Google, Facebook Refuse to Give In to a Paranoid Government That Wants to Gag Them

Google and Facebook refuse to give in to a paranoid Government that wants to gag them.

Google India and Facebook caught Communications and IT Minister Kapil Sibal by surprise when they took the Government head-on. On December 23, 2011, Metropolitan Magistrate Sudesh Kumar's court in Patiala House, Delhi, asked them to remove objectionable content. The same day, they appealed the verdict in the Delhi High Court, saying they could not do so. On January 10, Sibal told his officials that the 'arrogant' companies needed to be taught a lesson. On January 13, he gave formal sanction to press criminal charges against them in court. His aim was not to ban them like China, say informed sources, but to intimidate them into falling in line and removing objectionable content.

But when on January 16, high court judge, Justice Suresh Kait, told the search engine and social networking site that "like China, we too can block sites", social media's fears over censorship became all too real.

At the heart of the dispute are the IT laws. Section 79 of IT Act, 2008, provides protection to intermediaries like Google and Facebook, which only provide a platform for posting content. But IT Rules, 2011, orders companies to remove any content that the Government objects to within 36 hours of receiving a written complaint. It is because of the discrepancy in the 2008 and 2011 laws that complainant Vinay Rai did not use them and instead referred to the provisions in the Indian Penal Code (IPC).

The case involving objectionable material of a religious nature on 21 websites was filed by Delhi-based Rai, a journalist and editor of Urdu publication Akbari, under Sections 292 (sale of obscene books), 293 (sale of obscene objects to young person) and 120B (criminal conspiracy).

Google and Facebook said they could not monitor content before it was posted on websites. Google's lawyer N.K. Kaul told the court 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". Hariharan, lawyer for complainant Rai, said that Google was misleading the court by claiming that Google India does not control or benefit from platforms like YouTube or Blogger. He said that every click on a Google-owned website gets it revenue.

Facebook lawyer Siddharth Luthra told the court it was impossible for the social network to pre-screen or monitor everything and that users should instead be held responsible for content they post. The Google lawyer added that the search engine only takes you to the website. "What happens after that is beyond a search engine's control," Kaul said. He said censorship using block words could be disastrous. Citing the example of two words, 'sex' and 'virgin', which people could find offensive, he said that the Government could inadvertently block other useful things too. For example, the word 'sex' figures as a gender even on government documents like a voter ID list or a passport. Similarly, 'virgin' could refer to airlines and territories in terms of tourism.

The companies in question also told the court that they have a global policy of non-interference, even if content posted on their services is found to be obscene or objectionable. The judge responded by saying this policy won't work in India. Google and Facebook are now preparing their defence on the basis of IT laws, claiming that they are not liable and covered under protection clause for Internet intermediaries. According to IT laws, the Internet intermediary is not obligated to undertake a pre-screening exercise or proactively monitor third party user-generated content, available on its platform. Search engines merely index information available on the Internet.

The Government says that the protection is not unfettered and that they have to respond to genuine complaints about objectionable content. But Sunil Abraham, executive director of the Bangalore-based Centre for Internet and Society, a civil liberties advocacy group, says it will be difficult for the courts to ignore IT laws. "The laws provide immunity to the Internet companies and they have a strong defence,'' he says. On those laws will rest the fundamentals of a liberal democracy.