21 Nov 2013 | Digital Freedom, Digital Freedom Reports, India
(Photo: Shutterstock)
CONTENTS
Introduction and Recommendations | 1. Online censorship | 2. Criminalisation of online speech | 3. Surveillance, privacy and government’s access to individuals’ online data | 4. Access: obstacles and opportunities | 5. India’s role in global internet debates | Conclusion
Full report in PDF
1. ONLINE CENSORSHIP
Since 2003, the institutional structure of internet censorship and filtering has centred on the Indian Computer Emergency Response Team (ICERT), a department of the Ministry of Communication and Information Technology that serves as a nodal agency for accepting and reviewing requests from a designated pool of government officials to block access to specific websites.[2] This chapter will outline how takedown requests, both with and without court orders, are commonplace, and demonstrate that corporations sometimes contribute to censorship by over-complying with government requests. Along with filtering and blocking policies, these procedures are inconsistent and often threaten freedom of expression in India. With so many methods being used to restrict online speech, there is lively debate in India around how censorship affects fundamental freedoms and society.
“There is no definition of what ‘obscenity’ and ‘incitement’ constitutes. Because of the vagueness of the law on the one hand, and the obligations of the law on the other hand [taking down offensive content], the door is opened to interpretation and subjectiveness,” says Rajeev Chandrasekhar, a member of the upper house of the Indian Parliament.[3] The vagueness of the law has led to people being arrested and charged for innocuous posts and tweets. The Information Technology Act (IT Act) and its 2008 amendments do not provide a clear legal definition of what is offensive and there is no common view in society of what can or cannot be said online and offline, leading to uncertainty. This has resulted in a growing tendency to report content deemed “offensive” and demand its removal.
Intermediaries – web companies that host content but do not produce it – tend to over-comply with takedown notices out of fear of being liable for offensive content and then prosecuted. The over-compliance of internet intermediaries with takedown notices is concerning as it removes from the internet content which is entirely legitimate.
Compounding this problem is the lack of an appeal process. Intermediaries in India are neither required to notify people when their posts or photos are censored nor give them an opportunity to appeal the decision. In practice, this situation creates an indirect form of censorship when not the government but intermediaries become censors.
(A) TAKEDOWN REQUESTS
Takedown requests, when properly regulated, implemented and subjected to judicial oversight, can be an effective way for copyright owners and aggrieved individuals to remove illegal content from the web. When takedown procedures are inconsistent or inadequately defined, as is the case in India, such requests can, and often do, chill freedom of expression.
In the 2008 amendments to the IT Act, the government acted to limit intermediary liability and standardise notice and takedown procedures under Section 79 of the IT Act. This marked a positive move to curtail the worst abuses of the law and protect intermediaries. The question of intermediary liability is particularly complex in India due to vague laws around defamation and public order. The Indian authorities have tended to prioritise control or regulation of free speech to “protect communal harmony”. The protection of communal harmony was cited as a major factor behind the move in 2011 by the Indian Central Government to issue the Information Technology [Intermediaries Guidelines] Rules – also called the 2011 IT Rules – requiring intermediaries to remove infringing content within 36 hours if someone reports it as offensive.
Many medium and small internet businesses have been vocal in criticising the impact of these rules, a piece of secondary legislation linked to the IT Act.[4] They denounce the onerous conditions they face as intermediaries in the event of prosecution. The confusion around intermediary liability laws encourages privatisation of censorship and causes a great deal of uncertainty for businesses which they argue hinders innovation.[5]
In 2011, the Bangalore-based Centre for Internet and Society (CIS) ran a series of tests to see how intermediaries responded to bogus takedown request within the 36-hour timeframe. Six of seven intermediaries over-complied with requests, meaning they restricted more content than legally required. Hundreds of pages were taken down at the expense of legitimate expressions.[6] This over-compliance demonstrates a real chilling effect on freedom of expression, as many intermediaries are overwhelmed with requests or do not have the legal expertise to properly handle them in a manner that protects freedom of expression.
