A Presentation On:

The Curious Case Of:

VINAY RAI V/S

FACEBOOK INDIA, AND OTHERS A criminal complaint in the Patiala House

Court of New Delhi, Complaint Case No. 136 of 2011.

IN THE COURT OF SUDESH KUMAR, METROPOLITAN MAGISTRATE.

INTRODUCTION TO THE CASE• The case deals with outrageous and extremely malicious content posted on

the social media websites mentioned before.

• One, Mr. Vinay Rai, a vigilante, a Senior Journalist and the incumbent Editor of an Urdu daily , ‘Akbari’ filed a complaint in the Court of the Metropolitan Magistrate Patiala House Courts, New Delhi

• The complaint filed under section 153-A, 153-B, 292, 293, 295 (A), 298, 109, 500 and 120-B of IPC.  Against the accused persons who are publishers websites hosting  per-se inflammatory, unacceptable and highly degrading and obscene content.

• The complainant has further stated that the Social Networking Websites are meant only for providing content with respect to educational, historical, research material and entertainment work etc. as part of their commercial activities for social purposes.

• The Complainant seeks prosecution of the persons responsible for the management of these websites under the sections mentioned above and thereby seeks conviction.

PROCEDURAL HISTORY OF THE CASE

• Case filed U/s 153 (A), 153(B), 292, 293, 295(A), 298, 109, 500 and120-B IPC heard in the Court of Mr.Sudesh Kumar Metropolitan Magistrate of Patiala House Courts, New Delhi;

• Mr. Vinay Rai gave pre-summoning evidence in the form of the firsthand printouts from the said websites having published objectionable and obscene content, alleged to bring about communal disharmony and also which could destroy the secular fabric of India. This evidence was submitted to the Court in a well-guarded envelope as a part of the social-responsibility of Mr.Vinay Rai and other witnesses.

• Four witnesses were examined supporting the complaint in question. • The witnesses particularly belonged to different socio-cultural sects, following

different religions. Mr. Rohit Mammen (a self-proclaimed Orthodox Christian), Dr. Aziz Ahmad Khan (a P.HD scholar of Urdu), Mr. Rahul Agrawal and Mr. Vinay Rai himself.

• All of the four witnesses vouched for the fact that they are persons who strongly believe in the Doctrine of Secularity and thereby would go to any extent to maintain peace and communal harmony in the Country.

Continued…

• Complainant witness was examined in pre summoning evidence and the pre summoning evidence was closed. As the addresses of most of the respondents are beyond the jurisdiction of this court, an enquiry report U/s 202 Cr. PC was sought from the SHO concerned regarding the authenticity of documents as filed in the court.

• SHO PS Tughlak Road has furnished this enquiry report, after going through as many as 60 internet generated printouts which were handed over by the Complainant to the Court as evidence, the Judge found that printouts as furnished and exhibited on bare perusal are found to be obscene, lascivious, indecent and shocking. The printouts shown are totally degrading and demeaning.

• He further held that the pictures are blasphemous towards all the religions and the printouts contain obscene and derogatory articles pertaining to Prophet Mohammed, Jesus and various Hindu God and Godesses. There are defamatory and obscene articles pertaining to various Indian political leaders.

ISSUES RAISED IN THE CASE.

• Offences of publishing blasphemous and highly demeaning and derogatory content on websites which have the potential of harming the National Integrity of the country and its secular fabric thereof.

• Unruly and unethical use of the Freedom of Free Speech and Expression U/s 19 of the Constitution of India.

• Whether there is violation of Sections 153 (A), 153(B), 292, 293, 295(A), 298, 109, 500 and120-B of the Indian Penal Code (IPC)

JUDGEMENT. The Judge held that, “ I am satisfied that the said contents produced on record by

the complainant and which were available on various websites are not protected by the doctrine of free speech of expression under our Constitution. In fact much content fell foul of Provisions of Article 19 (1) (a) of the Constitution of India.”

He further stated that, “it is clear that there is prima facie material on record against the accused persons for committing offences U/s 292/293/120 IPC and they are liable to be summoned for facing trial for the same.”

“from the testimony of these witnesses examined on record belonging to three different religions alongwith the material produced on record, it is evident that the same promotes enmity between different groups and religions, which is certainly prejudicial to the maintenance of peace and communal harmony.”

In the concluding lines of the Judgement, he also stated that he had taken into consideration the Complainant’s counsel’s argument that the Govt. of India seems to have turned a blind eye towards such offensive and degrading content on websites are a live threat towards NATIONAL INTEGRITY, et a copy of this Order be also sent to the Government of India through the Secretary (Information and Technology), Secretary (Home) and Secretary (Law) for taking the immediate appropriate steps in this regard and file a report on the next date of hearing.

