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Criminal Defamation: The Urgent Cause That has United Rahul Gandhi, Arvind Kejriwal and Subramanian Swamy

praskrishna — 2015-07-16T13:45:04Z

Three years ago when the then Janata Party president Subramanian Swamy accused Congress vice president Rahul Gandhi and his mother of misappropriation of funds while trying to revive the National Herald newspaper, the Nehru-Gandhi scion threatened to sue him.

The article by Betwa Sharma was published in Huffington Post on July 15, 2015. Sunil Abraham gave his inputs.

Swamy's response was characteristic: "Grow up and file a defamation case".

In a strange turn of events, the matter of criminal defamation has brought together an unlikely cast of characters in an ongoing petition in the Supreme Court--Swamy, Gandhi and Delhi chief minister Arvind Kejriwal, who knows a thing or two about making allegations.

They are petitioning the Apex Court to strike down penal provisions criminalising defamation, which they argue, has a "chilling effect" on the fundamental right to free speech. Opinion is divided around the world on whether or not defamation ought to be a criminal offence. Because some jurisdictions have stricter defamation laws, some indulge in a practise known as 'forum shopping', or suing in jurisdictions with harsher views on libel and slander.

The three leaders have filed separate petitions that are now being jointly heard by the court. They are challenging the constitutional validity of Sections 499 and 500 of the Indian Penal Code which make defamation a criminal offence punishable with up to two years in prison.

A verdict striking down the colonial-era S. 499, used by the British to suppress those opposing their rule, could prove to be a huge victory for free speech in India. Earlier this year, the Supreme Court struck down the draconian Section 66A of the Information Technology Act as "unconstitutional and void".

There is cause for optimism. The Supreme Court has already said that the validity of criminal defamation laws must be tested against the free speech guarantees of the constitution. The bench comprising of Justices Dipak Misra and Prafulla C Pant have observed that political debates maybe excluded as a criminal defamation offence.

While Gandhi, Subramanian and Kejriwal have been slapped with defamation suits by political rivals, there have been long-standing concerns over the threat posed by these provisions to the media and those who use social media to express their opinions against the rich and the powerful.

The government of the day is keen to maintain the status quo. In a recent submission, it has argued that S.499 is now the only provision to deal with defamation on social media and the only protection for reputation of citizens. But free speech activists say there is no evidence to show that a defamation law deters a person who is out to spread lies.

The questionable utility of S.499, the scope for its abuse and the culture of self-censorship, they argue, removes it from the ambit of "reasonable restrictions" which the state can impose on free speech under article 19 (2) of the constitution.

"Hardly a day goes by in India without some rich and powerful person initiating or threatening to initiate defamation suits against rivals or traditional media or ordinary citizens on social media," said Sunil Abraham, executive director of the Bangalore-based Centre for Internet & Society. "It is unclear how much self-censorship is going on because Indians fearing jail terms avoid speaking truth to power.

On the issue of protecting people's dignity, Abraham said there is no prima facie evidence in India that criminalising defamation in India has resulted in the protection of the reputations of citizens from falsehoods.

"On the the other hand every other national media house and quite of few investigative journalists have been and continue to be harassed by criminal suits filed by the powerful," he told HuffPost India. "The chilling effect on speech is a disproportionate price for citizenry to pay for what is only a personal harm."

Under the leadership of Chief Minister J Jayalalithaa, the Tamil Nadu government filed 125 defamation cases against The Hindu and other publications between 2001 and 2004. On Tuesday, she filed a defamation suit against news portal Rediff.com for running two articles related to speculations about her health.

In the United States, defamation claims by public officials and public figures were severely curtailed after its Supreme Court ruled in 1964 that the complainant needs to prove actual malice with "clear and convincing" evidence. Further, truth is an absolute defence against defamation in the U.S.

On Tuesday, Swamy and Gandhi also argued that truth should be defence in defamation suits. “Truth is not a complete defence in criminal defamation. For a nation with a national motto of Satyameva Devata it is ironic," Swamy said.

BJP leader Swamy is of the view that defamation should only be subject to a civil suit which can be redressed by payment of monetary compensation. But the central government has argued that a defamer could be too poor to compensate the complainant.

"I am not saying there is no such thing as defamation. You can sue someone for defamation, but you cannot deprive someone of his liberty," he said in a recent interview with The Sunday Guardian.

Jayalalithaa filed a defamation suit against the senior BJP leader who alleged that most of the boats of Indian fishermen captured by Sri Lanka belong to the AIADMK chief, her close aide Sasikala and DMK leader TR Baalu.

The suit against the Congress Vice President was filed by the Rashtriya Swayamsevak Sangh for allegedly blaming the Hindu right-wing organisation for the assassination of Mahatma Gandhi.

BJP leader Nitin Gadkari sued Kejriwal after his name was included in AAP's list of "India's most corrupt."

"The accused is in the habit of making false and defamatory statements without any basis. The statements made by the accused and his party members have damaged and tarnished my image in the eyes of the people," Gadkari told the court, last year.

Legal analysts also find it hard to predict just how far the Supreme Court will go to protect free speech. Its judgment against S.66A of the IT Act is regarded as one of the biggest victories for free speech in India. Justice Misra was on the bench that struck down the provision for being “open-ended and unconstitutionally vague," and not fit to be covered under Article 19 (2).

But last month, in a judgment regarded as a blow to free speech, it was Justices Misra and Pant who ruled that freedom of speech is not an absolute right.

Senior Advocate Gopal Subramanium had argued, "Freedom to offend is also a part of freedom of speech.”

For more details visit https://cis-india.org/internet-governance/news/huffington-post-july-16-2015-betwa-sharma-criminal-defamation-the-urgent-cause-that-has-united-rahul-gandhi-arvind-kejriwal-and-subramanian-swamy

Corporate push to Modi’s Rs.4.5-billion digital dream

praskrishna — 2015-07-16T02:26:24Z

Prime Minister Narendra Modi’s Rs. 4.5-billion digital dream seems to find favour with the corporate world, which calls it a “very progressive step” and “massive tech push”.

The article by Rakesh Kumar was published in the Statesman on July 13, 2015. Sumandro Chattapadhyay was quoted.

Modi shared his dreams at the recent Digital India Week in the capital and the event saw big names from the business world—Reliance Industries Ltd chairman Mukesh Ambani, Tata group chairman Cyrus Mistry, Wipro Ltd chairman Azim Premji, among others—supporting the initiative.

Showing its faith in Modi’s dream, Reliance Industries is all set to invest over Rs.2.5 lakh crore in the initiative that would focus on cloud computing and mobile applications, empowering every citizen with access to digital services, knowledge and information.

The initiative could boost the IT sector, which according to NASSCOM witnesses a robust growth in 2015, with the calculated revenue for FY 2015 at $147 billion, and a growth of 13 per cent from the corresponding period 2014.

“From an IT perspective, this is a sincere approach to problem solving with growth, realism and long-term transformation at the core,” said Manish Sharma, president, Consumer Electronics and Appliances Manufacturers Association (CEAMA) and managing director, Panasonic India, in an exclusive interview to thestatesman.com.

“Empowering citizens with the use of IT, we believe Digital India is a massive tech push to provide electronic governance and universal phone connectivity across the country,” he added.

CEAMA and Panasonic are willing to contribute to Digital India through technological expertise and commitment.

The Indian information Technology (IT) industry is reportedly pegged at $118-billion and DS Rawat, secretary general, ASSOCHAM, feels the Digital India initiative could be a “game-changer”.

Commenting on PM’s pledge to bring Internet connectivity to all Indians, Rawat told thestatesman.com: “The initiative is possible, provided the implementation of the schemes is done in a mission mode.”

“The business and industry will be the major beneficiary in terms of quality of governance, which is possible through digital initiative. Besides, the industry itself has to prepare to deal with new emerging business models such as e-commerce,” he added.

Modi, at the Digital India launch, said that “e-governance will be quickly changed into m-governance, and ‘M’ does not mean Modi governance, it means mobile governance.”

Both, big corporate houses and small players hailed the PM’s remark.

“It is good initiative for the railway sector in terms of passenger amenities, online procurement and technological up gradation,” said Amit Goel of Aggarwal Engineers in an interview to thestatesman.com.

The company is active in the railway sector.

When asked how Digital India initiative would help small companies, Goel said: “It will help us in many ways. By adopting e-governance, small companies can check and bid for the online procurement and will be able to interact with the concerned department through digital technology.”

Anil Valluri of NetApp India said: “Digital India is one of the most significant transformations the country will witness by eventually connecting over a billion people of India, with technology as its focal point.”

When it comes to IT transformation, cyber security emerges as a vital issue.

Sumandro Chattapadhyay, Research Director, The Centre for Internet and Society (CIS), described the issue of digital security as the key to the “operationalisation and sustainability of the Digital India initiative”. “We expect the government not only to build administrative structures for ensuring cyber-security of the information systems, but also enable legal frameworks for protecting citizens from unlawful and unforeseen abuses of their digital identities as well as their digital assets.” Having said that, he praised the PM’s move, saying it will bring together various existing and new initiatives for building “network infrastructures for expanded public access, electronic governance systems for effective delivery of services, under the national policy umbrella of 'Digital India’”.

Rajiv Kapur, managing director, Broadcom India, pointed out another benefit of the ubiquitous broadband sector, which according to a report, faces certain challenges such as low rural penetration, stagnant data usage over the years and limited broadband services.

“It will help bring parity between the rural and urban India,” he said and added: “Today, we need solutions that allow the majority of rural Indian population to continue to stay at their homes, and not migrate to cities.”

In a knowledge economy, the biggest difference that will make an impact is education.

"Healthcare is another area where having connectivity can make big difference in quality of life," he said.

“E-delivery of governance and services is important for the efficient use of government resources, and allows for collaborative, transparent and more efficient governance," the Broadcom managing director added.

For more details visit https://cis-india.org/internet-governance/news/the-statesman-rakesh-kumar-july-13-2015-corporate-push-modis-billion-digital-dream

CIS Cybersecurity Series (Part 24) – Shantanu Ghosh

purba — 2015-07-15T14:58:50Z

CIS interviews Shantanu Ghosh, Managing Director, Symantec Product Operations, India, as part of the Cybersecurity Series.

“Remember that India is also a land where there are a lot of people who are beginning to use computing devices for the first time in their lives. For many people, their smartphone is their first computing device because they have never had computers in the past. For them, the challenge is how do you make sure that they understand that that can be a threat too. It can be a threat not only to their bank accounts, with their financial information, but even to their private lives.”

Centre for Internet and Society presents its twenty fourth installment of the CIS Cybersecurity Series.”

The CIS Cybersecurity Series seeks to address hotly debated aspects of cybersecurity and hopes to encourage wider public discourse around the topic.

Shantanu Ghosh is the Managing Director of Symantec Product Operations, India. He also runs the Data Centre Security Group for Symantec globally.

This work was carried out as part of the Cyber Stewards Network with aid of a grant from the International Development Research Centre, Ottawa, Canada.

For more details visit https://cis-india.org/internet-governance/blog/cis-cybersecurity-series-part-24-2013-shantanu-ghosh

CIS Cybersecurity Series (Part 23) – Justin Searle

purba — 2015-07-15T14:44:38Z

CIS interviews Justin Searle, security expert, as part of the Cybersecurity Series.

"I think that people here in India, just like everywhere else, are broadening the areas where security can be applied. We see elsewhere, like in the United States and in Europe, that a lot of security researchers are starting to get into not just control systems, but also embedded devices and hardware and wireless... And we are seeing the same trends here in India as well. It is fun to see that growth and continual development, and not only that, but we are seeing security projects and research coming out of India, that's unqiue and fresh and contributing back to what originally came more from the United States and Europe."

Centre for Internet and Society presents its twenty third installment of the CIS Cybersecurity Series.

The CIS Cybersecurity Series seeks to address hotly debated aspects of cybersecurity and hopes to encourage wider public discourse around the topic.

Justin Searle is the managing partner for Utilisec. Utisix provides security services to the energy sector. They also assist oil, water, gas, and manufacturing companies. Justin specializes in security assessments and finding vulnerabilities in systems.

This work was carried out as part of the Cyber Stewards Network with aid of a grant from the International Development Research Centre, Ottawa, Canada.

For more details visit https://cis-india.org/internet-governance/cis-cybersecurity-series-part-23-2013-justin-searle

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

CIS Cybersecurity Series (Part 22) - Anonymous

purba — 2015-07-13T13:40:42Z

CIS interviews a Tibetan security researcher and information activist, as part of the Cybersecurity Series. He prefers to remain anonymous.

"I don't know technology but I am aware of the information people share with me. So yes, they can track you down through your mobile phone. The last time I was in Nepal, I met a westerner. We went to this restaurant and she asked me to take the battery out of the phone. That was the first time I had heard of this and so when I asked why she said that it is possible that people had followed us and it has happened to other Tibetans in Nepal..."

Centre for Internet and Society presents its twenty second installment of the CIS Cybersecurity Series.

The CIS Cybersecurity Series seeks to address hotly debated aspects of cybersecurity and hopes to encourage wider public discourse around the topic.

This work was carried out as part of the Cyber Stewards Network with aid of a grant from the International Development Research Centre, Ottawa, Canada.

For more details visit https://cis-india.org/internet-governance/blog/cis-cybersecurity-series-part-22-anonymous

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

Regulatory Perspectives on Net Neutrality

pranesh — 2015-07-18T02:46:30Z

In this paper Pranesh Prakash gives an overview on why India needs to put in place net neutrality regulations, and the form that those regulations must take to avoid being over-regulation.

With assistance by Vidushi Marda (Programme Officer, Centre for Internet and Society) and Tarun Krishnakumar (Research Volunteer, Centre for Internet and Society). I would like to specially thank Vishal Misra, Steve Song, Rudolf van der Berg, Helani Galpaya, A.B. Beliappa, Amba Kak, and Sunil Abraham for extended discussions, helpful suggestions and criticisms. However, this paper is not representative of their views, which are varied.

Today, we no longer live in a world of "roti, kapda, makaan", but in the world of "roti, kapda, makaan aur broadband". ^{^[1]} This is recognized by the National Telecom Policy IV.1.2, which states the need to "recognise telecom, including broadband connectivity as a basic necessity like education and health and work towards 'Right to Broadband'."^{^[2]} According to the IAMAI, as of October 2014, India had 278 million internet users. ^{^[3]} Of these, the majority access Internet through their mobile phones, and the WEF estimates only 3 in 100 have broadband on their mobiles.^{^[4]} Thus, the bulk of our population is without broadband. Telecom regulation and net neutrality has a very important role in enabling this vision of Internet as a basic human need that we should aim to fulfil.

1. Why should we regulate the telecom sector?

All ICT regulation should be aimed at achieving five goals: achieving universal, affordable access; ^{^[5]} ensuring and sustaining effective competition in an efficient market and avoiding market failures; protecting against consumer harms; ensuring maximum utility of the network by ensuring interconnection; and addressing state needs (taxation, security, etc.). Generally, all these goals go hand in hand, however some tensions may arise. For instance, universal access may not be provided by the market because the costs of doing so in certain rural or remote areas may outweigh the immediate monetary benefits private corporations could receive in terms of profits from those customers. In such cases, to further the goal of universal access, schemes such as universal service obligation funds are put in place, while ensuring that such schemes either do not impact competition or very minimally impact it.

