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Arindam Mukherjee's article was published in the Outlook on February 22, 2013. Sunil Abraham is quoted.

Five Questions

• On what grounds did the DoT ask for a ban on the 55 Facebook URLs pertaining to Afzal Guru?
• Why did the Gwalior court rush into blocking of 73 URLs related to IIPM even though the content was very old and clearly some  of it was even prima facie non-defamatory?
• Why is the Gwalior court order not being made public?
• Why doesn’t DoT keep the whole process transparent by putting up all its block orders on its website, giving reasons in each case?
• How many URLs in all has the DoT asked for a ban on so far?

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It’s the perfect recipe for a potboiler—a sudden, mysterious and arbitrary blocking of web pages, sparked off by an irate ‘educationist’; several upset publications (Outlook included); a government department with a blocked web page; a ministry trying to figure out how to react to a court order that is at the root of all the action, but which no one has been able to see.

As the cliche goes, truth is often stranger than fiction—as the affected parties discovered on February 15. That’s when it became known that the government had sought to block 78 web pages, reportedly following an order from a court in Gwalior. Around 73 of these articles sought to be blocked are on the controversial Indian Institute of Planning and Management (IIPM), promoted by self-styled management guru Arindam Chaudhuri.

What has taken everyone by surprise is how the blocks were executed­—in a clandestine manner, without informing the affected parties, without serving them a notice or a copy of the order, or giving them a chance to react or defend themselves. The enormity of the ban is evident from the list of websites targeted, which include The Economic Times, The Indian Express, The Wall Street Journal, FirstPost, Careers360, Rediff.com and Caravan. When it came to Outlook, there was a clear case of overreach, as not just the web pages, but the entire blogs area was blocked for more than eight hours (see Jump Cut).

What is even more surprising is the smokescreen that is being maintained over the Gwalior court order that has caused this consternation on the Internet. At the time of going to print, no one—the affected websites, auth­ors, lawyers or activists—had access to the order or had seen it, and the government was evading media queries on details of the order and the case. Despite repeated requests, the head of the Computer Emergency Response Team (CERT), Gulshan Rai, did not speak to Outlook.

So, in the absence of the order, no one even knows who the complainant is. Sig­nificantly, IIPM’s Chaudhuri has said that one of his ‘channel partners’ app­roached the court, though he clearly is the chief beneficiary of the episode. What this entire episode serves up is a blatant use of the law to muzzle press criticism while the government and official machinery have been willy-nilly forced to become mute players.

This surreal, Kafkaesque scenario continues apace at Outlook’s website, where on protesting the block on its blogs, the ISP said, “As only some of the URLs are mentioned in the DoT letter, we have reactivated the website and requested you to delete the mentioned contents,” adding that they had “att­ached the DoT instructions alongwith”. What they had attached was not one but two DoT orders, both dated February 14. One was, of course, the order about the 78 URLs. The other order came as news: an order on 55 Facebook URLs on Afzal Guru that the DoT wanted blocked.

As expected, internet activists and advocates of freedom of speech are livid. Shivam Vij, founder of kafila.org, one of the blogs that was blocked in the IIPM matter, says, “We were never given a chance to defend or explain. If only the DoT had put up the notice on their website, there would have been a healthier debate on regulation or censorship. But this was done in an opaque and arbitrary manner. If a book is banned, everyone gets to know. Why was there so much secrecy here?”

The arbitrariness of the twin government action also stems from the new IT Act which authorises the gov­ernment or a competent authority to block or take down content considered “harmful”. And, according to the law, there is no obligation on the auth­orities’ part to inform the defendants. Cyber law expert Apar Gupta says, “Under the blocking rules, there is nothing that says that a copy of the court order has to be given to the aff­ected parties. The rules also do not talk about the authors being given a chance to explain. It permits ad int­erim injunction to block content.”

Says Nikhil Pahwa, internet activist and editor of Medianama, which first reported about the IIPM blocks, “It is not clear why the DoT has taken this cloak-and-dagger approach. These are legitimate issues being raised by people regarding IIPM and its students. This is an infringement on the freedom of speech and expression. The DoT should have executed the blocks in a transparent manner by sending the affected parties a copy of the court order and making it public.”

That’s important, because legal exp­erts feel that full facts may not have been considered in the IIPM case. “For this kind of a blocking order, the content should have come to the notice of the plaintiff recently. In this case, most of the content was much older. But sometimes plaintiffs also do not provide full details in a case,” says Gupta. Lawyers also feel that the Gwalior court may not be equipped to deal with litigation on new technologies.

There are other issues. In the IIPM case, the issue is primarily of defamation. But it is not clear whether defamation was established in all the articles that were sought to be taken down, especially a University Grants Commission (UGC) notice. Thus, the evidence that was presented to the court is important. Once again, till the court order becomes public, no one will know who the complainant was or what evidence was presented. The temporary ban on UGC’s web page is particularly surprising—and this has been noted by Shashi Tharoor—considering it is an independent regulator. “The regulatory body’s job is to regulate and nobody considers its notice as defamatory,” says Parminder Jeet Singh of IT for Change, an organisation dealing with internet issues.

The real purpose of such exercises, say experts, is to create a scare and embroil people in the legal process so that the process itself becomes a punishment and acts as a deterrent to others to engage in such writing. And that is why such cases are filed in remote and unusual destinations like Gwalior, Silchar, Dehradun and Guwahati. “There is a concept of forum shopping and forum shifting where cases are filed at remote destinations and by asking for huge damages, an attempt is made to scare people away from free speech. There are also many bullies who use defamation to create a scare effect. IIPM seems to have pioneered forum shopping in India,” says Sunil Abraham, executive director of the Bangalore-based Centre for Internet and Society (CIS).

The problem, everyone agrees, stems from the faulty nature of the Information Technology Act, which is open to interpretation and misuse. Says Singh, “The law tries to cover everything under a single head. It does not look specifically at the nuances of new media and give an appropriate response. So it is misused.” It is time that DoT became transparent and stopped its arbitrary, covert war against freedom of expression.