Centre for Internet and Society

Consumer Privacy in e-Commerce

sahana — 2012-03-28T04:53:17Z

Looking at the larger picture of national security versus consumer privacy, Sahana Sarkar says that though consumer privacy is important in the world of digital technology, individuals must put aside some of their civil liberties when it comes to the question of national security, as it is necessary to prevent societal damage.

What is Consumer Privacy?

In today’s digital economy generating consumer information is inevitable. Though some companies use the personal information they obtain to improve and provide more services to consumers, many companies use the information in an irresponsible manner.

In countries that do provide legal protection for consumer privacy, it is never protected as an absolute right. Consumer privacy is not considered an absolute right for three reasons:

What constitutes consumer privacy is culturally, contextually, individually defined
Consumer privacy often conflicts with other market rights
The ownership of a consumer's private information is debated — as consumer's believe they own the information and businesses believe they own the information.

In order to understand consumer privacy it is useful to outline the privacy expectations and strategies of both consumers and businesses, and to also examine the protection measures taken by firms to safeguard consumer information. The major privacy concerns held by consumer's can be broken down into three main domains:

Consumers want to be informed about the type of information that is being collected from them.
Consumers need to know that they a certain degree of control over the personal information that is being collected.
Consumers need to be assured that their personal information will be secure and will not be abused or stolen.

Though privacy has been defined by many as the "right to be let alone", its application in today’s modern world is not that straightforward. We live in a world where our purchasing behavior, both online and offline, is shared and used invisibly. For instance, if an individual uses a social networking site, it is possible for a third party application to access personal information that is shared. Similarly, if an individual uses a warranty card or loyalty card during a purchase, it is possible for third parties, like data brokers, to collect and use the individuals' personal information.

For instance,15 consumer privacy groups have filed a complaint against Facebook for limiting user's ability to browse anonymously. The complaint was regarding the fact that users only had the choice to designate personal information as publicly linkable, or to not provide information at all. Though Facebook claims to ensure users control over their personal data by allowing users to choose their privacy settings, it does not clarify that these setting can change at any given point. Moreover, the latest privacy embarrassment that hit Facebook proves again that Facebook does not protect users’ privacy. A few weeks ago Facebook admitted to passing personal information of its users onto different gaming applications. These gaming applications have in turn passed the information on to advertisers who otherwise could not have accessed the information.[1]

Breach of Privacy in Information Collection

Internet users often fear the loss of personal privacy, because of the ability businesses and their websites have to collect, store, and process personal data. For example, sites extract information from consumers through a form, and then record data about their user’s browsing habit. After collecting user information, the sites match the data with their personal and demographic information to create a profile of the user’s preferences, which is then used to promote targeted advertisements or provide customized services. The sites might also engage in web lining through which they price a consumer according to their profiles.

Online there are two main ways in which sites collect user information:

Sites collect information directly through a server software. Sites often use automatic software logs to do this.
A third party extracts information from the site without the consumer’s knowledge. Sites often place cookies on websites to extract user information.

Automatic software logs and third party cookie placement are two overlooked aspect of information collection. Cookies work by collecting personal information while a user surfs the net, and then feeds the information back to a Web server. Cookies are either used to remember the user, or are used by network advertising agencies to target product advertisements based on long term profiles of user’s buying and surfing habits. An example of a website that uses cookies is 'double click'. Web bugs are used by advertising networks to add information to the personal profiles stored in cookies. Web bugs are also used in junk email campaigns to see how many visits the site gets. Cookies and web bugs are just two out of hundreds of technologies used to collect personal information. [2]

Challenges Posed by Protection of Consumer Privacy

In conclusion, I would like to talk about the difficulty in maintaining a balance between the legal collections of information and protecting privacy of consumers. Above I demonstrated how this conflict arises between businesses and consumers — and is rooted in businesses wanting personal information for commercial reasons, and a user wanting protection and control over their own information. This conflict can also arise between consumers, businesses, and political bodies. An example that demonstrates this is the ongoing conflict between RIM (Research in Motion) and the Government of India. The Government of India has issued a warning against RIM saying that it would suspend its blackberry operations if they do not adhere to the Indian laws and regulations.

The Ministry of Home Affairs is demanding that RIM allow access to encrypted content that flows in and out of India. In other words the Government of India wants RIM to allow the security forces to have access to data sent using Blackberries by reducing encryption levels, or by providing the government with the decryption keys. The demand by the government is somewhat ironic as Blackberry manufacturers have developed the Blackberry encryption key to protect the consumers’ privacy during any business deal, so that information is not compromised. On the other side of the debate, the government is demanding access to Blackberry communications, because their inability to decrypt the codes makes countering the threats to national security difficult. This is especially true for a country like India, which is constantly facing threats from Maoists, and extremist Islamic groups.

This example highlights an important question: what is more important — national security or consumer privacy? In 2010, RIM agreed to negotiate access to consumer messages only where access requests are within local laws. Blackberry also agreed to not make any specific deals with consumers, and to make its enterprise systems security and confidentiality non-negotiable.

Conclusion

Though, consumer privacy is very important especially in a world of digital technology, however, when we speak of national security, I feel that individuals must set aside some of their civil liberties — at least to the extent that it is necessary to prevent societal damage. For a clearer understanding of national security vs consumer privacy look at the case of RIM Vs Indian Government in the following sites:

[1]http://www.ft.com/cms/s/0/198599e6-dc5f-11df-a0b9-00144feabdc0.html#axzz1O00LowtN

[2]http://cyber.law.harvard.edu/olds/ecommerce/privacytext.htmlFor an overview of some of these new data-collection technologies, along with some information on privacy-enhancing technologies such as P3P, see Developing Technologies.

For more details visit https://cis-india.org/internet-governance/blog/privacy/consumer-privacy-e-commerce

UID: The World’s Largest Biometric Database

praskrishna — 2011-07-23T02:04:45Z

At the start of his presentation, Sunil Abraham pointed to two aerial drawings of cybercafes: one where each computer was part of a private booth, and one where the computers were in the open so the screens would be visible to any one. Which layout would be more friendly to women, and why, Abraham wanted to know. Some participants selected the first option, liking the idea of the privacy, while others liked the second option so that the cybercafe owner would be able to monitor users’ activities.

Abraham said he was surprised no one said option one looked like masturbation booths, adding that in May, India passed rules prohibiting the first design option to avoid just such an issue. This is despite a survey conducted of female college students, who liked the idea of privacy in cybercafés that typically are male-dominated.

Cybercafes are just one of the areas impacted by India’s plan for collecting and using biometrics to create unique individual identification cards.

Abraham focused his presentation on activists’ efforts to counter the government’s myths about a unique identification (UID) program.

One campaign image showed two soldiers on the border asking for an east-Asian looking person’s identification. The way to balance, or rectify, the drawing, Abraham said, would be to allow citizens to be able to ask the soldiers for the identification information.

The campaign, “Rethink UID Project,” included several images illustrating various problems with the plan. For example, one said: “Central storage of keys is a bad idea, so is central storage of our biometrics.” As Abraham explained, if storing a copy of your housekey at the police station does not make us feel more secure, then why wouldn’t storing our biometrics with the government also make us a little more scared?

In the Indian scheme, Abraham said, the government says biometrics will be used as an authentication factor in order to prove your identity, but from a computer science perspective, it’s a bad idea because it is so easy to steal biometrics. And, as Abraham pointed out, if your biometrics are stolen, it’s not possible for you to re-secure it—it’s not like getting a new ATM card and password, he said.

If this system of national UID was designed using digital keys instead of biometrics, then we would have a completely different configuration, Abraham said.

Centralized storage is nonnegotiable, and therefore the process of authentification is done through a centralized database, but with digital keys or digital signatures, authentification could be done on a peer basis, so citizen could authenticate border guards and vice versa.

Another image from the “Rethink UID Project” campaign pointed out that “Technology cannot solve corruption.” As Abraham said, problems of corruption in the subsidy system (food, loans, education, employment guarantee act in rural India, etc) won’t be fixed with biometrics. For example, if biometric equipment is installed at fair-price shops, before the shop owner gives the grain, the citizen would have to present biometrics, which would go through a centralized server and be authenticated, then the citizen would get the grain, and ultimately there would be a record saying this particular citizen collected this amount of subsidized grain at this particular time.

But there are a whole range of ways shop owners can compromise the system, Abraham said.

The first way: 30-50 percent of India is illiterate, so shop owner can say the biometrics were rejected by the server and the citizen would not know better. Or, the owner can say there was no connectivity so authentification didn’t go through, or the owner could say there was no electricity so the system won’t work, or the shop owner could give just part of the grain that the citizen is due.

Corruption innovates and terrorism innovates—if technology innovates, so does corruption, as it is not a static phenomenon, Abraham said. You can’t wish away human beings from technological configurations.

One village will have multiple biometric readers.

Abraham said they have proposed an alternative schema: remove readers from the shop, school, hospital, bank, etc., and have only one scanner at the local governance hall. Instead of the citizen becoming transparent to the government, the government should become transparent to the citizen. The shop owners should make transparent which IDs they have given how much grain to, and only if they are going to dispute the ID of a citizen, can they go to the local government administrative office to prove the ID.

Another image from the “Rethink UID Project” campaign said, “The poor and the rich: who do we track first?”

Abraham explained that one problem in India is “black money,” or money for which you don’t pay taxes because the accounts are in fake names in order to store money. Like creating fake bank accounts, he said it also would be easy to create fake biometrics by combining the handprints and eyes of multiple people to get a second fake ID. Also the system could be hacked into and iris images Photoshopped. Ghost ideas also could be created and then sold off. Because the rich will get their IDs behind closed doors, Abraham said, it will be easy for them to get multiple IDs, but the poor will not be able to.

Referring to “tailgating,” or when one ID is card swiped to gain entrance for multiple people, such as swiping one metro card and then two people walking through, Abraham noted that the problem is that the tailgating only is seen as a problem when it’s at the bottom of the pyramid, such as one woman goes to the fair-price shop to collect grain for five or six families so only one person has to lose a day’s wage instead of all five or six losing a day’s wages. Tailgating at the bottom if the pyramid is usually a question of survival, he said.

Thus, another image from the campaign showed a pyramid and said, “Transparency at the top first…before transparency at the bottom.”

The first principle is that expectations of privacy should be inversely proportional to power, so people who are really powerful, like NGOs, politicians, or heads of corporations, should have less privacy, and people who have very little power should have more privacy, Abraham said.

Also, from a business perspective, the nation gets greater return on its investment if surveillance equipment is trained on people at the top of the pyramid to catch big-time corruption, he said.

Most of the panic around the UID is over the transaction database. Beyond a databse storing everyone’s biometrics, another database will track transactions: every time you buy a mobile phone or purchase a ticket or access a cyber cafe or subsidies, thanks to UID, there will a record made in the transaction database, Abraham said.

Abraham said it is important to note that surveillance is not an intrinsic part of information systems, but once surveillance is engineered into information systems, both those with good intentions or bad intentions can take advantage of that surveillance capability.

The UID means there will be 22 databases available to 12 intelligence agencies, he said.

So when a girl enters into a cybercafé, first she will have to provide her UID, and then the café owner will photocopy the card, then the owner has the right to take a photo of the girl using his own camera, then the owner is supposed to maintain browser logs of her computer for a period of one year.

So the question then is how to assure accountability without surveillance?

The first possibility, Abraham said, is partial storage. The transaction database could store half the data, and the central database could store the other half, so the full 360-view of the data would not be available without a court order.

The second solution is a transaction escrow, where every time a record is put into the main database, it will be encrypted using 2-3 keys, and only if 3 agencies cooperate with keys, can the information be decrypted. Thus, it is targeted surveillance, not blanket surveillance.

To conclude his presentation, Abraham divided participants into four groups in order to design surveillance systems for internet surveillance, mobile technologies, CCTVs, and border control.

Sharon Strover spoke on behalf of the CCTV group, saying they ended up with more questions than anything else. They agreed there should be notices when cameras are in use, there should be public knowledge of who is doing surveillance and who has access to the footage, and the data shouldn’t be sold. But the group couldn’t decide which spaces warranted CCTVs and which not.

Abraham then pointed out that the next generation of CCTVs can read everybody’s irises as they pass the cameras—it’s in the lab now, and 2-3 years from the market, he said.

Next, Andy Carvin spoke on behalf of the mobile technologies surveillance group. Whether or not capturing metadata or content as well, the mobile phone company can collect it, but it shouldn’t be able to keep any identifiable information for the person – it should only be able to look at information in the aggregate. The rest of the information should be shipped to a non-governmental organization or government agency specialized in privacy, and 2 keys would be required: one from the judiciary and one from the NGO or governmental agency.

Smári McCarthy reported back for the Internet surveillance group, pointing out that data retention has been useful in criminal cases less than 0.2 percent of the time in one study, and another showed there has been no statistically significant increase in the number of criminal cases solved because of data retention. So, he said, the group concluded there should be no blanket surveillance, only court orders in certain criminal cases that define who will be under surveillance and for how long. Also, they wanted to see a transparency register available so the public could be informed about how many people are under surveillance currently and throughout year and other general information, such as the success rate—how many of these surveillances have led to criminal convictions or similar.

Finally, Summer Harlow spoke on behalf of the border control group, which said scanning of checked- and carry-on luggage is acceptable, but there should be no luggage searches without specific probable cause from intelligence agencies or if the scans pick up weapons or other contraband. Similarly, people could be subject to spectrum scans and drug/bomb sniffing dogs for weapons and contraband, but again they would not be physically searched by border agents without probable cause. Also, people and luggage could not randomly be searched based on the country of their passport or their flight destination or origin.

In summary, Abraham said, surveillance is like salt in food: it is essential in small amounts, but completely counter-productive if even slightly excessive.

