Centre for Internet and Society

Comparative Analysis of Comments Submitted on Draft IT Rules

pranesh — 2012-04-23T05:47:43Z

An RTI was filed asking the DIT to provide all the feedback received on its call for comments on the Draft Information Technology Rules. The feedback on the Due Diligence Rules / Intermediary Guidelines Rules have been compiled in this comparative table.

For more details visit https://cis-india.org/internet-governance/resources/comparative-analysis-draft-it-rules-comments

Internet Censorship Officials' Contact Details

pranesh — 2012-04-17T10:00:09Z

Contact details of officials from the Ministry of Communications & Information Technology

Kapil Sibal
Minister for Communications and Information Technology
Phone: 011-24369191

Murli Deora
Minister of State for Communications and Information Technology
Phone: 011-23372246/47

Sachin Pilot
Minister of State for Communications and Information Technology
Phone: 011-24368757/58

J. Satyanarayana
Secretary
Ministry for Communications and Information Technology
Phone: 011-24363097

Gulshan Rai
Group Coordinator
Cyberlaw Group
Ministry for Communications and Information Technology
Phone: 011-24368544

For more details visit https://cis-india.org/internet-governance/resources/censorship-officials-contact-details

Section 295A of the Indian Penal Code

pranesh — 2012-04-08T22:53:24Z

Section 295A. Deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs. 295A. Deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs.— Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

For more details visit https://cis-india.org/internet-governance/resources/section-295a-indian-penal-code

Statutory Motion Against Intermediary Guidelines Rules

pranesh — 2012-04-03T09:35:41Z

Rajya Sabha MP, Shri P. Rajeev has moved a motion that the much-criticised Intermediary Guidelines Rules be annulled.

Motion to Annul Intermediary Guidelines Rules

A motion to annul the Intermediary Guidelines Rules was moved on March 23, 2012, by Shri P. Rajeeve, CPI(M) MP in the Rajya Sabha from Thrissur, Kerala.

The motion reads:

"That this House resolves that the Information Technology (Intermediaries Guidelines) Rules, 2011 issued under clause (zg) of sub-section (2) of Section 87 read with sub-section (2) of Section 79 of the Information Technology Act, 2000 published in the Gazette of India dated the 13th April, 2011 vide Notification No. G.S.R 314(E) and laid on the Table of the House on the 12th August, 2011, be annuled; and

That this House recommends to Lok Sabha that Lok Sabha do concur on this Motion."

This isn't the first time that Mr. Rajeeve is raising his voice against the Intermediary Guidelines Rules. Indeed, even when the Rules were just in draft stage, he along with the MPs Kumar Deepak Das, Rajeev Chandrashekar, and Mahendra Mohan drew Parliamentarians' attention to the rules. Yet, the government did not heed the MPs' concern, nor the concern of all the civil society organizations that wrote in to them concerned about human rights implications of the new laws. On September 6, 2011, Lok Sabha MP Jayant Choudhary gave notice (under Rule 377 of the Lok Sabha Rules) that the Intermediary Guidelines Rules as well as the Reasonable Security Practices Rules need to be reviewed. Yet, the government has not even addressed those concerns, and indeed has cracked down even harder on online freedom of speech since then.

Fundamental Problems with Intermediary Guidelines Rules

The fundamental problems with the Rules, which deal with objectionable material online:

Shifting blame.

It makes the 'intermediary', including ISPs like BSNL and Airtel responsible for objectionable content that their users have put up.

No chance to defend.

There is no need to inform users before this content is removed. So, even material put up by a political party can be removed based on anyone's complaint, without telling that party. This was done against a site called *CartoonsAgainstCorruption.com". This goes against Article 19(1)(a).

Lack of transparency

No information is required to be provided that content has been removed. It's a black-box system, with no one, not even the government, knowing that content has been removed following a request. So even the government does not know how many sites have been removed after these Rules have come into effect.

No differentiation between intermediaries.

A one-size-fits-all system is followed where an e-mail provider is equated with an online newspaper, which is equated with a video upload site, which is equated with a search engine. This is like equating the post-office and a book publisher as being equivalent for, say, defamatory speech. This is violative of Article 14 of the Constitution, which requires that unequals be treated unequally by the law.

No proportionality.

A DNS provider (i.e., the person who gives you your web address) is an intermediary who can be asked to 'disable access' to a website on the basis of a single page, even though the rest of the site has nothing objectionable.

Vague and unconstitutional requirements.

Disparaging speech, as long as it isn't defamatory, is not criminalised in India, and can't be because the Constitution does not allow for it. Content about gambling in print is not unlawful, but now all Internet intermediaries are required to remove any content that promotes gambling.

Allows private censorship.

The Rules do not draw a distinction between arbitrary actions of an intermediary and take-downs subsequent to a request.

Presumption of illegality.

The Rules are based on the presumption that all complaints (and resultant mandatory taking down of the content) are correct, and that the incorrectness of the take-downs can be disputed in court (if they ever discover that it has been removed). This is contrary to the presumption of validity of speech used by Indian courts, and is akin to prior restraint on speech. Courts have held that for content such as defamation, prior restraints cannot be put on speech, and that civil and criminal action can only be taken post-speech.

Government censorship, not 'self-regulation'.

The government says these are industry best-practices in existing terms of service agreements. But the Rules require all intermediaries to include the government-prescribed terms in an agreement, no matter what services they provide. It is one thing for a company to choose the terms of its terms of service agreement, and completely another for the government to dictate those terms of service.

Problems Noted Early

We have noted in the past the problems with the Rules, including when the Rules were still in draft form:

Other organizations like the Software Freedom Law Centre also sent in scathing comments on the law, noting that they are unconstitutional.

We are very glad that Shri Rajeeve has moved this motion, and we hope that it gets adopted in the Lok Sabha as well, and that the Rules get defeated.

For more details visit https://cis-india.org/internet-governance/blog/statutory-motion-against-intermediary-guidelines-rules

Vinay Rai v. Facebook India and Ors. | Summons Order

pranesh — 2012-03-15T07:53:05Z

This is Judge Sudesh Kumar's summons order (dated December 23, 2011) by which he notes there is enough prima facie evidence to proceed with trial against the intermediaries named and their senior officials. In the order he notes that, "It seems that instead of regulating the undesirable and offensive content they have promoted the same for increasing the profits and promoting their business. They have closed their eyes and promoted obscene derogatory defamatory and inflammatory material continuously on their network. It appears from a bare perusal of the documents that prima facie the accused in connivance with each other and other unknown persons are selling, publicly exhibiting and have put into circulation obscene, lascivious content which also appeals to the prurient interests and tends to deprave and corrupt the persons who are likely to read, see or hear the same."

IN THE COURT OF SUDESH KUMAR, METROPOLITAN MAGISTRATE PATIALA HOUSE COURTS, NEW DELHI

Complaint Case No. 136 of 2011

In the matter of:

Vinay Rai
S/o Sh. Mahima Rai
10 A. First Floor. Pritvi Raj Road
New Delhi

...Complainant

Versus

...Accused

Facebook India
Through its country head
Ms. Kirthiga Reddy
Office at: 4th Floor, Building-14. OPUS Towers,
Mindspace. Cyberabad, APIIC SW Unit Layout.
Madhapur. Hyderabad-500081
kirthiga@fb.com 07799021119
Facebook
Through its chairman
Donald Edward Graham —
Facebook Corporate Office
1601 S. California Ave. Palo Alto. CA 94304
Google India (P) Ltd.
Orkut
Youtube
Blogspot
Through its Country head
Shri Rajan Anandan
8th and 9th Floors. Tower — C, Building No.8,
DLF Cyber City, Gurgaon - 122 002
Google
Youtube
Blogspot
Orkut
Through its CEO, Larry Page — CEO
1600, Amphitheatre, Parkway, Mountain View,
CA 94043, USA
Yahoo India (P) Ltd
Shri Arun Tadanki
Building No.8, Tower-C,
DLF Cyber CityPhase-2 Gurgaon-
Yahoo
Through Roy J. Bostock — Chairman
Yahoo! Inc. 701 1st Ave., Sunnyvale, CA 94089
Microsoft India (P) Ltd.
Sri Bhaskar Pramanik 7th Floor,
Cyber Green Tower-A, DLF Cyber City, Phase-3
Gurgaon – 122002
Microsoft
Through Steve Ballmer — CEO
Microsoft Corporation, One Microsoft Way
Redmond, WA 98052-7329 USA
Zombie Time
DNS Services, 1650-302 Margaret St #332
Jacksonville, FL 32204-3869, US
Exbii
BoardReader.com
700 Tower Drive, Suite 140
Troy, Michigan 48098 US
Through its CEO/CHAIRMAN
IMC India
Through Sh. K.M. Gala-CEO, IMC India (Head Office)
418, Swastik Chambers, Sion Trombay Road
Chembur, Mumbai - 400 071 (Maharashtra)
My Lot
Through its CEO/CHAIRMAN
MyLot LLC, 7415 W 130th St
Suite #100, Overland Park, KS 66213, US
Shyni Blog
Through Sri Rajan Anandan
C/o Google India (P) Ltd
8th and 9th Floors. Tower—C, Building No 8,
DLF Cyber City Gurgaon—122002.
Topix
Through its CEO/CHAIRMAN
TOPIX.COM.P.O. Box 821650
Vancouver, WA 98682, US

