The subject has been intermittently making headlines in India, with a number of politically motivated arrests made under the Information Technology Act’s controversial Section 66a. Causing more confusion, in 2011, the Minister for Communications & Information Technology, Kapil Sibal, made headlines by asking social media intermediaries to take down “objectionable” content.

At the time, the content in question seemed to be mainly objectionable to to the government itself. The content in question seemed to be mainly objectionable to the government alone.

This caused a huge public uproar, and since then Sibal has exercised more caution, though still maintaining that “the country must have an enabling framework — rules and regulations must not come in the way of the growth of the net.”

As well as Index on Censorship, the roundtable in Bangalore brought together a number of actors, including analysts from social media giants Facebook and Google, as well as Change.org, Wikimedia India Foundation, Medianama, Digital Empowerment Foundation, Open Governance India, Knowledge Commons, Alternative Law Forum, Center for Internet and Society, Tactical Tech, researchers from IIM Bangalore and Aziz Premji University. Journalists from The Hindu, Hindustan Times, DNA and smaller media organisations like Oorvani Media, Mahiti and The Alternative also took part in the debate.

The overall discussion centered around a few key issues, the first being whether the law “protects” free speech as it stands today. Many of those present felt that while Section 66a of The Information Technology Act 2000, which protects against “annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will…” has been misused in the past, it needs to be examined from different angles, such as protecting women from online abuse.

While some writers have outright rejected this argument, the Internet Democracy Project released a draft paper on the subject. In it, they revealed that women think of the internet — social media — as “the street” where they can be taunted and abused in a similar manner to real life. In fact, drawing on the experiences of writer Meena Kandasamy and singer Chinmayi Sripada, who have faced violent abuse on social networks, the panel discussed ways to fend off misogyny that did not involve the law. These included using humour, blocking people, ignoring the comments, and even asking or waiting for others to come to your defence.

Interestingly, many women who were questioned for the study revealed that they prefer not to go to their families to report the abuse, for fear that they would be told to stop spending so much time online. The women and their families also said they had little confidence in going to the police with the same complaints.

This led the panel to discuss beyond the validity of the law — and question the role and capacity of the police in enforcing controversial measures like Section 66a. Some felt that 95 per cent of police on the front lines were not even aware of free speech issues, or the law in question, while others believed that police reforms are the way forward.

Some were unsure if they wanted the police to be tech savvy in the future, suggesting that it could lead to more arrests than there are today. It was agreed that there needs to be more research on the law as it functions today, to understand the crucial role the police will play in upholding it, particularly regarding the role the judiciary currently plays.

The question of defamation was also raised, with some panelists believing that there needs to be a distinction between those who have a small number of followers versus those who have a large following. Can the punishment be the same, if the effect of their status update or tweet is not?

Other discussions assessed challenges to freedom of speech at state level rather than national level and whether or not the mainstream media is forcefully supportive of free speech on the internet. The panelists debated the issue of anonyminity, and whether it is the cause or the solution to some of the free speech issues we see today.

An issue was raised surrounding how internet users are not a core constituency for the government right now; a fact reflected in the budget of the Ministry of Information and Technology, which chooses to focus areas such as computer hardware.

Another question circulating the room was whether strict laws such as Section 66a were designed with the intention to shape the internet a certain way, so that future users simply fall into line. The government’s perspective on the internet’s purposes was also explored, examining whether the National Broadband Network, currently being laid out to connect rural India, was viewed simply as a delivery service platform or for two-way communication.

Two questions that prompted considerable debate were “what is the role — actual or desired — of non legal actors such as intermediaries, pressure groups; the public at large” and “what non-legal strategies can we develop to protect free speech and who should implement such strategies?”

Some suggestions were to try out a “naming and shaming” site or Tumblr account for hate speech, although there were doubts as to how effective it would be. Other panelists advised that intermediaries could reveal more data that could save the government from taking drastic measures — for example, if a certain video was not being heavily viewed from within India, then the government would not feel the need to censor/block a website as it does now.

It was clear that civil society members and even the intermediaries are grappling with the same questions as the government. While a section of Indian society is firmly opposed to laws like Section 66a, there are discussion platforms to help understand how to operate within the constraints of the law.

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Guidelines issued by the Crown Prosecution Service today could give greater weight to free speech online by establishing a high threshold for prosecutions for offensive or abusive comments made on social networking sites.

Director of Public Prosecutions, Keir Starmer, has expressed concern over “the potential for a chilling effect on free speech” for prosecuting people who send communications that are “grossly offensive, indecent, obscene or menacing.”

Starmer said that a prosecution was unlikely to be necessary, proportionate or in the public interest if the communication were “swiftly removed, blocked, not intended for a wide audience or not obviously beyond what could conceivably be tolerable or acceptable in a diverse society which upholds and respects freedom of expression.”

Prosecutors will now be required to differentiate between such messages and communications that amount to credible threats of violence, a targeted campaign of harassment or those which breach court orders.

The age and maturity of a suspect will also need to be taken into consideration, particularly if they are under 18. The guidelines state that prosecutions of children would rarely be in the public interest, as children may not appreciate the potential harm of their communications.

“We welcome these guidelines and hope that they will be used to end the excessive prosecutions that we have seen in recent years,” said Index CEO, Kirsty Hughes. “In a plural society that respects free expression, there is no right not to be offended, and these guidelines acknowledge that.”

The UK has seen a recent rise in social media prosecutions. In October, Lancashire man Matthew Woods was sentenced to 12 weeks in prison for making “despicable” jokes about missing five-year-old April Jones on Facebook, having pleaded guilty to “sending by means of a public electronic communications network a message or other matter that is grossly offensive” (section 127 (1)a of the Communications Act 2003). Also in October, Azhar Ahmed, who posted on Facebook that British soldiers should “die and go to hell”, was given a community order and a fine.

Paul Chambers, the man at the centre of the Twitter Joke Trial who was convicted in 2010 of sending a “menacing communication” after jokingly tweeting that he would blow an airport “sky high”, told Index: “I’m far more heartened than I expected to be. All the noises coming out of the early discussions suggested that lessons had not been learned, but it appears the DPP has finally taken a step in the right direction.”

He added:

I’d like to know, however, are how this is to be applied to arrests, given that this is more geared towards prosecutions. Users shouldn’t face arrest for the same reasons they shouldn’t face prosecutions in these situations. Secondly, given that the guidelines make mention of users who immediately take down the posts and show genuine remorse, where does this leave Azhar Ahmed, who did exactly that yet still finds himself with a criminal conviction. There should be moves to rescind this immediately.

The guidelines are open to public consultation, which is available on the CPS website and closes on 13 March 2013.

More on this story:

Read the guidelines in full here

Graham Linehan on the Twitter Joke Trial

Padraig Reidy: We cannot keep prosecuting jokes

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