In April 2013, the Government issued a Clarification on the Information Technology [Intermediaries Guidelines] Rules, under Section 79 of the IT Act. The clarification addresses the controversial 36-hour period and says that the intermediaries shall respond or acknowledge to the complainant within 36 hours of receiving the complaint/grievances, and then initiate appropriate action in line with the law rather than actually take down the content. While this clarification is helpful, the law remains flawed and still subjects intermediaries to criminal prosecution for failure to comply in a short period of time. This narrow timeframe, which does not specifically take into account public holidays or weekends, puts intermediaries in a difficult position where they are required to be overly zealous in taking down content that may be entirely legitimate.
Government requests for the removal of illegal or offensive content is steadily on the rise around the world, but this is especially the case in India. A benchmark to track this trend is the Google Transparency Report, where India leads in the number of takedown requests issued without court orders. Indian authorities cite national security concerns to justify many of their takedown requests without court orders.[7] For example, in the second half of 2012 the Indian Computer Emergency Response Team cited public order and ethnic offence laws to issue a request for “The Innocence of Muslims” video clips to be taken down. The video clips had sparked disturbances in India’s north-east regions and Google locally restricted the “Innocence of Muslims” video clips from YouTube and several other YouTube videos and comments.
While “The Innocence of Muslims” case launched a debate over how religious or cultural sensibilities balance with free expression, the lack of judicial oversight in content takedown and political interference are common practice in India.[8] The removal of “The Innocence of Muslims” demonstrated how the politics of fear is intruding into the online environment.[9]
Google is not the only company dealing with a significant number of takedown requests. For small start-ups and internet service providers, a large number of takedown requests can encourage those afraid of penalties to over-comply, removing URLs that do not link to illegal content. A consequence of the IT Act and of the over-compliance would be the delegation of essential executive function to private parties like Google, Facebook or MouthShut.com to censor and restrict free speech of citizens or else face legal challenges over user content.
Case study: MouthShut.com
On 29 April 2013, MouthShut.com, India’s leading online consumer review website, filed a petition in the Supreme Court of India to nullify the 2011 IT Rules. The petition pleads that the 2011 IT Rules be declared illegal, null and void as they are ultra vires of the Constitution.[10]
Faisal Farooqui, founder of MouthShut.com, has said that the company has “been threatened with hundreds of legal notices, cybercrime complaints and defamation cases. At other times, officers from various police stations call our office, demanding deletion of various reviews or face dire consequences under the IT rules”.[11]
Under the IT rules, MouthShut is required to remove content within 36 hours of receiving a request (a request does not necessary need to be issued by a court order but can be filed by any individual). The problem is that MouthShut.com receive requests under IT Rules “to remove any negative review about a company or brand simply because they don’t like it, irrespective of the facts stated in the review.”
“It is submitted that the impugned Rules impose significant burden on it forcing it to screen content and exercise online censorship, which in turn impacts the freedom of speech and expression of its customers, thereby risking a loss of its large consumer base or incurring legal costs and facing criminal action for third party user-generated content,” Farooqui said.
(B) FILTERING AND BLOCKING
India engages in the widespread blocking and filtering of websites. The Indian Computer and Emergency Response Team is able to make executive orders to internet service providers to block websites. The range of sites that are censored is quite broad and ranges from human rights and freedom of expression content to extremism and porn.[12] This section addresses the problematic role that a government authority, the Indian Computer and Emergency Response Team (ICERT), has in being able to order internet service providers to selectively filter content, including without court instruction.
Despite an announcement to install filtering mechanisms at India’s international gateways, government attempts at filtering have not been entirely effective because blocked content has quickly migrated to other websites and users have found ways to circumvent filtering.[13] However, India’s filtering and blocking policies remain problematic both because of the scale of the compliance with ICERT but also the scope of its powers. Many have argued that giving ICERT filtering power through executive order violates constitutional jurisprudence, especially since the blocking mechanism created under the IT Act provides for no direct review or appeal procedures and is a permanent block.[14]
Beyond excessive powers to filter, India’s government also holds significant and disproportionate powers to block content. Merely in order to gain a government licence to operate, internet service providers (ISPs) in India must agree to block sites and individual users when national security needs arise and to prevent the transmission of “obscene” or “objectionable” material. Since 2008, these powers have been extended to block more than just content that is “obscene”. The newly added Section 69A of the IT Act also grants power to the central government, “in the interest of sovereignty and integrity of India, defense of India, security of the State, friendly relations with foreign states or public order,” to issue directions to block public access to any information from any “computer resource.” This executive power is significant and should be subjected to justice oversight to avoid misuse of the law by the executive.
