Web Censorship Case: Summons Order Served To Facebook & Others

IN THE COURT OF SUDESH KUMAR, METROPOLITAN MAGISTRATE PATIALA HOUSE COURTS, NEW DELHI

Complaint Case No. 136 of 2011

In the matter of:

Vinay Rai
S/o Sh. Mahima Rai
10 A. First Floor. Pritvi Raj Road
New Delhi

…Complainant

Versus

…Accused

1. Facebook India
   Through its country head
   Ms. Kirthiga Reddy
   Office at: 4th Floor, Building-14. OPUS Towers,
   Mindspace. Cyberabad, APIIC SW Unit Layout.
   Madhapur. Hyderabad-500081
   kirthiga@fb.com 07799021119
2. Facebook
   Through its chairman
   Donald Edward Graham —
   Facebook Corporate Office
   1601 S. California Ave. Palo Alto. CA 94304
3. Google India (P) Ltd.
4. Orkut
5. Youtube
6. Blogspot
   Through its Country head
   Shri Rajan Anandan
   8th and 9th Floors. Tower — C, Building No.8,
   DLF Cyber City, Gurgaon – 122 002
7. Google
8. Youtube
9. Blogspot
10. Orkut
    Through its CEO, Larry Page — CEO
    1600, Amphitheatre, Parkway, Mountain View,
    CA 94043, USA
11. Yahoo India (P) Ltd
    Shri Arun Tadanki
    Building No.8, Tower-C,
    DLF Cyber CityPhase-2 Gurgaon-
12. Yahoo
    Through Roy J. Bostock — Chairman
    Yahoo! Inc. 701 1st Ave., Sunnyvale, CA 94089
13. Microsoft India (P) Ltd.
    Sri Bhaskar Pramanik 7th Floor,
    Cyber Green Tower-A, DLF Cyber City, Phase-3
    Gurgaon – 122002
14. Microsoft
    Through Steve Ballmer — CEO
    Microsoft Corporation, One Microsoft Way
    Redmond, WA 98052-7329 USA
15. Zombie Time
    DNS Services, 1650-302 Margaret St #332
    Jacksonville, FL 32204-3869, US
16. Exbii
17. BoardReader.com
    700 Tower Drive, Suite 140
    Troy, Michigan 48098 US
    Through its CEO/CHAIRMAN
18. IMC India
    Through Sh. K.M. Gala-CEO, IMC India (Head Office)
    418, Swastik Chambers, Sion Trombay Road
    Chembur, Mumbai – 400 071 (Maharashtra)
19. My Lot
    Through its CEO/CHAIRMAN
    MyLot LLC, 7415 W 130th St
    Suite #100, Overland Park, KS 66213, US
20. Shyni Blog
    Through Sri Rajan Anandan
    C/o Google India (P) Ltd
    8th and 9th Floors. Tower—C, Building No 8,
    DLF Cyber City Gurgaon—122002.
21. Topix
    Through its CEO/CHAIRMAN
    TOPIX.COM.P.O. Box 821650
    Vancouver, WA 98682, US

IN THE COURT OF SH. SUDESH KUMAR

Ld. METROPOLITAN MAGISTRATE / PATIALA HOUSE COURTS / NEW DELHI

CC No. 136/1
Vinay Rai Vs. Facebook
PS Tughlak Road
23.12.2011

Order on Summoning:

