The
core of information revolution is internet. It has become the driving
wheel of knowledge transmission and has explored the span of
possibilities of human interactions by dismantling every possible
barrier to communication. Lately, this space being a "global
common" has become the new battleground of the traditional
conflict forms like governance, terrorism, communalism, issues of
free speech and expression, piracy and transparency (with cyber
dimension applied to them). These conflicts can be broadly divided
into 3 categories (similar to their interaction areas):
1. Government
to Government- It includes Cyber wars, spying, sabotage. The
counter offensive and defensive cyber security systems has put the
world into another race resembling to the arms race, nuclear race and
space race. Few of the examples are Stuxnet virus and flame virus
against Iran. Recent issues over internet governance and control over
ICANN are another emerging dimension representing control over the
critical internet architecture.
2. Government
vs People: Lately, internet has been the powerful tool to
mobilize people as witnessed in the recent India's elections 2014. It
has been a potent tool in governance. With the increasing internet
penetration, government is merging its various programmes with
information technology to increase transparency and citizen
participation. There has been rising debate over national security vs
right to privacy all over the world. PRISM revelation is the case in
point. In India there has been a debate over clashes between article
19 and Section 66A of IT act. We will delve deep into this issue in
context of India later in this article.
3. People
vs people: defamation, bullying, identity theft, stalking,
pornography are also getting more popular in the cyber world due to
the inherent advantages of anonymity, secrecy, borderlessness and an
exponential rate of multiplicity of the content. The spreading of
rumors on internet via social media has been a major cause of recent
communal riots (Assam riots, Mujjafarnagar riots) causing enmity.
In
the next section, we will dig deep into the matters related to
government regulations on internet and social media at the legal
front.
Government
regulations on internet (Section 69A of IT act)
Indian
government created the Information Technology (IT) Act to provide a
legal framework to regulate Internet use and commerce, including
digital signatures, security, and hacking. The act criminalizes the
publishing of obscene information electronically and grants police
powers to search any premises without a warrant and arrest
individuals in violation of the act. A 2008 amendment to the IT Act
reinforced the government's power to block Internet sites and content
and criminalized sending messages deemed inflammatory or offensive.
Supplementary to this, "IT rules 2011" were adopted which
require Internet companies to remove any content that is deemed
objectionable (including defamatory, hateful and harmful to minors)
within 36 hours of being notified by the authorities. Since then,
Government has made use of these provisions many times. One of the
first Government bans was on all file hosting websites by ISPs to
prevent piracy of film Singham in 2011. With the growing discontent
among people against government (during India against corruption
movement), there was bulk of content produced criticizing the
government, to which Indian government responded by asking several
social media sites to "prescreen user content from India
and to remove disparaging, inflammatory content before it goes
online, and this pre screening should be carried out by human beings
instead of relying on technology". This request was seen
negatively by Indian netizens. Fortunately, this request was deemed
impossible to serve by the social media companies.
Apart
from ban on websites, individuals were also targeted. Ban on cartoons
by Aseem Dwivedi against corruption was a case to the point. As far
as judicial intervention is concerned, Madras high court has passed
an order saying that entire websites cannot be blocked on the basis
of "John Doe"(anyone's) orders. Yet, government has shown
reluctance to even discuss the "draconian" provisions of IT
act. The annulment motion in Parliament against 2011 IT Rules was not
carried out. GoI played a reactive role during Assam violence of 2012
by blocking around 200+ specific URLs. This was the then the highest
level of censorship in India.
If
we talk in latest context, 2014 has been the year with highest number
of websites blocked. In mid of 2014, Sony entertainment requested
blocking of more than 400 file sharing websites, to which permission
was granted for 219 sites. In November 2014, Government banned access
to most of the porn sites. India witnessed maximum user content
blocks(4000+ requests) as per the report released by facebook.
Recently, with the notification of DoT(Department of Telecom) orders,
32 URLs including Pastebin, video sharing sites Vimeo and
DailyMotion, Internet archive site archive.org and Github.com( a
web-based software code repository), have been blocked under Section
69A of the Information Technology Act, 2000 as they could host terror
content relating to ISIS.
These
statistics are shocking in the largest democracy of the world, where
free speech and expression are our basic rights.
Then
what is the reason behind this and what should be done?
One
reason could be just the sheer number game. India has one of the
largest growing user group on social media. And there is going to be
increased interest in governing what is being said on social media.
