How ‘private-censorship’ is making online content disappear, quietly

The Union Minister for Communication and Information Technology, days after an avalanche of bad press fell upon him after his reported warning to Google and Facebook to 'pre-screen content', is due to meet Internet companies today, in an attempt to put the recent past behind.

A display of Facebook's homepage on a computer monitor at an Internet cafe in Delhi, India. Ruth Fremson/The New York Times
Known as the Information Technology (Intermediaries Guidelines) Rules 2011, they are quite the magic wand when it comes to making online information disappear.

In what should deeply worry users of the Internet, an under-cover investigation by an Internet research company reveals how privately administered censorship – prescribed under the IT rules to intermediaries to limit their liability – is having a "chilling effect on free speech." The yet-t0-be published investigative report by Bangalore-based Centre for Internet and Society (CIS) is available with Firstpost.

As part of the under-cover investigation a CIS researcher sent ‘takedown notices’ (requests to remove content online) to seven major websites quoting liberally from the IT rules.

The seven websites (the draft report does not name them) comprised two search engines, an online shopping portal, a website which disseminates news, two websites that disseminate news and allows user-generated comments to be published below articles, a website which offers multiple services such as news, search and shopping.

Note that each of the seven websites is an intermediary – merely receiving, storing or transmitting information. Disturbingly, of the seven websites to which takedown notices were sent, "six over-complied despite there being apparent flaws in the notices."

Here is how a website that disseminates news (identified as Intermediary B in the draft report) responded to the request to remove content on its site.

The researcher, who is also a lawyer, issued a takedown notice for the removal and disablement of one user-generated comment published below a news article on the Telangana movement.

The comment in question read as follows: "Telangana cause is justified, no one is denying that. But have you come to the point, you want to burn India? This is what I am opposing, burning demolition, killing, etc. is the hidden agenda of vested interests. And we Hyderabadis (Hindus and Muslims) will not allow anyone to burn our homeland. I have seen this movement since 1968. These leaders who are leading the agitation are selfish, short sighted and they hav no vision and mission. can any of Telangana leaders answer to the following?" The author of the comment goes on to raise eight questions on water-sharing, tourism, education, displacement and reservation.

While the comment condemns violence in the Telangana movement, blames politicians for being selfish and raises questions, the takedown notice brought to the knowledge of the intermediary that the comment was "racially and ethnically objectionable", "hateful" , "disparaging" "defamatory" – as provided in Rule 3(2)(b) of the IT Rules – and "violates any law for the time being in force" as provided in 3(2)(e) of the IT Rules read with Sections 124A, 153A, 153B, 292A, 295A and 499 of the Indian Penal Code 1860."

The terms such as 'objectionable', 'hateful', 'disparaging' and 'defamatory' are not defined anywhere in the Rules.

The takedown notice did not state the cause of action or establish the author of the takedown notice as an affected person. "After approximately 72 hours, it was noticed that instead of removing just the one comment as identified in the takedown notice, Intermediary-B had removed all 15 comments published below the newspaper article," states draft report.

The search engines (identified as Intermediary A and Intermediary E) didn’t disappoint either. They were sent takedown notices to remove 'three communication links' (base URLs of three websites) provided in its search engine results on searching for 'online gambling'.

According to the draft report, the three communication links and, additionally, all other URLs of the three websites, including sub-domains were removed – after 120 hours on Intermediary A and after seven days on Intermediary E. Even though Intermediary A in response to the takedown notice claimed being exempt under IT rules, they "still removed the three communication links mentioned in the takedown notice (and additionally all other URL’s of the 3 websites, including sub-domains), presumably to avoid legal risk and to err on the side of caution," reveals the report.

The only defender of Internet democracy, who would have guessed, was the online shopping portal. And for what? Baby diapers. The takedown notice to the portal without any supporting document or medical report claimed that a certain brand of diapers caused rashes. "Thankfully, the takedown notice was rejected…. Unlike all other intermediaries, Intermediary-F recognised that the takedown notice of the author was completely frivolous."

Unfortunately, in the other six cases, to paraphrase the famous statement, when they were asked to bend, they chose to crawl.

Should they not have acted more responsibly by rejecting flawed takedown notices and defended the freedom of expression of their users?

Speaking to Firstpost, Pranesh Prakash, Programme Manager, CIS, said, "They should have. Google’s self-reported compliance rate of 51 per cent shows that they are probably over-stepping the law in order to appease the Indian government’s requests. Given that 71 per cent of the requests were for ‘government criticism’, their removal of 51 per cent of the material indicates that they removed at least some of the requests they received for ‘government criticism’. While it is impossible to say more without having greater details about the requests, I believe it is fair to say that requests for removal of ‘government criticism’ should generally not be acted upon."

Going by the pliancy shown by the six websites in removing online content, all Sibal had to do was to shoot off takedown notices. And quietly and, most likely, the images that caused him so much heartache would have disappeared. Right?

"Most definitely. And this points to a problem with the current regulations. While it is difficult for government officials and police, etc., to remove content in books, it is very easy for them to remove content from the web. Should web content be this much easier for the government to censor than content in books, movies, etc.?" asks Pranesh.

This article by Pallavi Polanki was published in Firstpost.com on December 15, 2011. Pranesh Prakash was quoted in it. Read the original here