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Book Publishers and Free Speech

Publishers’ decisions relating to the publication, non-publication and withdrawal of books have, in recent months, come increasingly under the scanner, with almost everyone but —it would seem— publishers airing detailed opinions of what publication decisions are based on and whether decisions which have come to be considered controversial in the public eye have been ethically acceptable. Most comments on the issue have seemingly been made without context as comprehensive sets of internal documents relating to publication decisions have never been released into the public domain, and the result has been that many of these comments have been virtually indistinguishable from wild speculation sometimes attributing disreputable motive to publishers.

Considering the lack of comprehensive information in the public domain, it appears unproductive to speculate on any individual book or publisher. And although it does not appear to be in question that publishers have (as a general rule) the right to choose what content or which authors to publish, there are wider questions that need to be addressed relating to what the (reading) public can legitimately expect of publishers and what obligations publishers have to the general public in terms of making content available and accessible, as well as in terms of supporting free speech. After all, publishers effectively control the availability of content in a democracy which supposedly holds sacred free speech (or at least recognises it as an inalienable fundamental right of its citizens).

Despite the critical role which publishers play in what is, for all practical purposes, a privatised knowledge economy in a socialist, secular, democratic republic, when it comes to making publication decisions, they have little in the way of a safety net. There is no body comparable to the Central Broad of Film Certification when it comes to books —and thank Goodness for that!— whose decisions a publisher may be able to rely on to give the publication of controversial content a veneer of legitimacy. Neither do traditional publishers have the protection accorded to online intermediaries which (to an extent) creates exemptions from liability for content generated by users (or authors). And, in consequence, publishers are themselves responsible (and legally liable) for the content that they choose to publish. Content which, by default, is governed by many disparate laws knitted together in the form of what can only be described as a labyrinth that usually requires a dedicated lawyer to clarify (or attempt to clarify).

This, of course, leaves publishers in a legally vulnerable position when it comes to their making (or having made) content available. On one hand, they appear to have the perceived duty to ‘stand up for free speech’ while, on the other hand, they have no real exemptions from legal liability in relation to the content they publish. An obligation, it would seem, without a corresponding right, compounded by the fact that engagement with ‘the [legal] process is [itself] the bloody punishment’ to quote Liang out of context.

If that weren’t enough, publication decisions are not made in a legal vacuum, but in a social arena which tends to come complete with large groups of people often vehemently for or against the publication of specific content — people who sometimes express their feelings through the written word and who are, at other times, wont to express their feelings through vandalism or worse; in the latter case, these are people against whom publishers may not have any pre-emptive protection worth speaking of.

Unsurprisingly, a combination of legal issues and ‘inhospitable’ ground realities has the potential to result in publishers ‘not standing up for free speech’ as popular charge puts it (or not running the risk of martyring themselves for free speech, if that’s how one sees it). And however much one may hope that publishers would always ‘stand up for free speech’, given all that’s involved, it isn’t entirely clear how ‘the public’ can legitimately demand that publishers face risks (which they themselves often do not face and may possibly choose not to face themselves) particularly since publishers have no broad, binding legal duty to shoulder assorted risks in the name of free speech. And since a publisher’s refusal to make specific content available to the general public could, in certain circumstances, be grounds to apply for the issue of a compulsory licence under the Copyright Act (enabling a third party to publish the content in question) — this is a route which free speech enthusiasts have generally not gone down and going down which would result in their facing the same risks that publishers face themselves.

Publication decisions, without doubt, have free speech implications. However, unbridled criticism of publishers doesn’t solve the free speech concerns which emerge in the context of publication decisions to ostensibly self-censor content for fear of violating content laws or due to assorted non-legal concerns. Challenging social intolerance of the publication of specific content, and working towards rehauling Indian content laws — including the provisions in the CrPC and Customs Act under which books can be banned although they do not directly impact self-censorship — is probably where the solutions lie.

That Indian society has become increasingly intolerant of plural narratives and that Indian content laws are in desperate need of amendment is virtually unarguable. Addressing both of these issues would likely be a long drawn out battle but would probably do far more for the cause of free speech in the long term than vociferously expressing the expectation that publishers consistently ‘stand up for free speech’ in a manner acceptable to those making the demand.

Disclaimer: I’ve advised various publishers on assorted publication issues. This post, however, has emerged solely from some of my own thoughts whilst rendering advice over the years.

Clarification: This piece primarily keeps in mind traditional publishers, and not self-publishers.

(This post is by Nandita Saikia and was first published at
Indian Copyright.)