IN THE COURT OF SH. SUDESH KUMAR

Ld. METROPOLITAN MAGISTRATE / PATIALA HOUSE COURTS / NEW DELHI

CC No. 136/1
Vinay Rai Vs. Facebook
PS Tughlak Road
23.12.2011

Order on Summoning:

The complainant in the present case is a Senior Journalist and Editor of Urdu Weekly namely Akbari. He has filed the present complaint U/s 200 Cr. PC r/w 156 (3) Cr. PC therein praying that the accused persons be summoned for having committed offences punishable U/ s 153-A, 153-B, 292, 293, 295 (A), 298, 109, 500 and 120-B of IPC. The complainant has submitted that the accused persons are the publishers and service providers of the electronic content in question in the present complaint and also responsible for the management and control of online site and internet content and the accused includes those who used, posted and uploaded the material on the site through the internet. It is alleged by the complainant that the content in question has been hosted on various websites which is per-se inflammatory, unacceptable by any set of community standards; seeks to create enmity, hatred and communal Violence amongst various religious communities: is demeaning, degrading and obscene, and it will corrupt minds and adversely affect religious sentiments. It is further submitted that the complainant had received some information in this regard and while going through the contents in the above said websites realized that the same were unacceptable to the secular fabric provided by the Constitution of India and would be intolerable to any community or religion. It is further alleged that on a bare perusal of the contents it is clear that the same would certainly corrupt young minds below the age of 18 and even elders, it is highly provocative and which may even lead to consequences effecting communal harmony. The complainant has mentioned the names of the websites allegedly hosting the said objectionable content in the memo of parties and provided the alleged objectionable material in a sealed envelope. The complainant has further stated that the Social Networking Websites are meant only for providing content with respect to educational, historical, research material and entertainment work etc. as part of their commercial activities for social purposes. However, the objectionable content available on these social networking websites may lead to communal riots. It is further alleged that Government authorities have turned a blind eye to the same and do not have any established procedure or rules and guidelines to control and regulate the same. It is averred that the Government is least bothered and as usual waiting for some mishappening before taking some appropriate actions. Neither police officials nor the Government have initiated any action to curb or check these activities sou moto and failed to register any case against the above named accused persons under any law to remove such contents from there. The complainant has further alleged that the main social networking websites are Google, Facebook, Youtube, Orkut, Broadreader, Mylot, Zombie Time, Shyni Blog, Blogspot, Exbii.com, IMC India. It is alleged that the accused persons knowingly allowed these contents and materials to be hosted in the websites which is dangerous to communal harmony with common and malfide intentions and have failed to remove the objectionable content for their wrongful gain. The complainant further stated that he has provided the said contents to the Court, in a sealed cover with request for directions not to publicize the offensive and inflammatory material which may lead to communal disharmony under his social responsibility. It is further stated by the complainant that the said contents available and hosted on the these sites are per-se unacceptable and clearly established the offences punishable under various provisions mentioned in the IPC and in case no action is taken against the accused person the same will cause serious prejudice to our society and social values provided and protected under the Constitution of India. It is further submitted that as a member of the community the complainant is not only individually hurt but also believes that it such content is allowed to continue on these platforms in this form, then incalculable and irreparable damage will be caused to the secular fabric of India. It is alleged that all those who are responsible for allowing this content to be hosted on the websites conspired with those who are the source of such content, and those who are promoting such material with malice to defame the country and with intent to spread communal violence to destabilise the country with undisclosed persons and are liable to be prosecuted and punished for offences U/s 153 (A), 153(B), 292, 293, 295(A), 298, 109, 500 and120-B IPC.

It is further averred that the contents which are shown on the social networking websites are clearly showing and instigating enmity between different groups on grounds of religion, race, place of birth, residence, language etc. and doing acts prejudicial to the maintenance of harmony as is quite apparent on a bare look at the material available on these social networking websites. It is further stated that the content which has been shown on these websites amount to imputations, assertions, which are prejudicial to national integration. It is alleged that the contents which are available on these social networking websites are obscene may lead to creation of obscene books, pamphlets, paper, which can easily be downloaded from these social networking websites affecting the minds of children and was harmful for social harmony and may lead to increase in crime against women also.

That the contents which are clearly mentioned and annexed in the sealed cover show the malafide intentions of these social networking websites hosting such content in these websites is an act of malice intended to outrage, religious feelings of classes of citizens by insulting their religion or religious beliefs. It is averred that the cause of action for filing the present complaint has risen on 8.12.2011 when the complainant downloaded these pictures and photos and these facts came to the knowledge of the complainant while sitting at his above stated residence and still continuing.

The complainant prays that the above said accused persons alongwith undisclosed persons are liable to be prosecuted and punished U/s U/s 153-A, 153-B, 292, 293, 295(A), 298, 109, 500 and 120-B of IPC.

The complainant has thereafter examined four witness in support of his complaint. Complainant Mr. Vinay Rai has examined himself as CW 1 in pre summoning evidence and he deposed on oath that he has gone through the contents which have been posted on various social networking websites as alleged and the documents downloaded from those sites are original as these have been downloaded directly from those websites. He produced Ex. CW 1/A-1 to Ex. CW 1/A-16 which have been downloaded from the website named as www.zombietime.com. He further deposed that Ex. CW 1/A-17 has been downloaded from Orkut which is arrayed as accused no.4 and 10. He also proved on record Ex. CW 1/A-18 downloaded from website mylot.com, which is a pre-se defamatory to all politicians. He further stated that Ex. CW 1/A-19 to Ex. CW 1/A-22 were downloaded from the post of topix.com and the contents are dangerous for our social structure and community. He further deposed that Ex. CW 1/A-23 to Ex. CW 1/A-36 which are posted by the service provider youtube.com without any sensor or prohibitory or disclaimer which is also dangerous for communal harmony and peace. He deposed that Youtube shown as accused no.5 and 8 provided the internet service and allowed to post these defamatory contents on websites and same is available to people below 18 years of age also which was also alarming danger to our society and Country. He deposed that such contents are against the secular fabric of our society, religion and culture. The witness has further stated that Ex. CW 1/A-37 to Ex. CW 1/A-48 are taken from the website facebook.com. He further proved on record Ex. CW 1/A-49 to Ex. CW 1/A-52 as provided by the blogspot.com, which is arrayed as accused at number 6 & 10 in the complaint and these documents are obscene and against the culture of our Country. He further stated that the blogspot is being managed by googleindia and googleinternational who have already been arrayed as accused in his complaint. He further stated that Ex. CW 1/A-53 has been taken from the website exbii.com, which provides services through google.com. The contents of the said exhibit are dangerous to our society and same has also been shown as political conspiracy to destabilize our Country. He further stated that Ex. CW 1/A-54 has been taken from website indymedia.org and same has been shown as a article posted by imcindia.org, which is against the Hinduism and defamatory to our religion. He further stated that the Ex. CW 1/A-55 provided by broadreader.com which is defamatory to Indian politicians and the Ex. CW 1/A-56 and Ex. CW 1/A-57 have been taken from the service provider blogspot.com which has been provided by the websites Further more, the complainant has deposed on the lines of his complaint. It is further prayed by the complainant that said accused persons alongwith certain undisclosed person were liable to be prosecuted U/s U/s 153-A, 153-B, 292, 293, 295(A), 298, 109, 500 and 120-B of IPC. It is further deposed by the complainant that all the contents were clearly showing and instigating enmity between different groups on the grounds of religion, race, place of birth, residence, language etc. and doing acts prejudicial to maintenance of harmony.

