Access To Knowledge (A2K)

Freedom of Expression or Access to Knowledge: Are We Taking the Necessary Steps Towards an Open and Inclusive Internet?

praskrishna — 2011-04-05T03:59:34Z

The Centre for Internet and Society is co-organising a workshop on Freedom of Expression or Access to Knowledge: Are We Taking the Necessary Steps Towards an Open and Inclusive Internet? at the Internet Governance Forum on

Although cyber-utopian visions have long been discredited, the promise that the Internet contains as a tool to work towards democratisation and greater social justice has not yet lost its attraction. This workshop will consider what kind of Internet architecture is needed, what kind of 'openness' and Internet 'freedom' is required to ensure that such visions can actually translate into reality. While the importance of freedom of expression has been fairly widely acknowledged, a concerted approach to many more Internet governance issue is urgently required if those who are at the forefront of struggles for social justice online are to continue to do their important work. The interplay between access to knowledge (including access to information and access to culture) on the one hand and human rights on the other, too, for example, requires our urgent attention.

The aim of this workshop will be, then, to come to a more in-depth and more rounded understanding of what issues impact the democratising potential of the Internet and how exactly they do so, so that we can also start communicating about these with greater clarity. To reach this aim, the workshop will bring together activists, researchers and other stakeholders with expertise on different regions of the world and, consequently, at times diverging opinions on what the problems and solutions with regard to Internet governance are, and will bring them in debate with each other.

The workshop will be organized in a roundtable format in order to increase the involvement of the participants. Initial remarks of the speakers will be followed by debate, and active moderation will ensure that the discussions are dynamic. The issues raised by the speakers will be grouped under several axes, including: (i) Civic empowerment online: towards a new public sphere?; (ii) governmental and private control over information and personal data; (iii) Cases of tension between copyright protection and access to knowledge online. Cases such as the adoption of laws following the three strikes model and the adoption of open data regulations will be taken into consideration.

Which of the five broad IGF Themes or the Cross-Cutting Priorities does your workshop fall under?
Security, Openness and Privacy

Have you organized an IGF workshop before? Yes
If so, please provide the link to the report:
http://www.intgovforum.org/cms/index.php/component/chronocontact/?chronoformname=Workshopsreports2009View&curr=1&wr=94

Provide the names and affiliations of the panellists you are planning to invite:
Civil Society:
Robert Guerra – Freedom House, US
Anja Kovacs – Centre for Internet and Society, India
Kevin Bankston – EFF, US

Academics:
Marília Maciel - Center for Technology and Society - Brazil
Jeremy Malcolm - Consumers International, Kuala Lumpur, Malaysia

Government:
Johan Hallenborg – Swedish Ministry for Foreign Affairs, Sweden
José Murilo Junior – Brazilian Ministry of Culture, Brazil

Business sector:
Alan Davidson – Director of Public Policy and Government Affairs for the Americas
Cornelia Kutterer, Microsoft, Belgium

Multistakeholder initiative:
Susan Morgan, Global Network Initiative

Remote moderator:
Carlos Affonso Pereira de Souza - Center for Technology and Society, Getulio Vargas Foundation, Brazil

(A moderator is still to be determined but will be chosen from among the civil society and academic speakers. All speakers have confirmed their participation)

Biographies:
There are no panelists biographies associated to this workshop at the moment.

Provide the name of the organizer(s) of the workshop and their affiliation to various stakeholder groups:
Carlos Affonso Pereira de Souza - Center for Technology and Society, Getulio Vargas Foundation – civil society
Johan Hallenborg, Swedish Ministry for Foreign Affairs - government
Anja Kovacs, Centre for Internet and Society - civil society
Jeremy Malcolm. Consumers International - civil society
Marília Maciel - Center for Technology and Society, Getulio Vargas Foundation – civil society

Organization:Centre for Internet and Society, India, and Center for Technology and Society of the Getulio Vargas Foundation, Brazil

Contact Persons: Anja Kovacs and Marília Maciel

For more details visit https://cis-india.org/events/freedom-of-expression

Freedom of Expression on the Internet : Possibilities and Challenges

praskrishna — 2017-07-09T02:30:32Z

Sharat Chandra Ram was a speaker at an international seminar organized by Bolivar Technological University, Cartagena in Colombia on June 29, 2017. The theme of the seminar was ‘Freedom of Expression on the Internet : Possibilities and Challenges”.

For more info on the event, click here

For more details visit https://cis-india.org/internet-governance/news/freedom-of-expression-on-the-internet-possibilities-and-challenges

Freedom of Expression in Community Media and on the Internet Understanding Connections, Finding Common Ground

praskrishna — 2012-02-03T11:00:31Z

A meeting co-organised by the Internet Democracy Project (Delhi) and Maraa (Bangalore) with the support of the Community Radio Forum in New Delhi on 3 February 2012. Pranesh Prakash is participating in this event.

Access to FM radio and broadband Internet access have proliferated since the 90s. Since 2006, community radio has been licensed to community and educational initiatives. Today there are more than 150 community radio stations which are operational, reaching some of the most underserved communities in India. Further, Internet penetration is about 8-10%, reaching about 100 million people. Both these media are on the verge of a paradigm shift.

Due to ever-increasing convergence and the ubiquity of digital communication platforms and mobile telephony, community radio stations will be able to reach not just deeper but wider. The emergence of indigenous fonts and Internet on wireless mobile technologies will mean that the next few hundred million people will begin using the Internet. Both of these phenomena are positive developments signalling possibilities of greater democratisation of media and media for the democratisation of India at multiple levels. However, there are significant issues which threaten to
impede the free growth of these platforms - troubling as it is, the threats are related to barriers on freedom of expression.

While radio still faces a ban on the broadcast of news and current affairs, opaque spectrum allocation, the imposition of a government content code and pressure to self-regulate, the Internet on the other hand has seen tumultuous developments through 2011 and early this year as well. Both the government and the judiciary have shown scant respect for and confidence in their own people, choosing instead to regulate the free flow of information citing communal sensitivities, minority population, objectionable content, etc.

This meeting aims to bring together advocates and practitioners from both the community radio and the Internet communities, to discuss what restrictions there are on freedom of expression, through law and policy; what commonalities there are between the two platforms; and what the areas and mechanisms are through and in which these two groups can work together in the future to engage policy and legal frameworks so that people's constitutional right to freedom of speech and expression is upheld in letter and in spirit.

The meeting invites about 15 participants from both community radio and Internet circles, from across the country. The meeting will be held between 10:00 a.m. and 5:00 p.m. on 3 February 2012 and will take place at the UNESCO Office, B-5/29, Safdarjang Enclave, New Delhi 110029.

Agenda

10.00-10.30 a.m.	Welcome and Introductions Anja Kovacs and Ram Bhat
10.30-11.15 a.m.	Community Radio and Freedom of Expression Sajan Venniyoor Moderated by Ashish Sen
11.15-11.30 a.m.	Tea Break
11.30 a.m.-12.15 p.m.	The Internet and Freedom of Expression Anja Kovacs Moderated by Ashish Sen
12.15-13.30 p.m.	Freedom of Expression in Community Media and on the Internet: Overlaps and Common Issues Group Discussion, moderated by Ram Bhat
13.30-14.30 p.m.	Lunch
14.30-15.15 p.m.	Joint priorities for community media and Internet activists Group Discussion, moderated by Siddharth Narrain
15.15-15.30 p.m.	Tea Break
15.30-16.15 p.m.	Taking it Forward – Plan of Action Group Discussion, moderated by Anja Kovacs
16.15-16.45 p.m.	Thanks and Wrap-up Ram Bhat and Anja Kovacs

List of Participants

Anja Kovacs – Internet Democracy Project
Arti Jaiman – Gurgaon ki Awaaz and CRF
Ashish Sen – AMARC Asia Pacific and CRF
Debarun Dutta - Drishti
Geeta Seshu – the Hoot
Hemant Babu – Nomad India and CRF
Mir Ubaid – the Hoot
N Ramakrishna – Ideosync Media
Parminder Jeet Singh – IT for Change
Pranesh Prakash – Centre for Internet and Society
Ram Bhat – Maraa
Sajan Venniyoor - CRF
Sapna Shahani - WAVE (Women Aloud Videoblogging for Empowerment)
Siddharth Narrain – Alternative Law Forum
Srinivasan Ramani – Newsclick.in

For more details visit https://cis-india.org/news/freedom-of-expression-in-community-media-and-on-the-internet-understanding-connections-finding-common-ground

Freedom of Expression in a Digital Age: Effective Research, Policy Formation & the Development of Regulatory Frameworks in South Asia

jyoti — 2015-04-12T03:53:04Z

The Centre for Internet & Society cordially invites you to a panel discussion on Freedom of Expression in a Digital Age. The event organized by Center for Global Communication Studies at the Annenberg School for Communication at the University of Pennsylvania, Observer Research Foundation and the Centre for Internet and Society will be held at Observer Research Foundation on April 21, 2015 from 11.00 a.m. to 6.00 p.m.

The discussion will highlight the challenges in promoting and strengthening online freedom of expression and evaluating the application of existing regulatory frameworks in South Asia. Click to view the invite.

International Frameworks and Freedom of Expression

Freedom of expression-an important fundamental right in itself, is also critical for defending and upholding other freedoms and rights. We exercise this right in our day-to-day lives, through the exchange of ideas, opinions and information. Understanding the means and structures of communication, and the regulation of environments that facilitate such exchange therefore become crucial for those seeking to realize freedom of expression.

Freedom of expression is enshrined in Article 19 of both theUniversal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). The UDHR holds that " everyone 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" . The ICCPR holds that, " everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice".

Freedom of expression has also been enshrined in regional conventions and charters, for example the European Convention for the Protection of Human Rights and Fundamental Freedoms, the American Convention on Human Rights4, and the African Charter on Human and Peoples' Rights ("Banjul Charter") .

The former UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, highlighted in his 2013 report report that these frameworks are applicable to actions that take place online.6 While there may be no disagreements on freedom of expression as a legal right, it is important to bear in mind that it is not a non-derogable right, and may therefore be limited subject to safeguards indicated, for example, in Article 19(3) of the ICCPR.

While there may be limitations are placed on the exercise of freedom of expression, there is limited clarity on when and how freedom of expression can be legitimately circumscribed. There have been attempts by civil society groups to articulate more clearly the specific conditions when freedom of expression may be derogated, most notably the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights ("Siracusa Principles" ), and the Johannesburg Principles on National Security, Freedom of Expression and Access to Information ("Johannesburg Principles").

Freedom of Expression and Communications

Over the years, the norms and standards required for freedom of expression in the traditional media world have received much attention. When regulating communication, some restrictions upon freedom of expression have been regarded necessary and are enforceable by national or international courts. Such restrictions have been defined in international human rights laws and cover issues such as defamation, incitement to violence and hate speech. While these restrictions are not affected by the introduction of new means of communication, the proliferation of digital communications does warrant the recognition that there are new forms of censorship, unsettled questions of jurisdiction, and the need to develop new norms and standards that can keep pace with the myriad forms of expression and information sharing.

Communication in the digital age has led to the evolution of the Internet as a medium that has revolutionised largely local capacity for communication into a worldwide phenomenon that encompasses everything from personal one-to-one emails, social networks and reaching out to large audiences globally. The proliferation of digital technologies has not only fostered unprecedented access to information; the very environment stands transformed by the introduction of new kinds of information from voice, sound, image, text and code, that are accessible on a range of devices and across several types of technologies.

These networks and services democratized communication by lowering barriers to access and creating new space for publishing and peer-to-peer collaboration. Bypassing traditional gatekeepers of other forms of media, users can take on the role of writers, broadcasters or publishers on the Internet thus creating limitless possibilities for producing, sharing and exchanging all kinds of content. From this view, the Internet has sprung up as a globally accessible means of communication that is free from traditional restraints on free speech and expression. However, there are other unintended consequences that the Internet has had on both forms of power and control in the regulation of content, as online content has become increasingly contested, enclosed in a nationalized sphere challenging the free flow of information and freedom of expression.

Freedom of Expression in South Asia

As a network of networks, the internet has no overarching jurisdiction and with no single entity governing the totality of the internet, there exists a jurisdictional vacuum over content on the web. Further, there are no means of regulating content internationally or even a broad consensus on the norms that should be applied for restricting freedom of expression either on traditional or modern media. This has led to adverse consequences such as states adopting arbitrary actions and standards or companies exercising private censorship with content online.

South Asia has an important role in global development, with its share of the world's largest working-age population, a quarter of the world's middle-class consumers, the largest number of poor and undernourished in the world, and several fragile states of global geopolitical importance. With inclusive growth, South Asia has the potential to change the global order and communications and technology continue to play a critical role in realising the region's potential. Unfortunately, the history of colonial rule, authoritarian governments and a turbulent geo-political landscape have resulted in a tendency to over-regulate speech. Governments have construed the advent of the Internet as a challenge to their authority and their anxiousness to restrict use of the medium by citizens has resulted in often regressive and sometimes draconian laws such as Myanmar's Electronic Transactions Law, India's IT Act and Pakistan's Prevention of Electronic Crimes Act.

As the Internet expands and provides greater access, it also places censorship and surveillance capacities in the hands of states and corporations. It is therefore crucial that there exist strong protections of the right to freedom of expression that balance state powers and citizen rights. While the Internet has thrown up its own set of challenges such as hate speech, the verbal online abuse of women and the use of the Internet to spread rumours of violence, the regulation of content is a question that is far from being settled and needs our urgent attention. What role can and should the law play? When is it justified for the government to intervene? What can be expected from intermediaries, such as social networks and ISPs? And what can users do to protect the right to free speech - their own and that of others?

Balancing freedom of expression with other rights is further complicated by the challenges of fast paced and changing regulatory environment. By highlighting these challenges and questioning the application of existing frameworks we aim to contribute to further promoting and strengthening the right to freedom of expression, in India and beyond.

