FOLLOWING CHINA’S FOOTSTEPS ON ONLINE

CENSORSHIP: RIGHT MOVE FORWARD FOR INDIA?

The dominant understanding of Internet censorship posits that blocking access to foreign-
based websites creates isolated communities of Internet users. We question this discourse for
its assumption that if given access people would use all websites. We develop a conceptual
framework that integrates access blockage. We examine the case of China, where online
blockage is notoriously comprehensive, and compare Chinese web usage patterns with those
elsewhere. These revelations generated outrage among commentators and legislators and led
to calls for action. This Note examines the methods of internet censorship employed by China
and other nations, and explores the assistance that U.S. companies have provided to these
nations. It analyses the liability issues facing these companies in light of existing case law and
statutory solutions proposed. Our sociological investigation reveals a greater role of cultural
proximity than access blockage in explaining online behaviours. To test this conceptual
framework, we focus on China where Internet censorship is most developed and has garnered
enormous attention internationally

Table of Contents

I. INTRODUCTION .............................................................................................................. 1
II. ONLINE CENSORSHIP IN CHINA................................................................................... 2
1. Golden Shield Project ................................................................................................ 2
2. Laws in China regulating the internet ....................................................................... 2
III. DEBATE OVER CENSORSHIP ..................................... Error! Bookmark not defined.
1. Policy debate over censorship ................................. Error! Bookmark not defined.
2. Legality of censorship in China ................................................................................. 3
IV. INDIAN GOVERNMENT ACTIONS OVER CENSORSHIP.......................................... 4
1. Policies allowing online censorship in India ............................................................. 4
2. Legality of online censorship in India ....................................................................... 4
V. CONCLUSION................................................................................................................... 5

I. INTRODUCTION
China is one of the most notorious countries in the world in the sphere of internet censorship
and surveillance1. China has governed the use of internet through the mode of regulations.2 The
history of this, dates back to early 1998, with the Golden Shield project of the Chinese
government.3 The primary goal of the project was to censor “illegal” and “offensive”
comments. Gold Shield had the statutory authority to select ‘sensitive words’ and censor
whatever it deems as ‘morally offensive’. This reaffirms the apathy and grudge, the Chinese
government fosters against democracy and free speech.
This paper attempts to throw light upon the system that the Government of China adopts to
censor the internet and does an analysis of the legality of this system, both under Chinese
domestic law as well as international law. Further, this paper delves into the actions of the
Indian government to censor the internet and invade the privacy of its citizens. The author
attempts to answer the question whether the Indian government is following the path taken by
the Communist party in China and transforming India into an Orwellian Big Brother state.

II. ONLINE CENSORSHIP IN CHINA

1. Golden Shield Project

The Golden Shield Project was started in 2000. This is also informally called as the great
Firewall of China which was a massive government funded project to conduct nationwide
internet censorship and surveillance.4 The main aim of this project was to conduct a database-
driven surveillance system to every citizen’s record under the garb of national security.5 The
project uses internet controls and IP address to ban a content and websites across China.6

2. Laws in China regulating the internet

Regressive laws allowing prior restraint, exist under Chinese law, such as the requirement to
seek permission from an appropriate government agency before sharing any information
through online news media.7 International media is further silenced by mandating
governmental approval before anyone can work with a foreign news service for any news
pertaining to China. 8 Privacy is further violated by asking online websites and internet cafes

1
HUMAN RIGHTS WATCH, “Race to the Bottom” Corporate Complicity in Chinese Internet Censorship, (August
2006), available at https://www.hrw.org/reports/2006/china0806/china0806webwcover.pdf (Last visited on July
31, 2019).
2
Information Office of the State Council, Basic Principles and Practices of Internet Administration, The Internet
of China, June 8, 2010, available at http://china.org.cn/government/whitepaper/2010-
06/08/content_20207983.htm (Last visited on July 31, 2019).
3
Base Creative, The Golden Shield Project, available at https://www.basecreative.co.uk/opinion/the-golden-
shield-project/ (Last visited on July 31, 2019).
4
Torfox, A Standford Project, The Great Firewall of China: Background, June 1, 2011, available at
https://cs.stanford.edu/people/eroberts/cs181/projects/2010-11/FreedomOfInformationChina/the-great-firewall-
of-china-background/index.html (Last visited on July 31, 2019).
5
Chao Tang, In-depth analysis of the Great Firewall of China, December 14, 2016, available at
https://www.cs.tufts.edu/comp/116/archive/fall2016/ctang.pdf (Last visited on July 31, 2019).
6
Elizabeth Kathleen Dodson, Cracks In the Golden Shield: The Rising Challenge of expanding Chinese Internet
censorship technologies, available at
http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.875.6601&rep=rep1&type=pdf (Last visited on July
31, 2019).
7
Congressional - Executive Commission on China, Prior Restraints, available at
http://www.cecc.gov/pages/virtualAcad/exp/exppriorrestraints.php (Last visited July 31, 2019).
8
Id.
to retain the all the information which is posted on their site and the IP address for sixty days9.
The enforcement of these domestic laws is done by Internet information service 10. There are
several agencies which regulate internet content and post internet content.11