Complainant thereafter examined Mr. Rohit Mammen Alex as CW 2 in pre summoning evidence, who deposed on oath that he was not only a practicing Orthodox Christian but is an extremely secular person and has seen and found extremely shocking some of the contents on the websites in question. He further stated that the present complaint is filed by the complainant not only in public interest but also as an affected person who believes in a secular India. He further deposed that the accused persons are the publishers and service providers of the electronic contents and also responsible to manage and control online site and internet contents as also whoever user and post the material on the site through internet. CW 2 further deposed that the contents of the website in question not only are inflammatory and shocking but have been deliberately posted by the persons in question to inflame the minds of the persons who view it but also create grave communal tensions and to incite hatred amongst religious denominations across the country. He further deposed that on bare perusal of the said contents it is clear that the same will certainly corrupt young and impressionable minds and is highly provocative and which may lead to illogical and dangerous consequences. He deposed that the contents prima facie appear to be dangerous to society and communal harmony. He stated that the exhibited documents clearly show the malafide intentions of the these social networking websites to create deliberate and malicious acts intended to outrage religious feelings of people. He further stated that each and every documents exhibited herein the complaint are downloaded from the website of the accused persons and same may be treated as original of their respective documents.

Thereafter Dr. Aziz Ahmad Khan was examined as CW 3, who also deposed on oath that he is a scholar and P.HD. in Urdu but is an extremely secular person and has seen and found extremely shocking some of the contents of the websites in question. He also deposed that the complainant has filed the present complaint not only in public interest but also as an affected person who believes in a secular India. He further deposed that the accused person are the publishers and service providers of the electronic contents and also responsible to manage and control online site and internet contents as also whoever uses and posts the material on the site through internet. He also deposed that the contents of the websites in question not only are inflammatory and shocking but have been deliberately posted by the persons in question to inflame the minds of persons who view it but also to create grave communal tensions and to incite hatred amongst religious denominations across the country. He further deposed that the on a bare perusal of the said contents it is clear that the same will certainly corrupt young and impressionable minds and is highly provocative and which may lead to dangerous consequences. He submitted that these contents prima facie appear to be dangerous to society and communal harmony. He deposed that if such contents are allowed to be hosted on these websites would seriously damage the secular fabric of India and would severely hurt the sentiments of the general public following different religions. He further deposed that the contents of the exhibited documents clearly show the malafide intention of these social networking websites to create deliberate and malicious acts intended to outrage religious feelings of people. He further deposed that all the documents exhibited herein the complaint are downloaded from the website of the accused and same may be treated as original of their respective documents.

Mr. Rahul Agrawal was examined as CW 4 in pre summoning evidence by the complainant, who also deposed on oath that he is a Journalist and running a News Agency and he is a secular person and believe to maintain peace and harmony amongst the society and Country. He stated that he felt offended when he had seen and found extremely shocking some of the contents of the websites in question. He further stated that accused persons are the publishers and service providers of the electronic contents and also responsible to manage and control online site and internet contents as also whoever uses and posts the material on the site through internet. He further stated that the contents of the websites in question not only are inflammatory and shocking but have been deliberately posted by the persons in question to inflame the minds of the persons who view it but also to create grave communal tensions and to incite hatred amongst religious denominations across the country. He further stated that even on a bare perusal of the said contents it is clear that the same will certainly corrupt young and impressionable minds and is highly provocative and which may lead to illogical and dangerous consequence. He further stated that the contents as exhibited prima facie appear to be dangerous to society and communal harmony and if such contents are allowed to be hosted on these websites would seriously damage the secular fabric of India and would severely hurt the sentiments of the general public following different religions. He further stated that the contents of the exhibited documents clearly show the malafide intention of these social networking websites to create deliberate and malicious acts intended to outrage religious feelings of people. He further stated that the contents hosted on each of these websites are ex-facie scurrilous, defamatory, prejudicial to the maintenance of harmony between different religions and communities, likely to cause fear and generate a feeling of insecurity amongst members of religious communities, obscene by any criteria of community standards of obscenity, seeks to corrupt young minds, malicious and insulting to religions and religious feelings of persons and under no stretch of imagination be considered to be under freedom of speech and expression. He further stated that each and every documents exhibited herein the complaint are downloaded from the website of the accused and same may be treated as original of their respective documents.

No other Complainant witness was examined in pre summoning evidence and the pre summoning evidence was closed. As the addresses of most of the respondents are beyond the jurisdiction of this court, an enquiry report U/s 202 Cr. PC was sought from the SHO concerned regarding the authenticity of documents as filed in the court.

SHO PS Tughlak Road has furnished this enquiry report on 17.12.2011. Today, the matter has been fixed for Orders on summoning. The complainant has furnished about 60 internet generated print outs alongwith the complaint in a sealed cover. The sealed cover was opened during pre summoning evidence. I have gone through each and every internet generated print out. Today, complainant has also furnished a CD submitting that the same contained the vulgar and obscene data available on the networks of the proposed accused and print outs of which were placed on record vide Annexure-A.

To my mind the printouts as furnished and exhibited on bare perusal are found to be obscene, lascivious, indecent and shocking. The printouts shown are totally degrading and demeaning. Some of the printouts are showing various religious idols in a very degrading, demeaning and obscene way which are certainly unacceptable to any person professing such religion and also to civilized society as a whole. There are obscene picture and derogatory articles pertaining to Prophet Mohammed, Jesus and various Hindu God and Godesses. There are defamatory and obscene articles pertaining to various Indian political leaders. The contents are certainly disrespectful to the religious sentiments and faith and seem to be intended to outrage the feelings of the religious people whether Hindu, Muslim or Christian. There are certain degrading and obscene photographs of various political leaders belonging to different political parties and the photographs pasted and the language used is also obscene, filthy and degrading.

Prima facie, I am satisfied that the material produced on record will promote enmity between different religious sections and groups and a feeling of hatred and ill-will between them would be promoted if the offensive material was allowed to be publicised as such. The documents are certainly prejudicial to the maintenance of harmony between different religious groups. They tend to promote feeling of insecurity amongst members of some religion. The documents are obscene and could certainly corrupt the minds of the young. Most of the obscene pictures produced on record are tending to hurt the feelings of different religions. In my considered view, the said contents are certainly prejudicial to national harmony and integration. The publication of such offensive and inflammatory material which has tendency to inflame minds cannot be considered to be an expression of freedom of speech by any stretch of imagination in civil society. Having gone through the record, I am satisfied that the said contents produced on record by the complainant and which were available on various websites are not protected by the doctrine of free speech of expression under our Constitution. In fact much content fell foul of Provisions of Article 19 (1) (a) of the Constitution of India.

The Counsel for complainant has further argued vehemently that the offensive material as placed on record was just a part of a very large bunch of such content which was available on these networks. He further argued that it was impossible that availability of such content in such large quantity was publicised without the knowledge and connivance of the accused persons. He further alleged that all the accused persons in connivance with each other and some unknown persons have intentionally and knowingly permitted such content to be publicised just for the sake of commercial gains.

Having gone through the record, I find force in the arguments advanced on behalf of the complainant. All the accused persons are involved in the business of publication and are providing service of the electronic contents to users. They are certainly doing it for commercial gain. The accused persons having full control over the working of their sites it seems have purposely promoted and publicised offensive material for their commercial gains. It seems that instead of regulating the undesirable and offensive content they have promoted the same for increasing the profits and promoting their business. They have closed their eyes and promoted obscene derogatory defamatory and inflammatory material continuously on their network.

It appears from a bare perusal of the documents that prima facie the accused in connivance with each other and other unknown persons are selling, publicly exhibiting and have put into circulation obscene, lascivious content which also appeals to the prurient interests and tends to deprave and corrupt the persons who are likely to read, see or hear the same. It is also evident that such contents are continuously openly and freely available to every one who is using the said network irrespective of their age and even the persons under the age of 18 years have full and uncensored access to such obscene contents.

From the above, it is clear that there is prima facie material on record against the accused persons for committing offences U/s 292/293/120 IPC and they are liable to be summoned for facing trial for the same.

However, from the testimony of these witnesses examined on record belonging to three different religions alongwith the material produced on record, it is evident that the same promotes enmity between different groups and religions, which is certainly prejudicial to the maintenance of peace and communal harmony. The accused persons through the publication and promotion of the offensive material as produced on record seem to be promoting disharmony, feeling of enmity, hatred or ill-will between different religions. The act / omission on part of the accused person as alleged certainly tends to prejudice the maintenance of harmony between different groups and religions. The imputations and assertions and publications as produced on record are prejudicial to the national interest.

The contents as produced by the complainant are insulting and outrageous to the religious feelings of various classes of people.

