14 September 2012

Following the commotion that surrounded the Indian government’s recent orders to block Internet content and restrict the use of sms, FICCI organised in Delhi, on 4 September, a panel discussion on “Legitimate Restrictions on Free Speech Online”. The intention was to start a wider dialogue on how the Indian government can improve its responses to instances of hate speech. Secretary of the Department of Telecom, Mr. R. Chandrashekhar, who was among the panellists, seemed to take the opportunity most serious: he specifically asked the audience to focus their comments on suggestions for improvement they might have. Moreover, his excellent summary at the end of the event made amply clear that he had listened very closely indeed to the feedback that was provided.

The Internet Democracy Project got a chance to contribute to the debate. Though the list below is not exhaustive, here are five crucial ways in which we suggested that the Indian government can and should improve its responses when faced with hate speech and other problematic content online.

1. Evaluate the “reasonableness” of restrictions, and thresholds

While the term “reasonable restrictions” is used widely, its meaning all too often remains obscured. Contrary to what seems a widely held belief, the content of such restrictions is not something that can simply be decided upon in a national debate, nor, for that matter, in a debate on national television. Rather, the parameters of “reasonable restrictions” are laid down in international human rights instruments to which India is a signatory. It is commendable that article 19(2) of India’s Constitution is fully compatible with international law. It is essential that other Indian laws, too, are tested for such compatibility, and adapted where such compatibility proves to be lacking (as is arguably the case with the Intermediary Guidelines Rules 2011, or IT Rules, for example).

In addition, greater thought needs to go into the thresholds that need to be crossed for blocks and bans to be instituted and for criminal action to be taken; there needs to be clear evidence that such actions are both necessary and proportional. Where such thresholds are not crossed, actions other than censorship and/or criminal prosecution should be considered, including greater public dialogue.

Internationally, incitement to violence is, for example, among the thresholds that are widely considered essential for censorship or criminal prosecution to be legitimate. A newspaper article that simply seeks to inform about a violent situation would therefore rarely be an appropriate target for censorship.  A clear and present danger of violence and the extent to which the speech is public (including the seize of the audience it reaches) are generally also considered of great importance. A Facebook group with 68 members is unlikely to have the same impact as a YouTube video that has been watched 8 lakh times.

2. Bring the courts back in

Determining whether a restriction is reasonable and whether certain thresholds have been crossed is a difficult and delicate exercise. Traditionally, in India as elsewhere, this important role has been the prerogative of the courts, which have on various occasions differed from (State) government(s) on the appropriateness of specific instances of censorship. Seeing the particular challenges the Internet poses, it is accepted that the government may at times require tools to respond at short notice. However, to assure that different interests are indeed carefully balanced, the continued involvement of the judiciary in such decisions at some point of time is vital. The current situation, where censorship can be purely administrative or executive, is not befitting a democratic country. Courts should be reinserted into the process, either to approve administrate decisions or to review them. The IT Act and appropriate rules should be amended accordingly.

Without judicial review or approval, it seems unlikely that doubts regarding Internet censorship by the government will ever be fully laid to rest.

3. Be transparent

To settle any doubts, it is further crucial that the government’s efforts at censoring the Internet are transparent. The government should itself make known which content has been censored and why.

Transparency would allow the Indian people to understand how a law that potentially affects them dramatically is applied in practice. At present, the Indian government is denying them that opportunity. This makes it impossible for people to challenge censorship in the courts if they believe it is inappropriate. Ironically it also makes it impossible for people to adapt their behaviour to the standards that are supposedly being set even if they want to. Such situations should not arise in a democracy. Moreover, as with all our recommendations, the state itself also has an important stake in transparency, as transparency can only contribute to legitimacy. And where censorship has legitimacy, it has far greater chances of actually achieving what it set out to do.

Unfortunately, at present section 16 of the Information Technology (Procedure and Safeguards for  Blocking for Access of Information by Public) Rules, 2009, demands confidentiality, rather than transparency. This section should be replaced by a more appropriate one at the earliest.

4. Clarify the framework for the process

At present, two sections of the IT (Amendment) Act, 2008, allow for government censorship: section 69A and section 79. However, only the former specifically addresses government censorship (the latter is about intermediary liability and unfortunately allows everybody to potentially become a censor). To increase the perceived legitimacy of government censorship, it is therefore recommended that only section 69A and its attendant rules be drawn on by the government and any of its officials. The IT Act should be amended accordingly.

This is particularly important because the safeguards provided for under section 69A, while also in need of improvement, are much more stringent than those included under section 79. As long as the government and its officials can draw on section 79 as well, the safeguards provided under section 69A are thus effectively rendered meaningless.

5. Put into place a mechanism to review effectiveness

Especially in the case of an emergency situation, it is important to assess after the fact to what extent censorship has been instrumental in reaching the goals that it was intended to achieve. This can not simply be presumed, but should be established through in-depth research.

For example, when riots broke out in the UK in , the British government raised the possibility of blocking Twitter, presuming Twitter was an important cause of the spread of violence. A research study by the Guardian, in collaboration with the London School of Economics, subsequently showed that this had not, in fact, been the case. Twitter did, however, play an important positive role for the media during the riots as well as in the clean-up following the events. Such research studies can be instrumental in improving the effectiveness and appropriateness of future responses.

Let’s hope the Government will act on these and many other excellent suggestions that were made, including on the importance of drastically reworking the Intermediary Guidelines Rules, on which we have earlier commented here.

How do you think the government’s responses to hate speech online can be improved? Let us now your ideas on email.


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