Update: The SFLC.in updated their blog around the start of February 2023 to corrected the number of total blocked websites between 2015 and 2022 to 55,607 websites.
As many as 55,580 websites, URLs, applications, social media posts and accounts were blocked in India between January 2015 and September 2022, said the Software Freedom Law Centre (SFLC) in its Website Blocking report.
Published on January 12, 2023, the ‘Finding 404: A Report on Website Blocking in India’ report assesses the grounds on which countries recognising the freedom of speech and expression blocks websites.
Speaking on the report, Prasanth Sugathan, Legal Director of SFLC, said, “This report is an effort by SFLC.in to inform the policy makers and citizens about the problems associated with the current legal framework on website blocking. We hope this report will help in bringing about a policy change by improving the procedure for website blocking, making it more transparent and rights respecting.”
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MeitY claims the lion’s share of website blocking
Of the 55,580 websites blocked in India, the Ministry of Electronics and Information Technology (MeitY) was responsible for blocking 26,352 websites while the Ministry of Information and Broadcasting only blocked 94 websites. SFLC found that 22,447 websites or 47.5 percent of total blocked websites were blocked under section 69A of the Information Technology Act, 2000.
Court orders second most common grounds for blocking: Aside from Section 69A, there were court orders that resulted in the blocking of 26,024 websites or 46.8 percent of total blocked websites for “copyright infringement.” However, the report said that this number is not a true representation of blocking under copyright infringement as “rampant blocking of access to content happens under the DMCA regime.”
The DMCA or the Digital Millennium Copyright Act, 1998 is an anti-piracy statute of the United States which amends the liability regime against copyright infringers prevailing until then in the that country. Why is a US law applicable in India? Because most intermediaries – like say YouTube – are concentrated in the US, leading to such an exception.
Lastly, the third major ground for blocking is obscenity, Child Sexual Abuse Material (CSAM) and pornography and accounted for 1,065 websites blocked between 2015 and 2022.
These data points were compiled from various primary and secondary sources, checking various blocking orders to identify the broad reasons rendered by the concerned authorities.
RTI attempts to learn about website blocking
To learn about the impact of the use (or misuse) of blocking orders, and the fallacies in the Rules empowering the Indian government to do so, the SFLC filed RTIs requesting such information. MeitY rejected many of the RTIs on the ground of Section 8 of the RTI Act and Rule 16 of the Blocking Rules, 2009, that allows non-publication of orders by the government.
However, the MIB shared its reasons for blocking websites, which were as follows:
- Spread of disinformation and propaganda affecting foreign relations of India
- Websites linked with organisations banned under the Unlawful Activities (Prevention) Act, 1967, had the potential to incite communal disharmony and separatism.
- Spread of fake news related to the Indian army, Jammu and Kashmir, death of Bipin Rawat.
- Propaganda undermining the democratic process in the up-coming elections
“This, however, is only a small piece of the puzzle as the number of blocks ordered by MIB forms a minuscule portion of the total blocks,” said the report.
Meanwhile, court orders and the information provided by the Department of Telecommunications (DoT) showed that other reasons for banning of websites include defamation, public dis-order, law and order and contempt of court.
Five techniques for blocking websites in India
Taking a look at how internet censorship works in India, SFLC identified five popular techniques of Internet Service Providers (ISPs) in India:
- DNS Tampering: the most common technique of blocking websites, wherein the DNS server returns an incorrect IP address or an intermediary is introduced in the DNS process lookup to inject the wrong IP address.
- HTTP blocking: A user is shown a page which contains a blocking notice or redirect to a page which shows the blocking notice.
- TCP/IP Blocking: blocking the IP address of the server where the website is hosted.
- TLS-SNI Blocking: using the extension containing the name of the website so that ISPs may block it.
- QUIC Network Blocking: recently happening in India, the ISPs use the QUIC network protocol to ban a website. For this, they have to scan every stream continuously, which may reduce speed.
Consider procedural safeguards for Section 69A: The report called for a deeper look at the deficits in Section 69A to help the right to seek an effective remedy. As it is, the Section on blocking content online is opaque and lacks checks and balances.
It argued that an aggrieved person loses out on their chance to challenge an order due to non-publication, violating the principles of natural justice. The procedure fails to provide opportunity of hearing in a substance, it said.
The current process only allows a person to make a representation before one forum under Rule 8, without any opportunity to appeal against the order. Meanwhile, Rule 16 allows the non-disclosure of an action taken on the complaint or the request received to block a website.
“Read together, these rules do not allow complete access to the details of the action taken against an individual, nor do they allow an opportunity to make a detailed or proper representation,” said SFLC.
SFLC calls for transparency: In line with the aforementioned idea, the report said that there is enough evidence to prove Rule 16’s unconstitutionality. It thus recommended greater accountability standards such as increased transparency and a robust review mechanism, not limited to the executive branch.
Moreover, it called the language of Rule 16 a violation of the right to freedom of speech and expression of citizens.
“Article 19(1)(a) of the Indian Constitution guarantees protection of freedom of speech and expression in any form, which may include websites, social media posts, YouTube videos etc., against unreasonable state action,” said SFLC.
Wider representation for the Review Committee: Currently, the Review Committee looking at blocking orders only consists of members from the executive branch. However, SFLC pointed out that it requires a higher standard of scrutiny and absence of bias because website blocking involves a question of fundamental rights.
The same group of people are also responsible for reviewing decisions under the Indian Telegraph Rules, 1951 and Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009. This puts undue pressure on the Review Committee.
Stricter standards for website blocking: SFLC suggested that the government adopt a stricter standard while determining blocking of an entire website, account or channel that withstands the proportionality test.
To ensure that MeitY’s and MIB’s order remain proportionate and reasonable, “it is proposed that a standard format be introduced” and followed by the Designated Authority and the Review Committee. According to SFLC, any order or decision made by the authority should be screened using questions inherent in a proportionality analysis such as:
- Is the content being subjected to the blocking order explicitly prohibited under Article 19(2)?
- If the order blocks the entire website: Why is the blocking of the specific URLs hosting the impugned content insufficient?
- What is the likely impact of the denial of the information to the public? Is the denial of such information by blocking the website going to violate their right to access information?
Note: This article was updated with the corrected number of total websites blocked from 2015 to 2022 as per SFLC.in’s amendment at 10:43 AM on February 10, 2023.
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