Yet, the main reason for this might be that we live in a great
paradox of information regimes. On the one hand, we claim to be a
fully democratic state and granting freedom of speech and expression
as enshrined in our constitutional rights. At the same time,
government is not being seen as very pro-free speech and
expression on social media as per the above statistics. Also given a
very conservative social ethos in the country, a large number of
people do use practices that might be objectionable- like stalking,
accessing pornographic content etc. We are driving towards maturity
in the democracy regime, there is likely to be more upheaval
generated by people and anti-state actors.
Thus,
the role of government cannot be denied to maintain public order.
Having said that, there is no doubt that censorship is the worst form
of control. It only enables stifling of free speech and takes away
one of our most fundamental rights of self-determination and
expression. But, the means used should be as much transparent as
possible.
Also,
technology needs to be comprehended in a holistic manner. Banning the
whole domain of blogspot.com just to block few blog posts is not
justified. The blocked entities should be URLs that should also be as
minimum as possible(as also ruled by the Madras high court).
It
has been experienced that these blocks are temporary in nature, e.g,
the recent blocking of github, vimeo website didn’t even last for a
week( from 25th December, 2014 to 1st January, 2015), thus not that
effective in nature practically. Yet, It was without consultation and
was specific to few service providers (vodafone), it only erode the
confidence due to governments' arbitrary acts.
Also
there is need for a proactive approach instead of reactive as seen in
most of the bans (after Assam violence it took 4 days to remove the
rumors from internet).
Some
experts also feel that there should not be any restrictions but
awareness should be put in place which includes citizen participation
and their engagement. Moreover, greater clarity over rules and laws
with healthy discussion will imbibe confidence among netizens and
other stakeholders.
Social
media and Fundamental rights (Section 66A vs Article 19)
Section
66A dictates punishment for any person who sends, by means of a
computer resource or a communication device-
(a)
any information that is grossly offensive or has menacing character;
(b)
any information which he knows to be false, but for the purpose of
causing annoyance, inconvenience, danger, obstruction, insult,
injury, criminal intimidation, enmity, hatred, or ill will,
persistently by making use of such computer resource or a
communication device
(c)
any electronic mail or electronic mail message for the purpose of
causing annoyance or inconvenience or to deceive or to mislead the
addressee or recipient about the origin of such messages.
At
the legal front, the SC at present is involved in hearing a petition
filed by the internet and Mobile Association of India challenging
section 66A and section 80 of the IT Act which deal with the
punishment to those violating the law. Meanwhile, the government has
upheld its right in a petition before the court to issue take down
notices to control and restrict certain content and has called it
"reasonable restrictions" so as to prevent chaos or
disharmony in the society.
It
is also true that Section 66A is being misused today as shown in the
figure below.
Pic
courtesy : indiatoday.intoday.in
How
is it justified?
Pic
courtesy : indiatoday.intoday.in
What
are the flaws with the current setup?
There
is no clear definition of the words annoyance,
inconvenience which are dependent on the person who is
tagged in that defamation process and subjected to arbitrary
interpretation. It also uses the
word 'transmitted' rather 'send' which
made ambiguity between the sender and the service provider. Moreover,
there are overlapping areas between Section 66A and other IPC
sections, like, criminal intimidation is already covered by IPC
sections 503 and 506, so overriding or applying the same. Section 81
of the IT Act further complicates the matter. It says that it is a
special law and the provisions of this law prevail over anything
inconsistent therewith contained in any other law in force, thus
giving it overarching powers.
What
can be done?
There
should not be a reason for curbing the freedom of speech unless it is
directly related to decency or morality, public order, or defamation.
The terms should be clearly defined. The later part of 66A(c), which
talks of deception, is sufficient to combat spam and phishing, and
hence the first half, talking of annoyance or inconvenience is not
required.
Government
gave the guidelines after the facebook girls arrest- "the
concerned police officer of police station may not register any
complaints unless he has obtained prior approval at the level of an
officer not below the DCP rank in urban and rural areas and IG level
in metros". It was a commendable step and in future also this
needs to be ensured that excessive powers should not be given to a
single authority. The more the transparency in regulating internet
and its content, the more will it prosper.
Conclusion
To
sum up, I would say, we have to accept the fact that internet is
emerging as a new battleground for various kind of conflicts. But
outright ban is not the solution, it is happening only because it is
a new technology and clear rules of the game are not established yet.
This is not a new phenomenon and has happened in the past every time
a new technology has surfaced. So we need to sit down and devise
universally acceptable standards and guidelines which strike a fine
balance of preserving free speech, privacy and transparency while at
the same time protecting people’s lives and dignity, maintaining
national security and safeguarding intellectual property. The policy
of "Ban Everything" is not an alternative to good policy
implementation.
