IN a move that has been decried by a large section of activists, lawyers and the media, the Department of Telecommunications (DoT) on February 14 issued instructions to Internet service providers (ISPs) to block access to 78 URLs (uniform source locators, or Web addresses) from India, of which 73 have content allegedly defamatory to the Indian Institute of Planning and Management (IIPM), an educational institution. The blocking of the sites, which has been done following instructions from a district court in Gwalior, has brought to the fore the appropriation of established legal procedure by people in positions of power in collusion with the government to restrict the freedom of expression on the Internet. In its order, which was leaked and first published by the news website Medianama on February 15, DoT did not notify the affected parties and did not disclose the court order on the basis of which the blocking was done.
The DoT’s action has also raised legitimate questions about the lack of transparency in the process of regulating content on the Internet. An alarming trend of using legal procedures to intimidate, threaten and eventually curb diverse forms of dissent circulating on the Internet has emerged in the recent years. The rationale for these actions is often not very clear. In recent times, alleged threats to “national security” and “communal harmony” have been cited as reasons for imposing such bans. However, the act of blocking websites has only reinforced curiosity about the content and facilitated its circulation through proxy means.
The DoT’s order covers URLs of news portals that contained reports relating to the IIPM published in Outlook , Careers360 , The Times of India , Firstpost, Rediff, The Indian Express , The Economic Times , The Wall Street Journal, The Caravan and other online publications. The list also includes eight URLs from the spoof news website Faking News. A URL from the news website Unreal Times was also to be blocked. According to the Medianama report, the blocked sites include blog posts from 2005 and 2006 that were critical of the IIPM.
This case of blocking content follows the tradition of secret censorship used by the government in recent years to clamp down on dissent in the domain of the Internet. Speaking to Frontline , Apar Gupta, a Delhi-based lawyer who works on cyberlaw and free speech issues, said: “In this case though the DoT was acting under the direction of the court, the order under which the list of URLs was blocked was not disclosed. This lack of transparency in blocking content on the Internet has been a consistent feature. There is an in-built system of secrecy in the manner in which Internet censorship is carried out, compared with the banning of a book, which requires a public notification.”
There have been instances of blocking content on the Internet that have led to large-scale, clampdowns even on innocuous content. Shivam Vij, co-founder of the political blog Kafila, highlighted the arbitrary nature of Internet censorship. “In 2003, DoT asked Indian ISPs to block the URL of a Yahoo group, Kynhun, run by a militant group in Meghalaya. The ISPs did not have the technical knowhow to block a single URL, and Yahoo groups as a whole were blocked for about a week. In 2006, in the process of blocking 26 URLs with Islamophobic and Zionist content, the ISPs blocked blogspot as a whole. The trend has pointed to a clandestine and secretive censorship carried out by the government, which leads to the implementation of a blocking order without giving the presumed guilty a chance to defend themselves. This is also a method of curbing public debate on the issue,” Vij said.
Commenting on the nature of the present order, Snehashish Ghosh of the Centre for Internet and Society said: “Multiple URLs from the same blog have been blocked. The list of URLs in the leaked order published by Medianama contains a lot of repetition. The entries in the block order from the links 11 to 25 and 43 to 56 are, in fact, exactly the same links.”
Defamation and interim injunctions The present case points to an alarming trend of the use of interim injunctions to curb dissent on the Internet. This trend is accentuated by the use of the instrument of defamation to threaten and intimidate people expressing dissent.
Defamation is defined both as a criminal and as a civil offence in India. Sections 499 and 500 of the Indian Penal Code, 1860, recognise the offence of defamation where it can lead to criminal sanctions. Section 499 defines what constitutes defamation. When defamation is deemed a civil wrong, the courts have the power to provide restraining orders and monetary relief to the aggrieved party. The ingredients constituting the civil relief are not contained in a statute by itself but are decided by the courts on the basis of existing case laws and precedents.
Gupta explained: “Though the substantive law for deciding defamation cases is balanced, the procedure by itself is problematic, which leads to a large number of interim injunctions being filed in such cases.”
He highlighted the reasons for a large number of cases being filed for interim injunctions. “The proliferation of interim injunctions is because of the large pendency of defamation cases. As the original case drags on for several years and the plaintiff is unable to obtain the money for which he has sued the defendant, he resorts to [filing for] an interim injunction. The courts have to exercise a certain degree of introspection and restraint when granting an interim injunction in such cases.”
A series of interim injunctions has been issued by the courts in recent times to temporarily stay the circulation of allegedly defamatory material. Maheshwer Peri, chairman and publisher of Careers360 , told Frontline : “I have multiple cases filed against me by the IIPM management in Uttarakhand, Guwahati, Gurgaon and Delhi for publishing allegedly defamatory content in the last four years. A preliminary injunction issued by the court is a gag order of sorts. Many petitioners do not want to see the case reaching its conclusion and use the interim injunction to block content that is critical of their activities. An interim injunction issued by the courts should not become permanent because of the duration of it.”
The IIPM management had got an interim injunction from the Delhi High Court in March 2009, which restrained the publication of an allegedly defamatory article against the IIPM plaintiff in Outlook . The IIPM management had alleged that the articles published in the June 24, 2008, and July 7, 2008, issues of the magazine were “aimed at tarnishing the image of the plaintiff institute”. However, in June 2009, the interim injunction was considerably modified by the Delhi High Court, which said an interim injunction should not be treated as “preventing the defendants from carrying out any further publication in relation to affairs of the plaintiff institute”. However, it also instructed Outlook to publish “counter-view of the plaintiff on any such publication in the next issue” and also to give it “same prominence in relation to font size and spacing”.
