Centre for Internet and Society

Submission to TRAI Consultation on "Inputs for Formulation of National Telecom Policy - 2018"

pranesh — 2018-01-25T14:46:48Z

Centre for Internet and Society (CIS) made a submission to TRAI Consultation on inputs to the National Telecom Policy.

Preliminary

We welcome the TRAI consultation on the National Telecom Policy 2018.

We believe these should be among the objectives of the next NTP.

To enable inclusion through the provision of telecommunications infrastructure and services that are accessible to all, especially for the most marginalized.
To maximize the utility of telecom networks by increasing their capacity and throughput.
To maximize the socio-economic utility of of spectrum and rationalize the regulatory regime.
To re-energize the telecom sector, and to bring about a shift to a revenue-sharing model of revenue-generation for the exchequer.

NTP-12 does not include any policy mandate for providing accessibility for person with disabilities. The Policy should mandate implementation of systems that would enable better accessibility for persons with disabilities. This could have included formulation of a Code of good practice for manufactures and service providers, conduct surveys and gather statistics on use of telecommunication services by persons with disabilities, etc.

Resource and infrastructure sharing

Resource- and infrastructure-sharing among telecommunications companies and applications is crucial to ensure both eiciency of usage of a limited resource (whether it is cabling in underground ducts, or spectrum, or telecom towers), as well as to lower telecommunications costs (especially capital expenditure cost) and lowering barriers to entry, reducing environmental costs, and to maximize the beneits for consumers.[1]

Eforts must be taken to enable greater sharing of resources and infrastructure, without there being a negative impact on competition.[2]

As a telecom scholar points out, “[O]perators will sometimes share the cost of digging or deploying passive infrastructure, but will lay their own iber lines, which allows them to engage in full, facility-based competition. In these cases, there is no risk of coordination, as networks based on multiple iber lines ensure that access seekers can obtain full control over them. Under such conditions, co-investment agreements are more likely to lead to timelier and more intense competition on the downstream market.”[3]

For this, the separation between infrastructure and service must be maintained, with focus of competition at the service end with infrastructure being largely common. This is managed differently in different countries.[4]

Keeping all this in mind, we suggest that Strategies E(b) and F(c) be reworded to say, "By promoting both passive and active sharing of telecom infrastructure and resources among telecom service providers, while ensuring that doesn’t lead to a decrease in competition, and where appropriate making certain forms of infrastructure sharing mandatory."

Among the resources that require sharing is spectrum. In 2015, DoT guidelines allowed liberalised spectrum to be shared among operators.

Modernizing spectrum management

We are happy to note that the strategy of “ensuring adequate availability of contiguous, broader and globally harmonised spectrum” is listed under Strategy D(u). There are many opportunities for harmonisation of spectrum usage in India vis-a-vis global usage. For instance, currently in India, only 50 MHz of spectrum has been earmarked for unlicenced use outdoors in the 5 GHz band (5.825 GHz to 5.875 GHz). There is no rationale for this distinction between indoor and outdoor use, and this limits the usage of Wi-Fi outdoors. The US has delicensed 580 MHz in the 5GHz band which allows for the IEEE 802.11ac standard to be used on it, whereas India has only delicensed 300 MHz, whereas 1280 MHz is what is dictated by needs.[5] At a minimum 580 MHz (3x160 MHz) ought to be made available for unlicensed used.

Additionally, delicensing the 60 GHz band would bring us in line with global regimes,[6] where at least 19 countries have delicensed the 60 Ghz band for both access as well as backhaul purposes.[7]

The 60GHz band is ideal for delicensing since it there is virtually no interference since due to oxygen absorption and narrow antenna beam width the transmission distances

are short. We also need to liberalize the 70 and 80 GHz bands to enabling lower cost access for these frequencies to extend ibre connectivity where necessary by using other means, including through aerial systems.

While under Strategy D(v), TRAI proposes the “earmarking [of] unlicensed frequency bands periodically for operation of low power devices for public use”, it should instead be “earmarking unused, underused, and unlicensed frequency bands periodically for public use, with licence-exemption and light-licensing where possible, with safeguards to prevent interference”.

Even bands that have been allocated under the NFAP and licensed may lie unused or underused as well. According to a study by IIT-Hyderabad, unused TV spectrum in India amounts to between 85%-95% of the total TV spectrum. A large swath of 115 MHz — from 470 to 585 MHz — lies unused, and is available for alternative uses. Waiting for an ecosystem to develop around the 470- 698 MHz band,[8] is harming the government’s vision of Digital India and an urgent course correction is needed. As we have argued in the past, “[w]hereas Digital India needs low-cost wireless broadband, especially for long-distance links in rural India, because of the high cost and diiculty of building and maintaining ibre or wired networks in diicult terrain, and/or in sparsely populated areas. Therefore, access to TVWS needs to be bundled with BharatNet, and other shared backbone networks like ERNET.

Policies should permit diferent network design scenarios including transmission power and purpose. Point-to-point links are needed over long distances in place of ibre or microwave, and broad coverage is needed for contiguous areas like industrial developments, campuses, commercial complexes, or rural communities … TVWS does need tight radio ilters (unlike Wi-Fi) to minimise interference, the underlying consideration that drives spectrum management. There's also need for varying power speciications depending on the network design and purpose as described above, and policies for unlicensed sharing using geolocation databases, as deined by the US FCC."[9]

Further, following the lead of the FCC in the USA, and Ofcom in the UK, we in India should exempt low-power usage across all spectrum bands. The approach followed by Ofcom (which allows for powers between -90 dBm/MHz to -41 dBm/MHz (and on a sloping gradient from 10.6 GHz onwards), may be recommended. To reflect this, a strategy statement to “explore greater exemptions from licensing requirements where possible, including for low-power spectrum usage”, would be helpful.

