Digital Natives Blog
- Using information from court orders, user reports, and government orders, and running network tests from six ISPs, Kushagra Singh, Gurshabad Grover and Varun Bansal presented the largest study of web blocking in India. Through their work, they demonstrated that major ISPs in India use different techniques to block websites, and that they don’t block the same websites (link).
- Gurshabad Grover and Kushagra Singh collaborated with Simone Basso of the Open Observatory of Network Interference (OONI) to study HTTPS traffic blocking in India by running experiments on the networks of three popular Indian ISPs: ACT Fibernet, Bharti Airtel, and Reliance Jio (link).
- For The Leaflet, Torsha Sarkar and Gurshabad Grover wrote about the legal framework of blocking in India — Section 69A of the IT Act and its rules. They considered commentator opinions questioning the constitutionality of the regime, whether originators of content are entitled to a hearing, and whether Rule 16, which mandates confidentiality of content takedown requests received by intermediaries from the Government, continues to be operative (link).
- In the Hindustan Times, Gurshabad Grover critically analysed the confidentiality requirement embedded within Section 69A of the IT Act and argued how this leads to internet users in India experiencing arbitrary censorship (link).
- Torsha Sarkar, along with Sarvjeet Singh of the Centre for Communication Governance (CCG), spoke to Medianama delineating the procedural aspects of section 69A of the IT Act (link).
- Arindrajit Basu spoke to the Times of India about the geopolitical and regulatory implications of the Indian government’s move to ban fifty-nine Chinese applications from India (link).
Comments on the Cinematograph (Amendment) Bill, 2021
In this submission, we examine the constitutionality and legality of the Cinematograph (Amendment) Bill, 2021, which was released by the Ministry of Information and Broadcasting.
Regulating Sexist Online Harassment as a Form of Censorship
This paper is part of a series under IT for Change’s project, Recognize, Resist, Remedy: Combating Sexist Hate Speech Online. The series, titled Rethinking Legal-Institutional Approaches to Sexist Hate Speech in India, aims to create a space for civil society actors to proactively engage in the remaking of online governance, bringing together inputs from legal scholars, practitioners, and activists. The papers reflect upon the issue of online sexism and misogyny, proposing recommendations for appropriate legal-institutional responses. The series is funded by EdelGive Foundation, India and International Development Research Centre, Canada.
New intermediary guidelines: The good and the bad
In pursuance of the government releasing the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, this blogpost offers a quick rundown of some of the changes brought about the Rules, and how they line up with existing principles of best practices in content moderation, among others.
Mapping Web Censorship & Net Neutrality Violations
For over a year, researchers at the Centre for Internet and Society have been studying website blocking by internet service providers (ISPs) in India. We have learned that major ISPs don’t always block the same websites, and also use different blocking techniques. To take this study further, and map net neutrality violations by ISPs, we need your help. We have developed CensorWatch, a research tool to collect empirical evidence about what websites are blocked by Indian ISPs, and which blocking methods are being used to do so. Read more about this project (link), download CensorWatch (link), and help determine if ISPs are complying with India’s net neutrality regulations.
Investigating TLS blocking in India
A study into Transport Layer Security (TLS)-based blocking by three popular Indian ISPs: ACT Fibernet, Bharti Airtel and Reliance Jio.
Content takedown and users' rights
After Shreya Singhal v Union of India, commentators have continued to question the constitutionality of the content takedown regime under Section 69A of the IT Act (and the Blocking Rules issued under it). There has also been considerable debate around how the judgement has changed this regime: specifically about (i) whether originators of content are entitled to a hearing, (ii) whether Rule 16 of the Blocking Rules, which mandates confidentiality of content takedown requests received by intermediaries from the Government, continues to be operative, and (iii) the effect of Rule 16 on the rights of the originator and the public to challenge executive action. In this opinion piece, we attempt to answer some of these questions.
Reliance Jio is using SNI inspection to block websites
Reliance Jio, the most popular ISP in India, is employing a deep packet inspection technique to block websites for its users.
A trust deficit between advertisers and publishers is leading to fake news
Transparency regulations is need of the hour. And urgently for election and political advertising. What do the ads look like? Who paid for them? Who was the target? How many people saw these advertisements? How many times? Transparency around viral content is also required.
India’s post-truth society
The proliferation of lies and manipulative content supplies an ever-willing state a pretext to step up surveillance.
Anti-trafficking Bill may lead to censorship
There are a few problematic provisions in the proposed legislation—it may severely impact freedom of expression.
