How India is losing its footing on free expression.

The world’s biggest democracy is a formidable power in the IT sector. With software exports comprising approximately ten percent of India’s total GDP and a technology sector that employs more than 2.5 million people, India is poised to become a global industry leader. Over the past ten years, India has also experienced a rapid increase in Internet penetration, growing from 5.5 million users in 2000 to 61.3 million in 2009, and government initiatives have brought the Internet to rural areas by way of setting up cybercafés, in the hopes of closing the country’s digital divide.

Despite such growth, or perhaps because of it, India has struggled to strike a balance between its security concerns and online freedom. As we’ve previously noted, India has been known to censor online content, typically under the guise of national security or obscenity. Though the country’s constitution guarantees the right to freedom of expression, the State is given the right to impose "reasonable restrictions ... in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation, or incitement to an offence."1 

As such, the 2000 Information Technology Act allows for the blocking of certain content online. In 2003, the Indian government created the Indian Computer Emergency Response Team (CERT-IN) to issue blocking orders of websites. Another provision, Section 144 of the Code of Criminal Procedure, allows police commissioners to identify and order the blocking of material that contains a threat or nuisance to society. 

In recent years, online censorship has become part of national discourse in India. In particular, a set of regulations that went into effect in April 2011--the 'Intermediary Guidelines' Rules [pdf] and Cyber Cafe Rules [pdf]--have inspired new dialogue in India around limits to speech. The broad Intermediary Guidelines give power to citizens to submit complaints, upon which intermediaries are required to take down offensive content within thirty-six hours. With no transparency requirement, says Pranesh Prakash of the Centre for Internet & Society--which tested the regulations by submitting "frivolous" requests--"If we hadn't kept track [of their fulfilled takedown requests], it would be as though that content never existed."

Google India Removes Content

On Monday, reports emerged that Google India had removed web pages deemed offensive to Indian political and religious leaders to comply with a court case, filed by journalist Vinay Rai, who demands regulation of "offensive and objectionable" material. Rai's case followed a widely-publicized December meeting in which Indian Telecommunications Minister Kapil Sibal met with top executives of Internet companies and social media sites in an attempt to compel them to pro-actively filter certain content. Though at the time, the companies stated that such a move would be impossible, a January Delhi High Court decision issued by Justice Suresh Kait has apparently forced their hands. Issuing his decision, Justice Kait told lawyers for several of the companies that, unless they develop the capability to regulate "offensive and objectionable" material on their sites, the Indian government would block their websites "like China [does]." 

The Delhi court gave Google--as well as 21 other websites--two weeks to present further plans for policing their networks, according to an AP report. Facebook, Yahoo, and Microsoft have reportedly questioned their inclusion in the case on the basis that no specific complaints have been presented against them.

In response to the case, Communications Minister Sachin Pilot claimed that "there is no question of any censorship," arguing that foreign companies must be responsible and "operate within the laws of the country."

A Shattered Web

As we have written before, when a company has employees in a given country it has little choice when faced with a legal order. Apart from leaving the country altogether, the company can refuse to comply and put its employees at risk of arrest (or worse), or it can comply with the order and risk backlash from users. Censorship therefore becomes a necessary tradeoff a company must make in order to continue its operations, a chilling effect of choosing to operate somewhere where freedom of expression is under threat.

Many companies, including Google and Twitter, have developed mechanisms by which they can locally censor content. This means that when companies comply with legal orders, content is removed on a country-per-country basis, as opposed to being taken down across the entire site.  EFF views this as a good thing in that it minimizes censorship, however with the caveat that transparency in such decisions is vital.

Google, for its part, publishes a tranparency report, in which the company shares information about requests for user data and content removals.  In respect to India, the company reports that, from January to June 2011, it declined the majority of YouTube takedown requests, but "locally restricted videos that appeared to violate local laws prohibiting speech that could incite enmity between communities." The report shows that Google complied with 51% of the 68 requests it received during that period.2 Twitter has also vowed to be transparent in its per-country takedowns, reporting requests to the Chilling Effects Clearinghouse. Other companies, such as Facebook, have not offered transparency reports to the public.

These mechanisms for transparency are vital to all citizens' ability to seek, receive, and impart information and ideas, regardless of borders. Despite the transparency, EFF has concerns that these localized content removals are leading to a fractured Web, in which different countries have different views of the Internet. To that end, we encourage companies considering opening foreign offices to think carefully about a given country's track record on freedom of expression.

As for India, we believe that by placing such pervasive restrictions on free expression, the Indian government is losing an opportunity to be an important part of the digital revolution. The inhibition of free speech to such a degree poses a real threat to India's once-thriving democracy. As UN Special Rapporteur on freedom of expression Frank LaRue stated last year in his widely-cited report,3 "By vastly expanding the capacity of individuals to enjoy their right to freedom of opinion and expression, which is an 'enabler' of other human rights, the Internet boosts economic, social and political development, and contributes to the progress of humankind as a whole." 

EFF calls upon the government of India to respect the principles of free expression laid out in Article 19 of the Universal Declaration of Human Rights and halt further regression of rights and freedoms.

• 1. Article 19 of The Constitution of India, http://lawmin.nic.in/coi.htm [PDF]
• 2. The Centre for Internet & Society did an analysis comparing the Google Transparency report and reports from the Indian Department of information on website blocking, which demonstrated a lack of transparency on the part of the Indian authorities: http://www.cis-india.org/internet-governance/blog/analysis-dit-response-2nd-rti-blocking
• 3. Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, www2.ohchr.org/english/bodies/hrcouncil/.../A.HRC.17.27_en.pdf [PDF]