We are anonymous, we are legion

Removing Barriers to Connectivity: Connecting the Unconnected

praskrishna — 2013-11-09T03:14:43Z

The workshop was organised by Internet Society and ETNO on October 23, 2013. Pranesh Prakash was a panelist.

Click to read the details on IGF website here

In the spirit of Paragraph 50 of the Tunis Agenda, our panel aims to highlight best practices that will help in “turning the digital divide into digital opportunity”, and will look at what can be done to promote broadband penetration and access to infrastructure. By forging better Internet governance environments through dialogue and interaction, stakeholders can work together to build better local infrastructure and more efficient deployment of infrastructure. Internet technical community experts, policy-makers, and development experts know well the challenges that exist in promoting deployment of Internet infrastructure. From public-works challenges to human capacity development, each country may have their own unique challenges. Provisions and policies must be put in place to ensure that broadband connections are developed, maintained and improved to sustain the rise in Internet traffic and particularly to accommodate the fast growth of video traffic. Against this backdrop, this workshop proposes to assemble a group of experts and practitioners to discuss observations from the field (practical examples and information) about how to help encourage connectivity and to “lift” barriers to connectivity. We also will identify barriers for investment faced by the private sector and tries to define ways to improve the policy landscape and identify a sustainable economic model to foster private investment. We plan to do this by identifying connectivity challenges and by identifying best practices for working with all stakeholders to manage those challenges. The developing country perspective will be reflected, and the workshop will specifically address what is needed in practical terms to connect the unconnected – eg low-cost devices, open systems and public / private partnerships. Workshop participants will engage the audience to encourage a dialogue that seeks feed-back from participants. An output of the workshop would be a collaborative “living” list of best practices and observations identified during the workshop that can serve as a baseline to be added to given national and local dynamics.

Panelists

Raj Singh, Internet Society, Male, Technical Community, SINGAPORE, Asia-Pacific Group
Martin Levy, Hurricane Electric, Male, Private Sector, UNITED STATES, Western Europe and Others Group - WEOG
Christoph Steck, Telefonica, S.A., Male, Private Sector, SPAIN, Western Europe and Others Group - WEOG
Jennifer Haroon, Google, Female, Private Sector, UNITED STATES, Western Europe and Others Group - WEOG
Simon Milner, Facebook, Male, Private Sector, UNITED KINGDOM, Western Europe and Others Group - WEOG
Pranesh Prakash, Centre for Internet & Society India, Male, Civil Society, INDIA, Asia-Pacific Group

For more details visit https://cis-india.org/news/igf-2013-removing-barriers-to-connectivity

Religious pluralism and freedom of expression in India, Europe and other countries

praskrishna — 2013-11-08T05:54:06Z

The Venice-Delhi Seminars are Reset-Dialogues on Civilizations project, in cooperation with the Jamia Millia Islamia, Seminar and the India Habitat Centre is organizing this event from October 10 to 12, 2013. Chinmayi Arun will be speaking at this event.

Click to read the full details published by Reset DOC on October 10, 2013.

This year, the Rome-based international association Reset-Dialogues on Civilizations will continue promoting dialogue between cultures and the culture of dialogue, reciprocal awareness between East and West and valorising the cultural, religious and political differences in a globalized world.

The schedule for autumn 2013 is as follows; the next Venice-Delhi Seminars will take place from October 10 to 12 in Delhi with the participation of the Indian magazine Seminar, and Jamia Millia Islamia, the Islamic University of Delhi and the India Habitat Centre. After the first meeting in the Indian capital in October 2010 on the subject “Minorities and Pluralism” (see Seminar 621, 2011) and a second meeting in Venice at the Giorgio Cini Foundation from October 18 to 20, 2012, dedicated to “Cultural differences in times of economic turbulence. Social tensions, cultural conflicts and policies of integration in Europe and India”, the Venice-Delhi Seminars have become a regular event, with one being held in Venice and the next in Delhi.

Pluralism

The project’s general framework is religious and cultural pluralism, seen through the perspective analysis of social and political processes and exchanges between East and West. Every encounter is an opportunity to deepen political, social and economic trends that run through society, like India’s and, increasingly, European society, where cultural, ethnic and political differences coexist and interact. Each meeting consists of five sessions lasting three days and papers presented by by experts and academics from all over the world attending roundtable discussions dedicated to the analysis of policies relating to minorities and the global challenge of the multi-ethnic composition of our societies.

The proceedings and more articles from our 2012 edition in Venice, Italy, are published in the September 2013 issue of Seminar magazine. You can visit its website here: www.india-seminar.com

10-12 October 2013 – Third Venice-Delhi Seminars
Coexistence and mutual respect, rights to be protected, freedom of speech and freedom of worship, blasphemy, the ethics of responsibility

The third Venice-Delhi Seminars will take place from October 10 to 12, 2013 in Delhi and will be dedicated to three days of study on the subject “Religious Pluralism and Freedom of Expression in India and Europe: Coexistence and Mutual Respect, Rights to Protect, Freedom of Speech and Freedom of Worship, Blasphemy, Ethics of Responsibility”. The objective of this second round of the “Plural Future” project will be to critically examine the growing tension between the democratic need to protect differences and the right to freedom of expression and the vital need for modern democracies to guarantee peaceful coexistence between majorities and minorities, as well as freedom of worship in conditions of cultural and religious pluralism protected from the extremist excesses of demands based on ethnicity and identity. We will therefore also analyze the public visibility of radical and extremist tendencies from the United States to Europe, to Muslim-majority countries and India.

Analysis will take place from a perspective paying particular attention to the manner in which this wave of violent opposition to dialogue and cultural differences challenges liberal democratic order, tested by a new need to implement rights and respect of minorities. Specific importance will be attributed to conditions experienced by Muslim and Christian minorities. The subject of respect between communities and the rights of minorities will be analyzed also in the European context. European, Indian and American scholars will attend.

Particular attention will paid to the media in this 2013 edition, and its role in portraying cultural and religious differences as well as its capacity to encourage or prevent the development of peaceful co-existence and an acceptance of differences in conditions of cultural, religious and ethnic pluralism.

The Reset-Dialogues on Civilizations project has been organised also so as to involve a large number of students, graduates and doctoral students.

For more details visit https://cis-india.org/news/resetdoc-october-10-2013-religious-pluralism-and-freedom-of-expression-in-india-europe-other-countries

Reliance-Jio Users Complain Of Porn Websites Being Blocked; Company Yet To Issue Official Statement

Admin — 2018-10-29T02:35:43Z

Going by a lot of Jio network users, it seems that Mukesh Ambani’s Jio has banned hundreds of porn sites, in compliance with the order of the Department of Telecommunications.

The blog post was published by Logical Indian on October 27, 2018. Pranesh Prakash was quoted.

The order came after the Uttarakhand High Court on September 28, 2018, had directed the Centre to block over 850 pornographic websites. Many Jio users have taken to social media to show their protests. On Twitter, several users have threatened even to change their network if Jio doesn’t lift the ban.

However, the telecom operator has not issued an official statement confirming the ban or on the development so far. The complaints have come to notice after many users pointed out on social media platforms like Reddit and Twitter that several porn websites are no longer available on Jio network, as reported by the Financial Times.

The High Court’s Order

According to The Indian Express, the Uttarakhand High court’s order came after the alleged gang rape of a 16-year old girl by four students at her boarding school in Dehradun. It is alleged that the accused were “instigated by watching pornography” on their mobile phones before committing the crime.

In the order, the division bench of acting chief, justice Rajiv Sharma and justice Manoj Kumar Tiwari said, “There shall be a direction to all the Internet Service License Holders to punctually obey the notification dated 31st July 2015 and to block the publication or transmission of obscene material in any electronic form.” It further added that material containing sexually explicit act or conduct and also publishing or transmitting of material depicting children in sexually explicit acts should also be blocked.

Same crackdown in 2015

In 2015, the Department of Telecommunications had issued an order to block 857 porn websites. They had asked all the internet service providers to take compliance with the order and block the websites. A lot of people protested against this crackdown by the government. However, after receiving a huge criticism from the people, the government partially lifted the ban. But, following the rule, nothing had happened, and the porn sites were functioning as before, reported The Guardian.

An Indian think tank, Centre for Internet and Society member Pranesh Prakash said “It is illegitimate because it is not as though the government has found these websites unlawful … This is a blanket ban, and the government has not thought through the consequences,” reported by The Guardian.

The Logical Indian Take

Watching or not watching porn is a person’s liberty. India is a democratic nation, and according to our constitution, we are conferred with the freedom of expression and the right to personal liberty. So, this non-confirmed porn ban by Reliance Jio would be getting into the freedom of an individual.

After China, India has the second-largest number of internet users in the world. And, Reliance-Jio is just the third user base in India. The ban would not affect the population much but is definitely a threat to the user rights.

For more details visit https://cis-india.org/internet-governance/news/the-logical-indian-october-27-2018-reliance-jio-users-complain-of-porn-websites-being-blocked

Reliance Jio data leaked on website : report

praskrishna — 2017-07-10T14:53:42Z

Reliance Jio customer data was leaked on independent website magicapk.com, including details such as names, mobile numbers and email IDs , said a report.

The article was published by Livemint on July 10, 2017.

Reliance Jio Infocomm Ltd’s customer data was allegedly leaked on an independent website, magicapk.com, a report said. Jio, which crossed the 100 million mark in February, barely six months after it was launched, ended the financial year with 108.9 million subscribers as of 31 March.

The report, published first in a late-night article on Sunday on Fonearena.com, alleged that “several sensitive details” were exposed, including customers’ first and last names, mobile numbers, email IDs, circles, SIM activation dates and even the Aadhaar numbers. The Aadhaar numbers, however, were redacted on magicapk.

“To my disbelief I found my own details in the database and also couple of my colleagues are affected too,” wrote Varun Krish, the author of the article. However, if you now click on Magicapk.com, it reads: “This Account has been suspended .” The Registrar of the site, according to the whois database, is Godaddy.com, LLC.

When contacted, a Reliance Jio spokesperson said, “We have come across the unverified and unsubstantiated claims of the website and are investigating it. Prima facie, the data appears to be unauthentic. We want to assure our subscribers that their data is safe and maintained with highest security. Data is only shared with authorities as per their requirement. We have informed law enforcement agencies about the claims of the website and will follow through to ensure strict action is taken.”

