Kapil Sibal, Union Minister for Communications and Information Technology, has set off a firestorm of protest by demanding that ‘internet intermediaries' — specifically in this round, four social networking giants, Google, Yahoo, Facebook, and Microsoft, which enable hundreds of millions of individual users to publish and share on the worldwide web — remove inflammatory content as well as other text and images that might “offend Indian sensibilities.” As in other battles over free speech, both sides are claiming the moral high ground: Mr. Sibal's supporters, including the Bharatiya Janata Party, don the mantle of defenders of order, decency, and ‘Indian values'; his opponents, led by the bloggers, wear the halo that comes with wanting to protect and expand modern democratic rights. The issue is, in fact, far more complex and intriguing than either side admits. Let us assume, for the sake of argument, that the claim of Mr. Sibal's detractors that the government acted not so much out of concern over inflammatory content, which has been around on the worldwide web for quite a while, as on account of blogged graphic content that targeted Congress president Sonia Gandhi is correct. The imputed motive, however, does not ipso facto undermine his argument.
There can be little question that the internet has opened up new commons for the exchange of ideas and information. But can it be exempt from the application of laws any more than the press and the broadcast media are? Obviously not — in principle. Hate speech, defamation, and incitement to offences can be proceeded against under the law irrespective of whether the medium involves ink or digits transmitted through fibre-optic cables. It is another matter that the law should be liberal, progressive, and up to contemporary requirements, which it is decidedly not in India when it comes to criminal and civil defamation, legislative privilege, contempt of court, official secrets, and incitement to offences. But the objection that Mr. Sibal's proposals are unworkable because it is simply impossible to monitor billions of web pages sounds like a practical argument — but, in a careful analysis, turns out to be opportunist and misleading. Laws are made not because they will eradicate crime, but because they allow perpetrators, when caught, to be punished. And the issue in this case is not monitoring but retaining or removing impugned content that is alleged to offend the law or norms of decency.
In an interview published in The Hindu (December 7), Mr. Sibal made the argument that the nature of the medium, the worldwide web, has blunted the instruments in the law's arsenal: for example, a blogger posting inflammatory communal polemic might be doing so using servers located in a country where it is not a crime. India's dysfunctional political culture has foisted a climate in which religious and caste groups have acquired a de facto veto over ideas. ‘Free trade' in ideas, the right to dissent, dispute, rebel, and cause outrage in robust public debate — a keystone of a real democracy, which has been repeatedly upheld by India's higher judiciary while interpreting Article 19 of the Constitution — has been steadily eroded. But intellectual honesty also demands that free speech champions acknowledge that hate speech can kill, something India's experience has long shown. Liberal democracies, almost without exception, place ‘reasonable restrictions' on certain kinds of speech, for instance by criminalising anti-Semitism or placing new kinds of post-9/11 restrictions on content that is seen to provide aid and succour to terrorism or harm ‘national security'. Some liberal democracies place fewer restrictions on free speech than others. But on matters like content featuring child pornography, intolerance and proscription have become the absolute global standard.
The question then comes down to what restrictions on free speech are reasonable, and who will make this determination. Unfortunately, the government's track record here is not edifying. Earlier this year, it sought to address the question by making it legally mandatory for internet intermediaries to censor content that is not only “paedophiliac” or “libellous” but “harmful”, “objectionable”, or merely “disparaging”. The amended version of the Information Technology Act, which became law in 2009, even proscribes the publication of “any material which contains [a] sexually explicit act or conduct” — phrasing which criminalises, arguably, everything from scientific texts to ancient temple art. The scope for over-reaching subjective interpretation can well be imagined. It takes little to see that this expansive mandate is an invitation to governmental abuse. In fact, the report published in The Hindu on December 8, “India wanted 358 items removed,” reveals that 255 of these requests made to Google fell in the “government criticism category,” with the biggest chunk accounted for by a single request from “a local law enforcement agency to remove 236 communities and profiles” from the Google-owned social networking site, Orkut, which were “critical of” an unnamed “local politician.” This strengthens widespread suspicion that the inflammatory content argument is really a cover for censoring political attacks and uninhibited criticism circulating in the social media. In the face of strong criticism, Mr. Sibal has promised further consultations. These must centre on addressing the excessive powers the government seeks to wield on what can circulate digitally. One idea that could be explored is bringing in an independent regulator empowered by law to deal with complaints about internet content, with the threshold for the admissibility of complaints raised high. India is, as things stand, readying a sledgehammer to swat some flies: the blow, when it falls, could end up undermining one of our most cherished freedoms.