From the above as argued vehemently by the Ld. Counsel for the complainant. I find, prima facie, that the accused persons are liable to be summoned for offences U/s 153-A, 153-B and 295-A IPC. However, owing to the embargo under section 196 Cr. PC which prohibits taking of cognizance under the said Provisions except with the previous sanction of the Central Government or State Government or District Magistrate, the accused persons are not summoned for the said offences. All the accused persons however, be summoned for facing trial U/s 292, 293 and 120-B IPC for 13.01.2012 on filing of PF.

Ld. Counsel for complainant has also vehemently argued that even the Government of India seems to have turned a blind eye to the offensive, degrading and demeaning content on these websites which is outrageous and also against national integration. In the facts and circumstances of the case, taking into consideration the submissions made on behalf of the complainant, let a copy of this Order be also sent to the Government of India through the Secretary (Information and Technology), Secretary (Home) and Secretary (Law) for taking the immediate appropriate steps in this regard and file a report on the next date of hearing i.e. 13.01.2012.

Sudesh Kumar / MM / ND / 23.12.2011.

For more details visit https://cis-india.org/internet-governance/resources/vinay-rai-v-facebook-summons-order-2011-12-23

Comments on Technical Standards for Interoperability Framework for E-Governance in India (Phase II)

pranesh — 2012-02-29T09:44:07Z

The e-Governance Standards Division has called for public comments on the draft of the Technical Standards IFEG Phase II. We from the Centre for Internet and Society have given our comments.

The present document is — as the draft IFEG Phase I document was — an excellent step in the right direction, following very ably the policy guidelines laid down in the National Policy on Open Standards for e-Governance.

The Expert Committee and other contributors have made excellent choices as to the 29 standards that have been laid down in this phase of the IFEG. It is praiseworthy that the majority of these (20) are designated as mandatory, and only nine are designated as interim standards. Furthermore, the system has been quite transparent with the selection of standards, providing concise descriptions for each.

That said, the document could be improved by providing greater detail for those standards which are said to violate the National Open Standards Policy. In the current document, every interim standard is said to violate “clause 2”, rather than providing the more specific details (sub-clause, one-line explanation) about the violation.

It is unfortunate that yet again accessibility-related standards have been passed over in the presentation and archival domain.

As we have mentioned in earlier feedback, many other governmental interoperability frameworks are going beyond merely listing technical standards. Some governments, such as Germany and the EU, go beyond technical interoperability, and also have documents dealing with organizational, informational, and legal interoperability. These are equally important components of an interoperability framework. Other governments also also lay down best practice guides, and other aids to implementation, sometimes even including application recommendations. Further, there are many which lay out standards for the the semantic layer, business services layer, etc.

We at the Centre for Internet and Society are currently advising the government of Iraq on development of their e-Governance Interoperability Framework, and would be glad to extend any support that the Department of IT may require of us, including comments on all further phases.

Section-specific Comments

Section 5.2.8

It is unclear whether by IEEE 802.11-2007, the base version is being referred to or the amended version, since IEEE 802.11-2007 has been amended by IEEE 802.11n-2009 to include the IEEE 802.11n standard. As IEEE 802.11n has also become an established standard, it is suggested that section 5.2.28 make it clear that the amended standard is being referred to.

Section 5.2.13

It is recommended that IMAP v4rev1 (IETF RFC 3501, updated by RFCs 4466, 4469, 4551, 5032, 5182, 5738, 6186, supplemented by RFCs 2177, 4550) be used instead of POP3 (IETF RFC 1939). It is critical that governmental messages be preserved on government servers, and should not simply be downloaded and then deleted as is the default with POP3 implementations. IMAP allows for downloading and offline access to mails as well. Any deletion on the server from the client would be recorded in the server logs, hence allowing for transparency. Given this, and the more advanced features available in IMAP, it should be preferred to POP3. In other government interoperability frameworks where an e-mail access protocol is specified, including those of Germany, Malaysia, and Hong Kong, IMAP is provided as a standard and never is POP3 provided as the sole standard.

Section 5.2.15

SAML 2.0 is a standard for exchanging authentication and authorization data between security domains, and is not a ‘Wireless LAN Authentication’ standard. Indeed, section 5.2.8 (IEEE 802.11-2007) talks about ‘Wireless LAN Security’.

Section 5.2.23

WML v1.3, as noted, is a declining standard that is deprecated due to the recommendation by W3C of XHTML Basic v1.1. If it is at all included, it should be included not as “Mandatory – Watchlist”, but as “Additional Standard”, as it is a direct competitor to XHTML Basic v1.1.

For more details visit https://cis-india.org/openness/interoperability-framework-for-e-governance

Mufti Aijaz Arshad Qasmi v. Facebook and Ors (Order dated December 20, 2011)

pranesh — 2012-02-20T18:02:44Z

This is the order passed on December 20, 2011 by Addl. Civil Judge Mukesh Kumar of the Rohini Courts, New Delhi. All errors of spelling, syntax, logic, and law are present in the original.

Suit No 505/11

Mufti Aijaz Arshad Qasmi
vs.
Facebook etc.

20.12.11

Fresh suit received by assignment. It be checked and registered.

Present: Plaintiff in person with Ld. Counsel.

Ld. Counsel for plaintiff prayed for ex-parte ad-interim injunction. He has filed the present suit for permanent and mandatory injunction against 22 defendants who are running their social networking websites under the name of Facebook, Google India (P) Ltd., Yahoo India (P) Ltd., Microsoft India (P) Ltd., Orkut, Youtube etc as shown in the memo of parties in the plaint. It is submitted that plaintiff is an active citizen of India and residing at the given address and he believes in Secular, Socialist and Democratic India professing Muslim religion. It is further submitted that the contents which are uploaded by some of the miscreants through these social networking websites mentioned above are highly objectionable and unacceptable by any set of the society as the contents being published through the aforesaid websites are derogatory, per-se inflammatory and defamatory which cannot be acceptable by any of the society professing any religion. Even if the same is allowed to be published through these social networking websites and if anybody will take out the print and circulated amongst any of the community whether it is Muslim or Hindu or Sikh, then definitely there would be rioting at mass level which may result into serious law and order problem in the country. Where the miscreants have not even spare any of the religion, even they have created defamatory articles and pictures against the Prophet Mohammad, the Hindu goddess Durga, Laxmi, Lord Ganesha and many other Hindu gods which are being worshiped by the people of Hindu community. It is prayed by the counsel for plaintiff that the defendants may be directed to remove these defamatory and derogatory articles and pictures from their social websites and they should be restrained from publishing the same anywhere through Internet or in any manner. It is further submitted that the social websites are being utilised by the every person of whatever age of he is whether he is 7 years old or 80 years old. These defamatory articles will certainly corrupt not only young minds below the 18 years of age but also corrupt the minds of all age group persons. It is further submitted that even the miscreants have not spared the leaders of any political party whether it is BJP, Congress, Shiv Sena or any other political party doing their political activities in India, which may further vitiate the minds of every individual and may result into political rivalry by raising allegations against each other.

I have gone through the record carefully wherein the plaintiff has also filed a CD containing all the defamatory articles and photographs, plaintiff also wants to file certain defamatory and obscene photographs of the Prophet Mohammad and Hindu Gods and Goddesses. Photographs are returned to the plaintiff, although, the defamatory written articles are taken on record. Same be kept in sealed cover.

In my considered opinion, the photographs shown by the plaintiff having content of defamation and derogation against the sentiments of every community. In such circumstances, I am of the view that the plaintiff has a prima facie case in his favour. Moreover, balance of convenience also lies against the defendants and in favour of the plaintiff. Moreover, if the defendants will not be directed to remove the defamatory articles and contents from their social networking websites, then not only the plaintiff but every individual who is having religious sentiments would suffer irreparable loss and injury which cannot be compensated in terms of money. Accordingly, in view of the above discussion, taking in consideration the facts and circumstances and nature of the suit filed by the plaintiff where every time these social networking websites are being used by the public at large and there is every apprehension of mischief in the public, the defendants are hereby restrained from publishing the defamatory articles shown by the plaintiff and contained in the CD filed by the plaintiff immediately on service of this order and notice. Defendants are further directed to remove the same from their social networking websites.

Application under Order 39 Rule 1 & 2 CPC stands allowed and disposed of accordingly.