The NTP should also lead the way in encouraging the government and the regulator to look to new ways of managing licence-exempt use of spectrum, as has been done, for example, in the UK.[10]

This allows for a movement away from power-oriented regulations to regulation on the basis of interference. For instance, shared spectrum databases may allow for coordinated usage of higher power but without interference. Further, this allows for bands to be categorized not by usage, but by transmit powers and duty cycles.

Accessibility

One of the lacunae in the NTP-12 is its lack of any policy mandate for providing accessibility for person with disabilities.[11] NTP-18 should not make the same mistake. The NTP should mandate implementation of systems that would enable better accessibility for persons with disabilities. This should include formulation of a code of good practice for manufactures and service providers, conducting surveys and gathering statistics on use of telecommunication services by persons with disabilities, etc.

Revenue maximization

We believe that Strategy D(r) (“reviewing the objectives of spectrum management to maximise socio-economic gains”) should explicitly mention that revenue maximization should not itself be a goal, since that may harm the socio-economic gains to be had from optimal usage of spectrum. We believe that it should be made explict that “ensuring revenue maximization for the exchequer will not be the main aim of spectrum management policy”.

Auctions, which ind mention in TRAI’s recommendations, ne — to favour a model of revenue sharing[12] — and at the least they need to be structured in such a manner as to avoid the “winner’s curse”.[13] Revenue-sharing, which was followed after NTP-99, allows for a more sustainable form of revenue generation for the government, while having transparent allocation systems or auctions designed in a manner not oriented towards maximizing the generation of auction proceeds for the government.[14] Just as increasing the USO fund by itself cannot be a goal — ensuring universal service is the goal — similarly, the generation of tax revenue by itself cannot be a goal.

Patents pools, local manufacturing, and cost of devices

Under “Strategies to become net positive in international trade of telecommunication systems and services”, the consultation paper proposes inancial incentives for development of SEPs, as well as “incentivising local manufacturing of network equipment and devices” as strategies. One concrete strategy to incentivise local manufacturing of telecommunications equipment and devices is to create government-controlled patent pools,[15] which can be used to ensure that patent-holders are paid a royalty on SEPs while also lowering the transaction costs and legal uncertainty for local device manufacturers, and ultimately lowering the price of devices for customers.[16]

Private patent pools do not suiciently take care of the legal risks created to manufacturers. If government intervention is not done, then Indian manufacturers will end up embroiled in legal battles as we have seen with Micromax, and others. CIS has provided a very detailed submission on TRAI’s Consultation Paper on Promoting Local Telecom Equipment Manufacturing.[17]

Internet connection and data centres

While under “Strategies to establish India as a global hub for data communication systems and services”, the problem of Internet interconnection is brought up, but the strategies don’t mention what needs to be done. One of the problems facing India currently is a low level of peering interconnection agreements and a high cost of transit interconnection agreements. This results in a higher cost of Internet for everyone. This needn’t be so. The NTP could establish that there should be no licensing required for running an interconnection point. Currently, there is a lack of clarity on the matter, with contrary suggestions having been provided by Trai in the past. Further, the NTP and that existing interconnection exchanges like NIXI should not discriminate between licensed telecom operators and unlicensed content providers, since it is crucial that the latter also be present at interconnection exchanges, and interconnection exchanges will not lourish unless the hurdles put in place, which favour incumbents, are reduced.

It is worrying that TRAI has suggested establishing a “licensing and regulatory framework for cloud service providers” (Strategy H(a)). While cloud service providers are subject to the regulations provided in the IT Act, and other legislations in India, they currently are not subject to any licensing requirements. No rationale has been provided by TRAI for this suggestion, and it would kill innovation in the sector, and would inhibit the emergence of India as a global hub for data communications systems and services. Similarly, while an overarching data protection and security legislation needs to be in place, the suggestion of a “licensing and regulatory framework for IoT/ M2M service providers” (Strategy G(a)) is worrying, and there is no suitable rationale for having licensing in this space, which will only serve to curb innovation without any corresponding or suitable benefit accruing to the public.

Given that telecommunications isn’t an end in itself, but is a means to an end, one of the missions of the NTP could be:

To enable inclusion through the provision of telecommunications infrastructure and services that is accessible for all, especially for the most marginalized, including those who are disabled, those who live in remote areas, those who are illiterate, scheduled castes and scheduled tribes, women, and transgender communities.

Once again, we are grateful to TRAI for having provided this opportunity to comment.

[]. GSMA, “Mobile Infrastructure Sharing,” 2008, https://www.gsma.com/publicpolicy/wpcontent/uploads/2012/09/Mobile-Infrastructure-sharing.pdf.

[]. José Carlos Laguna de Paz, “How Cooperation Between Telecom Firms Can Improve Efficiency,” The Regulatory Review, June 25, 2015, https://www.theregreview.org/2015/06/25/laguna-telecoms-cooperation/.

[]. Ibid.

[]. Jan Markendahl, Amirhossein Ghanbari, and Bengt G. Mölleryd, “Network Cooperation between Mobile Operators : Why and How Competitors Cooperate?,” in DIVA, 2013, http://urn.kb.se/resolve? urn=urn:nbn:se:kth:diva-134358.

[]. Parag Kar, “Response to TRAI’s Consultation Paper on Proliferation of Broadband through Public Wi-Fi Networks” (Qualcomm, August 10, 2016), http://www.trai.gov.in/sites/default/files/201609011022542916621Qualcomm_india_pvt_ltd.pdf.

[]. See ITU-R Report “ITU-R M.2227 (11/2011)” and ITU-R Recommendation “ITU-R M.2003-1 (01/2015)” on “Multiple Gigabit Wireless Systems in frequencies around 60 GHz”.