Introduction to panel and conference:

This is the context in which the Centre for Internet and Society, the Observer Research Foundation, the University of Pennsylvania's Internet Policy Observatory, and the Programme for Comparative Media Law and Policy at Oxford University are coming together to organise an event under the title 'Freedom of Expression in a Digital Age'. The event is a discussion and deliberation on 'Effective Research, Policy Formation, & the Development of Regulatory Frameworks in South Asia', aimed at bringing together policymakers, researchers, experts and civil society in discussing some of the most crucial issues in this space. The event would seek to look at past experiences, look at current realities and look ahead to how things could be made better in the South Asian context. The program agenda includes

Freedom of Expression in a Digital Age' Effective Research, Policy Formation, & the Development of Regulatory Frameworks in South Asia
Program Agenda and Article Submission Tracks
Learnings from the past		Current Realities		Looking ahead
11:00 - 1:00	1:00 - 2:00	2:00 - 4:00	4:00- 4:15	4:15-6:00
Welcome and Introductions		Welcome and Introductions		Welcome and Introductions
Overview of existing policies and regulatory models and their impact on FoEx online including the implementation of these models across South Asia	Lunch	How FoEx is being enabled online in different jurisdications and sectors of society across South Asia	Coffee break	Challenges associated with formulating a standard, harmonized, and adaptable regulation that is applicable to multiple digital platforms, both at the national and international level and possible solutions
FoEx as defined in jurisdictions across South Asia and as compared to international standards		Ways in which FoEx is, or may be, curtailed online		Ways forward to bridge existing gaps between policy formation and policy implementation with respect to FOEX online
Emerging technologies, markets, services and platforms and how they have shaped FoEx across South Asia		Online FoEx and the present need to balance it against other digital rights in jurisdictions across South Asia		Exploration of emerging regulatory questions such as whether online speech should be regulated in the same manner as offline speech or, if there are there are particular forms of online speech that are difficult to regulate such as defamation, hate speech, if there are effective models of remedy for violation of FOEX online
Impact of challenges on FoEx online such as barriers of entry, access, accessibility, cost, liability, policies and enforcement mechanisms differing across platforms across South Asia		The impact of jurisdiction, multi-national platforms, and domestic regulation on FOEX online		Ways in which civil society can impact and influence the development and implementation of Internet regulation
Research techniques that have been applied to the issue and have been effective in different political contexts across South Asia		Role and responsibility of intermediaries in regulating online speech as per governmental standards via content policies, terms of service, and other practices across South Asia		Exploration of the future role and interplay of technology and policy in enabling FOEX online
Q&A		Q&A		Q&A

About the Organisers

The Center for Global Communication Studies at the Annenberg School for Communication at the University of Pennsylvania-has created the Internet Policy Observatory (IPO) to research the dynamic technological and political contexts in which these Internet governance debates take place. The IPO serves as a platform for informing relevant communities of activists, academics, and policy makers, and for displaying collected data and analysis. The Observatory encourages and sponsors research and studies ongoing events, key decisions and proposals, on Internet policy. The IPO seeks to deepen understanding of the evolution of mechanisms and processes that affect domestic Internet policies in key jurisdictions and the legal, political, economic, international and social factors that influence the implementation, or non-implementation, of such policies.The IPO also seeks to understand the relationship between national efforts and international policy formations and the role of civil society in domestic Internet policy processes and control.

The Centre for Internet and Society (CIS)-is a non-profit research organization working to explore, understand and affect the shape and form of the Internet and its relationship with the political, cultural, and social milieu of our times. CIS' multidisciplinary research, intervention and collaboration engages with policy issues relating to freedom of expression, privacy, accessibility for persons with disabilities, access to knowledge and IPR reform, openness (including open government data, free/open source software, open standards, open access to scholarly literature, open educational resources, and open video). CIS also engages in academic research on digital natives and digital humanities.

The Observer Research Foundation (ORF)- is India's premier independent public policy think tank and is engaged in developing and discussing policy alternatives on a wide range of issues of national and international significance. The fundamental objective of ORF is to influence the formulation of policies for building a strong and prosperous India in a globalised world. It hosts India's largest annual cyber conference - CyFy: the India Conference on Cyber Security and Internet Governance.

For more details visit https://cis-india.org/internet-governance/events/freedom-of-expression-in-digital-age

Freedom of Expression in a Digital Age

Geetha Hariharan and Jyoti Panday — 2015-07-15T14:42:23Z

The Centre for Internet & Society, the Observer Research Foundation, the Internet Policy Observatory, the Centre for Global Communication Studies and the Annenberg School for Communication, University of Pennsylvania organized this conference on April 21, 2015 in New Delhi.

This report was edited by Elonnai Hickok

Effective research, policy formulation, and the development of regulatory frameworks in South Asia

Inside this Report

BACKGROUND TO THE CONFERENCE

THE ORGANIZERS

CONFERENCE PROGRAMME

WELCOME ADDRESS

SESSION 1: LEARNINGS FROM THE PAST

Vibodh Parthasarathi, Associate Professor, Centre for Culture, Media and Governance (CCMG), Jamia Millia Islamia University

Smarika Kumar, Alternative Law Forum

Bhairav Acharya, Advocate, Supreme Court and Delhi High Court & Consultant, CIS

Ambikesh Mahapatra, Professor of Chemistry, Jadavpur University

Questions & Comments

SESSION 2: CURRENT REALITIES

Cherian George, Associate Professor, Hong Kong Baptist University

Zakir Khan, Article 19, Bangladesh

Chinmayi Arun, Research Director, Centre for Communication Governance (CCG), National Law University (Delhi)

Raman Jit Singh Chima, Asia Consultant, Access Now

Questions & Comments

SESSION 3: LOOKING AHEAD

Sutirtho Patranobis, Assistant Editor, Hindustan Times

Karuna Nundy, Advocate, Supreme Court of India

Geeta Seshu, The Hoot

Pranesh Prakash, Policy Director, Centre for Internet & Society

Questions & Comments

Conclusion

Background to the Conference

As the Internet expands and provides greater access and enables critical rights such as freedom of expression and privacy, it also places censorship and surveillance capabilities in the hands of states and corporations. It is therefore crucial that there exist strong protections for the right to freedom of expression that balance state powers and citizen rights. While the Internet has thrown up its own set of challenges such as extremist/hate speech, the verbal online abuse of women, and the use of the Internet to spread rumours of violence, the regulation of cont ent is a question that is far from being settled and needs urgent attention. These are compounded by contextual challenges. What role can and should the law play? When is it justified for the government to intervene? What can be expected from intermediaries, such as social networks and Internet Service Providers (ISPs)? And what can users do to protect the right to free speech - their own and that of others?

Balancing freedom of expression with other rights is further complicated by the challenges of fast paced and changing technologies and the need for adaptable and evolving regulatory frameworks. By highlighting these challenges and questioning the application of existing frameworks we aim to contribute to further promoting and strengthening the right to freedom of expression across South Asia.

The Organizers

Centre for Internet & Society

Established in 2008, the Centre for Internet and Society (CIS) is a non-profit research organization that works on policy issues relating to freedom of expression, privacy, accessibility for persons with disabilities, access to knowledge and intellectual property rights, and openness (including open standards and open government data). CIS also engages in scholarly research on the budding disciplines of digital natives and digital humanities. CIS has offices in Bangalore and New Delhi.

Observer Research Foundation

ORF, established in 1990, is India's premier independent public policy think tank and is engaged in developing and discussing policy alternatives on a wide range of issues of national and international significance. The fundamental objective of ORF is to influence the formulation of policies for building a strong and prosperous India in a globalised world. It hosts India's largest annual cyber conference - CyFy: the India Conference on Cyber Security and Internet Governance

The Annenberg School for Communication, The Centre for Global Communication Studies & the Internet Policy Observatory (U. Penn.)

The Annenberg School of Communication (ASC) at the University of Pennsylvania produces research that advances the understanding of public and private communications. The Center for Global Communication Studies (CGCS) is a focused academic center at ASC and a leader in international education and training in comparative media law and policy. It affords students, academics, lawyers, regulators, civil society representatives and others the opportunity to evaluate and discuss international communications issues. The Internet Policy Observatory (IPO) was started by CGCS to research the dynamic technological and political contexts in which Internet governance debates take place. The IPO serves as a platform for informing relevant communities of activists, academics, and policy makers, displaying collected data and analysis.

Conference Programme

'Freedom of Expression in a Digital Age' Effective Research, Policy Formation & the Development of Regulatory Frameworks in South Asia
April 21^st, 2015 - 11 a.m. to 6 p.m.

The Observer Research Foundation

20, Rouse Avenue Institutional Area

New Delhi - 110 002, INDIA

About the Conference

The conference will be a discussion highlighting the challenges in promoting and strengthening online freedom of expression and evaluating the application of existing regulatory frameworks in South Asia

Agenda

Learnings from the past		Current Realities		Looking ahead
11:00 - 1:00	1:00 - 2:00	2:00 - 4:00	4:00- 4:15	4:15 - 6:00
Overview of online FoEx policy and regulatory models across South Asia		Enabling FOEX in South Asia		Challenges associated with formulating regulation for online FoEx
Definitions of FoEx across South Asia		Ways in which FoEx is, or may be, curtailed online		Ways forward to bridge existing gaps between policy formation and policy implementation with respect to FOEX online
Impact of technology and markets on FoEx across South Asia		Balancing FoEx and other digital rights		Exploring emerging regulatory questions for FoEx online
Challenges to FoEx online across South Asia		The impact of jurisdiction, multi-national platforms, and domestic regulation on FoEx online		Impacting and influencing the development and implementation of Internet regulation through research
Effective research techniques and online FoEx		Role and responsibility of intermediaries in regulating online speech across South Asia		Exploration of the future role and interplay of technology and policy in enabling FOEX online

Ms. Mahima Kaul, Head (Cyber & Media Initiative), Observer Research Foundation (ORF), introduced the conference and its context and format, as well as the organisers. In three sessions, the Conference aimed to explore historical lessons, current realities and future strategies with regard to freedom of expression on the Internet in India and South Asia.

Mr. Manoj Joshi, Distinguished Fellow, ORF, provided the welcome address. Mr. Joshi highlighted the complexities and distinctions between print and electronic media, drawing on examples from history. He stated that freedom of expression is most often conceived as a positive right in the context of print media, as restrictions to the right are strictly within the bounds of the Constitution. For instance, during the riots in Punjab in the 1980s, when hate speech was prevalent, constitutionally protected restrictions were placed on the print media. When efforts were made to crack down on journalists with the introduction of the Defamation Bill in the 1980s, journalists were lucky that the Bill also included proprietors as those liable for defamation. This created solidarity between journalists and proprietors of newspapers to fight the Bill, and it was shelved.

Freedom of expression is necessary in a democratic society, Mr. Joshi stated, but it is necessary that this freedom be balanced with other rights such as privacy of individuals and the protection against hate speech. In the absence of such balance, speech becomes one-sided, leaving no recourse to those affected by violative speech.

In the digital age, however, things become complex, Mr. Joshi said. The freedom available to speech is enhanced, but so is the misuse of that freedom. The digital space has been used to foment riots, commit cybercrime, etc. Online, in India the restrictions placed on freedom of speech have become draconian. Section 66A and the incidents of arrests under it are an example of this. It is, therefore, important to consider the kind of restrictions that should be placed on free speech online. There is also the question of self-regulation by online content-creators, but this is rendered complex by the fact that no one owns the Internet. This conference, Mr. Joshi said, will help develop an understanding of what works and what frameworks we will need going forward.

Mr. Pranesh Prakash, Policy Director, Centre for Internet & Society (CIS), introduced the speakers for the first session. Mr. Vibodh Parthasarathi, Associate Professor, Centre for Culture, Media and Governance, Jamia Millia Islamia University, would first share his views and experience regarding the various ways of curtailing freedom of expression by the State, markets and civil society. Ms. Smarika Kumar of theAlternative Law Forum (ALF) would then expand on structural violations of freedom of expression. Mr. Bhairav Acharya, Advocate with the Delhi Bar and Consultant for CIS, would throw light on the development of free speech jurisprudence and policy in India from the colonial era, while Prof. Ambikesh Mahapatra, Professor of Chemistry, Jadavpur University, was to speak about his arrest and charges under Section 66A of the Information Technology Act, 2000 (am. 2008), providing insight into the way Section 66A was misused by police and the West Bengal government.

Vibodh Parthasarathi, Associate Professor, Centre for Culture, Media and Governance (CCMG), Jamia Millia Islamia University

Mr. Parthasarathi began his talk with an anecdote, narrating an incident when he received a call from a print journalist, who said "TV people can get away with anything, but we can't, and we need to do something about it." The notion of news institutions getting away with non-kosher actions is not new - and has been a perception since the 19^th century. He stressed that there have always been tensions between Freedom of Expression, access, and other rights. Curtailment happens not just by the state, but by private parties as well - market and civil society. Indeed, a large number of non-state actors are involved in curtailing FoE. Subsequently a tension between individual FoE and commercial speech freedom is emerging. This is not a new phenomenon. Jurisprudence relating to free speech makes a distinction between the persons in whom the right inheres: individuals on the one hand (including journalists and bloggers), and proprietors and commercial entities on the other.

In India, freedom of speech cases - from 1947 - relate primarily to the rights of proprietors. These cases form the legal and constitutional basis for issues of access, transmission and distribution, but are not necessarily favourable to the rights of individual journalists or newsreaders. At the individual level, the freedom to receive information is equally important, and needs to be explored further. For entities, it is crucial to consider the impact of curtailment of speech (or threats of curtailment) on entities of different sizes and kinds.

Mr. Parthasarathi further explained that online, freedom of expression depends on similar structural conditions and stressed that scholarship must study these as well. For example, intermediaries in the TV industry and online intermediaries will soon come together to provide services, but scholarship does not link them yet. The law is similarly disjointed. For instance, 'broadcasting' falls in the Union List under Schedule VII of the Constitution, and is centrally regulated. However, distribution is geographically bounded, and States regulate distribution. In order to have a cohesive broadcast regulation, he raised the point that the placement of 'broadcasting' in the Union List may need to be re-thought.

According to Mr. Parthasarathi, the underlying conceptual basis - for the interlinked scholarship and regulation of intermediaries (online and broadcast), of commercial speech and individual access to information, and censorship (State and private, direct and structural) - lies in Article 19(1)(a). He noted that there is a need to rethink the nature of this freedom. For whom do we protect freedom of speech? For individuals alone, or also for all private entities? From what are we protecting this freedom? For Mr. Parthasarathi, freedom of speech needs to be protected from the State, the market, civil society and those with entrenched political interests. Additionally, Mr. Parthasarathi raised the question of whether or not in the online context freedom of the enterprise becomes antithetical to universal access

Mr. Parthasarathi also highlighted that it is important to remember that freedom of expression is not an end in itself; it is a facilitator - the 'road'- to achieve crucial goals such as diversity of speech. But if diversity is what freedom of expression should enable, it is important to ask whether institutional exercise of freedom has led to enhanced diversity of speech. Do media freedom and media diversity go together? For Mr. Parthasarathi, media freedom and media diversity do not always go together. The most vivid example of this is the broadcast environment in India, following the deregulation of broadcast media beginning from the mid 1990s - much of which was done through executive orders on an ad hoc basis.

This led to infrastructural censorship, in addition to the ex-post curtailment of content. Increasingly the conditions on which content is produced are mediated i.e. which entities are eligible to obtain licenses, what type of capital is encouraged or discouraged, how is market dominance measured, accumulation of interests across content and carriage, or various carriage platforms? Mediating the conditions of producing speech, or infra censorship, is primarily operationalised through regulatory silences, as illustrated in the absence of any coherent or systematic anti-competitive measures.