Summons be issued to the defendants on filing of PF/RO/Speed Post. The defendants having their addresses in different places may be served as per the provisions of Order 5 CPC. Reader of this court is directed to keep the documents and CD in a sealed cover. Plaintiff is directed to get served the defendants along with all the documents. Plaintiff is further directed to ensure the compliance of the provisions under Order 39 Rule 3 CPC and file an affidavit in this regard. Copy of this order be given dasti.

Put up for further proceedings on 24.12.11.

Sd/-
(Mukesh Kumar)
ACJ-cum-ARC, N-W
Rohini Courts, Delhi

For more details visit https://cis-india.org/internet-governance/resources/order-2011-12-20-mufti-aijaz-arshad-qasmi-v-facebook-and-ors

Section 200 Complaint in Vinay Rai v. Facebook India and Ors.

pranesh — 2012-02-20T16:22:35Z

This is the complaint filed by Vinay Rai against Facebook, Google, Microsoft, Yahoo, "Exboii" (sic), Shyni Blog, Topix, and others, under sections 200 and 156(3) of the Cr.P.C., read with sections 153A, 153B, 292, 293, 295A, 298, 109, 500, and 120B of the Indian Penal Code.

IN THE COURT OF ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, PATIALA HOUSE COURTS, NEW DELHI

Complaint Case No __ of 2011

In the matter of:

Vinay Rai
S/o Sh. Mahima Rai
10 A, First Floor, Pritvi Raj Road
New Delhi

... Complainant

Versus

Facebook India
Through its country head
Ms. Kirthiga Reddy
Office at : 4th Floor, Building-14, OPUS Towers, Mindspace, Cyberabad, APIIC SW Unit Layout, Madhapur, Hyderabad-500081
kirthiga@fb.com
07799021 119
FaceBook
Through its chairman
Donald Edward Graham
Facebook Corporate Office 1601 S. California Ave. Palo Alto, CA 94304
Google India (P) Ltd.
Orkut
Youtube
Blogspot
Through its Country head
Shri Rajan Anandan
8th and 9th Floors, Tower -- C, Building No.8, DLF Cyber City, Gurgacn - 122 002
Google
Youtube
Blogspot
Orkut
Through its CEO,
Larry Page - CEO
1600, Amphitheatre, Parkway, Mountain View, CA 94043, USA
Yahoo India (P) Ltd.
Shri Arun Tadanki
Building No. 8, Tower-C, DLF Cyber City Phase-2, Gurgaon
Yahoo
Roy J. Bostock - Chairman
Yahoo! Inc.701 1st Ave., Sunnyvale, CA 94089
Microsoft India (P) Ltd.
Shri Bhaskar Pramanik
7th Floor, Cyber Green Tower-A.
DLF Cyber City, Phase-3 Gurgaon-122002
Microsoft
Through Steve Ballmer - CEO Microsoft Corporation
One Microsoft Way, Redmond, WA 98052-7329 USA
Zombie Time
Exboii [sic]
Boardreader
IMC India
My Lot
Shyni Blog
Topix

...Accused

P.S. Tuglak Road

Complaint Under Section 200 Read With Section 156 (3) Of the Code of Criminal Procedure For Registration of FIR Under Section 153 (A), 153(B), 292, 293, 295(A), 298, 109, 500 and 120 B of the INDIAN PENAL CODE.

THE COMPLAINANT MOST RESPECTFULLY SHOWETH:

That the complainant is a law abiding citizen of India. The Complainant is a resident of above stated address.
The complainant before this Hon'ble Court is a senior journalist and editor of Akbari, an Urdu weekly.
That the complainant is moving to this Court as a citizen of India, not only in public interest but also as an affected person who believes in a secular India.
The accused persons are the publishers and service provider of the electronic contents and also responsible to manage and control online site and internet contents, who ever used and post the material on the site through internet.
That the complainant wishes to draw the attention of this Hon'ble Court to certain content hosted on various websites, which are per-se inflammatory, unacceptable by any set of community standards; seeks to create enmity, hatred and communal Violence amongst various religious communities; is demeaning, degrading and obscene, and will corrupt minds and will seriously affect religious sentiments . It is submitted that complainant had received some information about these type contents and material posted on the social site as well as sites of the above named accused and thereafter the complainant in his office at the above mentioned address while going through the contents of the above said websites realized that the same were unacceptable to the secular fabric provided by the constitution of India and would be intolerable to any community or religion.
That even on a bare perusal of the content it is clear that the same will certainly corrupt young minds below the age of 18 years is highly provocative and which may lead to illogical and dangerous consequences. It is humbly submitted that these contents prima facie appears to be dangerous for the society and communal harmony.
That such content, if allowed to be hosted on these websites would seriously damage the secular fabric of India and would severely hurt the sentiment of general public following different religions. Following are the websites which host the said objectionable content as provided to the Hon'ble court in a sealed envelope: 1.Facebook, 2.Youtube, 3. Google 4.Yahoo,5.0rkut, 6.Broadreader, 7. Mylot, 8.Zombie Time, 9.Shyni Blog, 10.Blogspot, 11.Exbii.com, 12.IMC India
That the accused persons are Social Networking Websites and their Directors, Agents with their addresses provided as per the memo of parties.
The Social Networking Websites are only for providing the educational, historical, research and entertainment work etc. as part of their commercial activities meaning thereby that the functions and informations which are regarding the welfare, development and entertainment of the society.
That on perusal of the same it has been found that presently there are so many objectionable materials available on these social networking websites which may lead to communal riots. It seems that the government authorities have turned a blind eye to the same and does not have any established measures or rules and guidelines to control and regulate the same. On the bare perusal of all these contents it is more than evident that the government is least bothered and as usual waiting for some dangerous consequences to happen before taking some appropriate actions . It is submitted that the neither police official nor the government had initiated any action to curve/check these activities sou moto and failed to registered any .case against the above named accused persons in any manner whatsoever under any law prevailing at present point of time and corrective measures against the said websites and the concerned officials.
That the main social networking websites are Google, Facebook, Youtube, Orkut, Broadreader, Mylot, Zomie Time, Shyni Blog, Blogspot, Exbii.com, IMC India. These accused persons knowingly well these facts that these contents and materials are most dangerous for the community and peace of the harmony, but with common and malfide intention and hands under glove with each other failed to remove the same for the wrongful gain.
That the complainant is filing this complaint against the Directors, Agents, Officials, Representatives and Employees of all the said Social Networking Websites for having committed the offences under Section 153 (A), 153(B), 292, 293, 295(A), 298 and 500 of the IPC, which this hon'ble court will appreciate even on a bare glance of the contents provided in the sealed cover. The same is being provided to this hon'ble court in a sealed cover understanding my social responsibility not to publicize the offensive and inflammatory material which may lead to communal disharmony.
That the nature of the content hosted on each of these websites are ex-facie scurrilous, defamatory, prejudicial to the maintenance of harmony between different religions and communities, likely to cause fear and generate a feeling of insecurity amongst members of religious communities, obscene by any criteria of community standards of obscenity, seeks to corrupt young minds, malicious and insulting to religions and religious beliefs of certain communities and is intended to wound the religious feelings of persons and under no stretch of imagination be considered to be under freedom of speech and expression . The contents hosted on the websites are annexed to this complaint in a sealed cover as Annexure - A.
That Perusal of the content will lead to the conclusion that the same is per-se unacceptable. It is humbly submitted that the contents of the site are clearly established the offences punishable under provisions mentioned in the above and if the action will taken against the accused person the same will be caused serious prejudice to our society and social value provided and protected under constitution of India.
That as a member of the community, The complainant is not only individually hurt but also believe that if such content is allowed to continue to be on these platforms in this form, then incalculable and irreparable damage will be caused to the secular fabric of India. All those who are responsible for allowing this content to be hosted on the websites conspired with those who are the source of such content, and those who are promoting such material to malice and defame the country with intention to spread the communal violence to destabilise the country with undisclosed persons are liable to be prosecuted and punished under these Sections 153 (A), 153(B), 292, 293, 295(A), 298,109, 500 and 120B of the INDIAN PENAL CODE.
That the contents which are shown on the social networking websites are clearly showing and instigating enmity between different groups on the grounds of religion, race, place of birth, residence, language etc. and doing acts prejudicial to maintenance of harmony. It is clearly visible on the material available on these social networking websites.
That the content which has been clearly shown on these websites are clearly imputations, assertions, prejudicial to national integration. The material is clearly visible in the Annexure .
That the contents which are available on these social networking websites is obscene, that will create obscene books, pamphlets, paper, which can easily be downloaded from these social networking websites. It will affect the minds of the children. It is also harmful in the development of the nation.
That the contents which are clearly mentioned and annexed in Annexure, shows the contents and malafide intention of these social networking websites to create deliberate and malicious acts intended to outrage, religious feelings of any class by insulting its religion or religious beliefs.
That the cause of action for filing the present complaint has arisen on 8.12.2011 when the complainant downloaded these pictures and photos and these facts came to know in the knowledge of the complainant while sitting at his above stated residence The cause of action is continuing and arising day by day.
That the cause of action has arisen within the jurisdiction of the Hon'ble Court which may take cognizance of the offence as committed by the accused persons.
That the present complaint has been filed within the period of limitation and this Hon'ble Court is competent to entertain & try the present complaint and grant relief to the complainant.
That the complainant seeks the permission of this Hon'ble Court to urge any additional ground or to examine any other witness or to submit any other documents which would be made available to him at the time of hearing of this complaint.