Fonearena.com, on its site, has responded with a: “We still stand by our story.”

The report assumes significance because the site exposed redacted Aadhaar card details. There are nearly 1.2 billion Aadhaar number holders in the country. Aadhaar aims to plug leakages in the delivery of state benefits, such as subsidized grains to the poor, and aid in generating a savings of about Rs70,000 crore a year for the government. But data breaches have rattled citizens, especially since India does not have a Privacy Act.

In March, the Unique Identification Authority of India (UIDAI) blacklisted a common services centre for 10 years after it shared the Aadhaar details of former cricket captain Mahendra Singh Dhoni. On 25 April, Mint reported that many government departments, including the ministry of drinking water and sanitation, the Jharkhand Directorate of Social Security, and the Kerala government’s pension department, had published Aadhaar numbers of beneficiaries of the schemes they run in violation of the Aadhaar Act .

On 1 May, Bengaluru-based think tank Centre for Internet and Society (CIS) reported that a Central government ministry and a state government may have made public up to 135 million Aadhaar numbers .

Under the Aadhaar (Targeted Delivery of Financial Subsidies, Benefits and Services) Act, 2016, the unique identity number is mandatory only to receive social welfare benefits. However, tagging of the Aadhaar number is being made mandatory by the government for various schemes including PAN (permanent account number) accounts for taxation. On 7 July, the Supreme Court refused to pass any interim order against the mandatory use of Aadhaar for various government schemes. It, instead, suggested that petitioners call for immediate formation of a Constitution bench to decide on the case .

News of the alleged data leak also comes at a time when there have been a spate of cyber hacks.

For instance, just when companies started believing that WannaCry—the malware that held over 200,000 individuals across 10,000 organizations in nearly 100 countries to ransom—was on the wane, a virus christened GoldenEye (a variant of the Petya ransomware) by security firm Bitdefender Labs attacked companies, mostly in Ukraine. And while the target primarily appeared to be European countries, the ransomware was also reported to be making inroads in countries like India.

For more details visit https://cis-india.org/internet-governance/news/livemint-july-10-2017-reliance-jio-data-leaked-on-website-report

Relationship Between Privacy and Confidentiality

vipul — 2014-12-30T14:27:02Z

The laws of breach of confidentiality and breach of privacy at first glance seem very similar to each other. If a doctor releases health information relating to a patient that s/he is treating then such an act would give rise to a claim both under the law of privacy as well as under the law of confidentiality.

Similar is the case with financial information released by a bank, etc. This makes one wonder exactly where and how it is that the law of breach of privacy intersects with that of the law of confidentiality. An enquiry into such a complex question of law requires a deeper appreciation of the relationship between these two different principles of law which require a better understanding of the origins and evolutions of these principles.

In this paper we shall try to explore the origins of both the law of privacy as well as confidentiality as they have evolved in the field of tort law in India. Although our primary focus is Indian law, however in order to understand the evolution of these principles it is necessary to discuss their evolution in three common law jurisdictions, viz. the United States of America, the United Kingdom and India. The reason for an analysis of these three jurisdictions will become clear as the reader goes further into this paper, however for ease of reference it would be better if the reason is clarified here itself. The concept of a right against breach of confidentiality has existed in English common law for a very long time, however the concept of a claim for breach of privacy originated only in American law, other than some statutory protection granted in the last couple of decades, has still not been granted recognition in English common law.

After a discussion of the evolution of these principles in both American and English law, we will then discuss these principles as they exist in Indian law. This discussion will (or should) at once become easier to understand and digest because of the deeper understanding of the interplay between these two principles gained from a reading of the first two chapters.

Privacy Torts: American Origins

Looking at the origins of privacy law it has been argued by many academics that the law of privacy in common law has its origins in an article published by Samuel Warren and Louis Brandies in the Harvard Law Review in 1890.[1] Warren and Brandeis suggested that one could generalise certain cases on defamation, breach of copyright in unpublished letters, trade secrets and breach of confidence as all based upon the protection of a common value which they called privacy.[2] The authors relied upon the existing body of cases relating to the law of confidentiality and interpreted it in a way so as to create a "right to privacy" which has evolved into a right quite different from the common understanding of confidentiality.

Although there are certain criticisms of the article by Warren and Brandeis, the background in which the article was written and the lacuna that these two scholars were trying to fill in the law of confidentiality as it existed at that time gives some context to the reasons why they felt the need to move away from the existing principles and propose a new principle of law. Samuel Warren and Louis Brandies were both worried about the invasion of personal space by the advent of the news and print media which was experiencing a boom during the late 19^th century. [3] Warren and Brandeis were worried that although the existing body of law on confidentiality would protect a person from having their picture put on a postcard by their photographer without their consent,[4] however if there was no relationship between the two persons there would be no remedy available to the aggrieved party. [5]

One of the criticisms of Warren and Brandeis' article is that to propose the existence of a right to privacy they relied heavily on the English case of Prince Albert v. Strange[6]. It has been proposed by some academics that this was a case which dealt with confidentiality and literary property which was characterized by Warren and Brandeis as a privacy case. [7] In this case Prince Albert sought to restrain publication of otherwise unpublished private etchings and lists of works which were made by Queen Victoria. The etchings appeared to have been removed surreptitiously from the private printer to whom these etchings were given and came into the possession of one Mr. Strange who wanted to print and sell the etchings. The case specifically rejected the existence of a right to privacy in the following words:

"The case is not put by the Plaintiff on any principle of trust or contract, but on property; there is nothing to show contract or confidence. It cannot be maintained that privacy constitutes property, or that the Court will interfere to protect the owner in the enjoyment of it; Chadler v. Thompson (3 Camp. 80). In William Aldred's case (9 Rep. 58 b.), Wray C. J. said, "The law does not give an action for such things of delight"."

Infact the case mentioned the term "privacy" only once, but that statement was made in the context of whether a delay in granting an injunction in such cases would defeat the entire purpose of the suit and was not preceeded or followed by any discussion on a distinct right to privacy:

"In the present case, where privacy is the right invaded, postponing the injunction would be equivalent to denying it altogether. The interposition of this Court in these cases does not depend upon any legal right, and to be effectual, it must be immediate."

However, Warren and Brandeis interpreted this case in a different manner and came to the conclusion that the "principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality".[8]

The article further incorporated the language of Judge Cooley's treatise (Cooley on Torts)[9] which used the phrase "the right to be let alone". They said that identifying this common element should enable the courts to declare the existence of a general principle which protected a person's appearance, sayings, acts and personal relations from being exposed in public. [10] However it has been argued by some scholars that this phrase was not used by Judge Cooley with as much import as has been given by Warren and Brandeis in their article. The phrase was used by Judge Cooley in mere passing while discussing why tort law protected against not only batteries but also assaults with no physical contact, and had no connection with privacy rights. [11]

Warren and Brandeis' article started getting almost immediate attention and some amount of recognition from various quarters,[12] though it cannot be said that it was universally well received. [13] However over time this tort of privacy slowly started getting recognized by various Courts throughout the United States and got a huge boost when it was recognized in a brief section in the First Restatement of Torts published in 1939. The right to privacy in American jurisprudence got another boost and became fully entrenched later on specially with the endorsement of Dr. William Prosser who discussed privacy in his treatise on the law of torts, the subsequent editions of which had a more and more elaborate discussion of the tort of privacy. This development of the law was further enhanced by Dr. Prosser's position as a reporter of the Second Restatement of Torts, which imported a four part taxonomy of the privacy tort which had been suggested by Dr. Prosser in his previous works.[14]

Thus we see how, beginning with the article by Warren and Brandeis in 1890, the privacy tort in American jurisprudence developed over the years and became further entrenched due to the influence of William Prosser and his works on the tort of privacy.

Privacy Torts in England: An Elaborate Principle of Confidentiality

The law of confidentiality in English law, as applied in certain specific contexts such as attorney client privileges, [15] doctor patient confidentiality,[16] etc. has been applied since hundreds and even though cases relating to the breach of confidentiality had already existed, however the case of Prince Albert v. Strange,[17] be it due to the interesting facts or the fame of the parties involved, is still considered as the clearest and most well established precedent for the tort of breach of confidence.[18] Similar cases relying upon this tort kept being decided by the English Courts but the tort of confidentiality was further cemented in English common law by the case of Saltman Engineering Co. v. Campbell Engineering Co.,[19] which expanded the application of the principle by holding that the obligation to respect confidence is not limited to only instances where parties have a contractual relationship.

The seminal case on the tort of breach of confidentiality in English law was that of Coco v. A.N Clark (Engineers) Ltd., [20] where an inventor enjoined a moped manufacturer from using design ideas communicated by the inventor during failed contractual negotiations with the manufacturer.[21] In this case Megarry J., held that a case of breach of confidence normally requires three elements to succeed, apart from contract, (i) the information itself must have the necessary quality of confidence about it, (ii) that information must have been imparted in circumstances importing an obligation of confidence, and (iii) there must be an unauthorised use of that information to the detriment of the party communicating it.

Relying on the principles enunciated in the above cases and developed by subsequent decisions, English law relating to the tort of breach of confidentiality developed into a robust and flexible body of law protecting personal and commercial information from disclosure. Infact by the late 1990s, English law was very broad and gradually expanding in its scope of the tort of breach of confidentiality and Courts had stretched the idea of an obligation of confidence so as to include cases where there was not even any communication between the parties, such as secret photography and wiretapping. Further since third parties had already been reposed with an obligation of confidence when they knowingly received confidential material even if they did not have any relationship with the plaintiff, therefore the law of confidence could be extended to parties outside the relationship in which the confidence was initially made. This, although was not as broad and overarching as the American privacy tort, still had the ability to cover a wide range of cases. [22]

While English Courts on the one hand kept trying to expand the scope of the confidentiality tort, they also categorically rejected the existence of a privacy tort on the lines developed under American jurisprudence. The suggestion of the existence of such a privacy tort in English law was most recently rejected by the House of Lords in the case of Wainwright v. Home Office,[23] by Lord Bingham in the following words:

"What the courts have so far refused to do is to formulate a general principle of "invasion of privacy" (I use the quotation marks to signify doubt about what in such a context the expression would mean) from which the conditions of liability in the particular case can be deduced."

