The Quixotic Fight to Clean up the Web

GOOGLE AND Facebook’s ongoing case in the Delhi High Court over offensive online content is curious in three ways. First, the complaint does not mention the IT Act, 2000. Prior to the 2008 amendment, intermediaries (in this case, Google, Facebook, etc) had no immunity. But after the amendment, intermediaries have significant immunity and are not considered liable unless takedown notices are ignored.

Second, it is curious that the complaint does not mention specific individuals or groups directly responsible for authoring the allegedly offensive material. Only intermediaries have been explicitly named. If specific content items have been submitted in court then it is curious that specific accounts and users have not been charged with the same offences.

Three, Delhi-based journalist Vinay Rai claims that takedown notices and requests for user information were ignored by the intermediaries. As yet, unpublished research at the Centre for Internet and Society has reached the exact opposite conclusion. We sent fraudulent takedown notices to seven of the largest intermediaries in India as part of a policy sting operation. Six of them over-complied and demonstrated no interest in protecting freedom of expression. Our takedown notices were complied with even though they were largely nonsensical. It is therefore curious that Rai’s takedown notices were ignored.

Under Section 79 of the IT Act, the intermediary must not “initiate the transmission”, “select the receiver of the transmission” and “select or modify the information contained in the transmission”. In other words, they must not possess “actual knowledge” of the content. This would be absolutely true if intermediaries acted as “dumb pipes” or “mere conduits”. But today, they have reactive “human filters” ensuring conformance to community guidelines that often go beyond constitutional limits on freedom of expression.

For example, Facebook deletes breastfeeding photographs if a certain proportion of the breast is visible, despite numerous protests. Intermediaries also use proactive “machine filters” to purge their networks of pornography and copyright infringing content. In order to retain immunity under the IT Act, intermediaries would have to demonstrate that they have no “actual knowledge”. This would also imply that they cannot proactively filter or pre-screen content without becoming liable for illegal content.

More sophisticated “machine filters” will continue to be built for social media platforms as computing speeds increase and costs decrease dramatically. But there will be significant collateral damage — the vibrancy of online Indian communities will be diminished as legitimate content will be removed and this in turn will retard Internet adoption rates. Free media, democratic governance, research and development, culture and the arts will all be fundamentally undermined. So whether pre-censorship is technically feasible is an irrelevant question. The real question is what limits on freedom of expression are reasonable in the Internet age.

Censorship is like prohibition, illegal content will persist, the mafia will profit and ordinary citizens will be implicated in criminal networks. Use of anonymising proxies, circumvention tools and encryption technologies will proliferate, frustrating network optimisation efforts and law enforcement activities.

This is yet another opportunity for reflecting on the shortcomings of the ITAct. A lot of the confusion and anxiety today emerges from vague language, unconstitutional limits on freedom of expression, multi-tiered blanket surveillance provisions, blunt security policy measures contained in the statute and its associated rules. The next Parliament session is the last opportunity for MPs to ask for the rules for intermediaries, cyber cafes and reasonable security practices to be revisited. The MP who musters the courage to speak will be dubbed a superhero.

As told to Shonali Ghosal. Sunil Abraham is Executive director, centre for internet and society and can be contacted at [email protected]. The original article was published in Tehelka.

Illustration by Sudeep Chaudhuri