Chandini Chowk to China

At first press reports on how Delhi courts are admonishing social web companies to take down content or the legal whip will come cracking “like china” seem like a bad adaptation of goodwins law of nazi analogies. Many are bound to discount the remark, attributing it to an over active media which sensationalizes frequently. It is also quite possible that these are off the cuff statements made by Judges who are grappling to appreciate the architecture of the web since these statements are not part of any formal legal order.

However, it begs deeper questions. Do we know how the legal system regulates the web in China. At best we have vague conceptions of a great degree of government censorship existing in China. Through this blog post, I will try to give a high level (often patchy) overview of the Chinese legal system for policing the internet. Going forward, this post will look at whether we are slowly policing the net “like china”.

[caption id=”attachment_2844" align=”aligncenter” width=”448" caption=”Go forward comrads! by HKmPUA licensed under CC BY-NC-SA 2.0. Photograph of a Mao statute in Changsha, Hunan, China.”]

[/caption]

legal controls on the web in China

Though the Chinese Constitution under various articles espouses a protection of human rights and freedom of speech there are multiple state agencies which tightly leash it. These agencies work in regulating the internet through controlling both the carriage and the content. In other words they control who is allowed to post content and secondly what is the nature of the content. The system is described by the OpenNet Initiative’s report on Internet Filtering in China as “extraordinarily complex”. It goes on to say that, “conforming to these requirements is made more difficult by the broad, sweeping definitions that many regulations employ.” Complex as these regulations may be the main points are fleshed out below.

Internet Service Providers

ISP’s are tighly regulated in their licensing requirements. This is through the,”Regulations for the Safety Protection of Computer Information Systems”, State Council Order №147 (Feburary, 1994), which has been supplemented most notably by the, “Measures on Internet Information Systems”, State Council Order №292 (September, 2000). In sum these regulations mandate that ISP’s must record a customers account number, phone number, IP Address. Secondly ISP’s which engage in publication such as operating a bulletin board have to keep copies of all content made available. For all this content they are held responsible.

Content Providers

Internet Content Providers, such as social media companies like twitter and facebook or even ones which have web portals such as yahoo are principally governed by State Council Order №292. This has been supplemented by the “Provisions on the Administration of Internet Electronic Messaging Services”, State Council (October, 2000). Under these regulations a content provider is firstly expected to apply for a license to commence operations in China after which if the content provider is intending to employ a messaging system such as Gtalk or Skype it would have to take prior approval from the Ministry of Information Industry as well as publish a comprehensive set of rules governing subscriber use. Further measures include, maintaining detailed logs of subscriber data for 60 days and turning it over to state agencies and immediately removing and reporting any inappropriate/illegal postings. According to Human Rights Watch, due to these stringent regulations and the fear of violating laws, ISP’s self censor.

Moving beyond the licensing, State Council Order №292 establishes stringent content restrictions. The first is a clear departure from the passivity principle where an intermediary is not made liable for the content passing through its pipes. Article 12 of Order №292 states that Content Providers are liable for the content disseminated through their facilities.

On top of this Article 15 contains a vague list of categories of content which is not allowed to be published through a content providers network. Due to its importance I am quoting Article 15 in entirety below:

Article 15:

IIS providers shall not produce, reproduce, release, or disseminate information that contains any of the following:

1. Information that goes against the basic principles set in the constitution;

2. Information that endangers national security, divulges state secrets, subverts the government, or undermines national unity;

3. Information that is detrimental to the honor and interests of the state;

4. Information that instigates ethnic hatred or ethnic discrimination, or that undermines national unity;

5. Information that undermines the state’s policy towards religions, or that preaches the teachings of evil cults or that promotes feudalistic and superstitious beliefs;

6. Information that disseminates rumors, disturbs social order, or undermines social stability;

7. Information that spreads pornography or other salacious materials; promotes gambling, violence, homicide, or terrorism; or instigates crimes;

8. Information that insults or slanders other people, or infringes upon other people’s legitimate rights and interests; or

9. Other information prohibited by the law or administrative regulations.

This is not the end of it. A vast array of regulations impose an “editor responsibility system” where they review and flag content to conform adherence to the vague content requirements above.

