“Web logs are the prized platform of an online lynch mob spouting liberty but spewing lies, libel and invective. Their potent allies in this pursuit include Google and Yahoo.” So wrote Daniel Lyons some years back, in a classic Forbes cover story titled 'Attack of the Blogs'. As the Senior Editor of Forbes then, Dan was simply expressing his extreme frustration at the utter nastiness of the Internet community, which seemed to have a super-majority of calumnious commentators, who thrived on the faceless protection that the net provided in order to leave shamefully slanderous and defamatory comments left, right and center.
Cut to the present, and the situation has sickeningly worsened. Not just globally, but perhaps more so in the Indian perspective. Take a quick ‘surf’ across various pages of the Internet and it would not be hard for one to realise that every fourth or fifth page is filled up with some or the other pejoratively aberrant content against respectable individuals and companies posted by untraceable, incognito and spiteful writers. From four-letter words to bigoted slanders to sexist comments to racist attacks to clearly inflammatory and libelous material, the net is now so completely full of criminally damnable statements that one starts wondering why the authorities haven't woken up to act on this issue with the greatest speed. In case of profiles of meritorious organisations or individuals, this ratio of deprecating content put up by abusive users often shoots up to almost every second page.
Internet hooliganism, as I describe it, is the most contemptible character of the modern technology era, where it doesn't matter how respectable you are or what your organisation is, or how you sincerely worked throughout the past many decades – irrespective of all that, you will be attacked anonymously with false statements that will make you cringe for a lifetime and with almost no hope for any recourse. The question is, why is all this not controllable? When a person talks negatively and falsely about you in public, the law provides for such a person to be immediately pulled up by both law enforcement and judicial authorities. Then why cannot the same rules be applied over the Internet, when someone posts flagitious and gutter comments about you or your corporation? Because of three reasons, which go hand in hand.
First, as I mentioned earlier, is the wicked anonymity that the web provides to Internet posters, which gives them protection from being identified and prosecuted. Second is the hand-in-hand conspiratorial connivance of Internet companies like search engines, social networking sites, blog site hosts and even ISPs (intermediaries, in summary) that refuse to delete or block out the execrable comments and links and also refuse to confirm the identities of the anon-posters. Google, Wikipedia, Twitter... all of them fall within the same indecent category of companies. Third has been the unfortunate legal protection given till now to such intermediaries, who apparently could not be held responsible for material that others were posting on their websites (for example, in the US, Section 230 of the Communications Decency Act has protected intermediaries from liability for defamatory content posted on their sites, even if they allowed the content to remain despite having been notified about the same).
In all this, the search engine giant Google clearly comes off as one of the worst offenders of them all. Being the search engine that a huge majority of net users employ across the world, Google has played its cards on an extremely unethical front and could well now be called the biggest slander supporting media house in the world by its refusal to instantly recognise and remove perfidious and malicious content and to bring the irresponsible posters and commentators to task. It's no secret now that Google marketing heads vying for advertising budgets of various corporations go to these same corporations calling themselves the “new media”.
At the same time, they conveniently forget that 'media' ought to be responsible and should not hide behind falsely promoted aspects of freedom of speech. Then too, freedom of speech has never meant freedom to slander others through the public media. But for Google, the charm of attracting more users to its search engine by allowing them limitless access – and thereby to earn more money through advertising from its clients – is clearly more than the morality of going beyond the call of the law and removing objectionable content on their own rather than waiting for court cases to take their course.
That means that whether you find child porn links on Google or you find links that trash products, companies or individuals, Google can still continue to claim to be the high-ground innocent party that, like Alice in Wonderland, has no idea that such stuff is being archived in their search engine links.
A well-known cardiologist of Jaslok Hospital, Mumbai, Dr. Ashwin Mehta, took Google to court, after he discovered that there were over 20 defamatory blogs on its website that accused him of professional misconduct, which greatly damaged his reputation and work. He sought Rs.10 lakh in damage. When summoned after an investigation by the Cyber Cell of the Mumbai Police, Google India’s lawyers filed an affidavit in the Bombay High Court on June 23, 2009, claiming fantastically that Google India had no connection with Google Inc., USA, and that they worked separately. And because user agreements for the company’s blogging service (Blogger) was signed by Google USA, the Indian arm could not be held responsible for any harm caused to any party through the company’s Blogger service.