Download Sunil's presentation here [PDF, 1389 kb]
Sunil Abraham made the presentation at the Gary Chapman International School on Digital Transformation on 21 July 2011. The original news published by International School on Digital Transformation can be read here
Read the schedule here

For more details visit https://cis-india.org/news/uid-worlds-largest-database

People are Knowledge – Experimenting with Oral Citations on Wikipedia

praskrishna — 2012-12-14T10:26:31Z

The Centre for Internet and Society in association with the Wikimedia Foundation has produced a documentary film "People are Knowledge". The film evolved out of a project on Oral Citations in India and South Africa funded by the Wikimedia Foundation, and undertaken by Wikimedia Foundation Advisory Board Member Achal Prabhala as a short-term fellowship, to help overcome a lack of published materials in emerging languages on Wikipedia. New Delhi-based filmmaker Priya Sen has directed the film, with additional assistance from Zen Marie who handled the shooting in South Africa. The film explores how alternate methods of citation could be employed on Wikipedia, documenting a series of specific situations with regards to published knowledge, and subsequently, with oral citations.

The Problem

Imagine a world with every individual having open access to the sum of human knowledge. But there is a problem — the sum of human knowledge is far greater than the sum of printed knowledge. For example, in India and South Africa, the number of books produced every year is nowhere near to the number of books being producing in UK. There is very little citable, printed material to rely on in the indigenous languages of India or South Africa. So it is difficult for the languages of these countries to grow its own Wikipedia. While there are significant media markets for Indian languages within and outside India, there is very little scholarly publishing in any language other than English. On the other hand, South African languages with the exception of English and Afrikaans have had a largely oral existence and only in recent times have started a publishing tradition, which is in nascent stages.

Total Production of Books in UK, South Africa and India as of 2005

UK: 161,000 books / 60 million people
South Africa: 6100 books/48 million people
India: 97,000 books/1100 million people

If we were to measure books produced in 2005 per person per country, the comparison is even more glaring:

UK: 1 book per 372 people
South Africa: 1 book per 7869 people
India: 1 book per 11,371 people

Source: Wikimedia page on Research: Oral Citations. For more details see here

As a result of such disparity, everyday, common knowledge — things known, observed and performed by millions of people — do not enter Wikipedia as facts because they haven’t been written down in a reliably published source. Hence, Wikipedia in countries like India and South Africa lose out on opportunities for growth.

While we are enthused about the rise of “small language Wikipedias”, it may not happen soon. Not with the present rules at least. Even if we were to convince every single person in the South with Internet access to become an active editor on Wikipedia, there is still a problem that they are going to run up against. That problem that currently bedevils everyone working in local languages in Asia and Africa, and nobody seems to have a control over it.

For Wikipedias in languages of the South, citations aren’t a problem when the articles being added are translations (for universally important topics, reliable citations are already there in English and other European languages). Assuming, however, that we all want the sphere of knowledge to be universally expanded — and not merely translated from languages of the North to languages of the South — there are two specific problems with finding citations for important local subject matters.

Published, citable resources may simply not exist. This is not just true of Sub-Saharan African languages (many of which use Latin script, have a relatively recent written history, and small or non-existent publishing markets) but also of several South Asian languages (even though they have non-Latin scripts, a relatively ancient written history and thriving publishing markets in news and entertainment).
Even when published scholarly resources exist, they may be inaccessible and thus effectively rendered invisible to Wikipedians. Libraries and archives in India and South Africa are usually not electronically indexed. Furthermore, they are not always conveniently located, and often impose a massive bureaucratic burden on the user to search, see, borrow from or even enter.

Oral Citations as a Possible Solution

Hindi Wikipedia has over 65,000 articles, Malayalam Wikipedia has about 15,000, and Northern Sotho Wikipedia has about 600. Many of these articles — especially when concerning subjects that are specific to a particular people or place — have no citations whatsoever. Yet, an editor — often several editors — created the articles in question. How? Simply put, and barring laziness and carelessness where citations are available, the basis of fact therein is orally circulated knowledge. Even today, in several parts of the world, people are knowledge. Therefore, an exercise where oral citations are collected and assembled — in a manner not different to that by which print sources are cited on Wikipedia, i.e., with diverse viewpoints, several sources, a rationale for authenticity — might be one way to capture this knowledge in a form that is recognisable to Wikipedia.

Anthropologists have been doing this for years — in the academy, it is called field work. The average Wikipedians certainly don’t have the capacity to replicate the arduous research programme of a doctoral student but they do have common sense and access to basic telecommunication facilities. So oral citations can:

Create externally verifiable authentication for a Wikipedia article that is based on experiential facts, but lacks citations simply because no printed source has recorded these facts to date.
Add to the set of published scholarly resources that document an existing fact, for example, in cases where the published sources are archaic or primarily foreign, and thus complete existing knowledge or correct its biases.

The Experiment

Achal Prabhala worked with Wikipedians across three languages in two different countries — Malayalam (40 million speakers) and Hindi (250 million speakers) in India and Northern Sotho (5 million speakers) in South Africa to see how oral citations might be received in the language communities they can benefit, discuss this idea with Wikipedians at large, not as a final solution but as a first step in understanding how we may expand our definition of reliable sources of knowledge beyond what is published in print, and what benefits such an expansion may bring and show this is an idea that takes hold, to create a set of clearly laid-out initial templates that others can use and build upon. Four collaborators: Shiju Alex, Mayur, Mohau Monaledi and Achal Prabhala, with additional help from Vijayakumar Blathur were finalised. Parts of the experiment were then filmed as an edited documentary.

The Pitfalls

There are numerous potential pitfalls[1] the most glaring of which is the principle of ‘No original research’. Naturally, we’re going to have to find a way to justify our approach, or work around it, or expand its meaning. Several people will welcome it, several people will object on all kinds of grounds, and several others possibly misusing and misinterpreting oral citations (i.e., without care to authenticity, diversity of opinion) in their work on Wikipedia.

However, this is the right thing to do. The problem is real. The solution being presented is a first step, not a final answer. Sure, people might have a problem with it, and sure, there may be heated objections to it; but overall, if it’s the right thing to do, it should be done, however strange it seems and however unsettling it is.

After all, if the status quo had to be respected absolutely, we wouldn’t have Wikipedia.

Note

[1]On a side note, Achal says that the pitfall to the pitfall is the status quo: literally thousands of articles without any citations whatsoever, a problem that no one notices because they’re in languages that the majority of current editors on Wikipedia do not understand – and a problem which is often overlooked by language communities in the south in favour of growth.

For recorded interviews, click here

Watch the movie below:

People are Knowledge (subtitled) from Achal R. Prabhala on Vimeo.

For more details visit https://cis-india.org/openness/blog-old/people-are-knowledge

Openness

kaeru — 2015-12-15T08:27:08Z

Innovation and creativity are fostered through openness and collaboration. The advent of the Internet radically defined what it means to be open and collaborative. The Internet itself is built upon open standards and free/libre/open source software. Our work in the Openness programme focuses on open data, especially open government data, open access, open education resources, open knowledge in Indic languages, open media, and open technologies and standards - hardware and software. We approach openness as a cross-cutting principle for knowledge production and distribution, and not as a thing-in-itself.

Key Works

Publications

Open Data Intermediaries in Developing Countries - A Synthesis Report, François van Schalkwyk, Michael Caňares, Sumandro Chattapadhyay, and Alexander Andrason, June 2015.
Opening Government: A Guide to Best Practice in Transparency, Accountability and Civic Engagement across the Public Sector, Transparency & Accountability Initiative, 21 July 2011.
Open Government Data in India (v2), Nisha Thompson, 19 August 2011.
Open Government Data Study, Glover Wright, Pranesh Prakash, Sunil Abraham and Nishant Shah, Transparency & Accountability Initiative, 20 May 2011
Critical Point of View: A Wikipedia Reader, Geert Lovink and Nathaniel Tkacz (eds), Institute of Network Cultures, 9 May 2011.
Open Access to Scholarly Literature in India: A Status Report: Call for Comments, Prof. Subbiah Arunachalam and Madhan Muthu, April 2011.
The Online Video Environment in India - A Survey Report, Siddharth Chadha, Benjamin Moskowitz and Pranesh Prakash, iCommons and the Open Video Alliance, October 2010.

Film

People are Knowledge – Experimenting with Oral Citations on Wikipedia, directed by Priya Sen and Zen Marie, Wikimedia Foundation, 22 July 2011.

Submissions

Comments on the draft National Data Sharing and Accessibility Policy, submitted to the Department of Science and Technology, June 2011.
CIS Comments on the Interoperability Framework for e-Governance (Phase I), submitted to the Department of Information & Technology, January 2011.

Workshops

Workshop on Open Data for Human Development, organised with UNDP India and Akvo to support officials from the Government of Sikkim to draft an implementation plan for the state level open data policy, June 2015.
Iraqi Public Data Scenario Workshop: A Summary, notes from a workshop organised with UNDP Iraq to support officials of the Government of Iraq to draft an open data policy and build usage scenarios for open government data, October 2012.

For more details visit https://cis-india.org/openness/front-page

Opening Government: A Guide to Best Practice in Transparency, Accountability and Civic Engagement across the Public Sector

pranesh — 2012-12-14T10:26:42Z

The Transparency & Accountability Initiative has published a book called “Opening Government: A Guide to Best Practice in Transparency, Accountability and Civic Engagement across the Public Sector”. We at the Centre for Internet & Society contributed the section on Open Government Data.

Cross-posted from the Transparency & Accountability Initiative blog.

Download the full report (PDF, 440 Kb)

Open Government Partnership

In January 2011, a small group of government and civil society leaders from around the world gathered in Washington, DC to brainstorm on how to build upon growing global momentum around transparency, accountability and civic participation in governance. The result was the creation of the Open Government Partnership (OGP), a new multi-stakeholder coalition of governments, civil society and private sector actors working to advance open government around the world — with the goals of increasing public sector responsiveness to citizens, countering corruption, promoting economic efficiencies, harnessing innovation, and improving the delivery of services.

In September 2011, these founding OGP governments will gather in New York on the margins of the UN General Assembly to embrace a set of high-level open government principles, announce country-specific commitments for putting these principles into practice and invite civil society to assess their performance going forward. Also in September, a diverse coalition of governments will stand up and announce their intention to join a six-month process culminating in the announcement of their own OGP commitments and signing of the declaration of principles in January 2012.

'Opening Government' report

To help inform governments, civil society and the private sector in developing their OGP commitments, the Transparency and Accountability Initiative (T/A Initiative) reached out to leading experts across a wide range of open government fields to gather their input on current best practice and the practical steps that OGP participants and other governments can take to achieve it.

The result is the first document of its kind to compile the state of the art in transparency, accountability and citizen participation across 15 areas of governance, ranging from broad categories such as access to information, service delivery and budgeting to more specific sectors such as forestry, procurement and climate finance.

Each expert’s contribution is organized according to three tiers of potential commitments around open government for any given sector — minimal steps for countries starting from a relatively low baseline, more substantial steps for countries that have already made moderate progress, and most ambitious steps for countries that are advanced performers on open government.

Chapters and Contributing Authors

Aid – Publish What You Fund
Asset disclosure - Global Integrity
Budgets – The International Budget Project
Campaign finance – Transparency International - USA
Climate finance – World Resources Institute
Fisheries – TransparentSea
Financial sector reform Global Financial Integrity
Forestry – Global Witness
Electricity – Electricity Governance Initiative
Environment – The Access Initiative
Extractive industries – The Revenue Watch Institute
Open government data – The Centre for Internet and Society - India
Procurement – Transparency International-USA
Right to information – Access Info and the Center for Law and Democracy
Service delivery – Twaweza

For more details visit https://cis-india.org/openness/blog-old/opening-government-best-practice-guide

Privacy Matters, Guwahati — Event Report

praskrishna — 2011-08-26T10:31:08Z

On June 23, a public seminar on “Privacy Matters” was held at the Don Bosco Institute in Karhulli, Guwahati. It was organised by IDRC, Society in Action Group, IDEA Chirang, an NGO initiative working with grassroots initiatives in Assam, Privacy India and CIS and was attended by RTI activists and grass roots NGO representatives from across the North Eastern region: Manipur, Arunachal Pradesh, Tripura, Nagaland, Assam and Sikkim. The event focused on the challenges and concerns of privacy in India.

Unfortunately many of the scheduled invitees had to drop out owing to developments on the Lokpal issue at the Centre, and simultaneously Guwahati was witnessing unrest following an agitation over land rights that left three persons dead.

Welcoming the participants, Prashant Iyengar, lead researcher for Privacy India, gave an introduction to the objectives of Privacy India, and briefed the gathering about the thematic “Privacy Matters” consultations previously held across the country in Kolkata, Bangalore and Ahmedabad. Mr. Iyengar also gave a background to issues that India is facing in concern with privacy, explaining the many contexts that privacy can be found in, and raising questions such as: Why is privacy important? How can it be maintained with the way technology is encroaching upon our lives? And how can we make privacy laws functional?

"Privacy objectives are to raise awareness, spark civil action and promote democratic dialogue around privacy challenges and violations in India. One of Privacy India’s goals is to build consensus towards the promulgation of a comprehensive privacy legislation in India through consultation with the public, legislators and the legal and academic community."

Prashant Iyengar, Privacy India.

Event Sessions

The structure of the event was one of open discussion, with presentations made by those who wanted to share. Throughout the day, the conversation fell into three main topics including: privacy and the RTI, privacy and the UID, and privacy and surveillance in the context of North East India.

Privacy and the RTI

Prashant Iyengar opened the discussion on privacy and the RTI by highlighting the tension between the need for transparency of the State, and the need to protect the privacy of public figures. For many participants privacy and transparency was a new concept that they had just started thinking about. Participant Rakesh (HRLN, Manipur) spoke on the shortcomings that he saw in the RTI Act noting that though the RTI brings some transparency to society, many citizens still do not understand the extent of their Right to Information as it is protected under the Act. Furthermore, the RTI Act is still not applied equally across the country, and the transparency that the RTI tries to achieve is still in very nascent stages. Lowang, a participant from Aru nachal Pradesh, shared the importance of drawing a line between privacy and transparency when it comes to information related to education and health. Anjuman Azra Begum, a research scholar working on indigenous people rights, noted the irony of the RTI as it is meant to bring transparency to the state, yet all ministers and MLA’s take an oath of secrecy, not transparency. Anjuman also spoke on the fact that the RTI often fails to protect the privacy of sensitive issues, such as sexual balance. She echoed Rakesh’s comment on the inaccessibility of the RTI, sharing that for a common person to exercise his/her rights is a very daunting task. Anthony Debbarmun, a human rights activist from Tripura noted that he felt that the North Eastern states are by and large seen as resource (land) by the centre and has shown no concern for citizens and their well-being. Government is seen as a dictator in this region, hence the question — Transparency for whom?, Privacy for Whom? The distinction between the transparency brought about by the RTI and individual privacy was also made. It was pointed out that the RTI is concerned with transparency of the State, but individual privacy is separate from this concept.