Only a limited number of specified individuals or institutions can make official complaints and recommendations for investigation to ICERT. These include high-ranking government officials, the police, government agencies and “any others as may be specified by the Government”. In return, ISPs have to comply with blocking orders from ICERT. Since 2006, blocking requests can also come from individuals reporting content they personally consider to be offensive or obscene. Individuals can do this by filling a Public Interest Litigation petition in order to put pressure on the government or justice authorities to issue a filtering notice.
This is having a significant impact on freedom of expression. Tests undertaken of the blocking practices of ISPs revealed variations, suggesting that ISPs go beyond direct blocking orders to pro-actively block content. This practice results from licensing agreement that require ISPs to bock internet sites as identified by the Telecom Authority but also to prevent the transmission of obscene or objectionable material. Civic society in India is concerned that the culture of blocking at ISPs is curtailing online access to content that is perfectly legal and should be protected by the Indian constitution.
(C) NETWORK DISRUPTIONS
Network disruptions are also a major concern in India. In January 2012, during a period of political unrest, telecommunication networks were pre-emptively shut down in Jammu and Kashmir amidst fears that mobile phones could be used to detonate bombs.[15] Beyond the direct disruption of networks, the government engaged in the direct censorship of the media and of expression with local television stations suspended, several Facebook pages taken down, text messages blocked and local newspapers stopped from printing in the city of Srinagar based on their political slant or content.
In August of that year, during riots in the north-eastern states, India banned the sending of bulk SMS messages across the entire country for 15 days and blocked hundreds of websites that allegedly contained inflammatory content to prevent violence.[16] This decision was undertaken without judicial oversight, as national telecom operators had to comply with an executive order from the Home Ministry.[17]
The communal riots in Jammy and Kashmir provoked one of the biggest internal migrations of recent times and fears of escalation led to heavy-handed network disruptions. The disputed territory of Kashmir is frequently the target of such disruptions and encapsulates the complexity of the use of pre-emptive censorship to prevent the very real threat of violence.[18] On the one hand, the traditional media landscape is expanding and the internet has brought new reporting opportunities for citizen journalism. Many Kashmiris now have mobile devices that allow them to capture images and videos and share information. Hundreds of videos have been uploaded and shared on the internet by people in the state. However, during times of political tension, Kashmiris are denied their right to freedom of expression when the government cuts off access to the internet. In February 2013, the Indian government suppressed all news and communications channels – including television stations, newspapers and mobile Internet service – in the Kashmir Valley when Kashmiri militant Mohammad Afzal Guru’s execution in New Delhi revived political unrest in the troubled region.[19]
There is evidence to suggest the blocking of cable TV is not just a problem in Kashmir. According to the Asian Media Barometer for India, authorities in a number of states occasionally block certain cable news channels or instruct cable operators not to carry channels based on their political views or content.
The restrictions on digital free speech in India are of great concern. The main issues are takedown and blocking policies, along with the network shutdowns and criminalisation of online speech. Amending notice and takedown procedures are key reforms necessary to provide greater clarity and certainty to intermediaries. Intermediaries should be required to alert authors and provide them a means of appeal when their content is flagged for takedown, a process that can often take longer than 36 hours. The time frame for intermediaries to respond should be extended. Codifying these reforms into law and implementing them swiftly and effectively would reduce the associated threat to freedom of expression.
CONTENTS
Introduction and Recommendations | 1. Online censorship | 2. Criminalisation of online speech | 3. Surveillance, privacy and government’s access to individuals’ online data | 4. Access: obstacles and opportunities | 5. India’s role in global internet debates | Conclusion
This report was originally posted on 21 Nov 2013 at indexoncensorship.org
[2] Freedom House, ‘Freedom on the Net 2012: India’, http://www.freedomhouse.org/report/freedom-net/2012/india accessed on 9 September 2013.
