The following report from India has reached me: “The Delhi High Court on Thursday warned social networking site Facebook India and search engine Google India that websites can be “blocked” like in China if they fail to devise a mechanism to check and remove objectionable material from their web pages.” (…) “The case centres on a petition filed in December by a man named Vinay Rai, who referred to obscene depictions online of Jesus Christ, the Prophet Mohammed, and various Hindu deities. In response, a Delhi magistrate summoned the executives of 21 companies and suggested they face trial for criminal conspiracy.”
If the issue as described above is the whole story, what is now before the Delhi High Court (DHC) adds a twist to the age old issue of the responsibility of the provider (of the transmission support) for the content that is transmitted. Take two equivalent cases:
- Assume “objectionable” material is sent through the mail. Is the Post Office bound to vet the content of every letter? Would the DHC block postal traffic if the Post Office fails to devise mechanisms to check and remove objectionable material? I doubt the DHC would act in this way.
- Assume “objectionable” material is put in an “advertisement section” of a paper. Is the newspaper bound to vet the content of each advertisement? I suspect jurisprudence says it does.
Different standards are upheld – depending on the judicially perceived feasibility of “vetting”, and, I’d say, the prejudice of the court. If the Postal Office belongs to my country’s friendly Crown, it will get off easily when it declares itself unable to do the vetting. Internet providers are all-powerful “foreign devils”.
But the core issue before the DHC seems to me actually to be another one. In the olden days the main issue was one of (political and morals) censorship – the state vs. the individual. The DHC case and other similar cases, however, appear to refer to Government involvement on behalf of privacy rights of third parties.
- “Objectionable” material about real places and people is put into a novel – e.g. the novel is set in sea resort, which is described as “dreary”. Or a hideous crime is described as taking place in a named neighborhood. Is the publisher bound to vet the content of the novel, lest such “collateral” comments be judged defamatory? It is, apparently: in France a host of lawyers go through a novel to purge it of any derogatory material it may contain regarding real persons and places. I suspect that Baudelaire’s quip: “pauvre Belgique” or Zola’s social novels would no longer be permitted to see the printer’s ink, nowadays.
- A gyration of this is taking place in Switzerland, where GoogleMap has been enjoined to blank out faces and number plates of cars in front of buildings it has photographed.
A similar scenario appears now to be before the DHC. The DHC is not asked to protect the interests of the state (India is a secular state) but ostensibly to protect the rights of private persons – those of Mr Vinay Rai and religious people like him – in this case to have his religious feelings untrammeled by offensive images.
Please note the extensive interpretation of the right. Protection extends, beyond immediate exposure to offensive material, to the very notion that this material exists and is available. Mr. Vinay Rai need not see the offensive pictures, while he surfs the net, and he will not, unless he actively seeks them. He objects to the very fact that they be there, protected by just a click from unwary eyes. Formulated in another way, the enforcement of morals – no longer much of a public issue – remerges as conflict over private rights.
The DHC seems to argue that there is a privately held right to have the state censor religiously offensive material – which is available on demand – in order to protect “personal feelings”. If this is the case, then holding such material in the privacy of the home would also fall under the right.
The Swiss Hugh Court has ruled that assisted suicide – which is legal in the country – could not be carried out in the privacy of a specified building because this activity infringed on the right of the plaintiff to pass undisturbed. Mere awareness the act might be carried out inside justifies judicial intervention (would this right also extend to orgies?). A subsequent referendum validated the right to assisted suicide, so Isuspect the judgment will hardly be enforced – but it sets a precedent.
The battle over the “freedom of access” no longer is bilateral: between the individual and the (politically) oppressive state, but a triangular relation where the state is asked to intervene as a “protector of a private right”. It has a subsidiary interest in the matter to the extent that the circulation of religiously offensive images may be inflammatory.
Cynically, once provider “vetting” is introduced to protect privacy, it will be extended by the back door to serve politics. Darkness parading as white knight – an irony fully worth of George Orwell. Note further that the “self-censorship” by a provider is unregulated, subject to neither judicial nor political review, and thus likely to be much more sweeping than the official one, which is bound by the Constitution as well as its need to sustain broad legitimacy. The provider will apply the “precautionary principle” quite broadly, given that he has no interest whatever in the content, and he may even provide the service for free. The state threat to shut the provider down is disproportionate and effective.
PS: In astronomy a “three body problem” was proven by Poincaré not to have a unique or absolute solution, but to be inherently chaotic.