[]. Broadband India Forum, “V Band - 60 GHz: The Key to Affordable Broadband in India” (Broadband India Forum, 2016), http://www.broadbandindiaforum.com/img/White%20Paper%20on%20V-BAND%20Revised%20Final.pdf.

[]. Varun Aggarwal, “DoT Says No to Releasing TV White Space Spectrum, Clarifies It Is for Experiments,” The Hindu Business Line, June 16, 2016, http://www.thehindubusinessline.com/info-tech/dot-says-no-to-releasing-tvwhite-space-spectrum-clarifies-it-is-for-experiments/article8737575.ece

[]. Shyam Ponappa, “The Buzz around TV White Space,” Business Standard, November 4, 2015, http://www.businessstandard.com/article/opinion/shyam-ponappa-the-buzz-around-tv-white-space-115110401618_1.html.

[]. “Better Managing Licence-Exempt Usage,” Ofcom, October 7, 2016, https://www.ofcom.org.uk/research-anddata/technology/radio-spectrum/exempt.

[]. Snehashish Ghosh, “National Telecom Policy 2012 — Issues and Concerns,” The Centre for Internet and Society, June 30, 2012, https://cis-india.org/telecom/national-telecom-policy-2012.

[]. David E. M. Sappington and Dennis L. Weisman, “Revenue Sharing in Incentive Regulation Plans,” Information Economics and Policy 8, no. 3 (September 1, 1996): 229–48, https://doi.org/10.1016/0167-6245(96)00010-8.

[]. Shyam Ponappa, “Richard Thaler’s Views on Auctions,” Business Standard, November 1, 2017, http://www.business-standard.com/article/opinion/richard-thaler-s-views-on-auctions-117110101558_1.html.

[]. Shyam Ponappa, “Breakthroughs Needed for Digital India,” Business Standard, April 6, 2016, http://www.businessstandard.com/article/opinion/shyam-ponappa-breakthroughs-needed-for-digital-india-116040601241_1.html.

[]. Sunil Abraham, “Letter for Establishment of Patent Pool for Low-Cost Access Devices through Compulsory Licenses,” The Centre for Internet and Society, accessed January 19, 2018, https://cis-india.org/a2k/blogs/letter-forestablishment-of-patent-pool-for-low-cost-access-devices

[]. Nehaa Chaudhari, “Pervasive Technologies: Patent Pools,” The Centre for Internet and Society, accessed January 19, 2018, https://cis-india.org/a2k/blogs/patent-pools

[]. Anubha Sinha, “Comments on TRAI’s Consultation Paper on Promoting Local Telecom Equipment Manufacturing” (Centre for Internet and Society, November 13, 2017), http://www.trai.gov.in/sites/default/files/CentreInternetSocietyIndia_CP_PLTEM.pdf.

For more details visit https://cis-india.org/telecom/blog/submission-to-trai-consultation-on-inputs-for-formulation-of-national-telecom-policy-2018

Submission on India's Draft Comments on Proposed Changes to the ITU's ITRs

pranesh — 2012-12-07T04:15:56Z

Given below are the responses from the representatives of civil society in India (The Society for Knowledge Commons, Centre for Internet & Society, The Delhi Science Forum, Free Software Movement of India, Internet Democracy Project and Media for Change) to the Government of India's proposals for the upcoming WCIT meeting, in December 2012, in Dubai.

Our detailed comments on India's draft proposals can be found here. Also read the final version of Indian Government's submission to ITU on November 3, 2012.

Background

We believe that, aspects of Internet governance that have been and are presently addressed by bodies other than ITU should not be brought under the mandate of the ITU through the ITRs.

Some of the proposed changes to the ITR's could have a significant negative impact on the openness of the Internet.

In addition, the processes related to the WCIT lack openness and transparency: the WCIT / ITU excludes civil society, academia and other stakeholders from participation in and access to most dialogues and documents, contrary to established principles of Internet governance as laid down in the Tunis Agenda and as supported by the Indian government at several national and international fora. The WCIT process needs to be improved both at the domestic and global level. We urge the Indian government to support a more open process in the future, with respect to deliberations that will have a significant impact on the people.

We recognise that concerns regarding cyber-security, spam, fraud, etc. are real and that some of these concerns require to be addressed at the global level. However, we believe that as a number of parallel processes are working on these specific issues, these need not be brought under the ITRs.

We therefore strongly recommend that the ITRs continue to be restricted to the infrastructure layer that has traditionally been the area of its focus and not the content or the application layer of the Internet. Any measure that impinges on these layers should be kept out of ITRs and taken up at other appropriate (multi-stakeholder) fora.

We note that the proposal ARB/7/24 defines an "operating agency" as "any individual, company, corporation or governmental agency which operates a telecommunication installation intended for an international telecommunication service or capable of causing harmful interference with such a service" and believe that this definition is too broad in scope and ambit. Inclusion of such a term would broaden the mandate of the ITU to regulate numerous actors in the Internet sphere who do not fall under the infrastructure layer of the Internet. We call on the Indian government to ensure that the term "operating agency" is defined in a narrower or more restrictive manner and only used in exceptional cases. Normally, the obligations of member states should be with respect to "recognised operating agencies" and not omnibus all "operating agencies".

Follow-up

We would like to note that we have never officially received this document directly from the Indian government. In view of the support the Indian government continually espouses for multi-stakeholder Internet governance, this is a matter of deep regret.

We are aware that the official closing date for proposals is early November. However, we also know that several governments intend to submit proposals right upto the beginning of the WCIT meeting. In addition, several governments have included civil society representatives on their official delegation.

We therefore call upon the Department of Telecommunications to organise an open consultation with civil society representatives, to discuss both India's proposals and the comments of various civil society representatives on them, in greater depth, as part of DoT’s preparation for the WCIT meeting and in line with India's espoused commitment to multi-stakeholderism. We look forward to discussing our inputs with the Government to make the decision making process on governance more participatory and inclusive.

