With ‘paid news' and other ills making the media vulnerable to state and corporate control, social networking sites are a countervailing force for ordinary citizens. Hence, the drive to regulate them.

Recently, the Telecom Minister was attacked by a large number of netizens for his move to screen content on social networking sites. Some bloggers called this drive idiotic. The characterisation seemed harmless till a little reflection brought The Idiot of Dostoyevsky to mind, and I felt crediting a Minister with a trusting nature as in that story might be good for our social imagination but not grounded in any evidence.

The shifting sands of his reasons for objecting to certain matter carried on social media are interesting. Apparently, he first found a page maligning Sonia Gandhi and told Facebook officials on September 5, 2011 this was unacceptable. He then wrote a letter and held meetings with Google and Facebook. In an interview on NDTV in November, he said he objected to pornographic images. Then there was a mention in newspapers that at a press conference on December 5 he was worried about things that hurt religious sentiments.

Some of us are often disturbed by the politicisation or corruption of individual personality by journalism. I remember as a ten-year-old boy, my father asked me to read The Statesman first thing in the morning to improve my English and my grandmother took me aside to advise that I start my day with thoughts about Ishwar instead of reading reports about rape and murder. Philosophers have commented that journalists make people doubly ridiculous — first by making them feel they must necessarily have an opinion on every matter and then by renting them their opinion as an object of necessity they can flaunt around. We may not agree with the first, but the second point, about the role of journalists as purveyors of public opinion is of great relevance in the present context because the internet enables the world to break through the filter of journalism and reach individuals directly.

The internet has been described as the network of networks. Through social networking, it helps isolated individuals constitute themselves as a group or a ‘public'. By playing the role of intermediation, it has helped all trades and professions expand their working communities and given us a practical source of two-way communication with the capability for everyone to hear both sides of the story. It has had a great democratising impact the world over.

In the context of the scourge of ‘paid journalism' as a means of state and corporate control of media, social networking sites are a countervailing force. Google's Transparency Report says 70 per cent of what was objected to by government agencies in 2011 related to political criticism. Only an insignificant number of items, just eight out of 352, could be termed hate speech. The Minister is obviously worried about social networking sites because he cannot control them to his advantage. How is he to regain control?

To gauge this, the sequence in his reactions to what he saw, or was caused to see, is important. He first encountered something denigrating Sonia Gandhi and colloquially cried “blasphemy”; next, he objected to extreme pornography and finally he referred to things hurtful to religious sentiments. He can well cry blasphemy even though India does not have a state religion, because blasphemy laws exist in several European countries and the U.N. too has some resolutions against defamation of religions.

Blasphemy was a canon law offence in the U.K. till the 17th century when it was made an offence against common law. When BBC staged “Jerry Springer – the Opera” in 2005 and thousands of Christians objected to scenes set in hell with Jesus and Satan, the High Court said the Theatres Act, 1968 of the U.K. prevented any prosecution for blasphemy in relation to public performances of plays. Besides, the Broadcasting Act, 1990 did not allow for any prosecution in relation to broadcasts. Blasphemy as an offence was abolished in the U.K. by the Criminal Justice and Immigration Act, 2008. However, the same Act introduced new offences described as ‘possession of extreme pornographic images' (Sec. 63) and ‘publication of obscene article' (Sec. 71). Hate crime could be tied to these to make a case for ‘reasonable' restriction of freedom of speech and expression.

Like people in the U.K. till 2008, we in India also happen to be very sensitive to anything irreverent about any religion. Despite this common perception of our national character, both while framing the Indian Constitution as well as when working it, Rajendra Prasad and B.R. Ambedkar staunchly defended the freedom of expression. After the famous Crossroads case, when Nehru tried to broaden the scope of restrictions to freedom of expression and framed the First Amendment, they succeeded in persuading him to allow the word ‘reasonable' qualifying the word restriction in Article 19 (2) to remain unchanged. This was due to their understanding that the Constitution is the vehicle of a nation's progress. The Press (Objectionable Matter) Act, 1951, based on the First Amendment, was itself repealed in 1957.

More recently, in 2004, the Delhi High Court dismissed the complaints against M.F. Hussain of promoting enmity between different groups. Despite this, a case was registered in Mumbai in February 2006 against the painter for “hurting sentiments of people” by painting Hindu goddesses not as deities but visual stimuli, which forced him to live and die in exile, shaming all Indians. Even during the otherwise repressive British Raj, though Sarat Chandra's novel Pather Dabi was banned, he walked around as a free man. The failures of government to provide equal protection of the law under Article 21 of the Constitution to Hussain the painter and, more recently, to Salman Rushdie the writer, are both reprehensible.

Similar law-ways appear to have been deployed in the present case as well, with a private civil suit being filed by one Vinay Rai in a District Court of Rohini in Delhi which passed an ex-parte order asking 22 networking sites to remove certain content because they amount to “defamation and derogation against the sentiments of every community” and might “hurt religious sentiments”. The order did not spell out whether it is pornographic images/obscenity/hate speech that is being objected to or something blasphemous. Apparently, on another petition filed by the founder of a website FatwaOnline.org, a civil judge issued summons to Facebook and Google India, who sought relief from the Delhi High Court.

The decision of the government to sanction prosecution of the companies for offences against the state (as required by Section 196 of the Code of Criminal Procedure) is baffling. No “deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs” (Sec. 295-A of IPC) or “promoting enmity between different groups on grounds of religion, race, place of birth, residence, language and doing acts prejudicial to maintenance of harmony” (Sec. 153 of IPC) on the part of the companies summoned appeared to be in evidence. At the hearing by the Delhi High Court on January 16, 2012, the court apparently appreciated the fact that it is not the companies themselves but third-party miscreants who may be responsible, but sought a way for the companies to screen such objectionable material. The companies incorporated in India pleaded the technical impossibility for them to screen content posted on websites by millions of internet users.

The law on the matter is yet to be settled. To begin with, we in India still have an IT Act geared more to trade and commerce and not comprehensively cast to deal with social issues of the kind that have been highlighted by this case. Any attempt to do so must bear in mind that while maintaining a respectful distance from all religions, the state in India accords a public space to them and does not relegate religious sentiments to the sphere of the individual alone. The Delhi High Court's approach — of appealing to the corporate social responsibility of the companies to creatively craft uniquely Indian secular solutions to the problem rather than harping at their non-existent legal liability — must be appreciated. The bathwater can be thrown out, not the babies Facebook and Google.

(The author is a commentator on social issues. His e-mail is: amitabh.mukhopadhyay@gmail.com)

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