Internet Shutdown Stories
The Centre for Internet & Society (CIS) has published a collection of stories of the impact of internet shutdowns on people's lives in the country. This book seeks to give a glimpse into the lives of those directly affected by these internet shutdown experiments. When seen in a larger context, we hope that the stories in this book also demonstrate that access to the internet and freedom of speech is not just about an individual’s rights, but are also required for the collective good. This is a project funded by Facebook and MacArthur Foundation, and the stories were provided by 101 Reporters. Case studies from the states of Jammu & Kashmir, Haryana, Rajasthan, Gujarat, Telangana, West Bengal, Tripura, Manipur, Nagaland, and Uttar Pradesh have been highlighted in this compilation.
Super Cassettes v. MySpace (Redux)
The latest judgment in the matter of Super Cassettes v. MySpace is a landmark and progressive ruling, which strengthens the safe harbor immunity enjoyed by Internet intermediaries in India. It interprets the provisions of the IT Act, 2000 and the Copyright Act, 1957 to restore safe harbor immunity to intermediaries even in the case of copyright claims. It also relieves MySpace from pre-screening user-uploaded content, endeavouring to strike a balance between free speech and censorship. CIS was one of the intervenors in the case, and has been duly acknowledged in the judgment.
Internet Rights and Wrongs
With a rise in PIL's for unwarranted censorship, do we need to step back and inspect if it's about time unreasonable trends are checked?
Creativity, Politics, and Internet Censorship
In collaboration with Karnataka for Kashmir, we organised a discussion on 'Creativity, Politics and Internet Censorship' on May 25, 2016. Mahum Shabir, a legal activist and artist, Mir Suhail, political cartoonist with Kashmir Reader and Rising Kashmir, and Habeel Iqbal, a lawyer who has worked with several justice groups in Kashmir, shared some of their work and experiences. This discussion was organised as part of Port of Kashmir 2016, a series of events bringing together a small collective of people using different modes of art and activism to address crucial challenges to free speech and democracy in the state.
List of Blocked 'Escort Service' Websites
Here is the full list of URLs that Indian ISPs were asked to block on Monday, June 13, 2016.
Criminal defamation remains and so does the debate
The judgment on the plea to de-criminalise defamation is out and despite its verbosity and rich vocabulary is an embarrassment to our recent judicial milestone of constitutional challenges. In the case of Subramanian Swamy vs. Union of India, a two judge bench headed by Justice Dipak Misra, has upheld the constitutionality of Section 499 and Section 500 of Indian Penal Code, 1860 (IPC) and Section199 of Code of Criminal Procedure, 1973 (CrPC) that criminalise defamation.
The judgment has not satisfactorily answered several pertinent questions. Various significant issues relating to the existing regime of defamation have been touched upon in the judgment but the bench has skipped the part where it is required to analyse and give its own reasoning for upholding or reading down the law. This post points out what should have been looked at.
A. Whether defamation is a public or a private wrong? What is the State’s interest in protecting the reputation of an individual against other private individuals? Is criminal penalty for defamatory statements an appropriate, adequate or disproportionate remedy for loss of reputation?
At the core of the debate to decriminalise defamation lies the question, whether defamation is a public or a private wrong. The question was raised in the Subramanian Swamy case and the court held that defamation is a public wrong. Our problem with the court’s decision lies in its failure to provide a sound and comprehensive analysis of the issue. In order to understand whether defamation is a public or a private wrong, it is necessary that we look at what reputation means, what happens when reputation is harmed and whose interests are affected by such harm.
Reputation is not defined in law, however the Supreme Court has held that reputation is a right to enjoy the good opinion of others and the good name, the credit, honour or character which is derived from such favourable public opinion. The definition reflects several elements that constitute reputation which when harmed have different bearing on the reputation of an individual. Academic Robert C Post in his paper, The Social Foundations on Defamation Law: Reputation and Constitution, says that reputation can be understood as a form of intangible property akin to goodwill or as dignity (the respect including self-respect that arises from observance of rules of the society). While reputation when seen as property can be estimated in money and thus adequately compensated through a civil action for damages, loss of dignity is not a materially quantifiable loss, and thus, monetary compensation appears irrelevant. The purpose of the defamation law could either be to ensure that reputation is not wrongfully deprived of its proper market value or the respect/acceptance of the society. Explanation 4 to Section 499 of the IPC accommodates both such situations and provides that reputation is harmed if it directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.
Post adds that an individual’s reputation is a product of his interaction with the society by following the norms of conduct (which he calls rules of civility) created by the society, thus the society has an interest in enforcing its rules of civility through defamation law by policing breaches of these rules. Criminal defamation acknowledges that loss of reputation is a wrong to the societal interests; however these interests have not been deliberated upon by the courts in India.