In this case the plaintiffs made a claim against the prison authorities for strip searching them before they went to meet an inmate and since the incident occurred before the coming into force of the Human Rights Act, 1998 of the UK had not yet come into force, so the plaintiffs also argued that there was an existing tortuous remedy based on a breach of privacy in common law. While discussing whether English Courts were amenable to or had ever recognized such a common law tort of privacy, the House of Lords cited decisions such as Malone v Metropolitan Police Comr, [24] and R v Khan (Sultan),[25] in both of which the courts refused to recognize a general right to privacy in the context of tapping of telephones.

The absence of any general cause of action for invasion of privacy was also acknowledged by the Court of Appeal in the context of a newspaper reporter and photographer invading into a patient's hospital bedroom in an effort to purportedly interview him and taking photographs, in the case of Kaye v Robertson.[26]

Thus relying on the above line of cases the House of Lords concluded that a general right to privacy does not exist in English common law:

"All three judgments are flat against a judicial power to declare the existence of a high-level right to privacy and I do not think that they suggest that the courts should do so. The members of the Court of Appeal certainly thought that it would be desirable if there was legislation to confer a right to protect the privacy of a person in the position of Mr Kaye against the kind of intrusion which he suffered, but they did not advocate any wider principle."

Thus it is clear that English Courts have time and again denied the existence of an American style right to privacy as emanating from common law. The Courts have instead tried to expand and widen the scope of the tort of confidentiality so as to cover various situations which may arise due to the pervasiveness of technology and which the traditional interpretation of the law of confidentiality was not equipped to deal with.

Therefore it is now a little clearer that the reason for the existence of the confusion between the torts of privacy and confidentiality is that the right to privacy had its origins in the common law precedents but the right to privacy developed as a distinct and separate right in America, primarily due to the influence of Warren and Brandeis's article as well as the works of William Prosser, whereas the Courts in England did not adopt this principle of privacy and instead favored a much more elaborate right to confidentiality. In the Indian context, this has led to some amount of confusion because, Indian case laws, as will be seen in the following chapter, borrowed heavily from American jurisprudence when discussing the right to privacy and not all cases have been able to clearly bring out the difference between the principles of privacy and confidentiality.

Indian Law

Tort of Breach of Privacy

Any analysis of the right to privacy in India, be it in the realm of constitutional law or tort law almost always includes within its ambit a discussion of the two celebrated cases of Kharak Singh v. Union of India[27] and Govind v. State of M.P.,[28] which elevated the right to privacy to the pedestal of a fundamental right under Indian law. However, an unintended consequence of this has been that pretty much every commentator on Indian law includes a discussion of these two cases when discussing the right to privacy, be it under constitutional law or under tort law. However, there is one problem with such an analysis of the right to privacy, viz. these two cases were dealing with a pure constitutional law question and relied upon American case laws to read into Article 21 an inbuilt right to privacy. However from a strictly tort law perspective, these cases are not relevant at all, and the seminal case for the tort of breach of privacy would have to be the Apex Court decision in R. Rajagopal v. State of Tamil Nadu, [29] which specifically recognized this distinction and stated that the right to privacy has two different aspects, (i) the constitutional right to privacy, and (ii) the common law right to privacy.

The facts of the R. Rajagopal case revolve around the publishing of the autobiography written by the prisoner Auto Shankar, who had been placed in jail for committing multiple murders. The autobiography contained proof of involvement of many IAS, IPS officers in his crimes. Although Shankar had initially requested that the magazine print his autobiography, he later requested that his story not be published. The publishers held that it was their right to publish the autobiography while the IPS and IAS officers on the other hand claimed that Auto Shankar was trying to defame them and wanted to ban its publication. The Supreme Court in this case, implicitly accepts the existence of a right to privacy under Indian tort law when

"21.The question is how far the principles emerging from the United States and English decisions are relevant under our constitutional system. So far as the freedom of press is concerned, it flows from the freedom of speech and expression guaranteed by Article 19(1)(a). But the said right is subject to reasonable restrictions placed thereon by an existing law or a law made after the commencement of the Constitution in the interests of or in relation to the several matters set out therein. Decency and defamation are two of the grounds mentioned in clause (2). Law of torts providing for damages for invasion of the right to privacy and defamation and Sections 499/500 IPC are the existing laws saved under clause (2). "

Discussing the distinction between the two aspects of the right to privacy, the Court held:

"The right to privacy as an independent and distinctive concept originated in the field of Tort law, under which a new cause of action for damages resulting from unlawful invasion of privacy was recognized. This right has two aspects which are but two faces of the same coin (1) the general law of privacy which affords a tort action for damages resulting from an unlawful invasion of privacy and (2) the constitutional recognition given to the right to privacy which protects personal privacy against unlawful governmental invasion. The first aspect of this right must be said to have been violated where, for example, a person's name or likeness is used, without his consent, for advertising or non-advertising purposes or for that matter, his life story is written whether laudatory or otherwise and published without his consent as explained hereinafter. In recent times, however, this right has acquired a constitutional status."

After a discussion of the various arguments presented by the parties (a number of which are not relevant for the purposes of this paper), the Supreme Court laid down the following principles regarding freedom of the press and the right to privacy:

(1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone". A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.

(2) The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interests of decency [Article 19(2)] an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised in press/media.

(3) There is yet another exception to the rule in (1) above - indeed, this is not an exception but an independent rule. In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be liable for damages. It is equally obvious that in matters not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen, as explained in (1) and (2) above. It needs no reiteration that judiciary, which is protected by the power to punish for contempt of court and Parliament and legislatures protected as their privileges are by Articles 105 and 104 respectively of the Constitution of India, represent exceptions to this rule."

The above principles have ruled the roost on the issue of privacy and freedom of the press under Indian law, with certain minimal additions. It has been held by the Delhi High Court that even though a claim for damages may be made under tort law for breach of privacy, the Court may even grant a pre-publication injunction to prevent a breach of privacy.[30] The principles laid down inR. Rajagopal were further clarified in the case of Indu Jain v. Forbes Incorporated, [31] where a case was filed by Indu Jain in the Delhi High Court to stop Forbes magazine from featuring her family in the Forbes List of Indian Billionaires. After a discussion of the various authorities and cases on the issue the Court summarized the principles relating to privacy and freedom of the press and applying those principles rejected the claim of the plaintiff. However for the purposes of our discussion these principles are extremely useful, and have been listed below:

"(V) Public or general interest in the matter published has to be more than mere idle curiosity.

(VI) Public figures like public officials play an influential role in ordering society. They have access to mass media communication both to influence the policy and to counter-criticism of their views and activities. The citizen has a legitimate and substantial interest in the conduct of such persons and the freedom of press extends to engaging in uninhibited debate about the involvement of public figures in public issues and events. (Ref. (1994) 6 SCC 632 R. Rajagopal & Anr. Vs. State of Tamil Nadu & Others Para 18).

(VII) Right to privacy that rests in an individual may be waived by him by express or implied consent or lost by a course of conduct which estops its assertions. Such implication may be deduced from the conduct of the parties and the surrounding circumstances.

(VIII) A public person or personage is one who by his standing, accomplishment, fame, mode of life or by adopting a profession or calling which gives the public a legitimate interest in his doings, affairs and character has so become a public figure and thereby relinquishes at least a part of his privacy.

(IX) The standard to be adopted for assessing as to whether the published material infracts the right to privacy of any individual is that of an ordinary man of common sense and prudence and not an out of ordinary or hyper-sensitive man. (Ref. (2007) 1 SCC 143 Ajay Goswami v. UOI & Ors.).

(X) Even though in this country, the freedom of press does not have presumptive priority as in some other jurisdictions including the United States of America, however the importance of a free media of communication to a healthy democracy has to receive sufficient importance and emphasis.

(XI) In evaluating a relief to be granted in respect of a complaint against infraction of the right to privacy, the court has to balance the rights of the persons complaining of infraction of right to privacy against freedom of press and the right of public to disclosure of newsworthy information. Such consideration may entail the interest of the community and the court has to balance the proportionality of interfering with one right against the proportionality of impact by infraction of the other.

(XII) The publication has to be judged as a whole and news items, advertisements and published matter cannot be read without the accompanying message that is purported to be conveyed to public. Pre-publication censorship may not be countenanced in the scheme of the constitutional framework unless it is established that the publication has been made with reckless disregard for truth, publication shall not be normally prohibited. (Ref.: (2007) 1 SCC 143 Ajay Goswami Vs. UOI & Ors.; (1994) 6 SCC 632 R. Rajagopal & Anr. Vs. State of Tamil Nadu & Others and AIR 2002 Delhi 58 Khushwant Singh & Anr. Vs. Maneka Gandhi)."

Thus we see that the right to privacy in Indian law, even in the realm of tort law has had an inextricable connection with constitutional principles and constitutional cases have had a very huge impact on the development of this right in India. However a perusal of these cases shows that the right to privacy is available only insofar as information which is personal in nature, however in situations where the information is non-personal in nature the right to privacy may not be as useful and this is where, as we shall see below, the tort of breach of confidentiality comes in to fill the void.

Tort of Breach of Confidentiality

While there have been a number of landmark cases in India on the issue of breach of confidence in a contractual or a statutory setting, these cases are not very relevant for a discussion on the tort of breach of confidentiality. This is not to say that the tort of breach of confidentiality is non-existent in Indian law, the Courts here have time and again accepted that there does exist such a tortuous remedy in certain situations. We shall now try to examine the contours of this principle of torts by discussing some of the landmark cases on the topic.