Indian courts are champions in protecting the freedom of expression of 'outlets' - of proprietors and entities. But this has not led to diversity of speech and media. Perhaps there is a need to rethink and reformulate ideas of freedom. He pointed out that it is not enough merely to look at ex post curtailment of speech (i.e., the traditional idea of censorship). Instead the conditions in which speech is made and censored need to be explored; only then can our understanding expand. Mr Parthasarathi ended his talk by stressing that a proactive understanding of freedom of expression can highlight architectural curtailment of speech through the grant of licenses, competition and antitrust laws, media ownership and concentration across carriage and content, etc. This is essential in a digital age, where intermediaries play a crucial, growing role in facilitating freedom of speech.

Smarika Kumar, Alternative Law Forum
Beginning where Mr. Parthasarathi left off, the focus of Ms. Kumar's presentation was the curtailment of speech and the conditions under which speech is produced. At the outset, she sought from the audience a sense of the persons for whom freedom of speech is protected: for government-controlled media, the markets and commercial entities, or for civil society and citizens? Ms. Kumar aimed to derive ideas and conceptual bases to understand freedom of speech in the digital space by studying judicial interpretations of Article 19(1)(a) and its limitations. Towards this end, she highlighted some Indian cases that clarify the above issues.

Ms. Kumar began with Sakal Papers v. Union of India [AIR 1962 SC 305]. In Sakal Papers, the issue concerned the State's regulation of speech by regulation of the number of permitted pages in a newspaper. This regulation was challenged as being in violation of Article 19(1)(a) of the Constitution. The rationale for such regulation, the State argued, was that newsprint, being imported, was a scarce commodity, and therefore needed to be equitably distributed amongst different newspapers - big or small. Further, the State defended the regulation citing its necessity for ensuring equal diversity and freedom of expression amongst all newspapers. The petitioners in the case argued that such a regulation would negatively impact the newspapers' right to circulation by reducing the space for advertisements, and thus forcing the newspaper to increase selling prices. Readers of the newspaper additionally argued that such increase in prices would affect their right to access newspapers by making them less affordable, and hence such regulation was against the readers' interests. Ultimately, the Supreme Court struck down the regulation. The Constitution Bench noted that if the number of pages of a newspaper were to be limited and regulated, the space available for advertisements would reduce. Were advertisements to reduce, the cost of newspapers would increase, affecting affordability and access to information for the citizens. Ultimately, newspaper circulation would suffer; i.e., the State's regulation affected the newspapers' right of circulation which would amount to a violation of freedom of expression as the right extends to the matter of speech as well as the ability to circulate such speech.

Apart from the number of pages, the Indian government has sought to regulate newsprint in the past. In Bennett Coleman and Co. & Ors. v. Union of India [AIR 1973 SC 106], a Constitution Bench of the Supreme Court considered whether regulation of the number of pages permitted in a newspaper constituted an unreasonable restriction on freedom of expression. Towards this, the Government of India set forth a Newsprint Policy in 1972, under the terms of which the number of pages of all papers were to be limited to ten; where there were small newspapers that did not achieve the ten-page limit, a 20% increase was permitted; and finally, new newspapers could not be started by common ownership units. The Newsprint Order aimed to regulate a scarce resource (newsprint), while the Newsprint Policy sought to promote small newspapers, encourage equal diversity among newspapers and prevent monopolies. The Supreme Court upheld the Newsprint Order, stating that newsprint was indeed a scarce resource, and that the matter of import and distribution of newsprint was a matter of government policy. The Court would not interfere unless there was evidence of mala fides. However, the Court struck down the Newsprint Policy for reasons similar to Sakal Papers ; that the rights afforded to newspapers under Article 19(1)(a) - including circulation - could not be abridged for reasons of protecting against monopolies.

In his dissenting opinion, Justice Mathew stated that in conceiving freedom of expression, it is important to also consider the hearer (the reader). For Justice Mathew, Meiklejohn's view the "what is essential is not that everyone shall speak, but that everything worth saying shall be said" cannot be affected if, because of concentration of media ownership, media are not available for most speakers. In such a situation, " the hearers [cannot] be reached effectively". However, the imperative is to maximise diversity of speech. For this, we need to balance the rights of citizens against those of the press; i.e., the rights of the reader against those of the speaker.

Ms. Kumar pointed out that this was the first case to consider the right of readers to access a diversity of speech. Justice Mathew distinguished curtailment of speech by the state, and by the market - and that this is crucial in the digital age, where information is predominantly accessible through and because of intermediaries. Ms. Kumar further stressed that especially in an age where 'walled gardens' are a real possibility (in the absence of net neutrality regulation, for instance), Justice Mathew's insistence on the rights of readers and listeners to a diversity of speech is extremely important.

Ms. Kumar went on to explain that though judges in the Supreme Court recognised the rights of readers/listeners (us, the citizens) for the purposes of news and print media, a similar right is denied to us in the case of TV. In Secretary, Ministry of Broadcasting v. Cricket Association of Bengal [AIR 1995 SC 1236], the issue surrounded private operators' right to use airwaves to broadcast. The Supreme Court considered whether government agencies and Doordarshan, the government broadcaster, " have a monopoly of creating terrestrial signals and of telecasting them or refusing to telecast them", and whether Doordarshan could claim to be the single host broadcaster for all events, including those produced or organised by the company or by anybody else in the country or abroad. The Supreme Court held that the TV viewer has a right to a diversity of views and information under Article 19(1)(a), and also that the viewer must be protected against the market. The Court reasoned that " airwaves being public property, it is the duty of the state to see that airwaves are so utilised as to advance the free speech right of the citizens, which is served by ensuring plurality and diversity of views, opinions and ideas ".

If every citizen were afforded the right to use airwaves at his own choosing, "powerful economic, commercial and political interests" would dominate the media. Therefore, instead of affirming a distinct right of listeners, the Court conflated the interests of government-controlled media with those of the listeners, on the ground that government media fall under public and parliamentary scrutiny. According to Ms. Kumar this is a regressive position that formulates State interest as citizen interest. Ms. Kumar argued that in order to ensure freedom of speech there is a need to frame citizens' interests as distinct from those of the market and the government.

Bhairav Acharya, Advocate, Supreme Court and Delhi High Court & Consultant, CIS
Mr. Acharya's presentation focused on the divergence between the jurisprudence and policy surrounding freedom of expression in India. According to him, the policies of successive governments in India - from the colonial period and thereafter - have developed at odds with case-law relating to freedom of expression. Indeed, it is possible to discern from the government's actions over the last two centuries a relatively consistent narrative of governance which seeks to bend the individual's right to speech to its will. The defining characteristics of this narrative - the government's free speech policy - emerge from a study of executive and legislative decisions chiefly in relation to the press, that continue to shape policy regarding the freedom of expression on the Internet. Thus, there has been consistent tension between the individual and the community, as well as the role of the government in enforcing the expectations of the community when thwarted by law.

Today, free speech scholarship (including digital speech) fails to take into account this consistent divergence between jurisprudence and policy. Mr. Acharya pointed out that we think of digital speech issues as new, whereas there is an immense amount of insight to gain by studying the history of free speech and policy in India.

Towards this, Mr. Acharya highlighted that to understand dichotomy between modern and native law and free speech policy, it is useful to go back to the early colonial period in India, when Governor-General Warren Hastings established a system of courts in Bengal's hinterland to begin the long process of displacing traditional law to create a modern legal system. J. Duncan M. Derrett notes that the colonial expropriation of Indian law was marked by a significant tension caused by the repeatedly-stated objective of preserving some fields of native law to create a dichotomous legal structure. These efforts were assisted by orientalist jurists such as Henry Thomas Colebrook whose interpretation of the dharmasastras heralded a new stage in the evolution of Hindu law. By the mid-nineteenth century, this dual system came under strain in the face of increasing colonial pressure to rationalise the legal system to ensure more effective governance, and native protest at the perceived insensitivity of the colonial government to local customs.

Mr. Acharya explained that this myopia in Indian policy research is similar social censorship (i.e., social custom as creating limits to free speech). Law and society scholars have long studied the social censorship phenomenon, but policy research rejects this as a purely academic pursuit. But the truth is that free speech has been regulated by a dual policy of law and social custom in India since colonial times. The then-Chief Justice of the Calcutta High Court Elijah Impey required officers to respect local customs, and this extended to free speech as well. But as colonial courts did not interpret Hindu law correctly; interpretations of freedom of speech suffered as well. Mr. Acharya noted that the restrictions on freedom of speech introduced by the British continue to affect individuals in India today. Prior to British amendments, India had drawn laws from multiple sources - indeed customs and laws were tailored for communities and contexts, and not all were blessed with the consistency and precedent so familiar to common law. Since the British were unable to make sense of India's law and customs, they codified the principles of English customary law.

The Indian Penal Code (IPC) saw the codification of English criminal law (the public offences of riots, affray, unlawful assembly, etc., and private offences such as criminal intimidation). In Macaulay's initial drafts, the IPC did not contain sedition and offences of hurting religious sentiments, etc. Sections 124A ("Sedition") and 295A (" Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs") were added to the IPC in 1860, and changes were made to the Code of Criminal Procedure as well. Today, these sections are used to restrict and criminalise digital speech.

The Right to Offend :

Mr. Acharya then considered the history of the "right to offend", in light of the controversies surrounding Section 66A, IT Act. Before the insertion and strengthening of Section 295A, citizens in India had a right to offend others within the bounds of free speech. He clarified that in 1925 a pamphlet " Rangila Rasool" was published by Lahore-based Mahashe Rajpal (the name(s) of the author(s) were never revealed). The pamphlet concerned the marriages and sex life of the Prophet Mohammed, and created a public outcry. Though the publisher was acquitted of all charges and the pamphlet was upheld, the publisher was ambushed and stabbed when he walked out of jail. Under pressure from the Muslim community, the British enacted Section 295A, IPC. The government was seeking to placate and be sensitive to public feeling, entrenching the idea that the government may sacrifice free speech in the face of riots, etc. The death of India's "right to offend" begins here, said Mr. Acharya.

A prior restraint regime was created and strengthened in 1835, then in 1838, etc. At this time, the press in India was largely British. Following the growth of Indian press after the 1860s, the British made their first statutory attempt at censorship in 1867: a prior sanction was required for publication, and contravention attracted heavy penalties such as deportation and exile. Forfeiture of property, search and seizures and press-inspections were also permitted by the government under these draconian laws. Mr. Acharya noted that it is interesting that many leaders of India's national movement were jailed under the press laws.

Independence and After :

Mr. Acharya further explained that the framers of the Constitution deliberately omitted "freedom of the press" from the text of Article 19(1)(a) and that Jawaharlal Nehru did not think the press ought to be afforded such a right. This is despite a report of the Law Commission of India, which recommended that corporations be provided an Article 19 right. But why distrust the press, though citizens are granted the freedom of speech and expression under Article 19(1)(a)? In Mr. Acharya's opinion, this is evidence of the government's divergent approach towards free speech policy; and today, we experience this as a mistrust of the press, publications, and of online speech.

Mr. Acharya also explained that statutory restrictions on free speech grew at odds with judicial interpretation in the 1950s. Taking the examples ofRomesh Thapar v. the State of Madras [AIR 1950 SC 124] and Brij Bhushan v. the State of Delhi [(1950) Supp. SCR 245], Mr. Acharya showed how the judiciary interpreted Article 19 favourably. Despite the government's arguments about a public order danger, the Supreme Court refused to strike down left wing or right wing speech ( Romesh Thapar concerned a left wing publication; Brij Bhushan concerned right wing views), as "public order" was not a ground for restricting speech in the Constitution. The government reacted to the Supreme Court's judgement by enacting the First Amendment to the Constitution: Article 19(2) was amended to insert "public order" as a ground to restrict free speech. Thus, it is possible to see the divergence between free speech jurisprudence and policy in India from the time of Independence. Nehru and Sardar Vallabhbhai Patel had supported the amendment, while B.R. Ambedkar supported Romesh Thapar and Brij Bhushan. On the other hand, then-President Rajendra Prasad sought Constitutional protection for the press.

Why Study Free Speech History?

Mr. Acharya noted how the changes in free speech policy continue to affect us, including in the case of content restrictions online. In the 1950s, then-Prime Minister Nehru appointed the First Press Commission, and the newspaper National Herald was established to promote certain (left wing) developmental and social goals. Chalapati Rao was the editor of the National Herald, and a member of the First Press Commission.

At that time, the Commission rejected vertical monopolies of the press. However, today, horizontal monopolies characterize India's press. The First Press Commission also opposed 'yellow journalism' (i.e., sensational journalism and the tabloid press), but this continues today. Decades later, Prime Minister Indira Gandhi called for a "committed bureaucracy, judiciary and press", taking decisive steps to ensure the first two. For instance, Justice Mathew (one of the judges in the Bennett Coleman case) was an admirer of Indira Gandhi. As Kerala's Advocate General, he wanted the Press Registrar to have investigative powers similar to those given in colonial times; he also wanted the attacks on government personalities to be criminalized. The latter move was also supported by M.V. Gadgil, who introduced a Bill in Parliament that sought to criminalise attacks on public figures on the grounds of privacy. Mr. Acharya noted that though Indira Gandhi's moves and motives with regard to a "committed press" are unclear, the fact remains that India's regional and vernacular press was more active in criticizing the Emergency than national press.

Demonstrating the importance of understanding a contexts history - both social and legislative, following the striking down of 66A in Shreya Singhal & Ors. v. Union of India (Supreme Court, March 24, 2015), elements in the government have stated their wish to introduce and enact a new Section 66A. Mr. Acharya explained that such moves from elements in the government shows that despite the striking down of 66A, it is still possible for the repressive and mistrustful history of press policy to carry forward in India. This possibility is supported by colonial and post-Independence press history and policy that has been developed by the government. When looking at how research can impact policy, greater awareness of history and context may allow for civil society, academia, and the public at large to predict and prepare for press policy changes.

Ambikesh Mahapatra, Professor of Chemistry, Jadavpur University

Prof. Mahapatra introduced himself as a victim of the West Bengal administration and ruling party. He stated that though India's citizens have been granted the protection of fundamental rights after Independence, these rights are not fully protected; his experience with the West Bengal ruling party and its abuse of powers under the Information Technology Act, 2000 (am. 2008) ("IT Act") highlights this.

On March 23, 2012, Prof. Mahapatra had forwarded a cartoon to his friends by email. The cartoon poked fun at West Bengal Chief Minister Mamata Banerjee and her ruling party. On the night of April 12, 2012, individuals not residing in the Professor's housing colony confronted him, dragging him to the colony building and assaulting him. These individuals forced Prof. Mahapatra to write a confession about his forwarding of the cartoon and his political affiliations. Though the police arrived at the scene, they did not interfere with the hooligans. Moreover, when the leader of the hooligans brought the Professor to the police and asked that he be arrested, they did so even though they did not have an arrest warrant. At the police station, the hooligans filed a complaint against him. The Professor was asked to sign a memo mentioning the charges against him (Sections 114 and 500, Indian Penal Code, 1860 & Section 66A, IT Act). Prof. Mahapatra noted that the police complaint had been filed by an individual who was neither the receiver nor the sender of the email, but was a local committee member with the Trinamool Congress (the West Bengal ruling party).

