Mr Kapil Sibal was quoted by the Hindu today as saying that "he had been left with no choice" because the internet companies "refused to delete incendiary hate-speech."
In response, Google pointed to its Transparency Report which effectively demolishes Mr Sibal's claims, as it points out that out of 358 items requested to be removed in the period Jan-June 2011, only 8 requests pertained to hate speech, while there were as many as 255 complaints against "Government criticism".
Google also told Medianama:
“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.”
Mr Sibal's claims fail to stand up to scrutiny and are contradicted by another, yet unpublished, draft report by the Centre for Internet and Society (CIS) which shows that intermediaries are erring “on the side of caution” and "over-complying after complaints are filed" and that free speech on the Internet in India is already being curtailed in a “chilling” manner.
The NYT blog today points to two such examples of over-compliance from this CIS study:
1. The researcher objected to a comment below an article on a news Web site about the Telangana movement, which aims to create a separate state in Andhra Pradesh. The comment, which was well-written and not obscenity-laced, condemned the violence in the Telangana movement and called its leaders selfish, but supported the cause over all. The researcher wrote the intermediary that the comment was “racially and ethnically objectionable” and “defamatory.”
The researcher received no written response, but within 72 hours the intermediary had taken down not just the “offensive” comment, but all 15 comments that were published below the article.
2. The researcher sent a take-down notice to another intermediary, defined as a “host and information location tool,” asking that it remove three links provided on its search engine after entering the words “online gambling.” The links, the researcher complained, were “relating or encouraging money-laundering or gambling,” which is illegal under the April rules.
The intermediary wrote back to the complainant, saying that the intermediary’s search engine was a “mere conduit” with no control over the information passing through its platform.
But it subsequently removed the three links mentioned in the take-down notice, and all other URLs of the three Web sites, including their subdomains.
Citing the same as yet unpublished study, The Legally Indian blog notes:
The only response that was rejected outright was a facetious takedown request to a shopping portal that an ad for baby’s diapers “harmed minors” by potentially causing babies’ rashes.
“Of the 7 intermediaries to which takedown notices were sent, 6 intermediaries over-complied with the notices, despite the apparent flaws in them,” stated the draft report on the research. “From the responses to the takedown notices, it can be reasonably presumed that not all intermediaries have sufficient legal competence or resources to deliberate on the legality of an expression.”
“This is just the tip of the iceberg,” commented Abraham, adding that he was told by at least one major international intermediary company operating in India that it was “constantly” receiving takedown requests.
“Our empirical research demonstrates that intermediaries are unable to make the subjective test that is required of them,” he added. “They are highly risk averse and they often choose to completely comply with the person sending a takedown notice.”
“There is clear anecdotal evidence that […] the recently notified rules have a chilling effect on freedom of speech and expression, and that there is no transparency or accountability.”
“What we have is a private censorship regime that is alive and kicking in India.”
At the CIS blogs, Pranesh Prakash points out how Online Pre-Censorship is Harmful and Impractical, after noting that there can, of course, be reasonable limitations on freedom of speech as provided in Article 19 of the ICCPR and in Article 19(2) of the Constitution:
What he [Kapil Sibal]is proposing is not enforcement of existing rules and regulations, but of a new restriction on online speech. This should have, in a democracy, been put out for wide-ranging public consultations first...
The more fundamental disagreement is that over how the question of what should not be published should be decided, and how that decision should be and how that should be carried out, and who can be held liable for unlawful speech...
...Newspaper have editors who can take responsibility for content in the newspaper. They can afford to, because the number of articles in a newspaper are limited. Youtube, which has 48 hours of videos uploaded every minutes, cannot. One wag suggested that Mr. Sibal was not suggesting a means of censorship, but of employment generation and social welfare for censors and editors. To try and extend editorial duties to these 'intermediaries' by executive order or through 'forceful suggestions' to these companies cannot happen without amending s.79 of the Information Technology Act which ensures they are not to be held liable for their user's content: the users are.
Pranesh Prakash goes on to say that the problem stems from the IT Rules that have been in force since April 2011:
While speech that is 'disparaging' (while not being defamatory) is not prohibited by any statute, yet intermediaries are required not to carry 'disparaging' speech, or speech to which the user has no right (how is this to be judged? do you have rights to the last joke that you forwarded?), or speech that promotes gambling (as the governments of Assam does through the PlayWin lottery), and a myriad other kinds of speech that are not prohibited in print or on TV. Who is to judge whether something is 'disparaging'? The intermediary itself, on pain of being liable for prosecution if it is found have made the wrong decision. And any person may send a notice to an intermediary to 'disable' content, which has to be done within 36 hours if the intermediary doesn't want to be held liable. Worst of all, there is no requirement to inform the user whose content it is, nor to inform the public that the content is being removed. It just disappears, into a memory hole. It does not require a paranoid conspiracy theorist to see this as a grave threat to freedom of speech.
Many human rights activists and lawyers have made a very strong case that the IT Rules on Intermediary Due Diligence are unconstitutional. Parliament still has an opportunity, till the 2012 budget session of Parliament, to reject these rules. Parliamentarians must act now to uphold their oaths to the Constitution.
For those who came in late, the story so far:
Dec 5, 2011, an NYT blogpost had charged:
At the meeting, Mr. Sibal showed attendees a Facebook page that maligned the Congress Party’s president, Sonia Gandhi. “This is unacceptable,” he told attendees, the executive said, and he asked them to find a way to monitor what is posted on their sites.
Dec 6, 2011: In his hurriedly called press conference in response to the above, Mr Sibal said, inter alia:
"It was brought to my notice some of the images and content on platforms like Facebook, Twitter and Google are extremely offensive to the religious sentiments of people of this country...
"We will not allow the Indian sentiments and religious sentiments of large sections of the community to be hurt"
Dec 6, 2011: In response both Google and Facebook clarified their positions:
“We work really hard to make sure that people have as much access to information as possible, while also following the law. This means that when content is illegal, we abide by local law and take it down. And even where content is legal but breaks or violates our own terms and conditions we take that down too, once we have been notified about it. But when content is legal and does not violate our policies, we will not remove it just because it is controversial, as we believe that people's differing views, so long as they are legal, should be respected and protected."
"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 recognise the government's interest in minimising the amount of abusive content that is available online and will continue to engage with the Indian authorities as they debate this important issue"
Dec 7, 2011: Medianama reports Mr Sibal as offering the following sequence of events:
- Sep 5, 2011: He met representatives from the likes of Google, Facebook, Yahoo, and Microsoft and asked them to come up with an appropriate solution in four weeks.
- Oct 3, 2011: A reminder was sent, but no response
- Oct 19, 2011: Another reminder was sent, and again no response.
- Department of Information and Technology’s Secretary Chandrashekar met with these companies to formulate a framework for the disablement of objectionable material and came up with a draft framework for the same.
- The companies had agreed orally to several clauses of the framework but were non-committal on paper.
- Nov 29, 2011: Kapil Sibal reportedly asked for written responses
- Dec 5, 2011: The companies responded back saying that they cannot do anything, indicating that US community standards apply to their platforms.
- Dec 6, 2011: Mr Sibal added in his press conference that companies were also hesitant in providing email data pertaining to terrorists, and some of them had even moved  court, possibly indicating Yahoo India’s case in the Delhi High Court against the government.