[3] Index on Censorship interview, 30 August 2013.
[4] Government of India, Ministry of Communications and Information Technology, “The Information Technology (Electronic Service Delivery) Rules, 2011”, http://deity.gov.in/sites/upload_files/dit/files/RNUS_CyberLaw_15411.pdf accessed on 19 November 2013.
[5] The Economist Intelligence Unit, ‘Good to grow? The environment for Asia’s Internet business’ (9 July 2013), http://asiainternetcoalition.org/advdoc/2c083eb6cd1ae38cee3826e1ad6a2a6e.pdf accessed on 10 September 2013.
[6] Centre for Internet and Society, ‘Intermediary Liability in India: Chilling Effects on Free Expression on the Internet 2011’, http://cis-india.org/internet-governance/intermediary-liability-in-india.pdf accessed on 4 September 2013.
[7] Indian authorities requested, without court orders, that 2,529 items be removed between July and December 2012 – a 90 percent increase over the first half of the year 2012. Google, ‘Google Transparency Report’, http://www.google.com/transparencyreport/removals/government/IN/ accessed on 5 September 2013.
[8] Kenan Malik and Nada Shalout, Index on Censorship, ‘Should religious or cultural sensibilities ever limit free expression?,’ http://www.indexoncensorship.org/2013/08/should-religious-or-cultural-sensibilities-ever-limit-free-expression/ accessed on 25 September 2013.
[9] Rebecca MacKinnon and Ethan Zuckerman, Index on Censorship, ‘Don’t feed the troll,’ http://www.indexoncensorship.org/2012/12/dont-feed-the-trolls-muslims/ accessed on 25 September 2013.
[10] Times of India, ‘Supreme Court to Examine validity of Information Technology rules’ (30 April 2013), http://articles.timesofindia.indiatimes.com/2013-04-30/internet/38929437_1_intermediaries-guidelines-accuracy-censorship accessed on 30 August 2013.
[11] Medianama, News and Analysis of Digital Media in India, ‘MouthShut Challenges the IT Rules In The Supreme Court Of India’, (29 April 2013), http://www.medianama.com/2013/04/223-mouthshut-it-rules-supreme-court-of-india/ accessed on 25 September 2013.
[12] Ronald Deibert, John Palfrey, Rafal Rohozinski and Jonathan Zittrain, OpenNet Initiative, ‘Access Contested. Security, Identity, and Resistance in Asian Cyberspace’ (September 2011), http://access.opennet.net/wp-content/uploads/2011/12/accesscontested-india.pdf accessed on 10 September 2013.
[13] In January 2007, the Department of Telecommunications announced that it would install filtering mechanism at India’s international gateways. OpenNet Initiative, ‘Country Profile: India’ (9 August 2012) https://opennet.net/research/profiles/india accessed on 10 September 2013.
[14] Ibid.
[15] Freedom House, ‘Freedom on the Net 2012: India’, http://www.freedomhouse.org/report/freedom-net/2012/india accessed on 9 September 2013.
[16] Times of India, ‘5 SMS per day limit comes into effect’ (18 August 2012), http://articles.timesofindia.indiatimes.com/2012-08-18/telecom/33260957_1_smses-and-mmses-bulk-messages-ban-period accessed on 9 September 2013.
[17] Ibid.
[18] Sumit Galhotra, Committee to Protect Journalists, ‘In Indian Kashmir, concerns over Internet censorship’ (4 October 2012), http://www.cpj.org/blog/2012/10/in-indian-kashmir-concerns-raised-over-internet-ce.php accessed on 10 September 2013.
[19] Reporters Without Borders, ‘News media and internet totally censored in Kashmir’ (13 February 2013), http://en.rsf.org/india-news-media-and-internet-totally-13-02-2013,44066.html accessed on 10 September 2013.