PRAYER

In view of the aforesaid submission made here in and in the interest of the justice, it is therefore most respectfully prayed that this Hon'ble Court may graciously be pleased to:

Register the present complaint.
Take cognizance of the offence, as the contents per-se amount to commission of offences, as indicated above, without anything more.
Summon try and punish the accused persons for committing the offences under section 153(A), 153(B), 292, 293, 295(A), 298, 109, 500 and 120B of the IPC.
Take appropriate steps for prosecution and punishment of the above website owners, concerned officials and their representatives and undisclosed accused persons.

Pass such other or further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

COMPLAINANT

Through Counsel

Dated: 15.12.2011
Place: New Delhi

For more details visit https://cis-india.org/internet-governance/resources/s200-complaint-vinay-rai-v.-facebook-india-and-ors

World Narrow Web

pranesh — 2012-03-27T16:00:24Z

Censorship and how govt reacts to it may push us to country-specific networks, writes Pranesh Prakash in an article published in the Indian Express on 4 February 2012.

Twitter, a popular micro-blogging service, recently announced that “[today] we give ourselves the ability to reactively withhold content from users in a specific country — while keeping it available in the rest of the world”. In a move a few weeks ago, Blogger, Google’s blogging service, in effect announced something similar, by saying that default they would redirect Blogger users trying to get to Blogspot.com addresses (like http://example.blogspot.com) to their respective country sites (like http://example.blogspot.in). Twitter’s announcement was greeted with much disapproval by many Twitter users, as a move towards censorship, with some talking (on Twitter) about a boycott. Blogger’s move was hidden away, deep within a help page, and is being noticed now, and is causing quite a stir as caving in to censorship. Are these concerns justified? Before answering that question, let’s look at what the platforms’ announcements really say.

Twitter has given itself the ability to withhold specific tweets and users in particular countries where that content is legally required to be removed (generally with a court order). Their earlier option, they inform us, was to block the offending tweets and users in all countries. Apart from this, they will publish a notice for each tweet/ user that is blocked in a country. They will also be proactively publishing every removal request they receive at ChillingEffects.org, which allows us to hold them to account and question their decision to remove tweets.

Google, by redirecting you to the country-specific Blogger, is allowing for country-level removal of both blogs and individual blog posts. However, they also note that you can circumvent this by using a special “no redirect” address. Google currently forwards all search-related removals, but does not do so for Blogger-related requests, and all copyright-related complaints to ChillingEffects.org. Google does publish aggregate data relating to censorship of Blogger, on which free-speech advocates have been asking them to provide more granular information.

There are three problems. First, while Twitter was just as open to repressive governments’ requests last week, by making this change, they are advertising this fact to such governments. Thailand has noted it, and has congratulated Twitter.

Second, as Rob Beschizza, managing editor of the website Boing Boing, pointed out, there have been no instances of political content having been removed by Twitter. Even British courts’ super-injunctions (injunctions on speech, that prevent you from mentioning the fact that there is an injunction) were defeated by Twitter users, which only showed that attempts to censor material results in even more attention being drawn to it (which is popularly known as the “Streisand Effect”). So, does this now mean that Twitter will start applying local laws to judge “valid and applicable legal requests”, instead of American laws? What if the law is as bad as that which exists in India, where they are required to remove content within 36 hours based on any affected person’s complaint — without a court order? Will they still act on it? If they don’t, will the government or courts order Twitter.com to be blocked in India, finding it liable for illegal omissions?

Third, this trend points increasingly to the fact that we are witnessing a Balkanisation of the Web as more countries start asserting their sovereignty online. As Chinese dissident journalist Michael Anti pointed out recently, it seems we now need visas (read “circumvention techniques”) to visit the international Web. But even then, there is no longer a singular “international” Web, but an Indian Web and a Guatemalan Web, and an Angolan Web. And the government’s recent proposal of requiring companies to locate their servers in India is a move towards this (apart from being a move towards killing cloud computing).

That having been said, the reality is that the CEOs of Google, Google India, and Microsoft have been summoned to appear in Indian courts for allowing their users to publish material which they don’t know about, which is in a sealed envelope (and most of the accused companies haven’t been shown yet), and which they weren’t even asked once to remove.

The Intermediary Guidelines Rules passed by the Department of Information Technology in April 2011 do not require the user, whose content it is, to be told that there is a complaint, nor to be given a chance to defend themselves. It does not even require public notice that the content has been removed.

The truth is, the transparency around censorship that Google and Twitter are providing is far better than what most other companies are providing. For instance, Big Rock, an Indian DNS provider, suspended the CartoonsAgainstCorruption.com web address on the basis of a seemingly not legal request by the Cyber Cell of the Mumbai Crime Branch, and did so without any public notice and without even informing the cartoonist whose web address it was. At least Google and Twitter are pushing back against non-legal requests, and refusing to remove content that doesn’t violate local laws. Single-mindedly criticising them will only put off other companies from following in their footsteps.

Instead of criticising those who are actually working towards transparency in censorship, we should encourage them and others, push intermediaries not to cave in to unreasonable censorship requests, prevent them from over-censoring on their own, and push hard for the government to incorporate their best practices as part of the Intermediary Guidelines Rules.

The original article was published in the Indian Express

For more details visit https://cis-india.org/internet-governance/world-narrow-web

Information Technology (Intermediaries Guidelines) Rules, 2011

pranesh — 2012-01-26T17:33:38Z

The Information Technology (Intermediaries Guidelines) Rules, 2011, as notified on April 11, 2011. All errors are in the original notification.

THE GAZETTE OF INDIA : EXTRAORDINARY
[ PART II-SEC. 3(i)]
NOTIFICATION
New Delhi, the 11th April, 2011

G.S.R. 314(E).— In exercise of the powers conferred by clause (zg) of subsection (2) of section 87 read with sub-section (2) of section 79 of the Information Technology Act, 2000 (21 of 2000), the Central Government hereby makes the following rules, namely.-

1. Short title and commencement —

(1) These rules may be called the Information Technology (Intermediaries guidelines) Rules, 2011.

(2) They shall come into force on the date of their publication in the Official Gazette

2. Definitions —
        (1) In these rules, unless the context otherwise requires,--
                (a) "Act" means the Information Technology Act, 2000 (21 of 2000);
                (b) "Communication link” means a connection between a hyperlink or graphical element (button, drawing, image) and one or more such items in the same or different electronic document wherein upon clicking on a hyperlinked item, the user is automatically transferred to the other end of the hyperlink which could be another document website or graphical element.
                (c) "Computer resource” means computer resources as defined in clause (k) of sub-section (1) of section 2 of the Act;
                (d) "Cyber security incidnt” means any real or suspected adverse event in relation to cybersecurity that violates an explicity or implicity applicable security policy resulting in unauthotrised access, denial of service or disruption, unauthorised use of a computer resource for processing or storage of information or changes to data, information without authorisation;
                (e) "Data" means data as defined in clause (o) of sub-section (1) of section 2 of the Act;
                (f) "Electronic Signature" means electronic signature as defined in clause (ta) of sub-section (1) of section 2 of the Act;
                (g) "Indian Computer Emergency Response Team” means the Indian Computer Emergency Response Team appointed under sub section (1) section 70 (B) of the Act;
                (h) “Information” means information as defined in clause (v) of sub-section (1) of section 2 of the Act;
                (i) “Intermediary” means an intermediary as defined in clause (w) of sub-section (1) of section 2 of the Act;
                (j) "User" means any person who access or avail any computer resource of intermediary for the purpose of hosting, publishing, sharing, transacting, displaying or uploading information or views and includes other persons jointly participating in using the computer resource of an intermediary.

(2) Ail other words and expressions used and not defined in these rules but defined in the Act shall have the meanings respectively assigned to them in the Act.

