Tue 14 February 2023:
Govt efforts to ban the BBC documentary drew more attention to it and showed the inefficacy of such measures.
If one were to rank the top incident that has marred Indian Prime Minister Narendra Modi’s political career, it would be the Gujarat riots of 2002. And a year before India goes to polls to possibly elect Modi for a third term, his government’s attempts to suppress any public discourse around the riots have backfired on the global stage.
The Indian government’s blocking orders to YouTube and Twitter against the first episode of BBC’s two-episode documentary, India: The Modi Question, drew more attention to the documentary and showed the inefficacy of trying to ban online content.
The Indian government blocked links to the first episode of the documentary on YouTube and Twitter using the emergency blocking provision of the controversial Information Technology Rules 2021.
The legal community in India remains divided over whether the specific rule at play here, Rule 16 — which allows the government to block any online news content in the country if it threatens national security — can still be used since a couple of high courts have stayed parts of the Rules.
All this was amplified by the BBC’s own copyright claims to YouTube, Facebook, Internet Archive and other platforms.
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The BBC had released the documentary on BBC Two and made it available only in the UK through its online streaming service BBC iPlayer. However, the first episode, released on January 17, was soon being bootlegged across all social media platforms.
The documentary looked at Modi’s role in the 2002 riots in the state of Gujarat, where he was the chief minister at the time. It cited a previously unpublished report from the British Foreign Office that concluded that Modi was “directly responsible for a climate of impunity” that led to anti-Muslim violence, and that Modi had ordered senior police officers not to intervene. Official figures placed the eventual death toll at 1,044 people, of which 790 were Muslim.
Modi has always denied all allegations of failing to stop the riots.
The second episode, which looked at the Modi government’s performance after his re-election in 2019, was released on January 24. Two sources told Al Jazeera that no blocking orders had been issued against episode two.
In the three weeks since the documentary’s first episode was released, it has been denounced by India’s Ministry of External Affairs, blocked on YouTube and Twitter by the country’s Ministry of Information and Broadcasting (MIB), been subject of debate in both Indian and United Kingdom parliaments, and has caused students to be detained across at least three Indian universities.
Indian law that allows online blocking
On January 21, Kanchan Gupta, a senior adviser to the MIB, tweeted that the ministry had ordered YouTube and Twitter to block YouTube videos of the first episode of the documentary and that the two platforms had complied with the directions. Except for Gupta’s tweets, the Indian government did not publish any formal press release about the blocking orders and they have not been made public.
The orders were issued under Rule 16 of the IT Rules 2021, which empowers the MIB to issue an emergency content-blocking order on the recommendation of an authorised officer. Such an emergency order is considered an interim direction and must be confirmed by an interdepartmental committee within 48 hours. It is not clear if and when the interdepartmental committee was convened in this case.
Gupta’s tweets state that the documentary undermined the sovereignty and integrity of India, threatened public order, and potentially affected India’s friendly relations with foreign states. These are three of the six grounds on which a blocking order can be issued.
Apart from the IT Rules 2021, another set of rules commonly called the Section 69A Blocking Rules empower the secretary of the Ministry of Electronics and Information Technology (MeitY) to issue blocking orders to any intermediary.
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But is it legal?
Since the IT Rules were notified in February 2021, at least 17 lawsuits have been filed across Indian high courts challenging their constitutionality. Although certain parts of the Rules were stayed in 2021 by two high courts, the MIB continues to use the emergency blocking provision. And that has led to a divide within the legal community about the legality of such a move.
“While both Bombay and Madras High Courts stayed Rule 9 of the IT Rules, they were very clear that they were not staying Rule 16 which deals with blocking information in case of emergency,” said Vrinda Bhandari, one of the lawyers who challenged the rules in the Madras High Court, told Al Jazeera.
“In terms of emergency powers, both MeitY and MIB can issue emergency orders under 2009 Blocking Rules and IT Rules 2021, respectively,” she said.