4 Nov 2013 | Digital Freedom, News and features
We can partially blame gerrymandering for the current gridlock in the U.S. Congress. By shaping the electoral map to create politically safe spaces, we have generated a fractious body that often clashes rather than collaborates, limiting our chances of resolving the country’s toughest challenges. Unfortunately, revelations about the global reach of American security surveillance programs under the National Security Agency (NSA) are leading some to propose what amounts to gerrymandering for the internet in order to route around NSA spying. This will shackle the internet, inherently change its technical infrastructure, throttle innovation, and likely lead to far more dangerous privacy violations around the globe.
Nations are rightly upset that the communications of their citizens are swept up in the National Security Agency’s pervasive surveillance dragnet. There is no question the United States has overreached and violated human rights in its collection of communications information on innocent people around the globe; however, the solution to this problem should not, and truly cannot, be data localization mandates that restrict data storage and flow.
The calls for greater localization of data are not new, but the recent efforts of Brazil’s President, Dilma Rouseff, to protect Brazilians from NSA spying reflected the view of many countries suddenly faced with a new threat to the privacy of the communications of their citizens. Rouseff has been an advocate for internet freedom, so undoubtedly her proposal is well intentioned, though the potential unintended repercussions are alarming.
First, it’s important to consider the technical reasons why data location requirements are a really bad idea. The Internet developed in a widely organic manner, creating a network that allowed data to flow from all corners of the world – regardless of political boundaries, residing everywhere and nowhere at the same time. This has helped increase the resilience of the internet and it has promoted significant efficiencies in data flow. As is, the network routes around damage, and data can be wherever it best makes sense and take an optimal route for delivery.
Data localization mandates would turn the internet on its head. Instead of a unified internet, we would have a fractured internet that may or may not work seamlessly. We would instead see districts of communications that cater to specific needs and interests – essentially we would see Internet gerrymandering at its finest. Countries and regions would develop localized regulations and rules for the internet to benefit them in theory, and would certainly aim to disadvantage competitors. The potential for serious winners and losers is huge. Certainly the hope for an internet that promotes global equality would be lost.
Data localization may only be a first step. Countries seeking to keep data out of the United States or that want to exert more control over the internet may also mandate restrictions on how data flows and how it is routed. This is not far-fetched. Countries such as Russia, the United Arab Emirates, and China have already proposed this at last year’s World Conference on International Telecommunications.
As internet traffic begins to demand more bandwidth, especially as we witness more real-time multimedia applications, efficient routing is essential to advance new internet services. High capacity applications like Apple’s FaceTime may slow to the painful crawl reminiscent of the dial-up days of the internet.
This only begins to illustrate the challenges internet innovators would face, but big established players like Facebook, Google and Microsoft, would potentially have the resources to abide by localization mandates – of course, only if the business case supports working in particular locales. Some countries with local storage rules may be bypassed altogether. For small or emerging businesses, data localization requirements would be a greater challenge. It would build barriers to markets and shut off channels for innovation. Few emerging businesses could afford to locate servers in every new market, and if local data server requirements become ubiquitous, it will be businesses in emerging markets that are most disadvantaged. The reality for developing nations is that protectionist measures such as data localization will further isolate local business from the global market, depriving them of the advantages for growth that are provided by the borderless internet.
Most important though, is the potential for fundamental harm to human rights due to data localization mandates. We recognize that this is a difficult argument to accept in the wake of the revelations about NSA surveillance, but data localization requirements are a double-edged sword. It is important to remember that human rights and civil liberties groups have long been opposed to data localization requirements because if used inappropriately, such requirements can become powerful tools of control, intimidation and oppression.
When companies were under intense criticism for turning over the data of Chinese activists to China, internet freedom activists were united in theirs calls to keep user data out of the country. When Yahoo! entered the Vietnamese market, it placed its servers out of the country in order to better protect the rights of its Vietnamese users. And the dust up between the governments of the United Arab Emirates, Saudi Arabia, India, and Indonesia, among others, demanding local servers for storage of BlackBerry messages in order to ensure legal accountability and meet national security concerns, was met with widespread condemnation. Now with democratic governments such as Brazil and some in Europe touting data localization as a response to American surveillance revelations, these oppressive regimes have new, albeit inadvertent, allies. While some countries will in fact store, use and protect data responsibly, the validation of data localization will unquestionably lead to many regimes abusing it to silence critics and spy on citizens. Beyond this, data server localization requirements are unlikely to prevent the NSA from accessing the data. U.S. companies and those with a U.S. presence will be compelled to meet NSA orders, and there appear to be NSA access points around the world.
