The Indian government’s content moderation laws have often been used to censor content online. However, the platforms hosting this content often remain curiously quiet on the legitimacy of censorship in India. The question is: should they be pushing back at all?
“In terms of a platform’s responsibility to push back on [the government’s content moderation and censorship] laws and to challenge some of them, I absolutely think they have the responsibility to do that, for Spiderman-related reasons,” said the Internet Freedom Foundation’s Tanmay Singh at the “Regulating Speech and Content” panel at MediaNama’s MarketsNama conference last Friday. But, whether or not they actually want to exercise that responsibility is entirely up to them.”
There are only a few recent examples of platforms challenging government laws—whether WhatsApp’s challenge against the government’s traceability mandate or Twitter’s challenge to 39 allegedly arbitrary content-blocking orders issued under Section 69A of the IT Act, 2000. As the Centre for Internet and Society’s Co-founder Pranesh Prakash told MediaNama just after Twitter’s challenge last year, “I don’t know of other situations where companies have actually gone to Court to safeguard user rights. This is despite the fact that companies are in Court all the time in different parts of India—but that’s usually to escape liability themselves. So, this kind of situation where a company is actually standing up for user rights is highly unusual.”
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“It would be great if platforms pushed back [against controversial IT laws]. But, legally, I don’t know how much you can expect them to,” rebutted Sachin Dhawan, of the National Law University Delhi’s Centre for Communication Governance, during last week’s panel. “It’s also about how speech infrastructure works online—if speech is restricted offline, a publisher has self-interest there. They have a relationship with a journalist [for example], so if a journalist’s speech is hurt, they’re also going to be hurt. There’s a pre-existing relationship, so you can expect the [offline] platform to fight back.”
“But, online, there is no pre-existing relationship between the platform and the user. The platform hasn’t contributed in any way—there’s no sweat, blood, and tears in terms of content creation, that’s all done by the user. Plus, the volume of content is much greater online than offline. So, if a government asks a platform to restrict a small subset of speakers, it’s no skin off the platform’s back … It’s unrealistic to expect them to push back.” — Sachin Dhawan, Centre for Communication Governance, National Law University, Delhi
“I feel that we constantly forget that these platforms are businesses at the end of the day, right?” drily concluded SFLC.in’s Radhika Jhalani. “They have to operate in the country”.
MediaNama hosted this discussion with support from Salesforce, Google and Mozilla. Internet Freedom Foundation, and our community partners, the Centre for Internet and Society and Alliance of Digital India Foundation.
The ambiguity around Section 69A blockings may lead to citizen inaction: The panelists had already spent much time discussing how Section 69A blockings in India are questionably bound to confidentiality—the person whose content is being censored is often not informed of the blocking, making it difficult for them to appear in Court.
According to the Internet Freedom Foundation’s Director Apar Gupta, while there have been a few citizen challenges against these practices, these may remain few and far between.
“A documented instance of action in Court was Tanul Thakur’s case,” noted Gupta. Thakur’s satirical website ‘www.dowrycalculator.com’ was blocked under Section 69A a few years ago, prompting a legal challenge against the blocking, among other things. In an unprecedented order last May, the Delhi High Court directed the IT Ministry to not only share the blocking order with Thakur, but to give him a post-decisional hearing on the order before a committee constituted under the 2009 Section 69A Blocking Rules. Following this, the government told Thakur a few months later that the website should remain blocked. The High Court issued notice in a fresh challenge to the blocking filed by Thakur earlier this year.
“Let me tell you why it [Thakur’s case] was so important and why this [action] does not happen often,” Gupta continued. “It’s because people move past it [the blocking]. The person whose website is blocked makes another. It’s easier for them to do that than to contest the blocking. Secondly, the [lack of a] blocking order and hearing [for the accused], the prevention of that, the absence of a process by itself, basically promotes them [the user] from moving past it as a legal issue. There’s not enough investment, so I don’t think enough litigation even in the future may be done around it.”
Platforms act in their own interests, which are political too: “Platforms [also] take decisions around what is politically easier for them to handle at times,” noted MediaNama’s Editor Nikhil Pahwa. “They’re not bound [to take down content] because they have safe harbour protections, and their community guidelines [on content allowed on the platform] are malleable and not binding. Platforms can also choose to allow certain hateful content to remain up because it might benefit a politician of the ruling party in some country.”
Even rare legal challenges against controversial government laws can remain limited. “Take Twitter’s challenge to the 39 Section 69A orders,” Pahwa recalled. “Twitter chose not to challenge the Section 69A rules, they challenged just those [specific 39] orders.”
Platforms don’t just need to challenge the constitutionality of laws: Responding to an audience question on the significance of the government recently allowing itself to “fact-check” government-related news on the Internet, Singh noted that the amendment won’t go into effect until July 5th, following comedian Kunal Kamra’s challenge to the provision, with the assistance of the Internet Freedom Foundation, at the Bombay High Court.
Dhawan noted that there is an opportunity for platforms to challenge the amendment even here, although whether they will or not remains to be seen.
“Platforms aren’t required to abide by it [the fact-check notifications], they only lose their safe harbour protection if they don’t [take down information flagged as ‘false’ by the government],” Dhawan argued. “This goes back to the earlier point—a platform doesn’t just have to strike back or push back against the government only when something potentially unconstitutional happens. The platform can go to court to challenge [the government] even when it comes to safe harbour [being at stake]. It’s up to a platform to decide whether, in the interests of its users’ speech, it’s not going to take down content and go to court over it. But that doesn’t happen.”
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