Personal Experiences Shared

Anjuman Azra Begum shared her sister’s experience with the RTI. Her sister had applied for a job in 2008. Their family filed an RTI for details of the procedure, but was denied details by the RTI officer, who said that furnishing details would violate the privacy of other candidates. This example raises questions about when it is appropriate for RTI officers to withhold information in the name of privacy, and what mechanisms can be put in place to ensure that the RTI does not use privacy as a way to deny information. Lowang also shared his experience with the RTI. He had filed an RTI asking for answer sheets because he doubted the appointment of police personnel. He was told that the cost in total would be Rs.2000, when in reality each sheet costs Rs.2 — the misconstruing of facts was another example of how RTI officials restrict access information indirectly. From these examples the concern about RTI officials using privacy as an excuse to deny information was brought to the surface. To highlight the problems with the current implementation of the RTI and the lack of basic knowledge of how to use the RTI Mhao Lotha from the DICE Foundation shared a personal experience of his friend who had filed an RTI against the fishery department, and the RTI official simply shouted at her. L. Rima told a similar story as Mhao Lotha. In her experience the RTI is good in theory, but in practice it has become a commercial platform, where officers pay money to applicants for RTI cases to be taken off.

From the discussion and the shared experiences it was clear that the RTI, although a strong law on paper, still faces many challenges in implementation that a privacy law could also face, and that the fact that if more privacy is brought into the RTI, it will become yet another way for the State to avoid disclosing information.

Questions to Consider

Can a privacy law be made to be functional in the same way that the RTI is functional?
In terms of the RTI who should have more privacy? Who should be more transparent? Can NGOs be held accountable under the RTI?
What mechanism should be established to enforce the balance between privacy and transparency?

Privacy and Security/Law Enforcement in the North East of India

Another important discussion held during the conference was the practices of law enforcement in the North East, security, and privacy. Because the North East is in a state of armed conflict several laws such as the Armed Forces Special Powers Act, Sedition Act and provisions in the IPC give immunity to security forces. This has led to gross violation of citizens’ privacy by law enforcement agencies — as the acts give large amounts

of power to law enforcement agencies with little or no accountability, and the acts are often misused. Furthermore, the security laws that exist in the North East explicitly prohibit access to individual personal information. For example, in the Assam Police Manual, which is followed by police in the North East — no papers can be given out to the public except to the investigation officer — this includes personal information such as medical records and post-mortem reports. Anjuman shared an example of how this rule violates individual privacy. In her example, a victim was not allowed access her own medical report, but her medical records were being circulated among police, doctors, and media. This example highlights how privacy and the right to information can go hand in hand as it was the victim’s right to access her own medical file, and at the same time getting access to her own medical file is an act of personal privacy protection.

Personal Experiences Shared

Participants shared how individual privacy is often violated by the army, as it is allowed to enter and search any space without warrant, if there is any type of “suspicion”. They also shared how phone tapping and random monitoring is a common practice by both the army and civil police. For example, one day the police recorded a conversation by Director of the Police, Wireless who was giving a lecture on how to lead an effective agitation. The transcript was handed to the high court and the director punished. Other examples include policemen frisking women in public, newspapers publishing police frisking women in public, and law enforcement agencies compelling pregnant women to give birth in open in front of people. The discussion surrounding privacy and security/law enforcement highlighted an important way in which privacy is violated in the North East. The unregulated action of law enforcement acts as a very real and dangerous way in which individual privacy is violated on a daily basis.

Questions to Consider

Can privacy legislation regulate the acts of law enforcement agencies?
Will privacy legislation be implemented differently in the North East because of the armed conflict?
Will a privacy law supersede other laws such as the AFSPA?

Privacy and the UID

During the conference the discussion also briefly focused on the UID and privacy. It was shared that there had yet to be UID consultations in the North East of India. The only information individuals had about the UID was that it was going to allow individuals to access BPL benefits more easily.

Questions around the UID included: why is the UID needed for citizens living within their own country? How will the UID impact and help families who send their children to gather rations from the ration shops? What is the connection between the UID and the expected privacy law? What is the connection between the UID and intelligence agencies? What would UID mean to people living in border areas?

Conclusion

Privacy as a Fundamental Right

In the closing discussion Prashant Iyengar shared different examples of privacy in Indian case law, and the various ways in which the Supreme Court has defined privacy as a right that is implicit in the right to life. The participants discussed what privacy means to them, and what they thought a right to privacy should entail. Among the points raised, it was brought up that privacy should be a right that is legally protected for sovereign individuals. The law should also include parameters and limitations in order to protect an individual’s autonomy. Furthermore, privacy should be understood and linked to the concept of human rights and individual rights. From the closing session, and the above sessions many themes and questions pertaining to privacy came out that will need to be addressed when considering the way forward for a privacy legislation including:

Property rights and privacy
Privacy rights of minorities
Privacy and the UID
Privacy and law enforcement agencies
Privacy as a fundamental right
The interplay of privacy law and traditional law

Download the Event Report here [PDF, 178 kb]

For more details visit https://cis-india.org/internet-governance/blog/privacy/privacy-guwahati-report

Privacy & Media Law

Sonal Makhija — 2012-12-14T10:26:51Z

In her research, Sonal Makhija, a Bangalore-based lawyer, tries to delineate the emerging privacy concerns in India and the existing media norms and guidelines on the right to privacy. The research examines the existing media norms (governed by Press Council of India, the Cable Television Networks (Regulation) Act, 1995 and the Code of Ethics drafted by the News Broadcasting Standard Authority), the constitutional protection guaranteed to an individual’s right to privacy upheld by the courts, and the reasons the State employs to justify the invasion of privacy. The paper further records, both domestic and international, inclusions and exceptions with respect to the infringement of privacy.

Introduction

Last year’s satirical release, Peepli [Live], accurately captured what takes place in media news rooms. The film revolves around a debt-ridden farmer whose announcement to commit suicide ensue a media circus. Ironically, in the case of the Radia tapes, the same journalists found themselves in the centre of the media’s frenzy-hungry, often intrusive and unverified style of reporting.[1] Exposés, such as, the Radia tapes and Wikileaks have thrown open the conflict between the right to information, or what has come to be called ‘informational activism’, and the right to privacy. Right to information and the right to communicate the information via media is guaranteed under Article 19(1) (a) of the Constitution of India. In State of Uttar Pradesh v Raj Narain,[2] the Supreme Court of India held that Article 19(1) (a), in addition, to guaranteeing freedom of speech and expression, guarantees the right to receive information on matters concerning public interest. However, more recently concerns over balancing the right to information with the right to privacy have been raised, especially, by controversies like the Radia-tapes.

For instance, last year Ratan Tata filed a writ petition before the Supreme Court of India alleging that the unauthorised publication of his private conversations with Nira Radia was in violation of his right to privacy. The writ, filed by the industrialist, did not challenge the action of the Directorate-General of Income Tax to record the private conversations for the purpose of investigations. Instead, it was challenging the publication of the private conversations that took place between the industrialist and Nira Radia by the media. Whether the publication of those private conversations was in the interest of the public has been widely debated. What the Tata episode brought into focus was the need for a law protecting the right to privacy in India.

India, at present, does not have an independent statute protecting privacy; the right to privacy is a deemed right under the Constitution. The right to privacy has to be understood in the context of two fundamental rights: the right to freedom under Article 19 and the right to life under Article 21 of the Constitution.

The higher judiciary of the country has recognised the right to privacy as a right “implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21”. The Indian law has made some exceptions to the rule of privacy in the interest of the public, especially, subsequent to the enactment of the Right to Information Act, 2005 (RTI). The RTI Act, makes an exception under section 8 (1) (j), which exempts disclosure of any personal information which is not connected to any public activity or of public interest or which would cause an unwarranted invasion of privacy of an individual. What constitutes an unwarranted invasion of privacy is not defined. However, courts have taken a positive stand on what constitutes privacy in different circumstances.

The purpose of this paper is to delineate the emerging privacy concerns in India and the existing media norms and guidelines on the right to privacy. At present, the media is governed by disparate norms outlined by self-governing media bodies, like the Press Council of India, the Cable Television Networks (Regulation) Act, 1995 and the Code of Ethics drafted by the News Broadcasting Standard Authority (NBSA). The paper examines the existing media norms, constitutional protection guaranteed to an individual’s right to privacy and upheld by courts, and the reasons the State employs to justify the invasion of privacy. The paper records, both domestic and international, inclusions and exceptions with respect to the infringement of privacy.

The paper traces the implementation of media guidelines and the meanings accorded to commonly used exceptions in reporting by the media, like, ‘public interest’ and ‘public person’. This paper is not an exhaustive attempt to capture all privacy and media related debates. It does, however, capture debates within the media when incursion on the right to privacy is considered justifiable. The questions that the paper seeks to respond to are: When is the invasion on the right to privacy defensible? How the media balances the right to privacy with the right to information? How is ‘public interest’ construed in day-to-day reporting? The questions raised are seen in the light of case studies on the invasion of privacy in the media, the interviews conducted with print journalists, the definition of the right to privacy under the Constitution of India and media’s code of ethics.

Constitutional Framework of Privacy

The right to privacy is recognised as a fundamental right under the Constitution of India. It is guaranteed under the right to freedom (Article 19) and the right to life (Article 21) of the Constitution. Article 19(1) (a) guarantees all citizens the right to freedom of speech and expression. It is the right to freedom of speech and expression that gives the media the right to publish any information. Reasonable restrictions on the exercise of the right can be imposed by the State in the interests of sovereignty and integrity of the State, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. Article 21 of the Constitution provides, "No person shall be deprived of his life or personal liberty except according to procedure established by law." Courts have interpreted the right to privacy as implicit in the right to life. In R.Rajagopal v. State of T.N.[3]; and PUCL v. UOI[4], the courts observed that the right to privacy is an essential ingredient of the right to life.

For instance, in R. Rajagopal v State of Tamil Nadu, Auto Shankar — who was sentenced to death for committing six murders — in his autobiography divulged his relations with a few police officials. The Supreme Court in dealing with the question on the right to privacy, observed, that the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of the country by Article 21. It is a ‘right to be left alone.’ "A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters.” The publication of any of the aforesaid personal information without the consent of the person, whether accurate or inaccurate and ‘whether laudatory or critical’ would be in violation of the right to privacy of the person and liable for damages. The exception being, when a person voluntarily invites controversy or such publication is based on public records, then there is no violation of privacy.

In PUCL v. UOI,[5]which is popularly known as the wire-tapping case, the question before the court was whether wire-tapping was an infringement of a citizen’s right to privacy. The court held that an infringement on the right to privacy would depend on the facts and circumstances of a case. It observed that, "telephone conversation is an important facet of a man's private life. Right to privacy would certainly include telephone-conversation in the privacy of one's home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law." It further observed that the right to privacy also derives from Article 19 for "when a person is talking on telephone, he is exercising his right to freedom of speech and expression."

In Kharak Singh v. State of U.P,[6] where police surveillance was being challenged on account of violation of the right to privacy, the Supreme Court held that domiciliary night visits were violative of Article 21 of the Constitution and the personal liberty of an individual.

The court, therefore, has interpreted the right to privacy not as an absolute right, but as a limited right to be considered on a case to case basis. It is the exceptions to the right to privacy, like ‘public interest’, that are of particular interest to this paper.

International Conventions

Internationally the right to privacy has been protected in a number of conventions. For instance, the Universal Declaration of Human Rights, 1948 (UDHR) under Article 12 provides that:

"No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, or to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."

The UDHR protects any arbitrary interference from the State to a person’s right to privacy. Similarly, International Covenant on Civil and Political Rights, 1976 (ICCPR) under Article 17 imposes the State to ensure that individuals are protected by law against “arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. [7]

Thus, ensuring that States enact laws to protect individual’s right to privacy. India has ratified the above conventions. The ratification of the Conventions mandates the State to take steps to enact laws to protect its citizens. Although, human right activists have periodically demanded that the State take adequate measures to protect human rights of the vulnerable in society, the right to privacy has received little attention.

Similarly, Article 16 of the Convention on the Rights of the Child (CRC) provides protection to a minor from any unlawful interference to his/her right to privacy and imposes a positive obligation on States who have ratified the convention to enact a law protecting the same. India does have safeguards in place to protect identity of minors, especially, juveniles and victims of abuse. However, there are exceptions when the law on privacy does not apply even in case of a minor.

The right to privacy, therefore, is not an absolute right and does not apply uniformly to all situations and all class of persons. For instance, privacy with respect to a certain class of persons, like a person in public authority, affords different protection as opposed to private individuals.

Public Person

In case of a representative of the public, such as a public person, the right to privacy afforded to them is not of the same degree as that to a private person. The Press Council of India (PCI) has laid down Norms of Journalistic Conduct, which address the issue of privacy. The PCI Norms of Journalistic Conduct, recognises privacy as an inviolable human right, but adds a caveat; that the degree of privacy depends on circumstances and the person concerned.

In the landmark judge’s asset case, CPIO, Supreme Court of India vs Subhash Chandra Agarwal,[8] the court recognised the tension between the right to information and the right to privacy, especially, with respect to public persons. The case arose from an application filed by a citizen who was seeking information under the RTI Act on whether judges of high courts and Supreme Court were filing asset declarations in accordance with full resolution of the Supreme Court. The court held that information concerning private individuals held by public authority falls within the ambit of the RTI Act. It remarked that whereas public persons are entitled to privacy like private persons, the privacy afforded to private individuals is greater than that afforded to those in public authority, especially in certain circumstances.

