R Swaminathan is a senior fellow at the Observer Research Foundation and at the National Internet Exchange of India (NIXI) . He is the author of five books including Mumbai Vision 2015: An Agenda for Urban Renewal. In this guest column, he writes about Internet censorship, and the Indian Government’s efforts to control content on the Internet. 

Pardon me for my long-windedness. But we have to get this straight. When a smart young stalker got hold of Angelina Jolie’s mobile number and started bombarding her with text messages and obscene calls from random numbers, cyber experts from the Los Angeles police department (LAPD) had to step in. After around a month they caught him. A criminal case was filed in the Los Angeles superior court against the stalker. The LAPD was the prosecutor, while the stalker was the defendant. AT&T was Jolie’s mobile phone provider, while almost every major wireless service provider from Sprint, AT&T, Verizon to TracFone Wireless and MetroPCS was used by the stalker.

Closer home, at the height of the Bellary mining controversy when a beleaguered Karnataka BJP strongman B S Yeddyurappa had to practically close the district’s border with Andhra Pradesh to stop the illegally mined Iron Ore from reaching the Visakhapatnam port, the mafia thought they could outsmart the Lokayukta cops by diverting the trucks to Goa. Close to 45 trucks loaded with illegally mined iron ore were caught on national highway number 66. NH-66 is constructed, managed and maintained by the national highway authority of India (NHAI). Obulapuram Mining Company, owned by the infamous Reddy brothers, was the defendant. The Karnataka Lokyukta was the prosecutor.

What’s my point? If one were to apply the logic of the Information Technology Act, 2008 and more specifically the Intermediary Guidelines Rules that were passed in April 2011 the mobile companies in the Jolie case and the NHAI in the illegal mining case would be the ones who would be standing in the defendant’s corner. And why precisely would they be standing trial? Well, the mobile companies did allow the stalker to use their network to distribute obscene content and the NHAI allowed the trucks to use their highways.

If ludicrous is the word that comes to your mind, hold on to it. You may be hauled up for contempt of court. But this is the exact logic that legal brains are spouting in the Delhi high court in the Vinay Rai vs Facebook case, which now involves Google too. Since Google and Facebook are defined as “intermediaries” they are sought to be held responsible for “objectionable content” that passes through their networks.  Since it is the season of cuckoos, can we now look at hauling up the NHAI for every piece of contraband that passes through its roads?

While this farcical drama is being played out, the Organisation of Economic Cooperation and Development (OECD) has listed out three members – China, India and Russia – as examples of countries taking actions harmful to online freedom. It’s a dubious distinction for India to be clubbed with China and Russia, at least on this issue.  OECD identifies Brazil as one of the few countries that are actively taking steps to promote the freedom of speech and expression in the internet. It’s ironical, considering that Brazil saw a strict military dictatorship from 1964 to 1985. India has been a strong supporter of OECD and has unequivocally supported all OECD initiatives, including OECD recommendation on internet policy making.

Out of the 14 critical points suggested by OECD in December 2011 for promotion of an internet eco-system, which India has agreed to, the Indian establishment has already at some level violated in principle and spirit at least four of them:

– Promote and protect the global free flow of information

– Promote the open, distributed and inter-connected nature of the internet

– Maximise individual empowerment

– Foster voluntarily developed codes of conduct

But that’s not all. Where the mandarins have crossed the line is in breaking one of the guiding principles of the OECD code of conduct. That’s the principle of limiting internet intermediary liability. Not only have they taken a U-turn on this principle, they seem to be behaving as if this principle never ever existed on the face of the earth. The bureaucratic establishment seems hell-bent on proving that Google, as well as other intermediaries, is responsible for every piece of content that it mines and throws up.

Currently, the government can either block content by using section 69A of the Information Technology Act or by sending requests to internet companies to remove content. That’s a pretty powerful cache of arms to ‘limit freedom’ in the government vault. But the mandarins want to go two steps further to seek further control. The first step aims at making internet companies ‘self-regulate’. In short, the mandarins are saying, ‘If we can’t get you legally, we will still get you no matter what.’

The second step is even more dangerous. It’s a diabolical tweak to the Copyright Act. Section 52(1)(c) sounds harmless, but what it does is to allow someone to send a notice complaining about infringement of his copyright. So powerful is the section that I can officially complain about any content, without even having to show I own the rights to it. The internet company will have to bow down to me and have the content removed immediately without any question. But if my complaint turns out to be false and malicious, I will not be penalised. But, god forbid, if the internet company fails to remove the content, I can ensure that a tonne of legal bricks can literally bury it alive.

In 15th-16th-century Europe one could exactly do that. All that one needed to do was to sow a seed of suspicion, point an accusatory finger and stand back to watch the fun. It was called a witch-hunt and close to 60,000 people, mostly women, were burnt alive at the stake. Now, why am I getting a feeling of déjà vu?

(c) 2012 R Swaminathan. The views expressed above are those of the author, and not necessarily representative of the views of MediaNama.com