Tangled Web

Author - Baijayant 'Jay' Panda

Posted on - 29 August 2012

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This article was published on ‘The Indian Express’ on 29th August 2012





After all the commotion about social media censorship last week,it is worth stepping back and getting some perspective on how India compares with other nations. The reality is that we rank about average on internet freedom. The international NGO,Freedom House,which “monitors freedom,and advocates for democracy and human rights around the world”,ranks India right in the middle,14th among the 37 countries it surveyed.

It should be no surprise that at least on this one score we are far ahead of China,which ranks 34th. It validates our rationalisation that even though our economy has underperformed China’s for three decades,we are a freer nation. It should also be no surprise that developed democracies like the US,Germany,Australia and the UK rank higher than us. But it may come as a shock to some in the world’s largest democracy that we fare worse than Mexico,Kenya and Nigeria,which,like us,are classified only “partly free”.

Freedom online is an integral part of the freedoms we enjoy as a democracy,particularly freedom of speech. The modern concept of free speech evolved in Europe after the church dominated in the Middle Ages,during which blasphemy attracted capital punishment,just as it still does in theocratic countries like Saudi Arabia and Pakistan. During the Renaissance (14th century),the Reformations (16th and 17th centuries) and the Age of Enlightenment (17th and 18th centuries),scientists and philosophers loosened the grip of religion with their stunning new discoveries and persuasive arguments in favour of reason and rationality. Thereafter,blasphemy,earlier the most heinous of crimes,was considered merely distasteful.

That philosophy has been taken to its natural conclusion in the US,where freedom of speech is a fundamental tenet of the constitution,with very few exceptions. Even highly provocative speech and actions are protected. Which is why every time a rightwing pastor threatens to burn a Quran,or a leftwing activist burns the national flag,the authorities have no power to physically prevent it. The most that even the president can do is make public appeals against such inflammatory conduct.

The most contentious debates about online censorship in the US have been about terrorism and pornography. But the only content that is actually censored is child pornography,which is strictly enforced. All attempts to censor other kinds of pornography have been blocked by the courts on the grounds that terms like “indecent” and “patently offensive” are vague and need to be more precisely defined.

Terror-related sites are not censored in the US,though they are often monitored as an early warning system of impending attacks. According to internet law expert Ian Ballon,“exceptions (to protection under freedom of speech) are fairly narrow. Child pornography is one and libelous or defamatory content another. There is no terrorism exception.” While inciting violence is restrained,“there is a concept of immediacy,and most terrorism sites would not necessarily meet that requirement”.

In contrast,India’s Constitution,while also guaranteeing freedom of speech,allows a larger array of “reasonable restrictions”. Apart from the number of such restrictions,the biggest distinction is that instead of being narrowly defined,these are classified under broad headings that could be interpreted widely. Thus,a threat to “public order” is restrained from free speech,but without any precondition that there must be a clear and present danger. Similarly,affronts to “decency and morality” are not protected,but neither are they defined,giving the government a wide scope for censorship.

There are also restrictions on speech that might affect “friendly relations with foreign states”. A quick look at some of the internet chat rooms discussing relations among South Asian nations makes it clear that millions of Indians are liable to be blocked online. That may be legal,but is neither practical nor tenable. In today’s context,any attempt to censor Indian netizens from speaking their mind on cross-border terrorism,even if that might affect dialogue with neighbours,will not survive the public outcry that would ensue.

In all democracies,courts are invariably asked to clarify the intent and extent of constitutional freedoms and restrictions. Indian courts are no exception,and there have been cases where the Supreme Court has pronounced on these. On the freedom of speech,for instance,it has held that criticising the government does not trigger constitutional restrictions. The highest court will undoubtedly have to judge such issues many a time in the future,as more and more Indians both receive and disseminate information in a connected world.

In the meantime,what we are witnessing are attempts by an establishment rooted in the 1970s trying to deal with crises of the 21st century. Though some politicians and bureaucrats,even at the higher levels of government,are reasonably comfortable with technology,and several are even active on social networks,the system overall has not adapted to a rapidly changing environment. The blunders of the past week will be repeated until there is systemic recognition in the government that it is far,far more effective to harness the power of social media than to fight it.

This is not to say that we should,or even could,blindly adopt the practices of other countries. India certainly has unique challenges,and we need to evolve our own solutions. But these solutions ought not to include,for example,knee-jerk replays of the 1970s one-size-fits-all “foreign hand” bogey,which then prove to be at least partly wrong,and fully embarrassing.

Here are two suggestions for the government to improve its credibility and actually reduce some threats. First,stop the practice of blocking certain sites for political content,which has been happening under the guise of tackling other threats. And instead of blocking SMSes,make the do-not-disturb registry the default option (recipients must specifically request to receive bulk SMSes instead of the other way around); it will prevent the daily terror of marketing messages,as well as the spreading of real threats