The court commented:

"A private citizen's privacy right is undoubtedly of the same nature and character as that of a public servant. Therefore, it would be wrong to assume that the substantive rights of the two differ. Yet, inherent in the situation of the latter is the premise that he acts for the public good, in the discharge of his duties, and is accountable for them. The character of protection, therefore, afforded to the two classes — public servants and private individuals, is to be viewed from this perspective. The nature of restriction on the right to privacy is therefore, of a different order; in the case of private individuals, the degree of protection afforded is greater; in the case of public servants, the degree of protection can be lower, depending on what is at stake."

In testing whether certain information falls within the purview of the RTI Act, the court said one should consider the following three tests:

whether the disclosure of the personal information is with the aim of providing knowledge of the proper performance of the duties and tasks assigned to the public servant in any specific case;
whether the information is deemed to comprise the individual's private details, unrelated to his position in the organization, and,
whether the disclosure will furnish any information required to establish accountability or transparency in the use of public resources.

Would this rule hold true for information on relatives/ friends of public persons? The rule is that, unless, private information on relatives/friends of public person’s impacts public interest and accountability, the information should not be revealed.

In 2010, the media reported that Sunanda Pushkar, a close friend of the Minister of State for External Affairs, Shashi Tharoor, holds a significant holding in the IPL Kochi team. The media exposure led to the exit of Shashi Tharoor from the government. While the media’s questioning of Pushkar’s holdings was legitimate, the media’s reporting on her past relationships and how she dressed had no bearing on public interest or accountability.[9] The media accused Pushkar of playing proxy for Tharoor in the Rs. 70 crore sweat equity deal. Much of the media attention focussed on her personal life, as opposed to, how she attained such a large stake in the IPL Kochi team. It minutely analysed her successes and failures, questioned her ability and accused her of having unbridled ambition and greed for money and power.[10]

If one was to consider the rules of privacy set by the court in the judges assets’ case much of the personal information published by the media on Tharoor and Pushkar, failed to shed light on the IPL holdings or the establishment of the nexus between the IPL holdings and the government involvement.

The tests delineated by the court in considering what personal information regarding a public authority may be shared under the RTI Act, can be adopted by the media when reporting on public officials. If personal information divulged by the media does not shed light on the performance of a public official, which would be of public interest, then the information revealed violates the standards of privacy. Personal details which have no bearing on public resources or interests should not be published.

The media coverage of the Bombay terror attacks displayed the same lack of restraint, where the minutest details of a person’s last communication with his/her family were repeatedly printed in the media. None of the information presented by the media revealed anything new about the terror attack or emphasised the gravity of the attack.

A senior journalist, who talked off the record and reported on the Mumbai terror attacks, agreed that the media overstepped their limits in the Mumbai terror attacks. As per her, violation of privacy takes place at two stages: the first time, when you overstep your boundaries and ask a question you should not have, and the second, when you publish that information. Reflecting on her ten years of reporting experience, she said, “Often when you are covering a tragedy, there is little time to reflect on your reporting. Besides, if you, on account of violating someone’s privacy, choose not to report a story, some competing paper would surely carry that story. You would have to defend your decision to not report the story to your boss.” The competitiveness of reporting and getting a story before your competitor, she agreed makes even the most seasoned journalists ruthless sometimes. Besides, although PCI norms exist, not many read the PCI norms or recall the journalistic ethics when they are reporting on the field.[11]

The PCI Norms reiterate that the media should not intrude "the privacy of an individual, unless outweighed by genuine overriding public interest, not being a prurient or morbid curiosity."[12] The well accepted rule, however, is that once a matter or information comes in the public domain, it no longer falls within the sphere of the private. The media has failed to make the distinction between what is warranted invasion of privacy and what constitutes as an unwarranted invasion of privacy. For instance, identity of a rape or kidnap victim that would further cause discrimination is often revealed by the media.

Safeguarding Identity of Children

The Juvenile Justice (Care and Protection of Children) Act lays down that the media should not disclose the names, addresses or schools of juveniles in conflict with the law or that of a child in need of care and protection, which would lead to their identification. The exception, to identification of a juvenile or child in need of care and protection, is when it is in the interest of the child. The media is prohibited from disclosing the identity of the child in such situations.

Similarly, the Convention on the Rights of the Child (CRC) stipulates that:

Article 16

No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence, nor to unlawful attacks on his or her honour and reputation.
The child has the right to the protection of the law against such interference or attacks.

Article 40 of the Convention, states that the privacy of a child accused of infringing penal law should be protected at all stages of the proceedings.

Almost all media, print and broadcast, fail to observe these guidelines. Prashant Kulkarni[13] (name changed), who was a photographer with Reuters a few years ago, said that in Reuters photographs taken by photojournalists could not be altered or edited, to ensure authenticity.

As far as taking photographs of certain vulnerable persons is concerned, he admitted to photographing street children who are drug addicts on the streets of Mumbai. The photographs were published by Reuters. However, when he was on an assignment for an NGO working with children, the NGO cautioned him about photographing children who are drug addicts, to protect their identity. Similarly, identity of HIV and AIDS patients, including children, should be protected and not revealed. Children affected with HIV and AIDS should not be identified by name or photograph, even if consent has been granted by the minor’s parents/guardian.

As a rule, Kulkarni said, he does not seek consent of individuals when he is taking their photographs, if they are in a public place. If they do not object, the assumption is that they are comfortable with being photographed. The PCI norms do not expressly provide that consent of a person should be sought. But, journalists are expected to exercise restraint in certain situations. Likewise, identifying juveniles in conflict with law is restricted. This includes taking photographs of juveniles that would lead to their identification.

Kulkarni, who extensively covered the Bombay train blasts in 2006, explains, "At the time of the Bombay train explosions, I avoided taking pictures that were gory or where dead people could be identified. However, I did take photographs of those injured in the blast and were getting treated in government hospitals. I did not expressly seek their consent. They were aware of being photographed. That is the rule I have applied, even when I was on an assignment in West Africa. I have never been on an assignment in Europe, so am not sure whether I would have applied the same rule of thumb. Nonetheless, now as a seasoned photographer, I would refrain from taking pictures of children who are drug addicts."

Safeguarding Identity of Rape Victims

Section 228A of the Indian Penal Code makes disclosure of the identity of a rape victim punishable. In the recent Aarushi Talwar murder case and the rape of an international student studying at the Tata Institute of Social Sciences (TISS) the media frenzy compromised the privacy of the TISS victim and besmirched the character of the dead person.[14] In the TISS case, the media did not reveal the name of the girl, but revealed the name of the university and the course she was pursuing, which is in violation of the PCI norms. In addition to revealing names of individuals, the PCI norms expressly states that visual representation in moments of personal grief should be avoided. In the Aarushi murder case, the media repeatedly violated this norm.

The media in both cases spent enough newsprint speculating about the crimes. Abhinav Pandey[15] (name changed), a senior journalist reporting on crime, agrees that the media crossed its boundaries in the TISS case by reporting sordid details of how the rape took place. "Names of victims of sexual crime cannot be reported. In fact, in many instances the place of stay and any college affiliation should also be avoided, as they could be easily identified. Explicit details of the offence drawn from the statement given by the victim to the police are irrelevant to the investigation or to the public at large. Similarly, names of minors and pictures, including those of juveniles, have to be safeguarded."

"Crime reporters receive most of their stories from the police. Therefore, one has to be careful before publishing the story. At times in the rigour of competitive journalism, if you decide to publish an unverified story, as a good journalist you should present a counter-point. As a seasoned journalist it is easy to sense when a story is being planted by the police. If you still want to carry the story, one has to be careful not to taint the character of a person," he adds.

"For instance, in my reporting if I find that the information will not add to the investigation, I will not include it in my copy. Last year, we had anonymous letters being circulated among crime reporters which alleged corruption among senior IPS officers. Instead of publishing the information contained in those letters with the names of the IPS officers, we published a story on corruption and cronyism on IPS officers. In the Faheem Ansari matter, who was an accused in the 26/11 trial, I had received his email account password. Accessing his account also amounts to violation of privacy. But, we only published the communication between him and some handlers in Pakistan, which we knew would have an impact on the investigation. Our job requires us to share information in the public domain, sometimes we would violate privacy. Nonetheless, one has to be cautious."

Trial by Media & Media Victimisation

The PCI norms lay down the guidelines for reporting cases and avoiding trial by media. The PCI warns journalists not to give excessive publicity to victims, witnesses, suspects and accused as that amounts to invasion of privacy. Similarly, the identification of witnesses may endanger the lives of witnesses and force them to turn hostile. Zaheera Sheikh, who was a key witness in the Gujarat Best Bakery case, was a victim of excessive media coverage and sympathy. Her turning hostile invited equal amount of media speculation and wrath. Her excessive media exposure possibly endangered her life. Instead, of focussing on the lack of a witness protection program in the country, the media focussed on the twists and turns of the case and the 19 year old’s conflicting statements. The right of the suspect or the accused to privacy is recognised by the PCI to guard against the trial by media.

Swati Deshpande,[16] a Senior Assistant Editor (Law) at the Times of India, Mumbai, observes that, “As a good journalist one will always have more information than required, but whether you publish that information or exercise restraint is up to you.” In a span of 11 years of court reporting, as per her, there have been instances when she has exercised the option of not reporting certain information that could be defamatory and cannot be attributed. If an allegation is made in a court room, but is not supported by evidence or facts, then it is advisable that it be dropped from the report.

"In the Bar Dancers’ case which was before the Bombay High Court, the petition made allegations of all kinds against certain ministers. I did not report that, although I could have justified it by saying it is part of the petition, and I was just doing my job. The allegation was neither backed by facts nor was it of public interest. As a rule one should report on undisputed facts. Then again, with court reporting one is treading on safer grounds, as opposed to other beats."

"In cases of rape when facts are part of the judgement, you report facts that are relevant to the judgement or give you an insight on why the court took a certain view and add value to the copy. One should avoid a situation where facts revealed are offensive or reveal the identity of the victim. The past history of both the victim and the accused should not be reported."

She admitted, that "Media reporting often gives the impression that the accused has committed the crime or the media through its independent investigation wing has found a particular fact. When in fact, it has relied entirely on the information given by the police and failed to question or verify the facts by an independent source. The result is that most crime reporting is one-sided, because the information received from the police is rarely questioned."

As per her, to a certain degree the publication of Tata–Radia conversations did violate Tata’s privacy. "Media needs to question itself prior to printing on how the information is of public interest. Of course, as a journalist you do not want to lose out on a good story, but there needs to be gate keeping, which is mostly absent in most of the media today."

In the Bofors pay-off case[17] the High Court of Delhi, observed that, “The fairness of trial is of paramount importance as without such protection there would be trial by media which no civilised society can and should tolerate. The functions of the court in the civilised society cannot be usurped by any other authority.”[18] It further criticised the trend of police or the CBI holding a press conference for the media when investigation of a crime is still ongoing. The court agreed that media awareness creates awareness of the crime, but the right to fair trial is as valuable as the right to information and freedom of communication.

The 200th report of the Law Commission dealt with the issue of Trial by media: Free Speech vs Fair Trial under Criminal Procedure. The report, focussed on the pre-judicial coverage of a crime, accused and suspects, and how it impacts the administration of justice. The Contempt of Courts Act, under section 2 defines criminal contempt as:

"…the publication, (whether by words, spoken or written or by signs, or by visible representations, or otherwise), of any matter or the doing of any other act whatsoever which
(i) … … … …
(ii) prejudices or interferes or tends to interfere with the due course
of any judicial proceedings; or
(iii) interferes or tends to interfere with or obstructs or tends to obstruct, the administration of justice in any manner."

Section 3(1) of the Act exempts any publication and distribution of publication, "if the publisher had no reasonable grounds for believing that the proceeding was pending”. In the event, the person is unaware of the pendency, any publication (whether by words spoken or written or signs or visible representations) interferes or tends to interfere with or obstructs “the course of justice in connection with any civil or criminal proceeding pending at the time of publication, if at that time he had no reasonable grounds for believing that the proceeding was pending." The report emphasizes that publications during the pre-trial stage by the media could affect the rights of the accused. An evaluation of the accused’s character is likely to affect or prejudice a fair trial.

If the suspect’s pictures are shown in the media, identification parades of the accused conducted under Code of Civil Procedure would be prejudiced. Under Contempt of Court Act, publications that interfere with the administration of justice amount to contempt. Further, the principles of natural justice emphasise fair trial and the presumption of innocence until proven guilty. The rights of an accused are protected under Article 21 of the Constitution, which guarantees the right to fair trial. This protects the accused from the over-zealous media glare which can prejudice the case. Although, in recent times the media has failed to observe restraint in covering high-profile murder cases, much of which has been hailed as media’s success in ensuring justice to the common man.

For instance, in the Jessica Lal murder case, the media took great pride in acting as a facilitator of justice. The media in the case whipped up public opinion against the accused and held him guilty even when the trial court had acquitted the accused. The media took on the responsibility of administering justice and ensuring the guilty are punished, candle light vigils and opinion polls on the case were organised by the media. Past history of the accused was raked up by the media, including photographs of the accused in affluent bars and pubs in the city were published after he was acquitted. The photographs of Manu Sharma in pubs insinuated how he was celebrating after his acquittal.

The Apex Court observed that the freedom of speech has to be carefully and cautiously used to avoid interference in the administration of justice. If trial by media hampers fair investigation and prejudices the right of defence of the accused it would amount to travesty of justice. The Court remarked that the media should not act as an agency of the court.[19]

The Court, commented, "Presumption of innocence of an accused is a legal presumption and should not be destroyed at the very threshold through the process of media trial and that too when the investigation is pending."[20]

Sting Operations

On 30 August, 2007 Live India, a news channel conducted a sting operation on a Delhi government school teacher forcing a girl student into prostitution. Subsequent to the media exposé, the teacher Uma Khurana[21] was attacked by a mob and was suspended by the Directorate of Education, Government of Delhi. Later investigation and reports by the media exposed that there was no truth to the sting operation. The girl student who was allegedly being forced into prostitution was a journalist. The sting operation was a stage managed operation. The police found no evidence against the teacher to support allegations made by the sting operation of child prostitution. In this case, the High Court of Delhi charged the journalist with impersonation, criminal conspiracy and creating false evidence. The Ministry of Information and Broadcasting sent a show cause notice to TV-Live India, alleging the telecast of the sting operation by channel was “defamatory, deliberate, containing false and suggestive innuendos and half truths."[22]

Section 5 of the Cable Television Networks (Regulation) Act, 1995 and the Cable Television Network Rules (hereafter the Cable Television Networks Act), stipulates that no programme can be transmitted or retransmitted on any cable service which contains anything obscene, defamatory, deliberate, false and suggestive innuendos and half truths. The Rules prescribes a programming code to be followed by channels responsible for transmission/re-transmission of any programme.