In the case of Petronet LNG Ltd. v. Indian Petro Group and Another, ^{^[32]} the Delhi High Court considered a claim by a corporation seeking to prevent a news and media group from reporting its confidential negotiations and contracts with counterparties. The claim was based upon both the right to privacy as well as the right to confidentiality but in this case the court, looking at the fact that the plaintiff was a corporation and also the type of information involved denied the claim on the right to privacy. However, it did allow the injunction claimed by the corporation based on the right to confidentiality. Summarizing its discussion of the right to confidentiality, the Court stated thus:

"49. It may be seen from the above discussion, that originally, the law recognized relationships- either through status (marriage) or arising from contract (such as employment, contract for services etc) as imposing duties of confidentiality. The decision in Coco (1969) marked a shift, though imperceptibly, to a possibly wider area or zone. Douglas noted the paradigm shift in the perception, with the enactment of the Human Rights Act; even before that, in Attorney General (2) (also called the Spycatcher case, or the Guardian case) the Court acknowledged that there could be situations -where a third party (likened to a passerby, coming across sensitive information, wafting from the top of a building, below) being obliged to maintain confidentiality, having regard to the nature and sensitivity of the information….."

While discussing the factors that the Court would have to consider while deciding a claim based on the breach of confidentiality, the Delhi High Court relied upon and quoted from English judgments as follows:

"50. Even while recognizing the wider nature of duty - in the light of the Human Rights Act, 1998, and Articles 8 and 10 of the European Convention, it was cautioned that the court, in each case, where breach of confidentiality, is complained, and even found- has to engage in a balancing process; the factors to be weighed while doing so, were reflected in A v. B Plc [2003] QB 195; the latest judgment in H.R.H. Prince of Wales indicates that the court would look at the kind of information, the nature of relationship, etc, and also consider proportionality, while weighing whether relief could be given:

"The court will need to consider whether, having regard to the nature of the information and all the relevant circumstances, it is legitimate for the owner of the information to seek to keep it confidential or whether it is in the public interest that the information should be made public….

..In applying the test of proportionality, the nature of the relationship that gives rise to the duty of confidentiality may be important."

Holding that the principles discussed in the English cases given in the context of individual rights of confidentiality would also hold good in the case of corporations, the Court held that:

"51. Though the reported cases, discussed above, all dealt with individual right, to confidentiality of private information (Duchess of Argyll;Frazer; Douglas; Campbell and H.R.H. Prince of Wales) yet, the formulations consciously approved in the Guardian, and Campbell, embrace a wider zone of confidentiality, that can possibly be asserted. For instance, professional records of doctors regarding treatment of patients, ailments of individuals, particulars, statements of witnesses deposing in investigations into certain types of crimes, particulars of even accused who are facing investigative processes, details victims of heinous assaults and crimes, etc, may, be construed as confidential information, which, if revealed, may have untoward consequences, casting a corresponding duty on the person who gets such information - either through effort, or unwittingly, not to reveal it. Similarly, in the cases of corporations and businesses, there could be legitimate concerns about its internal processes and trade secrets, marketing strategies which are in their nascent stages, pricing policies and so on, which, if prematurely made public, could result in irreversible, and unknown commercial consequences. However, what should be the approach of the court when the aggrieved party approaches it for relief, would depend on the facts of each case, the nature of the information, the corresponding content of the duty, and the balancing exercise to be carried out. It is held, therefore, that even though the plaintiff cannot rely on privacy, its suit is maintainable, as it can assert confidentiality in its information."

Apart from privacy, the law of confidentiality has been used in cases where there has been a definite harm to one side but none of the other laws provide for any relief. This was the situation in the case of Zee Telefilms Limited v. Sundial Communications Pvt Ltd, [33] where a company which developed television and media programming had discussed their concept of a new show with a network during negotiations which could not be finalized. The network however subsequently tried to start a new show which was based on the same concept and idea as the one presented by the plaintiff company. The plaintiff sued the network, inter alia on a claim for breach of confidential information and asked that the network be prevented from airing its show. In this case the plaintiff's claim based on copyright was rejected because copyright only subsists on the expression of an idea and not the idea itself, therefore the tort of breach of confidentiality had to be resorted to in order to give relief to the plaintiffs. Discussing the difference between confidentiality and copyright, the Division Bench of the Bombay High Court held:

"10. The law of the confidence is different from law of copyright. In paragraph 21.2 (page 721), [of Copinger and Skone-James on Copyright (13th Edn.)] the learned author has pointed out that right to restrain publication of work upon the grounds, that to do so would be breach of trust of confidence, is a broader right than proprietary right of copyright. There can be no copyright of ideas or information and it is not infringement of copyright to adopt or appropriate ideas of another or to publish information received from another, provided there is no substantial copying of the form in which those ideas have, or that information has, been previously embodied. But if the ideas or information have been acquired by a person under such circumstances that it would be a breach of good faith to publish them and he has no just case or excuses for doing so, the court may grant injunction against him. The distinction between the copyright and confidence may be of considerable importance with regard to unpublished manuscripts / works submitted, and not accepted, for publication or use. Whereas copyright protects material that has been reduced to permanent form, the general law of confidence may protect either written or oral confidential communication. Copyright is good against the world generally while confidence operates against those who receive information or ideas in confidence. Copyright has a fixed statutory time limit which does not apply to confidential information, though in practice application of confidence usually ceases when the information or ideas becomes public knowledge. Further the obligation of confidence rests not only on the original recipient, but also on any person who received the information with knowledge acquired at the time or subsequently that it was originally given in confidence."

A similar view, in a similar fact situation Single Judge Bench of the Delhi High Court had also came to a similar conclusion in the case of Anil Gupta v. Kunal Das Gupta.[34]

The law of confidentiality has also come to the rescue of employers in attempting to prevent important business and client information from being taken or copied by the employees for their personal gain. In the case of Mr. Diljeet Titus, Advocate v. Mr. Alfred A. Adebare, [35] the Delhi High Court had to decide a claim based on breach of confidentiality when some ex-employees of a law firm tried to take away client lists and drafts of legal agreements and opinions from their earlier employer-law firm. Discussing the importance of preventing employees or former employees from away which such actions, the Court held as follows:

"81. I am in full agreement with the views expressed in Margaret, Duchess of Argyll (Feme Sole) v. Duke of Argyll and Ors. (1965) 1 All ER 611, that a Court must step in to restrain a breach of confidence independent of any right under law. Such an obligation need not be expressed but be implied and the breach of such confidence is independent of any other right as stated above. The obligation of confidence between an advocate and the client can hardly be re-emphasised. Section 16 of the Copyright Act itself emphasizes the aspect of confidentiality de hors even the rights under the Copyright Act. If the defendants are permitted to do what they have done it would shake the very confidence of relationship between the advocates and the trust imposed by clients in their advocates. The actions of the defendants cause injury to the plaintiff and as observed by Aristotle: 'It makes no difference whether a good man defrauds a bad one, nor whether a man who commits an adultery be a good or a bad man; the law looks only to the difference created by the injury."

The Court allowed the claim of the law firm holding that the relationship between a law firm and its attorneys is of a nature where information passed between them would be covered by the law of confidence and would not be allowed to be copied or used by the attorneys for their individual gain.

Recently, in 2009, the principles relating to breach of confidentiality under Indian law were very succinctly summarized by the Bombay High Court in the case of Urmi Juvekar Chiang v. Global Broadcasting News Limited,[36] where in a fact situation similar to the ones in Zee Telefilms case and the Anil Gupta case, the Court discussed a number of previous cases on breach of confidentiality and laid down the following principles:

"8. The principles on which the action of breach of confidence can succeed, have been culled out as

(i) he (Plaintiff) had to identify clearly what was the information he was relying on;

(ii) he (Plaintiff) had to show that it was handed over in the circumstances of confidence;

(iii) he (Plaintiff) had to show that it was information of the type which could be treated as

confidential; and

(iv) he (Plaintiff) had to show that it was used without licence or there was threat to use it…… It is further noted that at interlocutory stage, the Plaintiff does not have to prove (iii) and (iv) referred to above, as he will at the trial. But the Plaintiff must address them and show that he has atleast seriously arguable case in relation to each of them."

From the above discussion on Indian law it is clear that the Courts in India have tried to incorporate the best of both worlds, in the sense that it has taken and adopted the principle of a right to privacy, a breach of which would give rise to an action in torts, from American jurisprudence while rejecting the stand taken by English Courts in rejecting such a right to privacy. However, Indian Courts have often referred to the decisions given by English Courts as well as American Courts in interpreting the principle of the right to confidentiality. Therefore on an overall examination it would appear that insofar as the rights to privacy and confidentiality are concerned, Indian jurisprudence has more in common with American law rather than English law.

Conclusion

The law of privacy does not seem to have existed as a recognizable principle of law before it was propounded in the article by Warren and Brandeis in the Harvard Law Review in 1890. It slowly gained traction in American jurisprudence over the twentieth century but was rejected outright by the Courts in England, which preferred to follow the principle of confidentiality rather than privacy and tried to expand that old principle to fit newer and newer situations. Since Indian law borrows heavily from English law and to a smaller extent also from American law, the Courts in India have accepted both, the principle of a right to privacy as well as a right to confidentiality. This is not to say that the Courts in America do not recognize a right to confidentiality and only accept a right to privacy. Infact American Courts, just like their Indian counterparts, recognize both a right to confidentiality as well as a right to privacy.

Since Indian courts accept both the concept of breach of privacy as well as breach of confidentiality, one should not try to figure out if a particular circumstance is more appropriate for the one over the other, but actually use both principles to supplement one another for achieving the same objective. For example in situations where the conditions required for the application of the law of confidentiality do not exist such as disclosure of personal information by a person who did not receive it in a confidential capacity, one could apply the principle of privacy to prevent such information being disclosed or claim a remedy after disclosure. On the other hand if the information to be disclosed is not of a personal nature then one could try to utilize the law of confidentiality to prevent disclosure or claim damages.

[1] Harry Kalven, Jr., Privacy in Tort Law-Were Warren and Brandeis Wrong?, "31 Law & Contemp. Problems". 326, 327 (1966). Elbridge L. Adams, The Right of Privacy, and Its Relation to the Law of Libel, 39 AM. L. REV. 37 (1905).

[2] Wainwright v. Home Office, 2003 UKHL 53.

[3] Neil M. Richards & Daniel J. Solove, Privacy's Other Path: Recovering the Law of Confidentiality, "96 Georgetown Law Journal", 123 at 128 and 132 (2007).

[4] Pollard v. Photographic Co., (1888) 40 Ch. D. 345.

