Save free speech in cyberspace

“Freedom is in peril. Defend it with all your might.” That was the slogan that was carried atop the masthead of National Herald, the newspaper that Jawaharlal Nehru founded in 1938 (it shut shop in 2008). The slogan was written in Nehru’s elegant hand and bespoke the first Prime Minister’s commitment to free speech.

Today, that freedom is imperilled by the Internet Control Rules introduced recently with relative despatch.
These rules are omnibus. They are inadequately defined. Where the Internet is concerned, they have the potential to turn India into a police state, no freer than China. And we had thought that the rise of the Internet marked the break of a new dawn of freedom.
Particularly pernicious are the intermediaries’ liability rules. Intermediaries are the purveyors of third-party content on the Internet and include Internet Service Providers (ISPs), portals of all kinds, social networks, search engines, blogging platforms and Web-hosting service providers. According to the Information Technology (Intermediaries Guidelines) Rules, 2011, notified under Section 79 of the Information Technology Act, 2000, intermediaries enjoy exemption from liability for the third-party content they host provided they observe due diligence. And how are they to exercise due diligence? That is where the problems arise.
Intermediaries, for instance, have to ensure that users do not put out content that, among other things, “is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever;
w harm minors in any way;
w infringes any patent, trademark, copyright or other proprietary rights;
w threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation”.
The specification could not be more sweeping and catch-all. Anything could be described as “grossly harmful”, “harassing”, “blasphemous”, “defamatory”, “ethnically objectionable” or “disparaging”. For instance, the Internet could be happy hunting grounds for those who today object to every other commercial film on the ground that it hurts their sensitivities. Harsh criticism of the state of affairs in any part of the country could be interpreted as threatening public order. Criticism of the regime or policies with any foreign country could be described as harmful of friendly relations with that country. The list could go on.
What do you have to do if you don’t like anything on the Net? All you have to do is make a formal complaint to the intermediary concerned. It will be obliged to act within 36 hours and, where applicable, work with the user or owner to disable the offending content. So, the onus is on the intermediary to take a call and act. Just about anybody can make a complaint about anything. Any representative of the state, anywhere in India, could take exception to anything on the Net and lodge a complaint. The intermediary is obliged to act within 36 hours. If it does not, it stands to lose the freedom to purvey information.
No prizes for guessing what the proclivity of intermediaries will be. They will be inclined to play safe. Succinctly put, there is scope for mischief. There is scope for mayhem. Above all, there is a mandate for indirect censorship. This is exactly what Google has complained about. In an official statement, it has said, “If Internet platforms are held liable for third-party content, it would lead to self-censorship and reduce the free flow of information”. This is a throwback to the great debate in international forums in the 1970s and 1980s between the votaries of the doctrine of free flow of information and the champions of a new world information and communication order. Then, as now, official India was no champion of the free flow of information!
Newly notified rules relating to cyber cafes are as exceptionable, designed as they are to enhance surveillance and inhibit free and easy access to information. Every cyber café user must now show proper ID proof, a copy of which the owner must store (“securely maintain”) for at least one year. A student does not have proper ID proof? No problem. She must bring along an adult who has one! The cyber café owner must then photograph the user and maintain time logs of usage. He must submit these, with her photograph and personal information, along with data relating to other users, to appropriate authorities every month.
There is more. The cyber café owner must also maintain logs of online activity by any user in his establishment and store this information for at least a year. Further, if the cyber café has cubicles and partitions, no minor may use the facility unless she is accompanied by an adult. So much for promoting the Internet culture among students.
Privacy? What’s that? Potential for harassment by both authorities and cyber café owners? Yes, of course, there is plenty. Surveillance? Big Brother gets one more weapon with which to browbeat citizens.
Predictably, there has been an outcry against these rules, especially the ones relating to the liability of intermediaries. The department of information technology has taken note of these protests and, in a long official statement, disavowed any intention to regulate content “in a highly subjective and possibly arbitrary manner”. Frankly, the government doth protest too much. Nor can it argue that the proclivity to use the law to curb free speech is a thing of the past. Just the other day (on May 17, to be precise) a newspaper reporter in Mumbai was arrested under the Official Secrets Act of 1923. His crime: He had entered “a prohibited place” on the premises of the VT railway station and gathered material for a story.
The mandarins who framed these Internet Control Rules should have paid heed to what the founding fathers of the Republic had to say about free speech. Nehru had said: “Imposing restriction you do not change anything; you merely suppress the public manifestation of certain things, thereby causing the ideas and thought underlying them to spread further. Therefore, I would rather have a completely free press, with all the dangers involved in the wrong use of that freedom, than a suppressed or regulated press”.
Gandhi was even clearer in his mind about the paramountcy of choice: “The useful and the useless must, like good and evil, generally go together and man must make the choice”. And “the restoration of free speech, free association and free press is almost the whole of swaraj”. If these be the principles on which India was founded, why must our mandarins go about thwarting free speech and free access to information in the ham-handed and blunt manner they have?

Vivek Sengupta, public affairs analyst, is founder and chief executive of the consulting firm Moving Finger
Communications