Censorship of companies without an official presence in India
With the recent controversy regarding censorship, I was wondering: can the Indian government force foreign companies, such as Twitter, that do not have an official presence in India, to follow its orders? What is the legal framework with regard to censorship and social media? What are the responsibilities and liabilities of social networking services on content posted by users?
In India the networking censorship and surveillance is regulated by many statutes and regulations with the Indian Penal Code, 1860 and Information Technology Act, 2000 (IT Act) being one of the most important statutes. The IPC contains broad penal provisions on defamatory content that apply across media platforms and the IT Act applies specifically to computer systems.
The IT Act criminalises the publishing of obscene information electronically. In our country Article 19(1)(a) provides for freedom of speech and expression whereas the same is restricted by putting reasonable restrictions as per Article 19(2) of the Indian Constitution. In accordance with Article 19(2), the IT Act contains numerous provisions which can be used to censor online content, especially Section 66A, 69A and Sec 79. These provisions provide for blocking the offensive or defamatory content from the website as well as imposing the liability on the author as well as the Intermediary. Though Section 66A has now been held unconstitutional, it has been used extensively by the Government to block user based content online.
Earlier the Intermediaries like Facebook, Twitter or the hosts were not held liable for the content posted by the users on their websites but with the increasing number of the cases the GOI introduced the IT Rules, 2011 to hold the Intermediaries responsible for the content posted by the users. Section 79 of the Act read with the guidelines given in the IT Rules, requires an Intermediary to remove any content that is deemed objectionable, particularly if its nature is “defamatory,” “hateful,” “harmful to minors,” or “infringes copyright”. The Intermediary is required to do this within 36 hours of the order passed by the concerned authority to remove the content.
In many countries, these social networking companies have objected to the liability law associated with user based content on their website. Consequently many legal regimes have incorporated “safe harbour” provisions in the law. Safe harbour provisions stipulate that intermediaries will not be held liable for user content that violates the law as long as the intermediaries adhere to the rules and regulations laid out under the safe harbour provision. By providing a legal framework, safe harbour provisions mitigate the risks illegal user content can pose for intermediaries. In the best of cases, intermediaries are only required to take down content on the orders of a court and do not have to face any legal consequences. In India companies are duly complying with the laws and norms stipulated by the GOI. Google and Facebook have removed content from their websites which the Indian government deemed offensive on many occasions.
On 5 December 2011, The New York Times India Ink reported that the Indian government had asked several social media sites and internet companies, including Google, Facebook and Yahoo!, to “pre-screen user content from India and to remove disparaging, inflammatory or defamatory content before it goes online.” Subsequently in the year 2012 the GOI again asked 21 companies including Internet giants Google Inc and Facebook to develop a mechanism to block objectionable material after a private petitioner took them to court over images deemed offensive to Hindus, Muslims and Christians. The review teams of YouTube and Blogger looked at the content and disabled the content from the local domains of search. Although the Government has tried to incorporate penal provisions in case of non- compliance but keeping safe harbour in mind there is no specific provision in Indian law which ensures that the foreign companies comply with the orders of the Government. Companies like Facebook have tried to delay the compliance and in certain cases they have tried to tackle the problem by merely releasing a statement.
The Intermediaries prefer to align with the Government of India under safe harbour legal regime rather than rebuking the authorities. These giant companies consider India as one of the biggest markets in the world right now. It is logical for them to continue working in harmony with the orders for the Government and abide by their orders rather than face a complete ban as seen in China. Therefore, till date there has not been a case where these social networking companies such as Facebook, Twitter etc. have clearly denied complying with the provisions of the IT Act or the IT Rules and the Government has forced them to block the content.
The social networking sites such as Facebook, Twitter, YouTube, etc., Internet Service Provider and domain name hosts are all known as intermediaries.
Timmons, Heather (5 December 2011). “India Asks Google, Facebook to Screen User Content”. The New York Times