In­dia pur­su­ing on­line cen­sor­ship

Firms worry pro­posal re­quir­ing re­moval of un­law­ful con­tent is too loosely de­fined.

Los Angeles Times - - THE WORLD - By Neha Thi­rani Ba­gri Thi­rani Ba­gri is a spe­cial cor­re­spon­dent.

MUM­BAI, In­dia — The In­dian gov­ern­ment is con­sid­er­ing reg­u­la­tions that would re­quire on­line so­cial me­dia plat­forms to take down con­tent con­sid­ered un­law­ful or face sanc­tions.

The pro­posed reg­u­la­tions de­fine as un­law­ful speech that is defam­a­tory, in­de­cent, im­moral, hate­ful or threat­en­ing to the pub­lic or­der. The leg­is­la­tion comes amid a pro­lif­er­a­tion of mis­in­for­ma­tion on so­cial me­dia. False mes­sages and videos about child kid­nap­pers last year went vi­ral on What­sApp in In­dia, lead­ing to mob vi­o­lence and the deaths of at least 20 peo­ple.

At the same time, le­gal ex­perts, in­ter­net ser­vice providers and on­line plat­forms are con­cerned that the rules are too loosely de­fined and con­tend that com­pa­nies are ill-equipped to de­cide whether spe­cific con­tent vi­o­lates In­dian laws. More­over, they say, the pro­pos­als would do al­most noth­ing to halt the dis­sem­i­na­tion of so-called fake news, the osten­si­ble pur­pose of the changes.

Amend­ments to the In­for­ma­tion Tech­nol­ogy Act would in­clude re­quire­ments that all on­line plat­forms with more than 5 mil­lion users have a reg­is­tered of­fice in In­dia with a rep­re­sen­ta­tive who would re­spond to gov­ern­ment queries. In ad­di­tion, the firms would be re­quired to re­tain user data for 180 days or longer if de­manded by a gov­ern­ment agency.

Weeks ear­lier, the gov­ern­ment au­tho­rized 10 law en­force­ment, in­tel­li­gence and tax agen­cies to in­ter­cept in­for­ma­tion gen­er­ated, trans­mit­ted, re­ceived or stored on any com­puter, smart­phone, tablet or other com­put­ing de­vice, if ap­proved by state or fed­eral au­thor­i­ties. Ad­vo­cacy groups have filed pe­ti­tions chal­leng­ing the move in court.

Le­gal ex­perts warn that al­low­ing gov­ern­ment agen­cies such un­fet­tered ac­cess to data would cre­ate a sur­veil­lance in­fra­struc­ture that lacks trans­parency and ac­count­abil­ity, and could vi­o­late a 2017 In­dian Supreme Court judg­ment rec­og­niz­ing pri­vacy as a fun­da­men­tal right.

Seen to­gether, the moves would rep­re­sent a sharp es­ca­la­tion of ef­forts to in­ves­ti­gate and cen­sor on­line speech in the world’s largest democ­racy, an­a­lysts say. The reg­u­la­tion ef­forts have even drawn com­par­isons to In­dia’s neigh­bor, China, which has one of the most re­stric­tive in­ter­net and so­cial me­dia poli­cies in the world.

Apar Gupta, a lawyer and ex­ec­u­tive di­rec­tor of the In­ter­net Free­dom Foun­da­tion, a New Delhi-based ad­vo­cacy group, com­pared the pro­pos­als to laws in China that re­quire global in­ter­net com­pa­nies to change core prod­uct fea­tures — such as end-to-end en­cryp­tion that pro­tects users’ pri­vacy — or be shut out of do­ing busi­ness in the coun­try. Face­book, Twit­ter and What­sApp are among the global so­cial me­dia and mes­sag­ing gi­ants that are blocked in China.

“The new pro­pos­als re­quire proac­tive fil­ter­ing and clean­ing of on­line con­tent by on­line plat­forms,” Gupta said. “This has strik­ing sim­i­lar­i­ties to China’s de­mands to­wards global plat­forms to com­ply with its reg­u­la­tory re­quire­ments where the le­gal­ity of speech to a large de­gree is de­ter­mined by cul­tural sen­si­tiv­ity.”

Prime Min­is­ter Naren­dra Modi’s gov­ern­ment, which is push­ing the changes de­spite op­po­si­tion from po­lit­i­cal ri­vals, has given the pub­lic un­til Jan. 28 to com­ment on the leg­is­la­tion. It is un­clear when the pro­pos­als would be en­acted.

Tech com­pa­nies have sent rep­re­sen­ta­tives to meet with gov­ern­ment of­fi­cials in New Delhi to seek clar­ity on the pro­pos­als. Through a rep­re­sen­ta­tive, Twit­ter said it “look[ed] for­ward to con­tin­u­ing en­gage­ment with In­dian gov­ern­ment ... as they seek in­put from the tech in­dus­try with re­gards to draft reg­u­la­tions.”

Face­book, What­sApp and other so­cial me­dia gi­ants have de­clined to com­ment.

In­ter­net com­pa­nies are fac­ing grow­ing de­mands from gov­ern­ments world­wide to fil­ter con­tent for copy­right in­fringe­ment, hate speech and child pornog­ra­phy. The Euro­pean Union is con­sid­er­ing a pro­posal that would re­quire web­sites to mon­i­tor all con­tent up­loaded in or­der to swiftly take down any­thing that could in­cite acts of ter­ror­ism.

