So how much freedom should there be in cyberspace? It is clearly difficult to draw the right balance. While the internet has invested online speech with a lot of freedom, it has also raised concerns about the possible misuse of the anonymity that cyberspace affords. Youtube has a clearly laid out the terms of use, and it is difficult to certify how diligently each of the almost 65,000 postings made to the website daily follows the usage code.

Under clause 5C(iii) of the Term of Use, nobody should submit material that is unlawful, obscene, defamatory, libellous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or which encourages conduct that would be considered a criminal offence, give rise to civil liability, violate any law, or is otherwise inappropriate. Definitely the posting on Gandhi is inappropriate. As for the Brazilian video, it is definitely pornographic. Further when any video is flagged inappropriate, then Youtube refers to the above terms but the video is not taken off automatically. But all this does not take the responsibility out of Youtube, or for that matter Google. Google has its marketing activity in India and so there should also be a point of responsibility to address concerns such as this.

For the government, the situation is more complicated. On the one hand, it has to deal with the situation of public outrage and outcry from different corners for the banning of the video. In the event, the ministry of information and broadcasting acted firmly and took to task the two channels which aired the footage despite their prompt action and apologies. The Department of Information Technology (DIT), for its part, chose to get in touch with both Gautam Prasad and Youtube, instead of blocking the website in the first place — which it could have easily done. This was a sensible step, considering the fact that it is difficult for ISPs to censor portions of a website. In any case, there would have been a huge hue and cry from the online community if Youtube was blocked. However, DIT is now taking too long and for that matter so also are the other government officials who are capable of making a representation to CERT-in for the blocking of the website, given the laggard response from Google. Its industry friendly stance could also be challenged in the courts, considering the fact that the video’s contents involved a figure as revered as Mahatma Gandhi.

No doubt the issue is a relatively new one and there are few precedents. India is still grappling with the complex implications of cyberspace. However, such issues also demand a timely response and such a response must be based on the concept of a ‘balanced flow of information’. This is evident in the Government of India Gazette notification of February 2003, where steps for blocking of websites are well laid down. Even Section 69 of the IT Act, 2000, is reasonable enough to give powers to the Controller of Certifying Authority to intercept unlawful communications in cyberspace. Similarly, the role of Google could also be examined under the provisions of Section 79, which puts the onus on the intermediary for third party content. In short, options are there in plenty and they deserve to be carefully studied.

This incident should also come as a reassurance to the many votaries of free speech in the country. The track record of the government has been quite encouraging as far as protecting the right to free speech in cyberspace is concerned. However, there also needs to be more understanding about one crucial aspect: reasonable participation in cyberspace demands that the sentiments of others are not hurt.