The Supreme Court’s request for Google & co. to block videos is the latest example of how the law fears new technologies.
The Supreme Court is currently hearing a PIL on the uploading and dissemination of rape videos, revenge porn and child pornography online. The Court asked internet giants such as Google, Microsoft, Yahoo and Facebook whether they could prevent the uploading of such videos, to which their short answer was no. Aside from the fact that they are under no legal obligation to do so under Indian law, the Court’s request is troubling for a number of reasons.
Preventions of this kind amount to pre-censorship — a power that requires a level of transparency and fairness that private companies may not always follow. But more worrying, is the concept of pre-censorship itself and how the law in India has applied it to the internet. Recognising how difficult it is to effectively pre-censor internet content, the Court has since set up a committee to provide its expert opinion on technical solutions for the same. The committee report is due by April 20th , 2017.
Pre-censorship is actually not the form of censorship used for most mediums in India; an author does not require the government to approve the content of his book before publication. If there is a problem with the content, the censorship is usually applied subsequent to its release. But, in K.A. Abbas v. Union of India, in 1970, the Supreme Court upheld pre-censorship in the case of cinema. Its argument was that the features of cinema, such as the combination of visual and aural senses or cinematographic techniques like trick photography, allowed it to generate deeper emotions in ordinary people than any other medium.
The key assumption behind this argument was that the average Indian was so incapable of distinguishing between reality and illusion that the State must protect him or her. This was probably a legacy of colonial authorities’ scepticism of the morality and maturity of native audiences. This level of paternalistic thinking is simply untenable in the 21st century.
There is no better indication of this sensitisation than the Court’s own judgment in Shreya Singhal v. Union of India. While this case is better known for striking down the notorious Section 66A of the Information Technology Act, the Court also extended the powerful medium theory from K.A. Abbas to the internet. The court justified special restrictions to regulate the internet by repeating the arguments made by the Additional Solicitor General (ASG) on how the internet was different, one of which was:
In case of print media or medium of television and films whatever is truly recorded can only be published or broadcasted/televised/viewed. While in case of an internet, morphing of images, change of voices and many other technologically advance[d] methods to create serious potential social disorder can be applied.
In less than 50 years the fear of the pernicious powers of cinema seems forgotten, only to be replaced by a new bogeyman: the internet. Of course, the morphing of images and the changing of voices are just as possible in other mediums, but the other arguments of the ASG are riddled with similar flaws. Taken together, they indicate not just a fear of the internet’s capabilities but also a fear of its newness.
This distrust that the law has towards new technologies is by no means a new phenomenon. The concept of the right to privacy actually emerged as a fear of the ‘yellow press’ and ‘instantaneous photography’ at the turn of the 19th century. A more recent example is the fear of music and film industries of copying technologies such as VHS, CDs, DVDs and file-sharing software. This is not to say that this distrust is always unwarranted, after all, no one can argue against the right to privacy in the Age of Information. But distrust should not be the primary determinant of the regulatory response.
Responses of law to a new technology can be separated into three broad categories:
- The old rules are applied to the problems created by the new technology (for example, applying the tort of privacy developed in the 19th Century to Google and Facebook).
- The old solutions are gradually innovated to cater to the idiosyncrasies of the new problem but leave the core elements of the solution intact (introducing a new tort for misuse of personal information by data traders).
- A radical innovation to the legal solution that fundamentally changes the approach or instruments (copyright itself was generated as a response to problems created by the printing press).
The Supreme Court’s approach falls very much into the first category. Seeing the new problems created by easy video recording, file sharing and social media, the Court has sought to apply the existing model of pre-censorship to the internet. This is only made worse by trying to treat intermediaries like Google as publishers who should exercise editorial control. The vast volumes of content generated on the internet mean that such editorial control can only be exercised via blunt algorithms.
The UK’s disastrous attempts in curbing online obscenity via the use of using porn filters is ample proof of the dangers of such an approach as charities for sexual violence victims, sexual education and the like were blocked by ISPs without being notified that their site had become inaccessible. Such a move would not only be unconstitutional in India but flies in the face of the growing recognition of treating internet access as a basic human right.
Ultimately the response must wed law and technology. People who want to prevent the uploading of videos are probably afraid that a blocked video will merely be uploaded again. However, technologies like ContentID (created by Google to prevent copyright offences) are capable of giving videos digital signatures. Once Google has been notified that content is rape or revenge porn, it can block any videos with the same digital signature, thus preventing dissemination. Such a solution is cognisant of how content is generated and distributed on the internet and hopefully the committee’s report will contain such forward thinking recommendations.
The Supreme Court has a long way to go in understanding the intricacies of the internet. For now, the Court is better off waiting and watching, instead of rushing in to intervene.