What if the real danger is not that we lose our freedom of speech and expression but our sense of humour as a nation?
While freedom of speech and expression is an individual right, its
actualisation often relies on a vast infrastructure of intermediaries.
In the offline world, this includes newspapers, television channels,
public auditoriums, etc. It is often assumed that the internet has
created a more robust public sphere of speech by doing away with many
structural barriers to free speech. But the fact of the matter is that
even if the internet enables a shift from a ‘few to many' to a ‘many to
many' model of communication, intermediaries continue to remain
important players in facilitating free speech. Can one imagine free
speech on the internet being the same without Twitter, social networks
or Youtube?
One way of thinking of the infrastructure of communication is in terms
of ecology, and in the ecology of speech — as in the environment — an
adverse impact on any component threatens the well-being of all. The
idea of cyberspace as a commons is a much cherished myth and in the
early days of the internet we were perhaps given a glimpse into its
utopian possibility. But we would be deluding ourselves if we believed
that the problems that plague free speech in the offline world
(including ownership of the avenues of speech) are absent in cyberspace.
Recall in recent times that one of the most effective ways in which
various governments retaliated to the leaking of official secrets on
WikiLeaks was by freezing Julian Assange's PayPal account.
Direct & indirect controls
It may be useful to distinguish between direct controls on free speech
and indirect or structural controls on free speech. India has had a long
history of battling direct and indirect controls on free speech and
with a few exceptions the interests of the press have often coincided
with the interests of a robust public sphere of debate and criticism.
In the late 1950s and early 1960s, a number of large media houses
battled restrictions imposed on the press by way of control of the
number of pages of a newspaper, regulation of the size of advertisements
and the price of imported newsprint. On the face of it, some of these
restrictions may have seemed like commercial disputes but the Supreme
Court rightly recognised that indirect controls could adversely impact
the individual's right to express himself or herself as well as to
receive information freely.
In the online context, there has also been a similar recognition of the
role of intermediaries in providing platforms of speech and it is with
this view in mind that a number of countries have incorporated safe
harbour provisions in their information technology laws.
Section 79 of the Information Technology Act is one such safe harbour
provision in India which provides that intermediaries shall not be
liable for any third party action if they are able to prove that the
offence or contravention was committed without their knowledge or that
they had exercised due diligence to prevent the commission of such
offence or contravention. But this safe harbour has effectively been
undone with the passing of the Information Technology (Intermediaries
guidelines) Rules, 2011.
The rules clarify what standard of due diligence has to be met by
intermediaries and Sec. 3(2) of the rules obliges intermediaries to have
rules and conditions of usage which ensure that users do not host,
display, upload, modify, publish, transmit, update or share any
information that is in contravention of the Section. This includes the
all too familiar ones (defamatory, obscene, pornographic content) but
also a whole host of new categories which could be invoked to restrict
speech (“grossly harmful,” “blasphemous,” “harassing,” “hateful”).
As is well known, any restriction on speech in India has to comply with
both the test of reasonableness under Article 19(2) of the Constitution,
as well as ensuring that the grounds of censorship are located within
19(2). Even though there are laws regulating hate speech in India,
blasphemy is not a category under Art. 19(2) and has hitherto not been a
part of Indian law. Some of the other categories such as “grossly
harmful” suggest the people who drafted the rules seem to have taken a
constitutional nap at the drafting board.
Sec. 3(4) of the rules provides that any intermediary who receives a
notice by an aggrieved person about any violation of sub rule (2) will
have to act within 36 hours and where applicable will ensure that the
information is disabled. In the event that it fails to act or to
respond, the intermediary cannot claim exemption for liability under
Sec. 79 of the IT Act. It is worth noting that most intermediaries
receive from hundreds to thousands of requests from individuals on a
daily basis asking for the removal of objectionable material. The Centre
for Internet and Society conducted a “sting operation” to determine
whether the criteria, procedure and safeguards for administration of the
takedowns as prescribed by the Rules lead to a chilling effect on free
expression.
In the course of the study, frivolous takedown notices were sent to
seven intermediaries and their response to the notices was documented.
Different policy factors were permuted in the takedown notices in order
to understand at what points in the process of takedown, free expression
is being chilled. The takedown notices which were sent by the
researcher were intentionally defective as they did not establish how
they were interested parties, did not specifically identify and discuss
any individual URL on the websites, or present any cause of action, or
suggest any legal injury. Of the seven intermediaries to which takedown
notices were sent, six over-complied with the notices, despite the
apparent flaws in them.
Caution
Even in cases where the intermediaries challenged the validity of the
takedowns, they erred on the side of caution and took down the material.
While a number of intermediaries would see themselves as allies in the
fight against censorship, more often than not intermediaries are also
large commercial organisations whose primary concern is the protection
of their business interests. In the face of any potential legal threat,
especially from the government, they prefer to err on the side of
caution. The people whose content was removed were not told, nor was the
general public informed that the content was removed.
The procedural flaws (subjective determination, absence of the right to
be heard, the short response time) coupled with the vague grounds on
which such takedowns can be claimed, clearly point to a highly flawed
situation in which we will see many more trigger happy demands for
offending materials to be taken down.
We have already slipped into a state of being a republic of over
sensitivity where any politician, religious group or individual can
claim their sentiments have been hurt or they have been portrayed
disparagingly, as evidenced by the recent attack and subsequent arrest
of Professor Ambikesh Mahapatra of Jadavpur University for posting
cartoons lampooning Mamata Banerjee.
Nervous state
In the era of global outsourcing it was inevitable that the state
censorship machinery would also learn a lesson or two from the global
trends and what better way of ensuring censorship than outsourcing it to
individuals and to corporations. The renowned anthropologist, Michael
Taussig, once compared the state to a nervous system and it seems that
the Intermediary rules live up to the expectations of a nervous state
ever ready to respond to criticism and disparaging cartoons.
What if the real danger is not even that we lose our freedom of speech
and expression but we lose our sense of humour as a nation?
The evident flaws of the rules have been acknowledged even by lawmakers,
with P. Rajeeve, the CPI(M) M.P., introducing a motion for the
annulment of the rules. The annulment motion is going to be debated in
the coming weeks and one hopes that the parliamentarians will seriously
reconsider the rules in their current form.
When faced with conundrums of the present it is always useful to turn to
history and there is reason to believe that while censorship has a very
respectable genealogy in Indian thought, it has also been accompanied
in equal measure by a tradition of the right to offend.
In his delightful reading of the Arthashastra, Sibaji
Bandyopadhay alerts us to the myriad restrictions that existed to
control Kusilavas (the term for entertainers which included actors,
dancers, singers, storytellers, minstrels and clowns). These regulations
ranged from the regulation of their movement during monsoon to
prohibitions placed on them, ensuring that they shall not “praise anyone
excessively nor receive excessive presents”. While some of the
regulations appear harsh and unwarranted, Bandyopadhay says that in
contrast to Plato's Republic, which banished poets altogether from the ideal republic, the Arthashastra goes so far as to grant to Kusilavas what we could now call the right to offend. Verse 4.1.61 of the Arthashastra
says, “In their performances, [the entertainers] may, if they so wish,
make fun of the customs of regions, castes or families and the practices
or love affairs (of individuals)”. One hopes that our lawmakers, even
if they are averse to reading the Indian Constitution, will be slightly
more open to the poetic licence granted by Kautilya.
(Lawrence Liang is a lawyer and researcher based at Alternative Law
Forum, Bangalore. He can be contacted at lawrence@altlawforum.org)
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