It is clear that to maximise societal benefit, effective regulation of the ICT sector is a requirement, which otherwise, due to the ability of dominant players to abuse network effect to their advantage, is inherently prone towards monopolies. For instance, in the absence of regulation, a dominant player would charge far less for intra-network calls than inter-network calls, making customers shift to the dominant network. This kind of harm to competition should be regulated by the ICT regulator. However, it is equally true that over-regulation is as undesirable as under-regulation, since over-regulation harms innovation - whether in the form of innovative technologies or innovative business models. The huge spurt of growth globally of the telecom sector since the 1980s has resulted not merely from advancements in technology, but in large part from the de-monopolisation and deregulation of the telecom sector.^{^[6]} Similarly, the Internet has largely flourished under very limited technology-specific regulation. For instance, while interconnection between different telecom networks is heavily regulated in the domestic telecom sector, interconnection between the different autonomous systems (ASes) that make up the Internet is completely unregulated, thereby allowing for non-transparent pricing and opaque transactions. Given this context, we must ensure we do not over-regulate, lest we kill innovation.

2. Why should we regulate Net Neutrality? And whom should we regulate?

We wouldn't need to regulate Net Neutrality if ISPs were not "gatekeepers" for last-mile access. "Gatekeeping" occurs when a single company establishes itself as an exclusive route to reach a large number of people and businesses or, in network terms, nodes. It is not possible for Internet services to reach the customers of the telecom network without passing through the telecom network. The situation is very different in the middle-mile and for backhaul. Even though anti-competitive terms may exist in the middle-mile, especially given the opacity of terms in "transit agreements", a packet is usually able to travel through multiple routes if one route is too expensive (even if that is not the shortest network path, and is thus inefficient in a way). However, this multiplicity of routes is not possible in the last mile.

This leaves last mile telecom operators (ISPs) in a position to unfairly discriminate between different Internet services or destinations or applications, while harming consumer choice. This is why we believe that promoting the five goals mentioned above would require regulation of last-mile telecom operators to prevent unjust discrimination against end-users and content providers.

Thus, net neutrality is the principle that we should regulate gatekeepers to ensure they do not use their power to unjustly discriminate between similarly situated persons, content or traffic.

3. How should we regulate Net Neutrality?

3.1. What concerns does Net Neutrality raise? What harms does it entail?

Discriminatory practices at the level of access to the Internet raises the following set of concerns:

1. Freedom of speech and expression, freedom of association, freedom of assembly, and privacy.

2. Harm to effective competition

a. This includes competition amongst ISPs as well as competition amongst content providers.

b. Under-regulation here may cause harm to innovation at the content provider level, including through erecting barriers to entry.

c. Over-regulation here may cause harm to innovation in terms of ISP business models.

3. Harm to consumers

a. Under-regulation here may harm consumer choice and the right to freedom of speech, expression, and communication.

b. Over-regulation on this ground may cause harm to innovation at the level of networking technologies and be detrimental to consumers in the long run.

4. Harm to "openness" and interconnectedness of the Internet, including diversity (of access, of content, etc.)

a. Exceptions for specialized services should be limited to preserve the open and interconnectedness of the Internet and of the World Wide Web.

It might help to think about Net Neutrality as primarily being about two overlapping sets of regulatory issues: preferential treatment of particular Internet-based services (in essence: content- or source-/destination-based discrimination, i.e., discrimination on basis of 'whose traffic it is'), or discriminatory treatment of applications or protocols (which would include examples like throttling of BitTorrent traffic, high overage fees upon breaching Internet data caps on mobile phones, etc., i.e., discrimination on the basis of 'what kind of traffic it is').

Situations where the negative or positive discrimination happens on the basis of particular content or address should be regulated through the use of competition principles, while negative or positive discrimination at the level of specific class of content, protocols, associated ports, and other such sender-/receiver-agnostic features, should be regulated through regulation of network management techniques . The former deals with instances where the question of "in whose favour is there discrimination" may be asked, while the latter deals with the question "in favour of what is there discrimination".

In order to do this, a regulator like TRAI can use both hard regulation - price ceilings, data cap floors, transparency mandates, preventing specific anti-competitive practices, etc. - as well as soft regulation - incentives and disincentives.

3.1.1 Net Neutrality and human rights

Any discussion on the need for net neutrality impugns the human rights of a number of different stakeholders. Users, subscribers, telecom operators and ISPs all possess distinct and overlapping rights that are to be weighed against each other before the scope, nature and form of regulatory intervention are finalised. The freedom of speech, right to privacy and right to carry on trade raise some of the most pertinent questions in this regard.

For example, to properly consider issues surrounding the practice of paid content-specific zero-rating from a human rights point of view, one must seek to balance the rights of content providers to widely disseminate their 'speech' to the largest audiences against the rights of consumers to have access to a diverse variety of different, conflicting and contrasting ideas.

This commitment to a veritable marketplace or free-market of ideas has formed the touchstone of freedom of speech law in jurisdictions across the world as well as finding mention in pronouncements of the Indian Supreme Court. Particular reference is to be made to the dissent of Mathew, J. inBennett Coleman v. Union of India^{^[7]} and of the majority Sakal Papers v. Union of India^{^[8]} which rejected the approach.

Further, the practice of deep-packet inspection, which is sometimes used in the process of network management, raises privacy concerns as it seeks to go beyond what is "public" information in the header of an IP packet, necessary for routing, to analysing non-public information. ^{^[9]}

3.2 What conditions and factors may change these concerns and the regulatory model we should adopt?

While the principles relating to Net Neutrality remain the same in all countries (i.e., trying to prevent gatekeepers from unjustly exploiting their position), the severity of the problem varies depending on competition in the market, on the technologies, and on many other factors. One way to measure fair or stable allocation of the surplus created by a network - or a network-of-networks like the Internet - is by treating it as a convex cooperation game and thereupon calculating that game's Shapley value:^{^[10]} in the case of the Internet, this would be a game involving content ISPs, transit ISPs, and eyeball (i.e., last-mile) ISPs. The Shapley value changes depending on the number of competitors there are in the market: thus, the fair/stable allocation when there's vibrant competition in the market is different from the fair/stable allocation in a market without such competition. That goes to show that a desirable approach when an ISP tries to unjustly enrich itself by charging other network-participants may well be to increase competition, rather than directly regulating the last-mile ISP. Further, it shows that in a market with vibrant last-mile competition, the capacity of the last-mile ISP to unjustly are far diminished.

In countries which are remote and have little international bandwidth, the need to conserve that bandwidth is high. ISPs can regulate that by either increasing prices of Internet connections for all, or by imposing usage restrictions (such as throttling) on either heavy users or bandwidth-hogging protocols. If the amount of international bandwidth is higher, the need and desire on part of ISPs to indulge in such usage restrictions decreases. Thus, the need to regulate is far higher in the latter case, than in the former case.

The above paragraphs show that both the need for regulation and also the form that the regulation should take depend on a variety of conditions that aren't immediately apparent.

Thus, the framework that the regulator sets out to tackle issues relating to Net Neutrality are most important, whereas the specific rules may need to change depending on changes in conditions. These conditions include:

● last-mile market

○ switching costs between equivalent service providers

○ availability of an open-access last-mile

○ availability of a "public option" neutral ISP

○ increase or decrease in the competition, both in wired and mobile ISPs.

● interconnection market

○ availability of well-functioning peering exchanges

○ availability of low-cost transit

● technology and available bandwidth

○ spectrum efficiency

○ total amount of international bandwidth and local network bandwidth

● conflicting interests of ISPs

○ do the ISPs have other business interests other than providing Internet connectivity? (telephony, entertainment, etc.)

3.3 How should we deal with anti-competitive practices?

Anti-competitive practices in the telecom sector can take many forms: Abuse of dominance, exclusion of access to specific services, customer lock-in, predatory pricing, tying of services, cross-subsidization, etc., are a few of them. In some cases the anti-competitive practice targets other telecom providers, while in others it targets content providers. In the both cases, it is important to ensure that ensure that telecom subscribers have a competitive choice between effectively substitutable telecom providers and an ability to seamlessly switch between providers.

3.3.1 Lowering Switching Costs

TRAI has tackled many of these issues head on, especially in the mobile telephony space, while competitive market pressures have helped too:

● Contractual or transactional lock-in. The easiest way to prevent shifting from one network to another is by contractually mandating a lock-in period, or by requiring special equipment (interoperability) to connect to one's network. In India, this is not practised in the telecom sector, with the exception of competing technologies like CDMA and GSM. Non-contractual lock-ins, for instance by offering discounts for purchasing longer-term packages, are not inherently anti-competitive unless that results in predatory pricing or constitutes an abuse of market dominance. In India, switching from one mobile provider to another, though initiated 15 years into the telecom revolution, is in most cases now almost as easy as buying a new SIM card.^{^[11]} TRAI may consider proactive regulation against contractual lock-in.

● Number of competitors. Even if switching from one network to another is easy, it is not useful unless there are other equivalent options to switch to. In the telecom market, coverage is a very important factor in judging equivalence. Given that last mile connectivity is extremely expensive to provide, the coverage of different networks are very different, and this is even more true when one considers wired connectivity, which is difficult to lay in densely-populated urban and semi-urban areas and unprofitable in sparsely-populated areas. The best way to increase the number of competitors is to make it easier for competitors to exist. Some ways of doing this would be through enabling spectrum-sharing, lowering right-of-way rents, allowing post-auction spectrum trading, and promoting open-access last-mile fibre carriers and to thereby encourage competition on the basis of price and service and not exclusive access to infrastructure.

● Interconnection and mandatory carriage. The biggest advantage a dominant telecom player has is exclusive access to its customer base. Since in the telecom market, no telco wants to not connect to customers of another telco, they do not outright ban other networks. However, dominant players can charge high prices from other networks, thereby discriminating against smaller networks. In the early 2000s, Airtel-to-Airtel calls were much cheaper than Airtel-to-Spice calls. However, things have significantly changed since then. TRAI has, since the 2000s, heavily regulated interconnection and imposed price controls on interconnection ("termination") charges.^{^[12]} Thus, now, generally, inter-network calls are priced similarly to intra-network calls. And if you want cheaper Airtel-to-Airtel calls, you can buy a special (unbundled) pack that enables an Airtel customer to take advantage of the fact that her friends are also on the same network, and benefits Airtel since they do not in such cases have to pay termination charges. Recently, TRAI has even made the interconnection rates zero in three cases: landline-to-landline, landline-to-cellular, and cellular-to-landline, in a bid to decrease landline call rates, and incentivise them, allowing a very low per call interconnection charges of 14 paise for cellular-to-cellular connections. ^{^[13]}

○ With regard to Net Neutrality, we must have a rule that no termination charges or carriage charges may be levied by any ISP upon any Internet service. No Internet service may be discriminated against with regard to carriage conditions or speeds or any other quality of service metric. In essence all negative discrimination should be prohibited. This means that Airtel cannot forcibly charge WhatsApp or any other OTT (which essentially form a different "layer") money for the "privilege" of being able to reach Airtel customers, nor may Airtel slow down WhatsApp traffic and thus try to force WhatsApp to pay. There is a duty on telecom providers to carry any legitimate traffic ("common carriage"), not a privilege. It is important to note that consumer-facing TSPs get paid by other interconnecting Internet networks in the form of transit charges (or the TSP's costs are defrayed through peering). There shouldn't be any separate charge on the basis of content (different layer from the carriage) rather than network (same layer as the carriage). This principle is especially important for startups, and which are often at the receiving end of such discriminatory practices.

● Number Portability. One other factor that prevents users from shifting between one network and another is the fact that they have to change an important aspect of their identity: their phone number (this doesn't apply to Internet over DSL, cable, etc.). At least in the mobile space, TRAI has for several years tried to mandate seamless mobile number portability. The same is being tried by the European Commission in the EU. ^{^[14]} While intra-circle mobile number portability exists in India - and TRAI is pushing for inter-circle mobile number portability as well^{^[15]} - this is nowhere as seamless as it should be.

● Multi-SIM phones. The Indian market is filled with phones that can accommodate multiple SIM cards, enabling customers to shift seamlessly between multiple networks. This is true not just in India, but most developing countries with extremely price-sensitive customers. Theoretically, switching costs would approach zero if in a market with full coverage by n telecom players every subscriber had a phone with n SIM slots with low-cost SIM cards being available.

The situation in the telecom sector with respect to the above provides a stark contrast to the situation in the USA, and to the situation in the DTH market. In the USA, phones get sold at discounts with multi-month or multi-year contracts, and contractual lock-ins are a large problem. Keeping each of the above factors in mind, the Indian mobile telecom space is far more competitive than the US mobile telecom space.

Further, in the Indian DTH market, given that there is transactional lock-in (set-top boxes aren't interoperable in practice, though are mandated to be so by law^{^[16]}), there are fewer choices in the market; further, the equivalent of multi-SIM phones don't exist with respect to set-top boxes. Further, while there are must-carry rules with respect to carriage, they can be of three types: 1) must mandatorily provide access to particular channels^{^[17]} (positive obligation, usually for government channels); 2) prevented from not providing particular channels (negative obligation, to prevent anti-competitive behaviour and political censorship); and 3) must mandatorily offer access to at least a set number of channels (positive obligation for ensuring market diversity). ^{^[18]} Currently, only (1) is in force, since despite attempts by TRAI to ensure (3) as well.^{^[19]}

If the shifting costs are low and transparency in terms of network practice is reported in a standard manner and well-publicised, then that significantly weakens the "gatekeeper effect", which as we saw earlier, is the reason why we wish to introduce Net Neutrality regulation. This consequently means, as explained above in section 3.2, that despite the same Net Neutrality principles applying in all markets and countries, the precise form that the Net Neutrality regulations take in a telecom market with low switching costs would be different from the form that such regulations would take in a market with high switching costs.

3.3.2 Anti-competitive Practices

Some potential anti-competitive practices, which are closely linked, are cross-subsidization, tying (anti-competitive bundling) of multiple services, and vertical price squeeze. All three of these are especial concerns now, with the increased diversification of traditional telecom companies, and with the entry into telecom (like with DTH) of companies that create content. Hence, if Airtel cross-subsidizes the Hike chat application that it recently acquired, ^{^[20]} or if Reliance Infocomm requires customers to buy a subscription to an offering from Reliance Big Entertainment, or if Reliance Infocomm meters traffic from another Reliance Big Entertainment differently from that from Saavn, all those would be violative of the principle of non-discrimination by gatekeepers. This same analysis can be applied to all unpaid deals and non-commercial deals, including schemes such as Internet.org and Wikipedia Zero, which will be covered later in the section on zero-rating.

While we have general rules such as sections 3 and 4 of the Competition Act, we do not currently have specific rules prohibiting these or other anti-competitive practices, and we need Net Neutrality regulation that clearly prohibit such anti-competitive practices so that the telecom regulator can take action for non-compliance . We cannot leave these specific policy prescriptions unstated, even if they are provided for in section 3 of the Competition Act. These concerns are especial concerns in the telecom sector, and the telecom regulator or arbitrator should have the power to directly deal with these, instead of each case going to the Competition Commission of India. This should not affect the jurisdiction of the CCI to investigate and adjudicate such matters, but should ensure that TRAI both has suo motu powers, and that the mechanism to complain is made simple (unlike the current scenario, where some individual complainants may fall in the cracks between TRAI and TDSAT).

