The Delhi High court adjourned the hearing in the case against Google, Facebook and other social networking websites for posting “objectionable content” till 19 January on Monday but quashed arguments by lawyers of the concerned companies through harsh comments.
Senior counsel Siddharth Luthra’s arguments criticising the trial court’s decision to summon executives of 21 social networking companies to appear personally before the court on 13 March were summarily rejected by Justice Suresh Kait. “…there was some urgency associated with the matter… that is why it was taken up so quickly… and the matter came to the trial court; so, the trial court should not be blamed…,” Justice Kait observed replying to arguments of Luthra, who represents Facebook India Pvt Ltd.
Lawyers of Google defended their point vociferously, on which the court made no comments. “It’s easy for people to say you can use filters. If we were to block the word ‘sex’, for instance, all data on ration cards, passports, etc. will get blocked in one go as the word ‘sex’ figures in all this data,” Google’s lawyer Neeraj Kishan Kaul said. He added that as a search engine, Google only led surfers to sites they’re looking for. “The offending material belongs to the website controlled by the owner of the website. Google has nothing to do with it,” he said. “There are serious issues regarding freedom of speech. We have this freedom in our country unlike a totalitarian regime like China. We are proud we have this freedom.”
The petition in the trial court had been filed by Vinay Rai, a journalist who runs a Hindi and Urdu daily called Akbari from Noida, against which Facebook and Google appealed in the HC on 11 January.
The trial court had on 13 January asked the executives of the 21 social networking sites, including Google, Facebook, Yahoo India and Microsoft, to appear personally on 13 March in the criminal case against them for posting “objectionable content” under charges that include “promoting enmity between groups” and “deliberate malicious acts intended to outrage”. The move came after the Central government’s nod for prosecution of the executives.
Metropolitan Magistrate Sudesh Kumar had directed the government to issue summons to the 10 companies like YouTube, Google, Yahoo, etc. who had submitted before the court that they were headquartered abroad, through the Ministry of External Affairs (MEA). “Let the process (to serve summons) on the accused (foreign-based) be sent through the MEA as per the process,” he had said.
The government, through the Ministry of Information and Communication Technology, had submitted its report in the trial court on 13 January saying there was sufficient material to proceed against the 21 websites for “offences of promoting enmity between classes and causing prejudice to national integration”. “The sanctioning authority has personally gone through the entire records and materials produced before it, and after considering and examining the same, it is satisfied that there is sufficient material to proceed against the accused persons under Section 153-A (promoting enmity between classes), 153-B (assertion prejudicial to national integration) and 295-A (insulting religion or religious belief of any class) of the IPC (India Penal Code).”
“The documents and contents therein are in the nature to instigate enmity between different groups on the ground of religion, race, place of birth, residence, language and doing acts prejudicial to the maintenance of harmony…,” the report said adding that the contents were “provocative” and were “prejudicial to national integration”.
The report said that in view of the documents and confirmation of availability of such contents on websites/search engines, as reported by the Station House Officer of Tughlak Road police station, the sanctioning authority, the government of India, was satisfied that such content was violative of provisions of the Information Technology (Intermediary Guidelines) Rules, 2011. It said that after due application of “judicious mind”, it was found appropriate to grant sanction under Section 196 of the Criminal Procedure Code to proceed against the accused persons in the complaint keeping in view national harmony, integration and national interest.
The trial court had on 23 December ordered the executives of these 21 companies to appear before it and directed the Centre to file a report in the matter before it by 13 January. The order had come just three days after another court in a civil case had restrained the sites, including Facebook, Google and YouTube, from webcasting any “anti-religious” or “anti-social” content promoting hatred or communal disharmony.
When Facebook and Google, represented by Facebook India Online Services Pvt Ltd and Google India Pvt Ltd respectively, approached the HC against the trial court order summoning the representatives of the 21 websites on 11 January, the HC quashed their pleas. Justice Kait had on 12 January instead directed the companies to comply and devise a mechanism to control objectionable content. “If contraband is found in your house, it your liability to take action against it,” Justice Kait had said warning, “Like China, we can block all such websites (who don’t comply)…,” he had said.
According to Rai’s complaint, the alleged contents on these sites were obscene and might lead to “creation of obscene books, pamphlets, papers which can easily be downloaded from these social networking websites affecting the minds of children, were harmful for social harmony and could lead to increase in crime against women also”.
Justice Kait had on 12 January, while hearing petitions by Google and Facebook, also commented on the nature of the content. “At present, it is obscene images of gods and goddesses. Tomorrow, it can be an image of someone in your family posted online. There has to be some control,” he had said.
Google had argued that it was just a distributor of Google Incorporated’s Adwords program. Both Facebook and Google cited exemption from liability and said that they did not control or administer content on the websites but were 100 per cent subsidiaries of their parent companies, based in the US.
While Google agreed that some content was obscene, it expressed inability to install a wholesale filter to remove such content saying, “There are billions of pieces of content being uploaded online. It is simply not practical.” Facebook, however, differed on whether the images and content cited were “obscene and objectionable” and even suggested that some images of gods and goddesses termed obscene were actually “informative”.
Justice Kait, however, had said that liability of content fell on the companies as they were the beneficiaries and did business in India.
Senior lawyer Mukul Rohatgi, appearing for Google, had argued that Google India was a completely different legal entity from Google Inc, which controlled the platform, and so could not remove or upload any content on the website. He instead said that if a complainant cited specifically the material that was ‘objectionable’ or ‘obscene’, it could request Google Inc to remove the ‘objectionable’ web links from its websites.
Facebook and Google also tried to shift the onus of monitoring obscene imagery online on Internet Service Providers such as Bharti Airtel, BSNL and Reliance saying that under their licence conditions, they were liable to block it. Lawyers representing Google also said that Section 79 of the Indian IT Act had granted protection to websites (like social networks) and tinkering with content would remove the protection they had been granted.
However, experts say that under the same Act, the websites are duty-bound to take suo motu action and remove such content if they obtain knowledge about them, and that the Indian IT Act applies to any entity in the world whose services impact a computer system in India.
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