Is Kapil Sibal denying pre-screening or, reality?

Communications minister Kapil Sibal has gone on a counter-offensive, denying that he called for pre-screening of the internet and instead deciding to shoot the messenger, The New York Times, and try to shift blame to US internet giants. However, he’s done little more than any other internet censor, raising the standard bogeymen of child pornography and terrorism, while showing a profound lack of understanding of how the internet or the laws that govern it work. In an interview with NDTV’s Barkha Dutt , he dodges questions better than Keanu Reeves dodges bullets in the Matrix and denies ever demanding that web companies pre-screen user generated content. He says that the New York Times, whose article kicked off the firestorm , didn’t ask him for comment prior to publication and implied that their sources were “incorrect”. But Sibal’s answers to Dutt’s direct questions about the New York Times, pre-screening, and the liability of web companies for user generated content are so evasive, illogical and full of circular arguments that it’s nigh on impossible to understand what the minister’s position actually is. [caption id=“attachment_154502” align=“alignright” width=“380” caption=“Earth to Sibal. AFP”] [/caption] Sibal starts off by talking about this history of meetings between the web companies, including Microsoft, Facebook, Google and Yahoo, which started on 5 September.

“There were some demeaning, degrading, clearly pornographic depictions of gods and goddesses […] which no reasonable, sensible person anywhere in the world would accept, on any site. And I said that I would like to start a dialogue to see if it was possible to ensure that these kinds of depictions and content does not come on Google or Facebook or any other site. I said let’s talk about it for four weeks, they didn’t come back to us.”

Sibal repeatedly says that the companies didn’t respond to his requests for information on how they were planning to deal with offensive material, and effectively lays the blame for the whole furore at the foot of the web companies themselves. Asked directly why he didn’t simply prosecute people putting up offensive material, Sibal said that the problem was in knowing the source. Asking the hosting companies, he said, didn’t work because they would simply refuse to provide the user’s information.

“We’ve seen it in the past, even with terrorists they won’t give us the source. So we don’t get the source, so who do we sue? Assuming we were to get the source, […] a lot of them are outside the jurisdiction of India.”

He continues to complain that suing transgressors is too long and impractical, implying that it’s better to short-circuit the law than use due process. On the question of whether he showed the web companies images of Sonia Gandhi, he said he didn’t know, but that the objectionable content was “mostly religious”. Instead of giving a direct answer, he focuses on whether those other images were acceptable, emphasising that they were nothing to do with political satire, protest or criticism. However, Google’s Transparency Report for India shows a different story. They say that the Indian government made 68 requests for 358  items of content to be removed, 51 percent of which were “fully or partially complied with.“ Says the report:

We received requests from state and local law enforcement agencies to remove YouTube videos that displayed protests against social leaders or used offensive language in reference to religious leaders. We declined the majority of these requests and only locally restricted videos that appeared to violate local laws prohibiting speech that could incite enmity between communities. In addition, we received a request from a local law enforcement agency to remove 236 communities and profiles from orkut that were critical of a local politician. We did not comply with this request, since the content did not violate our Community Standards or local law.

Sibal insists that he is only concerned with pornographic depictions of religious figures, saying that he “would welcome satirical references to political leaders as part of freedom of expression”. Yet only three of the items that Indian authorities requested Google remove were related to pornography . Eight were classified as hate speech, one as national security, and 255 items were listed under the government criticism heading. Only ten items were requested to be removed for government criticism in 2010. But where Sibal really wriggles is on the question of pre-screening. Asked directly if the New York Times was wrong to say that he had asked for pre-screening, Sibal simply obfuscates:

“People would be mad to say that there can be any pre-censorship of content that is not yet uploaded. How can anybody say there should be prescreening of something that’s not loaded. […] Can any sane person say that before something comes on the net you must screen it? How can there be prescreening?”

This is disingenuous in the extreme. It’s widely understood that ‘pre-screening’ means that content is reviewed after the user uploads it but before its published on the website. Sibal, instead, attempts to redefine pre-screening as censorship prior to the user uploading, which is clearly nonsensical. This his device for trying to make those protesting look “mad” for even suggesting that pre-screening could be possible. Nice try, Sibal, but no cigar. On the issue of whether web hosts are liable for the content their sites carry, a question thrown up by recent IT regulation changes and not yet satisfactorily answered, Sibal simply retorts:

“Well, what about child pornography?” 

This deflection allows Sibal to talk about how the West prosecutes people who trade in child abuse images instead of answering the question. Yes, child pornography is taken very seriously and blocked at a network level in several countries. But that doesn’t say anything about whether Google and Facebook are legally liable for user content under India’s laws. Eventually Sibal trips himself up when he says that “some content, which is unacceptable in any civilised society, should not be uploaded.” What else can that mean but that he has at least thought about pre-publication moderation of content, aka pre-screening? Because the only other option is post-publication moderation and there are already mechanisms in place for users to report abusive content on networks such as Facebook, Twitter and YouTube. By the end of the interview, which lasts over 25 minutes, we are left with no clarity at all about what Sibal wants, other than some mechanism for objectionable content to be “dealt with”. We are given the impression that Indian law is entirely inapplicable to the internet, something I am sure that many criminals will be delighted to hear. And we are left thinking not that Sibal doesn’t understand the internet, but that he is quite happy to misrepresent how it works when it suits him. Frankly, I am not sure which is worse: lack of understanding or a willingness to twist reality to suit political ends.