3.3.3 Zero-rating

Since a large part of the net neutrality debate in India involves zero-rating practices, we deal with that in some length. Zero-rating is the practice of not counting (aka "zero-rating") certain traffic towards a subscriber's regular Internet usage. The zero-rated traffic could be zero-priced or fixed-price; capped or uncapped; subscriber-paid, Internet service-paid, paid for by both, or unpaid; content- or source/destination-based, or agnostic to content or source/destination; automatically provided by the ISP or chosen by the customer . The motivations for zero-rating may also be varied, as we shall see below. Further, depending on the circumstances, zero-rating could be competitive or anti-competitive. All forms of zero-rating result in some form of discrimination, but not all zero-rating is harmful, nor does all zero-rating need to be prohibited.

While, as explained in the section on interconnection and carriage above, negative discrimination at the network level should be prohibited, that leaves open the question of positive discrimination. It follows from section 3.1 that the right frame of analysis of this question is harm to competition, since the main harm zero-rating is, as we shall see below, about discriminating between different content providers, and not discrimination at the level of protocols, etc.

Whether one should allow for any form of positive discrimination at the network level or not depends on whether positive discrimination of (X) has an automatic and unfair negative impact on all (~X). That, in turn, depends on whether (~X) is being subject to unfair competition. As Wikipedia notes, "unfair competition means that the gains of some participants are conditional on the losses of others, when the gains are made in ways which are illegitimate or unjust." Thus, positive discrimination that has a negative impact on effective competition shall not be permitted, since in such cases it is equivalent to negative discrimination ("zero-sum game") . Positive discrimination that does not have a negative impact on effective competition may be permitted, especially since it results in increased access and increases consumer benefit, as long as the harm to openness and diversity is minimized .

While considering this, one should keep in mind the fact that startups were, 10-15 years ago, at a huge disadvantage with regard to wholesale data purchase. The marketplaces for data centres and for content delivery networks (which speed up delivery of content by being located closer, in network terms, to multiple last-mile ISPs) were nowhere near as mature as they are today, and the prices were high. There was a much higher barrier to startup entry than there is today, due to the prices and due to larger companies being able to rely on economies of scale to get cheaper rates. Was that unfair? No. There is no evidence of anti-competitive practices, nor of startups complaining about such practices. Therefore, that was fair competition, despite specific input costs that were arguably needed (though not essential) for startups to compete being priced far beyond their capacity to pay.

Today the marketplace is very different, with a variety of offerings. CDNs such as Cloudflare, which were once the preserve of rich companies, even have free offerings, thus substantially lowering barriers for startups that want faster access to customers across the globe.

Is a CDN an essential cost for a startup? No. But in an environment where speed matters and customers use or don't use a service depending on speed; and where the startup's larger competitors are all using CDNs, a startup more or less has to. Thankfully, given the cheap access to CDNs these days, that cost is not too high for a startup to bear. If the CDN market was not competitive enough, would a hypothetical global regulator have been justified in outright banning the use of CDNs to 'level' the playing field? No, because the hypothetical global regulator instead had the option to (and would have been justified in) regulating the market to ensure greater competition.

A regulator should not prohibit an act that does not negatively impact access, competition, consumer benefit, nor openness (including diversity), since that would be over-regulation and would harm innovation.

3.3.3.1 Motivations for Zero-Rating

3.3.3.1.1 Corporate Social Responsibility / Incentivizing Customers to Move Up Value Chain

There exist multiple instances where there is no commercial transaction between the OTT involved and the telecom carrier, in which zero-priced zero-rating of specific Internet content happens. We know that there is no commercial transaction either through written policy (Wikipedia Zero) or through public statements (Internet.org, a bouquet of sites). In such cases, the telecom provider would either be providing such services out of a sense of public interest, given the social value of those services, or would be providing such services out of self-interest, to showcase the value of particular Internet set the same time.

The apprehended risk is that of such a scheme creating a "walled garden", where users would be exposed only to those services which are free since the search and discovery costs of non-free Internet (i.e., any site outside the "walled garden") would be rather high. This risk, while real, is rather slim given the fact that the economic incentives for those customers who have the ability to pay for "Internet packs" but currently do not find a compelling reason to do so, or out of both a sense of public interest and self-interest of the telecom providers works against this.

In such non-commercial zero-priced zero-rating, a telecom provider would only make money if and only if subscribers start paying for sites outside of the walled garden. If subscribers are happy in the walled garden, the telecom provider starts losing money, and hence has a strong motivation to stop that scheme. If on the other hand, enough subscribers start becoming paying customers to offset the cost of providing the zero-priced zero-rated service(s) and make it profitable, that shows that despite the availability of zero-priced options a number of customers will opt for paid access to the open Internet and the open Web, and the overall harms of such zero-priced zero-rating would be minimal. Hence, the telecom providers have an incentive to keep the costs of Internet data packs low, thus encouraging customers who otherwise wouldn't pay for the Internet to become paying customers.

There is the potential of consumer harm when users seek to access a site outside of the walled garden, and find to their dismay that they have been charged for the Internet at a hefty rate, and their prepaid balance has greatly decreased. This is an issue that TRAI is currently appraised of, and a suitable solution would need to be found to protect consumers against such harm.

All in all, given that the commercial interests of the telecom providers align with the healthy practice of non-discrimination, this form of limited positive discrimination is not harmful in the long run, particularly because it is not indefinitely sustainable for a large number of sites. Hence, it may not be useful to ban this form of zero-priced zero-rating of services as long as they aren't exclusive, or otherwise anti-competitive (a vertical price-squeeze, for instance), and the harm to consumers is prohibited and the harm to openness/diversity is minimized.

3.3.3.1.2 Passing on ISP Savings / Incentivizing Customers to Lower ISP's Cost

Suppose, for instance, an OTT uses a CDN located, in network distance terms, near an eyeball ISP. In this case, the ISP has to probably pay less than it would have to had the same data been located in a data centre located further away, given that it would have fewer interconnection-related charges.

Hence the monetary costs of providing access to different Web destinations are not equal for the ISP. This cost can be varied either by the OTT (by it locating the data closer to the ISP - through a CDN, by co-locating where the ISP is also present, or by connecting to an Internet Exchange Point which the ISP is also connected to - or by it directly "peering" with the ISP) or by the ISP (by engaging in "transparent proxying" in which case the ISP creates caches at the ISP level of specific content (usually by caching non-encrypted data the ISP's customers request) and serves the cached content when a user requests a site, rather than serving the actual site). None of the practices so far mentioned are discriminatory from the customer's perspective with regard either to price or to prioritization, though all of them enable faster speeds to specific content. Hence none of the above-mentioned practices are considered even by the most ardent Net Neutrality advocates to be violations of that principle. ^{^[21]} However, if an ISP zero-rates the content to either pass on its savings to the customer^{^[22]} or to incentivize the customer to access services that cost the ISP less in terms of interconnection costs, that creates a form of price discrimination for the customer, despite it benefiting the consumer.

The essential economic problem is that the cost to the ISP is variable, but the cost to the customer is fixed. Importantly, this problem is exacerbated in India where web hosting prices are high, transit prices are high, peering levels are low, and Internet Exchange Points (IXPs) are not functioning well. ^{^[23]} These conditions create network inefficiencies in terms of hosting of content further away from Indian networks in terms of network distance, and thus harms consumers as well as local ISPs. In order to set this right, zero-rating of this sort may be permitted as it acts as an incentive towards fixing the market fundamentals. However, once the market fundamentals are fixed, such zero-rating may be prohibited.

This example shows that the desirability or otherwise of discriminatory practices depends fully on the conditions present in the market, including in terms of interconnection costs.

3.3.3.1.3 Unbundling Internet into Services ("Special Packs")

Since at least early 2014, mobile operators have been marketing special zero-rating "packs". These packs, if purchased by the customer, allow capped or in some instances uncapped, zero-rating of a service such as WhatsApp or Facebook, meaning traffic to/from that service will not be counted against their regular Internet usage.

For a rational customer, purchasing such a pack only makes sense in one of two circumstances:

● The person has Internet connectivity on her Internet-capable phone, but has not purchased an "Internet data pack" since she doesn't find the Internet valuable. Instead, she has heard about "WhatsApp", has friends who are on it, and wishes to use that to reduce her SMS costs (and thereby eat into the carriage provider's ability to charge separately for SMSes). She chooses to buy a WhatsApp pack for around ₹25 a month instead of paying ₹95 for an all-inclusive Internet data pack.

● The person has Internet connectivity on her Internet-capable phone, and has purchased an "Internet data pack". However, that data pack is capped and she has to decide between using WhatsApp and surfing web sites. She is on multiple WhatsApp groups and her WhatsApp traffic eats up 65% of her data cap. She thus has to choose between the two, since she doesn't want to buy two Internet data packs (each costing around ₹95 for a month). She chooses to buy a WhatsApp pack for ₹25 a month, paying a cumulative total of ₹120 instead of ₹190 which she would have had to had she bought two Internet data packs. In this situation, "unbundling" is happening, and this benefits the consumer. Such unbundling harms the openness and integrity of the Internet.

If users did not find value in the "special" data packs, and there is no market demand for such products, they will cease to be offered. Thus, assuming a telco's decision to offer such packs is purely customer-demand driven - and not due to deals it has struck with service providers - if Orkut is popular, telcos would be interested in offering Orkut packs and if Facebook is popular, they would be interested in offering a Facebook pack. Thus, clearly, there is nothing anti-competitive about such customer-paid zero-rating packs, whereas they clearly enhance consumer benefit. Would this increase the popularity of Orkut or Facebook? Potentially yes. But to prohibit this would be like prohibiting a supermarket from selectively (and non-collusively) offering discounts on popular products. Would that make already popular products even more popular? Potentially, yes. But that would not be seen as a harm to competition but would be seen as fair competition. This contravenes the "openness" of the Internet (i.e., the integral interconnected diversity that an open network like the Internet embodies) as an independent regulatory goal. The Internet, being a single gateway to a mind-boggling variety of services, allows for a diverse "long tail", which would lose out if the Internet was seen solely as a gateway to popular apps, sites, and content. However, given that this is a choice exercised freely by the consumer, such packs should not be prohibited, as that would be a case of over-regulation.

The one exception to the above analysis of competition, needless to say, is if that these special packs aren't purely customer-demand driven and are the product of special deals between an OTT and the telco. In that case, we need to ensure it isn't anti-competitive by following the prescriptions of the next section.

3.3.3.1.4 Earning Additional Revenues from Content Providers

With offerings like Airtel Zero, we have a situation where OTT companies are offering to pay for wholesale data access used by their customers, and make accessing their specific site or app free for the customer. From the customer's perspective, this is similar to a toll-free number or a pre-paid envelope or free-to-air TV channel being offered on a particular network.

However, from the network perspective, these are very different. Even if a customer-company pays Airtel for the toll-free number, that number is accessible and toll-free across all networks since the call terminates on Airtel networks and Airtel pays the connecting network back the termination charge from the fee they are paid by the customer-company. This cannot happen in case of the Internet, since the "call" terminates outside of the reach of the ISP being paid for zero-rating by the OTT company; hence unless specific measures are taken, zero-rating has to be network-specific.

The comparison to free-to-air channels is also instructive, since in 2010 TRAI made recommendations that consumers should have the choice of accessing free-to-air channels à-la-carte, without being tied up to a bouquet.^{^[24]} This would, in essence, allow a subscriber to purchase a set-top box, and without paying a regular subscription fee watch free-to-air channels. ^{^[25]} However, similar to toll-free numbers, these free-to-air channels are free-to-air on all MSO's set-top boxes, unlike the proposed Airtel Zero scheme under which access to a site like Flipkart would be free for customers on Airtel's network alone.

Hence, these comparisons, while useful in helping think through the regulatory and competition issues, should not be used as instructive exact analogies, since they aren't fully comparable situations.

3.3.3.1.5 Market Options for OTT-Paid Zero-Rating

As noted above, a competitive marketplace already exists for wholesale data purchase at the level of "content ISPs" (including CDNs), which sell wholesale data to content providers (OTTs). This market is at present completely unregulated. The deals that exist are treated as commercial secrets. It is almost certain that large OTTs get better rates than small startups due to economies of scale.

However, at the eyeball ISP level, it is a single-sided market with ISPs competing to gain customers in the form of end-users. With a scheme like "Airtel Zero", this would get converted into a double-sided market, with a gatekeeper without whom neither side can reach the other being in the middle creating a two-sided toll. This situation is ripe for market abuse: this situation allows the gatekeeper to hinder access to those OTTs that don't pay the requisite toll or to provide preferential access to those who pay, apart from providing an ISP the opportunity to "double-dip".

One way to fix this is to prevent ISPs from establishing a double-sided market. The other way would be to create a highly-regulated market where the gatekeeping powers of the ISP are diminished, and the ISP's ability to leverage its exclusive access over its customers are curtailed. A comparison may be drawn here to the rules that are often set by standard-setting bodies where patents are involved: given that these patents are essential inputs, access to them must be allowed through fair, reasonable, and non-discriminatory licences. Access to the Internet and common carriers like telecom networks, being even more important (since alternatives exist to particular standards, but not to the Internet itself), must be placed at an even higher pedestal and thus even stricter regulation to ensure fair competition.

A marketplace of this sort would impose some regulatory burdens on TRAI and place burdens on innovations by the ISPs, but a regulated marketplace harms ISP innovation less than not allowing a market at all.

At a minimum, such a marketplace must ensure non-exclusivity, non-discrimination, and transparency. Thus, at a minimum, a telecom provider cannot discriminate between any OTTs who want similar access to zero-rating. Further, a telecom provider cannot prevent any OTT from zero-rating with any other telecom provider. To ensure that telecom providers are actually following this stipulation, transparency is needed, as a minimum.

Transparency can take one of two forms: transparency to the regulator alone and transparency to the public. Transparency to the regulator alone would enable OTTs and ISPs to keep the terms of their commercial transactions secret from their competitors, but enable the regulator, upon request, to ensure that this doesn't lead to anti-competitive practices. This model would increase the burden on the regulator, but would be more palatable to OTTs and ISPs, and more comparable to the wholesale data market where the terms of such agreements are strictly-guarded commercial secrets. On the other hand, requiring transparency to the public would reduce the burden on the regulator, despite coming at a cost of secrecy of commercial terms, and is far more preferable.

Beyond transparency, a regulation could take the form of insisting on standard rates and terms for all OTT players, with differential usage tiers if need be, to ensure that access is truly non-discriminatory. This is how the market is structured on the retail side.

Since there are transaction costs in individually approaching each telecom provider for such zero-rating, the market would greatly benefit from a single marketplace where OTTs can come and enter into agreements with multiple telecom providers.