IPC Sections under which summon issued

• U/sub-clause [1] any book, paper, pamphlet, writing etc is considered obscene if it is lascivious or appeals to the prurient interest…

• U/sub-clause [2] Whoever– sells or publicly exhibits or in any manner puts into circulation… shall be considered as an offence committed under this section

Sec. 292 (Sale, etc., of obscene

books, etc.)

•Whoever sells, exhibits or circulates to any person under the age of 20 years any such obscene object shall be punished with either imprisonment or fine or both.

Sec. 293 (Sale, etc., of obscene objects to young

person)

•Whoever, intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence which is punishable and voluntarily conceals, by an act or legal omission the existence of a design to commit such an offence.

Sec. 120-b (Punishment of

criminal conspiracy)

Media Interpretation of the Case

Firstpost.com

• “Vinay Rai vs Facebook: Govt uses courts to censor the Internet”• The government is back to curbing online portals and social networking sites; this time, via the judiciary.• “Sibal not a lone crusader for internet censorship” Vinay Rai and Aijaz Ashraf Qazmi also seek shutting down of

‘erring’ websites.

The Hindu

• “The curious case of Vinay Rai”• CENSORING THE INTERNET: A blanket censorship of content is squarely in violation of the constitutional right to freedom of speech.• it is of great concern that the mechanisms provided under Indian cyber law, namely, the take-down provisions are not being invoked either by

the government or by litigants such as Vinay Rai who prefer criminal prosecution over sending an email to a website asking them to disable offending content.

ANALYSIS• A vigilante like Mr. Vinay Rai who happens to be a journalist is no doubt a

boon to the society. Especially a society which fully immersed in the frivolous waves of “Social-Media Networking”. Freedom of free speech and expression find a great usage in this arena. Liberty of expressing one’s own views and thoughts is widely practiced through these websites. But, with liberty comes a great deal of responsibility too. Liberty involves a social contract and not just personal liberty and thus the term SOCIAL RESPONSIBILITY comes into picture. Nothing is over and above law and that under the realm of law and there is pursuit of happiness.

• In the impugned case, the Complainant raised a very commonly noticed but seldom expressed or for that matter revolted about; topic which was the public exhibition of obscene, unruly, derogatory and malafide content on Social-media websites. He also submitted certain print-outs which were regarded as “evidences” against the accused websites. This gesture was thus laudable because Court was brought to take cognizance on such a matter.

Continued…

• But, in regard with this case a bone of contention is raised as to the matter that remedy was seeked for from a wrong platform. Many say that Mr. Vinay Rai and his legal representatives should have invoked the sections of The Information Technology Act, 2000 in order to ensure proper cognizance in the matter.

• Also, for the fact that a first hand complain was to be directed towards the redressal forums of the websites first, before going to file a complaint in the Court.

• The laws has struggled to adapt to social media legal scholars, judges and ethicists say that social media is also creating a range of new challenges for law enforcement. In some cases, the flood of digital information has overwhelmed investigators

ConclusionFamous essayist A.G Gardiner in his Essay “On the Rule of the Road” quoted;

“There are a lot of people in the world, and I have to accommodate my liberty to their liberties.”

Rightly so, with every set of responsibilities comes another set of duties which should duly be taken care of by the countrymen. In the case of Vinay Rai v/s Facebook and Others; the impugned websites made unethical use of the freedom of free speech and expression by publishing and exhibiting notorious, obscene, derogatory content which creates a harmful effect on the viewers and negatively effects their perspective. Blasphemous content which is a live threat to the communal harmony of the country and which has the potential to damage the secular fabric of India was also put up on these websites. Irrespective of the intention of the publishers, any harmful caused by such objectionable and abusive content can be taken into cognizance via the principle of ‘Absolute Liability’. Through this case, Vinay Rai ignited a major controversy over free speech on the Internet in India with a lawsuit alleging criminal negligence by Google, Facebook and other companies for not removing objectionable material from their sites and thus there seems to be an uprise in the Online-Content-Crusaders which is mainly due to the gross violations of public law. The judgement involved in this case took strict cognizance against this issue and also tried to raise a question on the Governmental vigilance on such websites.

Democracy is a give and take between people in which there is a notion of shared responsibilities and thus social control becomes a shared social responsibility.

“Propaganda is to a democracy what the bludgeon is to a totalitarian state.” 

― Noam Chomsky, Media Control: The Spectacular Achievements of Propaganda