3. Due diligence to he observed by intermediary —
The intermediary shall observe following due diligence while discharging his duties, namely : —

(1) The intermediary shall publish the rules and regulations, privacy policy and user agreement for access-or usage of the intermediary's computer resource by any person.

(2) Such rules and regulations, terms and conditions or user agreement shall inform the users of computer resource not to host, display, upload, modify, publish, transmit, update or share any information that —
(a) belongs to another person and to which the user does not have any right to;

(b) is grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, paedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever;

(d) infringes any patent, trademark, copyright or other proprietary rights;

(e) violates any law for the time being in force;

(f) deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;

(g) impersonate another person;

(h) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource;

(i) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation.

(3) The intermediary shall not knowingly host or publish any information or shall not initiate the transmission, select the receiver of transmission, and select or modify the information contained in the transmission as specified in sub-rule (2):
provided that the following actions by an intermediary shall not amount to hosing, publishing, editing or storing of any such information as specified in sub-rule: (2) —

(a) temporary or transient or intermediate storage of information automatically within the computer resource as an intrinsic feature of such computer resource, involving no exercise of any human editorial control, for onward transmission or communication to another computer resource;
(b) removal of access to any information, data or communication link by an intermediary after such information, data or communication link comes to the actual knowledge of a person authorised by the intermediary pursuant to any order or direction as per the provisions of the Act;

(4) The intermediary, on whose computer system the information is stored or hosted or published, upon obtaining knowledge by itself or been brought to actual knowledge by an affected person in writing or through email signed with electronic signature about any such information as mentioned in sub-rule (2) above, shall act within thirty six hours and where applicable, work with user or owner of such information to disable such information that is in contravention of sub-rule (2). Further the intermediary shall preserve such information and associated records for at least ninety days for investigation purposes,

(5) The Intermediary shall inform its users that in case of non-compliance with rules and regulations, user agreement and privacy policy for access or usage of intermediary computer resource, the Intermediary has the right to immediately terminate the access or usage lights of the users to the computer resource of Intermediary and remove non-compliant information.

(6) The intermediary shall strictly follow the provisions of the Act or any other laws for the time being in force.

(7) When required by lawful order, the intermediary shall provide information or any such assistance to Government Agencies who are lawfully authorised for investigative, protective, cyber security activity. The information or any such assistance shall be provided for the purpose of verification of identity, or for prevention, detection, investigation, prosecution, cyber security incidents and punishment of offences under any law for the time being in force, on a request in writing staling clearly the purpose of seeking such information or any such assistance.

(8) The intermediary shall take all reasonable measures to secure its computer resource and information contained therein following the reasonable security practices and procedures as prescribed in the Information Technology (Reasonable security practices and procedures and sensitive personal Information) Rules, 2011.

(9) The intermediary shall report cyber security incidents and also share cyber security incidents related information with the Indian Computer Emergency Response Team.

(10) The intermediary shall not knowingly deploy or install or modify the technical configuration of computer resource or become party to any such act which may change or has the potential to change the normal course of operation of the computer resource than what it is supposed to "perform thereby circumventing any law for the time being in force:
provided that the intermediary may develop, produce, distribute or employ technological means for the sole purpose of performing the acts of securing the computer resource and information contained therein.

(11) The intermediary shall publish on its website the name of the Grievance Officer and his contact details as well as mechanism by which users or any victim who suffers as a result of access or usage of computer resource by any person in violation of rule 3 can notify their complaints against such access or usage of computer resource of the intermediary or other matters pertaining to the computer resources made available by it. The Grievance Officer shall redress the complaints within one month from the date of receipt of complaint.

[F. No. 11(3)/2011-CLFE]
N. RAVI SHANKER, Jt. Secy.

For more details visit https://cis-india.org/internet-governance/resources/intermediary-guidelines-rules

Section 79 of the Information Technology Act

pranesh — 2012-11-19T14:55:02Z

79. INTERMEDIARIES NOT TO BE LIABLE IN CERTAIN CASES

(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hasted by him.

(2) The provisions of sub-section (1) shall apply if—

(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hasted; or

(b) the intermediary does not—

(i) initiate the transmission,

(ii) select the receiver of the transmission, and

(iii) select or modify the information contained in the transmission;

(c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.

(3) The provisions of sub-section (1) shall not apply if—

(a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or othorise in the commission of the unlawful act;

(b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.

Explanation.—For the purposes of this section, the expression “third party information” means any information dealt with by an intermediary in his capacity as an intermediary.

For more details visit https://cis-india.org/internet-governance/resources/section-79-information-technology-act

How India Makes E-books Easier to Ban than Books (And How We Can Change That)

pranesh — 2012-02-21T11:50:56Z

Without getting into questions of what should and should not be unlawful speech, Pranesh Prakash chooses to take a look at how Indian law promotes arbitrary removal and blocking of websites, website content, and online services, and how it makes it much easier than getting offline printed speech removed.

E-Books Are Easier To Ban Than Books, And Safer

Contrary to what Mr. Sibal's recent hand-wringing at objectionable online material might suggest, under Indian laws currently in force it is far easier to remove material from the Web, by many degrees of magnitude, than it is to ever get them removed from a bookstore or an art gallery. To get something from a bookstore or an art gallery one needs to collect a mob, organize collective outrage and threats of violence, and finally convince either the government or a magistrate that the material is illegal, thereby allowing the police to seize the books or stop the painting from being displayed. The fact of removal of the material will be noted in various records, whether in government records, court records, police records or in newspapers of record. By contrast, to remove something from the Web, one needs to send an e-mail complaining about it to any of the string of 'intermediaries' that handle the content: the site itself, the web host for the site, the telecom companies that deliver the site to your computer/mobile, the web address (domain name) provider, the service used to share the link, etc. Under the 'Intermediary Guidelines Rules' that have been in operation since 11th April 2011, all such companies are required to 'disable access' to the complained-about content within thirty-six hours of the complaint. It is really that simple.

"That's ridiculous," you think, "surely he must be exaggerating." Think again. A researcher working with us at the Centre for Internet and Society tried it out, several times, with many different intermediaries and always with frivolous and flawed complaints, and was successful six out of seven times . Thus it is easier to prevent Flipkart or Amazon from selling Rushdie's Midnight's Children than it is to prevent a physical bookstore from doing so: today Indira Gandhi wouldn't need to win a lawsuit in London against the publishers to remove a single line as she did then; she would merely have to send a complaint to online booksellers and get the book removed. It is easier to block Vinay Rai's Akbari.in (just as CartoonsAgainstCorruption.com was recently blocked) than it is to prevent its print publication. Best of all for complainants: there is no penalty for frivolous complaints such as those sent by us, nor are any records kept of who's removed what. Such great powers of censorship without any penalties for their abuse are a sure-fire way of ensuring a race towards greater intolerance, with the Internet — that republic of opinions and expressions — being a casualty.

E-Book Bans Cannot Be Challenged

In response to some of the objections raised, the Cyberlaw Division of the Department of Information Technology, ever the dutiful guardian of free speech, noted that if you have a problem with access to your content being 'disabled', you could always approach a court and get that ban reversed. Unfortunately, the Cyberlaw Division of the Department of Information Technology forgot to take into account that you can't contest a ban/block/removal if you don't know about it. While they require all intermediaries to disable access to the content within thirty-six hours, they forgot to mandate the intermediary to tell you that the content is being removed. Whoops. They forgot to require the intermediary to give public notice that content has been removed following a complaint from person ABC or corporation XYZ on such-and-such grounds. Whoops, again.

So while records are kept, along with reasons, of book bans, there are no such records required to be kept of e-book bans.

E-Book Censors Are Faceless

Vinay Rai is a brave man. He is being attacked by fellow journalists who believe he's disgracing the professional upholders of free-speech, and being courted by television channels who believe that he should be encouraged to discuss matters that are sub judice. He is viewed by some as a man who's playing politics in courts on behalf of unnamed politicians and bureaucrats, while others view him as being bereft of common-sense for believing that companies should be legally liable for not having been clairvoyant and removing material he found objectionable, though he has never complained to them about it, and has only provided that material to the court in a sealed envelope. I choose, instead, to view him as a scrupulous and brave man. He has a face, and a name, and is willing to openly fight for what he believes in. However, there are possibly thousands of unscrupulous Vinay Rais out there, who know the law better than he does, and who make use not of the court system but of the Intermediary Guidelines Rules, firmly assured by those Rules that their censorship activities will never be known, will never be challenged by Facebook and Google lawyers, and will never be traced back to them.

