship means for us

09 Dec, 2011, 6:37 pm IST | by Padmini Harchandrai , Naina Khedekar

Earlier this week, Kapil Sibal, the Minister of Communications and Information Technology expressed his ...

Earlier this week, Kapil Sibal, the Minister of Communications and Information Technology expressed his desire to web services like Facebook and Google to pre-screen material that may be considered offensive, inflammatory and/or defamatory. The examples he showed the services, included a Facebook page where Sonia Gandhi and Manmohan Singh were not portrayed in a very good light, as well as examples of religious intolerance on the social networks. Facebook and Google already have facilities in place to report offensive content and removal of offensive content. However, setting up a human task force to pre-screen content and ensure its removal is a task too big for the tech giants. For one, the amount of content that Indian web users produce on a daily basis is far too much for the services to possibly screen. The other problem is that their employees cannot be held responsible for deciding which content is offensive and which isn’t.

We reached out to Google and Facebook for their thoughts on the matter, but the two giants have remained relatively silent. The only statement Google was ready to make on the matter was issued by a spokesperson. They said, “We believe that access to information is the foundation of a free society. Google Search helps spread knowledge, enabling people to find out about almost anything by typing a few words into a computer. And services like YouTube and Google+ help users to express themselves and share different points of view. Where content is illegal or breaks our terms of service we will continue to remove it.”

Facebook too has remained prudently limited in their statement making on the matter. When we reached out to them, all they said was, “We want Facebook to be a place where people can discuss things freely, while respecting the rights and feelings of others, which is why we have already have policies and on-site features in place that enable people to report abusive content. We will remove any content that violates our terms, which are designed to keep material that is hateful, threatening, incites violence or contains nudity off the service. We recognize the government’s interest in minimizing the amount of abusive content that is available online and will continue to engage with the Indian authorities as they debate this important issue".

Kapil wants to pre-screen the internet

A huge question in the debate is whether Sibal is within his legal right to demand what he is and how it will affect fundamental rights of Indian citizens. We spoke to Pavan Duggal, Supreme Court Advocate and Cyberlaw expert. On the legality of Sibal’s request, he stated, “There is no law in the country that makes it legal to pre-screen non-commercial content that goes online. The Information Technology Act, 2000 is silent on the same, although the same grants tremendous powers of interception, monitoring, decryption and blocking to the Government. Any pre-screening of non-commercial content is going to directly affect the right to freedom of speech and expression of the user. Further such pre-screening may not qualify as reasonable restrictions under Article 19(2) of the Constitution of India and may spell the death nail of real time communication, being an essential element of Internet and social media.”

As Duggal says in his statement, pre-screening of non-commercial content is going to directly affect the right to freedom of speech and expression. Pre-screening becomes an issue when negative opinions voiced get pinned as defamatory. We asked Duggal how defamation is defined. He said, “The Information Technology Act, 2000 does not define what is defamation when opinions are put online. We have to be guided by Section 499 IPC regarding the definition of defamation. Merely negative opinions may not be defamatory. If negative opinions publish imputations concerning any person, intending to harm or knowing or having reason to believe that such imputation will harm the reputation of such person then such negative opinion expressed on a forum shall be considered defamatory.”

The problem here is that a group of humans have to decide what is defamatory and what isn’t. Possibly within a time crunch like a couple of minutes. There aren’t any algorithms for this and if there were, they would be highly faulty. Duggal says, “It is much better to ask service providers to have comprehensive terms and conditions and procedures and processes to take down undesirable content then to preemptively screen content. Further preemptively screening content is neither technologically nor legally possible.”

Freedom of speech is often a cause of worry taking into account the whole social networking scenario. In a one off incident earlier this year, Vodafone had sued its customer, Dhaval Valia, over ‘defamatory posts’ on his Facebook wall over the network provider’s 3G services. However, the company was counter sued by the customer and one of the reasons was sneaking into private data. Eventually, Vodafone withdrew the notice and even apologized for the inconvenience caused.