Free to blog but accountable you are. The Supreme Court of India weighs in on blogging and online expression.

Yesterday, the Supreme Court of India in an important ruling refused to shield a 19 year old blogger from a responsibility to face the charges in a different state than the one of his residence. A few important implications stem from this which should be noted.

One important aspect which is perhaps easy to lose sight of in this debate is that the Supreme Court did not weigh in on the guilt or lack of it in this case, but on the fact that the person could not shy away from the responsibility to face the charges in a court. What should also be noted is that the underlying case is a criminal case and not for civil liability or libel, and seems to stem from an alleged death threat that was issued in the forum as per this article from The Telegraph.

The implications are relevant to bloggers, site maintainers, forum administrators, group moderators and perhaps even small commercial internet services dealing in opinions and expressions flow. In interest of brevity I use the word blogger below to be freely substitutable by any of these.

Note: I am not a lawyer and this is not a legal opinion, it is an expression of my personal understanding.

The Burden of Accountability. Imaged owned by and used under permission from Firoze Shakir. http://www.flickr.com/photos/firozeshakir/3309041065/

Is a blogger accountable for the online content including those made by others on the site ?

The Hindu offered a brief summary of the underlying issue in the case as follows.

Ajith D, a Kerala-based computer student had approached the apex court for quashing of the criminal case registered against him at Thane Police Station for allegedly hurting public sentiment by starting an online community in Orkut with an intention to launch an anti-Shiva Sena campaign.

I think this verdict does go to some extent towards suggesting that he does though I am not sure if it is a blanket conclusion one can draw at this stage. The court in its comments said :

You should not have indulged in such activity. You are a student of IT. You are doing something on internet and you should know about it.

This is a clear and unambiguous message which suggests that the constitutional rights do not cover a netizen from a responsibility to face any charges that may crop up as a result of any of his / her online expressions or facilitation of other’s online expressions. In this case many of the offensive comments were made by anonymous contributors and not by defendant himself. Thus such a person cannot shy away from having to face charges and defend himself even when the vehicle of expression he provides is used by others to express themselves.

Thats like holding the public transportation and public telephony organisations responsible since their offerings were used to conduct an activity that is now under criminal investigation. That obviously does not make sense. But allow me to introduce a hypothetical premise here. What if the public transportation and public telephony organisations used their discretion from time to time to decide who can use their services and who can’t, and what if they knew the the broad intentions of the user in using their services (either upfront or post facto). Would they now have a responsibility in this case ? That does make the situation a bit cloudy.

The equivalent situation in this case is when an online forum / site / group / blog is moderated. I am also going to assume for a moment (since I don’t know the facts) that the said orkut group allowed the group maintainer to moderate the content and the group maintainer might have used his privileges to say knock off spam on the group. This would imply that all expressions are not automatic and hence there is perhaps a case for the court to have made the moderator responsible to face charges for all the content in the group. However I would find it a little surprising if the group maintainer did not have any privileges to moderate the content or exercise his right to do so.

Should the blogger be required to face charges in any jurisdiction ?

While terribly inconvenient and perhaps with a lot of nuisance potential, the court opined very very clearly.

If a case is filed in a foreign country go and face it. You should know what you are doing on internet.

This is going to be really an issue for a lot of bloggers. In traditional (non internet) offerings, the service provider often has some kind of presence in the places where his services are consumed. Not so in the case of internet. You can reach the world without leaving your house. Also traditional service provision, requires some infrastructure or facilities investment or leasing, not so in case of blogging. The blogger often may have limited access to resources, may often have no revenues whatsoever. Yet he could be made responsible to defend himself in the furthest corners of the world. So herein lies the issue – Given the potential minimal resources and perhaps no revenue at his disposal, the blogger may have to face charges from any corner of the globe. The resultant investment in time and money alone may now seem like a punishment even if the blogger was to be eventually successful in defending himself in a court.

While the internet has delivered asymmetric capabilities to the blogger (maximum reach at minimum cost), the legal infrastructure has placed him at the receiving end of that asymmetry (maximum potential costs of defending himself while working off minimal / zero revenues). There is something clearly uncomfortable about this but I am not sure whats the right solution.

An interesting angle that will need to be looked at here is also the implication for internet based individual or small company commercial services (which often operate on a rather shoestring budget and headcount). Would this opinion lead to a negative business climate for such offerings ? Coule it be detrimental to their offerings, since often the primary commodity they deal in is information, precisely the currency whose use could expose them to (threats of) legal action.

I do think this is an issue which will perhaps need a different resolution in times to come. And especially since the Supreme Court has already weighed in on the issue, it might be the time for legislature to take a look at its implications especially by considering its implications on the business climate of small internet services as well.

Is this an attack on freedom of expression ?

In this case the charges are criminal in nature and seem to be stemming off a death threat. These expressions if made orally would’ve made the person who made such an expression equally inconvenienced, and I cannot imagine why online expression should be granted any more freedom or privileges than oral expressions. If at all, online expressions because of their reach and ability to persist, need to have more accountability. So confusing this with freedom of expression and speech is just being plain facetious. So in my opinion the answer is NO.

However the case does raise interesting possibilities about non threatening or non criminal charges. How would the Supreme Court opine in such a situation. Well we wouldn’t know until such a case reached them, but let us for a moment assume that the opinion continued to be similar. Even in such a hypothetical situation, I believe it would still not impinge on freedom of expression. All that the court has said is that one cannot escape from being accountable for expressions and thus present themselves to defend themselves. Thats perfectly reasonable. However it could indirectly hurt freedom of expression due to the burden it places in terms of defense. Defending oneself in a remote state can be an act of punishment itself which could dilute the very strengths the constitutional rights sought to promote. That part does worry me.

So what can be done about it ?
For starters I think the legislature while continuing to make people accountable for their expressions should pursue mechanisms by which the cost of implementing such accountability could be reduced. How that could be done is beyond my capabilities and understanding of the legal system. Moreover the judiciary could in the cases it handles, continue to be very proactive in ensuring that the freedom of expression is strongly defended in the cases that come to it for redressal. It should also figure out a way to deal strongly and with penalties on any frivolous use of force to clamp down on expression.

Update : I am surprised with myself for having forgot this recent tweet of mine (post the NDTV / Chaitanya kunte episode). Quite simply it says :

   Right to express is inalienable from accountability of expression. Civil liberties are strengthened by responsible civility