But Tanmay Singh, senior litigation counsel at the Internet Freedom Foundation (IFF), a nonprofit that advocates for digital rights in India, disagrees. “[T]he limited powers vested in the I&B ministry [MIB] by the 2021 IT Rules … have been expressly stayed by the orders of the Bombay High Court and the Madras High Court. This essentially means the I&B ministry does not have any power to block content over the internet,” he wrote in September 2022.
According to Gupta’s tweets, the MIB, the Ministry of External Affairs, and the Ministry of Home Affairs (MHA) were among the agencies that had recommended that the documentary be blocked. The MHA is led by Amit Shah, Modi’s right-hand man who has been a close associate for the past several decades.
In the past two years — and before the orders to block the BBC documentary — the MIB issued at least nine orders through which it had blocked 104 YouTube channels, 45 YouTube videos and 25 websites, as well as social media accounts, posts, and apps. All these orders were issued under the emergency blocking provision. This means that the interdepartmental committee would not have been convened before the orders were passed. It is not known how many times this committee has been convened.
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The MeitY, on the other hand, has usually issued orders under normal and not emergency blocking provisions over the last twelve years. MeitY’s Section 69A blocking committee is usually convened once every two weeks, but if the volume of content is significant, it will meet weekly as well. The IT ministry told the Indian Parliament last week that its Section 69A blocking committee had met 220 times between 2018 and 2022.
While blocking orders issued by MeitY are bound by a confidentiality clause, there is no such binding provision for MIB orders. Yet that process, too, is shrouded in secrecy.
Gupta said in his tweets that both YouTube and Twitter had complied. While a YouTube spokesperson confirmed to Al Jazeera that “the videos in question have been blocked from appearing by the BBC due to a copyright claim”, they did not clarify if they had received an order from the Indian government.
Representatives of the MIB, MeitY, Facebook-parent company Meta, Telegram, Reddit and Discord did not respond to Al Jazeera’s queries. Twitter no longer has a communications team in India to reach out to for a response.
Musk’s Twitter is quick to comply
Twitter, unlike other social media platforms, shares all government orders that it receives with the Lumen Database, a Harvard University project that analyses legal requests to remove online content. In this case, the order lists 50 tweets that were withheld in India by Twitter. These include tweets from member of the opposition Derek O’Brien, senior lawyer Prashant Bhushan, journalist Mitali Saran, activist Kavita Krishnan and Hollywood actor John Cusack.
The alacrity with which Twitter complied was surprising. This was partly because its new owner, Elon Musk, has been vocal about being a “free speech absolutist”, and partly because Twitter, under its previous management, had challenged some of the Indian government’s blocking orders, including one referring to the Gujarat riots.
When questioned about Twitter’s compliance with the blocking order, Musk had tweeted, “First I’ve heard. It is not possible for me to fix every aspect of Twitter worldwide overnight, while still running Tesla and SpaceX, among other things.”
A day later, Ella Irwin, the head of trust and safety at Twitter 2.0, in an apparent reference to this incident tweeted that Twitter had to “suspend accounts, remove documentaries, videos, tweets and photos recently when the proper reporting process was followed”.
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The company is now quite clear — there will be no pushback as long as proper reporting processes have been followed. Under Twitter 1.0, an order that sought to stem criticism of a government would have been challenged by Twitter, a source familiar with the social media platform’s practices told Al Jazeera.
Bhushan, who has since challenged the blocking of the BBC documentary in the Supreme Court, is very clear — the documentary does not violate any of the restrictions on the right to freedom of speech and expression. “It does not fall under any of the grounds under which free speech can be curbed,” Bhushan told Al Jazeera.
Bhushan filed the lawsuit along with senior journalist N Ram and opposition member of Parliament Mahua Moitra.
The petitioners have also asked the blocking orders to be made public. “Without the actual order, we do not know what reasons have been cited for blocking and which other platforms have been asked to block content,” Bhushan said.
