When Jadavpur university professor Ambikesh Mahapatra hit the ‘enter’ key on the computer to forward a cartoon lampooning Mamata Banejree, like most Indians, he didn't not realise the enormity of his actions.
Along with sections of the Indian Penal Code (IPC), the professor was slapped with section 66 of the Information Technology (IT) Act, 2000. Destroying/ deleting/ altering any e-information with the intent of causing wrongful damage, is punishable with up to three years of imprisonment, under this section. The chemistry professor had to spend one night in police station and so traumatized was he by the episode that after his release he said he feared for his life.Contrary to Kapil Sibal's claims about a wild and unfettered Internet, existing Indian laws make it absurdly easy to censor and/or punish citizens for routine online behaviour. In fact, there are more ways to ban content online than there are to ban physical books and other forms of media. More alarming is the fact that most of this censorship is invisible. Content is removed quietly without notification to even the person who uploaded the content. And if you are not aware of a piece of content, it never existed for you.
Freedom on the Net 2011 designated India as ‘partly free’ with a ‘freedom of Internet’ score of 36. But the report also warned, “Even in more democratic countries—such as Brazil, India, Indonesia, South Korea, Turkey, and the United Kingdom—internet freedom is increasingly undermined by legal harassment, opaque censorship procedures, or expanding surveillance."
The war on online free speech is being waged on a number of fronts. And these are the most effective weapons in a would-be censor's arsenal"
One, the Information Technology Act. In addition to section 66 under which Mahapatra was arrested, there is section 69 (A). It authorizes the central government to ‘block for access to public’ information in any computer resource for the sovereignty and integrity of the country, security of the country and friendly relations with other states. Data with Bangalore bases Centre for Internet Society (CIS) shows that the union government’s department of information technology blocked 11 items. One of them is ‘I hate Ambedkar’ page on Facebook. Indybay.org and arizona.indymedia.org- San Fransisco and Arizona chapters of Indybay- one of the oldest citizen run journalism website, is also in the list.
Two, the local police station. On December 26, Kanpur based cartoonist Aseem Trivedi was exhibiting his work at Mumbai’s MMRDA ground during the Lokpal agitation. The next day, the 24 year old cartoonist received a notice from BigRock, the domain name registrar, saying that it had complied with a Mumbai Crime Branch notice to block his site- cartoonagainstcorruption.com- displaying all his work. “I am fine if it is a cartoon criticising a politician, but I cannot tolerate anyone insulting our constitution and democratic process,” said Mumbai based lawyer R P Pandey, on whose complaint the site was blocked.
The Mumbai police invoked the Emblems and Names (prevention of inappropriate use) Act, 1950, Prevention of Insult to National Honour Act 1971 and various sections of the IPC to block the site.
Cyber law experts say that the police has no power under IPC or CrPc to request removal of content without either a public notification issued by the state government or a court order.
“But they (police) don’t follow the rules and therefore, the way they block sites, is illegal,” said Pranesh Prakash of Centre for Internet Society (CIS).
Three Information Technology (Intermediary Guidelines) Rules, 2011. The rules say that any person aggrieved by any content on the Internet can ask the intermediaries to take down such content. Intermediaries are obliged to remove access to such content within a period of 36 hours from the time of receipt of complaint. The rules do not provide for the content generator to respond to the complaint.
So, if you have published a news article/ opinion piece/ blog/ cartoon which I don’t like, I can simply approach the website hosting your content and it will be removed in 36 hours. It is this simple. You will not get a chance to present your defense. In fact, if the intermediary (website) does not remove the said content, it is liable for legal action.
Last year when CIS sent ‘take down’ notices to seven intermediaries in an experiment, six of them complied immediately.
“Intermediaries run the risk of being dragged to courts. That is why they comply with almost every ‘take down’ request,” said Mishi Chaudhary of Delhi based advocacy group Software Freedom Law Centre (SFLC).
Chaudhary offers as an alternative the Canada model, according to which every time an intermediary receives a take down notice, it forwards the same to the content generator. “From there on, it is between the complainant and the content generator,” she says.
Some members of parliament are speaking out against these rules. P Rajeev has moved an annulment motion abolishing the IT rules, while Bangalore MP Rajeev Chandrashekhar has spoken in support of the motion.
Four, the courts. Last December, journalist Vinay Qasmi and Delhi government employee Aijaz Ashraf Qasmi dragged 21 social networking sites to court asking it to direct the sites to devise a pre-screening mechanism. In addition to his troubles with the Mumbai police, Aseem Trivedi also has two court cases against him in Maharashtra. One of these is a case of sedition.
The IIPM vs. Caravan case also shows how much easier it is for courts to restrict online content as opposed to printed material. In March, a defamation suit was filed in a civil court in Silchar (Assam) against the magazine, Sidhhartha Deb, Google and Penguin- publisher of the book from which the extract was taken. The court immediately passed an injunction order that forced the magazine to pull the offending article from their website. Issues of the magazines – since they were already printed and distributed – remained unaffected.
Experts, however, argue that it is better for courts to decide censorship matters than to leave it to the whim of the individual service provider or the local police. “Many countries including Brazil will soon have this law which makes mandatory, the involvement of court, in Internet censorship,” said Prabir Purkayastha of Knowledge Commons, a Delhi based Internet research firm.