The Subramanian Swamy case was an occasion where, it was imperative that the court took up this exercise and explained what interest the society had in protecting the reputation of an individual for it to be classified as a public wrong. The court stated, “the law relating to defamation protects the reputation of each individual in the perception of the public at large. It matters to an individual in the eyes of the society. There is a link and connect between individual rights and the society; and this connection gives rise to community interest at large. Therefore, when harm is caused to an individual, the society as a whole is affected and the danger is perceived” With this reasoning it can be inferred that the society has an interest in all private wrongs. Where would that inference land us? This reasoning is ambiguous and inadequate.
On the other hand, criminal penalty for perfectly private wrongs such as copyright infringement and dishonour of cheques urges us to ask if there is a problem with the rigid distinction of public and private wrongs. Should we be asking the question differently?
The judgment has provided extremely inadequate answers to this question and has left matters ambiguous.
B. Can the right to reputation under Article 21 be enforced against another individual’s freedom of expression and are safeguards already built in law so as not to unreasonably restrict and stifle free expression in this regard?
Defamation finds a place in the list of constitutionally allowed restrictions on freedom of speech under Article 19 (2). Defamation protects the right to reputation of an individual thus free expression by this reason is subject to the right to reputation of an individual. The court had repeatedly observed that right to reputation is a part of the right to life under Article 21 of the Constitution. The question of enforceability of right to reputation under Article 21 against freedom of expression under Article 19 (1) (a) came into question in the instant case; it was contended that a fundamental right is enforceable against the State but cannot be invoked to serve a private interest of an individual. Thus, the right to reputation as manifested in defamation being a wrong committed against a private person by another person is unconnected and falls outside the scope of Article 19 (2). It is pertinent to note that Article 21 (which includes right to reputation) is enforceable not only against the state but also against private individuals. What is relevant here is an understanding of horizontal enforceability of fundamental rights (certain fundamental rights can be enforced against private individuals and non-state actors). This would help explain the dilemma in enforcing the right to reputation of an individual against free speech of another individual. It is vaguely mentioned in the judgment (see para 88) but has not been deliberated upon.
What follows from the discussion of enforceability of right to reputation, is the discussion on how reasonably it restricts speech. The Supreme Court has previously held that while determining reasonableness, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. We briefly analyse the critical aspects of the regime of criminal defamation on these parameters.
Underlying purpose
At the heart of the defamation law is the need to find the most suitable remedy for loss of reputation of an individual. How does one restore reputation of an individual in the society and whether criminal penalty an appropriate remedy?
Extent of restriction
The extent to which defamation law restricts free speech could be analysed by looking at various aspects such as what kind of speech is considered defamatory, what procedure is followed to bring action against the alleged wrong doer and scope of abuse of the law. Explanation 1 to Section 499 of IPC provides that a statement or imputation is defamatory if it is not made in public good. It is not sufficient to prove that such statement or imputation is in fact true. The idea of public good is at best vague without any means to evaluate it. Further, under Section 199 of CrPC allows multiple complaints to be filed in different jurisdictions for a single offensive publication. Besides, usage of terms like “some person aggrieved” leaves room for parties other than the person in respect of whom defamatory material is published to bring action and the provision also allows the privilege of two sets of procedures for prosecution (in official capacity and in private capacity) to public servants without satisfactory reasoning provided for such discrimination. These provisions have the potential to be used to file frivolous complaints and could be a handy tool for harassment of journalists or activists among others.
Proportionality
Does the publication or imputation of defamatory material warrant payment of fine and imprisonment? Earlier in the post, we brought up the question of relevance of such measures to the act of defamation. Assuming that it is relevant, do we think it is harsh or commensurate to the wrongful act. It is necessary to look at the process of prosecution before we determine the proportionality of the restriction. Criminal law assumes that the accused is innocent until he is proven guilty. Therefore until the judiciary determines that the act of defamation was committed, how does the process help the accused in maintaining status quo. It is also pertinent to look at the threshold for civil defamation. Under the civil wrong of defamation, truth works as a complete defence while under criminal defamation, a statement despite being true could invite penalty if it is not published in public good. Thus a lower threshold for criminal liability would upset the balance of proportionality. These aspects are critical to determine the reasonableness of criminal defamation and it is unfortunate that the judgment that runs into hundreds of pages has not evaluated them.
Conclusion
The convoluted debate on criminal defamation remains intact post the pronouncement of this judgment. Questions of competing interests of society and individuals or individuals per se, and ambiguous rationale behind imposition of liability, arbitrariness of procedure for prosecution have not been examined. Further, the hardship in compartmentalising free speech, the right to reputation and the right to privacy remains unanswered.