Even in this model, telecom networks will be charging based not only on the fact of the number of customers they have, but on the basis of them having exclusive routing to those customers. Further, even under the standard-rates based single-market model, a particular zero-rated site may be accessible for free from one network, but not across all networks: unlike the situation with a toll-free number in which no such distinction exists.

To resolve this, the regulator may propose that if an OTT wishes to engage in paid zero-rating, it will need to do so across all networks, since if it doesn't there is risk of providing an unfair advantage to one network over another and increasing the gatekeeper effect rather than decreasing it.

However, all forms of competitive Internet service-paid zero-priced zero-rating, even when they don't harm competition, innovation amongst content providers, or consumers, will necessarily harm openness and diversity of the Internet. For instance, while richer companies with a strong presence in India may pay to zero-rate traffic for their Indian customers, decentralized technologies such as XMPP and WebRTC, having no central company behind them, would not, leading to customers preferring proprietary networks and solutions to such open technologies, which in turn, thanks to the network effect, leads to a vicious cycle. These harms to openness and diversity have to be weighed against the benefit in terms of increase in access when deciding whether to allow for competitive OTT-paid zero-priced zero-rating, as such competition doesn't exist in a truly level playing field . Further, it must be kept in mind that there are forms of zero-priced zero-rating that decrease the harm to openness / diversity, or completely remove that harm altogether: that there are other options available must be acknowledged by the regulator when considering the benefit to access from competitive OTT-paid zero-priced zero-rating.

3.3.3.1.6 Other options for zero-rating

There are other models of zero-priced zero-rating that either minimize the harm is that of ensuring free Internet access for every person. This can take the form of:^{^[26]}

● A mandatorily "leaky" 'walled garden':

○ The first-degree of all hyperlinks from the zero-rated OTT service are also free.

○ The zero-rated OTT service provider has to mandatorily provide free access to the whole of the World Wide Web to all its customers during specified hours.

○ The zero-rated OTT service provider has to mandatorily provide free access to the whole of the World Wide Web to all its customers based on amount on usage of the OTT service.^{^[27]}

● Zero-rating of all Web traffic

○ In exchange for viewing of advertisements

○ In exchange for using a particular Web browser

○ At low speeds on 3G, or on 2G.

3.3.3.2. What kinds of zero-rating are good

The majority of the forms of zero-rating covered in this section are content or source/destination-based zero-rating. Only some of the options covered in the "other options for zero-rating" section cover content-agnostic zero-rating models. Content-agnostic zero-rating models are not harmful, while content-based zero-rating models always harm, though to varying degrees, the openness of the Internet / diversity of OTTs, and to varying degrees increase access to Internet-based services. Accordingly, here is an hierarchy of desirability of zero-priced zero-rating, from most desirable to most harmful:

1. Content- & source/destination-agnostic zero-priced zero-rating.^{^[28]}

2. Content- & source/destination-based non-zero-priced zero-rating, without any commercial deals, chosen freely & paid for by users. ^{^[29]}

3. Content- & source/destination-based zero-priced zero-rating, without any commercial deals, with full transparency. ^{^[30]}

4. Content- & source/destination-based zero-priced zero-rating, on the basis of commercial deal with partial zero-priced access to all content, with non-discriminatory access to the same deal by all with full transparency.^{^[31]}

5. Content- & source/destination-based zero-priced zero-rating, on the basis of a non-commercial deal, without any benefits monetary or otherwise, flowing directly or indirectly from the provider of the zero-rated content to the ISP, with full transparency. ^{^[32]}

6. Content- & source-destination-based zero-priced zero-rating, across all telecom networks, with standard pricing, non-discriminatory access, and full transparency.

7. Content- & source-destination-based zero-priced zero-rating, with standard pricing, non-discriminatory access, and full transparency.

8. Content- & source-destination-based zero-priced zero-rating, with non-discriminatory access, and full transparency.

9. Content- & source-destination-based zero-priced zero-rating, with non-discriminatory access, and transparency to the regulator.

10. Content- & source-destination-based zero-priced zero-rating, without any regulatory framework in place.

3.3.4 Cartels and Oligopoly

While cartels and oligopolies may have an impact on Net Neutrality, they are not problems that any set of anti-discrimination rules imposed on gatekeepers can fix. Further, cartels and oligopolies don't directly enhance the ability of gatekeepers to unjustly discriminate if there are firm rules against negative discrimination and price ceilings and floors on data caps are present for data plans. Given this, TRAI should recommend that this issue be investigated and the Competition Commission of India should take this issue up.

3.4 Reasonable Network Management Principles

Reasonable network management has to be allowed to enable the ISPs to manage performance and costs on their network. However, ISPs may not indulge in acts that are harmful to consumers in the name of reasonable network management. Below are a set of guidelines for when discrimination against classes of traffic in the name of network management are justified.

● Discrimination between classes of traffic for the sake of network management should only be permissible if:

○ there is an intelligible differentia between the classes which are to be treated differently, and

○ there is a rational nexus between the differential treatment and the aim of such differentiation, and

○ the aim sought to be furthered is legitimate, and is related to the security, stability, or efficient functioning of the network, or is a technical limitation outside the control of the ISP^{^[33]}, and

○ the network management practice is the least harmful manner in which to achieve the aim.

● Provision of specialized services (i.e., "fast lanes") is permitted if and only if it is shown that

○ The service is available to the user only upon request, and not without their active choice, and

○ The service cannot be reasonably provided with "best efforts" delivery guarantee that is available over the Internet, and hence requires discriminatory treatment, or

○ The discriminatory treatment does not unduly harm the provision of the rest of the Internet to other customers.

These principles are only applicable at the level of ISPs, and not on access gateways for institutions that may in some cases be run by ISPs (such as a university network, free municipal WiFi, at a work place, etc.), which are not to be regulated as common carriers.

These principles may be applied on a case-by-case basis by a regulator, either suo motu or upon complaint by customers.

^{^[1]} Report of the Special Rapporteur on the Promotion and Protection of the right to freedom of opinion and expression, (19 May 2011), http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf.

^{^[2]} Available at http://www.trai.gov.in/WriteReadData/userfiles/file/NTP%202012.pdf.

^{^[3]} IAMAI, India to Cross 300 million internet users by Dec 14, (19 November, 2014), http://www.iamai.in/PRelease_detail.aspx?nid=3498&NMonth=11&NYear=2014.

^{^[4]} World Economic Forum, The Global Information Technology Report 2015, http://www3.weforum.org/docs/WEF_Global_IT_Report_2015.pdf.

^{^[5]} http://www.ictregulationtoolkit.org/4.1#s4.1.1

^{^[6]} See R.U.S. Prasad, The Impact of Policy and Regulatory Decisions on Telecom Growth in India (July 2008), http://web.stanford.edu/group/siepr/cgi-bin/siepr/?q=system/files/shared/pubs/papers/pdf/SCID361.pdf.

^{^[7]} 1973 AIR 106

^{^[8]} 1962 AIR 305

^{^[9]} "When ISPs go beyond their traditional use of IP headers to route packets, privacy risks begin to emerge." Alissa Cooper, How deep must DPI be to incur privacy risk? http://www.alissacooper.com/2010/01/25/how-deep-must-dpi-be-to-incur-privacy-risk/

^{^[10]} Richard T.B. Ma & Vishal Misra, The Public Option: A Non-Regulatory Alternative to Network Neutrality, http://dna-pubs.cs.columbia.edu/citation/paperfile/200/netneutrality.pdf

^{^[11]} Mobile number portability was launched in India on January 20, 2011 in the Haryana circle. See http://indiatoday.intoday.in/story/pm-launches-nationwide-mobile-number-portability/1/127176.html . Accessed on April 24, 2015.

^{^[12]} For a comprehensive list of all TRAI interconnection regulations & subsequent amendments, see http://www.trai.gov.in/Content/Regulation/0_1_REGULATIONS.aspx.

^{^[13]} See Telecommunication Interconnection Usage Charges (Eleventh Amendment) Regulations, 2015 (1 of 2015), available at http://www.trai.gov.in/Content/Regulation/0_1_REGULATIONS.aspx.

^{^[14]} Article 30 of the Universal Service Directive, Directive 2002/22/EC.

^{^[15]} See Telecommunication Mobile Number Portability (Sixth Amendment) Regulations, 2015 (3 of 2015), available at http://www.trai.gov.in/Content/Regulation/0_1_REGULATIONS.aspx.

^{^[16]} The Telecommunication (Broadcasting and Cable) Services (Seventh) (The Direct to Home Services) Tariff Order, 2015 (2 of 2015).

^{^[17]} Section 8, Cable Television Networks Act, 1995.

^{^[18]} TRAI writes new rules for Cable TV, Channels, Consumers, REAL TIME NEWS, (August 11, 2014), http://rtn.asia/rtn/233/1220_trai-writes-new-rules-cable-tv-channels-consumers.

^{^[19]} An initial requirement for all multi system operators to have a minimum capacity of 500 channels was revoked by the TDSAT in 2012. For more details, see http://www.televisionpost.com/cable/msos-not-required-to-have-500-channel-headends-tdsat/.

^{^[20]} Aparna Ghosh, Bharti SoftBank Invests $14 million in Hike, LIVE MINT, (April 2, 2014), http://www.livemint.com/Companies/nI38YwQL2eBgE6j93lRChM/Bharti-SoftBank-invests-14-million-in-mobile-messaging-app.html.

^{^[21]} Mike Masnick, Can We Kill This Ridiculous Shill-Spread Myth That CDNs Violate Net Neutrality? They Don't, https://www.techdirt.com/articles/20140812/04314528184/can-we-kill-this-ridiculous-shill-spread-myth-that-cdns-violate-net-neutrality-they-dont.shtml.

^{^[22]} Mathew Carley, What is Hayai's stance on "Net Neutrality"?, https://www.hayai.in/faq/hayais-stance-net-neutrality?c=mgc20150419

^{^[23]} Helani Galpaya & Shazna Zuhyle, South Asian Broadband Service Quality: Diagnosing the Bottlenecks, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1979928

^{^[24]} DTH players told to offer pay channels on la carte basis, HINDU BUSINESS LINE (July 22, 2010), http://www.thehindubusinessline.com/todays-paper/dth-players-told-to-offer-pay-channels-on-la-carte-basis/article999298.ece.

^{^[25]} The Telecommunication (Broadcasting and Cable) Services (Fourth) (Addressable Systems) Tariff Order, 2010.

^{^[26]} These suggestions were provided by Helani Galpaya and Sunil Abraham, based in some cases on existing practices.

^{^[27]} This is what is being followed by the Jana Loyalty Program: http://www.betaboston.com/news/2015/05/06/with-a-new-loyalty-program-mobile-app-marketplace-jana-pushes-deeper-into-the-developing-world/

^{^[28]} Example: free Internet access at low speeds, with data caps.

^{^[29]} Example: special "packs" for specific services like WhatsApp.

^{^[30]} Example: zero-rating of all locally-peered settlement-free traffic.

^{^[31]} Example: "leaky" walled gardens, such as the Jana Loyalty Program that provide limited access to all of the Web alongside access to the zero-rated content.

^{^[32]} Example: Wikipedia Zero.

^{^[33]} A CGNAT would be an instance of such a technology that poses network limitations.

For more details visit https://cis-india.org/internet-governance/blog/regulatory-perspectives-on-net-neutrality

India’s digital check

sunil — 2015-09-15T14:55:47Z

All nine pillars of Digital India directly correlate with policy research conducted at the Centre for Internet and Society, where I have worked for the last seven years. This allows our research outputs to speak directly to the priorities of the government when it comes to digital transformation.

The article was originally published by DNA on July 8, 2015.

Broadband Highways and Universal Access to Mobile Connectivity: The first two pillars have been combined in this paragraph because they both require spectrum policy and governance fixes. Shyam Ponappa, a distinguished fellow at our Centre calls for the leveraging of shared spectrum and also shared backhaul infrastructure. Plurality in spectrum management, for eg, unlicensed spectrum should be promoted for accelerating backhaul or last mile connectivity, and also for community or local government broadband efforts. Other ideas that have been considered by Ponappa include getting state owned telcos to exit completely from the last mile and only focus on running an open access backhaul through Bharat Broadband Limited. Network neutrality regulations are also required to mitigate free speech, diversity and competition harms as ISPs and TSPs innovate with business models such as zero-rating.

Public Internet Access Programme: Continuing investments into Common Service Centres (CSCs) for almost a decade may be questionable and therefore a citizen’s audit should be undertaken to determine how the programme may be redesigned. The reinventing of post offices is very welcome, however public libraries are also in need urgent reinventing. CSCs, post offices and public libraries should all leverage long range WiFi for Internet and intranet, empowering BYOD [Bring Your Own Device] users. Applications will take time to develop and therefore immediate emphasis should be on locally caching Indic language content. State Public Library Acts need to be amended to allow for borrowing of digital content. Flat-fee licensing regimes must be explored to increase access to knowledge and culture. Commons-based peer production efforts like Wikipedia and Wikisource need to be encouraged.

e-Governance: Reforming Government through Technology: DeitY, under the leadership of free software advocate Secretary RS Sharma, has accelerated adoption and implementation of policies supporting non-proprietary approaches to intellectual property in e-governance. Policies exist and are being implemented for free and open source software, open standards and electronic accessibility for the disabled. The proprietary software lobby headed by Microsoft and industry associations like NASSCOM have tried to undermine these policies but have failed so far.

The government should continue to resist such pressures. Universal adoption of electronic signatures within government so that there is a proper audit trail for all communications and transactions should be made an immediate priority. Adherence to globally accepted data protection principles such as minimisation via “form simplification and field reduction” for Digital India should be applauded. But on the other hand the mandatory requirement of Aadhaar for DigiLocker and eSign amounts to contempt of the Supreme Court order in this regard.

e-Kranti — Electronic Delivery of Services: The 41 mission mode projects listed are within the top-down planning paradigm with a high risk of failure — the funds reserved for these projects should instead be converted into incentives for those public, private and public private partnerships that accelerate adoption of e-governance. The dependency on the National Informatics Centre (NIC) for implementation of e-governance needs to be reduced, SMEs need to be able to participate in the development of e-governance applications. The funds allocated for this area to DeitY have also produced a draft bill for Electronic Services Delivery. This bill was supposed to give RTI-like teeth to e-governance service by requiring each government department and ministry to publish service level agreements [SLAs] for each of their services and prescribing punitive action for responsible institutions and individuals when there was no compliance with the SLAs.

Information for All: The open data community and the Right to Information movement in India are not happy with the rate of implementation of National Data Sharing and Accessibility Policy (NDSAP). Many of the datasets on the Open Data Portal are of low value to citizens and cannot be leveraged commercially by enterprise. Publication of high-value datasets needs to be expedited by amending the proactive disclosure section of the Right to Information Act 2005.

Electronics Manufacturing: Mobile patent wars have begun in India with seven big ticket cases filed at the Delhi High Court. Our Centre has written an open letter to the previous minister for HRD and the current PM requesting them to establish a device level patent pool with a compulsory license of 5%. Thereby replicating India’s success at becoming the pharmacy of the developing world and becoming the lead provider of generic medicines through enabling patent policy established in the 1970s. In a forthcoming paper with Prof Jorge Contreras, my colleague Rohini Lakshané will map around fifty thousand patents associated with mobile technologies. We estimate around a billion USD being collected in royalties for the rights-holders whilst eliminating legal uncertainties for manufacturers of mobile technologies.