The programme code restricts airing of programmes that offend decency or good taste, incite violence, contains anything obscene, defamatory, deliberate, false and suggestive innuendos and half truths, criticises, maligns or slanders any individual in person or certain groups, segments of social, public and moral life of the country and affects the integrity of India, the President and the judiciary. The programme code provided by the Rules is exhaustive. The Act empowers the government to restrict operation of any cable network it thinks is necessary or expedient to do so in public interest.

The court observed that false and fabricated sting operations violate a person’s right to privacy. It further, observed, "Giving inducement to a person to commit an offence, which he is otherwise not likely and inclined to commit, so as to make the same part of the sting operation is deplorable and must be deprecated by all concerned including the media.” It commented that while “…sting operations showing acts and facts as they are truly and actually happening may be necessary in public interest and as a tool for justice, but a hidden camera cannot be allowed to depict something which is not true, correct and is not happening but has happened because of inducement by entrapping a person."[23]

The court criticised the role of the media in creating situations of entrapment and using the ‘inducement test’. It remarked that such inducement tests infringe upon the individual's right to privacy. It directed news channels to take steps to prohibit “reporters from producing or airing any programme which are based on entrapment and which are fabricated, intrusive and sensitive.[24]

The court proposed a set of guidelines to be followed by news channels and electronic media in carrying out sting operations. The guidelines direct a channel proposing to telecast a sting operation to obtain a certificate from the person who recorded or produced the same certifying that the operation is genuine to his knowledge. The guidelines propose that the Ministry of Information and Broadcasting should set up a committee which would have the powers to grant permission for telecasting sting operations. The permission to telecast a sting operation should be granted by the committee only if it is satisfied about the overriding public interest to telecast the sting operation. The guidelines mandate that, in addition, to ensuring accuracy, the operation should not violate a person’s right to privacy, "unless there is an identifiable large public interest” for broadcasting or publishing the material. However, the court failed to define what constitutes 'larger public interest'.

The PCI norms also lay down similar guidelines which require a newspaper reporting a sting operation to obtain a certificate from the person involved in the sting to certify that the operation is genuine and record in writing the various stages of the sting. The decision to report the sting vests with the editor who merely needs to satisfy himself that the sting operation is of public interest.

In addition, to the Cable Television Networks Act and the PCI norms, the News Broadcasting Standard Authority (NBSA) was set up in 2008 as a self-regulatory body by News Broadcasters Association.[25] The primary objective of the NBSA is to receive complaints on broadcasts. The NBSA has drafted a Code of Ethics and Broadcasting Standards governing broadcasters and television journalists. The Code of Ethics provides guiding principles relating to privacy and sting operations that broadcasters should follow.

With respect to privacy, the Code directs channels not to intrude into the private lives of individuals unless there is a “clearly established larger and identifiable public interest for such a broadcast.” Any information on private lives of persons should be “warranted in public interest.” Similarly, for sting operations, the Code directs that they should be used as “a last resort” by news channels and should be guided by larger public interest. They should be used to gather conclusive evidence of criminality and should not edit/alter visuals to misrepresent truth.

In a recent judgement on a supposed sting operation conducted by M/s. Associated Broadcasting Company Pvt. Limited[26] on TV9 on ‘Gay culture rampant in Hyderabad’, the NBA took suo motu notice of the violation of privacy of individuals with alternate sexual orientation and misuse of the tool of sting operation. NBA in its judgement held that the Broadcaster had violated clauses on privacy, sting operations and sex and nudity of the Code of Ethics. It further, observed, that the Broadcaster and the story did not reveal any justifiable public interest in using the sting operation and violating the privacy of individuals. In this particular case, the Broadcaster had revealed the personal information and faces of supposedly gay men in Hyderabad to report on the ‘underbelly’ of gay culture and life. However, the news report, as NBSA observed, did not prove any criminality and was merely a sensational report of gay culture allegedly prevalent in Hyderabad.

The PCI norms provide that the press should not tape-record conversations without the person’s express consent or knowledge, except where it is necessary to protect a journalist in a legal action or for “other compelling reason.” What constitutes a compelling reason is left to the discretion of the journalist.

It was in the 1980s, that the first sting operation on how women were being trafficked was carried out by the Indian Express reporter Ashwin Sarin. As part of the sting, the Express purchased a tribal girl called Kamla. Subsequently, in 2001, the sting operation conducted by Tehelka exposed corruption in defence contracts using spy cams and journalists posing as arms dealers. The exposé on defence contracts led to the resignation of the then defence minister George Fernandes. Sting operations gained legitimacy in India, especially in the aftermath of the Tehelka operation, exposing corruption within the government. The original purpose of a sting operation or an undercover operation was to expose corruption. Stings were justifiable only when it served a public interest. Subsequent to the Tehelka exposé, stings have assumed the status of investigative journalism, much of which has been questioned in recent times, especially, with respect to ethics involved in conducting sting operations and the methods of entrapment used by the media. Further, stings by Tehelka, where the newspaper used sex workers to entrap politicians have brought to question the manner in which stings are operated. Although, the overriding concern surrounding sting operations has been its authenticity, as opposed to, the issue of personal privacy.

For instance, in March 2005 a television news channel carried out a sting operation involving Bollywood actor Shakti Kapoor to expose the casting couch phenomenon in the movie industry. The video showing Shakti Kapoor asking for sexual favours from an aspiring actress, who was an undercover reporter, was received with public outrage. Nonetheless, prominent members of the media questioned the manner in which the sting was conducted. The sting was set up as an entrapment. The court has taken a strong view against the use of entrapment in sting operations. In the case of the Shakti Kapoor sting, privacy of the actor was clearly violated. The manner in which the sting was conducted casts serious doubt on who was the victim.[27]

Additionally, the sting violated the PCI norms. It failed to provide a record of the various stages of how the sting operation was conducted. In United Kingdom, the media when violating privacy of a person has to demonstrate that it is in the interest of the public.

International Law on Media & Privacy Ethics

United Kingdom

The Press Complaints Commission (PCC), UK is a self-regulatory body similar to NBA. The PCC has put down code of ethics to be followed by journalists. The PCC guidelines provide that everyone has the right to privacy and editors must provide reason for intrusions to a person’s privacy. This includes photographing individuals in private places without their consent. Interestingly, private places include public or private property "where there is a reasonable expectation of privacy." In India however, as Kulkarni pointed out, photographs are taken without the consent of an individual if he/she is in a public space.

Like the PCI norms, the PCC Code lays down guidelines to follow when reporting on minors (below 16 years of age) who have been victims of sexual assault. As per the guidelines, the identity of the children should be protected. Further, relatives or friends of persons convicted or accused of a crime should not be identified without their consent, unless the information is relevant to the story. References to a person’s race, colour, sexual orientation and gender should be avoided. For instance, the media reportage of the TISS rape case, which revealed the nationality and colour of the victim, would be in violation of the PCC Code. In the TISS rape case, the information on the nationality and colour of the victim was not only irrelevant to the story, but as amply demonstrated by the media it reinforced prejudices against white women as ‘loose or amoral’.[28]

As far as sting operations are concerned, the PCC lays down that the press must not publish material acquired by hidden camera or clandestine devices by intercepting private messages, emails or telephone calls without consent. However, revealing private information in cases of public interest is an exception to the general rule to be followed with respect to individual privacy. The PCC defines public interest to include, but it is not restricted to:

"i) Detecting or exposing crime or serious impropriety
ii) Protecting public health and safety
iii) Preventing the public from being misled by an action or statement of an individual or organisation"

It requires editors to amply demonstrate that a publication is of public interest. In case the material is already in public domain the same rules of privacy do not apply. However, in cases involving children below 16 years of age, editors must demonstrate exceptional public interest that overrides the interest of the child. Tellingly, the PCC recognises freedom of expression as public interest.

The PCC, to ensure that persons are not hounded by the media have started issuing desist orders. The PCC issues a desist notice to editors to prevent the media from contacting the person. Preventive pre-publication is when the PCC pre-empts a story that may be pursued or published and attempts to either influence the reporting of the story in a way that it is not in violation of a person’s privacy or persuades the media house not to publish the story. The PCC, however, does not have the powers to prevent publication.

Further, United Kingdom is a member of the European Convention on Human Rights (ECHR), which guarantees the right to privacy under Article 8 of the Convention: "Everyone has the right to respect for his private and family life, his home and his correspondence."

However, there is no independent law which recognises the right to privacy. The judiciary however has protected the right to privacy in several occasions, like in the famous J.K. Rowling case where the English Court held, that a minor’s photograph without the consent of the parent or guardian, though not offensive, violates the child’s right to privacy.[29]

France

The French legal system protects the right to privacy under: Article 9 of the Civil Code.

Article 9 of the Civil Code states:

Everyone has the right to respect for his private life. Without prejudice to compensation for injury suffered, the court may prescribe any measures, such as sequestration, seizure and others, appropriate to prevent or put an end to an invasion of personal privacy; in case of an emergency those measures may be provided for by an interim order. The right to privacy allows anyone to oppose dissemination of his or her picture without their express consent.

Article 9 covers both the public and private spheres, and includes not merely the publication of information but also the method of gathering information. Also, in France violation of one’s privacy is a criminal offence. This includes recording or transmitting private conversations or picture of a person in a private place without the person’s consent. This implies that privacy is not protected in a public place. Any picture taken of a person dead or alive, without their prior permission, is prohibited. Buying of such photographs where consent of a person also constitutes as an offence. Journalists, however, are not disqualified from the profession if they have committed such an offence.[30]

France has the Freedom of the Press of 29 July 1881 which protects minors from being identified and violent and licentious publication which targets minors. It punishes slander, publication of any information that would reveal the identity of a victim of a sexual offence, information on witnesses and information on court proceedings which include a person’s private life.[31]

Sweden

Privacy is protected in Sweden under its Constitution. All the four fundamental laws of the country: the Instrument of Government, the Act of Succession, the Freedom of the Press Act, and the Fundamental Law on Freedom of Expression protect privacy. The Instrument of Government Act of 1974 provides for the protection of individual privacy. It states that freedom of expression is limited under Article 13 of the Constitution:

"Freedom of expression and freedom of information may be restricted having regard to the security of the Realm, the national supply, public safety and order, the integrity of the individual, the sanctity of private life, or the prevention and prosecution of crime. Freedom of expression may also be restricted in economic activities. Freedom of expression and freedom of information may otherwise be restricted only where particularly important reasons so warrant."

Sweden has a Press Council which was established in 1916. The Council consists of the Swedish Newspaper Publishers' Association, the Magazine Publishers' Association, the Swedish Union of Journalists and the National Press Club. The Council consists of "a judge, one representative from each of the above-mentioned press organisations and three representatives of the general public who are not allowed to have any ties to the newspaper business or to the press organisations."

Additionally, there is an office of the Press Ombudsman which was established in 1969. Earlier the Swedish Press Council used to deal with complaints on violations of good journalistic practice. After the setting up of the Press Ombudsman, the complaints are first handled by the Press Ombudsman, who is empowered to take up matters suo motu. "Any interested members of the public can lodge a complaint with the PO against newspaper items that violate good journalistic practice. But, the person to whom the article relates to must provide a written consent, if the complaint is to result in a formal criticism of the newspaper."[33]

The Swedish Press Council reports that in the recent years, 350-400 complaints have been registered annually, of which most concern coverage of criminal matters and invasion of privacy.

Sweden, additionally, has a Code of Ethics which applies to press, radio and television. The Code of Ethics was adopted by the Swedish Co-operation Council of the Press in September 1995. The Code of Ethics for Press, Radio and Television in Sweden has been drawn up by the Swedish Newspaper Publishers' Association, the Magazine Publishers' Association, the Swedish Union of Journalists and the National Press Club.

The Code of Ethics lay down norms to be followed in respect of privacy. It states that caution should be exercised when publishing information that:

Infringes on a persons’ privacy, unless it is obviously in public interest,
Information on suicides or attempted suicides
Information on victims of crime and accidents. This includes publication of pictures or photographs[34]

Race, sex, nationality, occupation, political affiliation or religious persuasion in certain cases, especially when such information is of no importance, should not be published.

One should exercise care in use of pictures, especially, retouching a picture by an electronic method or formulating a caption to deceive the reader. In case a picture has been retouched, it should be indicated below the photograph.

Further, the Code asks journalists to consider “the harmful consequences that might follow for persons if their names are published” and names should be published only if it is in the public interest. Similarly, if a person’s name is not be revealed, the media should refrain from publishing a picture or any particulars with respect to occupation, title, age, nationality, sex of the person, which would enable identification of the person.

In case of court reporting or crime reporting, the Code states that the final judgement of the Court should be reported and given emphasis, as opposed to conducting a media trial. In addition, Sweden has incorporated the ECHR in 1994.

Japan

The Japan Newspaper Publishers & Editors Association or Nihon Shinbun Kyokai (NSK),[35] was established in 1946 as an independent and voluntary organisation to establish the standard of reporting, and protect and promote interests of the media. The organisation as part of its mandate has developed the Canon of Journalism, which provides for ethics and codes members of the body should follow. The Canon recognises that with the easy availability of information, the media constantly has to grapple with what information should be published and what should be held back. The Code provides that journalists have a sense of responsibility and should not hinder public interests. In addition, to ensuring accuracy and fairness, the Code states that respect of human rights, includes respect for human dignity, individual honour and right to privacy. Right to privacy is acknowledged as a human right.