The arrest sparked a series of indignant responses across the country. The West Bengal Human Rights Commission took suo motu cognizance of the arrest, and recommended action against the high-handedness of the police. Fifty six intellectuals appealed to the Prime Minister of India to withdraw the arrest; the former Supreme Court judge Markandey Katju was among those who appealed. Thirty cartoonists' organisations from across the world also appealed to the President and the Prime Minister to withdraw the case.

The West Bengal government paid no heed to the protests, and Chief Minister Mamata Banerjee publicly supported the actions of the police - making public statements against Justice Katju and A.K. Ganguly, former judge of the Supreme Court and head of the West Bengal Human Rights Commission respectively. A charge sheet was framed against Prof. Mahapatra and others, with Section 66A as one of the charges.

The case has been going on for over two years. Recently, on March 10, 2015, the Calcutta High Court upheld the recommendations of the West Bengal Human Rights Commission, and directed the government to implement them. The West Bengal government has preferred an appeal before a division bench, and the case will continue. This is despite the fact that Section 66A has been struck down (by the Supreme Court in Shreya Singhal & Ors. v. Union of India).

Though noting that he was not an expert, Prof. Mahapatra put forward that it seemed that the freedom of expression of the common man depends on the whims of the ruling parties and the State/Central governments. It is of utmost importance, according to him, to protect the common man's freedom of speech, for his recourse against the government and powerful entities is pitifully limited.

Questions & Comments

Q. A participant stated that the core trouble appears to lie in the power struggle of political parties. Political parties wish to retain power and gather support for their views. Despite progressive laws, it is the Executive that implements the laws. So perhaps what is truly required is police and procedural reforms rather than legislative changes.

A. Members of the panel agreed that there is a need for more sensitivity and awareness amongst the law enforcement agencies and this might be long overdue and much needed step in protecting the rights of citizens.

Q. A participant was interested in understanding how it might be possible to correct the dichotomy between FoE policy and doctrine? The participant also wanted the panel to comment on progressive policy making if any.

A. Members of the panel stated that there is no easy way of correcting this dichotomy between custom and law. Scholars have also argued that the relationship between custom and pernicious social censorship is ambiguous. Towards this, more studies are required to come to a conclusion.

Q. A participant requested clarity on what rights can be created to ensure and support a robust right to freedom of expression, and how this might affect the debates surrounding net neutrality?

A. Members of the panel noted that the Internet allows citizens and corporations to regulate speech on their own (private censorship), and this is problematic. Members of the panel also responded that the existing free speech right does not enable diversity of speech. Social and local customs permit social censorship, and this network effect is clearly visible online; individuals experience a chilling effect. Finally, in the context of net neutrality, the interests of content-producers (OTTs, for instance) are different from those of users. They may benefit economically from walled gardens or from non-interference with traffic-routing, but users may not. Therefore, there is a need for greater clarity before coming to a conclusion about potential net neutrality regulation.

Session 2: Current Realities

Dr. Cherian George, Associate Professor, Hong Kong Baptist University
Dr. George began his talk by highlighting how there is no issue as contentious as offensive speech and how it should be dealt with. The debate around free speech is often framed as a battle between those who support democracy and those who oppose it. Yet, this is also a tension within democracy. Citizens should not be unjustly excluded from participating in democracy (companion rights in Article 19 and 20, ICCPR). Relevant UN institutions and Article 19 have come up with reports and ideals that should be universally adopted - norms that apply to many areas including speech. These norms are different from traditional approaches. For example:

Human Rights Norms	Traditional Approach
Regulate incitement of violence (discrimination, hate, etc.)	Law protects people's feelings from speech that offends
Protect minorities as they are more vulnerable to exploitation and uprooting of their values	Law sides with the majority, to protect mainstream values over minority values
Allow robust criticism of ideas, religions, and beliefs	Law protects religion, beliefs, and ideas from criticism
Strive for balance between liberty and equality	Aims for order and maintenance of status quo
Promote harmony through the media	Enforces harmony by the state

Commenting on the traditional approach, Dr. George noted that if the state protects feelings of offence against speech, it allows groups to use such protection as a political weapon: "hate spin", which is the giving or taking of offence as a political strategy. Hate spin is normally framed as a "visceral, spontaneous reaction" to a video, writing, or speech, etc. Yet, the spontaneous reaction of indignation to speech or content can consistently be revealed to result from conscious manipulation by middlemen for political purposes.

South Asia is similar to West Asia - as the legal frameworks provide immunity for dangerous speech. In practice, this allows for the incitement of discrimination, hostility, and violence. At the same time, the legal frameworks allow for excessive sympathy for wounded feelings, and often the taking of offence turns into a political strategy. Power enters the equation here. The law allows the powerful to take offence and use hate speech against those not in powerful positions.

Dr. George highlighted a number of legal quandaries surrounding freedom of expression including:

Enforcement gaps: There is a lack of enforcement of existing laws against incitement.
Non-regulated zones: Socio-political research demonstrates that many problems cannot be regulated, and yet the law can only deal with what can be regulated. Hate speech is one of these as hate speech is not in the speech itself, but in the meaning that is produced in the mind of those saying/listening.
Verdict-proof opportunities: Political entrepreneurs can use legislative and judicial processes to mainstream hateful views, regardless of how legislature and courts ultimately act. The religious right, for instance, can always pit themselves morally against "secular" decisions of apex authorities (SC, etc.). For example, in the context of the US and Islamophobia - the State legislature in Alabama introduced an anti-Shariah law. Yet, the law is against a non-existent threat and appears to be a ploy to normalize anti-Muslim sentiments, including in political rhetoric. While focusing on winning battles in courts or legislature, the intolerant groups do not need to win a legal court case to introduce and entrench language of intolerance in public discourse and discussion. This demonstrates that there is a need to begin moving away from a purely legal analysis (interpretation or development) of the laws, and a need to begin studying these issues through a sociological lens.

Zakir Khan, Article 19, Bangladesh
Mr. Khan introduced Article 19 and its work in Bangladesh and the rest of South Asia. He noted that Article 19 is involved in documenting and analysing laws and regulations affecting freedom of expression, including in Bangladesh. Article 19 also campaigns for changes in law and policy, and responds from a policy perspective to particular instances of government overreach.

Mr. Khan explained that India has the Information Technology Act, 2000 (am. 2008) ("IT Act"), and in Bangladesh, the equivalent legislation is the Information and Communication Technology Act, 2006 ("ICT Act"). The ICT Act was enacted to bring Bangladeshi law in conformity with international law; i.e. in accordance with the UNCITRAL model law on e-commerce and online transactions. The ICT Act deals with hacking, crimes committed with the use of a computer system, breach of data, breach of computer system, and hardware.

Like the IT Act in India, Bangladesh's ICT Act also criminalizes speech and expression online. For instance, Section 57, ICT Act, criminalizes the publication of "fake, obscene or defaming information in electronic form". Similarly, bringing damage to "the state's image" online is criminalized. In 2013, the Bangladesh Ministry of Law amended the ICT Act to increase penalties for online offences, and allow for the detention of suspected offenders, warrantless arrests and indefinite detention without bail. Bloggers and activists have been protesting these changes, and have been targeted for the same.

Mr. Khan noted that Article 19 has developed a tool to report violations online. Individuals who have experienced violations of their rights online can post this information onto a forum, wherein Article 19 tracks and reports on them, as well as creating awareness about the violation. Any blogger or online activist can come and voice concerns and report their stories. Mr. Khan also highlighted that given the ICT Act and the current environment, online activists and bloggers are particularly threatened. Article 19 seeks to create a safe space for online bloggers and activists by creating anonymity tools, and by creating awareness about the distinctions between political agenda and personal ideology.

Chinmayi Arun, Research Director, Centre for Communication Governance (CCG), National Law University (Delhi)
Ms. Arun began by noting that usually conversations around freedom of expression look at the overlap between FoE and content i.e. the focus is on the speaker and the content. Yet, when one targets the mediator - it shifts the focus as it would be approaching the issue from the intermediary's perspective. When structural violation of free speech happens, it either places the middleman in the position of carrying through the violation, or creates a structure through which speech violations are incentivized.

An example of this is the Bazee.com case. At the time of the case the law was structured in such a way that not only perpetrators of unlawful content were punished, but so were the bodies/persons that circulated illegal content. In regulatory terms this is known as "gatekeeper liability". In the Bazee.com case, a private party put obscene content up for sale and Bazee.com could and did not verify all of the content that was for sale. In the case, the Delhi HC held Avnish Bajaj, the CEO of Bazee.com, liable on the precedent of strict liability for circulation of obscene content. The standard of strict liability was established under Ranjit Udeshi case. The standard of strict liability is still the norm for non-online content, but after Bazee.com, a Parliament Standing Committee created a safe harbour for online intermediaries under Section 79 of the IT Act. As per the provision, if content has been published online, but an intermediary has not edited or directly created the content, it is possible for them to seek immunity from liability for the content. The Parliament Standing Committee then stated that intermediaries ought to exercise due diligence. Thus, the Indian legal regime provides online intermediaries with immunity only if content has not been published or edited by an intermediary and due diligence has been exercised as defined by Rules under the Act. While developing India's legal regime for intermediary liability the Parliamentary Standing Committee did not focus on the impact of such regulation on online speech.

To a large extent, present research and analysis of Freedom of Expression is focused on the autonomy of the speaker/individual. An alternative formulation and way of understanding the right, and one that has been offered by Robert Post through his theory of democratic self governance, is that Freedom of Expression is more about the value of the speech rather than the autonomy of the speaker. In such a theory the object of Freedom of Expression is to ensure diversity of speech in the public sphere. The question to ask then is: "Is curtailment affecting democratic dialogue?" The Supreme Court of India has recognized that people have a right to know/listen/receive information in a variety of cases. Ms. Arun explained that if one accepts this theory of speech, the liability of online intermediaries will be seen differently.

Ms. Arun further explained that in Shreya Singhal, the notice-and-takedown regime under section 79 of the IT Act has been amended, but the blocking regime under section 69A has not. Thus, the government can still use intermediaries as proxies to take down legitimate content, and not provide individuals with the opportunity to to challenge blocking orders. This is because as per the Act, blocking orders must be confidential. Though the blocking regime has not been amended, the Supreme Court has created an additional safeguard by including the requirement that the generator of content has to be contacted (to the extent possible) before the government can pass and act upon a blocking order. Mr. Arun noted that hopefully, when implemented, this will provide a means of recourse for individuals and counter, to some extent, the mandated secrecy of content blocking orders.

Raman Jit Singh Chima, Asia Consultant, Access Now
Mr. Chima began his presentation by noting that the Internet is plagued by a few founding myths. Tim Goldsmith and Jack Wu (in Who Controls the Internet: Illusions of a Borderless World) name one: that no laws apply to the Internet; that, because of the borderless nature of the Internet - data flows through cables without regard for State borders - and thus countries' laws do not affect the Internet. These cyber-anarchists, amongst whom John Perry Barlow of the Electronic Frontier Foundation (EFF) is inspiring, also argue that regulation has no role for the Internet.

Mr. Chima countered these 'myths', arguing that the law affects the Internet in many ways. The US military and Science departments funded the invention of the Internet. So the government was instrumental in the founding of the Internet, and the US Department of Commerce has agreements with ICANN (Internet Corporation for Assigned Names and Numbers) to govern the Domain Names System. So the law, contracts and regulation already apply to the Internet.

Mr. Chima further explained that today organisations like EFF and civil society in India argue for, and seek to influence, the creation of regulation for the protection of journalists against unfair and wrongful targeting by the government. This includes moves to protect whistleblowers, to ensure the openness of the Internet and its protection from illegitimate and violative acts against freedom of expression, access and other rights. Some governments, like India, also place conditions in the licenses granted to Internet Service Providers (ISPs) to ensure that they bring access to the rural, unconnected areas. Such law and regulation are not only common, but they are also good; they help the population against virtual wrongdoing.

Mr. Chima pointed out that when States contemplate policy-making for the Internet, they look to a variety of sources. Governments draw upon existing laws and standards (like India with the virtual obscenity offence provision Section, 67 and 67A, IT Act, which is drawn from the real-world penal provision Section 292, IPC) and executive action (regulation, by-laws, changes to procedural law) to create law for the Internet. Additionally, if a government repeats a set of government actions consistently over time, such actions may take on the force of law. Mr. Chima also spoke of web-developers and standards-developers (the technical community), who operate by rules that have the force of law, such as the 'rough consensus and running code' of the IETF (Internet Engineering Task Force). Governments also prescribe conditions ("terms of use") that companies must maintain, permitting or proscribing certain kinds of content on websites and platforms.

Finally, Mr. Chima highlighted international legal and policy standards that play a role in determining the Internet's law and regulation. ICANN, the administrator of the Internet Assigned Numbers Authority (IANA) functions and governing body for the Domain Names System, functions by a set of rules that operate as law, and in the creation of which, the international legal community (governments, companies, civil society and non-commercial users, and the technical community) play a role. The ITU (International Telecommunications Union) and organisations like INTERPOL also play a role.

Mr. Chima explained that when one wants to focus on issues concerning freedom of expression, multiple laws also apply. Different States set different standards. For instance, in the US, the main standards for the Internet came from issues relating to access to certain types of online content. In Reno v. ACLU (1997), the US Supreme Court considered what standards should be created to access obscene and indecent content on the Internet. The judges held that the Internet, as a medium of unprecedented dynamism, deserved the higher protection from governmental overreach.

In Asia, the main legal standards for the Internet came from Internet commerce: the UNCITRAL model law, which prescribed provisions best suited to the smoother commercial utilization of a fast and growing medium, became the foundation for Internet-related law in Asian states. Predictably, this did not offer the strongest rights protections, but rather, focused on putting in place the most effective penalties. But when Asian states drew from the European UNCITRAL law, many forgot that European states are already bound by the European Convention for Human Rights, the interpretation of which has granted robust protections to Internet-related rights.

Mr. Chima provided the example of Pakistan's new Cybercrime Bill. The Bill has troubling provisions for freedom of expression, and minimal to no due process protections. While drafting the law, Pakistan has drawn largely from model cybercrime laws from the Council of Europe, which are based on the Budapest Convention. In Europe and the US, States have strong parallel protections for rights, but States in Asia and Africa do not.

Mr. Chima concluded that when one talks of freedom of expression online, it is important to also remember the roles of intermediaries and companies. The ISPs can be made liable for content that flows through their wires, through legal mechanisms such as license provisions. ISPs can also be made to take further control over the networks, or to make some websites harder to access (like the Internet Watch Foundation's blacklist). When policy organisations consider this, it is critical that they ask whether industry bodies should be permitted to do this without public discussion, on the basis of government pressure.

Questions & Comments

Q. Participants asked for panel members to talk about the context in which bloggers find themselves in danger in Bangladesh.

A. Panel members stated that the courts are not fair to bloggers as often they side with government. It was added that courts have labelled bloggers as atheist, and subsequently all bloggers are being associated with the label. Further, it was added that most people who are outraged, do not even know what blogging is, and people associate blogging with blasphemy and as opposing religious beliefs. It was also noted that in Bangladesh, while you see violations of FoE from the State, you see more violations of blogger rights from non-state actors.