Users

Quite surprisingly under a 1996 decree all subscribers are required to register with the local police station within 30 days of signing up with a ISP. This ties into an exhaustive and broad based content regulation system flowing from the “Computer Information Network and Internet Security, Protection and Management Regulations”, State Council Order №147 (December 1997). I am extracting the main parts of it below:

Section Four — No unit or individual may use the Internet to harm national security, disclose state secrets, harm the interests of the State, of society or of a group, the legal rights of citizens, or to take part in criminal activities.

Section Five — No unit or individual may use the Internet to create, replicate, retrieve, or transmit the following kinds of information:

(1) Inciting to resist or breaking the Constitution or laws or the implementation of administrative regulations;

(2) Inciting to overthrow the government or the socialist system;

(3) Inciting division of the country, harming national unification;

(4) Inciting hatred or discrimination among nationalities or harming the unity of the nationalities;

(5) Making falsehoods or distorting the truth, spreading rumors, destroying the order of society;

(6) Promoting feudal superstitions, sexually suggestive material, gambling, violence, murder;

(7) Terrorism or inciting others to criminal activity; openly insulting other people or distorting the truth to slander people;

(8) Injuring the reputation of state organs;

(9) Other activities against the Constitution, laws or administrative regulations.

China, beyond law

Its not the legal system and the black letter in the thick law reports which makes china a censor friendly regime. It is the practices which are followed on top of this complex and vague legal apparatus. The state aggressively promotes informal ways to induce private content providers to censor content themselves.

This includes the state employing a large number of people to flag content and act as censors. Internet companies readily comply with such take down notices and even pre-screen content. This censorship is placed on internet content and service providers as the price of doing business in China. In cases where companies cannot comply they exit. This is most notably evident in the agreement of many web companies to the “Public Pledge of Self-Regulation and Professional Ethics”.

“like china” ?

[caption id=”attachment_2847" align=”aligncenter” width=”442" caption=”deeply offensive much ? © Homai Vyarawalla / Alkazi Foundation for the Arts”]

[/caption]

So is the “like china” remark being played up as rhetoric or are we actually moving closer to the great wall. To look at this one needs to look at the legal developments in the IT sector prior to the two cases which have been filed against social networking companies in Delhi. The first significant move on this was the amendment of the governing law for the internet in India, which is titled as the Information Technology Act, 2000.

This amendment to the law was done in 2008, which introduced and amended several legal provisions. Most relevant to this article is the complete reworking of Section 79 of the Information Technology Act which provided internet content providers immunity from civil and criminal prosecution on the basis of content which was posted by users. This principle was in line with global norms existing in most western democracies.

The amendment was the result of large industry wide outrage when Avnish Bajaj, the former CEO of Bazee.com was arrested for a pornographic clip being auctioned on his website. Heading an internet intermediary which had no role in the listing of the clip for sale and which expeditiously removed the listing would not save him from jail time. His arrest exposed the problems with the original safe harbors present under the IT Act. So an amendment was made and Sec. 79 was made broader and better. However, Sec. 79 by itself did not prescribe the fine letter of the law according to which an internet content provider could obtain protection. This was left to the Central Government which could make rules to define the specific steps which had to be taken by an intermediary within the mandate of Sec. 79.

In April, 2011 following a sham public consultation the Central Goverment made the Intermediaries Rules, 2011 which were shockingly onerous to comply with. They also incentivised censorship by internet companies and allowed by offering immunity from prosecution on taking down the content. It also allowed any one to make a complaint within broad and vague categories. In a way a government which promoted India as an outsourcing hub, outsourced its own censorship power to the mob. The broad categories under the Intermediaries Rules, 2011 which are contained under Rule 3(2) are reminiscent of Article 15 of State Council Order №292. Have a look for yourself:

3. Due diligence to he observed by intermediary — The intermediary shall observe following due diligence while discharging his duties, namely : —

(1) The intermediary shall publish the rules and regulations, privacy policy and user agreement for access-or usage of the intermediary’s computer resource by any person.

