FoE, Internet policy, and the elections

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 the Chinese search engine Baidu, and its blocking of users from viewing articles and videos which advocated greater democracy in China. Eight New York writers and video producers had brought the suit saying Baidu users could not see their work. Baidu has 78 per cent of the search market in China (while Google has 67 per cent of the Internet search market in the US). So they were being wiped out of the public discourse in China!

The judge did not buy that 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. A headline in quartz.com summed it up thus: “Censorship is free speech when search engines do it, a US court just ruled”.

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 IT act in 2008, including section 66A which has caused much grief in the five years. It criminalises electronic mail or messages which are “grossly offensive” or “menacing” or cause “annoyance”, “inconvenience” etc. Six of the eight petitions the SC 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 Mouthshut.com argues that the Rules are violative of Articles 14 (right to equality), 19 and 21 (right to life and personal liberty) of the Constitution, as they 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 two or three years have seen a string of arrests of citizenry under this section for posting “objectionable” content online, which as online activists have pointed out were usually dissenting political opinions. The Supreme Court has directed that these eight cases be listed to be heard ‘on merit’ on April 11, 2014. Substantial questions of technology law, which impact civil liberties and business, are at stake.

On the question of intermediary liability, will the definition of intermediary need to be broadened beyond Internet service providers to include telecom companies since more and more Indians will access the Net via mobile phones? Apart from this point, in the run up to next week’s review, public discussion on this issue has identified the following problem issues which will have to be dealt with. One, the rule of law requires certainty and definitiveness, not vague terms such as ‘grossly offensive’, or ‘menacing’, or “causing annoyance, inconvenience” which are open to very varying interpretation.

Two, the amendments passed by Parliament in the aftermath of the 26/11 terror attack and the rules written for these amendments reach out to 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 Chandrashekhar 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). Section 66A, by 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 government to the 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. Between January 2013 and January 2014 the government asked for 1299 urls or websites to be blocked by social networking sites according to information given to Parliament.

Earlier this year, the US telecom giant Verizon released a transparency report in which it said that India was one of the five countries which had asked it to block websites, but they were precluded by law from saying how many websites were blocked. The latest Google transparency report which covers July to December 2013 says India made 2513 requests for user data, which makes it the country with the fourth highest no of requests.

So now that we are in an election season with much debate about the direction the country needs to take, has anyone asked our aspiring prime ministers where they stand on all this?  The UPA government has presided over a decade when Net freedom has grown restrictive, and it has set a record in demanding data about users from internet giants.

For all the recent tempest over free speech nobody thinks about making it an election issue, asking parties and candidates 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. It remains something tossed back and forth between activists and courts, whereas internet freedom is best protected through political policy initiatives. 

Why is it not a political issue? Is it reasonable to expect that modern, relatively youthful leaders seeking to lead the country into the future should have a view on the future of the internet and free speech on it? Whom should one blame but the media that there is such a poverty of election time discourse on communication policy issues? There is more to Internet than social media, and more to its relevance as a communications medium than its use 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. It seems to be beyond them to conceive of the internet and social media as a medium that the political class can shape, not merely use. The media’s poverty of imagination translates to freedom of expression being left out as a campaign issue. There is nothing about it in the congress manifesto, and there is no indication that there will be something in the Bharatiya Janta Party manifesto. As for the Aam Aadmi Party, all indications are that their media concerns are over ownership, not free expression.

This is an expanded version of an article published in Mint, April 2, 2014.