Q. Participants asked if there is anything specific about the Internet that alters how we should consider hate speech online and their affective/visceral impact.

A. Pa nel members noted that they are still grappling with the question of what difference the Internet makes, but noted that it has indeed complicated an already complex issue as there is always the question about political entrepreneurs using convenient content to foment fires.

Q. Participants questioned panel members about how the right to offend is protected in jurisdictions across Asia where there is still tension between classical liberalism and communitarian ideologies, and where the individuated nature of rights is not clearly established or entrenched.

A. Panel members responded by stating that when one compares the US, Indonesia and India, the US seems to be able to strike a balance between free speech and other competing interests as they are committed to free speech and committed to religious tolerance and plurality of competing interests. Panel members also added that the fabric of civil society also has an impact. For example, Indonesian civil society is simultaneously religious and secular and pro-democracy. In India, there seems to be a tension between secular and religious groups. In Indonesia, people are moving to religion for comfort, while still seeking a world that is religious and secular.

Q. Participants asked for clarification on ways to approach regulation of hate speech given that hate speech is not just about a particular kind of threatening speech, but encompasses rumours and innuendos.

A . Panel members acknowledged that more research needs to be done in this area and added that applying the socio-cultural lens on such issues would be beneficial.

Q. Participants asked if panel members had a framework for a regulating the content practices of private actors, who are sometimes more powerful than the state and also enforcing censorship.

A. Panel members responded that private censorship is an important issue that needs to be reflected upon in some depth, though a framework is far from being developed even as research is ongoing in the space.

Session 3: Looking Ahead

The third and final session of the conference aimed to find principles and methods to achieve beneficial and effective regulation of the Internet. One of the core aims was the search for the right balance between the dangers of the Internet (and its unprecedented powers of dissemination) and the citizens' interest in a robust right to freedom of expression. Mr. Sutirtho Patranobis, Assistant Editor with the Hindustan Times (Sri Lanka desk, previously China correspondent), shared his experience with governmental regulation of online free speech in China and Sri Lanka. Ms. Karuna Nandy,Advocate, Supreme Court of India, analysed the Indian Supreme Court's decision in Shreya Singhal v. Union of India (March 24, 2015), and sought to draw lessons for the current debate on net neutrality in India. Ms. Geeta Seshu, founder and editor of the online magazine The Hoot, offered an expanded definition of freedom of speech, focusing on universal access as the imperative. Finally, Mr. Pranesh Prakash, Policy Director, Centre for Internet & Society, offered his views on net neutrality and the issue of zero-rating, as well as arguing for an increased, cooperative role of civil society in creating awareness on issues relating to the Internet.

Sutirtho Patranobis, Assistant Editor, Hindustan Times
During his career, Mr. Patranobis was the China correspondent for the Hindustan Times. Mr. Patranobis began his presentation by sharing his experiences in China. In China, multiple online platforms have become sources of news for citizens. Chinese citizens, especially the urban young, spend increasing amounts of time on their mobile phones and the Internet, as these are the major sources of news and entertainment in the country.

The Chinese government's attitude towards freedom of expression has been characterized by increasing control over these online platforms. The includes control over global companies like Google and Facebook, which have negotiated with the Chinese government to find mutually acceptable operating rules (acceptable to the government and the company, but in most cases unfavourable to the citizens) or have faced being blocked or filtered from the country. Mr. Patranobis noted that free speech regulation in China has evolved into a sophisticated mechanism for control and oppression, and the suppression of dissent. Not only China, but Sri Lanka has also adopted similar approaches to dealing with freedom of expression.

In China, free speech regulations have evolved with an aim to curtail collective action and dissent. China's censorship programmes work towards silencing expression that can represent, reinforce or spur social mobilisation. Mr. Patranobis explained that these programmes aim to put an end to all collective activities (current or future) that may be at odds with government policies. Therefore, any online activity that exposes government action as repressive, corrupted or draconian is meted out harsh treatment. Indeed it is possible to see that there are sharp increases in online censorship and crackdowns when the government implements controversial policies offline.

Mr. Patranobis went on to discuss the nature of objectionable content, and the manner in which different jurisdictions deal with the same. Social and cultural context, governmental ideologies, and political choices dictate the nature of objectionable content in States such as China and Sri Lanka. On the flipside, media literacy, which plays a big role in ensuring an informed and aware public, is extremely low in Sri Lanka, as well as in many other States in South Asia.

Mr. Patranobis raised the question of how the Internet can be regulated while retaining freedom of expression - noting that the way forward is uncertain. In Sri Lanka, for instance, research by UNESCO shows that the conflicting policy objectives are unresolved; these first need to be balanced before robust freedom of expression can be sustained. The Internet is a tool, after all; a tool that can connect people, that can facilitate the spread of knowledge and information, to lift people from the darkness of poverty. The Internet can also be a tool to spread hate and to divide societies and peoples. Finding the right balance, contextualised according to the needs of the citizens and the State, is key to good regulation.

Karuna Nundy, Advocate, Supreme Court of India
Ms. Nandy focused her presentation on two issues currently raging in India's free speech debates: the Supreme Court's reasoning on Sections 66A and 69A, IT Act, in Shreya Singhal & Ors. v. Union of India (Supreme Court, March 24, 2015), and issues of access and innovation in the call for a net neutrality regulation. She stated that the doctrine of the "marketplace of ideas" endorsed by Justices Nariman and Chelameswar in Shreya Singhal speaks to the net neutrality debate.

Ms. Nandy held that a law can be challenged as unconstitutional if it prohibits acts that are legitimate and constitutional. Such an argument refers to the impugned law's "overbroad impact". For instance, the Supreme Court struck down Section 66A, IT Act, on the ground (among others) that the impugned section leads to the prohibition and criminalisation of legitimate and protected speech. Cases such asChintaman Rao v. State of Madhya Pradesh [(1950) SCR 759] and Kameshwar Prasad v. State of Bihar [1962 Supp. (3) SCR 369] speak to this principle. They expand the principle of overbreadth to include the notion of "chilling effect" - i.e., situations where overbroad blocking leads to the prohibition of legitimate constitutional speech. In such situations, citizens are unsure what constitutes protected speech and what does not, leading to a chilling effect and self-censorship for fear of reprisals.

In Shreya Singhal, the Supreme Court also considered the "reasonable person" doctrine that has been developed under the law of obscenity. India had initially adopted the Hicklin test, under which the test to determine what is obscene depended on whether prurient minds (minds that have a tendency to be corrupted) would find the impugned material lascivious and corrupting. This test, laid down in Ranjit Udeshi v. State of Maharashtra [AIR 1965 SC 881] and altered/refined by decades of jurisprudence, was put to rest in Aveek Sarkar v. State of West Bengal [AIR 2014 SC 1495]. In Aveek Sarkar, the Supreme Court adopted the "community standards" test to determine obscene content. According to Ms. Nandy, the "community standards" test rests on the doctrine of reasonable persons. Ms. Nandy noted that in effect there is a need for more police officers to protect those who produce legitimate content from hecklers.

Quoting from the U.S. decision of Whitney v. California [71 L. Ed. 1095], Ms. Nandy submitted that:

" It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. "

On the issue of website blocking and the Supreme Court's reasoning on Section 69A, IT Act, in Shreya Singhal, Ms. Nandy explained that the Additional Solicitor General had conceded a number of points during the oral arguments. She further explained that website blocking can be applied when the Central Government is satisfied that there is a necessity for it. However, reasons must be recorded in writing. Also, according to the Supreme Court's interpretation of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (" Blocking Rules"), both the intermediary and the originator of the communication (the content-creator) have to be given a chance to be heard.

Rule 16 of the Blocking Rules, which mandates confidentiality of all blocking requests and orders, was also discussed in Shreya Singhal. Though some confusion has arisen about the Rule's interpretation, Ms. Nandy submitted that Rule 16 has been read down. There is no longer a strict, all-encompassing requirement of confidentiality. While the identity of the complainant and the exact nature of the complaint must be kept confidential, the blocking order and the reasoning behind the order are no longer bound by Rule 16. This is because in §109 of the judgment, the Supreme Court accepts that writ petitions can lie on the basis of blocking orders. In order for writs to lie, affected parties must first be aware of the existence and content of the blocking order. Therefore, Ms. Nandy explained, the effect of the Supreme Court's reasoning is that the confidentiality requirement in Rule 16 has been read down.

On net neutrality, Ms. Nandy argued that zero-rating is an efficient solution to providing universal access to the Internet. Services like Internet.org are not strictly market-driven. This is because there is not a large demand for Facebook or specific over-the-top (OTT) service providers. In speaking about the marketplace for ideas in Shreya Singhal, the Supreme Court did not indirectly outlaw services seeking to balance access with diversity of speech. Ms. Nandy held that price discrimination in the provision of telecom, broadband and mobile Internet services already exists. In light of this, the focus should the provision of these services on the basis of consumer choice.

Geeta Seshu, The Hoot
Ms. Seshu began her presentation by noting that one's perspective on online censorship cannot be the same as that on traditional censorship. Traditional censorship cuts off an individual's access to the censored material, but on the Internet, material that is censored in traditional media finds free and wide distribution. One's conceptualisation of freedom of expression and curtailment of this right must include access to the medium as a crucial part. To this end, it is important to not forget that access to the Internet is controlled by a limited number of Internet service and content providers. Thus, a large section of the population in India cannot exercise their right to free speech because they do not have access to the Internet.

In this context, it is important to understand the way in which the digital rollout is happening in India. Ms. Seshu explained that the rollout process lacks transparency, and noted the example of the 4G/LTE rollout plan in India. There is, of course, a diversity of content: those that have access to the Internet have the ability to exercise their right to free speech in diverse ways. However, introducing access into the free speech universe highlights many inequalities that exist in the right; for instance, Dalit groups in India have limited access to the Internet, and some kinds of content receive limited airtime.

Importantly, Ms. Seshu argued that the government and other entities use technology to regulate content availability. Policymakers exploit the technology and architecture of the networks to monitor, surveil and censor content. For instance, one may see the UID scheme as an adaptation of technology to facilitate not only service-provision, but also as a move towards a Big Brother state. Civil society and citizens need to study and respond to the ways in which technology has been used against them. Unfortunately, the debates surrounding regulation do not afford space for Internet users to be part of the discussion. In order to turn this around, it is important that citizens' and users' rights are developed and introduced into the regulatory equation.

Pranesh Prakash, Policy Director, Centre for Internet & Society
Taking up where Ms. Seshu left off, Mr. Prakash wished to explore whether the Internet was merely an enabler of discussion - allowing, for instance, a ruckus to be raised around the consultation paper of the Telecom Regulatory Authority in India (TRAI) on Over-The-Top (OTT) services and net neutrality - or whether the Internet positively adds value. The Internet is, of course, a great enabler. The discussions surrounding OTTs and net neutrality are an example: in response to the TRAI consultation, a campaign titled "Save the Internet" resulted in over 9.5 lakh comments being submitted to the TRAI. It is inconceivable that such a widespread public discussion on so complex a topic (net neutrality) could take place without the Internet's facilitation.

But, Mr. Prakash held, it is important to remember that the Internet is the tool, the platform, for such mobilisation. Campaigns and conversations such as those on net neutrality could not take place without the organisations and people involved in it. Civil society organisations have played prominent roles in this regard, creating awareness and well-informed discussions. For Mr. Prakash, civil society organisations play their role best when they create such public awareness, and it is important, to play to a stakeholders strengths. Some organisations are effective campaigners, while others (such as CIS) are competent at research, analysis and dissemination.

According to Mr. Prakash, it is equally important to remember that successful discussions, campaigns or debates (such as the ongoing one on net neutrality) do not occur solely because of one organisation's strengths, or indeed because of civil society alone. Networks are especially critical in successful campaigns and policy changes. As researchers, we may not always know where our work is read, but sometimes they reach unexpected venues. For instance, one of Mr. Prakash's papers was used by the hacker collective Anonymous for a local campaign, and he was made aware of it only accidentally. Mr. Prakash noted that civil society has to also accept its failures, pointing to the controversy surrounding the Goondas Act in Karnataka. Where there are strong counter-stakeholders (such as the film lobby in south Indian states), civil society's efforts alone may not lead to success.

On net neutrality, Mr. Prakash noted the example of a strategy employed by the Times of India newspaper, when it undercut its competitors by slashing its own prices. Such moves are not unknown in the market, and they have their benefits. Consumers benefit from the lowered prices. For instance, were a Whatsapp or Facebook pack to be introduced by a telecom operator, the consumers may choose to buy this cheap, limited data pack. This is beneficial for consumers, and also works to expand access to the Internet. At the same time, diversity of speech and consumer choice is severely restricted, as these companies and telecom operators can create 'walled gardens' of information and services. Mr. Prakash put forth that if we can facilitate competitive zero-rating, and ensure that anti-competitive cross-subsidization does not occur, then perhaps zero-rated products can achieve access without forcing a trade off between diversity and choice.

Finally, on the issue of website blocking and takedowns under Sections 69A and 79, IT Act, Mr. Prakash noted that the Shreya Singhal judgment does nothing to restrict the judiciary's powers to block websites. According to Mr. Prakash, at the moment, the Shreya Singhal judgment relieves intermediaries of the responsibility to take down content if they receive private complaints about content. After the judgment, intermediaries will lose their immunity under Section 79, IT Act, only if they refuse to comply with takedown requests from government agencies or judicial orders.

But, as Mr. Prakash explained, the judiciary is itself a rogue website-blocker. In the past few years, the judiciary has periodically ordered the blocking of hundreds of websites. Such orders have resulted in the blocking of a large number of legitimate websites (including, at one point, Google Drive and Github). To ensure that our freedom of expression online is effectively protected, Mr. Prakash argued that ways to stop the judiciary from going on such a rampage must be devised.

Questions & Comments

A. Participants and panel members commented that researchers and commentators err by making analogies between the Internet and other media like newspapers, couriers, TV, satellite, cable, etc. The architecture of the Internet is very different even from cable. On the Internet, traffic flows both ways, whereas cable is not bi-directional. Moreover, pricing models for newspapers have nothing in common with those on the Internet. The comparisons in net neutrality debates stand the danger of incorrectness, and we must guard against that. Zero-rating and net neutrality issues in high-access countries are very different from the issues in low-access countries like India.

B. Participants and panel members commented that access and availability must play a predominant role in thinking about freedom of expression. In India, we are technologically far behind other states, though we have potential. The real end-goal of this is the convergence of services and information, with the user at the centre of the ecosystem. Our technological capabilities include satellite and spectrum; the best spectrum bands are lying vacant and can be re-framed. For this, the government must be educated.

C. Participants and panel members commented that in high-access states, the net neutrality issues surround competition and innovation (since there is no or very little ISP competition and switching costs are not low), while in India and France, where there is already competition amongst providers, access plays a crucial role. On the Internet, the networking or engineering aspects can disrupt the content carried over the network, so that is also a concern.