Also, the company said that a blog-hosting company cannot all the time keep track of all the blogs posted on the site. In other words, it was a case of posting content in the name of freedom of expression, without accountability. Such saneness-testing arguments have not been something new for Google. Even as recently as on August 19, 2008 (the very year when Dr. Mehta had first filed his complaint), the Mumbai High Court had ordered the company to reveal the identity of a blogger who went by the pen-name “Toxic Writer”. The blogger had criticised a Mumbai-based construction company called Gremach Infrastructure Equipments & Projects Ltd., in a blog dated February 26, 2008. The court’s final verdict was that defamation (going by the article posted) was apparent and that Google should reveal the name of the real person within four weeks of the order. Google’s excuse was the same as in the case of Dr. Mehta’s case. It declined to reveal the blogger’s name, though it immediately removed the blog titled ‘Toxic Fumes’. The blogger’s identity remains unknown till date. There are quite a number of other cases related to postings on Google’s sites that have been lodged in courts across India, with plaintiffs ranging from companies to individuals.
Clearly, if Google's court arguments sounded over-the-logical-top to you, don't be worried, there are countries that have stopped buying such irrational, immoral and irresponsible defence statements by Google. In April 2011, the Court of Milan upheld an earlier judgment holding Google liable for libellous 'search suggestions'. The order was passed after a court case was filed by an individual whose name-search on Google threw up search suggestions that included the terms truffatore ("conman") and truffa ("fraud"). In March 2011, the Agence France Press reported that French courts had “found Google guilty of four counts of copyright breach, ordering the Internet search giant to pay out hundreds of thousands of Euros.” Strangely, Google France could not perhaps hide under the imbecilic argument that Google France had no control over Google US search results.
In fact, countries like Australia have historic court rulings that emphasize how websites can be sued for online defamation even if they are based in other nations. And with respect to even the current legal protection that search engines like Google enjoy in the US, Emily Bazelon, the Truman Capote law-and-media fellow at Yale Law School, wrote in The New York Times in April 2011, “There’s no question that the Web would be a more civilized place if the US Congress changed Section 230 to hold online service providers and Web sites liable for posts... (or Google liable for indexing them) if they have clear notice about what’s wrong with the content and still disseminate it.”
But Google is only one side of the story. There are others in the same league and perhaps as worse. One of the infamously notable ones is Wikipedia, which touts itself as the free encyclopaedia that anyone can edit – a metaphor for allowing any anonymous author to post details about any and every topic. And as the Wikipedia link almost always comes on the first page of any search engine's results, the nuisance value Wikipedia and its army of unidentifiable contributors command is immense and as dangerous.
Stories of even Wikipedia being taken to court are well known. Recent years have seen temporary bans on Wiki pages from various governments, including the Dutch and German ones. UK’s largest internet service provider banned Wikipedia pages containing child pornography a few months ago. The Australian government has blacklisted Wikipedia pages permanently along with “child porn sites.” University of California professors refuse references to Wikipedia. BusinessWeek has called Wikipedia “awash in controversy.” New York Times, US government’s patents office and various other highly credible entities have official policy documents against Wikipedia. US Senators like Ted Stevens in Alaska have introduced bills to pull Wikipedia out of schools and libraries. The US Appeals Court now has an official ruling against Wikipedia sources being quoted.
On April 4, 2009, Financial Times certified Wikipedia as “hilariously unreliable free-for-all.” USA Today’s founding editorial director John Seigenthaler Sr went to the courts when his Wiki biography concocted up that he was connected with the assassinations of both John F. Kennedy and his brother Bobby Kennedy. While Wharton writers confess, “It's unclear how the Wikipedia model will evolve...,” Harvard professors cast more caustic doubts saying, “No, is the short answer here [to whether Wikipedia transfers to a good corporate environment model].” When San Francisco-based Jay Walsh, Wikimedia Foundation’s Head of Communications, was questioned by TSI in May 2011 (read the full interview later in this article) on the ongoing defamation of personalities on Wikipedia, and on the concept of Internet hooliganism, he replied, “Our project strongly supports free speech, but it also represents the power of communities to remove vandalism, protect quality information, and generally respect the importance of having high quality, non-vandalised information. We're proud of that reputation.” In fact, as recently as on May 9, 2011, UK-based billionaire Louis Bacon won a case in a London High Court, to force three websites to reveal the identities of the bloggers who were posting besmirching remarks online. One of these websites was Wikipedia (the two other were WordPress and Denver Post). What entities like Wikipedia, Google, Twitter et al are blatantly overlooking is the fact that freedom to express should never be assumed to be freedom to defame. Citizen journalism is not about promoting gossips, displaying profanities in words and making biased mockery of humans and organizations. But easier said than done.
