Bar & Bench spoke to Advani & Co. Partner Apar Gupta on the issues surrounding the recent criminal complaint filed against 21 social networking sites including Facebook and Google for posting objectionable contents on their websites.

Bar & Bench: There are two cases that have been filed against the social networking sites. One is in Rohini civil court and the other is a criminal complaint filed in Patiala House. Both the petitions have been filed right after the Government asked the social networking sites to formulate a mechanism to pre-screen the data. Do you think these litigations are motivated? What are the issues that arise?

Apar Gupta: The timing of these litigations is quite unusual. Social networking websites have been around for sometime and are popular with internet users in India. These social networking websites have even been arrayed as parties in litigations individually on complaints of specific content hosted by them in the past. However, what we see before us today, is a collective action in which the most popular social networking websites have been bunched together on the basis of wide ranging content which as is alleged hurts religious sensibilities.

Coming so close to the furor caused by the purported proposals coming out of the Ministry for Communication and Information Technology these litigations seem naturally suspect. Beyond a mere conspiracy theory, Governments have in the past utilized courts to legitimize their actions.

Secondly, even if these cases have no causal connection with the Government proposals and the fierce criticism directed towards them, at the very least, the Government is culpable of encouraging the most easily offended. There is a  December 22 news story which states that various “religious leaders” met the Union Minister for Communication and Information Technology and showed him the ex-parte court order passed by the Rohini Court.

Thirdly, why are there only two cases, one civil and the other criminal. Is it a failsafe mechanism that if the ex-parte injunction in the civil case is set aside, the trial in criminal complaint case will continue?

Fourth, you may also notice that these cases have been directly filed against the social networking websites rather than the authors of the offending content. I wonder how can an intermediary which is at most secondarily liable be complained to be the primary malfeasor. This shows a clear intention to target the social networking companies alone.

Coming to the issues which arise in both cases, these cases have been filed on the basis of content which has been hand picked by the Plaintiff and the Complainant according to whom the content hurts religious sensibilities as well as have the tendency to promote enmity between religious groups. This content is user generated content which has been hosted on these social networking websites due to which they have been arrayed as Defendants. From the news reports which quotes the ex-parte order and the summons which have been released by NDTV, I find no mention of the Plaintiff and the Complainant utilizing the “takedown mechanism” under the Information Technology Act, 2000 and the Intermediaries Rules, 2011.

A host of legal issues arise in these proceedings. They commence with thinner issues of overstepping the procedural dictates of the law under the Code of Civil Procedure, 1908 and the Code of Criminal Procedure, 1973 and go on to broader ones such as the right to freedom of speech and expression under 19(1)(A). Going forward I think issues on corporate law such as, corporate criminal responsibility as well as parent-subsidiary relationships will be analyzed by the courts. 

Bar & Bench: What will be the impact of these proceedings on the social networking sites?

Apar Gupta: Though I hope that social networking websites will be resistant to these proceedings till there is an authoritative pronouncement by the Hon'ble Supreme Court, there is a grave danger that they will buckle down. The rigors of trial are not as easy as they are made out to be. A criminal case requires the accused to be present in court on each date of hearing. In non-bailable offenses, the passport of the accused is deposited in court and an application must be made for foreign travel, there is a social stigma which also attaches to the accused. Moreover, the time taken to adjudicate acts as the sword of damocles. The Avnish Bajaj (Bazee.Com MMS Case) which first gained prominence in 2004 and concerned similar issues which was heard only last week by the Hon'ble Supreme Court for final arguments. 

There is also a danger that their Indian subsidiaries may exit India and the parent entities may stop offering services here. Global companies exiting India due to a legal measure will be a hark back to our pre-liberalization days when a stringent FEMA ownership rule made Coke shut down its India operations.

However, the most worrying effect on these proceedings will be on the vibrant startup ecosystem in which, given our software prowess, many are tech startups. Many of them rely on models of user generated content. Such proceedings will not only discourage entrepreneurs but may also make venture capitalists and private equity firms shy away from investing in such businesses. A 2011 empirical study done by Booze and Co., on proposed US Copyright Regulation found that many VCs and PE firms would be hesitant to invest in Internet companies which rely on user generated data if the law is passed, since the potential for litigation would increase under it.

In terms of impact on the average net user, what is happening right now is very dangerous. I feel this can in fact, represent a turning point in the online discourse. The statistics, which have been released last year show that mobile devices have been a key driver of Internet use in India and this is just going to explode. In a country, which is as diverse as India and where people hold varying opinions on pre-censorship and freedom of speech, this variance will just lead to very sanitized closed garden approach which will not allow debate and intelligent comment. We run the risk of making a regulation, which will turn Facebook into a giant greeting card database only to wish people on their birthdays and anniversaries.

Bar & Bench: Do you think India will go the China way and censor the websites? Can the Government actually censor these websites without violating the Constitutional Right to Freedom of Speech? Your views.