For more details visit https://cis-india.org/internet-governance/blog/submission-on-indias-draft-comments-on-proposed-changes-to-itus-itrs

Submission by Indian Civil Society Organisations on Proposals for the Future ITRs and Related Processes

pranesh — 2012-12-07T08:00:19Z

The Centre for Internet & Society was one of the signatories of this submission which was sent in November 2012, in response to the International Telecommunication Union's call for public comments in relation to the revision of International Telecommunication Regulations that are to take place at the ITU's World Conference on International Telecommunications in Dubai from December 3 to 14, 2012.

We, the undersigned civil society organisations from India, respectfully acknowledge the important role that the ITU has played in the spread of telecommunications around the world. However, we are concerned about the lack of transparency and openness of the processes related to the WCIT: the WCIT/ITU excludes civil society, academia and other stakeholders from participation in and access to most dialogues and documents. The documents that are publicly available show that some of the proposals might deal with Internet governance. According to established principles as laid down in the Tunis Agenda - which process the ITU helped to lead - Internet governance processes are required to be multistakeholder in nature. The WCIT and ITU processes require urgent improvement with regard to openness, inclusiveness and transparency. While we appreciate the current opportunity to share our comments, we would like to encourage the ITU and its Member States to adopt a genuine multistakeholder approach at the earliest.

As mentioned, we do welcome the current opportunity to share our thoughts. Though this list is not exhaustive, some of our major concerns are as follows:

We believe that, given the historical development of present methods of internet regulation, aspects of Internet governance that have been and are presently addressed by bodies other than ITU should not be brought under the mandate of the ITU through the ITRs.

We therefore strongly recommend that the ITRs continue to be restricted to aspects of the physical layer that have traditionally been the areas of its focus. The ITRs scope should not be expanded to other layers, nor to content - any measure that impinges on these layers should be kept out of ITRs and taken up at other appropriate (multi-stakeholder) fora. In addition, it is crucial that “ICTs” and the term “processing” be excluded from the definition of telecommunication as this clearly opens up the possibility for Member States to regulate/attempt to regulate the “content/“application” layer on the internet at the ITU.

We also recommend that provisions regarding international naming, numbering, addressing and identification resources will be restricted to telephony, as should provisions regarding transit rate, originating identification and end-to-end QoS. Provisions regarding the routing of Internet traffic should not find a place in the ITRs at all.

We recognise that concerns regarding cyber security, spam, fraud, etc. are real and that some of these concerns require to be addressed at the global level. However, as these are being discussed in many other fora, we believe that the ITRs are not the best place to address these. Their inclusion here could inhibit the further evolution and expansion of the Internet. We also believe that any fora discussing cyber security should be multistakeholder, open and transparent.

We note that the proposal ARB/7/24 defines an “operating agency” as “any individual, company, corporation or governmental agency which operates a telecommunication installation intended for an international telecommunication service or capable of causing harmful interference with such a service” and believe that this definition is too broad in scope and ambit. Inclusion of such a term would broaden the mandate of the ITU to regulate numerous actors in the Internet sphere who do not fall under the infrastructure layer of the Internet. The term “operating agency” should be defined in a narrower or more restrictive manner and, irrespective of its exact definition, only be used in exceptional cases. Normally, the obligations of member states should be with respect to “recognised operating agencies” and not omnibus all “operating agencies”.

Signed:

Centre for Internet and Society
Delhi Science Forum
Free Software Movement India
Internet Democracy Project
Knowledge Commons (India)

For more details visit https://cis-india.org/internet-governance/blog/submission-on-proposals-for-future-itrs-and-related-processes

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

Statement of Solidarity on Freedom of Expression and Safety of Internet Users in Bangladesh

pranesh — 2013-01-15T11:51:44Z

This is a statement on the violent attack on blogger Asif Mohiuddin by the participants to the Third South Asian Meeting on the Internet and Freedom of Expression that took place in Dhaka, Bangladesh, on January 14–15, 2013.

Bangladeshi blogger Asif Mohiuddin was brutally attacked in a stabbing last evening. His condition is currently said to be critical. Violent attacks on mediapersons have led to at least four deaths in the past year. This trend is now extending to those writing online.

It is the duty of societies at large to ensure that principles we universally consider sacrosanct, such as the right to life and liberty and of freedom of expression are in fact ideas, and of the government to actively protect the rights guaranteed under the Constitution of Bangladesh and to ensure they are not just words on paper.

Article 39 of the Constitution of Bangladesh—and Article 19 of the Universal Declaration of Human Rights—guarantee both the freedom of thought and conscience, as well as the right of every citizen of freedom of speech and expression, and freedom of the press.

Article 32 of the Constitution of Bangladesh—and Article 3 of the Universal Declaration of Human Rights—guarantee that no person shall be deprived of life or personal liberty except by law.

The attack on Asif Mohiuddin constitutes a violation these fundamental principle by criminals, and we request the government to act decisively to show it will not tolerate such violations.

Reporters Without Borders note that "the ability of those in the media to work freely has deteriorated alarmingly in Bangladesh, which is now ranked 129th of 179 countries in the 2011-2012 World Press Freedom Index".

In general, the situation of those working as non-professional 'citizen journalists' is even worse. In a 2010 report, the UN Special Rapporteur wrote:

"Citizen journalists are by nature more isolated, they are more vulnerable to attack than professional journalists. However, citizen journalists enjoy less protection than their counterparts in traditional media, as they do not have the support of media organizations and networks, in particular the organizational resources, including lawyers and financial resources, which can help shield them from harassment."

This reality of greater vulnerability is equally applicable to those who do not self-identify as 'citizen journalists', but use social media to express unpopular opinions.

Keeping this in mind, we call upon the government on Bangladesh to carry out swift investigations into this particular incident and bring the perpetrators to justice, and to grant greater legal support to citizen journalists and ensure better protections for all those who use the Internet as a means of expression.