The complainant in the present case is a Senior Journalist and Editor of Urdu Weekly namely Akbari. He has filed the present complaint U/s 200 Cr. PC r/w 156 (3) Cr. PC therein praying that the accused persons be summoned for having committed offences punishable U/ s 153-A, 153-B, 292, 293, 295 (A), 298, 109, 500 and 120-B of IPC. The complainant has submitted that the accused persons are the publishers and service providers of the electronic content in question in the present complaint and also responsible for the management and control of online site and internet content and the accused includes those who used, posted and uploaded the material on the site through the internet. It is alleged by the complainant that the content in question has been hosted on various websites which is per-se inflammatory, unacceptable by any set of community standards; seeks to create enmity, hatred and communal Violence amongst various religious communities: is demeaning, degrading and obscene, and it will corrupt minds and adversely affect religious sentiments. It is further submitted that the complainant had received some information in this regard and while going through the contents in the above said websites realized that the same were unacceptable to the secular fabric provided by the Constitution of India and would be intolerable to any community or religion. It is further alleged that on a bare perusal of the contents it is clear that the same would certainly corrupt young minds below the age of 18 and even elders, it is highly provocative and which may even lead to consequences effecting communal harmony. The complainant has mentioned the names of the websites allegedly hosting the said objectionable content in the memo of parties and provided the alleged objectionable material in a sealed envelope. The complainant has further stated that the Social Networking Websites are meant only for providing content with respect to educational, historical, research material and entertainment work etc. as part of their commercial activities for social purposes. However, the objectionable content available on these social networking websites may lead to communal riots. It is further alleged that Government authorities have turned a blind eye to the same and do not have any established procedure or rules and guidelines to control and regulate the same. It is averred that the Government is least bothered and as usual waiting for some mishappening before taking some appropriate actions. Neither police officials nor the Government have initiated any action to curb or check these activities sou moto and failed to register any case against the above named accused persons under any law to remove such contents from there. The complainant has further alleged that the main social networking websites are Google, Facebook, Youtube, Orkut, Broadreader, Mylot, Zombie Time, Shyni Blog, Blogspot, Exbii.com, IMC India. It is alleged that the accused persons knowingly allowed these contents and materials to be hosted in the websites which is dangerous to communal harmony with common and malfide intentions and have failed to remove the objectionable content for their wrongful gain. The complainant further stated that he has provided the said contents to the Court, in a sealed cover with request for directions not to publicize the offensive and inflammatory material which may lead to communal disharmony under his social responsibility. It is further stated by the complainant that the said contents available and hosted on the these sites are per-se unacceptable and clearly established the offences punishable under various provisions mentioned in the IPC and in case no action is taken against the accused person the same will cause serious prejudice to our society and social values provided and protected under the Constitution of India. It is further submitted that as a member of the community the complainant is not only individually hurt but also believes that it such content is allowed to continue on these platforms in this form, then incalculable and irreparable damage will be caused to the secular fabric of India. It is alleged that all those who are responsible for allowing this content to be hosted on the websites conspired with those who are the source of such content, and those who are promoting such material with malice to defame the country and with intent to spread communal violence to destabilise the country with undisclosed persons and are liable to be prosecuted and punished for offences U/s 153 (A), 153(B), 292, 293, 295(A), 298, 109, 500 and120-B IPC.

It is further averred that the contents which are shown on the social networking websites are clearly showing and instigating enmity between different groups on grounds of religion, race, place of birth, residence, language etc. and doing acts prejudicial to the maintenance of harmony as is quite apparent on a bare look at the material available on these social networking websites. It is further stated that the content which has been shown on these websites amount to imputations, assertions, which are prejudicial to national integration. It is alleged that the contents which are available on these social networking websites are obscene may lead to creation of obscene books, pamphlets, paper, which can easily be downloaded from these social networking websites affecting the minds of children and was harmful for social harmony and may lead to increase in crime against women also.

That the contents which are clearly mentioned and annexed in the sealed cover show the malafide intentions of these social networking websites hosting such content in these websites is an act of malice intended to outrage, religious feelings of classes of citizens by insulting their religion or religious beliefs. It is averred that the cause of action for filing the present complaint has risen on 8.12.2011 when the complainant downloaded these pictures and photos and these facts came to the knowledge of the complainant while sitting at his above stated residence and still continuing.

The complainant prays that the above said accused persons alongwith undisclosed persons are liable to be prosecuted and punished U/s U/s 153-A, 153-B, 292, 293, 295(A), 298, 109, 500 and 120-B of IPC.