IT for Jobs: Centralised, top-down, government run human resource development programmes are not useful. Instead the government needs to focus on curriculum reform and restructuring of the education system. Mandatory introduction of free and open source software will give Indian students the opportunity to learn by reading world-class software. They will then grow up to become computer scientists rather than computer operators. All projects at academic institutions should be contributions to existing free software projects — these projects could be global or national, for eg, a local government’s e-governance application. The budget allocated for this pillar should instead be used to incentivise research by giving micro-grants and prizes to those students who make key software contributions or publish in peer-reviewed academic journals or participate in competitions. This would be a more systemic approach to dealing with the skills and knowledge deficit amongst Indian software professionals.

Early Harvest Programmes: Many of the ideas here are very important. For example, secure email for government officials — if this was developed and deployed in a decentralised manner it would prevent future surveillance of the Indian government by the NSA. But a few of the other low-hanging fruit identified here don’t really contribute to governance. For example, biometric attendance for bureaucrats is just glorified bean-counting — it does not really contribute to more accountability, transparency or better governance.

The author works for the Centre for Internet and Society which receives funds from Wikimedia Foundation that has zero-rating alliances with telecom operators in many countries across the world

For more details visit https://cis-india.org/internet-governance/blog/dna-sunil-abraham-july-8-2015-india-digital-check

'IRCTC’s Aadhaar play can violate SC order and derail National Security'

praskrishna — 2015-07-07T15:10:08Z

Your online railway bookings are going to become a wee bit more difficult if they aren’t already so.

The blog entry by Shubhra Rishi was published by CIO.IN on July 1, 2015. Sunil Abraham gave his inputs.

That is, if the IRCTC makes Aadhaar card compulsory during the registration process for e-ticketing. The move, according to a recent announcement by IRCTC, will ensure that users registering on the IRCTC website are properly identified of their identity and address through the Aadhaar card number verification.

So in case, you already have an Aadhaar card, then you need not worry. For those who don't have it yet or are reluctant to apply for it, are in for a tough time.

According to Sandip Dutta, public relations officer at IRCTC, the plan, although still in the preliminary state, is to make Aadhaar compulsory which will prevent touts from further exploiting the e-ticketing platform.

IRCTC which already has around three crore registered users, adds 15,000 new registrations every day. Just to give you the scale of an IRCTC website, a 15-minute tatkal window has about 1,000,000 people trying to log on to the IRCTC website. This means a new user won't be able to book a railway ticket on the IRCTC site until he owns an Aadhaar card.

Also Read: Indian CISO don’t trust UID with their data

"This is a complete overkill and will only result in harassment of an ordinary citizen," says Sunil Abraham, executive director at The Centre for Internet & Society. "Aadhaar, he says, should be used to prevent politicians and bureaucrats from engaging in big-ticket fraud or whole-sale corruption. It should be used to make the state more accountable to citizens and not the other way around. It is unfortunate that techno-utopians are using biometric technology to fight retail corruption or small-ticket fraud.

If IRCTC makes Aadhaar mandatory for user registrations, they will be in direct violation of the Supreme Court's interim order of September 23, 2013 where it has ordered that no person should suffer for not getting the Aadhaar card in spite of the authority making it mandatory, since government says it is voluntary.

On March 24, 2014 again, the Supreme Court reiterated its earlier order of 2013 and directed all government authorities and departments to modify their forms/circulars, etc., so as to not compulsorily require an Aadhaar number. In the same order the Supreme Court also restrained the UIDAI from transferring any biometric data to any agency without the consent of the person in writing as an interim measure.

According to cyber law expert and Supreme Court Lawyer, Pavan Duggal, till the time Aadhaar has been brought to a legislative sanctity, no government agency must make it compulsory and if they do so, they will be in gross violation of the order and will be held for contempt of court. "The National Identification Authority of India Bill that intends to give statutory backing to UIDAI (introduced in Rajya Sabha in 2010) is yet to be passed by the Parliament. Aadhaar is also non-compliant with the Information Technology Act 2000," says Duggal. Aadhaar, he says, is the unwanted child that hasn't proven legitimacy yet.

The illegitimacy, which continues to prevail due to several anomalies in the UIDAI’s Aadhaar allotment process. In March this year, about 20 million people enrolled in Delhi for an Aadhaar identification number, according to Census. However, the UIDAI generated about 17.7 million unique numbers in Delhi, about a million more than the city population.

In another incident, Aadhaar numbers were assigned to adult residents in 13 of the country's 36 states, and union territories surpassed their respective population as per 2011 census figures. However, the UIDAI blames that ‘gaps’ in census evaluation may have resulted in inaccuracy of the population data.

There have also been bizarre instances in the past where some Aadhaar cards displayed pictures of an empty chair, a tree, and a dog instead of the actual applicant.

So how does it aid unscrupulous elements in misusing the flaws of the Aadhaar card system?

To start with, Aadhaar captures biometrics of a user, which is neither permanent nor immovable, says Dr. Anupam Saraph, innovator, professor and an advisor in governance, informatics and strategic planning.

"Biometrics change during the life of a person, sometimes even within a year, or without warning. Biometrics can be easily stolen, replicated or misused as has been demonstrated by instances of fingerprints and iris scans of high profile targets being hacked. The enrollment agencies that have captured the biometric have the entire demographic and biometric database in their possession and as such it can be misused or stolen. Once the biometric fails or is stolen, all the functions that have crept to link access to the biometric are denied with little or no recourse to the victim," says Saraph.

“Another benign scenario may be large scale fake bookings to make tickets pricier, the malignant scenario will be entire trains used to transfer armies of anti-nationals and terrorists. Therefore, the Railway Minister must rise to cancel any such plans," says Saraph, and the Home Minister and Defence Minister must immediately scrap the linkage of Aadhaar to any database, require that the entire UID is destroyed as was done in the UK. “This kind of compromise requires the initiation of a time-bound judicial probe by a retired CAG and Supreme Court Judge supported by the CBI to investigate the exposure of the country to serious threats to national security due to UID,” he says.

And therefore, the bigger question isn't whether Aadhaar should be made compulsory or not, but whether it is a foolproof method to validate someone's identity. If it isn’t, then why is IRCTC playing the Aadhaar card?

For more details visit https://cis-india.org/internet-governance/news/cio-july-1-2015-irctc-aadhaar-play-can-violate-sc-order-and-derail-national-security

The Digital Divide: pros and cons of Modi's latest big initiative

praskrishna — 2015-07-06T02:11:56Z

Prime Minister Narendra Modi inaugurated the Digital India (DI) initiative on 1 July, at an event attended by scores of government officials as well as industry leaders.

The blog post by Suhas Munshi was published in Catch News on July 2, 2015. Sunil Abraham is quoted.

The initiative

Digital India aims to make all citizens digitally literate. Bring e-governance to every doorstep.

Corporates have promised to invest Rs 4.5 lakh crore in the initiative.

This is greater than the total spend on all govt schemes. It is equivalent to 1/4th of the national budget.

The positives

It will be a boost to industry; both large and small enterprises.

It will ostensibly create a lot of jobs.

It's ideal if citizens can connect directly with the government.

The negatives

Will the initiative be genuinely inclusive?

How will corporates recover their costs? Will the promised investments end up as bad loans from banks?

Who will handle the personal data of so many citizens; will it be efficient?

Who will the vendors be?

Will the proposed digital lockers for official documentation be reliable?

Will the initiative give the govt a tool to conduct mass surveillance?

The alternative focus

Some experts feel the govt should concentrate on giving people access to basic necessities like water, power and sewage.

The backbone of the project, the National Optical Fibre Network, has already run into massive infrastructure issues.

The programme aims to make all citizens digitally literate and bring the internet and e-governance to all sections of the society.

Like Modi's past initiatives, this too has polarised opinion, in this case on the government's aggressive push for e-governance.

While some advise patience before arriving at a verdict, others think it isn't too early to begin celebrations.

Astronomical budget

Most of the funds for this initiative are expected to come from the private sector. The total investments promised by big corporates, according to Modi, is Rs 4.5 lakh crore.

That is an astonishing number - it is equivalent to a quarter of the country's budget.

If true, then the amount spent on this project will be way over the total money spent on all of the government's 66 central sponsored schemes.

However, India hasn't been able to deliver on the last big welfare scheme promised - the Food Security Act, two years after it was passed in Parliament.

Investments promised by corporates add up to Rs 4.5 lakh crore, which is one-fourth of India's total budget

This scheme, which is set to cost the country Rs 1.25 lakh crore, aims to provide subsidised food grains to two-thirds of the populace.

The immediate concern experts have expressed with the budget is the possible intervention of the private sector.

The big corporate houses that have promised these staggering investments, would also be looking to recover them.

"As I see it, effectively a new sector is being created for this initiative. While it is good, when the private sector comes in to support big government projects, we also have to examine what the recovery model for those investments are. Hopefully, more details about investments will be made available," said Subrata Das, Executive Director, Centre for Budget and Governance Accountability.

Boost to industry

The initiative has already received a massive thumbs up from the industry. Corporate leaders made a beeline to praise the initiative.

RIL chairman Mukesh Ambani said that with Digital India, the government has moved faster than industry. He added that Reliance Jio Infocomm will invest Rs 2,50,000 crore as part of the Digital India programme.

"Tata Consultancy Services (TCS) has partnered with the government for projects like Passport Seva and income tax e-filing, as well as state-level projects," said Cyrus Mistry, chairman of Tata Group, at the event.

Azim Premji, Wipro chairman, was quoted as saying the initiative will democratise the nation and "break down the digital divide in India".

He added that the level of skills of India's people will have to be significantly improved in order to make full use of the new initiative.

Kumar Mangalam Birla, chairman of the Aditya Birla Group, said it would leverage its Idea Cellular network of 165 million subscribers across 3,50,000 towns and villages in India to provide mobile-based healthcare and education services, as well as weather forecasting advisories and 'mandi' prices to over one million farmers.

The company will also launch a mobile wallet and payment bank as well as invest over $2 billion in the next five years in various internet-based sectors.

There seems to be a consensus on the kind of platform DI will provide to small entrepreneurs and the massive job opportunities it will create.

"Who has not heard about their computer engineer friends trying to develop a product in their spare time? These small entrepreneurs will get a lot of help if they are brought to a common platform with big companies and if lack of resources don't impede their work. Besides, as government starts to spend, there will be a severe need for hardware technicians, network operators, data entry operators," said Manish Sabharwal, chairman, Teamlease.

Rajeev Chandrasekhar, independent lawmaker in the Rajya Sabha, says DI is not only essential for the idea of 'minimum government, maximum governance', it is a big boost for the Indian IT industry.

"It is absolutely essential for good governance that as many people as possible are put directly in touch with their government. One of the biggest achievements, I think, will be in connecting 700 million people, so far sequestered, with the rest of the country. This obviously helps small entrepreneurs with launching their startups and bringing in a healthy workforce into the folds of this scheme," he said.

Many sunrise sectors before have similarly promised job growth that has not materialised. It remains to be seen how much of this euphoria plays out in concrete terms.

Privacy concerns

Therefore, while there's been a lot of positive buzz, not everyone is sold on the initiative.

Concerns are being raised about the handling of personal data of so many citizens.

There is a question about the reliability of the digital lockers in which all citizens will have their official documentation, and the anxiety of the data falling into the wrong hands.

"Of course, the concern with respect to privacy is legitimate and urgent.

Since the data the government will collect will be very large in terms of volume and can be misused, the reliability of the government's systems will have to be quite high.

So let's wait to see the nuts and bolts of the programme," said Apar Gupta, a senior lawyer specialising in information technology.

According to Reetika Khera, associate professor, economics at IIT Delhi, applications like digital lockers will make it easier for government to conduct mass surveillance.

There are questions over the reliability of digital lockers and about data falling into the wrong hands

"Programmes like Aadhar, digi-locker, central monitoring system (of mobile calls) etc are creating and enabling a massive surveillance infrastructure in India that will put NSA's PRISM, XKeyScore etc to shame.

"For instance, if Aadhaar is linked to your mobile number, bank account, travel details, the government can build a profile of each person at the click of a mouse. This is especially worrying because data protection and privacy laws are weak or non-existent," she said.

Sunil Abraham, executive director of Bangalore-based research organisation Centre for Internet and Society, also agrees with the concerns but is optimistic about the safeguards being put in place.

"There is a very mature draft of the Privacy Bill at the Department of Personnel and Training which will hopefully be introduced into Parliament after some rounds of public consultation and feedback.

"This, along with appropriate architectural and technological changes to e-governance services, will mitigate privacy concerns," said Abraham.

Misplaced priorities?

Then there is an argument that the less-privileged sections of society may need basic social services before they're considered for internet inclusion.

"What is true at the ground is that many people still don't have access to basic services, so while I think this is a good initiative, it should be part of our medium-term strategy.

"To begin with, we should focus on setting up basic infrastructure and extending water, power and sewer lines to most of the country," said Amitabh Kundu, retired JNU professor, who's advising the government on various projects.

Apar Gupta wonders how the government intends to bring people who are semi-literate, with no access to internet, within the fold of this e-governance project.

"Extending social welfare schemes to this section of people solely through digital medium is not viable," he said.

Some feel that the whole DI initiative is a mass-scale feel-good exercise. The argument is that using technology to 'uplift' the masses isn't a new idea, and is introduced periodically, and turns out to be largely ineffective.

"From the looks of it, this initiative seems to be nothing but techno-optimism. There is a belief that new technologies will, by themselves, transform the social world, but this doesn't happen.

"Techno-optimism, which we have seen before, is no different to traditional forms of governance, and over time, turns out to be nothing but a public relations exercises. An exercise to make governance visible to masses," said Ravi Sundaram, professor at the Centre for the Study of Developing Societies (CSDS).

Infrastructure issues

A project of this ambition and magnitude is bound to run into difficulties and, just a day after the launch, The Indian Express reported that the National Optical Fibre Network, the backbone of the initiative, is way behind schedule.

The project was supposed to be completed by December 2016. Initially, the 2014-15 target was to execute the work for one lakh gram panchayats, which was later halved to 50,000.

However, up until March 2015, only about 20,000 gram panchayats have been covered.

The primary problem is the cascading delays faced by central agencies, and when the active intervention of states was sought, 'right of way' charges have become the bone of contention.

Lack of contractors to do specialised work is also turning out to be an issue.

Thus, it won't be a stretch to say that while the initiative sounds like a great thing, doubts over its proper execution will continue till there is some concrete success to show for it.

For more details visit https://cis-india.org/internet-governance/news/catch-news-july-2-2015-the-digital-divide-pros-and-cons-of-modi-s-latest-big-initiative

Anti-Spam Laws in Different Jurisdictions: A Comparative Analysis

Rakshanda Deka — 2015-07-02T16:21:01Z

This paper is divided into three sections. The first section puts forth a comparative table of the spam laws of five different countries - the United States of America, Australia, Canada, Singapore and the United Kingdom - based on eight distinct parameters- jurisdiction of the legislation, definition of ‘spam’, understanding of consent, labelling requirements, types of senders covered, entities empowered to sue, exceptions made and penalties prescribed. The second section is a brief background of the problem of spam and it attempts to establish the context in which the paper is written. The third section is a critical analysis of the laws covered in the first section. In an effort to spot the various loopholes in these laws and suggest effective alternatives, this section points out the distinctions between the various legislations and discusses briefly their respective advantages and disadvantages.