For more details visit https://cis-india.org/internet-governance/blog/statement-of-solidarity-asif-mohiuddin

Statement of Civil Society Members and Groups Participating in the "Best Bits" pre-IGF meeting at Baku in 2012

pranesh — 2012-12-07T08:06:25Z

The Centre for Internet & Society was one of the signatories for this submission made to the ITU on November 16, 2012.

Read the statement of civil society members and groups participating in the “Best Bits” pre-IGF meeting at Baku in 2012

We thank the Secretariat of the ITU for making the opportunity to submit our views.

Nevertheless, the process of the revision of the International Telecommunication Regulations (ITRs) has not been sufficiently inclusive and transparent, despite some recent efforts to facilitate public participation. Fundamental to the framing of public policy must be the pursuit of the public interest and fundamental human rights, and we urge Member States to uphold and protect these values.

We as civil society organizations wish to engage with the World Conference on International Telecommunication (WCIT) process in this spirit. Member States, in most cases, have not held open, broad-based, public consultations in the lead up to the WCIT, nor have they indicated such a process for the WCIT itself.

In order to address this deficiency, and at a minimum, we would urge:

All Member States and regional groups to make their proposals available to the public in sufficient time to allow for meaningfulpublic participation;
All delegates to support proposals to open sessions of the WCIT meeting to the public;
The ITU Secretariat to increase transparency of the WCIT including live webcast with the video, audio, and text transcripts, as far as possible, to enable participation by all, including persons with disabilities;
The ITU Secretariat, Member States, and regional groups to make as much documentation publicly available as possible on the ITU's website, so that civil society can provide substantive input on proposals as they are made available;
Member States to encourage and facilitate civil society participation in their national delegations;
The ITU to create spaces during the WCIT for civil society to express their views, as was done during the WSIS process.

Given the uncertainty about the nature of final proposals that will be presented, we urge delegates that the following criteria be applied to any proposed revisions of the ITRs.

That any proposed revisions are confined to the traditional scope of the ITRs, where international regulation is required around technical issues is limited to telecommunications networks and interoperability standards.
There should be no revisions to the ITRs that involve regulation of the Internet Protocol and the layers above.
There should be no revisions that could have a negative impact on affordable access to the Internet or the public's rights to privacy and freedom of expression.

More generally we call upon the ITU to promote principles of net neutrality, open standards, affordable access and universal service, and effective competition.

Signatories:

Access (Global)
Association for Progressive Communications (Global)
Bangladesh NGOs Network for Radio and Communication (Bangladesh)
Bytes for All (Pakistan)
Center for Democracy and Technology (United States of America)
Centre for Community Informatics Research (Canada)
Centre for Internet and Society (India)
Collaboration on International ICT Policy for East and Southern Africa (Eastern and Southern Africa)
Consumer Council of Fiji (Fiji)
Consumers International (Global)
Dynamic Coalition on Internet Rights and Principles (IRP) (Global)
Electronic Frontier Finland (Finland)
Imagining the Internet Center (United States of America)
Instituto Nupef (Brazil)
Internet Democracy Project (India)
Internet Research Project (Pakistan)
Global Partners and Associates (United Kingdom)
GobernanzadeInternet.co (Colombia)
ICT Watch Indonesia (Indonesia)
Instituto Brasileiro de Defesa do Consumidor / Brazilian Institute for
Consumer Defense (Brazil)
InternetNZ (New Zealand)
IT for Change (India)
Media Education Center (Armenia)
ONG Derechos Digitales (Chile)
OpenMedia (Canada)
Public Knowledge (United States of America)
Thai Netizen Network (Thailand)
Ginger Paque (Venezuala)
Nnenna Nwakanma (Côte d'Ivoire)
Sonigitu Ekpe (Nigeria)
Wolfgang Kleinwächter (Denmark)

For more details visit https://cis-india.org/internet-governance/blog/statement-of-civil-society-members-and-groups-at-best-bits-pre-igf-meeting

Statement of CIS on the WIPO Broadcast Treaty at the 23rd SCCR

pranesh — 2011-11-30T06:55:43Z

The twenty-third session of the Standing Committee on Copyright and Related Rights is being held in Geneva from November 22, 2011 to December 2, 2011. Pranesh Prakash delivered this statement on a new proposal made by South Africa and Mexico (SCCR/23/6) on a treaty for broadcasters.

The Centre for Internet and Society would like to thank the South African and Mexican delegations for their hard work on this text before us.

We wish to reiterate the statement on principles provided last SCCR by many civil society non-governmental organizations, cable casters and technology companies opposing a rights-based Broadcasting Treaty, and would like to associate ourselves with the statements made today by Public Knowledge, Computer & Communications Industry Association, Knowledge Ecology International, International Federation of Library Associations, and the Canadian Library Association.

Broadcasters Already Protected Online

Broadcasters make two kinds of investments for which they are protected. They invest in infrastructure and they invest in licensing copyrighted works. The first investment is protected by 'broadcast rights', and the latter investment is protected by copyright law.

Broadcasters, being licensees of copyrighted works, generally already have rights of enforcement insofar as their licence is concerned. Therefore there is no need to provide for additional protections with regard to broadcasters in order to enable them to proceed against acts that violate existing copyright laws: they already have those rights by way of licence. This is often forgotten when talking about rights of broadcasters.

The investments to be made in infrastructure in traditional broadcast and in IP-based transmission are very different, even if it is the same 'traditional broadcasters' who are indulging in both. Given that this investment is the basis of additional protection for broadcaster over and above the rights provided to underlying copyright, IP-based transmissions should not be covered in any way even if it is traditional broadcast organizations that are engaged in them.