(2) Such rules and regulations, terms and conditions or user agreement shall inform the users of computer resource not to host, display, upload, modify, publish, transmit, update or share any information that —

(a) belongs to another person and to which the user does not have any right to;

(b) 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;

© harm minors in any way;

(d) infringes any patent, trademark, copyright or other proprietary rights; (e) violates any law for the time being in force;

(f) deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;

(g) impersonate another person;

(h) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource;

(i) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation.

The second event was the alleged request by the Minsiter of IT, Mr. Kapil Sibal’s asking social media companies to “pre-screen” content. Though this was rolled back by him in subsequent press interviews he did state that the government would appreciate a more responsible mechanism for taking down content. Not only was this a clear departure from the passivity which was inbuilt into the immunity offered to internet companies which were seen as intermediaries providing pipes for users to transmit and post content, it was a step towards the “editor responsibility system” inbuilt into chinese law.

This is ofcourse succeeded by the two cases, a civil and a criminal one filed against social media websites. The most glaring factor in these cases was that there was no prior notification to the social media companies to take down content which was complained against. Given this how were they dragged to court ?

leave to make an intermediary a party

When Section 79 of the Information Technology Act, 2000 was amended in 2008, there was a lot of hope that intermediaries would be given better protection from being dragged to courts. This was not only a push for business but also for early adopters of their services, people who had a geocities website and searched on lycos. These geeks had seen the web evolve from a unidirectional interface to a interactive one. They knew that the great wave of social networking would make intermediary networks the backbone for free speech.

Though Sec. 79 in a lot of ways is better than it orignally stood, like providing intermediaries immunity from offences not only under the IT Act but under all other laws, as the two court cases demonstrate it was not even referred to either in the civil case and the criminal summons which were first issued. Now while any law may not help internet companies in the first instance, if complainants and courts do not notice it, as I first proposed at Consilience 2010, a conference organised by the Law and Technology Committee at NLSIU we should look at ways of adding a provision for making intermediaries parties in court litigations only when specific pleadings are made on their failure to comply with Sec. 79 and then the court grants leave to make them parties.

This system will work by a plaintiff or a complainant not being allowed to make a company like google a party to a litigation unless it shows it served them with a valid notice and they failed to comply with Sec. 79 and take the content complained of in the notice down. If the court is satisfied that the bar to making them parties can be waived and prima facia they cannot claim immunity under Sec. 79, it then allows them to be made parties to the litigation. Though such a system is also prone to abuse, it will place a fetter from directly dragging an intermediary to court and save the objective of providing internet intermediaries a modicum of safe harbor for user generated content. It will also promote intermediaries not to pre-censor speech which may be objectionable but not illegal and will place requirements on people who are easily offended and then drag such companies to court.

[caption id=”attachment_2852" align=”aligncenter” width=”448" caption=”Distillery Chair by Sandy Buchanan licensed under CC BY-NC 2.0.”]

[/caption]

Chairs for Chairman Mao

In 2010, when Chinese dissident and human rights activist Liu Xiabo received the Nobel Peace Prize and could not attend the prize giving ceromony in Oslo due to his incararation in China, the Nobel Committee honoured him by placing his prize on an empty chair. News of the award was blacked out in the Chinese media, and hoping to prevent its citizens from viewing images of the prize ceromony the words “empty chair” were scrubbed cleaned off the internet through take downs and blocks. Searching for the words, “empty chair” threw up zero hits on some search engines. There were reports that even some images of chairs which were completely unrelated to these events were unavailable. Swallowed up into a black hole of the ministry of culture. This is how censorship works. It starts with one word which is objectionable and then swallows an entire dictionary.

While the “like china” comment may be with the best intentions, it is innocuous and dangerous. Placing legal controls “like china” in India will not only be contrary to our constitutional values which in words and as well as in actions protect our rights to free speech but also a departure from our democratic roots. Though we may be a long way away from China, all it may take to get closer is just one step, falling from the citadels of liberty to the pits of a digital dystopia.

Let us not buckle under the amorphous ether of national security or communal harmony which clouds the best notions of our democracy. Let us promote internet freedom.

p.s. I have taken care to keep the analysis of Chinese law as accurate as possible. However, primarily practicing law in India, there may be the odd error. I would be glad if people who have more exposure to the chinese legal system can contribute through comments, or even correct me, if I have misstated some legal provision.