[5] It is also said that this concern arose out of the personal experience of Samuel Warren, whose wedding announcement as well as the report on his sister-in-law's death in the newspapers did not go down well with him. http://www.english.illinois.edu/-people-/faculty/debaron/380/380powerpoint/privacy.pdf

[6] (1848) 41 Eng. Rep. 1171 (Ch.).

[7] Neil M. Richards & Daniel J. Solove, Privacy's Other Path: Recovering the Law of Confidentiality, "96 Georgetown Law Journal", 123 (2007).

[8] Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, "4 Harvard Law Review", 193 at 207 (1890).

[9] Thomas M. Cooley, The Law Of Torts, 2^nd Ed., 1888, p. 29.

[10] Wainwright v. Home Office, 2003 UKHL 53.

[11] Neil M. Richards & Daniel J. Solove, Privacy's Other Path: Recovering the Law of Confidentiality, "96 Georgetown Law Journal", 123 (2007).

[12] As early as in 1891, the case of Schuyler v. Curtis, 45 NYS 787 (Sup. Ct., 1891) involving the erection of a statue of a dead person, recognized the principle proposed in Warren and Brandeis' article.

[13] Most famously the case of Robertson v. Rochester folding Box Co., 64 NE 442 (NY 1902) where the New York Court of appeals specifically rejected a the existence of a right to privacy as proposed by Warren and Brandeis.

[14] Neil M. Richards & Daniel J. Solove, Privacy's Other Path: Recovering the Law of Confidentiality, "96 Georgetown Law Journal", 123 (2007).

[15] Bredd v. Lovelace, (1577) 21 Eng. Rep. 33 (Ch.)

[16] For doctor patient confidentiality we need look no further than the Hippocratic Oath itself which states "Whatever, in connection with my professional service, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge, as reckoning that all such should be kept secret".

[17] (1848) 41 Eng. Rep. 1171 (Ch.).

[18] Neil M. Richards & Daniel J. Solove, Privacy's Other Path: Recovering the Law of Confidentiality, 96 GEORGETOWN LAW JOURNAL, 123 (2007).

[19] [1948] 65 RPC 203.

[20] [1969] RPC 41 (UK).

[21] Neil M. Richards & Daniel J. Solove, Privacy's Other Path: Recovering the Law of Confidentiality, 96 GEORGETOWN LAW JOURNAL, 123 (2007).

[22] Neil M. Richards & Daniel J. Solove, Privacy's Other Path: Recovering the Law of Confidentiality, 96 GEORGETOWN LAW JOURNAL, 123 (2007).

[23] 2003 UKHL 53.

[24] [1979] Ch 344.

[25] [1997] AC 558.

[26] [1991] FSR 62

[27] http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=3641 .

[28] http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=6014 .

[29] http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=11212 .

[30] Phoolan Devi v. Shekhar Kapoor and others, http://indiankanoon.org/doc/793946/.

[31] http://lobis.nic.in/dhc/GM/judgement/25-01-2010/GM12102007S21722006.pdf

[32] http://lobis.nic.in/dhc/SRB/judgement/25-04-2009/SRB13042009S11022006.pdf

[33] http://indiankanoon.org/doc/603848/ .

[34] http://indiankanoon.org/doc/1709727/ .

[35] http://delhicourts.nic.in/may06/DILJEET%20TITUS%20VS.%20ALFED%20A.%20ADEBARE.htm .

[36] http://indiankanoon.org/doc/582634/ .

For more details visit https://cis-india.org/internet-governance/blog/relationship-between-privacy-and-confidentiality

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

Regulation, misuse concerns still dog DNA profiling bill

praskrishna — 2015-09-13T08:32:48Z

Experts fear such data could be used for non-forensic purposes and are concerned about the vast powers to be vested in proposed DNA profiling board.

The article by Nikita Mehta was published in Livemint on July 29, 2015. Sunil Abraham gave his inputs.

A bill aimed at creating a DNA database of offenders, slated for introduction in the monsoon session of Parliament, has been criticized by experts who fear that such information could be used for non-forensic purposes and are concerned about the vast powers sought to vested in a proposed DNA profiling board.

Despite changes made by the Department of Biotechnology, the final draft of the Human DNA Profiling Bill 2015 has drawn flak from the Centre for Internet and Society (CIS), a non-profit group that works on policy issues.

The bill seeks Parliament’s approval for plans to create a DNA bank of various offenders in order to prevent repeat offences and to regulate the process by defining infrastructure, training, qualifications, facilities and legalities.

The government says that conducting DNA analysis involves working with sensitive information which, if misused, can cause harm to a person or to society. There is, thus, a need to restrict the use of DNA profiles through an Act of Parliament only for lawful purposes of establishing someone’s identity in a criminal or civil case and for other specified purposes.

The bill seeks to establish standards for laboratories, staff qualifications, training, proficiency testing, collection of body substances, custody trail from collection to reporting and a data bank with policies of use and access to information, its retention and deletion.

The offences for which the database can be maintained range from criminal and civil offences to paternity disputes.

“We need this bill because there are so many unresolved cases. A judge can use this data as material evidence and speedy justice can be served,” said M.K. Bhan, former secretary of the department of biotechnology. “Tremendous amount of effort has been taken to consult all possible parties and the bill has been drafted and redrafted over the years,” Bhan added.

In its note of dissent, CIS raised objections about DNA profiling and DNA samples being used for identifying victims of accidents or disasters, for missing persons and in civil disputes. It also objected to the creation and maintenance of a population statistics databank that is to be used, as prescribed, for the purposes of identification.

“One problem is accuracy. Unlike comparisons between digital signatures which can either have matches or no matches, biometric signatures will have a level of accuracy, so there can be a few false matches. Hence unnecessary widening of the data will reduce the accuracy of this system,” said Sunil Abraham, executive director at CIS.

CIS further noted that a DNA Profiling Board proposed by the bill will have vast powers, including those of authorizing procedures for DNA profiling for civil and criminal investigation, drawing up a list of instances for the application of human DNA profiling and undertaking any other activity which in the opinion of the Board advances the purposes of the Act. The DNA Profiling Board will consist of eminent scientists, administrators and law enforcement officers who will administer and carry out other functions assigned to it under the Act.

“Usually when regulators are created, the mandate is extremely clear. In this bill it is quite vague and there should not be so many things left to the discretionary powers of the board,” said Abraham who was part of the consultation process for the bill. He added that a number of changes have been introduced to the bill, including reduction of powers of the board, tighter definitions and more privacy safeguards.

“Any regulatory system requires external auditing, that should be taken into view. Another issue that was being looked at was that the forensic system should be outside police jurisdiction as they may have vested interests,” Bhan said.

The CIS note pointed out that although the bill refers to security and privacy procedures that labs are to follow, these have been left to be drawn up and implemented by the proposed DNA Board.

“This proposal has been doing the rounds for years and I can vouch for the scientific infallibility of using DNA profiling for carrying out justice. That being said, the bill does not provide verifiable or implementable safeguards for misuse of this data and lack of accountability of public servants can cause serious jeopardy to the privacy of citizens,” said K.P.C. Gandhi, a forensic scientist and founder chairman at Truth Labs, an independent forensic science laboratory.

For more details visit https://cis-india.org/internet-governance/news/livemint-nikita-mehta-july-29-2015-regulation-misuse-concerns-still-dog-dna-profiling-bill

Regulating the Internet: The Government of India & Standards Development at the IETF

Aayush Rathi, Gurshabad Grover and Sunil Abraham — 2019-01-22T07:29:39Z

The institution of open standards has been described as a formidable regulatory regime governing the Internet. Given the regulatory and domestic policy implications that technical standards can have, there is a need for Indian governmental agencies to focus adequate resources geared towards achieving favourable outcomes at standards development fora.

This brief was authored by Aayush Rathi, Gurshabad Grover and Sunil Abraham. Click here to download the policy brief.

Executive Summary

The institution of open standards has been described as a formidable regulatory regime governing the Internet. As the Internet has moved to facilitate commerce and communication, governments and corporations find greater incentives to participate and influence the decisions of independent standards development organisations.

While most such bodies have attempted to systematise fair and transparent processes, this brief highlights how they may still be susceptible to compromise. Documented instances of large private companies like Microsoft, and governmental instrumentalities like the US National Security Agency (NSA) exerting disproportionate influence over certain technical standards further the case for increased Indian participation.

The debate around Transport Layer Security (TLS) 1.3 at the Internet Engineering Task Force (IETF) forms an important case for studying how a standards body responded to political developments, and how the Government of India participated in the ensuing discussions. Lasting four years, the debate ended in favour of greater communications security. One of the security improvements in TLS 1.3 over its predecessor is that is makes less information available to networking middleboxes. Considering that Indian intelligence agencies and government departments have expressed fears of foreign-manufactured networking equipment being used by foreign intelligence to eavesdrop on Indian networks, the development is potentially favourable for the security of Indian communication in general, and the security of military and intelligence systems in particular. India has historically procured most networking equipment from foreign manufacturers. While there have been calls for indigenised production of such equipment, achieving these objectives will necessarily be a gradual process. Participating in technical standards can, then, be an effective interim method for intelligence agencies, defence wings and law enforcement for establishing trust in critical networking infrastructure sourced from foreign enterprises.

Outlining some of the existing measures the Indian government has put in place to build capacity for and participate in standard setting, this brief highlights that while these are useful starting points, they need to be harmonised and strengthened to be more fruitful. Given the regulatory and domestic policy implications that technical standards can have, there is a need for Indian governmental agencies to focus adequate resources geared towards achieving favourable outcomes at standards development fora.

Click here to download the policy brief.

Note: The recommendations in the brief were updated on 17 December 2018 to reflect the relevance of technical standard-setting in the recent discussions around Indian intelligence concerns about foreign-manufactured networking equipment.

For more details visit https://cis-india.org/internet-governance/blog/regulating-the-internet-the-government-of-india-standards-development-at-the-ietf

Regulating the Internet by fiat

praskrishna — 2012-08-26T10:13:03Z

The Union government’s move to ban or block 310 online entities is worrisome.

This article by V Sridhar was published in the Hindu on August 26, 2012. Pranesh Prakash is quoted.