D. Participants and panel members commented that zero-rating is both a blessing and a curse. Zero-rating would not be detrimental in a market with perfect information and competition. But the reality is information asymmetry and imperfect competition. If today, we were to allow zero-rating, diversity would suffer and we would be left with 'walled gardens'.

Conclusion

The conference addressed a range of issues characteristic of debates surrounding freedom of expression in India and South Asia. Beginning with the conceptual understanding of freedom of expression, panellists advocated an expanded definition, where the right to free speech is teleological. The panellists considered freedom of speech as a tool to ensure diversity of speech, both horizontally and vertically. Towards this end, panellists gave several suggestions:

First , policymakers and scholars must understand freedom of speech as a right of both the speaker and the listener/reader, and carve out a separate listeners' right. Panellists expanded upon this to show the implications for the debate on net neutrality, cross-media ownership and website-blocking, for instance.

Second , there is a need for scholars to examine the historical dichotomy between the policy and jurisprudence of free speech in India and other contexts across South Asia. Such an approach to scholarship and policy research would help predict future government policy (such as in the case of the Indian government's stance towards Section 66A following the Supreme Court's decision in Shreya Singhal v. Union of India) and strategize for the same.

Third , particularly with regard to the Internet, there is a need for policy advocates and policy makers to "bust" the founding myths of the Internet, and look to various domestic and international sources of law and regulation. Studies of regulation of freedom of speech on the Internet in different jurisdictions (Bangladesh, China, Sri Lanka) indicate differing government approaches, and provide examples to learn from. The interpretation and consequences of Shreya Singhal on website-blocking and intermediary liability in India provide another learning platform.

Fourth , panellists discussed the possibilities of cooperation and strategies among civil society and policy organisations in India. Taking the example of the Save the Internet campaign surrounding net neutrality in India, panellists speculated on the feasibility of using the Internet itself as a tool to campaign for governance and policy reform. Together with the audience, the panellists identified several areas that are ripe for research and advocacy, such as net neutrality and zero-rating, and citizens' free speech right as being separate from governmental and corporate interests.

For more details visit https://cis-india.org/internet-governance/blog/freedom-of-expression-in-a-digital-age

Freedom of Expression Gagged

chinmayi — 2013-02-18T08:55:36Z

The use of law to bully people into silence, called ‘heckler’s veto’, is not unique to India, writes Chinmayi Arun in this op-ed published in Business Line on February 15, 2013.

Click to read the original published in the Business Line.

Freedom of expression in India is under threat. This year we have the Tamil Nadu government’s ban on Vishwaroopam, the Ashis Nandy FIR, the smothering of Kashmir’s first all girls rock band’s music, and the removal of semi-nude paintings of Hindu deities from an art gallery upon the police’s ‘suggestion’. Another Rushdie-banning controversy is upon us, and yet another Facebook user’s arrest has made the news.

Clearly, our right to freedom of expression is under an ongoing siege. The onslaught comes in varied forms: bullying by members of society, informal government action with the overhanging threat of the law, and direct use of the law (and of a variety of legislations within it). Each form is encouraged, exacerbated even, by our problematic interpretation of freedom of expression principles. Our law allows a group of intolerant people to silence a speaker by creating a threat to public order or by threatening the speaker directly, and our state is proving utterly ineffectual in protecting speech from intolerance.

Instruments Deployed

India’s first Kashmiri all-girls band is tragic proof of horizontal attacks on speech – their music was silenced by the grandmufti’s declaring it ‘un-Islamic’, and the attendant social pressure that tends to follow. They were not protected from this horizontal attack. The Palghar incident also had echoes of horizontal pressure, which was used to directly bully Shaheen Dhada, via friends advising her to apologise and strangers slapping her, before the instrument of the law was used to bully her further.

The instrument of the law can be used in invisible, informal ways, as Bangalore’s Chitrakala Parishath incident illustrates. Here, the pressure of police ‘suggestion’, carrying the implied threat of the force of the law, was used to ensure that semi-nude paintings of Hindu deities were removed from an exhibition. It appears that this police ‘suggestion’ was motivated by the fear that those paintings could trigger law and order problems.

Vishwaroopam was banned using the law, specifically section 144 of the Code of Criminal Procedure, which empowers the government to issue orders “in urgent cases of nuisance or apprehended danger”. However, orders issued under section 144 would still need to observe the boundaries drawn for it in Article 19(2) of the Constitution.

Freedom and Public Order

Some may argue that controversial or offensive speech can legitimately be restricted since “public order” is one of the grounds for which our Constitution permits the restriction of the freedom of expression. However the original text of the Constitution did not include “public order” among its permissible grounds for restriction. This was inserted in the First Amendment of the Constitution, but was fortunately accompanied by the word ‘reasonable’ before restriction, thus ensuring that the freedom of expression can only be reasonably restricted under the exceptional circumstances listed in the Constitution.

This insertion of ‘public order’ came after the Supreme Court’s invalidation of government pre-censorship of speech on public order grounds in Romesh Thapar v. State of Madras (1950), declaring that the Constitution required that “nothing less than endangering the foundations of the State or threatening its overthrow could justify curtailment of the rights to freedom of speech and expression”. Therefore, Parliament amended the Constitution to expand the grounds on which the state could restrict speech, and included ‘public order’ among the expanded grounds. The trouble with this is that the intolerant are now able to create a public order problem to silence speakers.

The Supreme Court of India, in Babulal Parate vs State Of Maharashtra (1961) found that public order must be “maintained in advance in order to ensure it”, and ruled that restriction of Article 19 freedoms of expression and assembly in the interests of public order is permissible. However, all such restrictions must continue to satisfy the reasonability test laid down in the Constitution, providing our judiciary with the opportunity to ensure that intolerance does not continue to oppress speech.

The Heckler's Veto

The use of law to bully people into silence is not unique to India. Harry Kalven termed this ‘the hecklers’ veto’: if police action silences speakers for fear that the offended listeners might create a law and order problem, this effectively allows the listeners to veto what the speaker can say. There was a time when the heckler’s veto held sway in the United States and the United Kingdom. However, both countries’ legal principles have evolved to stop pandering to the intolerant, and it is time that India does the same.

Justice Hugo Black of the US Supreme Court, in his Feiner v. New York (1951) dissent, argued that the police must make all reasonable efforts to protect the speaker’s constitutional right to speak before interfering with this right. This dissenting opinion was later hailed as visionary. The US Supreme Court subsequently gradually recognised the evils of the heckler’s veto, which privileges and encourages intolerance. The United Kingdom also progressively narrowed its reading of the Public Order Act to ensure that speech is not restricted unless immediate violence is feared, and is now decriminalising insults which are not directed at a clearly identifiable victim.

The Indian Supreme Court’s judgment in the Rangarajan v. P. Jagjivan Ram (1989) echoes Justice Black’s denouncement of the heckler’s veto. It declares, “freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence. That would tantamount to …surrender to blackmail and intimidation. It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem”. However other judgments have shied away from confronting the fact that speech-related public order problems created by intolerance, not by speech.

Our legal system needs to take a firm, consistent stand against the heckler’s veto. We need to stop mirroring the evils of outdated law in fresh legislations like the Information Technology Act, and work instead to remove law and practices that institutionalise intolerance.

(The author teaches at National Law University, Delhi and is Fellow, Centre for Internet and Society.)

For more details visit https://cis-india.org/internet-governance/blog/the-hindubusinessline-feb-15-2013-chinmayi-arun-freedom-of-expression-gagged

Freedom from Monitoring: India Inc Should Push For Privacy Laws

sunil — 2013-08-21T07:04:48Z

More surveillance than absolutely necessary actually undermines the security objective.

This article by Sunil Abraham was published in Forbes India Magazine on August 21, 2013.

I think I understand why the average Indian IT entrepreneur or enterprise does not have a position on blanket surveillance. This is because the average Indian IT enterprise’s business model depends on labour arbitrage, not intellectual property. And therefore they have no worries about proprietary code or unfiled patent applications being stolen by competitors via rogue government officials within projects such as NATGRID, UID and, now, the CMS.

A sub-section of industry, especially the technology industry, will always root for blanket surveillance measures. The surveillance industry has many different players, ranging from those selling biometric and CCTV hardware to those providing solutions for big data analytics and legal interception systems. There are also more controversial players who provide spyware, especially those in the market for zero-day exploits. The cheerleaders for the surveillance industry are techno-determinists who believe you can solve any problem by throwing enough of the latest and most expensive technology at it.

What is surprising, though, is that other indigenous or foreign enterprises that depend on secrecy and confidentiality—in sectors such a banking, finance, health, law, ecommerce, media, consulting and communications—also don’t seem to have a public position on the growing surveillance ambitions of ‘democracies’ such as India and the United States of America. (Perhaps the only exceptions are a few multinational internet and software companies that have made some show of resistance and disagreement with the blanket surveillance paradigm.)

Is it because these businesses are patriotic? Do they believe that secrecy, confidentiality and, most importantly, privacy, must be sacrificed for national security? If that were true then it would not be a particularly wise thing to do, as privacy is the precondition for security. Ann Cavoukian, privacy commissioner of Ontario, calls it a false dichotomy. Bruce Schneier, security technologist and writer, calls it a false zero sum game; he goes on to say, “There is no security without privacy. And liberty requires both security and privacy.”

The reason why the secret recipe of Coca Cola is still secret after over 120 years is the same as the reason why a captured soldier cannot spill the beans on the overall war strategy. Corporations, like militaries, have layers and layers of privacy and secrecy. The ‘need to know’ principle resists all centralising tendencies, such as blanket surveillance. It’s important to note that targeted surveillance to identify a traitor or spy within the military, or someone engaged in espionage within a corporation, is pretty much an essential. However, any more surveillance than absolutely necessary actually undermines the security objective. To summarise, privacy is a pre-condition to the security of the individual, the enterprise, the military and the nation state.

Most people complaining online about projects like the Central Monitoring System seem to think that India has no privacy laws. This is completely untrue: We have around 50 different laws, rules and regulations that aim to uphold privacy and confidentiality in various domains. Unfortunately, most of those policies are very dated and do not sufficiently take into account the challenges of contemporary information societies. These policy documents need to be updated and harmonised through the enactment of a new horizontal privacy law. A small minority will say that Section 43(A) of the Information Technology Act is the India privacy law. That is not completely untrue, but is a gross exaggeration. Section 43(A) is really only a data security provision and, at that, it does not even comprehensively address data protection, which is only a sub-set of the overall privacy regulation required in a nation.

What would an ideal privacy law for India look like? For one, it would protect the rights of all persons, regardless of whether they are citizens or residents. Two, it would define privacy principles. Three, it would establish the office of an independent and autonomous privacy commissioner, who would be sufficiently empowered to investigate and take action against both government and private entities. Four, it would define civil and criminal offences, remedies and penalties. And five, it would have an overriding effect on previous legislation that does not comply with all the privacy principles.

The Justice AP Shah Committee report, released in October 2012, defined the Indian privacy principles as notice, choice and consent, collection limitation, purpose limitation, access and correction, disclosure of information, security, openness and accountability. The report also lists the exemptions and limitations, so that privacy protections do not have a chilling effect on the freedom of expression and transparency enabled by the Right to Information Act.

The Department of Personnel and Training has been working on a privacy bill for the last three years. Two versions of the bill had leaked before the Justice AP Shah Committee was formed. The next version of the bill, hopefully implementing the recommendations of the Justice AP Shah Committee report, is expected in the near future. In a multi-stakeholder-based parallel process, the Centre for Internet and Society (where I work), along with FICCI and DSCI, is holding seven round tables on a civil society draft of the privacy bill and the industry-led efforts on co-regulation.

The Indian ITES, KPO and BPO sector should be particularly pleased with this development. As should any other Indian enterprise that holds personal information of EU and US nationals. This is because the EU, after the enactment of the law, will consider data protection in India adequate as per the requirements of its Data Protection Directive. This would mean that these enterprises would not have to spend twice the time and resources ensuring compliance with two different regulatory regimes.

Is the lack of enthusiasm for privacy in the Indian private sector symptomatic of Indian societal values? Can we blame it on cultural relativism, best exemplified by what Simon Davies calls “the Indian Train Syndrome, in which total strangers will disclose their lives on a train to complete strangers”? But surely, when email addresses are exchanged at the end of that conversation, they are not accompanied by passwords. Privacy is perhaps differently configured in Indian societies but it is definitely not dead. Fortunately for us, calls to protect this important human right are growing every day.

For more details visit https://cis-india.org/internet-governance/blog/forbesindia-article-august-21-2013-sunil-abraham-freedom-from-monitoring

Freedom debate takes a new course

praskrishna — 2012-07-22T16:34:54Z

The focus is now on the dubious roles played by private entities on what goes online, says Deepa Kurup in this article published in the Hindu on July 1, 2012.

Deepa Kurup's article was published in the Hindu on July 1, 2012. Pranesh Prakash is quoted.

Debates on censoring the Internet, till recently, largely pitted the ‘people’, that is Net users, against the government which was perceived as seeking to stifle free speech on the Web, a medium that is believed to be vastly powerful and democratic. However, in recent weeks, the focus of the discourse has shifted from shrill anti-government stances to the dubious role that private entities — that often projected themselves as protectors of free speech in the earlier debates — play in controlling this important resource.

That there are various private interests — ranging from Internet service providers, Web companies to the entertainment industry — at stake here is a no-brainer. However, this came to the fore only last month, when two major Internet service providers, Airtel and Reliance, in a pre-emptive move to comply with a Madras High Court order seeking to curb piracy of regional films, blocked access to at least a dozen sites. The blocked sites not only included file-sharing sites but also legitimate Web businesses such as video-sharing sites Vimeo and Daily Motion, that largely host high-quality original videos, and bookmarking sites such as Pastebin.

What was noteworthy is that the High Court did not order the blocking of these websites, and merely ruled that piracy of regional films such as Dammu and 3 be curbed. The order was in response to a petition by makers of the Tamil film 3, yes, the same movie whose claim to fame was the viral Internet hit ‘Kolaveri di’, made popular because thousands of netizens freely shared and viewed the video.

Not limited to regional films, there has been a steady increase in the number of Indian movie production houses, such as Reliance Entertainment Ltd. and Viacom18 Motion Pictures, seeking ex-parte injunctions (popularly known as John Doe or Ashok Kumar orders against unknown persons) to curb piracy of their copyrighted material. Most recently, Viacom18 went to court seeking pre-emptive orders for last Friday’s release, Gangs of Wasseypur, a move that in the context of increased awareness on such laws and their chilling effect on the Internet, drew much flak from netizens. Even in the past, ISPs and Web companies, eager to sidestep possible legal landmines, are known to have blocked entire sites in response to government requests.

Partial Relief?

Last week, the Madras High Court, ruling on an appeal filed by a consortium of ISPs, decreed that ISPs need only block a few specific URLs that carry pirated content, and not entire websites. Following this clarification from the court, ISPs unblocked the sites.

