A law teacher has joined the league of self-appointed censors after watching the controversial AIB Knockout roast video. She has petitioned the Bombay High Court asking that YouTube videos be monitored for offensive content before they are uploaded. Her demand for a censored public sphere echoes Kamlesh Vaswani’s plea to the Supreme Court that intermediaries should be made to filter out all online pornography. These well-meaning citizens may wrench the online intermediary liability debate back by a decade.
The online intermediary liability debate in India began in 2004 when a sexually explicit video of two minors was sold on Baazee.com. This led to the arrest of Avnish Bajaj, CEO of the company that owned the website, triggering a conversation about the implications of holding online platforms — intermediaries that enable circulation of other people’s information — responsible for user-generated content that they host.
Pre-screening and scanning After the Baazee.com case, the Information Technology Act was amended to add what is known as a ‘safe harbor’ clause for platforms like YouTube and Baazee.com. The ‘safe harbor’ in the amended IT Act ensures that law criminalising content like obscenity cannot be used to punish a platform like YouTube if it is unaware that it is hosting illegal content. Without this protection, YouTube would have to monitor all its videos before hosting them online. This is because criminal law in India penalises circulation of obscene content, even when the person circulating it does so unknowingly.
Dr. Ghuge’s demand for pre-screening all YouTube videos asks to undo the ‘safe harbor’ clause that was painstakingly crafted by an expert committee, and approved by a parliamentary standing committee, before Parliament chose to enact it. The reason that the ‘safe harbor’ clause is necessary is that social networks, online auction platforms and video hosting services handle a very large volume of content. Requiring them to monitor all of it would reduce the vibrant, generative Internet to less than a shadow of itself. If YouTube had to screen the hundred hours of video content uploaded per minute by users on its platform, it would become as limited as television. The volume of online content makes monitoring impossible.
“ Requiring networks, platforms and hosting services to monitor content would reduce the Internet to less than a shadow of itsel ”
Some argue that keyword filtering may be used as a way to automate the screening of online content. This means that content would automatically be scanned for particular terms like ‘pornography’ and filtered out accordingly.
However, automated scanning means that legitimate content is often misidentified as illegal and this leads to over filtering. The U.K. government learned this in a very public and embarrassing way when what is known as ‘David Cameron’s porn filter’ resulted in blocking legitimate content, including information on rape crises, sex education and breastfeeding.
Well-meaning paternalists The AIB Knockout video begins with a warning that it will be offensive. People with a predisposition towards being offended, like the law teacher Dr. Sharmila Ghuge, could easily have avoided it. But Dr. Ghuge said her primary concern is that other people are watching this video.
Both Dr. Ghuge and Mr. Vaswani fret about the effects of speech on the youth of this country. Dr. Ghuge finds the language in the AIB video “unbearable for any cultured and reputed person of civilised background.” She worries about the effects of the roast on women and “gays” (term used in her petition), and wants the video banned so that the morality of society is not affected adversely. Mr. Vaswani is concerned about the effects of pornography on youth and advocates the immediate blocking of all obscene content based on a connection that he draws between obscene content and sexual violence.
Both need to ask themselves whether they can reasonably expect everyone in this diverse country to have consistent views about what is offensive or obscene. The universal human right to freedom of expression is not about the protection only of speech that is palatable to everyone.
In fairness to Mr. Vaswani and Dr. Ghuge, it is not always clear whether certain kinds of controversial speech have constitutional protection or not. It can be difficult to decide whether a particular portrayal of religion in a film is a deliberate and malicious act intended to outrage religious feelings, or whether a book meets the fairly ambiguous legal standard for obscenity under the IPC.
Forms of expression ranging from the film “The Da Vinci Code” to D.H. Lawrence’s Lady Chatterley’s Lover and Shekhar Kapur’s film “Bandit Queen” have been difficult to classify — it has taken judicial intervention to determine whether they may be regulated or whether they be shielded by the freedom of expression right in Article 19 of the Constitution of India.
It is for the judiciary to make the final determination about whether speech is constitutionally protected or not. In Ranjit Udeshi v. State of Maharashtra , which dealt with questions of constitutional protection of allegedly obscene speech, the Supreme Court suggested that the court must “apply itself to consider each work at a time.” The necessity of judicial review was stated more baldly in Chandrakant Kalyandas Kakodar v. State of Maharasthra in which the Supreme Court said, “whether the book or article or story considered as a whole panders to the prurient and is obscene must be judged by the courts and ultimately by this Court.”
Mr. Vaswani and Dr. Ghuge’s demands would involve either the government or private parties making these critical decisions about speech. This would undermine the right to freedom of expression.
An opaque system The Indian government already has a questionable track record in the context of blocking online content. The system followed to block content under the IT Act is opaque — it neither notifies speakers and readers that content has been blocked, nor permits intermediaries to disclose what content the government has asked them to block. If speakers and readers have no way of finding out that the government has ordered the blocking of particular speech, they will not be able to challenge the government’s decision to censor before the judiciary. This means that the judiciary will not be able to check whether the government is using its power to block online content consistently with the Constitution. This lack of accountability leaves the system open to government misuse to block politically threatening speech.
The controversy surrounding the AIB roast video makes it clear that Indian law is still very prone to abuse by those who wish to exercise the heckler’s veto. Entertainers who gave viewers every opportunity to avoid potentially offensive speech are being bullied using the law. Everything ranging from the infamous 66A of the IT Act to Section 294 of the IPC (which criminalises obscene acts and songs) is being thrown at them. Worse still is that the law is being used to intimidate those who helped them, so that outrageous speakers will find it difficult to find venues and audiences. Dr. Ghuge has taken the bullying one step further and has asked for a highly regressive alteration of intermediary liability policy. Dr. Ghuge and Mr. Vaswani may destroy the free flow of information that is the soul of our democracy through their well-intentioned efforts to decide what other citizens should not see. Instead of looking for ways to leverage the freedom and endless possibilities of communication offered by the Internet, these two petitioners threaten to unravel the ‘safe harbor’ protection that keeps the Internet free and accessible.
Whether the AIB video is offensive or not has become irrelevant. The real question we should be asking is whether our sensibilities are so delicate that we would sacrifice our rich public discourse and the new media that carry our chatter, because we cannot handle being offended now and then.
(Chinmayi Arun is research director, Centre for Communications Governance, National Law University, New Delhi.)