The Internet has gradually become the bedrock of modern civilization with its limitless possibilities and unencumbered reach. It is now the most valuable tool for the storage and dissemination of information and opinion, which gives it a unique role in the functioning of democracies the world over. Totalitarianism of all kinds and forms stands severely threatened. Since all authority tends to perpetuate itself and strive for greater control, cyber space is thus under closewatch.
It is, therefore, easy to understand why the governments across the world want to control the World Wide Web. It is scary to them that the Internet can make the citizens of the world unite despite territorial limitations. The physical presence at the venue of protest is no longer required, and it does not dilute the magnitude or effect of the protests.
Right to Freedom of Speech and Expression, which includes Freedom of Press is a precious civil right that the governments have always been wary of. When right to speech meets the limitless reach of the Internet, it packs in enough force to topple regimes. Thus, Internet Censorship is an objective that the governments wish to quietly creep towards. A constant vigil must, therefore, be kept to ensure that the State does not get to control, compromise or, in any way, fetter an enormously effective protection against arbitrary exercise of sovereign power.
However, like all influential tools, the Internet too is open to misuse, which gives the State a justification to regulate online content in the larger interest. So long as the interests being taken care of belong to the people individually or collectively, there can be no objection to government regulation, but if State intervention starts silencing uncomfortably critical voices, it starts on the collision course with the cherished civil rights granted and guaranteed by the Constitution.
There are safeguards firmly in place against State excesses in this regard, but State agencies might clandestinely attempt to do what they cannot do in normal course. And such tendencies are not unique to any particular country or government though the intensity and magnitude might vary.
Among the nations that have no qualms about curbing freedom of expression, China emerges at the top. The mighty Asian nation is notorious for not allowing the world to peep inside on any pretext. It has an elaborate mechanism already in place to effect Internet Censorship. The mechanism is colloquially known as the ‘Great Firewall of China’, and officially as ‘The Golden Shield Project’, which was initiated in 1998 and has been operational since 2003.
Blocking the web-pages with ‘objectionable’ content is the regular mode of internet censorship, and it may have certain strong and unassailable justifications.
If Freedom House’s latest report, Freedom on the Net 2011, is anything to go by, India has secured a score of 36 on a scale of 100 with ‘0’ being the least free and ‘100’ the freest and is the second best Asian nation in terms of freedoms among the nine Asian nations rated.
Indian State did not police the cyber space with any vigour before the 2008 Mumbai terror attack, which involved over 10 coordinated shootings and claimed over 166 innocent lives in November 2008. In the wake of the attacks the Indian Parliament amended the Information Technology Act expanding and strengthening the monitoring and censorship capabilities of the government.
The Indian Government does not follow a set policy to censor content on the internet, but following the Mumbai terror attacks, the Indian State is considerably more vigilant with regard to what enters the cyberspace. Therefore, content that is likely to incite violence or promote hatred between groups of people is removed.
Companies involved in providing internet services are directed to take the offending content off or block access to it. The instances of blocking requests from the government have increased in number since 2009 after the ITA in its amended form came into force.
Under the altered law internet companies are bound to appoint designated employees to receive blocking requests from the government, and if they fail to comply with the directions of the government, they might be prosecuted and be punished with imprisonment.
Search engines, Internet Service Providers (ISPs) and cyber cafes are within the purview of the Act. Some of the internet users have also faced legal action for offensive postings. Companies handling the third-party content on the internet are bound by law to hand over user information to the government in case of objectionable postings.
Blogosphere is being very keenly watched and monitored by the state with both the bloggers and the moderators liable for libel suits and prosecution for the blog posts as well as the comments that they allow to appear. There have been cases, though not too many, when bloggers were prosecuted for the postings they made on the internet. In November 2007 with the cooperation of an ISP and the search giant Google, police arrested an IT professional Lakshmana Kailash K, who was prosecuted and imprisoned for 50 days on the charges of posting defamatory remark on the internet about an Indian historical figure. Later, it was found that Kailash was actually innocent and had to face imprisonment on account of a technical error in identifying the IP address.
Two men found themselves behind bars in May 2008 for a derogatory take on Sonia Gandhi on Orkut, a social networking site. The case is yet to reach verdict. And once again it was Google that cooperated with the authorities in identifying the offending users. A magazine editor in Kerala was apprehended on charges of defamation levelled by an Indian businessman in Abu Dhabi.
Right to Freedom of Speech and Expression is subject to reasonable restrictions that might be imposed under Article 19 (2) “in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”
The law remains the same, as it should, and regardless of the means of communication the spirit of the law remains relevant. Therefore, bloggers, like all other writers, must write responsibly. That settled, criticisms alone cannot ordinarily call for prosecution unless they tend to assert false and defamatory information as facts, in which case a blogger is as much liable for prosecution as any normal writer or journalist.
While irresponsible communication that tends to unduly sully the image of someone must be taken care of, at the same time, political criticism must be allowed its due space because free and unhindered exchange of information and views are the lifeblood of democracy. And if people are not allowed the liberty to speak their mind fearlessly, it would be the end of democracy.
Blocking of the website it not only takes away the right of the writer to express himself or herself but also destroys the essentially democratic right of the people to expose different points of views so as to be able to make an informed decision. This was the basic principle on which the Supreme Court of India held that right to information was an implied fundamental right because uninformed decision is no decision. So, if right to information is denied, Indian democracy might degenerate into a soulless facade.
However, when it comes to watching the cyber space, the authorities are sometimes not content with policing the Internet, and attempt to know more about the surfing habits of the people to have an insight into their interests.
All ISPs are required by law to allow the authorities access to user data. This is where the question of abuse of authority and breach of individual privacy arises. Right to privacy is an implied fundamental right under Article 21 and cannot be interfered with unless the justification for the interference is constitutionally valid. However, since it cannot be argued that in no case can right to privacy come in conflict with national security or there can be no law that can justifiably impose reasonable restrictions on the right to privacy, the authority to have access to user data by itself is not constitutionally challengeable.
Therefore, the government stipulation that the ISPs “shall block Internet sites and/or individual subscribers, as identified and directed by the Telecom Authority from time to time” in the interests of
“national security” cannot be constitutionally challenged though the exercise of the authority in individual cases enjoy no such unassailability.
However, the alarming fact is that one would not easily get to know if one’s right to privacy is in breach unless the authorities come knocking, and in case of the innocent that might never happen. So, the privacy of the innocent citizens might be forever breached in the name of surveillance without their ever coming to know of it. Unless the surreptitiously and illegally obtained information is not used against someone openly, the fact that any government agency ever had access to a particular user’s surfing information would remain under wraps until a thorough legal investigation is not carried out.
The authority to tap phones in the interest of national security and to contain criminal activities was misused for political ends. With that background in place, it is naïve to suppose that the authority to obtain user information would not be similarly misused. With the internet penetration increasing with each passing day, the perils of misuse are also mounting. But as of now no such instance has come to light, and this could also be because nobody has had a strong enough reason to look hard enough.
Justice Rajesh Tandon
Chairperson Cyber Appellate Tribunal