Data localization is a proposed solution that is distracting from the important work needed to improve the Internet’s core infrastructural elements to make it more secure, resilient and accessible to all. This work includes expanding the number of routes, such as more undersea cables and fiber runs, and exchange points, so that much more of the world has convenient and fast Internet access. If less data is routed through the U.S., let it be for the right reason: that it makes the Internet stronger and more accessible for people worldwide. We also need to work to develop better Internet standards that provide usable privacy and security by default, and encourage broad adoption.
Protecting privacy rights in an era of transborder surveillance won’t be solved by ring fencing the Internet. It requires countries, including the U.S., to commit to the exceedingly tough work of coming to the negotiating table to work out agreements that set standards on surveillance practices and provide protections for the rights of privacy and free expression for people. Germany and France have just called for just such an agreement with the U.S. This is the right way forward.
In the U.S., we must reform our surveillance laws, adopt a warrant requirement for stored email and other digital data, and implement a consumer privacy law. The standards for government access to online data in all countries must likewise be raised. These measures are of course much more difficult in the short run that than data localization requirements, but they are forward-looking, long-term solutions that can advance a free and open internet that benefits us all.
Joseph Lorenzo Hall, Chief Technologist at Center for Democracy and Technology, co-authored this piece with Leslie Harris.
This article was originally posted on 4 Nov 2013 at indexoncensorship.org
25 Oct 2013 | Asia and Pacific, Digital Freedom, India, News and features
Just days before the United Nation’s led Internet Governance Forum in Indonesia, India, held its own – and first of its kind – conference on cyber governance and cyber security.
With the support of the National Security Council Secretariat of the Government of India, the two-day conference was organized by private think-tank Observer Research Foundation and industry body, Federation of Indian Chambers of Commerce and Industry, (FICCI). Speakers were from a host of countries including Estonia, Germany, Belgium, Australia, Russia, Israel, and of course, India.
It was ironic, that in a post-Snowden world, buried under allegations of the extent of the NSA’s spying, US officials were unable to attend the conference due to their government’s shutdown. Instead, other views took center stage, and India also visibly demonstrated the various positions its stakeholders take around the questions of governance and security.
Right at the kickoff, India’s Minister for Communications and Technology, Kapil Sibal, challenged the question of sovereignty and jurisdiction in cyberspace. “If there is a cyber space violation and the subject matter is India because it impacts India, then India should have jurisdiction. For example, if I have an embassy in New York, then anything that happens in that embassy is Indian territory and there applies Indian Law.”
India has, over the last few years, flirted with the idea of an UN-lead internet governance structure, and subsequently backed away from it. Minister Sibal said that India believes in “complete freedom of the internet”, however, at the same time needs to acknowledge that along with cyber freedoms come cyber gangsters, and the state and its citizens need to be protected from them.
India, with its 860 million mobile subscriptions (although, the numbers of users would be lower than this figure) is looking more and more to the internet as a delivery platform of socio-economic programs and a tool to boost the economy. That the internet can raise GDP by 10% is a much favored figure for those who promote the internet for economic reasons. The fact is that as the remaining unconnected population of India begins to acquire net connections through desktops and smart phones, the government is increasingly looking at security and surveillance over the internet as a necessary and inevitable route. This also means that the government needs to rely on industry to help them with this gigantic task.
The possible synergy between businesses and government in India was a central theme for discussion; as industry bodies asked the government to invest in training more cyber security specialists and also start moving towards uniform security standards and protocols. In fact, Indian industry most certainly wants to be relived of the financial burden of training personnel, and to an extent, investment in security R&D, and is keen to partner with the government to achieve both ends. Indian industry is often in the news because it appears almost universally under prepared for cyber attacks, both from within the country and externally. Suggestions of a government-led cyber awareness program were made as well, with calls to allocate funds for these exercises in the budget.
