Unlike classic authoritarian governments in emerging markets such as China and Russia, India has been relatively free. It therefore appears out of character for India to impose censorship on social media and the internet, or does it? Although India has been a democratic republic for over 60 years, post colonial rule, it’s democracy is heavily influenced by religion. It’s therefore in the governments best interest to control any mediums that can affect the voting outcome at election time. In fact, late last year Indians expressed outrage at Indian telecommunications Minister Kapil Sibal’s campaign to censor content on social media sites considered defamatory to the country’s religious and political leaders.
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Tthe Indian government passed a law last year, that made any company liable for user content posted on its websites, with a minimum take down compliance period of 36 hours. The law was strongly opposed by civil rights groups, but the Indian government stood by its decision, saying that offensive images can incite violence in the socially conservative country notorious for its religious turmoil. Such violence could in turn endanger the public.
Fast forward a few months, and journalist Vinay Rai decides to take the Indian government up on its word by filing a private complaint against 21 social networking sites, including 10 foreign-based companies. The complaint affects companies such as Facebook, Google, YouTube, Microsoft and Yahoo. Rai complained that website properties of the companies in question were showing images offensive to Christians, Muslims and Hindus.
At this point, proceedings began in a Delhi lower court, confirming potential for serious crimes such as instigating religious hatred and spreading social discord; offences that could land directors of the 21 companies in question, in prison.
The Indian government proceeded to sanction the lower court’s decision and according to a report stated: “The sanctioning authority has personally gone through the entire records and materials produced before him and after considering and examining the same, he is satisfied that there is sufficient material to proceed against the accused persons.”
Shortly after the report was issued, the 21 companies were summonsed. Metropolitan Magistrate Sudesh Kumar ordered the “process (to serve the summons) on the (foreign- based) accused be sent through the MEA as per the process. The accused are allowed exemption for today only but are directed to appear in person on the next date of hearing without fail.” The next hearing at the Delhi lower court is scheduled for March 13, 2012.
The government demanded that the 21 companies in question devise methods to block objectionable content from their websites, but instead of complying, Facebook and Google decided to fight back, bypassing the lower court, and directly stating to the Delhi High Court that they cannot block offensive content that appears on their sites. The companies argue that they should be exempt from the law as the offensive content is not posted by the companies themselves, but rather indirectly by third parties — their users. They also restated their global policies of non-interference even if content posted on their services is found to be obscene or objectionable. To this point, the court responded by saying that that the policies would not work in India.
Justice Suresh Kait threatened: “Like China, we too can block such websites,” suggesting that failing to comply with India’s regulations could lead to an outright ban of the companies in question.
Siddharth Luthra, one of Facebook’s lawyers, argued to the court that it was impossible for the social network to pre-screen and monitor everything and that instead users should be held responsible for content they post.
Google’s lawyer, Neeraj Kishan Kaul, argued that Google only takes a person to the offending website. He continued by saying: “What happens after that is beyond a search engine’s control. If you use blocks, which is very easy for people to say, you will inadvertently block other things as well. For example: the word ‘sex’. Even a government document like a voter ID list or a passport has the word ’sex’.” Kaul also said that “the issue relates to a constitutional issue of freedom of speech and expression and suppressing it was not possible as the right to freedom of speech in democratic India separates us from a totalitarian regime like China”.
The Delhi high court will resume the hearing on Thursday this week.
UPDATE: The Delhi High Court has postponed the hearing until early February.
Some thoughts
This is a stalemate, and it will be interesting to see what happens next. In an emerging economy, the presence of these big name companies is integral to India’s socioeconomic prosperity. Banning these websites will also incite a public outcry, and put the current ruling party out of favour with India’s majority. The Indian government can attempt an altruistic mantra of “it’s best for the people”, but control over social media outlets is also a massive boon to the government itself. The majority will see any form of online censorship as curbing freedom of speech and expression, which is dangerous territory for a democratic government to explore.
If the Arab Spring taught us anything, it’s that a nation is resilient despite a government’s best efforts to disconnect its people. If by some bizarre delirium the government was to block the 21 offenders, there will be others, and the people of India will find other methods of expressing themselves and voicing their opinions.
Instead of smothering the medium — which is essentially just a flavour of the times — perhaps a better approach would be to set up/pursue legislation that aids the swift prosecution of the individuals responsible for creating the content — whatever the medium.