Though many rejoiced over the order, seeing it as an indicator of the success of campaigns — some overt and others more covert such as the hacktivist group Anonymous — others have been more guarded in their response to this.

Pranesh Prakash, lawyer and copyright expert at the Centre for Internet and Society, feels that the victory is only partial given that the court has endorsed partial blocking of Web links. He says: “Under Indian copyright law, ISPs cannot be liable for copyright infringement committed by their users. So while it is good that the court clarified that its order was limited in its scope, it is possible to read even this as going far beyond that which is allowed under the law.” Mr. Prakash points out that the copyright law can be used for censorship, for instance, in the case of the Satish Seth video that Reliance Entertainment has gotten removed from YouTube by citing copyright infringement.”

Hacktivist Exposes

The Satish Seth video was one among many links part of a list published by hacktivist group Anonymous India, on the blog Kafila. The group claimed to have hacked into the servers of Reliance Communication and found a list of 434 Web addresses that were blocked.

Not surprisingly, at least 45 of them were blocked on Reliance request and had little to do with government or court orders. While Reliance has denied the hack and said that list is not authentic, to the media, the list brought to the fore the uneasy role that private companies could play in who controls content on the Web.

Though it is unknown what the Satish Seth links originally contained, a simple search on the web reveals that Mr. Seth is a senior employee in the Reliance Group. These links were later unblocked.

Though some of the distributed denial of service (DDOS) attacks orchestrated by the group that calls itself Anonymous India targeted government websites, a major target have been these private companies.

In that sense, the contribution of Anonymous India has been interesting in changing the narrative of the discourse to include how private companies that have off late taken to sermonising on the merits of unrestricted freedom on the Web, could easily manipulate the system to further their own interests.

This uneasy equation was also exposed in a ‘sting operation’ conducted by the CIS in 2010, in which Web companies eagerly complied to unsubstantiated or dummy take-down notices sent out.

While the first round of activism focussed on the government’s proposal to clampdown on what it called ‘hate speech’ on the Web by fixing intermediary liabilities (through guidelines it notified in April 2011), this round has dealt with the complex issue of copyrights. A difficult issue worldwide, like in the U.S. for instance where the controversial Bill SOPA sought to block sites that host copyrighted material, here too huge entertainment lobbies, backed by big business, are likely to play a bigger and more forceful role in this debate.

This is apparent even in the Google Transparency Report, released earlier this month, which shows the number of copyright removal notices received for Search (not including its other services such as YouTube and Blogger) in the past year is a climbing statistic.

In June alone, Google Search received 2,221,212 takedown requests from copyright owners and reporting organisations. Not surprisingly, though the list of requestors is topped by software major Microsoft, among other top contenders are all the major production houses.

For more details visit https://cis-india.org/news/freedom-debate-takes-a-new-course

Free Speech Policy in India: Community, Custom, Censorship, and the Future of Internet Regulation

bhairav — 2015-08-23T10:12:16Z

This note summarises my panel contribution to the conference on Freedom of Expression in a Digital Age at New Delhi on 21 April 2015, which was organised by the Observer Research Foundation (ORF) and the Centre for Internet and Society (CIS) in collaboration with the Internet Policy Observatory of the Center for Global Communication Studies (CGCS) at the Annenberg School for Communication, University of Pennsylvania

Download the Note here (PDF, 103 Kb)

Preliminary

There has been legitimate happiness among many in India at the Supreme Court’s recent decision in the Shreya Singhal case to strike down section 66A of the Information Technology Act, 2000 ("IT Act") for unconstitutionally fettering the right to free speech on the Internet. The judgment is indeed welcome, and reaffirms the Supreme Court’s proud record of defending the freedom of speech, although it declined to interfere with the government’s stringent powers of website blocking. As the dust settles there are reports the government is re-grouping to introduce fresh law, allegedly stronger to secure easier convictions, to compensate the government’s defeat.

Case Law and Government Policy

India’s constitutional courts have a varied history of negotiating the freedom of speech that justifiably demands study. But, in my opinion, inadequate attention is directed to the government’s history of free speech policy. It is possible to discern from the government’s actions over the last two centuries a relatively consistent narrative of governance that seeks to bend the individual’s right to speech to its will. The defining characteristics of this narrative – the government’s free speech policy – emerge from a study of executive and legislative decisions chiefly in relation to the press, that continue to shape policy regarding the freedom of expression on the Internet.

India’s corpus of free speech case law is not uniform nor can it be since, for instance, the foundational issues that attend hate speech are quite different from those that inform contempt of court. So too, Indian free speech policy has been varied, captive to political compulsions and disparate views regarding the interests of the community, governance and nation-building. There has been consistent tension between the individual and the community, as well as the role of the government in enforcing the expectations of the community when thwarted by law.

Dichotomy between Modern and Native Law

To understand free speech policy, it is useful to go back to the early colonial period in India, when Governor-General Warren Hastings established a system of courts in Bengal’s hinterland to begin the long process of displacing traditional law to create a modern legal system. By most accounts, pre-modern Indian law was not prescriptive, Austinian, and uniform. Instead, there were several legal systems and a variety of competing and complementary legal sources that supported different interpretations of law within most legal systems. J. Duncan M. Derrett notes that the colonial expropriation of Indian law was marked by a significant tension caused by the repeatedly-stated objective of preserving some fields of native law to create a dichotomous legal structure. These efforts were assisted by orientalist jurists such as Henry Thomas Colebrook whose interpretation of the dharmasastras heralded a new stage in the evolution of Hindu law.

In this background, it is not surprising that Elijah Impey, a close associate of Hastings, simultaneously served as the first Chief Justice of the Supreme Court at Fort William while overseeing the Sadr Diwani Adalat, a civil court applying Anglo-Hindu law for Hindus, and the Sadr Faujdari Adalat, a criminal court applying Anglo-Islamic law to all natives. By the mid-nineteenth century, this dual system came under strain in the face of increasing colonial pressure to rationalise the legal system to ensure more effective governance, and native protest at the perceived insensitivity of the colonial government to local customs.

Criminal Law and Free Speech in the Colony

In 1837, Thomas Macaulay wrote the first draft of a new comprehensive criminal law to replace indigenous law and custom with statutory modern law. When it was enacted as the Indian Penal Code in 1860 ("IPC"), it represented the apogee of the new colonial effort to recreate the common law in India. The IPC’s enactment coincided with the growth and spread of both the press and popular protest in India. The statute contained the entire gamut of public-order and community-interest crimes to punish unlawful assembly, rioting, affray, wanton provocation, public nuisance, obscenity, defiling a place of worship, disturbing a religious assembly, wounding religious feelings, and so on. It also criminalised private offences such as causing insult, annoyance, and intimidation. These crimes continue to be invoked in India today to silence individual opinion and free speech, including on the Internet. Section 66A of the IT Act utilised a very similar vocabulary of censorship.

Interestingly, Macaulay’s IPC did not feature the common law offences of sedition and blasphemy or the peculiar Indian crime of promoting inter-community enmity; these were added later. Sedition was criminalised by section 124A at the insistence of Barnes Peacock and applied successfully against Indian nationalist leaders including Bal Gangadhar Tilak in 1897 and 1909, and Mohandas Gandhi in 1922. In 1898, the IPC was amended again to incorporate section 153A to criminalise the promotion of enmity between different communities by words or deeds. And, in 1927, a more controversial amendment inserted section 295A into the IPC to criminalise blasphemy. All three offences have been recently used in India against writers, bloggers, professors, and ordinary citizens.

Loss of the Right to Offend

The two amendments of 1898 and 1927, which together proscribed the promotion of inter-community enmity and blasphemy, represent the dismantling of the right to offend in India. But, oddly, they were defended by the colonial government in the interests of native sensibilities. The proceedings of the Imperial Legislative Council reveal several members, including Indians, were enthusiastic about the amendments. For some, the amendments were a necessary corrective action to protect community honour from subversive speech. The 1920s were a period of foment in India as the freedom movement intensified and communal tension mounted. In this environment, it was easy to fuse the colonial interest in strong administration with a nationalist narrative that demanded the retrieval of Indian custom to protect native sensibilities from being offended by individual free speech, a right derived from modern European law. No authoritative jurist could be summoned to prove or refute the claim that native custom privileged community honour.

Sadly the specific incident which galvanised the amendment of 1927, which established the crime of blasphemy in India, would not appear unfamiliar to a contemporary observer. Mahashay Rajpal, an Arya Samaj activist, published an offensive pamphlet of the Prophet Muhammad titled Rangeela Rasool, for which he was arrested and tried but acquitted in the absence of specific blasphemy provisions. With his speech being found legal, Rajpal was released and given police protection but Ilam Din, a Muslim youth, stabbed him to death. Instead of supporting its criminal law and strengthening its police forces to implement the decisions of its courts, the colonial administration surrendered to the threat of public disorder and enacted section 295A of the IPC.

Protest and Community Honour

The amendment of 1927 marks an important point of rupture in the history of Indian free speech. It demonstrated the government’s policy intention of overturning the courts to restrict the individual’s right to speech when faced with public protest. In this way, the combination of public disorder and the newly-created crimes of promoting inter-community enmity and blasphemy opened the way for the criminal justice system to be used as a tool by natives to settle their socio-cultural disputes. Both these crimes address group offence; they do not redress individual grievances. In so far as they are designed to endorse group honour, these crimes signify the community’s attempt to suborn modern law and individual rights.

Almost a century later, the Rangeela Rasool affair has become the depressing template for illegal censorship in India: fringe groups take offence at permissible speech, crowds are marshalled to articulate an imagined grievance, and the government capitulates to the threat of violence. This formula has become so entrenched that governance has grown reflexively suppressive, quick to silence speech even before the perpetrators of lumpen violence can receive affront. This is especially true of online speech, where censorship is driven by the additional anxiety brought by the difficulty of Internet regulation. In this race to be offended the government plays the parochial referee, acting to protect indigenous sensibilities from subversive but legal speech.

The Censorious Post-colony

Independence marked an opportunity to remake Indian governance in a freer image. The Constituent Assembly had resolved not to curb the freedom of speech in Article 19(1)(a) of the Constitution on account of public order. In two cases from opposite ends of the country where right-wing and left-wing speech were punished by local governments on public order grounds, the Supreme Court acted on the Constituent Assembly’s vision and struck down the laws in question. Free speech, it appeared, would survive administrative concerns, thanks to the guarantee of a new constitution and an independent judiciary. Instead Prime Minister Jawaharlal Nehru and his cabinet responded with the First Amendment in 1951, merely a year after the Constitution was enacted, to create three new grounds of censorship, including public order. In 1963, a year before he demitted office, the Sixteenth Amendment added an additional restriction.

Nehru did not stop at amending the Constitution, he followed shortly after with a concerted attempt to stage-manage the press by de-legitimising certain kinds of permissible speech.

Under Justice G. S. Rajadhyaksha, the government constituted the First Press Commission which attacked yellow journalism, seemingly a sincere concern, but included permissible albeit condemnable speech that was directed at communities, indecent or vulgar, and biased. Significantly, the Commission expected the press to only publish speech that conformed to the developmental and social objectives of the government. In other words, Nehru wanted the press to support his vision of India and used the imperative of nation-building to achieve this goal. So, the individual right to offend communities was taken away by law and policy, and speech that dissented from the government’s socio-economic and political agenda was discouraged by policy. Coupled with the new constitutional ground of censorship on account of public order, the career of free speech in independent India began uncertainly.

How to regulate permissible speech?

Despite the many restrictions imposed by law on free speech, Indian free speech policy has long been engaged with the question of how to regulate the permissible speech that survives constitutional scrutiny. This was significantly easier in colonial India. In 1799, Governor-General Richard Wellesley, the brother of the famous Duke of Wellington who defeated Napoleon at Waterloo, instituted a pre-censorship system to create what Rajeev Dhavan calls a “press by permission” marked by licensed publications, prior restraint, subsequent censorship, and harsh penalties. A new colonial regime for strict control over the publication of free speech was enacted in the form of the Press and Registration of Books Act, 1867, the preamble of which recognises that “the literature of a country is…an index of…the condition of [its] people”. The 1867 Act was diluted after independence but still remains alive in the form of the Registrar of Newspapers.

After surviving Indira Gandhi’s demand for a committed press and the depredations of her regime during the Emergency, India’s press underwent the examination of the Second Press Commission. This was appointed in 1978 under the chairmanship of Justice P. K. Goswami, a year after the Janata government released the famous White Paper on Misuse of Mass Media. When Gandhi returned to power, Justice Goswami resigned and the Commission was reconstituted under Justice K. K. Mathew. In 1982, the Commission’s report endorsed the earlier First Press Commission’s call for conformist speech, but went further by proposing the appointment of a press regulator invested with inspection powers; criminalising attacks on the government; re-interpreting defamation law to encompass democratic criticism of public servants; retaining stringent official secrecy law; and more. It was quickly acted upon by Rajiv Gandhi through his infamous Defamation Bill.

The contours of future Internet regulation

The juggernaut of Indian free speech policy has received temporary setbacks, mostly inflicted by the Supreme Court. Past experience shows us that governments with strong majorities – whether Jawaharlal Nehru’s following independence or Indira Gandhi’s in the 1970s – act on their administrative impulses to impede free speech by government policy. The Internet is a recent and uncontrollable medium of speech that attracts disproportionately heavy regulatory attention. Section 66A of the IT Act may be dead but several other provisions remain to harass and punish online free speech. Far from relaxing its grip on divergent opinions, the government appears poised for more incisive invasions of personal freedoms.

I do not believe the contours of future speech regulation on the Internet need to be guessed at, they can be derived from the last two centuries of India’s free speech policy. When section 66A is replaced – and it will be, whether overtly by fresh statutory provisions or stealthily by policy and non-justiciable committees and commissions – it will be through a regime that obeys the mandate of the First Press Commission to discourage dissenting and divergent speech while adopting the regulatory structures of the Second Press Commission to permit a limited inspector raj and forbid attacks on personalities. The interests of the community, howsoever improperly articulated, will seek precedence over individual freedoms and the accompanying threat of violence will give new meaning to Bhimrao Ambedkar’s warning of the “grammar of anarchy”.

For more details visit https://cis-india.org/internet-governance/blog/policy-in-india-community-custom-censorship-and-future-of-internet-regulation

Free Speech Online in India under Attack?

praskrishna — 2012-03-02T03:03:24Z

When the Union Minister for Communications and Information Technology, Mr. Kapil Sibal suggested pre-censorship for a range of popular online platforms and social networking sites, the suggestion was met by a barrage of criticism, which soon forced him to back down. Yet Sibal’s suggestion is not the only threat to free speech on the Internet in India today. Legislation such as the Intermediary Due Diligence Rules and Cyber Café Rules (also jointly known as the IT Rules) issued in April 2011 is equally dangerous for free speech online.

