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Analogies for web services

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In the ongoing battle to censor the net in India, the courts and the government are trying to hold web based companies responsible for content. Reuters reported an exchange during the hearing at the Delhi high court today:

At the heart of the dispute is a law passed last year in the country that makes companies responsible for user content posted on their websites, requiring them to take it down within 36 hours in case of a complaint.

The case was originally filed in a lower court, but the companies have appealed to the Delhi High Court, challenging the lower court’s ruling asking them to take down some content.

“The search engine only takes you till the website. What happens after that is beyond a search engine’s control,” Neeraj Kishan Kaul, a lawyer for Google’s Indian unit, told a packed High Court hearing on Monday.

“If you use blocks, which is very easy for people to say, you will inadvertently block other things as well. For example: the word ‘sex’. Even a government document like a voter ID list or a passport has the word ‘sex’,” he added.

Siddharth Luthra, a 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 the users should be held responsible for content they post.

Abstract statements like these do not seem to sway judges and reporters. Instead, TOI reported on analogies presented in the Delhi high court:

Google India’s counsel Neeraj Kishan Kaul argued before the Court that the complainant Vinay Rai has failed find out the bloggers or users who are posting such images and ‘instead blaming the landlord for what a tenant does’. “The landlord can’t be held liable for an illegal activity carried out by a tenant in his house,” said Kaul in a packed courtroom.

On this, the High Court Justice Suresh Cait reacted by saying a landlord would be liable. “In this case, the landlord is benefiting from the illegal activity carried out by a tenant. Thus the landlord is liable,” Justice Suresh Cait said on Google India’s argument.

Why these clunky exchanges involving stretching of definitions?

Laws are not always written to cover every eventuality that may arise. So lawyers and judges try to establish analogies which say why or how a situation is like something else for which there are well-known precedents. This is a widely used technique in courts. Only when such attempts fail, or are seen to lead to repeated absurdities, that the case for a new law is established.

So this exchange is not absurd. The question is whether a landlord-tenant relationship is an appropriate analogy. One crucial clue that this analogy is strained comes from the following snippet reported elsewhere by TOI:

He filed a representation in the court and said an online search for a word like “virgin” has 82.30 crore search results within 0.33 seconds and the idea of blocking a word like this would deprive net-users the required information.

Typically a landlord may have 10s of clients, perhaps even 100s. In some countries where banks own many apartment buildings, this number may extend to 1000s. But a landlord with a hundred crore tenants is unknown. So one must search for a more appropriate analogy in law.

An analogy which is close to the landlord-tenant argument is that of phone service provider and customer. We have faced terrorist attacks in which mobile phones were crucial components of the attack. Nevertheless, the government does not make it mandatory for phone companies to police every call. Instead, they are asked to verify the credentials of the user at the time the service contract is made. This is similar to the registration of tenants that is needed by law. This approach fails very often, because phone companies, like landlords, do not bother to check credentials in all cases. If they had, then perhaps the people who planned and executed the Mumbai and Delhi bomb blasts last year would not have succeeded. In these cases the intent of the law is defeated by the scale of the problem, ie, the number of people whose backgrounds must be checked. This analogy, and the solution suggested by it, is so clearly inapplicable to the web that no one is talking about it: not the politicians, nor the courts.

So, is there a better analogy? The answer is: yes. We are all familiar with the analogy of the internet as the information highway. In that case web companies are like tollway operators. This is an analogy which begins to approach the correct scale.

Some tollway operators may have several lakhs of toll payers using the road every day. Now if one of these cars is used to rob a bank, one does not hold the tollway operator responsible for this: even though the operator has made a profit from the criminal. Governments and courts have realized the impossibility of making the toll operator responsible for checking vehicles because that would make the traffic too slow for legitimate users of roads. The same principle should apply to web based companies. The web and search engines are roads, the content of social networking sites is being called the crime. Accordingly, one does not have to hold the toll company responsible for the crime.

Who is responsible for the crime, then? Clearly no one but the criminal, if one accepts the principle of censorship. Social networking sites do have a responsibility, though, because these are the places where the crimes occur. So these companies need to be responsive when the crime is pointed out. One cannot hold them responsible for preventing publication of such material in the first place, because that would be pre-censorship. After the emergency Indian courts threw out the principle of pre-censorship. In this view, what is needed is a good definition of censorable crimes which can be tested in court if an accused wants to contest the label.

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Written by Arhopala Bazaloides

January 16, 2012 at 5:21 pm

One Response

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  1. Hi there, It’s really interesting to visit your blog, it has all the appropriate information about web services.I am very thankful to you for giving such kind of information.


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