Arun Jaitley on the attacks on freedom of speech on the web in India!

Sushubh

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Oct 29, 2004
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"Someone can criticise me or my party; it will be disparaging for me. But do I have the right to say: 'Take it off the (inter)net'? The words the way they are framed have huge possibility of future misuse," he said.

Stating that the content on internet may be defamatory to one person or another, Jaitley also joked that by restricting all that is defamatory, "we will have a very boring internet".


Internet would have made 1975 Emergency a fiasco: Arun Jaitley
 

manu1991

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The Complete Speech:
THE LEADER OF THE OPPOSITION (SHRI ARUN JAITLEY): Mr. Vice-Chairman, Sir, let me, first of all, compliment the hon. Member, Shri Rajeeve, for familiarizing all of us that we have a role in overseeing even subordinate legislations. Otherwise, most of us were under the impression that the law is framed by Parliament, and rules and regulations are framed by the Government and placed on the Table of the House. I think, he deserves a compliment for educating us on this rule that Parliament has a supervisory control as far as subordinate legislations are concerned, and, if need be, we can express our vote of disapproval to the subordinate legislations.
Sir, we are dealing with a very difficult issue. We can allow ourselves to be carried away by either a popular sentiment which is always against any form of restraint or censorship; we can also allow ourselves to be carried away by a certain amount of anguish and irritation as to the kind of material we see on the internet or on various sites. The fundamental principle is that it is extremely difficult, if not impossible, to control technology. It would not even be desirable to do so. It is impossible to defy technology. So, the days of censorship, the days of withholding back information is all over. I always believe that if the internet had been in existence, the internal Emergency of 1975 would have been a big fiasco. You could restrain and create awe by censorship of the print media and control the electronic media, but you could never control the internet. Therefore, there would be a free flow of information; information would come from all over the world. There would be angry exchange of articles and the circulation would have been so wide that the whole fear psychosis which was built up would itself have been demolished. Therefore, these institutions which have come up by virtue of technology have a great role to play.
But, then, there is the other danger. The other danger is, there is a situation of incitement of certain offences in the society. There is hate speech. There is religious hatred being created. There is caste hatred being created. There is an incitement to violence being created. You can have a flow of information which can then end up creating frenzy as far as the society is concerned. If that kind of frenzy is created, you will see the negative impact of allowing this kind of information. Therefore, we have to take a balanced approach as to how to go about in the matter, the rules which have been prepared by the Government and placed on the Table of the House. In fact, rules themselves are attempting to devise a mechanism. The mechanism is that, on account of technology, there is inflow of information. Suppose, there is inflow of information into the YouTube. Those who own or administer YouTube do not censor every article--or any piece of information, a video or an audio--that goes on to the YouTube. Anybody can enter the information at any point. Their only authority or domain would be to remove it once it enters.

Now, the information is going to be so large; the content is going to be so large, that they would not even be aware of what is actually contained therein. Therefore, most sites invent the procedure by which they have internal alerts. So, if there is anything which is pornographic, the alert goes up and it is immediately taken off. This can go off, not in minutes, it can go off in seconds itself. If there is something which relates to incitement of an offence, there will be several indications of alerts within the internal system. Then, there is a system of ‘outside alerts’. You don’t catch that objectionable material, but somebody else brings it to your notice. Therefore, you have to then take it off. In that sense, the rule really says that every intermediatary will be given the following information, which he cannot carry. If his internal and external alerts bring it to his notice, it is incumbent on him to take it off within 36 hours. This is the architecture which this rule appears to have devised. Don’t put anything on these knowingly, which is objectionable. But if, unknowingly, something appears on your site, and if the alert brings it to your notice, then it will have to be taken off. The difficulty will arise -- this procedure,prima facie, appears to be reasonable -- if the kind of information which is sought to be objected to and removed becomes too wide, and then becomes a threat to free speech. My limited point is -- and I urge the hon. Minister that I have no serious personal objection against the architecture that he has devised -- it is an architecture where there is no prior censorship; it is an architecture where anything can go on these sites. If something is objectionable, and if it is by an alert system brought to your notice, then, within a reasonable period of time, you take it off. Now, you see the kind of information which is being restrained. I draw the hon. Minister’s attention to Regulation No.3; it is contained in sub-clause (2) of Regulation No.3. Now, take category (b) out of that. Here, Mr. Rajeeve’s point is that link it to what are the restrictions in article 19(2) of the Constitution. There is a clause which incorporates some of them; then, it adds something more. There are certain laws which prohibit carrying of certain kind of information. That may be in addition to article 19(2). For instance, an obscene display of women; somebody else’s copyrights; somebody else’s patents; somebody else’s trade information, you can’t carry that. Now, this broadly deals with these categories. But, then, the expressions used in some of the cases are so wide that my fear is that at some stage, they could even be used to curtail some amount of free speech. In clause (b) you said, “If that information is grossly harmful”. Now, the word ‘harmful’ is absolutely subjective. Now, there is information which some my friends in the Government may consider very harmful to them. I may think it is my right to express that information. It is ‘harassing’. Now, ‘harassing’ is not a word which is capable of a strict legal definition. It can be stretched to such an extent: are we going to empower the Executive? I can understand that anything which harasses an individual lady, if it was specific, I may have had no objection. But if you say, ‘it is harmful’, ‘it is harassing’, it is not proper. The third word is ‘blasphemous’. I would urge the hon. Minister to kindly replace this word with what is contained in Indian law. Now, we have a very secular penal law that anybody who creates incitement against any religion or who expresses disrespect is liable. Now, ‘blasphemous’, internationally, at least, in some countries, is very narrowly defined. In England, for instance, ‘blasphemy’ is only against one religion.