The complainant has thereafter examined four witness in support of his complaint. Complainant Mr. Vinay Rai has examined himself as CW 1 in pre summoning evidence and he deposed on oath that he has gone through the contents which have been posted on various social networking websites as alleged and the documents downloaded from those sites are original as these have been downloaded directly from those websites. He produced Ex. CW 1/A-1 to Ex. CW 1/A-16 which have been downloaded from the website named as www.zombietime.com. He further deposed that Ex. CW 1/A-17 has been downloaded from Orkut which is arrayed as accused no.4 and 10. He also proved on record Ex. CW 1/A-18 downloaded from website mylot.com, which is a pre-se defamatory to all politicians. He further stated that Ex. CW 1/A-19 to Ex. CW 1/A-22 were downloaded from the post of topix.com and the contents are dangerous for our social structure and community. He further deposed that Ex. CW 1/A-23 to Ex. CW 1/A-36 which are posted by the service provider youtube.com without any sensor or prohibitory or disclaimer which is also dangerous for communal harmony and peace. He deposed that Youtube shown as accused no.5 and 8 provided the internet service and allowed to post these defamatory contents on websites and same is available to people below 18 years of age also which was also alarming danger to our society and Country. He deposed that such contents are against the secular fabric of our society, religion and culture. The witness has further stated that Ex. CW 1/A-37 to Ex. CW 1/A-48 are taken from the website facebook.com. He further proved on record Ex. CW 1/A-49 to Ex. CW 1/A-52 as provided by the blogspot.com, which is arrayed as accused at number 6 & 10 in the complaint and these documents are obscene and against the culture of our Country. He further stated that the blogspot is being managed by googleindia and googleinternational who have already been arrayed as accused in his complaint. He further stated that Ex. CW 1/A-53 has been taken from the website exbii.com, which provides services through google.com. The contents of the said exhibit are dangerous to our society and same has also been shown as political conspiracy to destabilize our Country. He further stated that Ex. CW 1/A-54 has been taken from website indymedia.org and same has been shown as a article posted by imcindia.org, which is against the Hinduism and defamatory to our religion. He further stated that the Ex. CW 1/A-55 provided by broadreader.com which is defamatory to Indian politicians and the Ex. CW 1/A-56 and Ex. CW 1/A-57 have been taken from the service provider blogspot.com which has been provided by the websites Further more, the complainant has deposed on the lines of his complaint. It is further prayed by the complainant that said accused persons alongwith certain undisclosed person were liable to be prosecuted U/s U/s 153-A, 153-B, 292, 293, 295(A), 298, 109, 500 and 120-B of IPC. It is further deposed by the complainant that all the contents were clearly showing and instigating enmity between different groups on the grounds of religion, race, place of birth, residence, language etc. and doing acts prejudicial to maintenance of harmony.

Complainant thereafter examined Mr. Rohit Mammen Alex as CW 2 in pre summoning evidence, who deposed on oath that he was not only a practicing Orthodox Christian but is an extremely secular person and has seen and found extremely shocking some of the contents on the websites in question. He further stated that the present complaint is filed by the complainant not only in public interest but also as an affected person who believes in a secular India. He further deposed that the accused persons are the publishers and service providers of the electronic contents and also responsible to manage and control online site and internet contents as also whoever user and post the material on the site through internet. CW 2 further deposed that the contents of the website in question not only are inflammatory and shocking but have been deliberately posted by the persons in question to inflame the minds of the persons who view it but also create grave communal tensions and to incite hatred amongst religious denominations across the country. He further deposed that on bare perusal of the said contents it is clear that the same will certainly corrupt young and impressionable minds and is highly provocative and which may lead to illogical and dangerous consequences. He deposed that the contents prima facie appear to be dangerous to society and communal harmony. He stated that the exhibited documents clearly show the malafide intentions of the these social networking websites to create deliberate and malicious acts intended to outrage religious feelings of people. He further stated that each and every documents exhibited herein the complaint are downloaded from the website of the accused persons and same may be treated as original of their respective documents.