III. LEGALITY OF CENSORSHIP IN CHINA

Under Article 33 of the Chinese Constitution, the state respects the Human rights of all its
citizen’s.12 Under article 35, the Chinese citizens enjoy the freedom of speech.13 Further, under
Article 40 the right to privacy of the citizens is protected except in the cases of state security,
or criminal investigation, when the state is empowered to censor correspondence in accordance
with law14. Clearly the aforementioned domestic laws are blatantly violating the exception for
national security to infringe upon the freedom of the citizens and has lead to chilling of free
speech in China15.

Article 12 of The Universal Declaration of Human Rights(UDHR) outlines the right to privacy,
it states that “[n]o one shall be subjected to arbitrary interference with his privacy, family,
home or correspondence...."16 The right of free speech is found in Article 19 of the UDHR,
which states that "[e]veryone has the right to freedom of opinion and expression; this right
includes freedom to hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers."17

Article 17 of the International Covenant on Civil and Political Rights (ICCPR) has a similar
outline as the Article 12 of the UDHR and protects the right to privacy18. Article 19 of the
ICCPR says that everyone "shall have the right to hold opinions without interference."19
Despite the ICCPR being a document from before the internet age, the principles still apply to
the internet, as mentioned in a joint statement by the UN Special Rapporteur, Organization for
Security and Cooperation in Europe, and the Organization of American States, which
recognises the applicability of the law of freedom of expression to the Internet.20

9
Congressional - Executive Commission on China, Blocking, Filtering, and Monitoring, available at
https://www.cecc.gov/blocking-filtering-and-monitoring (Last visited July 31, 2019).
10
Id.
11
Congressional - Executive Commission on China, Agencies Responsible for Censorship in China, available at
https://www.cecc.gov/agencies-responsible-for-censorship-in-china (Last visited July 31, 2019).
12
The Constitution of China, Art. 33.
13
Id., Art. 35.
14
Id., Art. 40.
15
Congressional - Executive Commission on China, Silencing Critics by Exploiting National Security and State
Secrets Laws, available at https://www.cecc.gov/silencing-critics-by-exploiting-national-security-and-state-
secrets-laws (Last visited July 31, 2019).
16
Universal Declarations of Human Rights, G.A. Res. 217A, U.N. Doc. A/810 (December12, 1948), Art. 12.
17
Id., Art. 19.
18
International Covenant on Civil and Political Rights, G.A. Res. 2200 (XXI) A, 21, U.N. Doc. A/6316 (December
16, 1966), Art.17.
19
Id., Art. 19.
20
OSCE, Joint Declarations of the representatives of intergovernmental bodies to protect free media and
expression, December 21, 2005, available at https://www.osce.org/fom/99558?download=true (Last visited July
31, 2019).
China however, is not bound by the terms laid down by ICCPR as China has signed but not
ratified and they need not make any efforts to ratify the same.21 China has however, owing to
international pressure, promised to improve freedom of internet freedom and freedom of
expression in relation with the domestic laws.22

IV. INDIAN GOVERNMENT ACTIONS OVER CENSORSHIP

1. Policies allowing online censorship in India

While on the face of it, the motive behind government sponsored online censorship in India is
to protect the sovereignty, public order, etc, behind closed doors it is to protect the ruling party
from dissent. The ideology is similar to that of the Chinese Communist party which tries to
will block any information which may seem to disrupt social stability and be a threat to the
society.23

The Indian government has also attempted to adopt Chinese style policies to control the
internet.24 The newly proposed rules of the Indian government give itself the power to demand
online sits to take down content which may be defamatory, hateful, violative of privacy, etc.25

The government has proposed the new rules in an attempt to curb the growing threat of fake
news. However, the proposed changes include amendments to Section 79 of the IT Act26, which
is a safe harbour provision protecting intermediaries from third party content on their platforms.

