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Free Speech, Internet Freedom and Net Neutrality in India
Reliance Entertainment, the producer of the movie Don 2 has once again obtained a John Deo order from the Delhi High Court to prevent online piracy of the movie. As a result of the order all file-sharing websites like Megaupload, Rapidshare, Mediafire, Filesonic etc. were blocked on the Reliance Communications (RCom) since the day the movie hit theaters.
This is the third time that Reliance Entertainment has obtained a John Deo order against file-sharing websites, the earlier instances being for the movies Singham and Bodyguard.This repeated phenomenon has clearly sent out a message that users of RCom must be prepared to face this blockade whenever a movie produced by its sister company Reliance Entertainment is released.
Legality of blocking websites
While piracy may be a genuine concern, all users of file sharing websites are not pirates. File-sharing websites are not only used to transfer movies and music but also to transfer large-sized documents, pictures and files. There are several small and medium sized companies in India that rely on these file-sharing websites for their administrative and official tasks like sharing huge files of designs, video presentations, spreadsheets etc. Many companies have paid accounts on these file-sharing websites. Should these companies be watchful for every film release in India? Should they be left at the mercy of ISPs and Entertainment companies?
The Internet Service Providers (ISPs) play a major role in the delivery of content to its users. The ISPs control the user’s access to any website. While it may be difficult to approach each and every website (whose platforms are used for distributing infringing content), it is not difficult for the content creators to put pressure on the local ISPs to block the infringing content at the ISP level itself.
Under Section 79 of the Information Technology Act, 2000 the ISPs have to show and prove that they have exercised ‘due diligence’ to absolve themselves from any liabilities. Therefore, ISPs when faced with a John Deo order have to show satisfactory compliance to the order. But ISPs need not block websites to show compliance to the John Deo order. Let us keep in mind that a John Deo order is different from an order to block a website.
The Intermediary Guidelines only speak of reasonable steps to be taken by the ISP to prevent such malicious activities. For blocking websites we have The information Technology (Procedure and Safeguards for Blocking for access of information by public) Rules, 2009. Under these rules only the designated officer appointed by the Central government is empowered to issue orders for blocking of a website. ISPs have no authority to block websites.
Questions – Legal and Technical
The issue is to be addressed by balancing the rights and liabilities of all players in this field- the ISPs, Internet Users, content holders and websites (It is to be noted that paid users of file-sharing websites have a special agreement for availability of services, so ISPs cannot block these websites). Each player here has a set of rights. One cannot impose on the other or transgress into other’s freedom.
The fundamental debate revolves around Internet Neutrality and Internet Censorship. Therefore, it is essential that we understand these concepts to fully appreciate the severity of the discussion here. The principal of net neutrality require ISPs to distribute content neutrally, without favouring any political, national or corporate body. The ISPs should also not use the censorship tool to protect their own interests.
There are several questions which require serious thinking. Listed below are some of the leading questions. These 10 questions are on a very high level. Each of them will again give rise to several other questions on the legal and technical fronts.
- Can the ISPs impose a total ban on all file sharing websites citing John Deo orders and ignore the rights of its legitimate users?
- What about the rights of paid users of such file sharing websites when ISPs block such websites?
- What are the liabilities of the ISPs blocking the websites which have a set of agreements with the end user (including file sharing websites)?
- Should the ISP prescribe what is to be consumed by its users?
- How is it possible for the ISP to identify the infringing content?
- Why can’t the content creators identify the infringing URLs and ask ISPs to block those specific links?
- Should ISPs be allowed to lure customers with attractive downloading plans and then block all such services arbitrarily?
- What are the rights of an ordinary internet user?
- How do you balance issues of Net Neutrality, Internet Freedom and the ISPs role?
- Lastly, how do you protect the rights of content creators without infringing the legitimate rights of the general internet user?
Circumventing censorship: The Technical side
Despite all these blockades in place, circumventing them is not a very complicated process. Some of the popular methods include - changing browsers or using a proxy server. Besides, there are numerous software applications and browser add-ons available to evade these blockades. One can also find several internet forums discussing new and innovative methods to do this. Today, with these tools and technologies in place, it is not very difficult to bypass even a nation’s firewall. Let us not forget that all attempts in the past to block content over the internet have failed in some form or the other !
Stats collected by TorrentFreak suggest that in total the movie Don 2 has been downloaded around 150,000 times on BitTorrent alone – it’s currently hovering around in the Top 15 most popular torrents on The Pirate Bay. Whether this amounts to a “success” for Reliance is a matter for them.
Taking control of the Internet
The US is proposing the Stop Online Piracy Act (SOPA) as a means to protect the interests of entertainment companies. However, this is widely criticized and condemned as an attempt of the US government to control the internet. The claims cited in support of the bill may appear just and fair. However, the execution of the provisions of the enactment pose a severe threat to the freedom of speech and expression.
The SOPA contains several provisions aimed at destroying and disintegrating the internet. A major threat described in the bill is DNS and IP blocking. However, there are already plug-ins available to tackle this and developers are working hard to overcome the other harmful provisions of SOPA. Reason - Internet was designed to be free, open and accessible to all without any discrimination of content.
The court orders directing such blocks are technically very difficult to implement, considering the architecture of the internet.
Today freedom of speech and expression is understood as a multi-faceted right that includes not only the right to express or disseminate information and ideas but also the right to seek, receive and impart information or ideas, regardless of the medium used.
The Indian government is carefully watching the SOPA process unfold in the US as it too has plans to control the internet. The Indian government has already attempted this by citing various reasons including ‘protecting religion sentiments’ and “national security’. Therefore, instances like this where the rights of online users are curbed will not be noticed or acknowledged by the government.
If SOPA is passed in the US then all nations, including India will pass a law on the same lines to take control of the internet and incidents like these blockages will be a common feature in India.
India is the world's largest producer of films. If all producers and entertainment companies in the country are to follow the Reliance model blockades for every movie release, the internet users in India will be left with a crippled, fragmented, and distorted internet.
What Reliance Entertainment has shown us is only a trailer of what we are going to actually witness if a SOPA like legislation is passed. Picture abhi baaki hai mere dost..! (The rest of the movie is yet to come, my friend)