Ban order in tangled web

On Monday, January 16, 2012, the Delhi high court will continue hearing arguments about whether social media websites, web-hosting companies, and Internet search engines, which are located abroad, can be forced to block access to content deemed objectionable by the Indian government.

On Thursday, January 12, 2012, Justice Suresh Kait warned the Indian subsidiaries of Facebook and Google: “You must have a stringent check. Otherwise, like in China, we may pass orders banning all such websites… You must have a mechanism to develop a check and remove such offending articles while simultaneously taking action against the person who is the author of such
articles…”
On Friday, January 13, 2012, the Union government gave its sanction for the prosecution of 21 organisations (Facebook, Google, Microsoft, Yahoo, You Tube, Orkut, BlogSpot, etc.) for offences of promoting enmity between classes and causing prejudice to national integration. “The sanctioning authority… is satisfied that there is sufficient material to proceed against the accused persons under Sections 153-A, 153-B and 295-A of the IPC,” ordered Delhi metropolitan magistrate Sudesh Kumar.
But technical measures will not prevent Indian residents from accessing content considered objectionable by the Indian government. They can do so by going via anonymisers or proxy servers, or through peer networks. They can also access mirror sites, or the versions cached by automated search engines as they crawl the Web.
Some recent instances illustrate that it is difficult to prevent Indian residents from accessing hate speech hosted on servers abroad, especially in the US, where hate speech is protected by the First Amendment to the US Constitution.
The extreme Hindutva website www.hinduunity.org [2] spreads hatred against Muslims and Christians in India, as well as against the advocates of secularism. It has called for the assassination of Sonia Gandhi, Mulayam Singh Yadav, Lalu Prasad Yadav, Mani Shankar Aiyar, Shabana Azmi, Shah Rukh Khan, etc. The website is hosted by a Zion supremacist organisation in the US.
The website www.dalitstan.org [3], which was hosted in the US, advocated the secession of Kerala, Tamil Nadu and Karnataka from the Union of India. It also spread hatred against upper-caste Hindus. US human rights organisations classified it as a hate group. Its advocating of secession is a criminal offence under Indian laws, but is protected speech in the US.
After the Mumbai train bombings of July 2006, India’s Computer Emergency Response Team issued a direction to all Indian Internet service providers to block access to both the websites.
However, recently cached versions on search engines such as Google, Yahoo, Bing etc can be immediately seen by Indian subscribers. Further, www.hinduunity.org [2] has an active community on Facebook.
The website www.dalitstan.org [3] disappeared because its organisers ran out of money. However, cached versions on search engines such as Google, Yahoo, Bing, etc can be accessed easily by Indian residents. Also www.dalitstan.org [3] has an active community on Facebook. Further mirror sites of its archives dating back to 1996 have been set up all over the world in different jurisdictions, which are readily accessible by Indian residents.
The issues before the Delhi high court on hate speech and applicability of Indian laws to entities located abroad have been addressed by French and American courts. An auction website run by Yahoo Inc of the US, hosted on servers in the US, offered Nazi items for sale by various individuals located all over the world. However, France has strict laws against selling or displaying anything that incites racism, especially Nazi items.
In April 2000, the International League Against Racism and Anti-Semitism (LICRA) sued Yahoo in a French court, arguing that its auction websites offering Nazi items could be accessed by subscribers in France. (Ligue contre le racisme et l’antisémitisme et Union des étudiants juifs de France c. Yahoo! Inc et Société Yahoo! France)
Yahoo’s defences were that first, their servers were located in US territory, and second, that the First Amendment to the United States Constitution guaranteed freedom of speech and expression, and that any attempt to enforce a French judgment in the US would fail for unconstitutionality.
The French court in May 2000 ruled that Yahoo! Inc, located in the US, had to take all appropriate measures to prevent French residents from viewing Nazi memorabilia, no matter where the persons offering the items for sale were located. Yahoo! contended that it was impossible to comply with this order. But the French court noted that technologies were then being developed by other companies by using which around 70 per cent of French Internet users could be identified by their Internet Protocol addresses. The French court imposed a penalty on Yahoo! USA of 100,000 francs per day that it did not implement such filtering technologies, but ruled that the executives of Yahoo! USA were not guilty of criminal charges in France.
Instead of appealing against this ruling in a higher French court, Yahoo! appealed in a US district court in California. Judge Jeremy Fogel of the US district court ruled that the French court’s decision was inconsistent with the First Amendment to the US Constitution, relating to freedom of expression, and that consequently it was not applicable in the US.
LICRA appealed to the US court of appeals, which ruled in 2006 that LICRA did not have jurisdiction in the US to file such an appeal. However, the US circuit court of appeals split ruling about Yahoo’s defence of freedom of speech under the First Amendment further added to the legal confusion:
“Yahoo! is necessarily arguing that it has a First Amendment right to violate French criminal law and to facilitate the violation of French criminal law by others. [...] the extent — indeed the very existence — of such an extraterritorial right under the First Amendment is uncertain.” The US Supreme Court declined to review the ruling of the US court of appeals.
This leaves uncertain the defences of the 21 companies accused by the Delhi court, that they are protected under the US First Amendment, since it is not clear whether or not the US First Amendment is applicable to content accessed outside the US, as per the 2006 ruling of the US court of appeals.
However, if the Delhi high court were to order the web-hosting companies, located in the US, to block access to content deemed offensive by the Indian government, such an Indian judgment would be unenforceable in the US, as it would be unconstitutional on US territory as per the ruling of the US district court.
On the other hand, if the Indian complainants in the present matter were to seek to prosecute these 21 companies in the US, the precedents of the LICRA-Yahoo case would seem to indicate that the Indian complainants would not have jurisdiction to do so in the US, as the cause of action — the access to the objectionable material — would have arisen in India and not the US.

The writer heads a group on C4ISRT (Command, Control, Communications and Computers; Intelligence, Surveillance, Reconnaissance and Targeting) in South Asia