Providing new and separate rights to large broadcasters for their online transmission, as is currently being done via the provision on 'retransmission' while excluding small webcasters will create a hierarchy and a class distinction without any basis in either principle or existing laws.

Support Countries' Concerns

We also wish to support the amendments suggested by the Indian delegation. As we were reminded by the Indian delegation, the General Assembly mandate of 2007 only extends to traditional broadcasting and to a signal-based approach. In this regard, we also wish to support the question posed by the United States delegation between signal-based and rights-based approaches, as also the strong statement by the Brazilian delegation on the need to ensure that cultural diversity and competition are protected and promoted by any international instrument on broadcasting, and we would like to add 'preservation of a vibrant public domain' as provided by Paragraph 16 of the WIPO Development Agenda.

Thank you, Chair.

For more details visit https://cis-india.org/a2k/blogs/sccr-23-broadcast-cis-statement

Sources of CIS Funding

pranesh — 2018-07-07T01:19:19Z

CIS's donors' names and the amount of the grants they've provided are being published in an effort to be absolutely transparent and to make it clear that our donors do not dictate the policy and research positions we espouse.

To access the latest information on CIS funding click here

According to some news reports, the Centre for Internet and Society's criticisms of some government policies are being seen as being motivated by our funding. To set the record clear, we are publishing the names of all our donors, and the amounts received from them. It is to be noted that this list does not include donors (such as Privacy International) with whom we have agreements, but from whom we have not yet received any funding.

	Name of Donor	2008–2009	2009–2010	2010–2011	2011–2012	2012–2013	Total
1	Kusuma Trust	र14,473,000	र21,226,199	र22,190,787	र10,000,000	र2,32,99,038	र9,11,89,024
2	Hans Foundation					र1,40,85,662	र1,40,85,662
3	Wikimedia Foundation					र1,11,41,246	र1,11,41,246
4	Hivos		र6,49,635	र47,68,347	र22,82,939		र77,00,921
5	Ford Foundation				र45,01,370		र45,01,370
6	Privacy International					र25,05122	र25,05,122
7	Estudios para la Democracia Social			र24,32,877			र24,32,877
8	LexUM		र13,49,137	र7,11,716			र20,60,853
9	Open Society Institute, London			र900,000			र9,00,000
10	National Internet Exchange of India		र535,000	र100,000			र6,35,000
11	International Telecommunications Union			र616,487			र6,16,487
12	Rohini Nilekani		र5,00,000				र5,00,000
13	UNESCO			र2,63,480			र2,63,480
14	iCommons			र2,22,300			र2,22,300
15	Centre for the Study of Culture and Society			र1,61,100			र1,61,100
16	National Institute for the Visually Handicapped		र50,000				र50,000
Total		र1,44,73,000	र2,43,09,971	र3,23,67,094	र1,22,82,939	र5,10,31,068	र13,89,65,320

While CIS is not opposed to corporate funding (and is not opposed to corporations), we do not adopt policy positions on the basis of our funding. We adopt policy positions based on what we consider is in the public interest, specifically in the interest of consumers and developing countries such as India, as that would give effect to CIS's vision statement. While these interests may sometimes align themselves with the interests of multi-national corporations, it often does not.

For more details visit https://cis-india.org/internet-governance/sources-cis-funding

Software Patents Granted and Applied for in India

pranesh — 2009-10-08T09:13:33Z

This is a collection of pure software patents (i.e., a "computer programme per se") that have been granted and applied for in India.

Patent Number:
Applicant:
Link:
Non-jargon description of patent:
How it is pure software:
Prior art [if it is sufficiently easy to establish]:

For more details visit https://cis-india.org/openness/publications/software-patents/granted-patents

Software Patents

pranesh — 2010-01-11T09:53:12Z

Software patents are a potent threat to both open standards as well as FOSS. While in India, pure software patents (i.e., a patent over a "computer programme per se") are not allowed, still software patents are to be reckoned with. The draft patent manual prepared by the Patent Office in 2008 seemingly goes against section 3(k) of the Patents Act, and allows partially for software patents. Further, the Patent Office often incorrectly grants software patents, even though the same is prohibited by the law. We have started a wiki-based project to collect all such examples of incorrectly granted software patents.

For more details visit https://cis-india.org/openness/publications/software-patents/swpats

Software patenting will harm industry, consumer

pranesh — 2013-01-16T04:54:42Z

Report by Deepa Kurup in The Hindu dated 5th October 2008 as follow-up to the national meeting on software patents.

Original article on The Hindu website

BANGALORE: Living up to its status as the country’s Information Technology (IT) capital, Bangalore played host to a different kind of “software lobby” here on Saturday.

Unlike most lobbies, this one had no vested interests and no hard-line agenda. In a bid to raise awareness about software patenting and generate a debate among stakeholders, the Free Software community from across the country participated in a national-level meeting against software patents.

Public hearings

This open meeting comes in the wake of the public hearings being conducted by the Indian Patent Office to discuss the recently formulated patent manual. The office has shelved all discussion on software patents and promised an exclusive meeting with stakeholders. Nearly 20 organisations and various stakeholders who participated in the hearing threw up issues ranging from patent laws and principles in general, to specific issues of the “software per se” clause in the patent manual. Submissions made by many stakeholders to the patent office were also discussed.

The meeting was held to discuss the recent modification to the manual, which is being interpreted as a move to make “software in combination with hardware” patentable. As of now, software comes under the copyright law.

This move is significant because a similar ordinance was scrapped by the Parliament in 2005. The Free Software community feels that the clause panders to the powerful IT and multi-national companies lobby that has been rooting for this legislation.

Copyright

Speaking at the meeting, Venkatesh Hariharan of Red Hat said that software was protected by copyright and additional protection was more harmful for the industry and the consumer as a whole.

“Patent is a state-granted monopoly, but copyright protects the expression of an idea and a code is safe as long as one can prove that he has arrived at it independently,” he said.

