[IRP] Invisible Censorship: How the Government Censors Without Being Seen

[Pranesh Prakash]

Dear all,
I thought I'd pass on a short general-audience post I wrote last month,
as it provides an update on the goings-on in India.

Regards,
Pranesh

<http://goo.gl/0g6lG>

# Invisible Censorship: How the Government Censors Without Being Seen
Posted by Pranesh Prakash at Dec 15, 2011 05:30 AM | Permalink

Filed under: IT Act, Google, Access to Knowledge, Social media, Freedom
of Speech and Expression, Intellectual Property Rights, Intermediary
Liability, Featured, Internet Governance, Censorship

The Indian government wants to censor the Internet without being seen to
be censoring the Internet. This article by Pranesh Prakash shows how the
government has been able to achieve this through the Information
Technology Act and the Intermediary Guidelines Rules it passed in April
2011. It now wants methods of censorship that leave even fewer traces,
which is why Mr. Kapil Sibal, Union Minister for Communications and
Information Technology talks of Internet 'self-regulation', and has
brought about an amendment of the Copyright Act that requires instant
removal of content.


## Power of the Internet and Freedom of Expression

The Internet, as anyone who has ever experienced the wonder of going
online would know, is a very different communications platform from any
that has existed before.  It is the one medium where anybody can
directly share their thoughts with billions of other people in an
instant.  People who would never have any chance of being published in a
newspaper now have the opportunity to have a blog and provide their
thoughts to the world.  This also means that thoughts that many
newspapers would decide not to publish can be published online since the
Web does not, and more importantly cannot, have any editors to filter
content.  For many dictatorships, the right of people to freely express
their thoughts is something that must be heavily regulated.
Unfortunately, we are now faced with the situation where some democratic
countries are also trying to do so by censoring the Internet.
Intermediary Guidelines Rules

In India, the new 'Intermediary Guidelines' Rules and the Cyber Cafe
Rules that have been in effect since April 2011 give not only the
government, but all citizens of India, great powers to censor the
Internet.  These rules, which were made by the Department of Information
Technology and not by the Parliament, require that all intermediaries
remove content that is 'disparaging', 'relating to... gambling', 'harm
minors in any way', to which the user 'does not have rights'.  When was
the last time you checked wither you had 'rights' to a joke before
forwarding it?  Did you share a Twitter message containing the term
"#IdiotKapilSibal", as thousands of people did a few days ago?  Well,
that is 'disparaging', and Twitter is required by the new law to block
all such content.  The government of Sikkim can run advertisements for
its PlayWin lottery in newspapers, but under the new law it cannot do so
online.  As you can see, through these ridiculous examples, the
Intermediary Guidelines are very badly thought-out and their drafting is
even worse.  Worst of all, they are unconstitutional, as they put limits
on freedom of speech that contravene Article 19(1)(a) and 19(2) of the
Constitution, and do so in a manner that lacks any semblance of due
process and fairness.


## Excessive Censoring by Internet Companies

We, at the Centre for Internet and Society in Bangalore, decided to test
the censorship powers of the new rules by sending frivolous complaints
to a number of intermediaries.  Six out of seven intermediaries removed
content, including search results listings, on the basis of the most
ridiculous complaints.  The people whose content was removed were not
told, nor was the general public informed that the content was removed.
 If we hadn't kept track, it would be as though that content never
existed.  Such censorship existed during Stalin's rule in the Soviet
Union.  Not even during the Emergency has such censorship ever existed
in India.  Yet, not only was what the Internet companies did legal under
the Intermediary Guideline Rules, but if they had not, they could have
been punished for content put up by someone else.  That is like
punishing the post office for the harmful letters that people may send
over post.


## Government Has Powers to Censor and Already Censors

Currently, the government can either block content by using section 69A
of the Information Technology Act (which can be revealed using RTI), or
it has to send requests to the Internet companies to get content
removed.  Google has released statistics of government request for
content removal as part of its Transparency Report.  While Mr. Sibal
uses the examples of communally sensitive material as a reason to force
censorship of the Internet, out of the 358 items requested to be removed
from January 2011 to June 2011 from Google service by the Indian
government (including state governments), only 8 were for hate speech
and only 1 was for national security.  Instead, 255 items (71 per cent
of all requests) were asked to be removed for 'government criticism'.
Google, despite the government in India not having the powers to ban
government criticism due to the Constitution, complied in 51 per cent of
all requests. That means they removed many instances of government
criticism as well.


## 'Self-Regulation': Undetectable Censorship

Mr. Sibal's more recent efforts at forcing major Internet companies such
as Indiatimes, Facebook, Google, Yahoo, and Microsoft, to
'self-regulate' reveals a desire to gain ever greater powers to bypass
the IT Act when censoring Internet content that is 'objectionable' (to
the government).   Mr. Sibal also wants to avoid embarrassing statistics
such as that revealed by Google's Transparency Report. He wants Internet
companies to 'self-regulate' user-uploaded content, so that the
government would never have to send these requests for removal in the
first place, nor block sites officially using the IT Act.  If the
government was indeed sincere about its motives, it would not be talking
about 'transparency' and 'dialogue' only after it was exposed in the
press that the Department of Information Technology was holding secret
talks with Internet companies.  Given the clandestine manner in which it
sought to bring about these new censorship measures, the motives of the
government are suspect.  Yet, both Mr. Sibal and Mr. Sachin Pilot have
been insisting that the government has no plans of Internet censorship,
and Mr. Pilot has made that statement officially in the Lok Sabha.
This, thus seems to be an instance of censoring without censorship.


## Backdoor Censorship through Copyright Act

Further, since the government cannot bring about censorship laws in a
straightforward manner, they are trying to do so surreptitiously,
through the back door.  Mr. Sibal's latest proposed amendment to the
Copyright Act, which is before the Rajya Sabha right now, has a
provision called section 52(1)(c) by which anyone can send a notice
complaining about infringement of his copyright.  The Internet company
will have to remove the content immediately without question, even if
the notice is false or malicious.  The sender of false or malicious
notices is not penalized. But the Internet company will be penalized if
it doesn't remove the content that has been complained about.  The
complaint need not even be shown to be true before the content is
removed.  Indeed, anyone can complain about any content, without even
having to show that they own the rights to that content.  The government
seems to be keen to have the power to remove content from the Internet
without following any 'due process' or fair procedure.  Indeed, it not
only wants to give itself this power, but it is keen on giving all
individuals this power.

It's ultimate effect will be the death of the Internet as we know it.
Bid adieu to it while there is still time.

-- 
Pranesh Prakash
Programme Manager
Centre for Internet and Society
W: http://cis-india.org | T: +91 80 40926283



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