As per a 2011 report titled, ‘The Internet and Corporate Reputation: What you need to know’, conducted by law service firm Olswang and social media analytics company WindFall Media, “Of those [companies] who experienced damaging allegations, 50% of the allegations were made on blogs, 40% on discussion forums and 10% on social media website. 60% of the companies that had been victims of untrue allegations or rumours on the Internet said the allegations were likely to have an impact on the company’s share price.” In other words, there has to be an immediate and imperative focus on ensuring that any comment on the web is accountable to non-anonymous entities who can be legally brought to task in case of defamation. As the 2010 Pulitzer Prize winner Kathleen Parker of Washington Post mentions in one of her articles, “The freedom granted by [Internet] anonymity and a virtual audience may have been a boon to democracy, affording everyone a voice, but it has been a plague on decency.”
There have been past cases in India where, by a combination of luck and judicial enforcement, affected parties have been able to bring wrongdoers to book. In January 2009, Fomento Industries filed a Rs.500 crore defamation suit against activist Sebestian Rodrigues, at the Kolkata High Court. The company claimed that it had faced huge damages due to the blog that Rodrigues managed. In another incident, in July 2009, SMC Pneumatics India Pvt. Ltd. took Jogesh Kwatra, a former employee at the company to court for sending abusive and derogatory emails to not just the company’s officials, but also to all the sales and marketing departments of all the subsidiaries of the company across the world. As per the interim order passed by the Delhi High Court, the individual was asked to stop such activities with immediate effect. It was India’s first case of cyber defamation through emails, wherein a court passed a rightful judgment (an ex-parte ad interim injunction) to protect the reputation of a company (including that of its Managing Director).
Even political parties are not far behind. Shiv Sena’s youth wing secretary lodged a criminal complaint in August 2008 at Thane Police Station against Ajith D, whose Orkut community was littered with comments that claimed the political outfit was trying to divide the country on region and caste parameters. The FIR was issued against Ajith under Sec. 506 and 295A (hurting public sentiment). Ajith tried to move the Supreme Court of India, pleading innocence under grounds that all the comments made on his Orkut community (called ‘I hate Shiv Sena’) were only meant for communication within a limited group, and that the postings were only an extension of the Fundamental Right to Speech and expression as allowed by the Constitution of India. This is what the Supreme Court Bench had to say, “We cannot quash criminal proceedings. You are a computer student and you know how many people access internet portals. Hence, if someone files a criminal action on the basis of the content, then you will have to face the case. You have to go before the court and explain your conduct.” Even Barkha Dutt of NDTV sent blogger Chyetanya Kunte a legal notice for posting his opinion (based on some excerpts from Wikipedia) that her coverage of the 26/11 attacks might have endangered human lives. [Of course, Kunte backed down after the reaction from Dutt].
And in this context, the rules notified on April 11, 2011, under the Information Technology (Intermediaries guidelines) Rules, 2011, by the Government of India, deserves a loud applause. Something as good as this, is a rare sight in the sector. What the notification clarifies is that, hereon, it is not just bloggers with malicious intent, who will get dragged to the table of interrogation. Even intermediaries like all search engines and websites (which would include Google, Wikipedia, or even online payment & auction sites, social networking sites and hosted blogs), Telecom and Internet Service Providers (ISPs) and even cyber cafes, will be held liable for all harm caused to the party – individual or a body of individuals – which has lodged a complaint. This war is not just a blogger versus an innocent tale anymore. The intermediaries are neck-deep in too.
So any blog or uploaded content that “is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever”, can be brought to the notice of the authorities, and legal action can be initiated against the blogger and intermediaries concerned. Even if you are an online publisher of content, a vilifying comment on your website can make you guilty by the book.
And if a complaint is lodged against the site, at best, you could be blocked temporarily, and worst, forever. The best part? According to sub-section 4 of the notification duly signed by N. Ravi Shanker, Jt. Secy, Department of Information Technology, Ministry of Communications & IT, India & CEO, National Internet Exchange of India (NIXI), if any intermediary comes to know of such “an affected person in writing or through email signed with electronic signature about any such information”, it “shall act within thirty six hours and where applicable, work with user or owner of such information to disable such information... Further the intermediary shall preserve such information and associated records for at least ninety days for investigation purposes.” Of course, the Internet hooligans and the companies/groups protecting them are an unhappy lot since the notification of the amended rules of the Act. Naresh Ajwani, Founder Member of the International Internet Industry Alliance, comments to TSI, “The new notification to the IT Act would not only hit Intermediaries & Cyber cafes but also, the privacy of Indian Internet users. Let's take the case of cybercafes. Today, 60% of the users in India access Internet from cybercafes and the new notification demands the owner of cybercafes should store all the information accessed by the users for one year. That can lead to obvious situation of possible exploitation of sensitive information of Internet users in many hands.” Google India put across their views to TSI on the new rules, “"We believe that a free and open Internet is essential for the growth of digital economy and safeguarding freedom of expression. If Internet platforms are held liable for third party content, it would lead to self-censorship and reduce the free flow of information. The regulatory framework should ideally help protect Internet platforms and people's abilities to access information."