As a sole representative of any government body, Joseph Mathew, Special IT advisor to the Government of Kerala, made a presentation of his government’s stand on software patents.

“The manual should not have brought this up again, considering Parliament scrapped it in 2005. We hope it is a clerical error and the Kerala Government will consider writing to the Union Government and the patent office informing them of our opposition to this issue,” Mr. Mathew said.

Small and medium enterprises which use Free Software such as Zyxware from Trivandrum, Deep Root Linux and Turtle Linux from Bangalore, among others made presentations at the meeting. Several research and advocacy organisations such as the Centre for Internet and Society and the Delhi Science Forum put forth various facets of this debate.

Lack of clarity

“The lack of clarity in the Patent Act results is being wrestled aggressively and effectively by corporate interests, patent attorneys and the patent office in favour of granting software patents. This meeting helped bring together the counter-opinions in this matter, and we will go ahead and participate in any meeting that will be called for by the authorities,” said Sunil Abraham of the Centre for Internet and Society.

For more details visit https://cis-india.org/news/software-patenting-will-harm-industry-consumer

Software Freedom Pledge

pranesh — 2015-09-25T12:26:09Z

On September 19, 2015, celebrated globally as Software Freedom Day, a number of enthusiasts got together and collectively took a pledge.

We, who have gathered together for Software Freedom Day 2015, believe that software freedom is both a matter of ethical principle as well as a matter of pragmatism, and is necessary for a democratic, open society.

We believe that it is desirable that all people, but especially governments, use, contribute to, and spread open standards, free/libre/open source software, open APIs, openly-licensed content (including open data, open access, and open education resources), leading to a vibrant public domain, and ensure that all of the above are accessible for all, including persons with disabilities and other marginalised sections of society.

Given that, we pledge to:

use and spread free software amongst our family, friends, and neighbours, both in person and virtually.
demand that services we use in turn use open standards and open APIs, and thus be available for all using free/libre/open source software, without the payment of any royalties.
raise the issue of software freedom with our democratic representatives, to seek that they in turn respect and promote these principles.
as far as possible, making our own work openly available, and seek to convince our employers, publishers, producers, and other persons who might be in a position to restrict
work against any laws, policies — corporate or governmental — or technical restrictions that seek to prevent people from full exercise of their rights, and which are contrary to the above principles.

Signed by:

Abhaya Agarwal
Ananth Subray
Asutosha Sarangi
Chirag Sarthi J
Prakash Hebballi
Pranesh Prakash
Ralph Andrade
Subhashish Panigrahi
Tito Dutta
Veethika Mishra

For more details visit https://cis-india.org/openness/software-freedom-pledge-2015

Short note on IT Amendment Act, 2008

pranesh — 2011-06-01T14:45:34Z

Pranesh Prakash of the Centre for Internet and Society wrote a short note in February 2009 on the Information Technology (Amendment) Act, 2008. This is being posted as a precursor to a more exhaustive analysis of the Act and the rules sought to be promulgated under the Act. Thus, this does not cover the regulations that have been drafted under the Act.

The new amendments to the Information Technology Act, 2000 that got passed by the Lok Sabha last December deserve a careful reading. There are a number of positive developments, as well as many which dismay. Positively, they signal an attempt by the government to create a dynamic policy that is technology neutral. This is exemplified by its embracing the idea of electronic signatures as opposed to digital signatures. But more could have been done on this front (for instance, section 76 of the Act still talks of floppy disks). There have also been attempts to deal proactively with the many new challenges that the Internet poses.

Freedom of Expression

The first amongst these challenges is that of child pornography. It is heartening to see that the section on child pornography (s.67B) has been drafted with some degree of care. It talks only of sexualized representations of actual children, and does not include fantasy play-acting by adults, etc. From a plain reading of the section, it is unclear whether drawings depicting children will also be deemed an offence under the section. Unfortunately, the section covers everyone who performs the conducts outlined in the section, including minors. A slight awkwardness is created by the age of "children" being defined in the explanation to section 67B as older than the age of sexual consent. So a person who is capable of having sex legally may not record such activity (even for private purposes) until he or she turns eighteen.

Another problem is that the word "transmit" has only been defined for section 66E. The phrase "causes to be transmitted" is used in section 67, 67A, and 67B. That phrase, on the face of it, would include the recipient who initiates a transmission along with the person from whose server the data is sent. While in India, traditionally the person charged with obscenity is the person who produces and distributes the obscene material, and not the consumer of such material. This new amendment might prove to be a change in that position.

Section 66A which punishes persons for sending offensive messages is overly broad, and is patently in violation of Art. 19(1)(a) of our Constitution. The fact that some information is "grossly offensive" (s.66A(a)) or that it causes "annoyance" or "inconvenience" while being known to be false (s.66A(c)) cannot be a reasons for curbing the freedom of speech unless it is directly related to decency or morality, public order, or defamation (or any of the four other grounds listed in Art. 19(2)). It must be stated here that many argue that John Stuart Mill's harm principle provides a better framework for freedom of expression than Joel Feinberg's offence principle. The latter part of s.66A(c), which talks of deception, is sufficient to combat spam and phishing, and hence the first half, talking of annoyance or inconvenience is not required. Additionally, it would be beneficial if an explanation could be added to s.66A(c) to make clear what "origin" means in that section. Because depending on the construction of that word s.66A(c) can, for instance, unintentionally prevent organisations from using proxy servers, and may prevent a person from using a sender envelope different form the "from" address in an e-mail (a feature that many e-mail providers like Gmail implement to allow people to send mails from their work account while being logged in to their personal account). Furthermore, it may also prevent remailers, tunnelling, and other forms of ensuring anonymity online. This doesn't seem to be what is intended by the legislature, but the section might end up having that effect. This should hence be clarified.