The unprecedented spike in the velocity of hateful, offensive and blatantly communal online content earlier this month, which reinforced rumour mongering on the ground that resulted in the exodus of people from the northeast from several Indian cities has been a classic example of how new technologies can be harnessed for old vices. But just as disturbing has been the manner in which the government yielded to the old itch of censoring, banning or blocking content. Between August 18 and August 21, the Department of Telecommunications (DoT), in four separate directives issued to all Internet service licensees, asked them to “block access” to a total of 310 URLs (Unique Resource Locators).

Directing ISPs

The number of URLs blocked does not quite convey the extent of the banned content because the list includes instances of entire websites, a single Web page in some cases, videos posted on YouTube, Twitter handles, Facebook entries, or even instances of links that would take the browser to an img tag (an individual image that is linked to an HTML page). Although the directives clearly stated that the service providers should block only the specific URLs leading to the main sites such as YouTube, Facebook or Twitter.

Airtel, the leading telecom and Internet service provider, blocked youtu.be, the short URL that Twitter and Facebook users normally use for sharing images and videos. A perusal of the four orders clearly shows that Airtel overreacted. Although the service provider subsequently corrected the error, worries about arbitrary disruptions remain.

Pranesh Prakash, Programme Manager, Centre for Internet and Society (CIS), who did the first analysis of the resources that were pulled out of the Web, said the list was only partial, because they related only to the URLs that ISPs were asked to block, not what action would have been initiated against those offering Web services.

A ragtag list

Net activists, even those who do not have an absolutist notion of the right to free speech, have expressed deep reservations about the manner in which the government has blocked 310 URLs. Although Mr. Prakash, who is also a lawyer, believes that “temporary curbs” of freedom of expression, in situations such as the unprecedented situation earlier this month may be necessary, he argued that the government acted carelessly and in a kneejerk manner. “It is a ragtag list, prepared in a haphazard manner,” he told The Hindu.

Logically, the rules applicable to hate content ought to be the same whether the offence is in print or whether it appears as online content. Mr. Prakash pointed to the fact that official agencies such as the police have not gone after those responsible for the content posted in the blocked URLs, which shows that the government’s approach is not backed by a resolve to bring to book those responsible for spreading hate.

The ban-first, examine-later approach is wrong for three sets of reasons, argued Mr. Prakash. First, because there are what he characterises as “egregious mistakes”. Second, he doubts whether regulations prescribing due process of enforcing and reviewing the ban were indeed followed. Third, the government ought to have acted smarter, by using the same media to debunk the rumours that were swirling in several Indian cities but also in the northeast. Mr. Prakash pointed to the case of a Canadian intern working at the CIS who received an SMS from a Canadian government agency that asked her not to heed the rumours. Although the Bangalore police did issue an SMS asking people not to heed such rumours, it came well after the rumour mongering had passed its peak.

“I generally believe that the government must exercise utmost caution in censoring,” said Mr. Prakash. He pointed out that in the list were sites and people who had done nothing to promote hate. He refered to the case of Amit Paranjpe, whose twitter handles were blocked. “If you go through his timeline, you will not find anything that is communal at all,” Mr. Prakash says. “I do not think the government acted responsibly by going after material that is not directly inflammatory, or contributes to the state of panic,” he argued. “I do not doubt the motives of the government, because I see that the overwhelming majority of the material it has blocked is stuff that has something to do with communalism or rioting, whether it is as reportage or as material that contributes to tension,” he observed. He also did not think the government used the crisis as an excuse to put down politically dissenting voices, which was what happened last October (critical references to Sonia Gandhi were removed then).

Cyber terror?

Significantly, the list of blocked domains did not match the government’s claim that a lot of the hate content were in the form of images with misleading captions, most of which came from Pakistan. Mr. Prakash pointed out that many of these images had “been floating around” in Pakistan for at least a month before the rumours hit their peak in mid-August. He noted that within Pakistan there had been debates about the authenticity of these images. “In fact, the reportage and the countering of the reportage in the Pakistani media has been much more sophisticated than in India,” he observed. Significantly, the debate was not even targeted at the Indian audience, but to Pakistani or a global audience. “This debunks the notion some sections of the media have propagated, that this is about cyber war or cyber terrorism,” he says. “I have not seen evidence that India has been targeted from Pakistan,” he observed.

Lack of transparency

It has also been done without abiding by the procedures that are clearly laid down. Mr. Prakash pointed out, the provisions of the Information Technology Act require that “persons or intermediaries” blocked ought to have been given an opportunity to explain their position within 48 hours. He doubted that this had been followed. Moreover, he argued that the people or companies hosting the offensive content, not the ISPs, ought to have been asked to remove them. After all, most of the large and popular intermediaries have clearly laid down conditions of usage, he said.

The lack of transparency in the manner in which the government blocked these websites — even if it is accepted that the content was hateful, abhorrent and aimed at stirring social tension — is worrisome because it sets a precedent for unchecked use of power, without proper sanction. Nor was it a smart way of addressing an innovatively virulent way of spreading chaos. While the government’s use of the sledgehammer may have got it out of the immediate crisis it found itself in, it may have fewer friends when faced with a similar outbreak later.

For more details visit https://cis-india.org/news/www-the-hindu-aug-26-v-sridhar-regulating-the-internet-by-fiat

Regulating Social Media: Unrealistic, Impossible, Necessary?

praskrishna — 2013-04-30T16:50:13Z

The Press Council of India Chairperson Justice Markandey Katju calls for regulating social media, saying it will prevent offensive material coming into the public domain. But is it really necessary to regulate the social media? If yes, is it possible to do it?

This was published by NDTV on April 11, 2013.

NDTV aired a discussion by Ashwin S Kumar, Co-editor, Columnist, The Unreal Times; Kunal Majumder, Assitant Editor, Tehelka.com and Pranesh Prakash, Policy Director, Centre for Internet and Society on April 11, 2013 in response to Justice Katju's comments on bringing 'social media' under the Press Council of India.

Pranesh Prakash laid out four brief points:

'Social media' allows coffee house discussion and toilet wall scrawls to seem like print publications, but it's a mistake to treat it the same way we do print publications. The UK is now planning on using prosecutorial flexibility to refrain from prosecuting simple offensive speech on social media.
The same laws should apply online as they do offline (but how the apply, can differ), and that is currently the case. Most content-related offences in the IPC, etc., are offences online as well as offline.
Editors and journalists exist for most print publications and broadcast programmes, while that isn't true for most 'social media'. So guidelines applicable to the press mostly won't be applicable online.
Electronic publications (like Medianama, The Daily Dish, Huffington Post) which consider themselves engaged in a journalistic venture present a special problem that we do need to have a public conversation about.

Video

For more details visit https://cis-india.org/news/ndtv-video-april-11-2013-the-social-network-regulating-social-media-unrealistic-impossible-necessary

Regulating Sexist Online Harassment: A Model of Online Harassment as a Form of Censorship

amber — 2021-05-31T09:39:14Z

For more details visit https://cis-india.org/internet-governance/files/it-for-change-february-2021-amber-sinha-regulating-sexist-online-harassment.pdf

Regulating Sexist Online Harassment as a Form of Censorship

amber — 2021-05-31T09:56:31Z

This paper is part of a series under IT for Change’s project, Recognize, Resist, Remedy: Combating Sexist Hate Speech Online. The series, titled Rethinking Legal-Institutional Approaches to Sexist Hate Speech in India, aims to create a space for civil society actors to proactively engage in the remaking of online governance, bringing together inputs from legal scholars, practitioners, and activists. The papers reflect upon the issue of online sexism and misogyny, proposing recommendations for appropriate legal-institutional responses. The series is funded by EdelGive Foundation, India and International Development Research Centre, Canada.

Introduction

The proliferation of internet use was expected to facilitate greater online participation of women and other marginalised groups. However, over the past few years, as more and more people have come online, it is evident that social power in online spaces mirrors offline hierarchies. While identity and security thefts may be universal experiences, women and the LGBTQ+ community continue to face barriers to safety that men often do not, aside from structural barriers to access. Sexist harassment pervades the online experience of women, be it on dating sites, online forums, or social media.

In her book, Twitter and Tear Gas: The Power and Fragility of Networked Protest, Zeynep Tufekci argues that the nature and impact of censorship on social media are very different. Earlier, censorship was enacted by restricting speech. But now, it also works in the form of organised harassment campaigns, which use the qualities of viral outrage to impose a disproportionate cost on the very act of speaking out. Therefore, censorship plays out not merely in the form of the removal of speech but through disinformation and hate speech campaigns.

In most cases, this censorship of content does not necessarily meet the threshold of hate speech, and free speech advocates have traditionally argued for counter speech as the most effective response to such speech acts. However, the structural and organised nature of harassment and extreme speech often renders counter speech ineffective. This paper will explore the nature of online sexist hate and extreme speech as a mode of censorship. Online sexualised harassment takes various forms including doxxing, cyberbullying, stalking, identity theft, incitement to violence, etc. While there are some regulatory mechanisms – either in law, or in the form of community guidelines that address them, this paper argues for the need to evolve a composite framework that looks at the impact of such censorious acts on online speech and regulatory strategies to address them.

Click on to read the full text [PDF; 495 Kb]

For more details visit https://cis-india.org/internet-governance/blog/it-for-change-amber-sinha-regulating-sexist-online-harassment

Regulating Bitcoin in India

vipul — 2017-04-20T13:17:37Z

The article discusses the possible contours of future bitcoin regulation in India. Bitcoin, often considered a ‘notorious’ virtual currency limited only to techies or speculators, is currently fighting a battle to become a bona fide mainstream means of exchange.

While most currencies in the real world have the backing of a central authority of some kind (such as a sovereign or a Central Bank) infusing them with an air of legitimacy, Bitcoin has no such central authority which issues or controls it. Additionally, the distributed and decentralised nature of the Bitcoin network makes regulation a tricky issue. This article seeks to touch upon the issue of Bitcoin regulation and makes certain broad suggestions for the future. It is a follow-up to a previous article by this author discussing the legal treatment of Bitcoin under Indian law, available at http://cis-india.org/internet-governance/bitcoin-legal-regulation-india.