Thereafter Dr. Aziz Ahmad Khan was examined as CW 3, who also deposed on oath that he is a scholar and P.HD. in Urdu but is an extremely secular person and has seen and found extremely shocking some of the contents of the websites in question. He also deposed that the complainant has filed the present complaint not only in public interest but also as an affected person who believes in a secular India. He further deposed that the accused person are the publishers and service providers of the electronic contents and also responsible to manage and control online site and internet contents as also whoever uses and posts the material on the site through internet. He also deposed that the contents of the websites in question not only are inflammatory and shocking but have been deliberately posted by the persons in question to inflame the minds of persons who view it but also to create grave communal tensions and to incite hatred amongst religious denominations across the country. He further deposed that the on a bare perusal of the said contents it is clear that the same will certainly corrupt young and impressionable minds and is highly provocative and which may lead to dangerous consequences. He submitted that these contents prima facie appear to be dangerous to society and communal harmony. He deposed that if such contents are allowed to be hosted on these websites would seriously damage the secular fabric of India and would severely hurt the sentiments of the general public following different religions. He further deposed that the contents of the exhibited documents clearly show the malafide intention of these social networking websites to create deliberate and malicious acts intended to outrage religious feelings of people. He further deposed that all the documents exhibited herein the complaint are downloaded from the website of the accused and same may be treated as original of their respective documents.

Mr. Rahul Agrawal was examined as CW 4 in pre summoning evidence by the complainant, who also deposed on oath that he is a Journalist and running a News Agency and he is a secular person and believe to maintain peace and harmony amongst the society and Country. He stated that he felt offended when he had seen and found extremely shocking some of the contents of the websites in question. He further stated that accused persons are the publishers and service providers of the electronic contents and also responsible to manage and control online site and internet contents as also whoever uses and posts the material on the site through internet. He further stated that the contents of the websites in question not only are inflammatory and shocking but have been deliberately posted by the persons in question to inflame the minds of the persons who view it but also to create grave communal tensions and to incite hatred amongst religious denominations across the country. He further stated that even on a bare perusal of the said contents it is clear that the same will certainly corrupt young and impressionable minds and is highly provocative and which may lead to illogical and dangerous consequence. He further stated that the contents as exhibited prima facie appear to be dangerous to society and communal harmony and if such contents are allowed to be hosted on these websites would seriously damage the secular fabric of India and would severely hurt the sentiments of the general public following different religions. He further stated that the contents of the exhibited documents clearly show the malafide intention of these social networking websites to create deliberate and malicious acts intended to outrage religious feelings of people. He further stated that the contents hosted on each of these websites are ex-facie scurrilous, defamatory, prejudicial to the maintenance of harmony between different religions and communities, likely to cause fear and generate a feeling of insecurity amongst members of religious communities, obscene by any criteria of community standards of obscenity, seeks to corrupt young minds, malicious and insulting to religions and religious feelings of persons and under no stretch of imagination be considered to be under freedom of speech and expression. He further stated that each and every documents exhibited herein the complaint are downloaded from the website of the accused and same may be treated as original of their respective documents.

No other Complainant witness was examined in pre summoning evidence and the pre summoning evidence was closed. As the addresses of most of the respondents are beyond the jurisdiction of this court, an enquiry report U/s 202 Cr. PC was sought from the SHO concerned regarding the authenticity of documents as filed in the court.

SHO PS Tughlak Road has furnished this enquiry report on 17.12.2011. Today, the matter has been fixed for Orders on summoning. The complainant has furnished about 60 internet generated print outs alongwith the complaint in a sealed cover. The sealed cover was opened during pre summoning evidence. I have gone through each and every internet generated print out. Today, complainant has also furnished a CD submitting that the same contained the vulgar and obscene data available on the networks of the proposed accused and print outs of which were placed on record vide Annexure-A.

To my mind the printouts as furnished and exhibited on bare perusal are found to be obscene, lascivious, indecent and shocking. The printouts shown are totally degrading and demeaning. Some of the printouts are showing various religious idols in a very degrading, demeaning and obscene way which are certainly unacceptable to any person professing such religion and also to civilized society as a whole. There are obscene picture and derogatory articles pertaining to Prophet Mohammed, Jesus and various Hindu God and Godesses. There are defamatory and obscene articles pertaining to various Indian political leaders. The contents are certainly disrespectful to the religious sentiments and faith and seem to be intended to outrage the feelings of the religious people whether Hindu, Muslim or Christian. There are certain degrading and obscene photographs of various political leaders belonging to different political parties and the photographs pasted and the language used is also obscene, filthy and degrading.