Japan does not have an information ministry or organs like the PCC in the U.K. or the Press Ombudsman in Sweden. Apart from the Canon, the NSK has a code for marketing of newspapers, an advertising code and the Kisha club guidelines.[36]

Japan in 2003 formulated the Personal Information Protection Act, which regulates public and private sector. The Act, which came into effect in 2005, aims to ensure that all personal data collected by the public and private sector are handled with care. The Act requires that the purpose of collecting personal information and its use should be specified, information should be acquired by fair means, any information should not be supplied to third parties without prior consent of the individual concerned.

Netherlands

The right to privacy is protected under Article 10 of the Netherlands Constitution. Further, the Article also provides for the enactment of Rules for dissemination of personal data and the right of persons to be informed when personal data is being recorded.

Netherlands also has the Netherlands Press Council which keeps the media in check. The Code of the International Federation of Journalists and the Code of Conduct for Dutch Journalists was drafted by the Dutch Society of Editors-in-Chief to establish media reporting standards. These guidelines can be disregarded by the media only in cases involving social interest.

The Code recognises:

That a person’s privacy should not be violated when there is no overriding social interest;
In cases concerning public persons violation of privacy would take place, but they have the right to be protected, especially, if that information is not of public interest;
The media should refrain from publishing pictures and images of persons without prior permission of persons. Similarly, the media should not publish personal letters and notes without the prior permission of those involved;
The media should refrain from publishing pictures and information of suspects and accused; and
Details of criminal offence should be left out if they would add to the suffering of the victim or his/her immediate family and if they are not needed to demonstrate the nature and gravity of the offence or the consequences thereof.

Conclusion

The right to privacy in India has failed to acquire the status of an absolute right. The right in comparison to other competing rights, like, the right to freedom of speech & expression, the right of the State to impose restrictions on account of safety and security of the State, and the right to information, is easily relinquished. The exceptions to the right to privacy, such as, overriding public interest, safety and security of the State, apply in most countries. Nonetheless, as the paper demonstrates, unwarranted invasion of privacy by the media is widespread. For instance, in the UK, Sweden, France and Netherlands, the right to photograph a person or retouching of any picture is prohibited unlike, in India where press photographers do not expressly seek consent of the person being photographed, if he/she is in a public space. In France, not only is the publication of information is prohibited on account of the right to privacy, but the method in which the information is procured also falls within the purview of the right to privacy and could be violative. This includes information or photograph taken in both public and private spaces. Privacy within public spaces is recognised, especially, “where there is reasonable expectation of privacy.” The Indian norms or code of ethics in journalism fail to make such a distinction between public and private space. Nor do the guidelines impose any restrictions on photographing an individual without seeking express consent of the individual.

The Indian media violates privacy in day-to-day reporting, like overlooking the issue of privacy to satisfy morbid curiosity. The PCI norms prohibit such reporting, unless it is outweighed by ‘genuine overriding public interest’. Almost all the above countries prohibit publication of details that would hurt the feelings of the victim or his/her family. Unlike the UK, where the PCC can pass desist orders, in India the family and/or relatives of the victims are hounded by the media.

In India, the right to privacy is not a positive right. It comes into effect only in the event of a violation. The law on privacy in India has primarily evolved through judicial intervention. It has failed to keep pace with the technological advancement and the burgeoning of the 24/7 media news channels. The prevalent right to privacy is easily compromised for other competing rights of ‘public good’, ‘public interest’ and ‘State security’, much of what constitutes public interest or what is private is left to the discretion of the media.

Notes

[1]The Radia Tapes’ controversy concerns recording of conversations between the lobbyist Nira Radia and politicians, industrialists, bureaucrats and journalists with respect to the 2G spectrum scam. The tapes were recorded by the Income Tax Department. The role played by the media, especially some prominent journalists, in scam has been questioned. A handful of magazines and newspapers have questioned the media ethics employed by these journalists, whose recorded conversations are in the public domain or have been published by a few political magazines. The publication of the recorded conversations by a few media publications has received a sharp reaction from the said journalists. They have accused those media journals of unverified reporting and conducting a smear campaign against them.

[2]1975 AIR 865, 1975 SCR (3) 333.

[3](1994) 6 S.C.C. 632.

[4]AIR 1997 SC 568.

[5]AIR 1997 SC 568.

[6]AIR 1997 SC 568.

[7]International Covenant on Civil and Political Rights, Part III Art. 17. Available at: http://www2.ohchr.org/english/law/ccpr.htm [Last accessed 20//04/2011].

[8]W.P. (C) 288/2009

[9]PTI, Media just turned me into a 'slut' in IPL row: Sunanda Pushkar, 23/04/2010 Available at http://articles.timesofindia.indiatimes.com/2010-04-23/india/28149154_1_sunanda-pushkar-shashi-tharoor-ipl-kochi [Last accessed 20/04/2011].

[10]Vrinda Gopinath, "Got A Girl, Named Sue", 26/04/2010 Available at http://www.outlookindia.com/article.aspx?265098 [Last accessed 20/04/2011]

[11]Interview with Senior Assistant Editor, Hindustan Times, on 18.04.11.

[12]Guideline 6 (i) Right to Privacy, Norm if Journalistic Conduct, PCI.

[13]Interview with a freelance photographer and a former Reuters photographer on 16.04.11.

[14]Kumar, Vinod, “Raped American student’s drink not spiked in our bar,” 16.04.09 Available at http://www.mid-day.com/news/2009/apr/160409-Mumbai-News-Raped-American-student-date-drug-CafeXO-Tata-Institute-of-Social-Sciences.htm, Anon, “Party pics boomerangon TISS rape victim” , 04 .05.09, Available at http://www.mumbaimirror.com/index.aspx?page=article§id=15&contentid=2009050420090504031227495d8b4e80f [Last Accessed April 20,2011].

[15]Interview with Abhinav Pandey, crime reporter with a leading newspaper, on 21.04.11.

[16]Interview with Swati Deshpande, Senior Assistant Editor (Law), Times of India, on 15.04.11.

[17]Crl.Misc.(Main) 3938/2003

[18]Ibid.

[19]Sidhartha Vashisht @ Manu Sharma vs State (Nct Of Delhi), Available at http://www.indiankanoon.org/doc/1515299/.

[20]Ibid

[21]WP(Crl.) No.1175/2007

[22]Ibid

[23]Ibid

[24]Ibid

[25]NBA is a community formed by private television & current affairs broadcasters. As per the NBA website, it currently has 20 leading news channels and current affairs broadcaster as its members. Complaints can be filed against any of the broadcasters that are members of NBA on whom the Code of Ethics is binding.

[26]For additional details, please refer to the website: http://www.nbanewdelhi.com/authority-members.asp [Last Accessed April 20,2011]

[27]TNN, “'Full video will further embarrass Shakti', 15.03.2005 Available at http://articles.timesofindia.indiatimes.com/2005-03-15/mumbai/27849089_1_sting-operation-shakti-kapoor-film-industry.

[28]For more details please refer to the PCC website: http://www.pcc.org.uk/ [Last Accessed April 20,2011].

[29]Singh, A., May 2008, “JK Rowling wins privacy case over son's photos”http://www.telegraph.co.uk/news/uknews/1936471/JK-Rowling-wins-privacy-case-over-sons-photos.html [Last Accessed April 20,2011].

[30]For more details, please refer to: http://www.kbkcl.co.uk/2008/03/privacy-law-the-french-experience/ and http://ambafrance-us.org/spip.php?article640 [Last Accessed April 20,2011].

[31]For more details, please refer to:http://www.ambafrance-uk.org/Freedom-of-speech-in-the-French.html [Last Accessed April 20,2011].

[32]http://www.po.se/english/how-self-regulation-works [Last Accessed April 20,2011].

[33]Ibid.

[34]Please refer to this website for additional details: http://ethicnet.uta.fi/sweden/code_of_ethics_for_the_press_radio_and_television and http://www.po.se/english/code-of-ethics/85-code-of-ethics-for [Last Accessed April 20,2011].

[35]http://www.pressnet.or.jp/english/index.htm [Last Accessed April 20,2011].

[36]Kisha Clubs, are clubs where only a few media houses/newspapers have access to public institution information. They have been criticised for its lack of openness and encouraging monopoly on reporting.

For more details visit https://cis-india.org/internet-governance/blog/privacy/privacy-media-law

RTI and Third Party Information: What Constitutes the Private and Public?

Noopur Raval — 2011-11-24T09:21:20Z

The passing of the Right to Information Act, 2005 was seen as giving an empowering tool in the hands of the citizens of India, six years post its implementation, loopholes have surfaced with misuse of the many fundamental concepts, which have yet not been defined to allow for a consistent pattern of decisions. Among many problems that emerge with the Act, a major problem is defining the extent to which an individual has access to other people’s information. While most of us tend to think that asking for other people’s phone numbers, personal details like passport number or IT returns are private and would be kept so, under the RTI Act and as seen in the Central Information Commission (CIC) decisions, all of these details can be availed of by someone who doesn’t know you at all!

According to section 2 (n) of the RTI Act, 2005, 'third party' means a person other than the citizen making a request for information and includes a 'public authority'. This implies that the term 'third party' includes anyone other than the appellant or the respondent. In matters where an appellant is seeking information not regarding his or her own activities, or is asking for details of shared records that list details of several persons other than him or her, information cannot be provided until the ‘third party’ consents to disclosure and subsequently until the Central Public Information Office (CPIO), after considering the implications of such disclosure allows it. Section 11 (1) the Act provides the procedure to access third party information wherein the appellant needs to request for the third party’s consent after which the CPIO will produce a written request to the 'third party' and within a stipulated time period obtain their response. However, it is not the information bearer (third party) who holds the key to disclosure. The power, by the RTI Act, 2005, is vested in the public information officer who will then, either see a 'larger public interest', or otherwise allow disclosure based on the merits of the case.

In such a situation, it is interesting to see who the Central Information Commission (CIC) regards as 'third party'. While going through the judgments delivered by the CIC, one comes across several judgments that tell you who can and who cannot access your information. While a son or daughter naturally inherits his/her father’s wealth, land or other possessions, they do not inherit his position for obtaining information. This is just one instance. Similar holds true for access to information of a deceased kin. Unless the public information officer sees a ‘larger public interest’ in disclosure of such information, it cannot be revealed even to the deceased’s wife, husband or children unless they hold a power of attorney specifically to a right to access information.

This brings us to the question of ‘larger public interest’ and what information can be delved to anyone for this cause. While the RTI Act, 2005, clearly states that the appellant needs not a reason to ask for any information, it is largely based on the public information officer’s inference as to what the appellant may do with the data and hence, maybe deemed as acting in public interest or for personal gains. This also produces positions of potential criminality and the need for State subjects to prove themselves as ideal information seekers, void of malice in order for the public information officer to rule in their favour.

Third party position is a problematic one as it only goes so far as to define the state-mediated interaction between two subjects in relation to each other through legal machinery that holds massive discretionary powers to disclose or withhold information. Hence, while, in relation to ‘third party’, a subject may need to justify his larger benevolent interests, the State finds no problems revealing or disclosing information for its own good. In Shri Rajender Kumar Arya vs Dy. Commissioner of Police (DCP), (4 March 2009), the commission ruled that they now have the decision of the Madras High Court in the context of right to privacy in light of the RTI Act. The Madras High Court observed that with the advent of the Right to Information Act, section 3 of the Act entitles a citizen to the right of information. Section 4(2) of the said Act obliges a public authority to disclose information to common people. Even personal information or information, which may otherwise amount to an invasion of privacy, may also be disclosed if the larger public interest so warrants. The court in fact came to the conclusion that the right to privacy virtually fades out in front of the 'Right to Information' and 'larger public interest’. This tells us that ‘third party’ is a mere negotiating position from which the State itself regulates information flow to citizens and can revoke these privileges as and when needed.

Moreover, there is no clear definition to the ‘larger public interest’ or ‘invasion of privacy’. In several judgments, the committee upholds principles of natural justice to justify instance of public good but these cannot be upheld for all decisions. It is also interesting to see what comes under the purview of ‘public information’. It’s a misconception if you think that you hold the right to revealing your age, birth date, place you belong to, your marks, the rank that you hold, the salary you get, the returns you file or subsequently any of this information regarding your children. As upheld in Madhulika Rastogi vs Regional Passport Office, New Delhi, on 4 February 2009, M. Rajamannar vs PIO, AC Division, Indira Gandhi National Open University on 18 February 2009 and A.V.Subrahmanyam vs BSNL, Hyderabad on 16 February 2009 — the judgments illustrate that information submitted to public authorities at any point in time whether to get admitted to school, to get a license, to pass a public services examination or even file a divorce; all qualify for access to other people because they have been knowingly submitted to the public domain. A lot of sensitive information like passport details, telephone call records and medical records that can map intimate interactions of a person’s daily life can also be obtained if larger public interest is proven.

Hence, it becomes important to revise and rethink the commonly accepted notions of privacy, especially when information gains such strategic importance as well as fluidity through fast expanding platforms as well as tools such as RTI. While one may confidently think that information generated by the self, pertaining to one’s own business and life rightfully belongs to the private domain, it is very important to realize the constantly looming hold of the State to any information. In such a situation, what you can claim as private data totally depends on how much common interest it garners.

For more details visit https://cis-india.org/internet-governance/blog/rti-and-third-party-info

June 2011 Bulletin

praskrishna — 2012-07-30T07:14:57Z

Greetings from the Centre for Internet and Society! In this issue we are pleased to present you the latest updates about our research, upcoming events, and news and media coverage:

Researchers@Work

RAW is a multidisciplinary research initiative. CIS believes that in order to understand the contemporary concerns in the field of Internet and society, it is necessary to produce local and contextual accounts of the interaction between the Internet and socio-cultural and geo-political structures. To build original research knowledge base, the RAW programme has been collaborating with different organisations and individuals to focus on its three year thematic of Histories of the Internets in India. Six monographs Rewiring Bodies, Archive and Access, Pornography and the Law, The Leap of Rhodes or, How India Dealt with the Last Mile Problem - An Inquiry into Technology and Governance, Transparency and Politics and Internet, Society and Space in Indian Cities are published online and will be launched later this year.

