Published in the July 2012 issue of The Caravan.
THE ONGOING STRUGGLE to protect the Internet from censorship in India has begun to attract much-needed attention, and not a moment too soon. But a series of recent developments that has placed the issue on the radar of the national and international media also reveals the increasing complexity of the issue, and the ease with which interested parties can manipulate an opaque system to block access to sites of their own choosing—the dawning of a new era of “private” censorship.
Previously, it seemed that the principal obstacle to online freedom of expression in India was our own government, which has for several years ordered blocks on allegedly “controversial” websites and exerted pressure on companies like Google and Facebook to remove content that government officials deem “defamatory” or “inflammatory”. But it is now clear that the government is only one of several hurdles to free expression online, along with entertainment companies, courts, Internet service providers (ISPs) and even Internet companies themselves.
The most recent controversies over online censorship have been fuelled by the efforts of music and film companies, who are determined to arrest the sharing of their content online before Internet penetration in India becomes more widespread. They have increasingly begun to approach the courts, arguing that the free availability of copyrighted content online necessarily represents a loss of revenue. The global debate over online copyright violations has been ongoing for more than a decade, and it is no surprise that it has finally come to India—but there has been little room for debate, at least so far. Courts have repeatedly acceded to the claims of entertainment companies without entertaining counterarguments.
In March, the Indian Music Industry (IMI), a consortium of more than 100 music companies, obtained orders from the Calcutta High Court instructing ISPs to block 104 music-sharing websites. Their press release could not hide their excitement: “Indian Music Industry Fights Back. Gets Court Order Directing 387 ISPs to Block 104 Illegal Music Websites within 36 hours!—a first in the world.”
In May, the producers of the Tamil film 3—made famous, ironically, by the viral online spread of its song ‘Why this Kolaveri Di’—obtained an even more sweeping injunction from the Madras High Court against anyone, present or future, who makes their film available online. Armed with this so-called “Ashok Kumar” order (the Indian equivalent of the American “John Doe”), the entertainment company’s lawyer simply sends one email after another to ISPs, demanding that they block whatever site he wants blocked, citing the injunction against unspecified copyright offenders. In Bollywood, Reliance Entertainment has been the leader in similar efforts to block file-sharing websites via these “John Doe” court orders. Most recently, Viacom 18 got a John Doe order to prevent the piracy of Anurag Kashyap’s Gangs of Wasseypur. The use of these wide-reaching court orders has led, in recent months, to the blocking of numerous sites on the spurious grounds that they might conceivably host copyrighted content—including the video-sharing site Vimeo, whose content is largely user-generated, and Pastebin, a site that hosts text files.
The courts appear to have made it very easy for entertainment companies to get sweeping orders directed against unknown and unnamed pirates, orders whose interpretation is then left in the hands of lawyers—who can subsequently coerce ISPs to block sites, without any opportunity for the targeted sites to defend themselves, whether in court or afterwards. But the ISPs, of course, are not passive spectators: they have repeatedly acceded to requests for blocking, and often blocked far more than the specific “offending” content referenced in court or government orders. In 2003, when the government asked ISPs to block the address of one particular discussion group hosted by Yahoo! Groups, they blocked the entire site and all the groups therein; in 2006, in response to a request to block one site hosted on the blogging service Blogspot, they again blocked the entire domain.
A similar situation may have led to the blocking of Vimeo and Pastebin this year, though it is impossible (not impossible—just that nobody has done the legwork on this, honestly) to know for sure. Rajesh Chharia, president of the Internet Service Providers Association of India, told me that some ISPs “may have” blocked these sites even though they were not required to do so—but, he added, one must understand the situation facing Internet providers, who get one email after another from copyright lawyers across India demanding they block one address after another.
A more worrying development regarding ISP actions came to light at the end of May, when the activist group Anonymous India hacked into the servers of one provider, Reliance Communication, and released a list of 434 web addresses that had been blocked. Among these were 45 addresses that Reliance had not been asked to block by either government or the courts—all of them related to an accused in the 2G scam, Satish Seth, a group managing director at its parent company, Reliance ADA Group (R-ADAG). The 45 addresses were soon unblocked. (For the record, an R-ADAG executive denied in an email that their servers had been compromised by Anonymous India, and said they had not blocked any web pages unless asked to do so by the government or the courts.)
All this adds up to what can be called private censorship, as distinguished from government censorship. But whereas acts of censorship ordered by the government can be challenged by citizens through Right to Information applications or appeals to elected officials, it seems virtually impossible for customers to hold ISPs, entertainment companies or copyright lawyers accountable for their acts of censorship. Going to court seems to be the only option, but many experts and activists who work on Internet freedom in India are wary of taking this route; the consensus among advocates is that Indian courts are unable (or unwilling) to appreciate the complex issues involved in regulating or blocking Internet sites.