Prima facie, I am satisfied that the material produced on record will promote enmity between different religious sections and groups and a feeling of hatred and ill-will between them would be promoted if the offensive material was allowed to be publicised as such. The documents are certainly prejudicial to the maintenance of harmony between different religious groups. They tend to promote feeling of insecurity amongst members of some religion. The documents are obscene and could certainly corrupt the minds of the young. Most of the obscene pictures produced on record are tending to hurt the feelings of different religions. In my considered view, the said contents are certainly prejudicial to national harmony and integration. The publication of such offensive and inflammatory material which has tendency to inflame minds cannot be considered to be an expression of freedom of speech by any stretch of imagination in civil society. Having gone through the record, I am satisfied that the said contents produced on record by the complainant and which were available on various websites are not protected by the doctrine of free speech of expression under our Constitution. In fact much content fell foul of Provisions of Article 19 (1) (a) of the Constitution of India.

The Counsel for complainant has further argued vehemently that the offensive material as placed on record was just a part of a very large bunch of such content which was available on these networks. He further argued that it was impossible that availability of such content in such large quantity was publicised without the knowledge and connivance of the accused persons. He further alleged that all the accused persons in connivance with each other and some unknown persons have intentionally and knowingly permitted such content to be publicised just for the sake of commercial gains.

Having gone through the record, I find force in the arguments advanced on behalf of the complainant. All the accused persons are involved in the business of publication and are providing service of the electronic contents to users. They are certainly doing it for commercial gain. The accused persons having full control over the working of their sites it seems have purposely promoted and publicised offensive material for their commercial gains. It seems that instead of regulating the undesirable and offensive content they have promoted the same for increasing the profits and promoting their business. They have closed their eyes and promoted obscene derogatory defamatory and inflammatory material continuously on their network.

It appears from a bare perusal of the documents that prima facie the accused in connivance with each other and other unknown persons are selling, publicly exhibiting and have put into circulation obscene, lascivious content which also appeals to the prurient interests and tends to deprave and corrupt the persons who are likely to read, see or hear the same. It is also evident that such contents are continuously openly and freely available to every one who is using the said network irrespective of their age and even the persons under the age of 18 years have full and uncensored access to such obscene contents.

From the above, it is clear that there is prima facie material on record against the accused persons for committing offences U/s 292/293/120 IPC and they are liable to be summoned for facing trial for the same.

However, from the testimony of these witnesses examined on record belonging to three different religions alongwith the material produced on record, it is evident that the same promotes enmity between different groups and religions, which is certainly prejudicial to the maintenance of peace and communal harmony. The accused persons through the publication and promotion of the offensive material as produced on record seem to be promoting disharmony, feeling of enmity, hatred or ill-will between different religions. The act / omission on part of the accused person as alleged certainly tends to prejudice the maintenance of harmony between different groups and religions. The imputations and assertions and publications as produced on record are prejudicial to the national interest.

The contents as produced by the complainant are insulting and outrageous to the religious feelings of various classes of people.

From the above as argued vehemently by the Ld. Counsel for the complainant. I find, prima facie, that the accused persons are liable to be summoned for offences U/s 153-A, 153-B and 295-A IPC. However, owing to the embargo under section 196 Cr. PC which prohibits taking of cognizance under the said Provisions except with the previous sanction of the Central Government or State Government or District Magistrate, the accused persons are not summoned for the said offences. All the accused persons however, be summoned for facing trial U/s 292, 293 and 120-B IPC for 13.01.2012 on filing of PF.

Ld. Counsel for complainant has also vehemently argued that even the Government of India seems to have turned a blind eye to the offensive, degrading and demeaning content on these websites which is outrageous and also against national integration. In the facts and circumstances of the case, taking into consideration the submissions made on behalf of the complainant, let a copy of this Order be also sent to the Government of India through the Secretary (Information and Technology), Secretary (Home) and Secretary (Law) for taking the immediate appropriate steps in this regard and file a report on the next date of hearing i.e. 13.01.2012.

Sudesh Kumar / MM / ND / 23.12.2011.

By Pranesh Prakash. Reproduced with permission from the CIS-India blog.