Tough to ban
However, what the exercise has done so far is to show how it is actually not possible to ban content online anymore if you are part of the global internet.
Since the blocking order has only been sent to YouTube and Twitter, it means that only those two platforms are required to block links to the documentary. Under IT Rules 2021, YouTube and Twitter are also required to ensure that mirror links to the BBC documentary are also blocked. Noncompliance could result in the loss of safe harbour for these two platforms, making them liable for all user-generated content on their platforms.
It also means that the documentary can continue to proliferate on other social media platforms, now creating a whack-a-mole situation.
This is because the Indian government cannot really issue an open blocking order against the documentary that would make it illegal to host it across the internet.
Both the Section 69A Blocking Rules and the IT Rules require an intermediary or an internet service provider to be identified to issue a blocking order, and for specific URLs to be listed.
It is easier for the government to ban entire websites and apps since then the government has to issue blocking orders against a finite number of intermediaries such as app stores or telecom service providers, the gatekeepers of all platforms. To block specific pieces of content, such as a video or a particular piece of text, or screenshots from either, it would have to scour through the entirety of the internet to identify the relevant intermediaries.
Can the government of India ban public screenings of this documentary? “They will not say that screening the documentary is illegal. They will say that the screening poses a probable/expected threat to public order where that probability might seem imaginary to someone else,” Abhinav Sekhri, a Delhi-based lawyer who works with the IFF, said.
That was how screenings were blocked in at least three universities in India.
To effectively ban the documentary, the government of India would have needed to get it blocked at the source — the BBC — itself. But since the BBC never made the documentary available outside the UK, blocking the BBC website and its apps in India would have been seen as a punitive action. “It would have made the government susceptible to legal challenges,” said Priyadarshi Banerjee, a partner at Banerjee & Grewal Advocates who represents Google in certain matters and previously represented Twitter.
On Friday, the Indian Supreme Court dismissed a right-wing Hindu group’s petition to ban the operations of the BBC in India, calling it “absolutely misconceived” and an attempt to impose “complete censorship”.
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Copyright claims
The reach of the documentary was also stymied by BBC’s own copyright claims. The Internet Archive removed links to the documentary in response to DMCA (copyright law) takedown requests from the BBC. YouTube and Facebook also acted on copyright claims by the BBC.
Takedown of content on the basis of copyright notices is a very prevalent practice in India. A January 2023 report by the Software Freedom Law Centre, India, showed that of the 55,607 URLs blocked between January 2015 and September 2022 in India, 47.6 percent were blocked under Section 69A of the Information Technology Act, and 46.8 percent were blocked for copyright infringement.
In response to Al Jazeera’s queries, a BBC spokesperson said, “As is our standard practice, we issue Takedown Notices to websites and other file-sharing platforms where the content infringes the BBC’s copyright.”
The BBC did not specify which platforms the notices had been sent to in the case of this documentary. A quick search shows that the documentary remains easily available on Facebook, Telegram, Vimeo and Reddit, among other platforms. On the open-source video-sharing platform Odysee, a few links have been taken down due to a copyright complaint, but the documentary remains available on other links.
“You can see the Streisand effect taking place in this case,” senior journalist Ram told Al Jazeera, referring to a phenomenon in which attempts to hide, remove, or censor information attracts more attention to it.
For instance, Google Trends show that there was minimal interest in the documentary in India when it was released. There was a spike in interest online on January 21 when MIB’s Gupta tweeted about it. There was a concomitant increase in interest about “gujarat riots”. Interest in India peaked on January 25 and dropped significantly on January 27, which is when interest in the controversy over Indian tycoon Gautam Adani started spiking exponentially. Globally too, a similar trend was observed.
“If they [Indian government] had left it alone or treated it in a low-key manner, it would not have become such a big issue. Since the documentary was only made available in the UK, sooner or later, the BBC itself would have got it removed from different platforms for copyright infringement,” Ram said.
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