Apar Gupta: I hope not. We have an impressive body of precedent on censorship where the courts have historically, strongly upheld free speech arguments. However, the present proceedings in the Delhi High Court is for a quashing of the summoning order. This is an extraordinary prayer by the social media companies which is sometimes not granted by the courts as they are of the view that the facts in a case can only be demonstrated through trial in which evidence is led. There is some related precedent. In 2009, Ajith D  started a Orkut community critical of the Shiv Sena, in which some anonymous posts were made alleging that Mr. Bal Thackrey was communally divisive. Due to this content a criminal complaint was lodged against him, though he obtained bail from the Kerala High Court, he approached the Hon'ble Supreme Court which in its order refused to quash the FIR and asked him to face trial.

Bar & Bench: The Government is asking the websites to pre-screen the data before the same is uploaded on the website? Do you think it is possible to prescreen the data? What is the practical solution to this demand of the Government from the websites?

Apar Gupta: No, it is not a practical or legally tenable measure. Mr. Rajeev Dhawan who is an extremely eminent senior lawyer, having been involved as a counsel in many litigations on the right to speech and expression, has only yesterday in a lucid article explained that pre-censorship is not the norm in India. It is only legally permissible in cases of the public exhibition of movies. I would also like to add that pre-censorship would turn the law with respect to intermediaries on its head. It cannot pass legal muster till they amend Sec. 79 of the IT Act which is in line with global approaches in terms of social networking websites as passive intermediaries who are only secondarily liable if post-notification they fail to take down illegal content. I have analysed the legaility of the pre-screening proposal at length at my blog for those who may be interested in reading on the black letter of the law.

Bar & Bench: Rules framed earlier this year under India's Information Technology Act,2000 require intermediaries like Internet service providers to remove content that is found objectionable within a period of 36 hours of being notified of the content. The complainants did not ask the intermediaries to remove the objectionable data or report the same to the intermediaries before filing a lawsuit against Facebook. Google etc. Your thoughts.

Apar Gupta: That is the question which everyone is asking. That is a very big factor due to which people are saying probably these litigations are motivated and they just want to harass these people in the court.  The summons also do not contain any directions to intermediaries to remove the objectionable content and none of the media reports state as to whether these complainants had approached the service providers to take down the objectionable content and the service providers had failed to do so. That is the mechanism under Section 79. We have to first tell the intermediaries. They do not have knowledge by themselves. If they fail to take the content down, it is only then that they run the risk of liability. Even here, only secondary liability is attached to them.

Bar & Bench: What are the liabilities and responsibilities of the intermediaries under the India IT Act? How does the IT Act protect the intermediaries? Do you think the intermediary rules 2011 are the cause of these litigations and the same need to be amended?

Apar Gupta: The Intermediaries Rules, 2011 are incredibly problematic for a variety of reasons. Firstly, the categories under which the content may be removed are overly broad. Just as an illustration, content which is “harming minors in any way” is prohibited under the Rules. Now it is important to note, that existing civil and criminal law does not recognise a crime or a wrong such as “harming minors in any way”. This is in contrast to, lets say for instance, the substantive provisions of law with regard to “defamation” (for which Sec. 499 of the Indian Penal Code prescribes an offence and imprisonment, and the common law which has been developed through cases provides for civil remedies such as damages and mandatory injunctions). Hence, there are no legal standards which exist for “harming minors” and the Rules seem to be creating a “content code” for the internet.

Secondly, in the absence of any definable legal standards, how is content to be gauged as “harming minors” or not. This becomes especially relevant since the Rules contemplate a form of private enforcement of censorship. In India, we allow censorship, but only in a clearly defined and narrow set of instances.

This is usually done by a government body or a court order after balancing the interests of free speech and individual or societal harm. Hence, when one looks at the provisions for prohibiting a publication (aka banning a book) under the Criminal Procedure Code it clearly lays down safeguards. These safeguards clearly recognise the extraordinary nature of exercising censorship powers. Even, in cases where persons approach courts complaining of illegality in content, courts finely balance these competing interests as well.

However, under the Rules, not only the victim but any person who is aggrieved, directly approaches the grievance officer of an intermediary. When an intermediary receives such a notification, and if it does not remove it in 36 hours it risks becoming a party to the illegality. Here it is stressed that intermediaries are corporate entities and though may have a code of practice to promote free speech, they run a business and will try to avoid loosing their protection or being dragged to court. Hence, being risk averse they will try to remove the information, even if it may not in their opinion be, “harming minors in any way”.

Finally, in my view if such a system was felt to be necessary, the correct way to go about this would have been not to have an illustrative list of prohibited content/activities and simply maintain, “anything prohibited by law”. Secondly the notification system would need a person complaining of the illegality to at the least, “identify the illegality with reference to a provision of law”. Thirdly, a fully fleshed out notification and take down system should have been incorporated as existing in the US under the Digital Millennium Copyright Act. Such a system would have given a procedure to the author to defend the legality of the content/activity. It would also impose costs on the removal of content and promote free speech rather than censorship by private intermediaries.

(the response to this answer is an excerpt from a previous blog post, I think I cannot explain it any better or differently)