The issue of prescreening or filtering data before it is posted online raised by HRD Minister Kapil Sibal last month has reached the Delhi High Court. The Delhi High Court has threatened to censor the web if a way to pre-moderate content cannot be found.

Senior Advocate Siddharth Luthra is appearing for Facebook India on instructions from Amarchand Mangaldas while Senior Advocates Mukul Rohatgi and Neeraj Kishan Kaul are appearing for Google India on instructions from Advocate Siddharth Agarwal. Additional Solicitor General A.S. Chandhiok is appearing for the Union Government. The Delhi High Court, which is hearing the matter on a day-to-day basis will hear the matter in length today.

The lawyers of Facebook and Google are arguing before the Delhi High Court that there is no way for them to prescreen the data before it goes online and they cannot be held liable for a third party’s actions.

The online companies had approached the Delhi High Court last week to quash the criminal proceedings filed against 21 companies including Facebook and Google, for posting ‘objectionable content’ on their websites. The Delhi High Court quashed their pleas and instead Justice Kait directed the companies to comply with the trial court order and devise a mechanism to control objectionable content.

The Story so far…

The criminal complaint which has been at the centre of this controversy has been filed by Vinay Rai, a journalist who runs a Hindi and Urdu daily called Akbari. The complainant has alleged that,  “The websites hosting objectionable content would seriously damage the secular fabric of India and would severely hurt the sentiment of general public following different religions”. Bar & Bench has a copy of the criminal complaint filed by Vinay Rai.

The Metropolitan Magistrate, Patiala House issued summons to the representatives of 21 social networking sites taking cognizance of this criminal complaint. The Metropolitan Magistrate also directed the Centre to take “immediate appropriate steps” and  file a report before the court by January 13.

Thereafter, the trial court, asked the executives of the 21 social networking sites to appear personally on March 13. The Government also gave its sanction for the prosecution of the executives of  these companies. The Ministry of External Affairs is issuing summons to the executives of the companies whose headquarter is abroad.

The Department of Information Technology’s report (a copy available with Bar & Bench) to the Metropolitan Magistrate, says that the “Government of India, after being satisfied that such content are violative of the provisions of the Information Technology (Intermediaries Guidelines) Rules, 2011, and after due application of judicious minds finds it appropriate to grant sanction under section 196 of CrPC to proceed against the accused persons in the aforesaid complaint in national harmony, integration and national interest.”

It is interesting to note that this criminal complaint was filed just few days after another court in a civil case had directed some social networking sites to remove the “defamatory articles” and further restrained the networking sites from webcasting any “anti-religious” or “anti-social” content promoting hatred or communal disharmony.

Lawyers Arguments before the Delhi High Court

In the meanwhile, both Facebook and Google filed petitions before the Delhi High Court seeking, inter alia, the quashing of Vinay Rai's criminal complaint. 

Senior Advocate Neeraj Kishan Kaul argued before the Delhi High Court, “the search engine only takes you till the website. What happens after that is beyond search engine's control.”

As reported in LiveMint, Kaul further tried to explain the case using some examples. “If we use filters and block words like ‘virgin’ and ‘sex’ because someone finds them offensive, then many other genuine queries will also get blocked. Virgin Atlantic or references to genders of people will get blocked,” he said. “There are serious issues regarding freedom of speech. We have this freedom in our country unlike a totalitarian regime like China. We are proud we have this freedom.” He also criticized the lower court for summoning his US-based clients to the Patiala House complex in connection with the criminal complaint, saying this raised questions about freedom of speech and expression.

The contention raised by Google’s counsel that Google India’s activities were restricted to advertising was questioned by Rai’s lawyer Hariharan. Kaul had told the court that his client, Google India, didn’t operate the search engine or the blogging software, which was US-based Google’s domain.

Referring to the Memorandum of Association, Hariharan argued that since Google India was a fully owned subsidiary of Google Inc., it could be held responsible for content-related issues as well.

Siddharth Luthra, the lawyer for Facebook told the court it was not possible for the social network to "single out" any individual on the basis of religion or views and said that the users should be held responsible for any content they post. Luthra also questioned the authenticity of the documents, including the CDs provided by the complainant to the court. "The CDs, which have not been authenticated, cannot be used in evidence. The electronic records have to meet the legal requirements for being treated as evidence," he said.

The matter will now come up for further arguments on January 19, 2011.