CEPT to Set up Centre to Research Role of Internet in Social Development [Published in the Indian Express on June 18, 2011]

Upcoming Event in CEPT, Ahmedabad

Locating Internets: Histories of the Internet(s) in India — Research Training and Curriculum Workshop: Call for Participation [Deadline for submission – 15 July 2011; Workshop from 19 to 22 August 2011]

Digital Natives with a Cause?

Digital Natives with a Cause? is a knowledge programme initiated by CIS and Hivos, Netherlands. It is a research inquiry that seeks to look at the changing landscape of social change and political participation and the role that young people play through digital and Internet technologies, in emerging information societies. Consolidating knowledge from Asia, Africa and Latin America, it builds a global network of knowledge partners who want to critically engage with the dominant discourse on youth, technology and social change, in order to look at the alternative practices and ideas in the Global South. It also aims at building new ecologies that amplify and augment the interventions and actions of the digitally young as they shape our futures.

The Digital Natives Newsletter

The Digital Dinosaurs [Volume 5]

Pathways

HE Cell's initiative on social justice, in collaboration with CIS, has initiated the Pathways Project for Learning in Higher Education. It is supported by the Ford Foundation. Under this project, nine under-graduate colleges in different parts of India will be identified to provide special skills in livelihood, knowledge and technology to underprivileged students in those colleges.

New Blog Entry

Pathways for Learning in Higher Education

Accessibility

Estimates of the percentage of the world's population that is disabled vary considerably. But what is certain is that if we count functional disability, then a large proportion of the world's population is disabled in one way or another. At CIS we work to ensure that the digital technologies, which empower disabled people and provide them with independence, are allowed to do so in practice and by the law. To this end, we support web accessibility guidelines, and change in copyright laws that currently disempower the persons with disabilities.

New Blog Entries

Policy Spotlight: 21st Century Communications and Video Accessibility Act [Written by Deepti Bharthur; contains an e-mail interview with Jenifer Simpson, Senior Director for Government Affairs and head of the Telecommunications & Technology Policy Initiative at the American Association of People with Disabilities ]
ICT Accessibility in Sri Lanka [Written by Nirmita Narasimhan]

Intellectual Property

CIS believes that access to knowledge and culture is essential as it promotes creativity and innovation and bridges the gaps between the developed and developing world positively. Hence, the campaigns for an international treaty on copyright exceptions for print-impaired, advocating against PUPFIP Bill, calls for the WIPO Broadcast Treaty to be restricted to broadcast, questioning the demonization of 'pirates', and supporting endeavours that explore and question the current copyright regime.

Statement

Statement of CIS, India, on the WIPO Broadcast Treaty at the 22nd SCCR

New Blog Entry

Putting a Lid on Royalty Outflows — How the RBI can Help Reduce your IP Costs [Written by Sanjana Govil]

Openness

CIS believes that innovation and creativity should be fostered through openness and collaboration and is committed towards promotion of open standards, open access, and free/libre/open source software.

Submission

Comments on the draft National Data Sharing and Accessibility Policy [submitted to the National Spatial Data Infrastructure]

Internet Governance

Although there may not be one centralized authority that rules the Internet, the Internet does not just run by its own volition: for it to operate in a stable and reliable manner, there needs to be in place infrastructure, a functional domain name system, ways to curtail cyber crime across borders, etc. The Tunis Agenda of the second World Summit on the Information Society (WSIS), paragraph 34 defined Internet governance as “the development and application by governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet.” Its latest endeavour has resulted into these:

New Articles

The Present — and Future — Dangers of India's Draconian New Internet Regulations [By Anja Kovacs in the Caravan on June 1, 2011]
Big Brother is Watching You [By Sunil Abraham in Deccan Herald on June 1, 2011]
The Digital is Political [By Nishant Shah in Down to Earth, Issue of June 15, 2011]
Do You Want to be Watched? [By Sunil Abraham in Pragati on June 8, 2011]
Snooping Can Lead to Data Abuse [By Sunil Abraham in Mail Today on June 9, 2011]
Privacy and Security Can Co-exist [By Sunil Abraham in Mail Today on June 21, 2011]

Column in Indian Express

Nishant Shah, Director-Research will be writing a series of columns on Internet and Society issues:

Say 'Password' in Hindi [By Nishant Shah in the Indian Express, May 15, 2011]

Upcoming Event

Socio-financial Online Networks: Globalizing Micro-Credit through Micro-transactional Networked Platforms – A Public Lecture by Radhika Gajalla [at the Centre for Internet and Society, Bangalore, July 8, 2011]

CIS is doing a project, ‘Privacy in Asia’. It is funded by Privacy International (PI), UK and the International Development Research Centre, Canada and is being administered in collaboration with the Society and Action Group, Gurgaon. The two-year project commenced on 24 March 2010 and will be completed as agreed to by the stakeholders. It was set up with the objective of raising awareness, sparking civil action and promoting democratic dialogue around challenges and violations of privacy in India. In furtherance of these goals it aims to draft and promote over-arching privacy legislation in India by drawing upon legal and academic resources and consultations with the public.

Featured Research

New Articles

A Street View of Private and the Public [By Prashant Iyengar in Tehelka on June 4, 2011]
The new Right to Privacy Bill 2011 — A Blind Man's View of the Elephunt [By Prashant Iyengar in Privacy India website on June 8, 2011]

New Blog Entry

Bloggers' Rights Subordinated to Rights of Expression: Cyber Law Expert

Event organised in Guwahati

Privacy matters [Donbosco Institute, Kharguli, Guwahati, June 23, 2011]

Upcoming Events

Internet Surveillance Policy: “…the second time as farce?” – A Public Lecture by Caspar Bowden [TERI, Bangalore, June 27, 2011]
Privacy Matters - A Public Conference in Hyderabad [Osmania University Center for International Program, Hyderabad, July 9, 2011]

Telecom

The growth in telecommunications in India has been impressive. While the potential for growth and returns exist, a range of issues need to be addressed for this potential to be realized. One aspect is more extensive rural coverage and the second aspect is a countrywide access to broadband which is low at about eight million subscriptions. Both require effective and efficient use of networks and resources, including spectrum. It is imperative to resolve these issues in the common interest of users and service providers. CIS campaigns to facilitate this:

Articles by Shyam Ponappa

Shyam Ponappa is a Distinguished Fellow at CIS. He writes regularly on Telecom issues in the Business Standard and these articles are mirrored on the CIS website as well.

NTP 2011 Objective: Broadband [published in the Business Standard on June 2, 2011]

Miscellaneous

Technology, Transparency and Accountability: A Bar-Camp in Delhi [June 5, 2011, Delhi]
Communication Policy Advocacy, Technology, and Online Freedom of Expression: A Toolkit for Media Development [June 20 – July 1, 2011, Budapest, Hungary]

News & Media Coverage

Your cyber space is a hackers paradise [Mail Today, June 6, 2011]
Centaur website reveals guests' personal info [Times of India, June 20, 2011]
Mumbai Takes Note of Sexting, the Seamier Side of Texting [Times of India, June 19, 2011]
Look what the state just did to you [Mid Day, June 12, 2011]
Tough neighbourhood tests India's e-tolerance [Times of India, June 12, 2011]
India Weighing Looser Web Rules [Wall Street Journal, May 30, 2011]
Public data on the Web leaves much to be desired [Hindu, May 28, 2011]
What documents will you need, to get UID? [CitizenMatters.in, May 28, 2011]
Mobile education comes to villages [Mail Today, May 27, 2011]
Google now stalks your street [Hindu, May 27, 2011]
Women in love with Facebook [Deccan Herald, May 27, 2011]
Google Unveils Controversial Street View Mapping in B’lore [Economic Times, Mumbai, May 27, 2011]
NGOs say eG8 report must stress internet rights [TELECOMPAPER, May 26, 2011]

Follow us elsewhere

Get short, timely messages from us on Twitter
Follow CIS on identi.ca
Join the CIS group on Facebook
Visit us at www.cis-india.org

CIS is grateful to Kusuma Trust which was founded by Anurag Dikshit and Soma Pujari, philanthropists of Indian origin, for its core funding and support for most of its projects.

For more details visit https://cis-india.org/about/newsletters/june-2011-bulletin

The Centre for Internet and Society - Bulletin - July '11

praskrishna — 2011-08-19T06:43:57Z

Greetings from the Centre for Internet and Society! In this issue we are pleased to present you the latest updates about our research, upcoming events, and news and media coverage. Subscribe to our newsletter and get monthly updates in your inbox and read it at your convenience. The newsletter issue of June 2011 can be accessed here! Click below to download previous issues.

Researchers@Work

# New Blog Entry

CEPT to Set up Centre to Research Role of Internet in Social Development [Published in the Indian Express on June 18, 2011]

# Upcoming Event in CEPT, Ahmedabad

Locating Internets: Histories of the Internet(s) in India — Research Training and Curriculum Workshop: Call for Participation [Deadline for submission – 15 July 2011; Workshop from 19 to 22 August 2011]

* Digital Natives*

# The Digital Natives Newsletter

The Digital Dinosaurs [Volume 5]

* Pathways*

# New Blog Entry

Pathways for Learning in Higher Education

Accessibility

# New Blog Entries

Policy Spotlight: 21st Century Communications and Video Accessibility Act [Written by Deepti Bharthur; contains an e-mail interview with Jenifer Simpson, Senior Director for Government Affairs and head of the Telecommunications & Technology Policy Initiative at the American Association of People with Disabilities ]
ICT Accessibility in Sri Lanka [Written by Nirmita Narasimhan]

Intellectual Property

# Statement

Statement of CIS, India, on the WIPO Broadcast Treaty at the 22nd SCCR

# New Blog Entry

Putting a Lid on Royalty Outflows — How the RBI can Help Reduce your IP Costs [Written by Sanjana Govil]

Openness

# Submission

Comments on the draft National Data Sharing and Accessibility Policy [submitted to the National Spatial Data Infrastructure]

# Comments

Comments on Draft National Policy on ICT in School Education

Internet Governance

Although there may not be one centralized authority that rules the Internet, the Internet does not just run by its own volition: for it to operate in a stable and reliable manner, there needs to be in place infrastructure, a functional domain name system, ways to curtail cyber crime across borders, etc. The Tunis Agenda of the second World Summit on the Information Society (WSIS), paragraph 34 defined Internet governance as "the development and application by governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet."

# New Articles

The Present — and Future — Dangers of India's Draconian New Internet Regulations [By Anja Kovacs in the Caravan on June 1, 2011]
Big Brother is Watching You [By Sunil Abraham in Deccan Herald on June 1, 2011]
The Digital is Political [By Nishant Shah in Down to Earth, Issue of June 15, 2011]
Do You Want to be Watched? [By Sunil Abraham in Pragati on June 8, 2011]
Snooping Can Lead to Data Abuse [By Sunil Abraham in Mail Today on June 9, 2011]
Privacy and Security Can Co-exist [By Sunil Abraham in Mail Today on June 21, 2011]

Columns in Indian Express
Nishant Shah, Director-Research is writing a series of columns on Internet and Society issues:

Say 'Password' in Hindi [By Nishant Shah in the Indian Express, May 15, 2011]

# Upcoming Event

Socio-financial Online Networks: Globalizing Micro-Credit through Micro-transactional Networked Platforms – A Public Lecture by Radhika Gajalla [at the Centre for Internet and Society, Bangalore, July 8, 2011]

# Featured Research

# New Articles

A Street View of Private and the Public [By Prashant Iyengar in Tehelka on June 4, 2011]
The new Right to Privacy Bill 2011 — A Blind Man's View of the Elephunt [By Prashant Iyengar in Privacy India website on June 8, 2011]

# New Blog Entry

Bloggers' Rights Subordinated to Rights of Expression: Cyber Law Expert

# Event Organised in Guwahati

Privacy matters [Donbosco Institute, Kharguli, Guwahati, June 23, 2011]
Privacy Matters - A Public Conference in Hyderabad [The English and Foreign Languages University (TBC), Hyderabad, June 18, 2011]

# Upcoming Events

Internet Surveillance Policy: “…the second time as farce?” – A Public Lecture by Caspar Bowden [TERI, Bangalore, June 27, 2011]
Privacy Matters - A Public Conference in Hyderabad [Osmania University Center for International Program, Hyderabad, July 9, 2011]

Telecom

# Articles by Shyam Ponappa

Shyam Ponappa is a Distinguished Fellow at CIS. He writes regularly on Telecom issues in the Business Standard and these articles are mirrored on the CIS website as well.

NTP 2011 Objective: Broadband [published in the Business Standard on June 2, 2011]

* Miscellaneous *

# Technology, Transparency and Accountability: A Bar-Camp in Delhi [June 5, 2011, Delhi]

Communication Policy Advocacy, Technology, and Online Freedom of Expression: A Toolkit for Media Development [June 20 – July 1, 2011, Budapest, Hungary]

News & Media Coverage

Your cyber space is a hackers paradise [Mail Today, June 6, 2011]
Centaur website reveals guests' personal info [Times of India, June 20, 2011]
Mumbai Takes Note of Sexting, the Seamier Side of Texting [Times of India, June 19, 2011]
Look what the state just did to you [Mid Day, June 12, 2011]
Tough neighbourhood tests India's e-tolerance [Times of India, June 12, 2011]
India Weighing Looser Web Rules [Wall Street Journal, May 30, 2011]
Public data on the Web leaves much to be desired [Hindu, May 28, 2011]
What documents will you need, to get UID? [CitizenMatters.in, May 28, 2011]
Mobile education comes to villages [Mail Today, May 27, 2011]
Google now stalks your street [Hindu, May 27, 2011]
Women in love with Facebook [Deccan Herald, May 27, 2011]
Google Unveils Controversial Street View Mapping in B’lore [Economic Times, Mumbai, May 27, 2011]
NGOs say eG8 report must stress internet rights [TELECOMPAPER, May 26, 2011]

* Follow us Elsewhere*

Get short, timely messages from us on Twitter
Follow CIS on identi.ca
Join the CIS group on Facebook
Visit us at www.cis-india.org

CIS is grateful to Kusuma Trust which was founded by Anurag Dikshit and Soma Pujari, philanthropists of Indian origin, for its core funding and support for most of its projects.

