“Freedom of expression is subject to defamation, contempt of court, to different forms of public interest…”

Telecom minister Kapil Sibal is reluctant to play supercop in a cyberspace without borders: how do you bring an offender to justice, if he or she is beyond your legal jurisdiction? As a lawyer and minister, however, he feels the social media need to respect the same norms as the electronic and print media. In an interview with Bhavdeep Kang, Sibal gives us a piece of his mind on the censorship of internet.

prasanna

Prasanna Mohanty | September 25, 2012




Google has refused to take down the controversial “Prophet” video (which has sparked extensive violence in the Middle East) from YouTube in the United States, but continues to block it in India. Do you see that as a positive sign?

Recent developments have sensitised even the social media networks to the fact that there are issues which need to be addressed, that the repercussions of some of the content can have disturbing consequences. The events in Assam were evidence of what the social media is capable of doing. So I think that we are converging in our views and in times to come, there will be a resolution that is acceptable to both sides.

Facebook India has taken the position that government can use the social media positively, run counter-hate campaigns to tackle hate campaigns.

That is right but you must understand that any information that comes from government - in today's environment of suspicion - is taken with a pinch of salt. So governments have never been able to respond to the freewheeling social media.

I think theoretically what they are saying is right; we can use the social media, but government responses are essentially dilatory for the simple reason that whereas you can, as an individual, put something on the net without verification of any fact, the government cannot do so. A government response must be accurate. What it says must be fully supported by facts and data. That takes time and in the social media, time is of the essence. So I think when they say that, they do not fully appreciate the responsibility of government in putting data on the network. The quality of the response expected from the government is far different from what is put out on the social network sites by individuals in the name of freedom of expression.

Why the insistence on demanding the identities of the persons operating the Twitter accounts you wanted blocked?

Governments do not snoop around for information and this government is certainly not involved in any such activity. We don’t want to find out who is doing what. But there are situations such as, for example, when some journalists said that what (inflammatory content) was uploaded on their accounts was something they were not aware of. When we actually investigated that – I don't want to take any names - we figured out that they had themselves uploaded these images and they admitted it when a show cause notice was sent to them.

One of them rang me up and asked why the notice had come and I said 'why are you worried because you've said that you had nothing to do with any of it'. And then they admitted that they had done it. Now, that is worrying. We don't want our own people being the source of spreading disaffection.

Why not release a list of the websites you blocked along with the reasons for blocking them?

How do we know whose websites they are? I mean we know the sites but we don't know if that content was actually uploaded by them or not. That needs investigation. The website had content that was spreading disaffection and resulting in all kinds of rumours. The immediate task was to block the site, but we could not actually determine who was responsible until we investigated.

Now (in the case of the Twitter accounts) these people came on TV and talked of freedom of expression - as journalists - but they did not reveal they are the ones uploading the (objectionable) content. And even now people don't know because we have not gone public on this. We don't want to name anybody. You have a political inclination even as a journalist and that is fine. But this is not fair.

So you think it is okay to demand the identities of those who put content out on the internet?

We act for and on behalf of the home ministry. If there is content of this nature which is not acceptable, we get a missive from them. We are the ones dealing with content.

Theoretically, I think it is a very serious issue at both ends. In future, social networking sites will be used without reference to the sites themselves. People will misuse these sites for many activities. For example, people do and will sell spurious drugs. You have all kinds of information on the net with respect to cures based on drugs which may have an adverse effect on human health. We need to know who is doing that.

You need to know if someone is hatching a conspiracy for a terrorist activity, you need to know if there is a sexual racket going on. You need to know about certain other elements, which will use the net for (narcotic) drugs and anti-social activities. If you do not get their names, how do you break the racket? This is essential evidence for investigation. If you tell me that you will not allow the investigation to move forward because you will not give the names then that has serious consequences for the criminal justice system. How do we deal with that?

At the same time, when we take such extreme steps, we must make sure we are on very firm ground. Somebody's good name should not be besmirched without adequate evidence, which is why we want a mechanism for us to do the right thing and the social networking sites to do the right thing.

