India, Orkut, and the 'balance of information'

On October 10, 2006, Indian media reported that a two-judge panel of the Bombay High Court has directed the state government of Maharashtra to issue notice to Google for “alleged spread of hatred about India by its social network service 'Orkut'.”

The Public Interest Litigation petition filed by a 24-year old local advocate argued that this community bore an “anti-India” message, and asked for the appointment of a ‘controller’ to regulate all such online communities under the Information Technology Act of 2000 (IT Act). Special Public Interest Litigation procedures in India allow any individual to file a petition the state high courts and the Supreme Court to enforce fundamental rights.

This so-called hate speech consisted of an 82-member community on Orkut called “We Hate India,” displaying a photo of protesters burning an Indian flag. On We Hate India, discussion orbits around criticism of India in its longstanding conflict with Pakistan over Kashmir.

Hate is a fast and loose term in Orkut communities, with over 1000 groups dedicated to hating celebrities, politicians, math, and sports teams alongside nationalities and rival countries. A search query on Orkut communities using the terms “hate India” yielded 81 groups, with some of the largest having been newly formed in July 2006, and well over twice as many groups who “hate Pakistan.” Anecdotal evidence suggests there may be an equivalent number of groups hating those who hate either India or Pakistan. Bloggers are calling any possible move to block the group as a violation of what should be protected expression.

It would be relatively easy for the Indian government to block access to this Orkut community, as it did to a Yahoo! Group in 2003 and more recently to Google’s Blogspot and other blogging platforms in the wake of the Bombay commuter rail bombings. In July 2003, the Indian Computer Emergency Response Team (CERT-In) under the Department of Information Technology was empowered by the IT Act to instruct the Department of Telecommunications to block sites it investigates. CERT-In went to work quickly, and within a month issued an order for Indian ISPs to ban the Yahoo! Group kynhun, which discussed the secession of the Indian state Meghalaya and resulted in the collateral blocking of thousands of Yahoo! groups.

Although the IT Act has no explicit provisions for the blocking of sites, it makes publishing obscene content online a punishable offence (Art. 67) and authorizes the compelled decryption of information in the interests of state sovereignty and security, foreign relations, public order, and preventing incitement to an offence (Art. 69). All of these categories are also subject to reasonable restrictions under Article 19 of the Indian Constitution, which guarantees freedom of speech and expression. In 2003, the same government notice that created CERT-In also authorized the blocking of websites promoting hatred, defamation, gambling, racism, violence, terrorism, pornography or violent sex, because banning such websites preserved a ‘balanced flow of information’ and did not constitute censorship.

However, it is unclear whether Indian law can even be applied to compel Google to regulate the We Hate India community. Google states that its Orkut community is governed by its Terms of Service (TOS), which it claims strictly prohibit ‘hate speech’ and violence. The actual TOS include no mention of these categories of speech or content. Rather, Google has sole discretion to take down material it finds objectionable, including defamatory, libelous, threatening, unlawful, and obscene content.

A Google spokesperson wrote CNet that while this petition was being taken very seriously, the company wanted “to be careful not to affect users around the world by making changes to a global product based on the law in one country.” Google also asserted that Orkut is operated from the US and complies with US law.

The TOS apply to individual users only—on this social networking platform businesses, organizations or other legal entities are denied access. While international users must agree to comply with local rules of their country of residence regarding acceptable content, the owner (registration required) of the We Hate India group is self-identified as located in Russia.

The Unlawful Activities (Prevention) Amendment Ordinance, enacted after the repeal of the Prevention of Terrorism Act in 2004, makes unlawful separatist activity and other acts that threaten state sovereignty or cause “disaffection” against India. However, this ordinance only applies to Indian nationals.

DNA reports that Google would need to be hooked in as a third-party network service provider in order to be made liable here, and then the act of ‘hate speech’ itself, would potentially be punishable under Article 75 of the IT Act, which attaches liability to enumerated offenses committed outside India by any person irrespective of nationality as long as the act is committed on a computer, computer system or computer network located in India.

A hearing in the case is scheduled to take place in six weeks.