Online Censorship on the Rise: Why I Prefer to Save Things Offline
As governments use their power to erase what they do not approve of from the web, cloud storage will not be enough.
The Internet Has a New Standard for Censorship
The introduction of the new 451 HTTP Error Status Code for blocked websites is a big step forward in cataloguing online censorship, especially in a country like India where access to information is routinely restricted.
The Humpty-Dumpty Censorship of Television in India
The Modi government’s attack on Sathiyam TV is another manifestation of the Indian state’s paranoia of the medium of film and television, and consequently, the irrational controlling impulse of the law.
The Case of Whatsapp Group Admins
Censorship laws in India have now roped in group administrators of chat groups on instant messaging platforms such as Whatsapp (group admin(s)) for allegedly objectionable content that was posted by other users of these chat groups. Several incidents[1] were reported this year where group admins were arrested in different parts of the country for allowing content that was allegedly objectionable under law. A few reports mentioned that these arrests were made under Section 153A[2] read with Section 34[3] of the Indian Penal Code (IPC) and Section 67[4] of the Information Technology Act (IT Act).
Targeting of a group admin for content posted by other members of a chat group has raised concerns about how this liability is imputed. Whether a group admin should be considered an intermediary under Section 2 (w) of the IT Act? If yes, whether a group admin would be protected from such liability?
Group admin as an intermediary
Whatsapp is an instant messaging platform which can be used for mass communication by opting to create a chat group. A chat group is a feature on Whatsapp that allows joint participation of Whatsapp users. The number of Whatsapp users on a single chat group can be up to 100. Every chat group has one or more group admins who control participation in the group by deleting or adding people. [5] It is imperative that we understand that by choosing to create a chat group on Whatsapp whether a group admin can become liable for content posted by other members of the chat group.
Section 34 of the IPC provides that when a number of persons engage in a criminal act with a common intention, each person is made liable as if he alone did the act. Common intention implies a pre-arranged plan and acting in concert pursuant to the plan. It is interesting to note that group admins have been arrested under Section 153A on the ground that a group admin and a member posting content on a chat group that is actionable under this provision have common intention to post such content on the group. But would this hold true when for instance, a group admin creates a chat group for posting lawful content (say, for matchmaking purposes) and a member of the chat group posts content which is actionable under law (say, posting a video abusing Dalit women)? Common intention can be established by direct evidence or inferred from conduct or surrounding circumstances or from any incriminating facts.[6]
We need to understand whether common intention can be established in case of a user merely acting as a group admin. For this purpose it is necessary to see how a group admin contributes to a chat group and whether he acts as an intermediary.
We know that parameters for determining an intermediary differ across jurisdictions and most global organisations have categorised them based on their role or technical functions.[7] Section 2 (w) of the Information Technology Act, 2000 (IT Act) defines an intermediary as any person, who on behalf of another person, receives, stores or transmits messages or provides any service with respect to that message and includes the telecom services providers, network providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online marketplaces and cyber cafés. Does a group admin receive, store or transmit messages on behalf of group participants or provide any service with respect to messages of group participants or falls in any category mentioned in the definition? Whatsapp does not allow a group admin to receive, or store on behalf of another participant on a chat group. Every group member independently controls his posts on the group. However, a group admin helps in transmitting messages of another participant to the group by allowing the participant to be a part of the group thus effectively providing service in respect of messages. A group admin therefore, should be considered an intermediary. However his contribution to the chat group is limited to allowing participation but this is discussed in further detail in the section below.
According to the Organisation for Economic Co-operation and Development (OECD), in a 2010 report[8], an internet intermediary brings together or facilitates transactions between third parties on the Internet. It gives access to, hosts, transmits and indexes content, products and services originated by third parties on the Internet or provide Internet-based services to third parties. A Whatsapp chat group allows people who are not on your list to interact with you if they are on the group admins’ contact list. In facilitating this interaction, according to the OECD definition, a group admin may be considered an intermediary.