The de­mands come as Face­book, Twit­ter and other plat­forms have been ac­cused of tak­ing in­ad­e­quate steps to con­trol the spread of hate speech and fake news that has been linked to deadly vi­o­lence in In­dia, Sri Lanka, Myan­mar, Mex­ico and other coun­tries.

The In­dian gov­ern­ment has ar­gued that it is the re­spon­si­bil­ity of so­cial me­dia com­pa­nies to po­lice their plat­forms for speech that “spread[s] in­cor­rect facts” or could in­cite vi­o­lence. In­for­ma­tion Tech­nol­ogy Min­is­ter Ravi Shankar Prasad said in July that if com­pa­nies didn’t take prompt ac­tion against such mes­sages, they could be held le­gally ac­count­able.

“The in­stances of mis­use of so­cial me­dia by crim­i­nals and anti-na­tional el­e­ments have brought new chal­lenges to the law en­force­ment agen­cies,” the gov­ern­ment said in a state­ment an­nounc­ing the pro­pos­als last month.

Face­book, Twit­ter and other plat­forms have long re­moved hate speech and other posts that vi­o­lated their guide­lines, but in­dus­try ex­perts cau­tion that hate speech is of­ten a nu­anced prob­lem re­quir­ing an ex­am­i­na­tion of the con­text as well as the mes­sage.

“It can­not be up to a pri­vate player to make a de­ter­mi­na­tion on whether cer­tain kinds of con­tent is law­ful or not,” said Ne­haa Chaud­hari, pub­lic pol­icy lead fo­cus­ing on tech­nol­ogy and in­no­va­tion at Iki­gai, a New Del­hibased law firm. “That is a ques­tion for the courts.”

If reg­u­la­tions are ap­proved, ex­perts worry that it would en­cour­age com­pa­nies to err on the side of cau­tion and pre­emp­tively cen­sor mes­sages.

“What this ap­proach would trans­late into in the minds of these com­pa­nies is, ‘Take it down first and let’s think later, be­cause we would rather avoid the li­a­bil­ity,’ ” said Amba Kak, pub­lic pol­icy ad­vi­sor at Mozilla, the non­profit or­ga­ni­za­tion be­hind the web browser Fire­fox.

Ra­jesh Ch­haria, pres­i­dent of the In­ter­net Ser­vice Providers Assn. of In­dia, an in­dus­try group, said the gov­ern­ment needs to come up with a stricter def­i­ni­tion of un­law­ful speech.

“Oth­er­wise ev­ery pri­vate com­pany will make their own def­i­ni­tion,” he said.

The pro­posed reg­u­la­tions would also re­quire plat­forms to trace the ori­gin of mes­sages that con­tain un­law­ful con­tent. Le­gal ex­perts say that would re­quire plat­forms such as What­sApp to break the end-to-end en­cryp­tion of mes­sages that en­sures user pri­vacy and makes the mes­sag­ing app so at­trac­tive to many.

In­dia has drawn con­sid­er­able flak for fail­ing to up­hold free­dom of speech, par­tic­u­larly on­line. In a 2018 re­port by the U.S. non­profit Free­dom House that rated in­ter­net free­doms in dozens of coun­tries, In­dia scored 43 on a 100-point scale, where zero is most free.

The re­port also found that In­dia leads the world in in­ter­net shut­downs, with fed­eral, state and lo­cal au­thor­i­ties or­der­ing ser­vice providers to re­strict cell­phone, mes­sag­ing and other ser­vices at least 96 times from Jan­uary to mid-Au­gust 2018. In­dian laws give au­thor­i­ties the power to re­strict in­ter­net ac­cess to main­tain pub­lic or­der.

Over the last two years, at least 50 peo­ple were ar­rested across In­dia for posts on so­cial me­dia, ac­cord­ing to Mint, a busi­ness daily.

Kishorechan­dra Wangkhem, a tele­vi­sion jour­nal­ist in Ma­nipur state, was ar­rested in Novem­ber and later sen­tenced to a year’s im­pris­on­ment for up­load­ing Face­book videos crit­i­cal of the state gov­ern­ment and call­ing its leader a “pup­pet” of Prime Min­is­ter Modi.

Un­der the new guide­lines, Face­book would have had to en­sure that the videos were swiftly taken down or risk pros­e­cu­tion.

Le­gal ex­perts worry the reg­u­la­tions would do lit­tle to stop the spread of fake news — the gov­ern­ment’s stated pur­pose for propos­ing the changes — but rather in­fringe on dis­sent. Mis­in­for­ma­tion is not il­le­gal in In­dia and would not be flagged for re­moval.

With na­tional elec­tions sched­uled for this year, ac­tivists worry that Modi’s pow­er­ful Bharatiya Janata Party, which con­trols the cen­tral gov­ern­ment, could put pres­sure on com­pa­nies to cen­sor crit­i­cal con­tent. Last year, in elec­tions in the south­ern state of Kar­nataka, the BJP and ri­val po­lit­i­cal par­ties cir­cu­lated false in­for­ma­tion on What­sApp and used it to fan com­mu­nal ten­sions.

By not ad­dress­ing fake news, the leg­is­la­tion “is miss­ing the woods for the trees, be­cause the un­der­ly­ing prob­lem will not be ad­dressed,” lawyer Chaud­hari said.

Money Sharma AFP/Getty Images

THE GOV­ERN­MENT of In­dian Prime Min­is­ter Naren­dra Modi, left, with Nor­we­gian coun­ter­part Erna Sol­berg, wants in­ter­net com­pa­nies to po­lice for speech that “spread[s] in­cor­rect facts” or could in­cite vi­o­lence.

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