The Reserve Bank of India (RBI) has not exactly been shy in recognising and even regulating technological advances in the financial sector as is evident from their detailed guidelines on Internet Banking,[1] Prepaid Payment Instruments[2] Account Aggregator Regulations,[3] and the consultation paper on proposed regulations for P2P lending platforms,[4] etc. However, though the RBI has acknowledged the existence of Bitcoin (it issued a note cautioning the public against dealing in virtual currencies including Bitcoin way back in 2013[5] and again in 2017[6]), there have been no clear guidelines regarding the same. Nevertheless, Bitcoin has come a long way since its inception and a consensus is emerging amongst the more technically inclined individuals that Bitcoin is infact here to stay.

Even if a sceptical view is taken that Bitcoin may not last for a long time, that does not mean that regulation is useless as there is already a large amount of money invested in Bitcoin entities in India and Bitcoin exchanges seem to be betting big on this sector really taking off - especially in the backdrop of the government’s recent push towards a more digital and less cash dependent economy.

While the Indian government is trying to hard sell the idea of digital payments, primarily using existing banking channels as well as the relatively new National Payments Corporation of India (NPCI) and the various applications that are cropping up around the NPCI’s UPI platform, one must note that going digital could involve high administrative costs. These costs are typically charged by banks and intermediary merchants, and may not be palatable to all stakeholders, as was evident in the recent fracas between petrol pump owners and banks over proposed transactional charges on card payments.[7]

It is this vacuum that alternatives such as prepaid payment instruments and virtual currencies can fill while addressing the concern of high administrative charges, which is likely to be a major hurdle in going digital. Administrative charges for most of these instruments are significantly lower than what existing payment channels charge for digital transactions.[8]

Legality of Bitcoin and the need for Regulation

Bitcoin technology is being widely embraced all over the world, including neighbouring China which has become one of the biggest markets for the uniquely decentralised currency. However the biggest hurdle that Bitcoin enthusiasts see in mainstreaming this technology is the fact that most countries are treading too cautiously around Bitcoin and therefore do not have regulation governing them.

The creation and transfer of Bitcoin is based on an open source cryptographic protocol and is not managed by any central authority.[9] It is the decentralized nature of this virtual currency that makes regulation a major challenge. This does not mean that regulators are not capable of regulating Bitcoin, in fact attempts have been made in several jurisdictions but these are mostly in the discussion stage, for eg. the Washington Department of Financial Institutions (“DFI”) introduced a bill in December, 2016 which proposes amendments to certain portions of the Washington Uniform Money Services Act and includes provisions specific to digital currencies;[10] the U.S. District Court for the Southern District of New York has in a decision in September, 2016 taken the view that Bitcoin is money under the plain meaning of Section 1960, the federal money transmission statute.[11]

This article does not intend to undertake a discussion on how Bitcoin is dealt with in various jurisdictions, but instead is aimed at suggesting a possible way forward for Indian regulators to regulate Bitcoin in a manner that satisfies the regulatory zeal towards security as well as ensures that the technology does not get stifled through overregulation. It is important that the regulators create a balanced regulation because an impractical ecosystem for Bitcoin exchanges and their users, may lead to traders seeking alternative methods of purchasing Bitcoin such as P2P trading, over-the-counter (OTC) markets and underground trading platforms, which are significantly more difficult to regulate.[12]

Suggestions for Regulation

Since Bitcoin is a decentralised cryptocurrency, it is impossible to regulate it through one single centralised point for all transactions. Neither is it feasible to regulate each and every Bitcoin user. A pragmatic compromise between these two extremes could be to regulate the points at which fiat currency or valuable goods enter the Bitcoin system, i.e. the Bitcoin exchanges where people may buy and sell Bitcoin for actual real world money, or websites which offer Bitcoin as a means of payment. Such an approach would reduce the number of points of supervision and lead to effective enforcement of the regulations. The regulations may require any entity providing services such as buying and selling of Bitcoin for actual money, trading in Bitcoin (such as non-cash exchanges) or providing other Bitcoin related services (such as Bitcoin wallets, merchant gateways, remittance facilities, etc.) to be registered with a central government agency, preferably the Reserve Bank of India.

One legal issue regarding the regulation of companies transacting in Bitcoin is whether the RBI has the authority or jurisdiction to regulate Bitcoin in the first place. Without getting into the arguments regarding whether it is a dangerous trend or not, an easy way in which the RBI could ensure it has the authority to regulate Bitcoin would be to follow the path that the RBI adopted while regulating Account Aggregators under the Non-Banking Financial Company - Account Aggregator (Reserve Bank) Directions, 2016 wherein the RBI declared Account Aggregators as Non Banking Finance Companies under section 45-I(f)(iii) thereby getting the authority to regulate and supervise them under section 45JA of the Reserve Bank of India Act, 1934.

The Regulations, once issued by the Reserve Bank of India, can prescribe mandatory registration, capital adequacy provisions, corporate governance conditions, minimum security protocols, Know Your Customer (KYC) requirements and most importantly provide for regular and ongoing reporting requirements as well as supervision of the Reserve Bank of India over the activities of Bitcoin companies.

Any proposed Bitcoin regulatory framework would seek to address certain issues; for the purposes of this article, we will assume that the following three issues are the ones that must necessarily be addressed by a regulatory framework:

Security of the consumer’s property and prevention of fraud on the consumer. In the technology sector this translates into specific emphasis on increased security (against hacking) for accounts that the consumers maintain with the service provider.
India has robust exchange control laws and the inherently decentralised and digital nature of Bitcoin can enable transfer of value from one jurisdiction to another without any oversight by a central agency, potentially violating the exchange control laws of India.
Bitcoin has for long been associated with criminal and nefarious activities, infact many believe that the famous black market website “Silk Road” played a big role in making Bitcoin famous[13] and therefore preventing Bitcoin from being used for illegal activities (or creating a mechanism to ensure a digital trail to help investigations post facto) would be a major issue that the regulations would seek to tackle.

Given the above assumptions, let us examine whether the Regulations suggested above can satisfactorily address the concerns of security of consumers, exchange control, and keeping a tab on criminal activities.

If the regulations provide for minimum capital adequacy requirements as well as registration by the RBI or some other central agency, then the chances of consumers being duped by “fly-by-night” operators would be significantly reduced. The Regulations can also provide for minimum security protocols to be maintained by the companies, which protocols can themselves be developed in concert with Bitcoin experts. Critics may point to the hacking of various Bitcoin exchanges in the recent past, including that of MtGox, in which Bitcoin worth millions of dollars were siphoned off, and argue that the security protocols may not be enough to prevent future instances of hacking. But that is true even for the current security protocols for online banking; and that has not prevented a large number of banks from providing online banking facilities and the RBI regulating the same. The other vital issue that legally mandated security protocols would address (and potentially solve) is the issue of liability in case of hackings. Regulations may provide clarity on this issue and protect innocent customers from negligent companies while at the same time protecting entrepreneurs by defining and limiting the liability for bona fide and vigilant companies.

The other issue that may be of major concern to the authorities is exchange control. India has extremely specific exchange control laws, and if any person in India wants to transfer any amount to any person overseas, the only legal way to do so is through a bank transfer, which requires filling paperwork giving the reason for the transfer (although the RBI and banks usually don’t ask for any proof for small amounts upto a few lakhs). This means that all transfers outside India are done through proper banking channels and are therefore under the supervision of the RBI. However the decentralised nature of Bitcoin enables individuals to transfer money outside the borders of India without going through any banking channels and hence stay completely outside the purview of the RBI’s supervision. Such a system which lets users transfer money beyond national borders outside legal banking channels could be easily misused by nefarious actors and this is exactly what happened as international drug cartels turned to Bitcoin and other digital currencies to move their ill gotten wealth beyond the borders of various countries.[14] Regulating the entities which provide Bitcoin wallets and Bitcoin exchanges will ensure that the RBI can exercise its supervisory jurisdiction over Bitcoin transactions of individual customers even though these transactions do not go through the regular banking channels. The Regulations could impose an obligation on the companies to provide information on any suspicious activities or provide greater information about accounts which see very high volumes, etc. to ensure that Bitcoin is not used to finance organised crime. Thus, the regulations could have provisions that would require the companies providing the Bitcoin wallets or exchanges to flag and monitor customers whose trading accounts or Bitcoin wallets have transactions of an amount greater than a specified limit. This would provide the RBI with the ability to enquire as to the reasons for such high volumes and weed out illegal transactions while at the same time allowing bona fide transactions to continue.

Very closely linked to the issue of exchange control and supervision of transactions is the issue of checking the furtherance of criminal activities using the apparent anonymity offered by Bitcoin. However if the RBI has regulatory oversight over all the Bitcoin companies that are operating in India, then it would be possible for it to keep an eye on most Bitcoin transactions in India as long as the wallet that originates or terminates the transaction has been provided by a Bitcoin service provider located in India. An argument may be made that a criminal may use the services of Bitcoin wallet services provided by companies outside India and therefore outside the purview of the RBI and its regulations. However this argument may not be as plausible as it may seem at first look; if we assume that for any criminal activity the ultimate goal is to get the money in the form of recognizable legal tender (preferably cash or money in a bank account) then it stands to reason that the Bitcoin in the wallet would be exchanged for currency at some point or the other in the chain, which can only be done through a Bitcoin exchange if the transaction is of a fairly high value (which most criminal transactions are) and these exchanges as well as the accounts maintained by them will be under the purview of the RBI, thus providing the law enforcement agencies with the final link in the chain of transactions. Further, the public nature of the blockchain (the ledger where each Bitcoin trade is registered and verified) also makes it possible for the enforcement agencies to follow the trail of money for each and every Bitcoin or part thereof.

Conclusion

From the discussion above, we see that the major arguments that have been given by sceptics regarding Bitcoin and its attractiveness to criminals due to its decentralised nature are actually not very viable on a closer look. Bitcoin and the blockchain technology are extremely important steps in the direction of better and more efficient financial transactions in the global economy, which is why a number of mainstream banks are also showing a keen interest in the blockchain technology.[15] Regulations governing Bitcoin or virtual currencies would clear the air regarding their legal status so that consumers as well as entrepreneurs and investors can invest more money in this technology which could potentially change the way financial transactions are carried out across jurisdictions.