However, as has been the case in India, the real source of friction still lies between civil society and the government over the question of surveillance and monitoring. In a session entitled ‘Privacy and National Security’; perhaps the only India-centric panel of the entire conference, the debate became overheated. The panel consisted of a senior police officer involved in surveillance, India’s director-general of CERT (Computer Emergency Response Team), a representative from the mobile industry and a privacy expert. The government official was pushed by civil society members and journalists to explain the workings of the Central Monitoring System, still very opaque to the public, and later the official definition of privacy. He did neither. Unsurprisingly, India is yet to really define what privacy is, leading to simultaneous furor in the room and twitter (#cyfy13) about why this hasn’t been done as yet.
The sense in the room was that surveillance, while necessary to protect citizens, is only really effective when it is conducted in a targeted manner. Mass surveillance leads to self-censorship and is, in the end, counter productive. The other bone of contention was the question of identity, with the government making arguments that verifiable cyber identity is a possible solution to cyber crime. However, other participants found the issue troubling, as anonymity is necessary for a number of reasons, including as we have seen around the world, political dissent.
Finally, panelists discussed how best to inculcate a multistakeholder approach when legislating the internet. It was pointed out more than once that the internet was a product of private enterprise, made on open standards and principles, but now governments are attempting to control this resource. However, while public calls for multistakeholderism were made for many reasons; human rights, protection of privacy and even to benefit business in the long run (as they would not risk being caught up in lengthy court cases in the future if they took civil society on board from the start), there was still an elephant in the room. Offline, many official participants wondered why Chatham House Rules were not observed, or why there were no closed-door meetings only for government officials. It was clear that much of the weighty – and honest – discussions still don’t involve the public. Perhaps not where the question of governance is, but certainly when the question of security is.
Ultimately, there are two broad outcomes of this conference. The first is that India has indicated its willingness to start shouldering discussions to do with the global cyberspace. The other is, as India’s National Security Advisor put it, — ““India has a national cybersecurity policy not a national cybersecurity strategy.” This is certainly a start to building a consensus for that strategy.
This article was posted at indexoncensorship.org on 25 Oct 2013.
7 Oct 2013 | Digital Freedom, India, News and features, Politics and Society
Illustration: Shutterstock
India’s National Integration Council met in the last week of September 2013 to discuss the threat of communal violence in the country. The council, first set up in the early 1960s, gives senior Indian politicians and public leaders a platform to discuss issues that could divide the country along caste, communal, language and regional fault lines. This September, with the backdrop of violent communal clashes that have seen over 50 killed and 40,000 displaced in India’s most populous state, Uttar Pradesh, Prime Minister Manmohan Singh sat with some of the Chief Ministers, to discuss how to resolve these issues.
There were early reports that the meeting was going to discuss the ‘misuse’ of social media, as news reports have indicated that the violent clashes in Uttar Pradesh were spurred on by false videos on YouTube. In India, the regulation of social media has been a subject of great controversy. The government has, in the past, used the IT Act’s Section 66(A) to arrest people for irresponsible posts that they claimed could cause ‘communal tension’. However, as the famous case of the Palghar girls demonstrated, many early arrests under this Section were politically motivated. Similarly, while the government has in the past asked social media companies to take down controversial posts, it has been revealed that most of the requests were again to take down criticism against the government.
However, at the same time, social media and MMS (multimedia messages through texts) have indeed been known to cause real damage. Last year, false rumours spread through MMS resulted in the exodus of northeastern migrants from south India, as the threat of violence seemed imminent. At the time, the government had to ban bulk text messaging, and ultimately restricted messages to 5 a day to curb any more rumours. Meanwhile, with global violence in the aftermath of the YouTube video, The Innocence of Muslims, the government of Jammu and Kashmir decided to suspend the internet for a few days to prevent any incidents.
Only about 164.81 million Indians have access to the internet, and only 143.20 million over mobile phones according to official figures released by the Telecom and Regulatory Authority of India in March 2013. Given this scenario, both the reach in terms of positive and negative impact, is still quite limited in India.