Note:- This analysis is a part of a larger attempt at formulating a model anti-spam law for India by analyzing the existing spam laws across the world.

	CAN-SPAM Act, 2003	Spam Act, 2003 (Australia)	Spam Control Act, 2007 (Singapore)	Canada's Anti-Spam Legislation, 2014	The Privacy and Electronic Communications (EC Directive) Regulations, 2003 (United Kingdom)
Jurisdiction	National Jurisdiction. The defendant must be either an inhabitant of the United States or have a physical place of business in the US.[1]	National Jurisdiction. Must have an "Australian link" i.e. (a) the message originates in Australia; or (b) the individual or organisation who sent the message, or authorised the sending of the message, is: (i) an individual who is physically present in Australia when the message is sent; or (ii) an organisation whose central management and control is in Australia when the message is sent; or (c) the computer, server or device that is used to access the message is located in Australia; or (d) the relevant electronic account-holder is: (i) an individual who is physically present in Australia when the message is Spam Act, 2003, § 7 Spam Control Act, 2007, § 7(2) Canada's Anti-Spam Legislation, 2014, §accessed; or (ii) an organisation that carries on business or activities in Australia when the message is accessed; or (e) if the message cannot be delivered because the relevant electronic address does not exist-assuming that the electronic address existed, it is reasonably likely that the message would have been accessed using a computer, server or device located in Australia.[2]	National Jurisdiction. Must have a "Singapore link" An electronic message has a Singapore link in the following circumstances: (a) the message originates in Singapore; (b) the sender of the message is - (i) an individual who is physically present in Singapore when the message is sent; or (ii) an entity whose central management and control is in Singapore when the message is sent; © the computer, mobile telephone, server or device that is used to access the message is located in Singapore; the recipient of the message is- (i) an individual who is physically present in Singapore when the message is accessed; or (ii)an entity that carries on business or activities in Singapore when the message is accessed; or (e) if the message cannot be delivered because the relevant electronic address has ceased to exist (assuming that the electronic address existed), it is reasonably likely that the message would have been accessed using a computer, mobile telephone, server or device located in Singapore.[3]	Extends to cases where the mail originates in a foreign state but is accessed in Canada Section 6 of the CASL prohibits the sending of unsolicited CEMs.[4] As per Section 12 of the CASL, A person contravenes section 6 only if a computer system located in Canada is used to send or access the electronic message. CASL applies to CEMs sent from, or accessed in, Canada.[5] So, if a CEM is sent to Canadians from another jurisdiction, CASL will apply. Notably, there is an exception where the person sending the message "reasonably believes" that the message will be accessed in one of a list of prescribed jurisdictions with anti-spam laws thought to be 'substantially similar' to CASL and the message complies with the laws of that jurisdiction.	European Union These regulations can be enforced against a person or a company anywhere in the European Union who violates the regulations.
Definition Of Spam	"unsolicited, commercial, electronic mail"[6], where a commercial electronic mail is "any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service"[7]	"unsolicited commercial electronic messages" where electronic message means a message sent "using an internet carriage service or any other listed carriage service; and to an electronic address in connection with: an e-mail account; or an instant messaging account; or a telephone account; or a similar accounts."[8]	"unsolicited commercial electronic message sent in bulk", where a CEM is unsolicited if the recipient did not- i) request to receive the message; or ii)consent to the receipt of the message;[9] and CEMs shall be deemed to be sent in bulk if a person sends, causes to be sent or authorizes the sending of- a) more than 100 messages containing the same subject matter during a 24-hour period; b) more than 1,000 messages containing the same subject matter during a 30-day period; c) more than 10,000 messages containing the same subject matter during a one-year period.	"unsolicited, commercial, electronic message"[10] where, an "electronic message" means a message sent by any means of telecommunication, including a text, sound, voice or image message.[11]	These rules apply to all unsolicited direct marketing communications by automatic call machines[12], fax[13], calls[14] or e-mail[15]. Where, "direct marketing" is defined as "the communication (by whatever means) of any advertising or marketing material which is directed to particular individuals"[16] The UK used its discretion to include voice-to-voice telephone calls as well.
Consent Requirement	Opt-out	Opt-in	Opt-out	Opt-in	Opt-in
Consent Requirement	CEMs are unlawful unless the message provides- (i)clear and conspicuous identification that the message is an advertisement or solicitation; (ii)clear and conspicuous notice of the opportunity under paragraph (3) to decline to receive further commercial electronic mail messages from the sender; and (iii) a valid physical postal address of the sender.[17]	Section 16 prohibits the sending of unsolicited commercial electronic messages. However, where a recipient has consented to the sending of the message, the said prohibition does not apply.[18] Consent means: (a) express consent; or (b) consent that can reasonably be inferred from: (i) the conduct; and (ii) the business and other relationships; of the individual or organisation concerned.[19]	CEMs are unlawful unless the message contains- 1 a) an electronic mail address, an Internet location address, a telephone number, a facsimile number or a postal address that the recipient may use to submit an unsubscribe request; and b) a statement the above information may be utilized to send an unsubscribe request. 2. Where the unsolicited CEM is received by text or multimedia message sent to a mobile telephone number, the CEM must include a mobile telephone number to which the recipient may send an unsubscribe request. [20]	Under the CASL, it is prohibited to send or cause or permit to be sent to an electronic address a commercial electronic message unless, (a) the person to whom the message is sent has consented to receiving it, whether the consent is express or implied; and (b) The message must- (i) set out prescribed information that identifies the person who sent the message and the person - if different - on whose behalf it is sent; (ii) set out information enabling the person to whom the message is sent to readily contact one of the persons referred to in paragraph (i); and (iii) set out an unsubscribe mechanism in accordance with subsection 11(1) of CASL.[21]	Under Section 19 , A person shall neither transmit, nor instigate the transmission of, communications comprising recorded matter for direct marketing purposes by means of an automated calling system except in the circumstances where the called line is that of a subscriber who has previously notified the caller that for the time being he consents to such communications being sent by, or at the instigation of, the caller on that line. Under Section 20 , A person shall neither transmit, nor instigate the transmission of, unsolicited communications for direct marketing purposes by means of a facsimile machine where the called line is that of an individual or a company except in the circumstances where the individual subscriber has previously notified the caller that he consents for the time being to such communications being sent by, or at the instigation of, the caller. Under Section 21, A person shall neither use, nor instigate the use of, a public electronic communications service for the purposes of making unsolicited calls for direct marketing purposes where the called line is that of a subscriber who has previously notified the caller that such calls should not for the time being be made on that line. Under Section 22 , a person shall neither transmit, nor instigate the transmission of, unsolicited communications for the purposes of direct marketing by means of electronic mail unless the recipient of the electronic mail has previously notified the sender that he consents for the time being to such communications being sent by, or at the instigation of, the sender.
Labelling Requirements	Warning Labels mandatory on e-mails containing pornographic content No person may send to a protected computer, any commercial electronic mail message that includes sexually oriented material and- (a) fail to include in subject heading for the electronic mail message the marks or notices prescribed by the law; or (B) fail to provide that the matter in the message that is initially viewable to the recipient, when the message is opened by any recipient and absent any further actions by the recipient, includes only- (i) material which the recipient has consented to; (ii) the identifier information required to be included in pursuance Section 5(5); and (iii) Instructions on how to access, or a mechanism to access, the sexually oriented material.[22]	Not Applicable.	True e-mail title and clear identification of advertisements with "ADV" label Every unsolicited CEM must contain- a) where there is a subject field, a title which is not false or misleading as to the content of the message; b) the letters "<ADV>" with a space before the title in the subject field or if there is no subject field, in the words first appearing in the message to clearly identify that the message is an advertisement; c) header information that is not false or misleading; and d) an accurate and functional e-mail address or telephone number by which the sender can be readily contacted.[23]	Not Applicable.	Not Applicable.
Other Banned/Restricted Activities	Illegal Access- Prohibition Against Predatory and Abusive Commercial E-Mail- "Whoever, in or affecting interstate or foreign commerce, knowingly- (1) accesses a protected computer without authorization, and intentionally initiates the transmission of multiple CEMs from or through such computer, (2) uses a protected computer to relay or retransmit multiple CEMs, with the intent to deceive or mislead recipients, or any Internet access service, as to the origin of such messages, (3) materially falsifies header information in multiple commercial electronic mail messages and intentionally initiates the transmission of such messages, (4) registers, using information that materially falsifies the identity of the actual registrant, for five or more electronic mail accounts or online user accounts or two or more domain names, and intentionally initiates the transmission of multiple commercial electronic mail messages from any combination of such accounts or domain names, or (5) falsely represents oneself to be the registrant or the legitimate successor in interest to the registrant of 5 or more Internet Protocol addresses, and intentionally initiates the transmission of multiple commercial electronic mail messages from such addresses, or conspires to do so, shall be punished as provided for in the Act.[24]	Supply of address harvesting software and harvested‑address lists "A person must not supply or offer to supply: (a) address‑harvesting software; or (b) a right to use address‑harvesting software; or (c) a harvested address list; or (d) a right to use a harvested‑address list; to another person if: (e) the supplier is: (i) an individual who is physically present in Australia at the time of the supply or offer; or (ii) a body corporate or partnership that carries on business or activities in Australia at the time of the supply or offer; or (f) the customer is: (i) an individual who is physically present in Australia at the time of the supply or offer; or (ii) a body corporate or partnership that carries on business or activities in Australia at the time of the supply or offer."	Dictionary Attacks and Address harvesting software "No person shall send, cause to be sent, or authorize the sending of, an electronic message to electronic addresses generated or obtained through the use of- a) a dictionary attack; b) address harvesting software.[25] Where, "dictionary attack" means the method which by which the electronic address of a recipient is obtained using an automated means that generates possible electronic addresses by combining names, letters, numbers, punctuation marks or symbols into numerous permutations.[26] And, "address harvesting software" means software that is specifically designed or marketed for use for- a)searching the Internet for electronic addresses; and, b) collecting, compiling, capturing or otherwise harvesting those electronic addresses."[27]	Altering Transmission Data "It is prohibited, in the course of a commercial activity, to alter or cause to be altered the transmission data in an electronic message so that the message is delivered to a destination other than or in addition to that specified by the sender, unless (a) the alteration is made with the express consent of the sender or the person to whom the message is sent, and the person altering or causing to be altered the data complies with subsection 11(4) of CASL; or (b) the alteration is made in accordance with a court order.[28] Installation of Computer Program A person must not, in the course of a commercial activity, install or cause to be installed a computer program on any other person's computer system or, having so installed or caused to be installed a computer program, cause an electronic message to be sent from that computer system, unless (a) the person has obtained the express consent of the owner or an authorized user of the computer system and complies with subsection 11(5) of the CASL; or (b) the person is acting in accordance with a court order. (2) A person contravenes subsection (1) only if the computer system is located in Canada at the relevant time or if the person either is in Canada at the relevant time or is acting under the direction of a person who is in Canada at the time when they give the directions."[29]	Electronic mail for direct marketing purposes where the identity or address of the sender is concealed A person shall neither transmit, nor instigate the transmission of, a communication for the purposes of direct marketing by means of electronic mail- (a) where the identity of the person on whose behalf the communication has been sent has been disguised or concealed; or (b)where a valid address to which the recipient of the communication may send a request that such communications cease has not been provided.
Types of Senders Covered	Spammers and beneficiaries- the term ''sender'', when used with respect to a commercial electronic mail message, means a person who initiates such a message and whose product, service, or Internet web site is advertised or promoted by the message."[30]	Spammers and beneficiaries- A person must not send, or cause to be sent, a commercial electronic message that: (a) has an Australian link; and (b) is not a designated commercial electronic message.[31]	Spammers, beneficiaries, and providers of support services "sender" means a person who sends a message, causes the message to be sent, or authorizes the sending of the message.[32] Further, persons aiding or abetting the offences under Section 9 or 11 are also punishable under the Act.[33]	Spammers and beneficiaries- Under Section 6, it is prohibited to send or cause or permit to be sent to an electronic address a CEM. Under Section 7, It is prohibited, in the course of a commercial activity, to alter or cause to be altered the transmission data in a CEM. Under Section 8, A person must not, in the course of a commercial activity, install or cause to be installed a computer program on any other person's computer system or, having so installed or caused to be installed a computer program, cause an electronic message to be sent from that computer system.	Spammers and beneficiaries- The texts of Sections 19, 20, 21 and 22 all prohibit the transmission as well as the instigation of the transmission of, communications for direct marketing purposes without the consent of the recipient.
Who Can Sue	FTC[34], Attorney Generals[35], ISPs and IAPs[36] and most recently even companies/private entities[37]	Australian Communications and Media Agency (ACMA)[38]	Any injured party, including individual users.[39]	Any injured party, including individual users.[40]	Any person who suffers damage by reason of any contravention of any of the requirements of these Regulations.[41]
Exceptions	Transactional or Relationship Messages [42] where, The term ''transactional or relationship message'' means an electronic mail message the primary purpose of which is- (i) to facilitate, complete, or confirm a commercial transaction; (ii) to provide warranty information, product recall information, etc. with respect to a commercial product or service used or purchased by the recipient; (iii) to provide notifications- (I) concerning a change in the terms or features of; (II) of a change in the recipient's standing or status with respect to; or (III) information with respect to a subscription, membership, account, loan, or comparable ongoing commercial relationship involving the ongoing purchase or use by the recipient of products or services offered by the sender; (iv) to provide information directly related to an employment relationship or related benefit plan in which the recipient is currently involved, participating, or enrolled; or (v) to deliver goods or services, including product updates or upgrades, that the recipient is entitled to receive under the terms of a transaction that the recipient has previously agreed to enter into with the sender.	Designated Commercial Electronic Message (DCEM). A DCEM is a message containing purely factual information, any related comments of non-commercial nature and some limited commercial information as to the identity of the sender company/individual.[43] A message is a DCEMs if- a) the sending of the message is authorized by any of the following bodies: (i) a government body; (ii) a registered political party; (iii) a religious organization; (iv) a charity or charitable institution; and (b) the message relates to goods or services; and (c) the body is the supplier, or prospective supplier, of the goods or services concerned.[44] Messages from educational institutions: an electronic message is a *DCEM* if: (a) the sending of the message is authorised by an educational institution; and (b) either or both of the following subparagraphs applies: (i) the relevant electronic account‑holder is, or has been, enrolled as a student in that institution; (ii) a member or former member of the household of the relevant electronic account‑holder is, or has been, enrolled as a student in that institution; and (c) the message relates to goods or services; and (d) the institution is the supplier, or prospective supplier, of the goods or services concerned.	Electronic Messages authorized by the Government[45] The Act does not apply to any electronic message where the sending of the message is authorized by the Government or a statutory body on the occurrence of any public emergency, in the public interest or in the interests of public security or national defence.[46] A certificate signed by the Minister shall be conclusive evidence of existence of a public emergency and the other above stated matters.[47]	Family and Personal relationships, where "Family relationship" is a relationship between two people related through marriage, a common law partnership, or any legal parent-child relationship who have had direct, voluntary two-way communications; and "personal relationship" means a relationship between two people who have had direct, voluntary two-way communications where it would be reasonable to conclude that the relationship is personal.[48] Mails sent to an individual who practices a particular commercial activity with the mail containing solely an inquiry or application related to that activity[49]. A mail which - provides a quote or estimate for the supply of a product, goods, a service, etc. if requested by the recipient; · facilitates, completes or confirms a commercial transaction that the recipient previously agreed to enter into with the sender; · provides warranty information, product recall information etc. about a product, goods or a service that the recipient uses, has used or has purchased; · provides notification of factual information about- (i) the ongoing use or ongoing purchase by the recipient of a product, goods or a service offered under a subscription, membership, account, loan or similar relationship by the sender, or · provides information directly related to an employment relationship or related benefit plan in which the recipient is currently involved, is currently participating or is currently enrolled; · delivers a product, goods or a service, including updates or upgrades, that the recipient is entitled to receive under the terms of a transaction that they have previously entered into with the sender.[50] · Telecommunications service provider merely because the service provider provides a telecommunications service that enables the transmission of the message.[51] · CEMs which are two-way voice communication between individuals sent by means of a facsimile or a voice recording sent to a telephone account.[52]	A person may send or instigate the sending of electronic mail for the purposes of direct marketing where - (a) the contact details of the recipient of that electronic mail in the course of the sale or negotiations for the sale of a product or service to that recipient; (b) the direct marketing is in respect of that person's similar products and services only; and (c) the recipient has been given a simple means of refusing (free of charge except for the costs of the transmission of the refusal) the use of his contact details for the purposes of such direct marketing, at the time that the details were initially collected, and, where he did not initially refuse the use of the details, at the time of each subsequent communication.[53]
Penalties	Civil and Criminal Statutory damages- Amount calculated by multiplying the number of violations by up to $250. Total amount of damages may not exceed $2,000,000. [54] Imprisonment- upto 5 years.[55] Forfeiture from the offender, of- i) any property, real or personal, constituting or traceable to gross proceeds obtained from such offense; ii) any equipment, software, or other technology used or intended to be used to commit or to facilitate the commission of such offense.[56]	Civil only For a body corporate without prior record, for upto 2 contraventions, civil penalty should not exceed i) 100 penalty units if the if the civil penalty provision is subsection 16(1), (6) or (9); or ii) 50 penalty units in any other case. For more than 2 contraventions, civil penalty should not exceed i) 2000 penalty units if the if the civil penalty provision is subsection 16(1), (6) or (9); or ii) 1000 penalty units in any other case. For a body corporate with prior record, for upto 2 contravention, civil penalty should not exceed i) 500 penalty units if the if the civil penalty provision is subsection 16(1), (6) or (9); or ii) 250 penalty units in any other case. For more than 2 contraventions, civil penalty should not exceed i) 10,000 penalty units if the if the civil penalty provision is subsection 16(1), (6) or (9); or ii) 5,000 penalty units in any other case. For a person without prior record, for upto 2 contraventions, civil penalty should not exceed i) 20 penalty units if the if the civil penalty provision is subsection 16(1), (6) or (9); or ii) 10 penalty units in any other case. For more than 2 contraventions, civil penalty should not exceed i) 400 penalty units if the if the civil penalty provision is subsection 16(1), (6) or (9); or ii) 200 penalty units in any other case. For a person with prior record, for upto 2 contravention, civil penalty should not exceed i) 100 penalty units if the if the civil penalty provision is subsection 16(1), (6) or (9); or ii) 50 penalty units in any other case. For more than 2 contraventions, civil penalty should not exceed i) 2,000 penalty units if the if the civil penalty provision is subsection 16(1), (6) or (9); or ii) 1,000 penalty units in any other case.[57]	Civil only i) Injunction ii) Damages- calculated in terms of loss suffered as a direct or indirect result of the contravention of the Act. ii) Statutory Damages not exceeding $25 for each CEM; and not exceeding in the aggregate $1 million, unless the plaintiff proves that his actual loss from such CEMs exceeds $1 million.[58] iii)Costs of litigation to the plaintiff.[59]	Civil only Administrative Monetary Penalty , the purpose of which is to promote compliance with the Act and not to punish.[60] The maximum penalty for a violation is $1,000,000 in the case of an individual, and $10,000,000 in the case of any other person.[61]	Civil on private action; Criminal for non-compliance with IC's notice A person who suffers damage by reason of any contravention of any of the requirements of these Regulations by any other person shall be entitled to bring proceedings for compensation from that other person for that damage.[62] The enforcement authority for these regulations is Britain's Information Commissioner who oversees both the Act and the Regulations, and investigates complaints and makes findings in the form of various types of notices.[63] Failure to comply with any notice issued by the Information Commissioner is a criminal offence and is punishable with a fine of upto £5000 in England and Wales and £10,000 Scotland.[64]

