Google and Facebook In Indian Cyber Law Tangle

Internet intermediaries in India are required to follow certain due diligence requirements under the cyber law of India incorporated in the information technology act, 2000 (IT Act 2000). If they fail to observe such cyber due diligence, the safe harbour protection available under the IT Act 2000 is lost.

While pre screening of contents and expecting Internet intermediaries like Google, Facebook, Microsoft, Yahoo, YouTube, Linkedin, etc to keep a vigil watch upon the Internet is simply unreasonable and unrealistic yet asking Internet intermediaries to block or remove offending contents, after they have been duly notified in this regard, is a genuine need and reasonable demand.

Such removal or non removal of objectionable and offending contents cannot be considered to be right or wrong as per Internet intermediaries or Indian government’s viewpoint. Rather an independent analysis of the same must be made by courts keeping in mind the facts and applicable laws.

Further, there must be uniformity in application of Indian laws to all in similar situations. If there is a discrimination against foreign companies and favour for domestic companies, this undermines the confidence and trust of online community world over. For instance, recently Reliance and Airtel blocked websites in India whose legality is still doubtful. Department of information technology (DIT) must investigate such blocking in order to rule out favoritism for domestic companies.

It has also been reported that social media websites users in other states of India are planning to engage in legal battles in such states to access any blockage of such websites. Legally they can do so but in the long run such a move would be counter productive.

Companies like Google and Facebook would appear today before the Delhi High Court to prove their innocence in the recently filed criminal case before a trial court. In fact, the trial court has asked the representatives of the parent companies to appear before it and face the trial.

Clearly, the argument of being a subsidiary has kicked back and now the parent company has to face the trial. Even if the subsidiaries are exempted from any criminal liability, the liability of parent company is now emerging as an even bigger issue. Let us see how Delhi High Court would decide the case today.

Indian Government Can And Should Block Offending Websites

Lots of hue and cry has been seen these days due to the stern warning of Delhi High Court to block websites that do not comply with Indian laws and legal demands arising out of the same. It seems the mainstream media is not understanding the situation and just hysterically reporting the matter for the sake of reporting.

The better news is that the Indian government has sanctioned prosecution of websites and social networking platforms like Facebook, Google, Microsoft and Yahoo India over objectionable content on their sites. Now the question arises is blocking of Facebook, Google, Microsoft, Yahoo, etc in India is required? Can Indian government block such websites and should it block such websites?

The answer is very simple. Yes it can and in fact Indian government should block all such websites that do not comply with Indian laws as in force. Few of us already believe that such websites must be blocked in India if they violate copyright and other laws of India and fail to comply with them despite them being suitably notified.

In fact, Indian government has already started the process in this regard. Filing its reply in the trial court the government gave its nod to invoke serious charges against the accused websites.

Meanwhile, the trial court on Friday adjourned till March 13, the hearing in the case of 21 social networking sites allegedly hosting objectionable content. The court has directed the external affairs ministry to serve the summons issued to foreign-based social networking sites and websites. The efforts of trail court are worth praising and let us hope that these efforts would come out with a concrete result.

So what is the law of India in this regard? According to Praveen Dalal, managing partner of law firm Perry4Law and leading techno legal expert of India, Websites Blocking in India by Judiciary must be Just, Reasonable and Fair. There should not be an “Unreasonable” or “Casual Approach” towards Blocking of Websites in India by Indian Courts. If Websites are “Violating” Laws of India and they have been “Notified” to this effect and still they “do not Remedy the Situation”, then the Safe Harbour Protection under Indian Information Technology Act, 2000 is “Lost” and such Websites/Owners can be Prosecuted in India, informs Praveen Dalal.

Thus, as far as prosecution of these accused websites are concerned that is perfectly legal as per Indian laws. Now let us examine the desirability of blocking of such websites if they do not comply with orders of Indian courts. Websites can be “Legally Blocked” in India if they fail to “Comply” with Court’s Directions or Directions of Indian Government Agencies like Computer Emergency Response Team, India (CERT-IN) that are duly ordered in this regard by a Designated Officer, informs Praveen Dalal. So even blocking of such websites is justified and legal in India.

I am sure when the Delhi High Court would hear the accused websites lawyers in next hearing; the offending contents would be already removed by these websites. There was no need to drag the matter to such an extent and the offensive material should have been deleted earlier. All that was required to be seen was whether the offending material in question violates any law of India. If it does the material must be removed after the communication in this regard is duly made to the concerned website.

You have a right to speech and expression but you cannot defame others and post pornographic materials upon sites. The poster of such material is definitely liable for punishment but even the Internet intermediaries like websites and social media websites loose their safe harbour protection if they fail to exercise due diligence.

There is nothing new in this position as even US laws like Digital Millennium Copyright Act (DMCA) 1998 do not extend safe harbour protection if the internet intermediary fails to observe due diligence. When these websites are following similar norms, rather more stringent one, in US why they are reluctant in doing so in India. The entire episode has shown just one thing that these websites do not wish to follow Indian laws and if they cannot be successfully tried in India, blocking of such websites is a good option.

I am a firm believer of civil liberties in cyberspace and am against unreasonable and illegal technology control, e-surveillance, Internet censorship and websites blocking, but i also believe that laws of various countries must be followed by all as well. Thus, Indian government and courts can and should block these websites in India if they keep on ignoring Indian laws anymore. Of course, those who wish to access such websites in India can still access the same through anti censorship mechanism.