Liability as an intermediary
Section 79 (1) of the IT Act protects an intermediary from any liability under any law in force (for instance, liability under Section 153A pursuant to the rule laid down in Section 34 of IPC) if an intermediary fulfils certain conditions laid down therein. An intermediary is required to carry out certain due diligence obligations laid down in Rule 3 of the Information Technology (Intermediaries Guidelines) Rules, 2011 (Rules). These obligations include monitoring content that infringes intellectual property, threatens national security or public order, or is obscene or defamatory or violates any law in force (Rule 3(2)).[9] An intermediary is liable for publishing or hosting such user generated content, however, as mentioned earlier, this liability is conditional. Section 79 of IT Act states that an intermediary would be liable only if it initiates transmission, selects receiver of the transmission and selects or modifies information contained in the transmission that falls under any category mentioned in Rule 3 (2) of the Rules. While we know that a group admin has the ability to facilitate sharing of information and select receivers of such information, he has no direct editorial control over the information shared. Group admins can only remove members but cannot remove or modify the content posted by members of the chat group. An intermediary is liable in the event it fails to comply with due diligence obligations laid down under rule 3 (2) and 3 (3) of the Rules however, since a group admin lacks the authority to initiate transmission himself and control content, he can’t comply with these obligations. Therefore, a group admin would be protected from any liability arising out of third party/user generated content on his group pursuant to Section 79 of the IT Act.
It is however relevant to note whether the ability of a group admin to remove participants amounts to an indirect form of editorial control.
Other pertinent observations
In several reports[10] there have been discussions about how holding a group admin liable makes the process convenient as it is difficult to locate all the users of a particular group. This reasoning may not be correct as the Whatsapp policy[11] makes it mandatory for a prospective user to provide his mobile number in order to use the platform and no additional information is collected from group admins which may justify why group admins are targeted. Investigation agencies can access mobile numbers of Whatsapp users and gain more information from telecom companies.
It is also interesting to note that the group admins were arrested after a user or someone familiar to a user filed a complaint with the police about content being objectionable or hurtful. Earlier this year, the apex court had ruled in the case of Shreya Singhal v. Union of India[12] that an intermediary needed a court order or a government notification for taking down information. With actions taken against group admins on mere complaints filed by anyone, it is clear that the law enforcement officials have been overriding the mandate of the court.
Conclusion
According to a study conducted by a global research consultancy, TNS Global, around 38 % of internet users in India use instant messaging applications such as Snapchat and Whatsapp on a daily basis, Whatsapp being the most widely used application. These figures indicate the scale of impact that arrests of group admins may have on our daily communication.
It is noteworthy that categorising a group admin as an intermediary would effectively make the Rules applicable to all Whatsapp users intending to create groups and make it difficult to enforce and would perhaps blur the distinction between users and intermediaries.
The critical question however is whether a chat group is considered a part of the bundle of services that Whatsapp offers to its users and not as an independent platform that makes a group admin a separate entity. Also, would it be correct to draw comparison of a Whatsapp group chat with a conference call on Skype or sharing a Google document with edit rights to understand the domain in which censorship laws are penetrating today?
Valuable contribution by Pranesh Prakash and Geetha Hariharan
[1] http://www.nagpurtoday.in/whatsapp-admin-held-for-hurting-religious-sentiment/06250951 ; http://www.catchnews.com/raipur-news/whatsapp-group-admin-arrested-for-spreading-obscene-video-of-mahatma-gandhi-1440835156.html ; http://www.financialexpress.com/article/india-news/whatsapp-group-admin-along-with-3-members-arrested-for-objectionable-content/147887/
[2] Section 153A. “Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.— (1) Whoever— (a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities…” or 2) Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.
[3] Section 34. Acts done by several persons in furtherance of common intention – When a criminal act is done by several persons in furtherance of common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
[4] Section 67 Publishing of information which is obscene in electronic form. -Whoever publishes or transmits or causes to be published in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to one lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to ten years and also with fine which may extend to two lakh rupees."
[5] https://www.whatsapp.com/faq/en/general/21073373
[6] Pandurang v. State of Hyderabad AIR 1955 SC 216
[7]https://www.eff.org/files/2015/07/08/manila_principles_background_paper.pdf; http://unesdoc.unesco.org/images/0023/002311/231162e.pdf
[8] http://www.oecd.org/internet/ieconomy/44949023.pdf
[9] Rule 3(2) (b) of the Rules
[10]http://www.thehindu.com/news/national/other-states/if-you-are-a-whatsapp-group-admin-better-be-careful/article7531350.ece; http://www.newindianexpress.com/states/tamil_nadu/Social-Media-Administrator-You-Could-Land-in-Trouble/2015/10/10/article3071815.ece; http://www.medianama.com/2015/10/223-whatsapp-group-admin-arrest/; http://www.thenewsminute.com/article/whatsapp-group-admin-you-are-intermediary-and-here%E2%80%99s-what-you-need-know-35031
[11] https://www.whatsapp.com/legal/
[12] http://supremecourtofindia.nic.in/FileServer/2015-03-24_1427183283.pdf