The prime minister, however, chose to focus on social media’s role on fanning communal violence in his address at the National Integration Council. His views on hate speech on social media were echoed by many others, including Uttar Pradesh Chief Minister Akhilesh Yadav, Maharashtra Chief Minister Prithviraj Chavan, Assam Chief Minister Tarun Gogoi, Jharkhand Chief Minister Hemant Soren, Haryana Chief Minister Bhupinder Singh Hooda and Meghalaya Chief Minister Mukul Sangma. The majority of chief ministers, then, favour social media regulation. Ideas thrown forward included taking action within the current legal framework, setting up ‘social media laboratories’ to monitor posts under intelligence departments and even mobilizing NGOs and prominent citizens to counter social media rumours.
There are a few important points to keep in mind while looking at this debate: the real need for regulating social media, scapegoating by politicians and finally, preserving freedom of expression and an open internet.
Given India’s experience with hate speech online, and reports about gender targeted abuse, along with abuse based on political, caste, community and regional affiliation, there is a valid point raised for some kind of regulation of social media. However, the real question is the kind of regulation India chooses to favor. In China, a new law can charge people with defamation if a false rumor started by them gets reposted over 500 times. In India, current laws allow citizens to go to court over information that has even caused them “annoyance” under Section 66A of the law. To ensure this is not abused, the government has now mandated that a senior police officer looks at individual cases before allowing charges to be filed to avoid nuisance cases. In the aftermath of the Muzzafarnagar riots of Uttar Pradesh, some citizens are urging the National Human Rights Commission to ask the Department of Telecom to screen and remove inflammatory posts on social media. However, when looking at cases where mass impact can cause damage (such as the exodus of northeasterns from south India), the government relied immediately on technology to solve the problem. The same can be said of the Jammu and Kashmir government, which switched off the internet, at the slightest hint of trouble.
However, both responses need to have legal sanctity. We already know the Indian government monitors its citizens’ communications, and much like many other governments across the world, and the legal basis for these programmes are still dubious. The government may want to come up with a plan for targeted control of certain communication channels should a particularly disastrous video or message surface over social media, and clearly contributes to an inflamed environment and damage on the ground. Social media is already being used to recruit terrorists. Perhaps some communication channels will be used to organize riots, as have been seen before in London. These will become bigger concerns when more than a sliver of India is connected to the internet. The debate will undoubtedly be seen through the prism of security instead of the freedom of expression, as we are currently witnessing the world over.
In a predominantly uneducated country, rumours run rife, and the result is not violence alone. For example, in 2006, polio campaigns in India have failed in Muslim communities, because of rampant rumours that the polio campaigns were a method to sterilize the community. In 2008, despite warnings, rumours that an apparition of the Virgin Mary would appear to devotees after staring into the sun caused dozens to go blind. Earlier in June 2013, three men were lynched to death in the state of Assam because of a rumour that a group of “naked men” were raping women. This does not mean every misguided or even damaging video needs to be censored immediately.
The constitution of India allows for freedom of expression, although with restrictions. However, any plan to take reasonable action in light of clear and present danger, should be drawn up with the help of civil society organizations and lawyers, and cannot be made and implemented unilaterally. The potential for abuse is too great.
Unfortunately, as it seems today – social media has become become the target of scapegoating by politicians. For example, the violence in Uttar Pradesh may or may not have been caused/spurred by a YouTube video. There is no empirical evidence for that. What isclear is that the Muzzafarnagar riots started with two Hindu boys stabbing a Muslim youth because he stalked their sister. Not YouTube. However, it would appear that instead of focusing on other causes of communal tensions in a neighbourhood, which include poverty, development, and unemployment, senior politicians vilified social media.
With elections looming, can one guarantee that any gap in planning, law and order management or inflammatory campaign speeches won’t be blamed on a tweet or Facebook update? Will the outward calling for “regulating social media” will substitute for real change on the ground?
Finally, the most important point remains. Hate speech, law and order, and mass panic are realities India’s states have been living with for years. It would appear that, in dealing with free expression on the internet, India’s politicians seem to err on the side of control. Perhaps the next election is not just about the economy, but equally about the Indian citizens freedom of expression and freedom from control.
This article was originally published on 7 Oct 2013 at indexoncensorship.org