So, blasphemy is only against one religion. If blasphemy is an offence, it is against Christianity. It is not an offence against Islam, Hinduism, or Zoroastrianism. You have the judicial pronouncements in the British Courts when a restrain was sought on the Satanic Verses, they said, no, you are saying that this is blasphemous of Islam, but this is an offence available only against Christianity. So, the word really comes from the English Dictionary, and, therefore, rather than using the word 'blasphemous', I have no difficulty if the words were, 'anything which incites religious hatred or disrespect to any religion' are used. You can have that power. Now this 'defamatory' in this, I have a positive objection to it. I am entitled to defame somebody as long as I can plead truth as a defence. Therefore, every time I get up and on the net an allegation is made that somebody is corrupt, it is obviously defamatory. But then the person making that allegation has a right to plead that what I have said is true. Now you seek to restrain anything which is defamatory. So, both in common law and also in our penal law, defamation is permissible as long as you can justify the defamation. You can either justify or you can have a qualified privilege in a response to defamation, and then to say that anything defamatory will not be allowed, if I get up and say that I have a serious objection that so and so is prima facieguilty in such corruption scandals, it is obviously defamatory. But I am entitled to say so as long as I can plead truth as a defence. So, anything which is defamatory, I think, if it goes off the net completely, then we will probably have a very boring internet as far as this country is concerned because a lot of material which comes up enlightens people and informs us of what kind of things which are taking place. Similarly, there are words 'libellous', 'disparaging'. Now somebody can get up and criticise my party or criticise me, it is disparaging as far as my party or my criticism is concerned. Do I have a right to say that it be taken off the net? I think, the words which have been used are being capable of stretched in a manner that there is a huge possibility of a future misuse. Sub-clause (f) says, 'deceives or misleads the addressee about the origin of such messages or communicates any information, which is grossly offensive or menacing in nature'. Now 'offensive' or 'menacing' are not being capable of put in a definitional narrow jacket. Now something maybe offensive for some and may not be offensive for some. Similarly, (g) is, 'impersonates another person'. Sir, my grievance is that both in Parliament, in our media and public discourse, we are losing a sense of humour. There are cases of impersonation that I see, particularly, on the Twitter. I have had somebody impersonating a site as my site. I made a grievance and I found a lot of humours and funny things, including ridiculous to me coming from that particular impersonator. You have somebody imitating people in high places. As long as it is a part of permissible humour, it is all right, but if it is a case where somebody is committing an offence through impersonation, I think, there is a need for law to step in. But if it is a case where somebody has a satirical site or a satirical space on the Twitter, this is not intended to really stop that. In (i), there are two cases. I have no difficulty with the first part of (i), that is actually reproduction of article 19 (2) where reasonable restrictions are possible, and it says, 'threaten the unity, integrity, defence, security, sovereignty of India, friendly relations with foreign states or public order or causes incitement of a commission of a cognizable offence'. These are the words literally picked up from the Constitution. We have accepted them. They have stood the test of time, I have no difficulty. Then it says, 'or prevents the investigation of an offence.' Now do I not have a right to criticise an investigative agency? We have seen misuse of investigating agency.

I can criticise it in the print media; I can’t do it on the Net. The last one, again, I think, is very broad. I would urge the Minister to retain only the first language, “friendly relations with foreign States”. That is the language of the Constitution, article 19 (2). Now, you are bringing a new category saying , “or is insulting any other nation”. Now, in a huge discourse on Foreign Policy on national relationships, we are entitled to criticise other States. The Government of India may use its restrained language; we, in Parliament, may use its restrained language, but on the Net, you will find a number of comments about a country where Osama Bin Laden was eventually found. We also in politics say, ‘Terror as an instrument of State Policy, the Government is encouraging it.’ We criticise the institutions. My fear is that they will come within the meaning of the words, ‘insulting any other nation’. Therefore, a legitimate criticism, which is Constitutionally permissible, which doesn’t really offend foreign relations with friendly States, is something which is permissible. So, if I may just, in a nutshell, say, I am with the architecture that the hon. Minister is creating, because, if, as I said, there is some kind of a communal or caste problem, the Net can go viral and you can have a frenzy in the society, certain kind of information which creates disorder in the society may have to be restrained. But, then, to say, ‘take that power and then extend it by the use of such words where legitimate expression may become difficult’, there would be apprehension. Powers are, normally, assumed under these rules on the assumption that they won’t be misused. We feel the pinch only when they are misused. Therefore, I would urge the Minister to kindly reconsider the language of the kind of restraints that he wants to bring as a result of this Motion. Thank you, Sir. (Ends)
 

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