Internet freedom has become one of the tests of democracy – how do you negotiate that?

Of course you must associate internet freedom with democracy, because it is a platform for free expression. But there are two elements to it which need to be addressed.

The first is that the net ultimately is a vehicle for commerce. How does the net survive? It survives through commerce, advertising. The most hits will be seen on sites which are by nature negative, because the positive news is seldom read.

So what is the most popular thing in the world on social networks (I am talking about the US and the western world)? Sexual content. And where does the maximum revenue come from? Pornography. The 2006 figure alone is a hundred billion dollars, out of which 13 billion is the United States and 37 billion is China.

So we must recognise the fact that this is a vehicle for freedom of expression but is also a vehicle of commerce. So your fundamental right of freedom of expression must be judged in that context. That is one element that needs to be looked at.

The second element that I talked of is that freedom of expression – and this is true anywhere in the world - under the constitution, comes with certain responsibilities. Can a newspaper in India defame anyone and not be subject to the law? Can a newspaper in India abuse a judge of the supreme court and not be subject to the law?

So the freedom of expression is subject to defamation, to contempt of court, to different forms of public interest like the security of the state. Both the print and electronic media are subject to that. So is the social media a genre which is different from these two? Must it not be subject to that?

We must understand that these two elements are essential and there cannot be a licence to abuse, to contempt of court, to compromise the security of the state. But having said that, there is no mechanism in the world today through which you can calibrate all this.

If we accept that, do we have a regulatory mechanism? Or do we need new laws?

We have an Information Technology Act and it is adequate. I don't think we need legal intervention. The law is only a law. These people (interactive sites) are all outside the jurisdiction of India, so how do you enforce the law?

They are intermediaries. When they say, “I am only an intermediary” and can't check how many billions of hits or forms of content are on the net, so how can we hold them responsible, they are right to that extent. But when we inform the intermediary there's something there which is having an adverse impact on the equanimity of people in India and is a source of disaffection, then he has been given notice of that fact.

Now, he has to decide whether he agrees with us or not and he should have full freedom to disagree - because it is the platform of the intermediary and we can't force something on him. But once he decides he does not agree and continues with the content, I should have a forum to seek redressal against the intermediary. That part, that element is missing.

That is what we need to look at between the intermediary and us. He can say I know nothing about it, so what can I do? But he should not be able to say that I know about it and you may be right that this is causing trouble, but I will do nothing about it because you can't have any redressal against me.

So what we need to do is to come to terms with this issue where all stakeholders must be together and say that if you are proved to be wrong, you should be liable like everyone else.

Can we make it mandatory for them to follow Indian laws?

The Indian Penal Code has to be followed in any case. If someone commits a murder and the evidence is on the net and you do not disclose that to me, then of course you should be prosecuted for suppression of evidence. That is part of Indian law. You can't destroy evidence. They keep it for 180 days then take it off and that amounts to destruction of evidence.

The law is there. How do we enforce it against a person or an entity which is outside our jurisdiction? We have to find a way and that is really the challenge of the future.

So there's no new legislation in the works?

No, not at the moment.  Since 2010 when I took over, we have not taken any step directly or indirectly to interfere with the social media. Not a single step. Nobody can accuse us of that.

Is censorship of the internet technically feasible?

Technically, anything is feasible, if we take a decision to that effect. But I don't think we should take that route. The question of banning any site does not arise.

The internet is a great tool for empowerment. It is a highway of information that should never ever be closed down. Information is a source for not just power, but wisdom. So we should not block a source of wisdom for those who want to get wise! But we must also make sure that toxic information is dealt with.

Intelligence agencies have reportedly been told to monitor the content of the social media?

Any technology can be either used or misused depends on who is on the platform. There is a lot happening. Terrorists may be using it.

How many takedown requests have you made?

My ministry has made only a few, less than ten. But departments and other branches of government, or anyone else, can independently make a request.

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