India Chills Online Speech

While most governments try to control online freedom of speech in a somewhat restrictive manner, either as a collaborator or as a regulator, rarely do they formulate a law to curb online speech. Rarer still does a government provide sweeping powers to intermediaries like an ISP and administrators of Internet sites to control content based on a long list of criteria.

In a quiet move early last month, India passed a new set of rules called Information Technology Rules Act 2011, that curtail freedom of Internet speech by not only empowering the Department of Information Technology to block any site that displays disparaging content based on a list of criteria defined by the Department. But it also empowered any official or private citizen to demand the removal of content that they consider objectionable.

For the first time, it also made intermediaries like an ISP or an Internet site that facilitates user-generated content -- like Google, Facebook, and blogs -- responsible for censoring the Internet.

"The intermediary shall not knowingly host or publish any information or shall not initiate the transmission, select the receiver of transmission, and select or modify the information contained in the transmission, [of content specified by the Act]" it says.

For that matter Internet censorship is not new in India. "This country practices censorship in various forms," says Apar Gupta, a Cyberlaw expert at New Delhi-based Accendo Law Partners. "However it is usually done by a government body or a court order after balancing the interests of free speech and individual or societal harm. Hence, we have film certification and provisions under the Criminal Procedure Code under which a book or any other publication may be banned by a state government by issuing a detailed order in the official gazette. In cases where parties approach courts, courts finely balance competing interests as well.

"But the new rules have for the first time brought censorship, with regard to online content, with a force of law. The new rules even incentivize intermediaries or private parties to censor the Internet," he added.

The new law is sweeping. For instance, it says that any statement that threatens the unity, integrity; defense, security or sovereignty of India or friendly relations with foreign states or public order, must be removed from Web content.

Moreover, besides banning content that is "harassing, blasphemous, defamatory, obscene, pornographic, pedophilic, libelous, 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," it also forbids publication of content that is "grossly harmful."

"These rules are not only unfair and blatantly clamp down on freedom of expression, they also put vague limits to freedom of expression and are thus debatable in terms of being constitutionally valid," says Sunil Abraham, the executive director for the Center for Internet and Society.

As an instance, Gupta points to a clause in the rules prohibiting content that "harm[s] minors in any way."

Gupta says there is no set definition under the existing civil and criminal law as to what could be considered "harming minors in any way."

"In the absence of any definable legal standards, what then could form the basis of whether content is harming minors or not?" he asks.

The rules threaten to damage entrepreneurship in a big way as well, allege critics.

"Under the new law anyone can lodge a complaint -- say against an amateur mobile software application developer whose product competes with an application of say Apple or Google. While large companies can afford legal expenses of challenging an IPR violation claim, a small-time developer has no option but to succumb to such challenges." says Abraham adding, "Online anonymity is vital for creativity and entrepreneurship on the Web."