It has been almost a month since I wrote my last post and many of you have written to me, asking me if I had relegated this endeavour to the bin just like many others. I haven’t.
I recently read the Court order related to the case against various Social Media Networks/Companies in India on Pluggd.in (The Court Order) and felt that the drab document contained some exciting and disturbing stuff. This news has been doing the rounds of almost every (English) newspaper and website in India.
So I decided to write a set of Questions which indirectly analyze the possible fallout related to this Court Order. I feel that this may be a watershed moment not only for how we communicate and use social media, but also for freedom of expression, national unity, publication, blogging etc
Its important to note here that this court order is not the final decision/judgement related to the matter but a ‘Summons Order’ dated 23 Dec 2011 which contains a list of the accused, the complaint and the complainants and reasons given by the judge on why the court feels that the case should be heard.
Just like the printing press and the telegraph in their time, new inventions/nascent fields are like the wild west, where for a long time when almost everything and anything goes due to lack of policy, rules and regulations. Indeed, regulation becomes necessary only when authorities know the contours, the effects, loopholes and the potential fallout from activities related to a particular space.
Social Media (in India) is the latest space being tackled by the government, courts, players and regulators. Hence it is but natural that we hear laws, decisions and orders (such as the one I am writing about) baffling.
Part of the problem lies with our new found generational ADD (Attention Deficit Disorder) aka ‘Multi-Tasking’ ‘Trivia-Centered Learning’ etc, part of it with the way we consume media aka ‘Aaj Tak Syndrome’ (through headlines and/or sans meaningful analysis) and part of it is the fact that the overwhelming readership on the net is educated, urban, middle class with secular, idealistic and righteous opinions (I belong to this class).
The basic Info
The Judge – Shri Sudesh Kumar
Court – Patiala House, New Delhi
Date of Summons Order – 23 Dec 2011
Complainant – Vinay Rai (Senior Journalist and editor of weekly Urdu, Akbari)
Accused – Facebook India, Facebook, Google India, Orkut, Blogspot, Youtube, Google, Yahoo India, Yahoo, Microsoft (India), Microsoft, Exbii, Zombie Time, My Lot, Boardreader.com, IMC India, Shyni Blog and Topix.
The Analysis
1. The court order mentions harm to national unity, riots, inflammatory language, debasement of religions, danger to communal harmony, hatred etc as the among the litany of accusations against the Social Networks and Websites. While this may seem farfetched to many people, however one has to remember that just like pamphlets, newspapers, posters etc a facebook group/page created to incite violence may have the same/similar effect and purpose. Since there is a law to regulate other media, the question here is why should Social Media stay out of the purview?
2. As per the court order, enough reasons and evidence has been provided to initiate a case against the accused (summons have been/will be provided to the heads of these organizations including some really big names). Putting in big names, ensures that the case gets the visibility that it should. Apart from the legal aspect, it makes great copy too. For various parties concerned, it makes sure that the average guy hears about this. But why include Microsoft? And Yahoo? Last time I checked they had no major play in the Social Media space. Why are they being dragged into this?
3. The accusation includes the fact that many or some of these social networks/websites have colluded and in fact promoted such activities to increase page views, accounts, hits etc and thereby revenues. This is especially troubling since not only is it ethically and morally wrong, it is also inviting Government (over)regulation and control over this medium. And one must not fail to mention the damage this does to the reputation of the fledging world of Social Media Startups. However, I beg to understand how they hope to prove in court that Social Networks have ‘Colluded’ to spread hate messages? Reposting material from one site to another is done by users. How does one create a formal or informal mechanism to co-operate between social networks aimed at increasing page views/hits through lewd, disgusting, anti-community and anti-national messages/pictures? I don’t for a second mean that the accused are beyond guilt. I just want to know how they worked together.
4. As per the complainant, the government has turned a blind eye towards this menace. Will the government now take concrete steps to take care of this? Will there be pan-chewing bureaucrats sitting in front of computers reading out my updates and pages? Will the local police station, with staff that hasn’t been trained on how to use a computer, be able to record an FIR? Or will there be another ‘Special Cell’ set up for this? What will they do? And if they can really control all this, then when can I open Google and expect to see the right map of Kashmir in India?
5. This court order may even lead to clarification on who legally owns the information/content created by you and me on Social Media. If the Social Networks don’t own it, then they can safely say that though they will try to clean up their sites, the legal fallout is not theirs to suffer. If they do own it, then they might as well sell the info which we put up on their sites. So who, as per our laws, owns this info?
6. Where is the info/data/pages stored? On servers within India or outside. If it is outside then the courts have no jurisdiction over the data. In which case they will have to look at ways to prosecute erring individuals or a company subsidiary or just block the page/website all together. So who should get punished? The company which owns the servers, which leases the servers, which owns the social network, the user who originally posts content or the reposting individual?
7. Who will regulate what is national or anti-national? The Government? That will be scary because we have heard what Mr. Kapil Sibal proposes. Media outlets have been fighting government censure laws for decades. Do we as the middle class have any hope of fighting unjust laws against us, when we can’t even get the cops to register a stolen mobile phone? Will any casual comment against a Politician or Govt Employee seen as defamation and get punished?
8. Finally who discusses standards of morality? Me, You, The Government, The Neighbor… who? Yes, when it comes to disturbing national unity, communalism, ethnicity based hatred and other harassment based material, a line must be drawn. But along with that, the laws must also recognize the fact that this line may be re-drawn and misused? Or are we looking at a future with POTA type laws for Social Networks?
I would like to clarify that I am 100% for sound punishment against those who have created such content consciously or otherwise. Even if Eric Schmidt himself must spend some time in Tihar, I believe the guilty must be punished. What I do not stand for is the kind of laws that usually get thrust on 99.99% of law abiding citizens in such situations. Laws, which seek to do nothing more than collate information & control the general population. Because no matter how democratic we become, we can and should never lose the right to express our opinions.
Startup Yapper 
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