Challenging Invisible Censorship

Dear reader, you may have noticed that this is a bit like a trial involving Free Speech in which Free Speech is presumed guilty upon complaint, is not even told what the charges against it are, has not been given a chance to prove its innocence, and has no right to meet its accusers nor to question them. Yet, the Cyberlaw Division of the Department of Information Technology continues to issue press releases defending these Rules as fair and just, instead of being simultaneously Orwellian and Kafkaesque. These Rules are delegated legislation passed by the Department of Information Technology under s.79 of the Information Technology Act. The Rules were laid before Parliament during the 2011 Monsoon session. We at CIS believe that these Rules are *ultra vires* the IT Act as well as the Constitution of India, not only with respect to what is now (newly) proscribed online (which in itself is enough to make it unconstitutional), but how that which is purportedly unlawful is to be removed. We have prepared an alternative that we believe is far more just and in accordance with our constitutional principles, taking on best practices from Canada, the EU, Chile, and Brazil, while still allowing for expeditious removal of unlawful material. We hope that the DIT will consider adopting some of the ideas embodied in our draft proposal.

As Parliament passed the IT Act in the midst of din, without any debate, it is easy to be skeptical and wonder whether Rules made under the IT Act will be debated. However, I remain hopeful that Parliament will not only exercise its power wisely, but will perform its solemn duty — borne out of each MP's oath to uphold our Constitution — by rejecting these Rules.

Photo credit: Lynn Gardner, under CC-BY-NC-SA 2.0 licence*

This was reproduced in Outlook Magazine on 27 January 2012

For more details visit https://cis-india.org/internet-governance/blog/india-ebooks-easier-to-ban-than-books

Invisible Censorship: How the Government Censors Without Being Seen

pranesh — 2012-01-04T08:59:14Z

The Indian government wants to censor the Internet without being seen to be censoring the Internet. This article by Pranesh Prakash shows how the government has been able to achieve this through the Information Technology Act and the Intermediary Guidelines Rules it passed in April 2011. It now wants methods of censorship that leave even fewer traces, which is why Mr. Kapil Sibal, Union Minister for Communications and Information Technology talks of Internet 'self-regulation', and has brought about an amendment of the Copyright Act that requires instant removal of content.

Power of the Internet and Freedom of Expression

The Internet, as anyone who has ever experienced the wonder of going online would know, is a very different communications platform from any that has existed before. It is the one medium where anybody can directly share their thoughts with billions of other people in an instant. People who would never have any chance of being published in a newspaper now have the opportunity to have a blog and provide their thoughts to the world. This also means that thoughts that many newspapers would decide not to publish can be published online since the Web does not, and more importantly cannot, have any editors to filter content. For many dictatorships, the right of people to freely express their thoughts is something that must be heavily regulated. Unfortunately, we are now faced with the situation where some democratic countries are also trying to do so by censoring the Internet.

Intermediary Guidelines Rules

In India, the new 'Intermediary Guidelines' Rules and the Cyber Cafe Rules that have been in effect since April 2011 give not only the government, but all citizens of India, great powers to censor the Internet. These rules, which were made by the Department of Information Technology and not by the Parliament, require that all intermediaries remove content that is 'disparaging', 'relating to... gambling', 'harm minors in any way', to which the user 'does not have rights'. When was the last time you checked wither you had 'rights' to a joke before forwarding it? Did you share a Twitter message containing the term "#IdiotKapilSibal", as thousands of people did a few days ago? Well, that is 'disparaging', and Twitter is required by the new law to block all such content. The government of Sikkim can run advertisements for its PlayWin lottery in newspapers, but under the new law it cannot do so online. As you can see, through these ridiculous examples, the Intermediary Guidelines are very badly thought-out and their drafting is even worse. Worst of all, they are unconstitutional, as they put limits on freedom of speech that contravene Article 19(1)(a) and 19(2) of the Constitution, and do so in a manner that lacks any semblance of due process and fairness.

Excessive Censoring by Internet Companies

We, at the Centre for Internet and Society in Bangalore, decided to test the censorship powers of the new rules by sending frivolous complaints to a number of intermediaries. Six out of seven intermediaries removed content, including search results listings, on the basis of the most ridiculous complaints. The people whose content was removed were not told, nor was the general public informed that the content was removed. If we hadn't kept track, it would be as though that content never existed. Such censorship existed during Stalin's rule in the Soviet Union. Not even during the Emergency has such censorship ever existed in India. Yet, not only was what the Internet companies did legal under the Intermediary Guideline Rules, but if they had not, they could have been punished for content put up by someone else. That is like punishing the post office for the harmful letters that people may send over post.

Government Has Powers to Censor and Already Censors

Currently, the government can either block content by using section 69A of the Information Technology Act (which can be revealed using RTI), or it has to send requests to the Internet companies to get content removed. Google has released statistics of government request for content removal as part of its Transparency Report. While Mr. Sibal uses the examples of communally sensitive material as a reason to force censorship of the Internet, out of the 358 items requested to be removed from January 2011 to June 2011 from Google service by the Indian government (including state governments), only 8 were for hate speech and only 1 was for national security. Instead, 255 items (71 per cent of all requests) were asked to be removed for 'government criticism'. Google, despite the government in India not having the powers to ban government criticism due to the Constitution, complied in 51 per cent of all requests. That means they removed many instances of government criticism as well.

'Self-Regulation': Undetectable Censorship

Mr. Sibal's more recent efforts at forcing major Internet companies such as Indiatimes, Facebook, Google, Yahoo, and Microsoft, to 'self-regulate' reveals a desire to gain ever greater powers to bypass the IT Act when censoring Internet content that is 'objectionable' (to the government). Mr. Sibal also wants to avoid embarrassing statistics such as that revealed by Google's Transparency Report. He wants Internet companies to 'self-regulate' user-uploaded content, so that the government would never have to send these requests for removal in the first place, nor block sites officially using the IT Act. If the government was indeed sincere about its motives, it would not be talking about 'transparency' and 'dialogue' only after it was exposed in the press that the Department of Information Technology was holding secret talks with Internet companies. Given the clandestine manner in which it sought to bring about these new censorship measures, the motives of the government are suspect. Yet, both Mr. Sibal and Mr. Sachin Pilot have been insisting that the government has no plans of Internet censorship, and Mr. Pilot has made that statement officially in the Lok Sabha. This, thus seems to be an instance of censoring without censorship.

Backdoor Censorship through Copyright Act

Further, since the government cannot bring about censorship laws in a straightforward manner, they are trying to do so surreptitiously, through the back door. Mr. Sibal's latest proposed amendment to the Copyright Act, which is before the Rajya Sabha right now, has a provision called section 52(1)(c) by which anyone can send a notice complaining about infringement of his copyright. The Internet company will have to remove the content immediately without question, even if the notice is false or malicious. The sender of false or malicious notices is not penalized. But the Internet company will be penalized if it doesn't remove the content that has been complained about. The complaint need not even be shown to be true before the content is removed. Indeed, anyone can complain about any content, without even having to show that they own the rights to that content. The government seems to be keen to have the power to remove content from the Internet without following any 'due process' or fair procedure. Indeed, it not only wants to give itself this power, but it is keen on giving all individuals this power.

It's ultimate effect will be the death of the Internet as we know it. Bid adieu to it while there is still time.

The article was translated to Marathi and featured in Lokmat

For more details visit https://cis-india.org/internet-governance/invisible-censorship

About Us

pranesh — 2016-06-27T13:59:12Z

What we do

The Centre for Internet and Society is a non-profit research organisation that works on policy issues relating to freedom of expression, privacy, accessibility for persons with disabilities, access to knowledge and intellectual property rights, and openness (including open data, free/open source software, open standards, open access to scholarly literature, open educational resources, and open video), and engages in academic research on reconfigurations of social processes and structures through the Internet and digital media technologies, and vice versa.

Vision and Mission

The Centre for Internet and Society will critically engage with concerns of digital pluralism, public accountability and pedagogic practices, in the field of Internet and Society, with particular emphasis on South-South dialogues and exchange.

Through multidisciplinary research, intervention, and collaboration, we seek to explore, understand, and affect the shape and form of the internet, and its relationship with the political, cultural, and social milieu of our times.

For more details visit https://cis-india.org/about/about-us

Press Coverage of Online Censorship Row

pranesh — 2011-12-08T11:31:30Z

We are maintaining a rolling blog with press references to the row created by the proposal by the Union Minister for Communications and Information Technology to pre-screen user-generated Internet content.