I thank our Ministry of Communications and Information Technology, which has plugged many loopholes through the new rules after seeing through much of the presumptive defence that could have been used by both the anon-vandals and the intermediaries. Sachin Pilot, Minister of State in the Ministry of Communications and Information Technology, tells TSI, “Critics' concerns over personal information being leaked out are unfounded... It has to be understood that people have used the Internet to indulge in character assassination and financial frauds. The new rules are an attempt to put an end to such malpractices which are thriving on the misuse of the Internet.” I myself perhaps couldn't have put it better.
The new Rules of the IT Act 2011, heralds the hour of awakening for Internet users in India. I take it as a the dawn of a new, cleaner age of information-sharing over the Internet, and the end of malice, spite and the vengeful, unsocial and retaliatory practice of waging a personal vendetta against others, over a network initially designed for knowledge-sharing. The world has woken up, and so has India. But having said this, much remains to be done to make the Internet abuse-free. For instance, having given a limited time for the intermediaries to act upon a complaint, the government should also give a definite time within which the miscreants can be tracked and a judgment passed by the judiciary. Also, all Internet businesses in India (and if possible, around the world) should be made answerable for their local operations, in accordance with the law of the Indian land. Else, they should be blocked. This way, we will not have a Wikipedia US operation evading legal notices because an Indian court passed an order against it, or a Google India claiming innocence because a Mumbai High Court passed an order. Changes like these, if made faster, will ensure that social networks, posting sites, and blogs will become cleaner places to surf, and that users will not ever confuse freedom of speech and expression with what I call “accountability”. And thus, every individual in the chain would become responsible for the misdeeds of the others. I am all for freedom of speech. But that has to be responsible if it is in the media. In the privacy of your homes, please feel free to abuse anyone that you want to, or write it in your private diary, or even in a private password-protected web blog. But that can't be made publicly accessible, if it is not based on facts. Any negative slander can be hit again and again by 20 people and made to come up as a top search (on the person) and that can't be allowed. More� important than the freedom of speech of the slander-mongers, is the right to dignity and truth for every citizen.
Internet is the new media and the common man looks up to it as an ocean of facts. It can't dish out crap. And all users of online social networking sites, as well as free speech sites, must use it in a manner that is responsible and not derogatory. Anything derogatory can't come up in search engines, should necessarily be password-protected and meant only for viewing purposes of the person(s) concerned or the ones who have access to that password. But it can't come up on public search engine results, which the common man trusts so much. And Indian arms of organisations like Google, which make money in India by selling ads, should be made to accept ownership of the slander content they promote, by the courts. And a plea like Google India's – that it has no connection with Google USA – should simply be rejected. A week-long ban on Google from operating in India by the courts, and we will see Google USA coming up and taking ownership of Google India as well! In no way can one company (Google and the likes) be allowed to make money from India, without taking complete ownership of the content that they are providing about India, globally.
Internet search content can't be allowed to be made a forum of frustrated losers to vent out slander. Furthermore, it is very clear that if defamatory content is allowed, Google Search can be manipulated by competitors to defame others. Also, Google itself or its employees can manipulate slander if it/they want to put anyone down. Thus, slander can't be allowed to be called content, especially since Internet is the 'new media'. Media is synonymous with responsibility – one cannot enjoy media status without the responsibility and ethics that come with it.
It was over six years back when Avnish Bajaj, a US citizen and CEO of eBay-owned Bazee.com, was arrested and jailed under the IT Act 2000, for allowing his website to carry pornographic content (in the form of MMS). In today's times, the government has to immediately take similar action with even the bloggers and anon-posters on the net who continue writing pitifully schlock comments on the web. In 2008, after the death of a Korean celebrity due to cyber-issues, 900 Korean government agents from the Cyber Terror Response Center trawled through various blogs, networks et al to “identify and arrest those who habitually posted slander and instigated cyber bullying.” India needs to do the same – akin to how the traffic police takes up focused weeks to regulate various driving behaviour. A few arrests and a few court judgments resulting in imprisonment, and I can assure you, India would start getting rid of the vitriolic and uncouth bunch we have sadly nurtured all these years since the advent of web forums. Internet hooliganism has to go, and now.
- 20 May 2011 |
- Technology and Internet