THE PROBLEM OF SPAM -WHY IT PERSISTS

As per a study conducted by Kaspersky Lab in 2014, 66.34% of all messages exchanged over the internet were spam.[65] Over the 2000s, several countries recognized the threats posed by spam and enacted specific legislations to tackle the same. The ones taken into consideration in this paper are the CAN-SPAM Act, 2003 of the United States, Canada's Anti-Spam Legislation, 2014, The Spam Act, 2003 of Australia, Singapore's Spam Control Act, 2007 and The Privacy and Electronic Communications (EC Directive) Regulations, 2003 (United Kingdom). As will be analyzed in the course of this paper, none of these laws have evolved to become comprehensive mechanisms for combating spam yet. Nevertheless, post the enactment of these laws, spam has reduced as a percentage of the net email traffic; however, the absolute quantity of spam has increased owing to the exponential growth of email traffic universally.[66]

Who Benefits from Spam?

1. Commercial establishments - Spamming is one of the most cost-effective means of promoting products and services to a large number of potential customers. Spams are not necessarily duplicitous and often contain legitimate information to which a fraction of the recipients respond positively. As per a recent study, for spam to be profitable, only 1 in 25,000 spam recipients needs to open the email, get enticed, and make a gray-market purchase.[67]

2. Non-commercial establishments benefitting from advertisements - Many seemingly non-profit messages benefit from revenue generated through advertisements when recipients visit their site. Advertisers pay these sites either per click or per impression.

3. Spammers - The costs incurred by spammers largely include the cost of e-mail/phone number harvesting and the cost of paying botnet operators. As compared to the revenue generated as a percentage of profits earned by the merchant on whose behalf spam messages are sent, these costs are negligible.[68]

Thus, spamming proves to be an activity that involves minimal investment and often yields some response from prospective clients.

The impact of spam is clearly widespread. Presently, India lacks a specific anti-spam legislation. In consideration of the swelling growth of spam across the globe and the increasing number of Indian users, it is of utmost urgency that a specific legislation is formulated to tackle the issue.

OBSERVATIONS AND ANALYSIS

1. Definition of Spam

a. 'Spam' must be defined in a technologically neutral manner

The legislations analyzed in this paper deal with either one or a cluster of modes of communication through which spam may be sent. However, it is essential that 'spam' is defined in a manner that is technologically neutral. Most commercial spam is aimed at promoting products and services to a large number of prospective customers. Thus, making only spam e-mails illegal, like the CAN-SPAM Act does, fails to address the issue wholly as companies would always retain the option of sending unsolicited messages through other communicative devices. It becomes an issue of merely switching modes of communication without there being any actual deterrence to spamming. Thus, a narrow understanding of spam, limiting it to one or few modes of communication, is problematic and for a model law, a broader definition that discourages unsolicited messages sent via any network is warranted.

b. Non-commercial spam must also be addressed

The five legislations examined in this paper address only the issue of unsolicited 'commercial' mails/messages. For instance, under the CAN-SPAM, a commercial mail means " any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service". Singapore's Spam Control Act defines a commercial message in a similar fashion but more elaborately. CASL, while limiting the scope of the law to commercial mail, additionally prescribes that such communication need not have a profit motive. Australia's Spam Act defines a commercial message as a message that has the purpose of offering, advertising or promoting goods or services or the supplier or prospective supplier of goods or services. Under the EC Directive, the term used is 'marketing communication'; however, in essence, it includes only commercial communications.[69] These definitions suffer from an obvious exclusion error. It is known from experience that not all unsolicited messages received are in pursuance of commercial interests. Often, unsolicited mails and messages are received with explicit sexual content as well as promoting political and religious agendas sent by party volunteers.

Thus, it would be in higher consonance with the greater aim of curbing spam to broaden the scope of these legislations to address both commercial as well as non-commercial messages.

c. Bulk requirement and its quantification

The Singaporean law makes 'sent in bulk' a mandatory requirement for spam. However, deciding what quantity of a particular message qualifies it as bulk is difficult. If an objective threshold is set, say 100 messages in 24 hours, then anything short of that, say even 99 messages, go unaddressed simply because it does not meet the statutory requirement of being in bulk. This enables spammers to misuse the law by marginally falling short of the threshold and still continuing to spam. The issue here is comparable to the one faced in setting age as bar to criminal culpability. No matter what, any number arrived at is likely to be arbitrary and consequently subject of criticism. A possible way to tackle this would be to strengthen the unsubscribe mechanisms by virtue of which individuals are able to, at the very least, stop receiving unsolicited mails. For the determination of threshold for State action and its feasibility, a much more detailed study is merited.

2. Consent Requirement

	Opt- out Model	Opt-in Model	Double Opt-in Model
Countries following the model	United States of America and Singapore	Canada, Australia and the United Kingdom	None at present.
When messages may be sent	At all times until recipient voluntarily opts out/unsubscribes.	Only after the recipient voluntarily opts-in/subscribes to receive messages by submitting his/her contact details to be part of a particular mailing list.	Only after the recipient responds in the affirmative to the confirmation mail sent by the sender on receiving an opt-in request from the recipient.
Specific requirements	1. The mail/message must bear a clear identifier of its content. E.g. marked as 'ADVT' for advertisements; 2. An 'unsubscribe' option must be provided in the message which may be utilized by the recipient to express his/her disinterest in the message; and 3. The message must conspicuously bear a valid physical postal address.	N/A	N/A
Advantages	Promotes commercial speech rights- Since the default position presumes the right to market, average collection rates are considerably higher as more emails can be sent to more people.	1. Reduction in unsolicited messages- Commercial messages are not sent until the recipient voluntarily consents to receiving such messages by submitting his/her contact information. 2. Availability of unsubscribe option- Even after a recipient voluntarily opts in, he/she still has the right to withdraw from such messages by unsubscribing.	1. Ensures people are entering their information correctly, which equals a cleaner list and lowers bounce rates. 2. Reduces the probability of spam complaints because subscribers have had to take the extra step to confirm their consent.
Disadvantages	1. This merely places the burden of reduction of spam on the recipients. 2. The functionality of the 'unsubscribe' link is itself questionable. Very often these links themselves are fraudulent. In such a case, the recipient is further harmed before any opting-out can even take place. 3. In the absence of any strict regulatory oversight, there exists no incentive for the senders to strictly address unsubscribe requests.	1. Consent may be obtained in fact but not in spirit through inconspicuous pre-ticked check boxes. 2. E-mail addresses may be added to a list by spambots. Where, the person 'opted-in' may not actually be the person opting in. 3. Errors may be made when entering emails; a typo may result in someone submitting an address that is not theirs. 4. Legitimate addresses may be added by someone who does not own the address.	1. Genuine subscribers may not understand clearly the confirmation process and fail to click the verification link. 2. Confirmation emails may get stuck in spam filters.

The comparison above highlights that the opt-out model as well as the opt-in model may leave loopholes. The opt-in model has been advocated for as the better model as compared to the opt-out model as it prohibits the sending of messages unless the recipient consents to receiving such messages. However, as pointed out above, in this model consent may be given by entities other than the owner of the contact details. In such a situation, a double opt-in model may be a viable option to contemplate as it is the only model where it can be ensured that only the addressee is enabled to successfully opt-in.[70]

Presently, the double opt-in model has not been adopted by any of the countries discussed in this paper. Nonetheless, it seems to have the potential to aid the fight against spam more effectively than the existing models. Its real efficacy however, shall be proven only on practical implementation.

3. Exceptions

a. Family and Personal Relationships

Under the CASL, an exception is made for 'personal relationships' and 'family relationship'. However, these terms are defined quite narrowly. For instance, family relationship is defined as 'a relationship between two people related through marriage, a common law partnership, or any legal parent-child relationship and those individuals have had direct, voluntary, two-way communication'.^[71] This implies that in a situation where an individual wants to send a message offering to sell something to an individual in his extended family, say his cousins, doing so without obtaining their consent first, would qualify his mail as spam under the CASL. This would become especially problematic in the Indian context where comparatively larger family structures prevail.

In the anti-spam legislations of the other four countries, no such exceptions are made. Quite obviously, these exceptions are of crucial significance and must be provided in any anti-spam legislation; however, it is important that they are defined in a manner such that their actual purpose i.e. of exclusion of familial and personal relationships from regulations applicable to spammers, is effectively achieved and the law does not become a creator for unnecessary litigation.

b. Transactional Messages

The term 'transactional messages' is used only under the CAN-SPAM Act of the USA. It basically covers messages sent when the recipient stands in an existing transactional relationship with the sender and the mail contains information specific to the recipient. It also includes employment relationships. In CASL, a similar exception is made under Section 6(6). The section is worded almost identically as the CAN-SPAM provision, though the term 'transactional messages' is not used. In the UK laws, messages for the purpose of direct marketing may be sent where the contact information of the recipient is received in the course of the sale or negotiations for the sale of a product or service to that recipient, thus implying an existing transactional relationship. One added proviso under the UK law is that the recipient must be clearly and distinctively given the opportunity to object, free of charge and in an easy manner, to the use of the e-mail address when collected and on the occasion of each message in case the customer has not initially refused such use.[72]

An exception for transactional messages is essential to ensure freedom of commercial speech rights even while effectively tackling spam. In the formulation of a model law, a combination of the American and the English laws may be workable.

c. Governmental Messages

The Spam Act, 2003 of Australia makes an exemption for 'designated commercial electronic message (DCEM)'. This exemption is to avoid any unintended restriction on communication between the government and the community.^[73] In order to be a DCEM, a message must-

1. Be authorized by the government;

2. Contain purely factual information and any related comments of non-commercial nature; and

3. Contain some information as to the identity of the sender company/individual.

DCEMs need not always be sent by government bodies and may also be sent by third parties authorized by the government.^[74] Such messages are exempt from the consent requirement as well as the unsubscribe option requirement but must comply with the identifier requirement. However, where government bodies are operating in a competitive environment, the provisions of the act would apply normally to them.^[75]

Similarly, Singapore's Spam Control Act does not apply to any electronic message where the sending of the message is authorized by the Government or a statutory body on the occurrence of any public emergency, in public interest or in the interests of public security or national defence.