Section 69A grants powers to the Central Government to "issue directions for blocking of public access to any information through any computer resource". In English, that would mean that it allows the government to block any website. While necessity or expediency in terms of certain restricted interests are specified, no guidelines have been specified. Those guidelines, per s.69A(2), "shall be such as may be prescribed". It has to be ensured that they are prescribed first, before any powers of censorship are granted to any body. In India, it is clear that any law that gives unguided discretion on an administrative authority to exercise censorship is unreasonable (In re Venugopal, AIR 1954 Mad 901).

Intermediary Liability

The amendment to the provision on intermediary liability (s.79) while a change in the positive direction, as is seeks to make only the actual violators of the law liable for the offences committed, still isn't wide enough. This exemption is required to be widely worded to encourage innovation and to allow for corporate and public initiatives for sharing of content, including via peer-to-peer technologies.

Firstly, the requirement of taking down content upon receiving "actual knowledge" is much too heavy a burden for intermediaries. Such a requirement forces the intermediary to make decisions rather than the appropriate authority (which often is the judiciary). The intermediary is no position to decide whether a Gauguin painting of Tahitian women is obscene or not, since that requires judicial application of mind. Secondly, that requirement is vitiates the principles of natural justice and freedom of expression because it allows a communication and news medium to be gagged without giving it, or the party communicating through it, any due hearing. It has been held by our courts that a restriction that does not provide the affected persons a right to be heard is procedurally unreasonable (Virendra v. State of Punjab, AIR 1957 SC 896).

The intermediary loses protection of the act if (a) it initiates the transmission; (b) selects the receiver of the transmission; and (c) selects or modifies the information. While the first two are required to be classified as true "intermediaries", the third requirement is a bit too widely worded. For instance, an intermediary might automatically inject advertisements in all transmissions, but that modification does not go to the heart of the transmission, or make it responsible for the transmission in any way. Similarly, the intermediary may have a code of conduct, and may regulate transmissions with regard to explicit language (which is easy to judge), but would not have the capability to make judgments regarding fair use of copyrighted materials. So that kind of "selection" should not render the intermediary liable, since misuse of copyright might well be against the intermediary's terms and conditions of use.

Privacy and Surveillance

While the threat of cyber-terrorism might be very real, blanket monitoring of traffic is not the way forward to get results, and is sure to prove counter-productive. It is much easy to find a needle in a small bale of hay rather than in a haystack. Thus, it must be ensured that until the procedures and safeguards mentioned in sub-sections 69(2) and 69B(2) are drafted before the powers granted by those sections are exercised. Small-scale and targetted monitoring of metadata (called "traffic data" in the Bill) is a much more suitable solution, that will actually lead to results, instead of getting information overload through unchannelled monitoring of large quantities of data. If such safeguards aren't in place, then the powers might be of suspect constitutionality because of lack of guided exercise of those powers.

Very importantly, the government must also follow up on these powers by being transparent about the kinds of monitoring that it does to ensure that the civil and human rights guaranteed by our Constitution are upheld at all times.

Encryption

The amending bill does not really bring about much of a change with respect to encryption, except for expanding the scope of the government's power to order decryption. While earlier, under section 69, the Controller had powers to order decryption for certain purposes and order 'subscribers' to aid in doing so (with a sentence of up to seven years upon non-compliance), now the government may even call upon intermediaries to help it with decryption (s.69(3)). Additionally, s.118 of the Indian Penal Code has been amended to recognize the use of encryption as a possible means of concealment of a 'design to commit [an] offence punishable with death or imprisonment for life'.

The government already controls the strength of permissible encryption by way of the Internet Service Provider licences, and now has explicitly been granted the power to do so by s.84A of the Act. However, the government may only prescribe the modes or methods of encryption "for secure use of the electronic medium and for promotion of e-governance and e-commerce". Thus, it is possible to read that as effectively rendering nugatory the government's efforts to restrict the strength of encryption to 40-bit keys (for symmetric encryption).

Other Penal Provisions

Section 66F(1)(B), defining "cyberterrorism" is much too wide, and includes unauthorised access to information on a computer with a belief that that information may be used to cause injury to decency or morality or defamation, even. While there is no one globally accepted definition of cyberterrorism, it is tough to conceive of slander as a terrorist activity.

Another overly broad provision is s.43, which talks of "diminish[ing] its value or utility" while referring information residing on a computer, is overly broad and is not guided by the statute. Diminishing of the value of information residing on a computer could be done by a number of different acts, even copying of unpublished data by a conscientious whistleblower might, for instance, fall under this clause. While the statutory interpretation principle of noscitur a socii (that the word must be understood by the company it keeps) might be sought to be applied, in this case that doesn't give much direction either.

While all offences carrying penalties above three years imprisonment have been made cognizable, they have also been made bailable and lesser offences have been made compoundable. This is a desirable amendment, especially given the very realistic possibility of incorrect imprisonments (Airtel case, for instance), and frivolous cases that are being registered (Orkut obscenity cases).

Cheating by personation is not defined, and it is not clear whether it refers to cheating as referred to under the Indian Penal Code as conducted by communication devices, or whether it is creating a new category of offence. In the latter case, it is not at all clear whether a restricted meaning will be given to those words by the court such that only cases of phishing are penalised, or whether other forms of anonymous communications or other kinds of disputes in virtual worlds (like Second Life) will be brought under the meaning of "personation" and "cheating".

While it must be remembered that more law is not always an answer to dealing with problems, whether online or otherwise, it is good to note that the government has sought to address the newer problems that have arisen due to newer technologies. But equally important is the requirement to train both the judiciary and the law enforcement personnel to minimize the possibility of innocent citizens being harassed.

For more details visit https://cis-india.org/internet-governance/publications/it-act/short-note-on-amendment-act-2008

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

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