It did not encourage them when in January, a one-judge bench of the Delhi High Court told Google and Facebook, “Like China, we too can block such websites.”
The government, which should be expected to defend the rights of citizens to access information, has hardly distinguished itself in such matters. In March, Union Home Secretary RK Singh asked a visiting US official, Deputy Secretary of Homeland Security Jane Holl Lute, to make sure that American Internet giants like Google and Facebook remove any and all content the Indian government wants deleted, and to do so in real time—as soon as the requests are made. The government claims that it is helpless against citizens who use the Internet to disseminate content that it deems “incendiary, provocative, abusive and communal”; it wants Internet companies to relocate their servers to India so that it can regulate them more closely.
But the truth is that American Internet companies have already been complying with requests from the Indian government to remove content, and have done so for years. Back when Orkut was still wildly popular, in the mid-2000s, the Mumbai police even signed a pact with Google for the removal of content and passing on of IP address details in cases of criminal offence. As recently as February 2011, Facebook was asked to remove a page called “I Hate Ambedkar” after Dalit activists in Mumbai protested against its content; the company, which is not renowned for its robust efforts to protect free speech, removed the content in a matter of hours.
So why is the Indian government issuing complaints about Facebook and Google to the American government? Presumably because it finds the companies have not agreed to every single one of its requests. The New York Times reported in December 2011 that Communications Minister Kapil Sibal had summoned representatives from Facebook and the major ISPs to his office—and suggested that they remove a Facebook page “that maligned the Congress Party’s president, Sonia Gandhi”.
In reply to a Right to Information application filed last year by the Centre for Internet and Society (CIS), Bengaluru, the Department of Information Technology revealed that Punjab politician Sukhbir Singh Badal wanted his own Wikipedia entry blocked. The RTI reply, though, showed that very few requests are received for blocking. The government’s weapon of choice is direct requests to Google. An analysis of Google’s biannual ‘Transparency Reports’ for the two-year period from January 2010 to December 2011 shows that, on average, India requested Google to remove two items every three days. Tellingly, the latest report says that Google’s compliance of India’s requests dropped to 26 percent—which, we can conclude, means Google found two-thirds of the requests illegitimate. The reports say that the most frequent requests for content removal from India—which arrive without court orders—pertain to criticism of government officials and alleged defamation. Google says these have included requests from a chief minister to remove YouTube videos and from an unnamed ‘local leader’ to remove more than 200 pages about him/her.
Google’s refusal to comply with such requests is clearly why the government is unhappy with them. To work around these companies’ refusal, the government introduced a new set of “intermediary liability” rules in April 2011. The new rules provide a mechanism for anyone to send intermediaries (websites, ISPs, domain registrars, host servers—basically anyone along the route between content and viewers) a notice to take down content within 36 hours or face a possible court case. Corporations are unenthusiastic about wasting time and money defending themselves in India’s cumbersome legal system (at least when freedom of expression is at stake), and they are therefore usually happy to remove whatever is demanded. This was made clear in an experiment conducted by the CIS, which sent legally unsound requests for content removal to seven websites: six agreed without protest, and one went farther than it had been asked. It was using these intermediary liability rules that Congress activists in Maharashtra managed to get a domain registrar to suspend Aseem Trivedi’s website, Cartoons Against Corruption. With some lobbying from Internet freedom groups, the Rajya Sabha debated the IT Rules; most speakers spoke up against them, and yet the House did not annul, or even emend, them.
You would think that India’s proudly free press, having learnt its lesson during the Emergency, would instinctively and unanimously stand up for the freedom of expression online. But, to the contrary, much of the mainstream media has been receptive to arguments in favour of Internet censorship, in part because celebrity journalists have been displeased with the torrent of unsparing criticism from Internet users. In a bizarre editorial, The Hindu even called for the creation of an “independent regulator empowered by law to deal with complaints about Internet content”—which would only formalise and legitimise existing efforts to censor online content. This is but one example of the media presenting the Internet as a monster that needs to be tamed.
The first step to fighting Internet censorship in India is to demand transparency and accountability—at present, it is difficult to even learn what is being censored, and harder still to learn the reasons given for its censorship. It takes weeks to know why Vimeo has been blocked; it takes a hacker group to tell us which sites are blocked; it takes Google to tell us that politicians want criticism of them removed from YouTube. For this to change, we will have to go beyond the TV debates that ask ad nauseam, “Why is the Internet so full of trolls?”