[1] https://www.rbi.org.in/scripts/NotificationUser.aspx?Id=414&Mode=0

[2] https://rbi.org.in/scripts/NotificationUser.aspx?Id=10799&Mode=0

[3] https://www.rbi.org.in/scripts/BS_ViewMasDirections.aspx?id=10598

[4] https://rbidocs.rbi.org.in/rdocs/content/pdfs/CPERR280416.pdf

[5] https://rbi.org.in/scripts/BS_PressReleaseDisplay.aspx?prid=30247

[6] https://rbi.org.in/Scripts/BS_PressReleaseDisplay.aspx?prid=39435

[7] http://timesofindia.indiatimes.com/business/india-business/petrol-pumps-wont-accept-cards-from-monday-to-protest-banks-transaction-fee/articleshow/56402253.cms

[8] For example, currently the network fee for a person to person Bitcoin transfer is 0.0001 Bitcoin, which comes to roughly Rs. 6 per transaction irrespective of the amount involved.

[9] The processing of Bitcoin transactions is secured by servers called Bitcoin “miners”. These servers communicate over an internet-based network and confirm transactions by adding them to a ledger which is updated and archived periodically using peer-to-peer filesharing technology, also known as the “blockchain”. The integrity and chronological order of the blockchain is enforced with cryptography. In addition to archiving transactions, each new ledger update creates some newly-minted Bitcoins.

[10] https://www.virtualcurrencyreport.com/2017/01/washington-department-of-financial-institutions-proposes-virtual-currency-regulation/

[11] https://www.virtualcurrencyreport.com/2016/09/sdny-opinion-re-bitcoin/. For a discussion on how different States and agencies in the United States deal with Bitcoin, please see Misha Tsukerman, “THE BLOCK IS HOT: A SURVEY OF THE STATE OF BITCOIN REGULATION AND SUGGESTIONS FOR THE FUTURE, Berkeley Technology Law Journal, Vol. 30:385, 2015, p. 1127, available at http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2084&context=btlj .

[12] http://themerkle.com/why-china-isnt-interested-in-banning-bitcoin-importance-of-regulation/

[13] See generally, Nathaniel Popper, “Digital Gold: Bitcoin and the Inside Story of the Misfits and Millionaires Trying to Reinvent Money”, Harper Collins, 2015.

[14] https://www.bloomberg.com/view/articles/2013-11-18/are-bitcoins-the-criminal-s-best-friend-

[15] http://www.morganstanley.com/ideas/big-banks-try-to-harness-blockchain.

For more details visit https://cis-india.org/internet-governance/blog/regulating-bitcoin-in-india

Registering for Aadhaar in 2019

sunil — 2019-01-03T14:59:04Z

It is a lot less scary registering for Aadhaar in 2019 than it was in 2010, given how the authentication modalities have since evolved.

The article was published in Business Standard on January 2, 2019.

Last November, a global committee of lawmakers from nine countries the UK, Canada, Ireland, Brazil, Argentina, Singapore, Belgium, France and Latvia summoned Mark Zuckerberg to what they called an “international grand committee” in London. Mr. Zuckerberg was too spooked to show up, but Ashkan Soltani, former CTO of the FTC was among those who testified against Facebook. He said “in the US, a lot of the reticence to pass strong policy has been about killing the golden goose” referring to the innovative technology sector. Mr. Soltani went on to argue that “smart legislation will incentivise innovation”. This could be done either intentionally or unintentionally by governments. For example, a poorly thought through blocking of pornography can result in innovative censorship circumvention technologies. On other occasions, this can happen intentionally. I hope to use my inaugural column in these pages to provide an Indian example of such intentional regulatory innovation.

Eight years ago, almost to this date, my colleague Elonnai Hickok wrote an open letter to the Parliamentary Finance Committee on what was then called the UID or Unique Identity. She compared Aadhaar to the digital identity project started by the National Democratic Alliance (NDA) government in 2001. Like the Vajpayee administration which was working in response to the Kargil War, she advocated a decentralised authentication architecture using smart cards based on public key cryptography. Last year, even before the five-judge constitutional bench struck down Section 57 of the Aadhaar Act, the UIDAI preemptively responded to this regulatory development by launching offline Aadhaar cards. This was to be expected especially since from the A.P. Shah Committee report, the Puttaswamy Judgment, the B.N. Srikrishna Committee consultation paper, report and bill, the principle of “privacy by design” was emerging as a key Indian regulatory principle in the domain of data protection.

The introduction of the offline Aadhaar mechanism eliminates the need for biometrics during authentication. I have previously provided 11 reasons why biometrics is inappropriate technology for e-governance applications by democratic governments, and this comes as a massive relief for both human rights activists and security researchers. Second, it decentralises authentication, meaning that there is a no longer a central database that holds a 360-degree view of all incidents of identification and authentication. Third, it dramatically reduces the attack surface for Aadhaar numbers, since only the last four digits remain unmasked on the card. Each data controller using Aadhaar will have to generate his/her own series of unique identifiers to distinguish between residents. If those databases leak or get breached, it won’t tarnish the credibility of Aadhaar or the UIDAI to the same degree. Fourth, it increases the probability of attribution in case a data breach were to occur; if the breached or leaked data contains identifiers issued by a particular data controller, it would become easier to hold them accountable and liable for the associated harms. Fifth, unlike the previous iteration of the Aadhaar “card”, on which the QR code was easy to forge and alter, this mechanism provides for integrity and tamper detection because the demographic information contained within the QR code is digitally signed by the UIDAI. Finally, it retains the earlier benefit of being very cheap to issue, unlike smart cards.

Thanks to the UIDAI, the private sector is also being forced to implement privacy by design. Previously, since everyone was responsible for protecting Aadhaar numbers, nobody was. Data controllers would gladly share the Aadhaar number with their contractors, that is, data processors, since nobody could be held responsible. Now, since their own unique identifiers could be used to trace liability back to them, data controllers will start using tokenisation when they outsource any work that involves processing of the collected data. Skin in the game immediately breeds more responsible behaviour in the ecosystem.

The fintech sector has been rightfully complaining about regulatory and technological uncertainty from last year’s developments. This should be addressed by developing open standards and free software to allow for rapid yet secure implementation of these changes. The QR code standard itself should be an open standard developed by the UIDAI using some of the best practices common to international standard setting organisations like the World Wide Web Consortium, Internet Engineers Task Force and the Institute of Electrical and Electronics Engineers. While the UIDAI might still choose to take the final decision when it comes to various technological choices, it should allow stakeholders to make contributions through comments, mailing lists, wikis and face-to-face meetings. Once a standard has been approved, a reference implementation must be developed by the UIDAI under liberal licences, like the BSD licence that allows for both free software and proprietary software derivative works. For example, a software that can read the QR code as well as send and receive the OTP to authenticate the resident. This would ensure that smaller fintech companies with limited resources can develop secure systems.

Since Justice Dhananjaya Y. Chandrachud’s excellent dissent had no other takers on the bench, holdouts like me must finally register for an Aadhaar number since we cannot delay filing taxes any further. While I would still have preferred a physical digital artefact like a smart card (built on an open standard), I must say it is a lot less scary registering for Aadhaar in 2019 than it was in 2010, given how the authentication modalities have since evolved.

For more details visit https://cis-india.org/internet-governance/blog/business-standard-january-2-2019-registering-for-aadhaar-in-2019

Reddit, Telegram among websites blocked in India, say internet groups

Sai Sachin Ravikumar — 2019-04-15T10:32:54Z

Discussion board Reddit, messaging service Telegram and comedy site College Humor have been blocked for intermittent periods, say internet groups.

The article by Sai Sachin Ravikumar was published in Business Standard on April 3, 2019. Gurshabad Grover was quoted.

Websites like Reddit and Telegram are being blocked in India by internet service providers, throwing into question the enforcement of net neutrality rules, advocacy groups said on Wednesday.

Restrictions on "torrent sites" that offer free movie and music downloads are routine in India to prevent copyright infringement. Pornography websites are also blocked by court orders seeking to protect children.

But in recent months, websites such as the discussion board Reddit, messaging service Telegram and comedy site College Humor have been blocked for intermittent periods, often for days and only in some regions, baffling internet users.

"It's not making any sense, what's happening," said Apar Gupta, executive director at the non-profit Internet Freedom Foundation (IFF). "A lot of these blocks are also happening in such a way that no notices are displayed." Since January, there have been at least 250 reports of websites blocked on networks operated by Jio, a unit of Reliance Industries, Bharti Airtel and Hathway, the IFF said in a letter to the telecoms department.

Jio and Airtel are among India's top telecom providers.

Some internet users have posted on social media screenshots of pages displaying messages saying a website was blocked to comply with government orders.

When Reuters tried to access CollegeHumor.com on Wednesday a message read: "Your requested URL has been blocked as per the directions received from Department of Telecommunications, Government of India."

An official at the telecoms department, which last year approved rules on net neutrality--the concept that all websites and data on the Internet be treated equally--declined to comment when contacted by Reuters.

Complaints by Indian internet users have covered "most forms of net neutrality violations," IFF's Gupta said.

Nearly 60 per cent of the user reports compiled by the foundation since January involved Jio networks, the IFF's data showed.

A Jio representative did not respond to an emailed request for comment. Hathway did not reply to phone and email requests for comment.

Bharti Airtel said in a statement it "supports an open internet" and does not block content unless directed by authorities. It did not say if it was currently blocking any websites.

Reddit did not respond to an emailed request for comment outside regular U.S. business hours.

Telegram, which has been blocked previously in Russia and Iran, did not immediately respond to a phone message seeking comment.

If websites are blocked based on government or court orders, or internet firms have legal grounds to restrict web pages, they might not violate net neutrality rules, said Gurshabad Grover, a researcher at the non-profit Centre for Internet and Society.

"But in this case we're not entirely sure," he said.

Other sites blocked this year include tax portal Taxscan and legal database Indian Kanoon.

After complaints from Jio's internet users, Indian Kanoon founder Sushant Sharma said he had been told by Jio the portal was blocked for one day last week due to a government order.

"By evening, apparently, that order was taken back," said Sharma, whose website has some 150,000 daily visitors.

For more details visit https://cis-india.org/internet-governance/news/business-standard-sai-sachin-ravikumar-april-3-2019-reddit-telegram-among-websites-blocked-in-india