These exemptions are essential in order to enable free communication of important information between the government and the citizens. The Singaporean wording of the exception is rather broad and would give the government immense space for misusing the law. Such a wording might be more effective if supplemented with the Australian proviso wherein governmental communications operating in a competitive environment are excluded.

4. Penalties

a. Penalties must be higher than benefit from spamming

If the penalty prescribed itself is too low, such that loss suffered from paying penalties is lower than net benefit from spamming, the spammer is not sufficiently deterred. Four out of the five countries analyzed in this paper prescribe only civil penalties in the form of fines for spamming. Recently, a Facebook spammer was found to have made a profit of $200 million in a year.[76] For instance, as noted above, the Australian law sets a limit for penalty at $1 million. Thus, such a penalty would constitute a small fraction of the profit from spamming and would not deter a spammer.

b. High penalty does not imply effective deterrence where probability of prosecution is low.

The CAN-SPAM Act prescribes the harshest penalties including both civil as well as criminal penalties. However, it has been rather ineffective in reducing spam. This is for the reason that this Act is more about how to spam legally than anything else. It is more like- ' you can spam but do not use false headers.'[77] As a consequence, unintentional spam from ignorant commercial establishments has reduced. However, due to easy compliance standards, the 'real' spammers still go undetected to a large extent.[78] Thus, even moderate penalties may serve as good deterrents where the probability of prosecution is high.

c. Effective enforcement is the key to effective deterrence.

The cornerstone of an effective spam law is effective enforcement. Penalties must be enforced in a manner that the cost of punishment is always higher than the benefit from spamming and the probability of conviction is high. In order to implement legislative measures effectively, governments should also undertake an information campaign on spam issues targeting users, business communities, private sector groups and other stakeholders as the one primary reason for sustenance of spam is the response received from certain recipients. Such supplementary activities would also facilitate the preservation of commercial rights as excessive penalties could inhibit regular commercial activities.

CONCLUSION

The observations made in this paper are crucial to the formulation of a model anti-spam law for India. The most important part of any ant-spam legislation would be the definition of 'spam' which, as established above, must be technologically neutral in order to be able to address as much unsolicited communication as possible. On the question of consent, a double opt-in is what this paper would propose. This model has been contemplated and recommended by academic and policy researchers as a possibly more effective consent model for spam laws; however, it has not been codified as a legal regime till date. It could be a rather groundbreaking approach that India could adopt as this clearly is the only model where 'opting-in' is realized in fact and in spirit. Further, exceptions are necessary in order to prevent the abuse of laws making certain such exceptions do not suffer from inclusive or exclusion errors. A combination of the exceptions under the Australian and the American laws seems ideal at this stage of research. In terms of penalty, this paper observed that only prescribing harsh penalties is not sufficient to effectively deter spammers but efficient modes of enforcement have to be formulated to ensure actual deterrence. Lastly, while a well-drafted national anti-spam legislation is clearly the need of the hour for India; additional steps have to be taken towards sensitizing citizens to the fact that the problem of spam is real and a costly threat to the communications infrastructure of the country and combat has to begin at the individual level.

[1] CAN-SPAM Act, § 7706(f) (7).

[2] Spam Act, 2003, § 7

[3] Spam Control Act, 2007, § 7(2)

[4] Canada's Anti-Spam Legislation, 2014, § 6.

[5] Canada's Anti-Spam Legislation, 2014, § 12.

[6] 15 U.S.C. § 7701 (2003).

[7] CAN-SPAM Act, Section 3 (2)(A)

[8] Spam Act, 2003, § 6

[9] Spam Control Act, 2007, § 5(1)

[10] Canada's Anti-Spam Legislation, 2014, § 6

[11] Canada's Anti-Spam Legislation, 2014, § 1(1)

[12] Regulation 19, EC Directives, 2003

[13] Regulation 20, EC Directives, 2003

[14] Regulation 21, EC Directives, 2003

[15] Regulation 22, EC Directives, 2003

[16] Section 11, Data Protection Act, 1998

[17] CAN-SPAM Act, Section 5(5)

[18] Spam Act, 2003, § 16(2)

[19] Spam Act, 2003, Schedule 2 (2)

[20] Spam Control Act, 2007 Section 11, Schedule 2(2)

[21] Canada's Anti-Spam Legislation, 2014, Section 6

[22] CAN-SPAM Act, 2003, Section 5(d)

[23] Spam Control Act, 2007, Schedule 2, 3(1), Section 11

[24] Chapter 47 of title 18, U.S.C., § 1037, inserted through an amendment by the CAN-SPAM Act, § 4(a) (1); '§ 5(A)(1).

[25] Spam Control Act, 2007, '§ 9

[26] Spam Control Act, 2007, '§ 2

[27] Spam Control Act, 2007, '§ 2

[28] Canada's Anti-Spam Legislation, 2014, § 7

[29] Canada's Anti-Spam Legislation, 2014, § 8

[30] CAN-SPAM Act, 2003, § 3(16)(A)

[31] Spam Act, 2003, Section 16(1), Section 8

[32] Spam Control Act, 2007, § 2

[33] Spam Control Act, 2007, § 12

[34] CAN-SPAM Act, 2003, § 7(a)(c)(d)

[35] CAN-SPAM Act, 2003, § 7(f)

[36] CAN-SPAM Act, 2003, § 7(g)

[37] MySpace, Inc. v. The Globe.com, Inc., 2007 WL 1686966 (C.D. Cal., Feb. 27, 2007)

[38] Spam Act, 2003, § 26(1)

[39] Spam Control Act, 2007, § 13

[40] Canada's Anti-Spam Legislation, § 47

[41] Regulation 30(1), EC Directives, 2003

[42] CAN-SPAM Act, 2003, § 3(2)(B)

[43] Spam Act, 2003, Schedule 1, § 2

[44] Spam Act, 2003, Schedule 1, § 3

[45] Spam Control Act, 2007, § 7(3)

[46] Spam Control Act, 2007, First Schedule Clause (1)

[47] Spam Control Act, 2007, First Schedule Clause (2)

[48] Canada's Anti-Spam Legislation, § 6(5a)

[49] Canada's Anti-Spam Legislation, § 6(5b)

[50] Canada's Anti-Spam Legislation, § 6(6)

[51] Canada's Anti-Spam Legislation, § 7

[52] Canada's Anti-Spam Legislation, § 8

[53]Section 22(3), EC Directives, 2003

[54] CAN-SPAM Act, § 7 (f)(3)(A).

[55] CAN-SPAM Act, § 4 (b)

[56] CAN-SPAM Act, § 4 (c)

[57] Spam Act, 2003, Sections 24, 25

[58] Spam Control Act, 2007, § 14

[59] Spam Control Act, 2007, § 15

[60] Canada's Anti-Spam Legislation, 2014, § 20(2)

[61] Canada's Anti-Spam Legislation, 2014, § 20(4)

[62] Regulation 30(1), EC Directive, 2003

[63] Regulations 31-32, EC Directive, 2003

[64] Section 47 and 60, Data Protection Act, 1998

[65] Spam and Phishing Statistics Report Q1-2014, Kaspersky Lab

http://usa.kaspersky.com/internet-security-center/threats/spam-statistics-report-q1-2014#.VVQxNndqN5I (last accessed 29^th May, 2015)

[66] Snow and Jayakar, Krishna, Can We Can Spam? A Comparison of National Spam Regulations, August 15, 2013. TPRC 41: The 41st Research Conference on Communication, Information and Internet Policy.

[67] Justin Rao and David Reiley, The Economics of Spam, Vol. 26, No. 3 The Journal of Economic Perspectives (2012), p. 104.

[68] Supra n. 66; p. 7

[69] Refer Table in Section 1.

[70] Dr. Ralph F. Wilson, Spam, Spam Bots, and Double Opt-in E-mail Lists, April 21, 2010; available at http://webmarketingtoday.com/articles/wilson-double-optin/ (last accessed 29^th May 2015).

[71] Section 2(a), Electronic Commerce Protection Regulations, http://fightspam.gc.ca/eic/site/030.nsf/eng/00273.html (last accessed 29^th May 2015)

[72] Evangelos Moustakas, C. Ranganathan and Penny Duquenoy, Combating Spam Through Legislation: A Comparative Analysis Of US And European Approaches, available at http://ceas.cc/2005/papers/146.pdf

[73] Spam Act 2003- A Practical Guide for Government, Australian Communications Authority, available at- http://www.acma.gov.au/webwr/consumer_info/spam/spam_act_pracguide_govt.pdf (last accessed 29^th May 2015)

[74] Ibid

[75] Id

[76] Charles Arthur, Facebook spammers make $200m just posting links, researchers say, The Guardian, 28^th August 2013, http://www.theguardian.com/technology/2013/aug/28/facebook-spam-202-million-italian-research (last accessed 29^th May, 2015)

[77] Evangelos Moustakas, C. Ranganathan and Penny Duquenoy, Combating Spam Through Legislation: A Comparative Analysis Of US And European Approaches, available at http://ceas.cc/2005/papers/146.pdf

[78] Carolyn Duffy Marsan, CAN-SPAM: What went wrong?, 6^th October 2008, available at

http://www.networkworld.com/article/2276180/security/can-spam--what-went-wrong-.html (last accessed 29^th May, 2015)

For more details visit https://cis-india.org/internet-governance/blog/anti-spam-laws-in-different-jurisdictions

Five Nations, One Future?

praskrishna — 2015-07-18T02:34:16Z

The Silicon Valley model for success - what Bangalore, Chile, London and Rwanda want to learn from California.

When it comes to IT, Silicon Valley is viewed worldwide as the model for success. What can we learn from the drivers of innovation in California? We investigate in Bangalore, Chile, London and Rwanda. The article by Bjorn Ludtke, Ellen Lee, Jaideep Sen, Gwendolyn Ledger, David Nicholson, and Jesko Johannsen was published by Voestalpine. Sunil Abraham was quoted extensively. Read more about the article.

For more details visit https://cis-india.org/internet-governance/news/five-nations-one-future

Most emerging firms low on cyber security: Experts

praskrishna — 2015-06-29T16:02:51Z

When Pavitra Badrinath saw that the upgrade to a shopping application on her smartphone asked access to her contacts and messages, she decided against it. "Laws on privacy are not clear in India. So I am doing what I can to protect my information," the 26-year-old technology firm employee said.

The article by Malavika Murali and Payal Ganguly was published in the Economic Times on June 24, 2015. Sunil Abraham gave his inputs.

Are users taking a risk by allowing applications to gain access to personal data shadowed by an upgrade? "Most definitely ," said Bikash Barai, cofounder and chief executive of security firm iViz Security .

With at least 10 alleged breaches and hacks into the databases of startups such as Ola and Gaana this year, the alarm bells are going off.

Experts warn that emerging businesses are lax with security frameworks, which is especially worrying as millions more Indians are shopping online, including on their phones, exposing crucial personal and financial data to fraud.

More than 70 per cent of Indian companies are under-prepared when it comes to cyber security, according to a report by CISO Platform, a social platform for security experts where Barai is chief adviser.

India's largest cab-hailing company, Ola denied hackers' claims in an email response to ET, stating that its data were not compromised.

Music service Gaana.com, in response to being hacked by a person in Pakistan calling himself MakMan, said it had strengthened its security team and offerings in recent weeks. "In addition, we are working on a `bug bounty' program, which will allow individuals to point out any potential vulnerability in a safe way," said Pawan Agarwal, business head at Gaana.com.

According to Google India, the number of online shoppers is expected to cross 100 million by the end of next year, from 35 million ear, from 35 million n 2014. But lack of roust regulations and ata privacy laws as ell as the fragmentd nature of the starup ecosystem, do not llow much scope for esearch on cyber seurity , said experts."Under the Indian "Under the Indian regime, there are no self-regulatory mechanisms for putting out breach notifications," said Sunil Abraham, executive director of the Centre for Internet and Society. "The numbers available with a central body like Data Security Council of India will be a gross underestimation of the cases of breach."

"Most of the startups in India want to do everything in-house. This can lead to a potential compromise or lack of expertise on the security front, even if it is made priority," said Harshit Agarwal, founder and chief executive of Singapore-based Appknox, which provides security services to Paytm, Freecharge and Myntra among other clients.

Jabong founder and managing director Praveen Sinha said the online fashion retailer spends 15-20 per cent of its revenue on cyber security. But other startups contended that budgets and teams sizes are not accurate indicators of security preparedness.

"We do not work with any external security firms as we have realised that the average report is as good as our internal team can make," said Mukesh Singh, chief executive officer of online grocer ZopNow.

For more details visit https://cis-india.org/internet-governance/news/economic-times-june-24-2015-malavika-murali-and-payal-ganguly-most-emerging-firms-low-on-cyber-security-experts

Government's stand on internet governance draws applause from civil society organisations

praskrishna — 2015-06-29T15:40:07Z

India's decision to support the multistakeholder model of internet governance has drawn mostly applause from civil society organisations and individuals who have been following the issue, even as they cautioned that implementation will determine the success of the model.

The article by Neha Alawadhi was published in Economic Times on June 24, 2015. Sunil Abraham gave his inputs.

A day after communications and IT minister Ravi Shankar Prasad said India will support the multistakeholder model, reactions poured in on Tuesday, largely hailing the move to break the longstanding status quo on the issue.

"What matters now is how the approach articulated by the minister is translated into coordinated action across various fora, including ICANN, BRICS, and perhaps most crucially the UN WSIS+10 Review Process, which culminates in the meeting of the UN General Assembly in December 2015," said Vinay Kesari, a lawyer specialising in ICT and internet governance.

Not just at international fora, India also needs to figure out tistakeholder stand within the country, said Arun Mohan Sukumar, senior fellow at the Centre for Communication Governance, National Law University. "Multistakeholderism is very attractive in principle but, as the ICANN experience shows, it is susceptible to concerns like elite capture and lack of accountability to the general public," he said.

Prasad made the announcement in a video address during the opening ceremony of the Internet Corporation for Assigned Names and Numbers (ICANN)'s 53rd public meeting in Buenos Aires on Monday. ICANN manages the Domain Name System (DNS), which helps organise the internet with the allotment of domain names such as .com, .org and .net and has often come under the scanner for not being transparent enough.

The multistakeholder model involves all stakeholders such as businesses, civil society, governments, research institutions and non-governmental organisations in the dialogue, decision-making and implementation of policymaking and governance.

The external affairs ministry, telecom department and the department of electronics and IT have long held divergent views on issues of internet governance, with no clear stand being made at international platforms. While welcoming the announcement, Sunil Abraham, executive director at the Centre for Internet and Society, said the minister could have explained in greater detail, especially the ongoing transition of internet governance control from US government to a multistakeholder model.

"He also spoke about government being responsible for security and human rights over the internet, which adds to the confusion over whether India will really let the internet be a fair and free medium," he said.

Prasanth Sugathan, counsel for the Software Freedom Law Centre, said the government should seek the views of other stakeholders as well on the issue. "When you talk of multistakeholderism, it should not be only at an international level. It should also happen at a national level. The government should have other parties also contributing to issues of internet governance," he said.

For more details visit https://cis-india.org/internet-governance/news/economic-times-june-24-2015-neha-alawadhi-govts-stand-on-internet-governance-draws-applause-from-civil-society-organisations