2. Legality of online censorship in India

In India, the Judiciary has taken strict action against any attempts by the government to curb
the freedom of speech. This is reflective in the Supreme Court’s act of striking down the
repressive Section 66A of the IT Act which allowed the government to arrest individuals for
posting offensive content online.27

Furthermore, the Indian Supreme court has recognised the Individual’s right to privacy under
the law28 and therefore any action by the Indian government to impinge upon the rights of the
citizens would be met with strict judicial scrutiny.

21
Human Rights Watch, China: Ratify Key International Human Rights Treaty, available at
https://www.hrw.org/news/2013/10/08/china-ratify-key-international-human-rights-treaty (Last visited July 31,
2019).
22
State council of the People’s Republic of China, Full text: National Human Rights Action Plan of China (2016-
2020), September 29, 2016, available at http://www.china.org.cn/archive/2009-04/13/content 17595407.htm
(Last visited July 31, 2019).
23
Anne SY Cheung, The Business of Governance: China’s Legislation on Content Regulation in Cyberspace’,
INT. LAW AND POL.(Nov. 2006).
24
New York Times, India Proposes Chinese-Style Internet Censorship, February 14, 2019
available at https://www.nytimes.com/2019/02/14/technology/india-internet-censorship.html (Last visited July
31, 2019).
25
Ministry of Electronics and Information Technology, The Information Technology [Intermediaries Guidelines
(Amendment) Rules] 2018, available at
https://meity.gov.in/writereaddata/files/Draft_Intermediary_Amendment_24122018.pdf (Last visited July 31,
2019).
26
The Information Technology Act, 2000, §79.
27
Shreya Singhal v. Union of India, (2013) 12 S.C.C. 73
28
Justice K. S. Puttaswamy (Retd.) and Anr. vs Union of India And ors., Writ Petition (Civil) No. 494 of 2012.
The Indian Constitution protects the freedom of speech and expression under article 19.29
Furthermore, India is a signatory to the ICCPR unlike China and therefore has a much more
robust framework for protection of freedom of speech.30

V. CONCLUSION
As described above, while the Indian government may make attempts to censor the internet in
India, however Internet censorship in India will not be accepted by the Indians because of its
vulnerability to power politics. In the status quo, internet represents equality. Anyone and
everyone can publish or write their content easily as well as voice their opinions. Internet
censorship if applied may block access to honest criticism on government, opposition parties’
websites in the name of ‘hate speech’ and ‘fake news’. A free internet gives an individual a
chance to post what they want to without fear of arrest from the government. It gives them a
chance to express their thoughts, views and opinions.

The laws may exist in many jurisdictions that will allow for the prosecution of an individual
who shares ‘illegal’ content. The problem with internet censorship is that the state then
decides what are the correct moral and ethics are, making it a big brother state where the
morality of the government is imposed upon the citizens. This can be highly problematic and
prevent change in a society. New and liberal ideas will never surface and that is when the
development of society will stop.

The Author proposes a novel solution that, allows market forces to prevent the government
from undertaking such strict censorship policies.31 If technology companies undertake to lobby
hard against such activities of the government and abstain from entering markets with
restrictions on freedom of speech then the governments of these nations will be forced to relax
their laws and allow for freedom of speech.

Conlusion should have been in the body.

Focus more india than chaina
More of legal analysis
Your opinion(descriptive)

29
The Constitution of India, Art. 19.
30
UN Treaty Collection, International Covenant on Civil and Political Rights New York, 16 December 1966,
available at https://treaties.un.org/Pages/ViewDetails.aspx?chapter=4&clang=_en&mtdsg_no=IV-4&src=IND
(Last visited July 31, 2019).
31
Richard A. Posner, "Free Speech in an Economic Perspective," 20 SUFFOLK UNIVERSITY LAW REVIEW 1
(1986).