The defendants in the criminal trial of 21 Internet firms accused of hosting offensive content raised several irregularities and points of concern in court this week, according to Reporters Without Borders.
They said the process under the IT Rules known as “notice and take down”, under which the hosting company must remove the content as soon as it is notified by the authorities, had not been applied. The websites concerned said they received no requests from the authorities for content to be removed and the complainant, journalist Vinay Rai, had taken the matter directly to court.
Lawyers for the companies said they were not responsible for material posted on their servers by third parties, invoking section 79 of the IT Rules which specifies that no network provider can be held responsible for objectionable content posted on its services by third parties if he can show he had no knowledge of it, or that he has taken the necessary steps to prevent a breach of the rules.
A lawyer representing the New Delhi police said, however, that the companies had been informed by the government’s Department of Information Technology that content on their servers was offensive and that consequently the exemption under section 79 did not apply.
The judge called on the department to provide documentary proof of this allegation. The next hearing is scheduled for 18 February.
Lawyers for Google and Facebook objected to the fact that the Indian government is a civil party in litigation between private parties.
Reporters Without Borders is also concerned about the consequences of such an intrusion by the state into legal proceedings, which threatens the independence of the courts.
The press freedom organization calls on the court to return a moderate verdict which respects freedom of expression as guaranteed under the constitution, and not to place responsibility for content published by third parties on the shoulders of service providers, who currently appear to be the target of a persecution campaign by the authorities.
The Wall Street Journal reported on 13 February that an investigation had been launched into whether the Indian affiliates of Google and Yahoo! had broken the government’s foreign exchange laws.
The statement by the information technology minister, Kapil Sibal, at an information technology meeting in Mumbai two days ago that “no government in India will ever censor social media” must not fall on deaf ears.