In another case, Kishorendu Gupta vs Delhi Press Patra Prakashan , a district court in Silchar, by its order dated April 12, 2011, passed an ex-parte ad-interim injunction against The Caravan magazine and its publishers. Apar Gupta, in an analysis of this case in India Law and Technology Blog, observed: “The case was not filed by IIPM directly but through one Kishorendu Gupta, who was shown to be an affiliate of IIPM in some way. Both IIPM and Arindam Chaudhuri [director of the IIPM think tank] as well as the defendants were originally resident in Delhi; however, to make matters a little difficult the case was filed in a remote district, which naturally lacked territorial jurisdiction.” In this case, the publishers approached the Supreme Court, which stayed the interim injunction and transferred the case to Delhi.
In another significant judgment, Pathfinder Publishing Pvt Ltd and others vs The State and another , the Uttarakhand High Court had ruled on a criminal defamation complaint filed by the IIPM against the publishers of Careers360 . The IIPM management had alleged defamation on the basis of an article in Careers360 which stated that the former had made false claims of a tie-up with the University of Buckingham. In this instance, the court had said that “the criminal proceedings, which are presently pending against the petitioners, are nothing but an abuse of process”. The court had further noted, “A truth spoken for public good can never be called defamatory”. Interestingly, the article in Careers360 , titled “IIPM only best in claims”, has also been blocked by the recent order of the Gwalior court.
Killing freedom of expression The recent case of blocking of content by the Gwalior court is shrouded in secrecy. The order is not yet available in the public domain. A policy associate with the Centre for Internet and Society said: “The block seems to have been effected under Rule 10 of Section 69A of the IT [Information Technology] Act.”
The associate added: “The courts are expected to exercise utmost caution in awarding an interim injunction. They generally follow the Bonnard rule in a defamation case, which states that an interim injunction should not be awarded unless a defence of justification by the defendant was certain to fail at the trial level. The court should have taken into consideration the degree of harm to be done to the aggrieved party in case an injunction was not granted.”
Shivam Vij too felt that the injunction was unfair, “The affected party was not even allowed the right of representation. This is a clampdown on the freedom of speech on the Internet.” Earlier, in the Tata Sons Ltd vs Green Peace International case in 2011, the Delhi High Court had ruled against the award of an interim injunction for the removal of defamatory content.
The trend of using defamation as a tool to gag dissent is particularly inimical to the freedom of expression in the blogosphere by the common man, who does not have the means to fight legal proceedings and often gives up in the face of intimidation and threats of defamation. Vij said: “Freedom of expression will become the sole preserve of the rich and the powerful if this trend persists.” Apar Gupta, in his analysis of the trends of defamation litigation, observed: “A common feature of such notices is that they contain exceedingly high amounts claimed as damages for defamation. This is a regular feature of defamation notices these days—high amounts often not corresponding to the eventual filing of the cases. The amount in a sense pressures the author into compliance and also chills other speech.”
The suppression of content, however, does not completely obstruct the circulation of the content. Snehashish Ghosh explained this phenomenon: “It is called the Streisand effect, as the blocking of content on the Internet has the unintended effect of exponentially increasing curiosity of the public about the content.”
The present case is also intimately linked with a larger public interest as one of the blocked addresses is that of a notice from the University Grants Commission highlighting the unrecognised status of the IIPM. The Delhi High Court, in an order dated June 27, 2008, had stated: “UGC shall, however, be free to extend awareness by way of advertisements or even through their website that the courses offered by the writ petitioner are not recognised by the UGC.”
IIPM’s version In an e-mail response to Frontline , Arindam Chaudhuri provided a detailed explanation regarding the importance of restrictions on the freedom of expression.
On why the case was filed in Gwalior, Chaudhuri said: “The case was filed by one of our channels there and well within the jurisdiction of the Hon’ble Court. Having said that, I find it an immature media question being picked up.”
About the content of the blocked URLs, Chaudhuri said: “No, IIPM did not get a chance to look at the content of all the URLs filed there. We had no clue about the satire sites and non-defamatory news pieces. We have now been impleaded and we will not contest anything non-defamatory like these particular ones. However, every defamatory piece will have to necessarily go from the Net as per the law of the land and it will be a very strong fight against them.”
On whether the IIPM was abusing legal procedures to censor content criticising it, a claim made by some lawyers and free speech activists, Chaudhuri said: “Having a media house [Planman Media] myself, there is no such section of lawyers that I am aware of than some vague mention in a supposedly google-lobbied press release that’s being thrust down some media. There is nothing more important in a democracy and in the Indian Constitution than the right to dignity of an individual and that’s of prime importance and far, far more important than the right to free speech. Let me hear a legal expert deny that. I have no respect for any opinion that confuses free speech with right to defame. And I find it so utterly ridiculous that there is any confusion on such basic things which any non-intellectual would also understand, leave alone intelligent lawyers who have genuinely cleared a law exam. It’s a court order and legal. And IIPM has no problems with criticism but defamation will be heavily contested.”
Larger implications on Internet freedom This issue, along with the frequent use of interim injunctions to curb free speech, has raised fears of an emerging trend of Internet censorship in India. Siddharth Narrain, an advocate and legal researcher with the Alternative Law Forum, said, “There is a need for protective mechanisms in legal procedure to ensure that trial courts do not repeatedly do this. The language in the existing IT Act is too broad. The Internet rules go beyond the “reasonable restrictions” provided by Article 19(2) of the Constitution. We need to encourage more debate and discussion on online content so as to go beyond a culture of removing and blocking.”
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