Achal Prabhala, Anja Kovacs and Lawrence Liang will join Sunil Abraham to discuss in more detail some of the direct threats to freedom of expression online in India today including the larger legal and social context of freedom of expression and censorship, control and resistance in which they have to be understood and the steps that can be taken to ensure that substantive protections for freedom of expression online will be put into place.

The Speakers

Achal Prabhala

Achal is based in Bangalore, Karnataka. He is a researcher, activist and writer in the areas of access to knowledge and access to medicine besides being a member of the Advisory board of the Wikimedia Foundation.

Anja Kovacs

Anja works with the Internet Democracy Project, which engages in research and advocacy on the promises and challenges that the Internet poses for democracy and social justice in the developing world.

Lawrence Liang

Lawrence is a researcher and lawyer based in Bangalore, who is known for his legal campaigns on issues of public concern. He is a co-founder of the Alternative Law Forum and works on the intersection of law, technology and culture. He has worked closely with filmmakers and artists in a number of anti-censorship campaigns.

The Moderator

Sunil Abraham

Sunil is the Executive Director of the Centre for Internet and Society, a Bangalore-based non-profit organization. He is also a social entrepreneur and Free Software advocate. He founded Mahiti in 1998 which aims to reduce the cost and complexity of Information and Communication Technology for the Voluntary Sector by using Free Software.

This event is jointly organised by the Internet Democracy Project and the Centre for Internet and Society. Join us at the Centre for Internet and Society in Bangalore, on Wednesday 21 December, at 5.30 pm.

VIDEOS

For more details visit https://cis-india.org/internet-governance/free-speech-online-in-india-under-attack

Free Net advocates flay Trai's public Wi-Fi paper

praskrishna — 2016-11-20T03:21:41Z

Stakeholders vouching for a cheap and open Internet have flagged concerns over privacy and regulatory hurdles.

The article by Anita Babu was published in the Business Standard on November 20, 2016. Pranesh Prakash was quoted.

With the Telecom Regulatory Authority of India releasing its consultation paper on public Wi-Fi this week, stakeholders vouching for a cheap and open Internet have flagged concerns over privacy and regulatory hurdles.

The Internet Freedom Foundation has pointed out that the proposed regulations might lead to invasion of privacy and interfere with the freedom of hotspot providers to operate freely.

“While we welcome Trai’s vision that increasing the number of public Wi-Fi hotspots could be the way to bringing the majority of Indians online, the proposals turn out to be regressive and poorly thought out,” said Aravind Ravi Sulekha, co-founder of the Internet Freedom Foundation.

The regulator in its consultation paper issued earlier this week proposed hotspot providers would have to register with the government and users could access hotspots only after paying using a service tied to their Aadhaar number. It wants to utilise Aadhaar, electronic-Know Your Customer (e-KYC) and the Unified Payment Interface (UPI) to build a standard authentication mechanism for access to public Wi-Fi in India. While the aim of Trai is to increase the number of Wi-Fi hotspots in India, proponents of free Internet fear these proposed rules might have a contrary effect.

Hotspot providers will have to incur costs on account of hardware installations for one-time password verification in addition to the costs of sending out the passwords. This might discourage entrepreneurs.

“This system of verification makes it harder for entrepreneurs to set up hotspots and for people to access them. It is impossible for broadband to proliferate in any significant way if Trai insists on applying ineffective and cumbersome regulations on those who wish to set up their own hotspots,” Internet Freedom Foundation said in its comments to Trai’s consultation paper.

The proposals have excluded individuals who do not have an Aadhaar account from accessing public Wi-Fi. “This not only brings concerns of costs and exclusion but also privacy, given the constitutionality of the Aadhaar project, and its government-mandated use, is pending adjudication in the Supreme Court,” the foundation pointed out.

The proposals also come at the cost of anonymity. The foundation, cofounded by the crusaders of last year’s SaveTheInternet campaign, trashed the argument that imposing eKYC norms would help in countering terrorism and other crimes. “This prohibition on anonymous communication is a violation of Indians’ freedom of expression… making a call at a PCO, sending a telegram and posting a letter have always been possible without showing ID — even though criminals and terrorists occasionally abused these services… KYC measures are ineffective in preventing crime and terrorism, as tools like VPNs, TOR, and proxies can easily mask the identity of an Internet user,” it stated.

“The solution proposed by Trai is a classic example of centralism and over-regulation. It turns out that Trai is unclear about the problem to be solved,” said Pranesh Prakash, policy director at the Centre for Internet and Society. He added that the new proposals had also failed to address the limitations on foreigners or tourists in India.

Current regulations prevent foreigners without a local mobile number from accessing public Wi-Fi connections. While Trai had identified the problem, it failed to come up with a plausible solution.

For more details visit https://cis-india.org/internet-governance/news/business-standard-november-20-2016-anita-babu-free-net-advocates-flay-trais-public-wifi-paper

Free expression

praskrishna — 2011-05-23T08:48:44Z

Free speech and spirited public debate will be the casualties of new rules issued by India restricting Internet content. This news was published in Watertown Daily Times on May 2, 2011.

The regulations from the country's Department of Information Technology go beyond government censorship to individual censorship of material that might be offensive. According to the New York Times, even private citizens can demand that a service provider remove content that is "disparaging," "harassing" or "blasphemous."

The terms, though, are not defined. They are vague and subject to personal interpretation. Enforcement by the government or individuals will be arbitrary.

A rule against content that "threatens the unity, integrity, defense, security or sovereignty of India, friendly relations with foreign states or public order" could be used by the government to block Internet debate over foreign policy or disagreement with the government's diplomatic relations with another country.

They are also subject to abuse by those who want to silence those they dislike or oppose.

India has a history of banning books and other materials considered objectionable, but the new rules go much further than a specific ban. They also require "intermediaries" such as Facebook and YouTube to remove offensive content within 36 hours of a complaint from anyone. No provisions are made for challenging the complaint.

"These rules favor those who want to clamp down on freedom of expression," said Sunil Abraham, executive director for the Center for Internet and Society.

Such rules are not surprising in countries with repressive regimes, but they are intolerable in a nation like India that considers itself democratic.

Read the original here

For more details visit https://cis-india.org/news/free-expression

Free Basics: Negating net parity

sunil — 2016-01-03T05:58:00Z

Researchers funded by Facebook were apparently told by 92 per cent of Indians they surveyed from large cities, with Internet connection and college degree, that the Internet “is a human right and that Free Basics can help bring Internet to all of India.” What a strange way to frame the question given that the Internet is not a human right in most jurisdictions.

The article was published in the Deccan Herald on January 3, 2016.

Free Basics is gratis service offered by Facebook in partnership with telcos in 37 countries. It is a mobile app that features less than a 100 of the 1 billion odd websites that are currently available on the WWW which in turn is only a sub-set of the Internet. Free Basics violates Net Neutrality because it introduces an unnecessary gatekeeper who gets to decide on “who is in” and “who is out”. Services like Free Basics could permanently alienate the poor from the full choice of the Internet because it creates price discrimination hurdles that discourage those who want to leave the walled garden.

Inika Charles and Arhant Madhyala, two interns at Centre for Internet and Society (CIS), surveyed 1/100th of the Facebook sample, that is, 30 persons with the very same question at a café near our office in Bengaluru. Seventy per cent agreed with Facebook that the Internet was a human right but only 26 per cent thought Free Basics would achieve universal connectivity. My real point here is that numbers don’t matter. At least not in the typical way they do. Facebook dismissed Amba Kak’s independent, unfunded, qualitative research in Delhi, in their second public rebuttal, saying the sample size was only 20.

That was truly ironical. The whole point of her research was the importance of small numbers. Kak says, “For some, it was the idea of an ‘emergency’ which made all-access plans valuable.” A respondent stated: “But maybe once or twice a month, I need some information which only Google can give me... like the other day my sister needed to know results to her entrance exams.” If you consider that too mundane, take a moment to picture yourself stranded in the recent Chennai flood. The statistical rarity of a Black Swan does not reduce its importance. A more neutral network is usually a more resilient network. When we do have our next national disaster, do we want to be one of the few countries on the planet who, thanks to our flawed regulation, have ended up with a splinternet?

Telecom Regulatory Authority of India (Trai) chairman R S Sharma rightly expressed some scepticism around numbers when he said “the consultation paper is not an opinion poll.” He elaborated: “The issue here is some sites are being offered to one person free of cost while another is paying for it. Is this a good thing and can operators have such powers?” Had he instead asked “Is this the best option?” my answer would be “no”. Given the way he has formulated the question, our answer is a lawyerly “it depends”. The CIS believes that differential pricing should be prohibited. However, it can be allowed under certain exceptional standards when it is done in a manner that can be justified by the regulator against four axes of sometimes orthogonal policy objectives. They are increased access, enhanced competition, increased user choice and contribution to openness. For example, a permanent ban on Free Basics makes sense in the Netherlands but regulation may be sufficient for India.

Gatekeeping powers

To the second and more important part to Trai chairman’s second question on gatekeeping powers of operators, our answer is a simple “no”. But then, do we have any evidence that gatekeeping powers have been abused to the detriment of consumer and public interest? No. What do we do when we cannot, like Russell’s chicken, use induction to explain our future? Prof Simon Wren-Lew says, “If Bertrand Russell’s chicken had been an economist ...(it would have)... asked a crucial additional question: Why is the farmer doing this? What is in it for him?” There were five serious problems with Free Basics that Facebook has at least partially fixed, thanks mostly to criticism from consumers in India and Brazil. One, exclusivity with access provider; two, exclusivity with a set of web services; three, lack of transparency regarding retention of personal information; four, misrepresentation through the name of the service, Internet.org and five, lack of support for encrypted traffic. But how do we know these problems will stay fixed? Emerging markets guru Jan Chipchase tweeted asking “Do you trust Facebook? Today? Tomorrow? When its share price is under pressure and it wants to wring more $$$ from the platform?”

Zero. Facebook pays telecom operators zero. The operators pay Facebook zero. The consumers pay zero. Why do we need to regulate philanthropy? Because these freebies are not purely the fruit of private capital. They are only possible thanks to an artificial state-supported oligopoly dependent on public resources like spectrum and wires (over and under public property). Therefore, these oligopolies much serve the public interest and also ensure that users are treated in a non-discriminatory fashion.

Also provision of a free service should not allow powerful corporations to escape regulation–in jurisdictions like Brazil it is clear that Facebook has to comply with consumer protection law even if users are not paying for the service. Given that big data is the new oil, Facebook could pay the access provider in advertisements or manipulation of public discourse or by tweaking software defaults such as autoplay for videos which could increase bills of paying consumers quite dramatically.

India needs a Net Neutrality regime that allows for business models and technological innovation as long as they don’t discriminate between users and competitors. The Trai should begin regulation based on principles as it has rightly done with the pre-emptive temporary ban. But there is a need to bring “numbers we can trust” to the regulatory debate. We as citizens need to establish a peer-to-peer Internet monitoring infrastructure across mobile and fixed lines in India that we can use to crowd source data.

(The writer is Executive Director, Centre for Internet and Society, Bengaluru. He says CIS receives about $200,000 a year from WMF, the organisation behind Wikipedia, a site featured in Free Basics and zero-rated by many access providers across the world)

For more details visit https://cis-india.org/internet-governance/blog/deccan-herald-january-3-2016-sunil-abraham-free-basics-negating-net-parity

Fragmenting Cybersecurity Norms through the Language(s) of Subalternity: India in the East and the Global Community

Admin — 2019-07-06T03:01:39Z

Arindrajit Basu's research was quoted in the article by Riccardo Vecellio Segate published in Columbia Journal of Asian Law.

The global cybersecurity discourse has never proved more fragmented than in the aftermath of the failure of the last United Nations Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security. This discourse stands trapped in long-lasting and seemingly crystallized normative stances between “the West”and “the East,” yet it also calls upon the international community to regulate a wide spectrum of phenomena, ranging from thefts ofdigitally-stored trade secrets to large-scale pervasive attacks, which may soon reach the threshold of armed attacks. If one situates the major cybersecurity players on a sliding scale between freedom and control over cyber content and infrastructure, the mainstream stance would place the United States, the European Union, the United Kingdom, Brazil, India, China, and Russia in that order. Nonetheless,this scale is in practice more complex, in part due to the influence of the Shanghai Cooperation Organisation, a regional security forum which has witnessed major rebalancing after the membership expansion in June 2017.

This paper scrutinizes India’s contribution towards a possible fragmentation of the “Eastern” cybersecurity discourse based onhard laws and state assertiveness, and the consequent disruption of the constructivist East-West binary dialectic about cyberwarfare,cyberterrorism, cyber espionage, and online data protection. By simultaneously negotiating its sub-alterity and rejecting itssubalternity, India holds the potential to reshape an otherwise almostcoherent “cyber East.”

Click to read the complete article.

Citations:

(a)[Footnote 37}ARINDRAJIT BASU,THE CTR. FOR INTERNET &SOC’Y, THE POTENTIAL FOR THE NORMATIVE REGULATION OF CYBERSPACE:IMPLICATIONS FOR INDIA 50(2018).

(b) [Footnote 146} Arindrajit Basu, India Needs a Credible Deterrence Strategy for Cyberspace, THE WIRE (Sept. 3, 2017), https://thewire.in/tech/india-needs-credible-deterrence-strategy-cyberspace (emphasis added)

For more details visit https://cis-india.org/internet-governance/news/columbia-journal-of-asia-law-june-6-2019-ricardo-vecellio-segate

Fragmentation in a Democracy : The Role of Social Movements and the Media

praskrishna — 2013-10-29T07:45:31Z

The Observer Research Foundation, Delhi, together with the Rosa Luxemburg Stiftung, Berlin, will be convening a Round-table on Fragmentation in a Democracy : The Role of Social Movements and the Media on October 16, 2013 at the Observer Research Foundation in New Delhi. Sunil Abraham is a speaker in the session on Impact of Media, Social Media & Technology on Democracy / Governance.

The round-table will examine the changing role of civil society as a political actor and also how this is being impacted by the Media and Social Media.

This round-table is being designed as a brainstorming session and therefore there will not be any formal written papers. Ideally, we will aim to have one or two prepared comments in each session to lay out the issues and a general discussion thereafter.

Agenda

10.00 10.05	Opening Remarks by Roundtable Chairperson:
10.05 11.45	Session 1: The Changing Role of Civil Society in a Democracy/Democratic Governance Trilochan Sastry, Founder and trustee, Association for Democratic Reform, Bangalore Chakshu Rai,/PRS Legislative Research Institute for Policy Research Studies, Delhi Paranjoy Guha Thakurta, Independent Journalist, Delhi Anand Kumar, Professor, JNU, Delhi
11.45 12.00	Tea/Coffee Break
	Session 2: The Impact of Media, Social Media & Technology on Democracy / Governance Sunil Abraham, CIS Bangalore Aditya Kalra, Thomson Rueters, Delhi R. Swaminathan, ORF, Mumbai Niranjan Sahoo, ORF, Delhi
13.45	Lunch

For more details visit https://cis-india.org/news/fragmentation-in-a-democracy