Copyright Enforcement and Privacy in India

Prashant Iyengar — 2012-12-14T10:27:12Z

Copyright can function contradictorily, as both the vehicle for the preservation of privacy as well as its abuse, writes Prashant Iyengar. The research examines the various ways in which privacy has been implicated in the shifting terrain of copyright enforcement in India and concludes by examining the notion of the private that emerges from a tapestry view of the relevant sections of Copyright Act.

Introduction

Copyright can function contradictorily, as both the vehicle for the preservation of privacy as well as its abuse. This paper examines the various ways in which privacy has been implicated in the shifting terrain of copyright enforcement in India. Chiefly, there are three kinds of situations that we will be discussing here: The first is straightforward and deals with the physical privacy intrusion caused by the execution of search and seizure orders during the investigation of infringement. The second situation involves the violation of privacy through the misappropriation of confidential information. The last situation involves the wrongful appropriation of a person’s persona or their ‘publicity’ – the photographs of celebrities, for instance – for private gain. Instances of each of these situations, and the manner in which the courts have negotiated the privacy claims that have arisen are described in the sections that follow. In addition, Copyright law, dealing as it does mainly with offences of the nature of unauthorised publicity/publication putatively inscribes certain spaces and activities as either public or private. The concluding section of this paper examines the notion of the private that emerges from a tapestry view of various sections of the Copyright Act.

Copyright Enforcement

Context setting

Over the past several decades there has been an increasing awareness globally – and within India – of the importance of 'knowledge societies' which, in contrast to earlier industrial or agrarian societies, leverage 'information' as the key raw material and output of a range of productive activity. As one UNESCO Report puts it "Knowledge is today recognized as the object of huge economic, political and cultural stakes"[1].

In this new paradigm, investment in Information and Communications Technology (ICT), the enactment of strong Intellectual Property laws, and their strict enforcement are prescribed as imperative in facilitating the transition away from the older economic modes. The promise of the knowledge society is particularly alluring for developing countries, like India, where it is viewed as a vehicle for achieving what Ravi Sundaram has termed 'temporally-accelerative' development[2], through which we would be able to transcend our "historical disabilities", and achieve parity with the incumbent masters of the world. [3]

In their eagerness to provide the best supportive conditions to usher in this coveted knowledge society, nations have been tightening their Intellectual Property regimes – including copyright law. This has entailed a two fold expansion, firstly, in the scope of copyright to include, for instance, ‘technological protection measures’ within their ambit and secondly, in the powers of investigation, search and seizure put at the disposal enforcement agencies. In addition, as we shall see, courts in India have enthusiastically bought into this vision of a knowledge economy, and this has fuelled their eagerness to craft innovative – if legally unsound – orders which put tremendously intrusive powers in the hands of copyright owners. Taken together, these developments have taken their toll on the privacy of individuals which this section will explore in further detail. We begin with a brief description of the statutory mechanism for copyright enforcement – both civil and criminal - under the Copyright Act. We then move on to the way courts have crafted new orders that magnify the powers of copyright owners to the detriment of the privacy of individuals.

Civil and Criminal Enforcement under the Copyright Act

The Copyright Act provides for both civil and criminal remedies for infringement. Section 55 provides for civil remedies and declares that, upon infringement, "the owner of the copyright shall be entitled to all such remedies by way of injunction, damages, accounts and otherwise as are or may be conferred by law for the infringement of a right." Civil suits are instituted at the appropriate district court having jurisdiction – including where the plaintiff resides.

Similarly, Chapter XIII (Sections 63-70) provides a range of criminal penalties for infringing copyrights which are typically punishable with terms of imprisonment that “may extend up to three years” along with a fine. These offences would be taken cognizance of and tried at the court of the Metropolitan Magistrate or Judicial Magistrate of the First class [Sec 70], in the same manner as all cognizable offences[4] in India i.e., by following the procedures under the Code of Criminal Procedure, 1973. Section 64 of the Copyright Act dealing with police powers was amended in 1984 to give plenary powers to police officers, of the rank of a sub-inspector and above, to seize without warrant all infringing copies of works “if he is satisfied” that an offence of infringement under section 63, “has been, is being, or is likely to be, committed”. Prior to amendment, this power could only be exercised by a police officer when the matter had already been taken cognizance of by a Magistrate. Prima facie, this is a very sweeping power since its exercise is unsupervised by the judiciary and only depends on the “satisfaction” of a police officer. To put matters in perspective, under the Income Tax Act, dealing with the far more sensitive issue of tax evasion, a search and seizure can only be conducted based on information already in the possession of the investigating authority.[5]

In Girish Gandhi & Ors. v Union of India[6], a case before the Rajasthan High Court, the petitioner, who ran a video cassette rental business, challenged the constitutional validity of the wide powers granted to police officers under this section. Citing various instances of violations of privacy that the abuse of the section could occasion, the petitioner contended:

"The provisions of section 64 itself gives arbitrary and naked powers without any guidelines to the police officer to seize any material from the shop and thus, drag the video owners to the litigation. He has given instances in the petition that police officer usually demands for video cassettes to be given to them free of charge for viewing it at their homes and in case, on any reason either the video cassette is not available or it is not given free of charge, there is likelihood that police officer shall misuse his powers and try to seize the material for prosecution under the various provisions of the Act."

Although the High Court dismissed the petition on the grounds that it did not disclose any actual injury to the petitioner, it upheld the constitutionality of the section by reading the word "satisfaction" to mean that the "police officer will not act until and unless he has got some type of information on which information he is satisfied and his satisfaction shall be objective."

[Section 64] is also not arbitrary for the reason that guidelines and safeguards are provided under Sections 51, 52 and 52A and Section 64(2) of the Copyright Act, coupled with the fact that it is expected of the police officer that he would not act arbitrarily and his satisfaction shall always based on some material or knowledge and he shall only proceed for action under Section 64 in a bona fide manner and not for making a roving inquiry. (emphasis added)

Despite the pious hopes expressed in this decision, they do not appear to have influenced the actual behaviour of police officers. In May 2011, the Delhi High Court struck down a notification issued by the Commissioner of Police which had instructed all subordinate functionaries of the police to "attend to and provide assistance" whenever any complaint "in respect of violation of the provisions of Copyright Act, 1957" was received from three companies: Super Cassettes Industries Limited, Phonographic Performance Ltd and Indian Performance Right Society Ltd. This virtually amounted to the commandeering of the criminal enforcement system by a few private owners for their own private interests. In their suit, the petitioner — Event and Entertainment Management Association — had contended that the police machinery "cannot be made to act at the behest of certain privileged copyright owners". Striking the notification down, as unconstitutional, Justice Muralidhar of the Delhi High Court held:

"To the extent the impugned circular privileges the complaints from SCIL over other complaints from owners of copyright it is unsustainable in law for the simple reason that there has to be equal protection of the law in terms of Article 14 of the Constitution. The police are not expected to act differently depending on who the complainant is. All complaints under the Act require the same seriousness of response and the promptitude with which the police will take action, Likewise, the caution that the Police is required to exercise by making a preliminary inquiry and satisfying itself that prima facie there is an infringement of copyright will be no different as regards the complaints or information received under the Act[7]."

The Judge also issued some welcome remarks on the manner in which complaints under Section 64 were to be handled:

In order that the power to seize in terms of Section 64 of the Act is not exercised in an arbitrary and whimsical manner, it has to be hedged in with certain implied safeguards that constitute a check on such power. Consequently, prior to exercising the power of seizure under Section 64(1) of the Act the Police officer concerned has to necessarily be prima facie satisfied that there is an infringement of copyright in the manner complained of. In other words, merely on the receipt of the information or a complaint from the owner of a copyright about the infringement of the copyrighted work, the Police is not expected to straightway effect seizure. Section 52 of the Act enables the person against whom such complaint is made to show that one or more of the circumstances outlined in that provision exists and that therefore there is no infringement. During the preliminary inquiry by the Police, if such a defence is taken by the person against whom the complaint is made it will be incumbent on the Police to prima facie be satisfied that such defence is untenable before proceeding further with the seizure.(emphasis added)[8]

This decision significantly tempers the severity of possible searches and seizures conducted by the police under Copyright Law. It advances the cause of privacy by reining in the power of the state to arbitrarily intrude on citizens.

Parallel to the attempt at ‘hedging in’ of police powers in criminal enforcement by this High court, there has been a move to expand powers of investigative bodies in civil suits. The next sub-section looks at two innovations by courts – Anton Piller Orders and John Doe orders – which are mechanisms unwarranted by civil procedural law, but crafted by high courts specifically to deal with copyright investigation.

'Anton Piller' orders and 'John Doe' Orders

In addition to the extensive police powers under the Copyright Act mentioned above, plaintiffs have other, equally intrusive powers at their disposal. In the past decade it has become common for copyright owners and owners-associations to employ civil procedure to emulate the same kind of invasiveness. This is done via the mechanism of so-called ‘Anton Piller’ orders - orders obtained unilaterally ‘ex-parte’ (in the absence of the defendant) from civil courts which permit court-appointed officers, accompanied by representatives of the plaintiffs themselves, to search premises and seize evidence without prior warning to the defendant. Frequently, courts have also issued ‘John Doe’ orders[9] –orders to search and seize against unnamed/unknown defendants - which virtually translates into untrammelled powers in the hands of the plaintiffs, aided by court-appointed local commissioners, to raid any premises they set their eyes on.

Although the authority of the courts under Indian law to grant these orders is suspect[10], they have virtually been regularized in practice over the past decade through routine issual by the High Courts, especially the Delhi High Court. This has led to a widespread phenomenon of powerful copyright owning groups such as the Business Software Alliance and the Indian Performing Right Society Limited managing to successfully assume for themselves almost plenary powers of search and seizure as they go about knocking on the doors of small businesses and demanding to be allowed to audit their software. An anonymous post on the popular Indian Intellectual Property Weblog ‘Spicy IP’ graphically conveys the invasiveness inherent in the execution of these orders:

Ghost Post on IP (Software) Raids: Court Sponsored Extortion?[11]

Picture this:

You are working in your office one day, when all of a sudden, a group of people arrive unannounced brandishing a court order. The order allows them to walk into your office and conduct an audit of all your office computers to collect evidence of the use of unlicensed software in your office.

This group consists of a court-appointed commissioner, lawyers representing the plaintiff, and technical persons who will carry out the actual software audit.

Knowing that to disobey the order will amount to a contempt of court, you allow the group to carry out the audit.

The audit lasts several hours and continues well into the night. Needless to say, it is physically and emotionally draining on you as your work has come to a stand-still. Everyone around you knows there is some court proceeding going on. You have already lost face with your employees, and possibly even clients who have visited your office during the audit.

As you have several dozen computers purchased over a period of time, and the audit is conducted unannounced, you may not have the time to gather documentation and invoices demonstrating the purchase of licensed software.

While the court order allows you to back up your valuable client and business data, the plaintiff’s lawyers don’t allow you to do so, stating that documents/ data found on machines that contain any unlicensed software may not be backed up.

All computers found with copies of what the plaintiff’s lawyers are calling unlicensed software are seized and sealed. You do not have the time, presence of mind or legal representation to argue that such copies may be backup copies allowed under the law, or that therefore several, or all of the seized machines are not liable to be seized, or that such copies are actually allowed under the software license.

Even more importantly, your licensed servers are seized because they are found to contain back-up copies of software, allowed under the law, but deemed infringing by the plaintiff’s lawyers.

At the end of the audit, you are informed that your computers contain copies of unlicensed software to varying degrees. You are made to sign a report prepared by the commissioner, along with sheets that represent the software audit of each computer in your office.

Most of your computers and servers are seized and sealed. You are told that you cannot touch them till the court allows you to. You are not even allowed to separate the hard drives of those machines that contain the alleged unlicensed software, for the purpose of seizure, so as to enable you to continue using the rest of the machine, even though the court order clearly states that only storage media containing the unlicensed software is to be seized.

In a 2008 case, Autodesk Inc vs. AVT Shankardass[12], the Delhi High Court – which happens to be the most enthusiastic issuer of Anton Piller orders[13] –issued guidelines on the considerations which judges should weigh before granting such orders in software piracy cases. Worryingly, the guidelines stipulate that "The test of reasonable and credible information regarding the existence of pirated software or incriminating evidence should not be subjected to strict proof". Instead the court prescribes that "It has to be tested on the touchstone of pragmatism and the natural and normal course of conduct and practice in trade."

The Court also included a few guidelines meant to safeguard the defendant. These include the possibility of requiring the plaintiff to deposit costs in the court "so that in case pirated software or incriminating evidence is not found then the defendant can be suitably compensated for the obtrusion in his work or privacy." Although on the face of it, these guidelines threatened to open up the floodgates for the granting of Anton Pillar orders, in fact, these fears seem not to have been realized. The privacy-invasive ambitions of IP owners have been subverted by a combination of the security requirements stipulated in the Autodesk guidelines above, the judiciary’s own inefficiency/inconsistency and a greater assertiveness and defiance on the part of defendants. The following passage from the 2011 Special 301 India Country Report on Copyright Protection and Enforcement[14], prepared by the IIPA, records the industry’s frustrations in obtaining Anton Pillar orders from the courts over the past year:

Unfortunately, in 2010, such enforcement efforts have become much less effective due to judges imposing conditions on such orders.

With periodic changes to the roster of judges on the Original Side Jurisdiction of the Delhi High Court (which is done as a matter of routine and procedure where the roster changes every 6 months), BSA reports: 1) the imposition of security costs on Plaintiffs; 2) the grant of local commission orders without orders to seize and seal computer systems containing pirated/unlicensed software; 3) granting the right to Defendants to obtain back up copies of their proprietary data while at the same time ensuring that the evidence of infringement is preserved in electronic form; 4) assigning a low number of technical experts for large inspections, making carrying out orders more time-consuming and raising court commissioners’ fees; and 5) ineffective implementation and lack of deterrence from contempt proceedings against defendants who disrupt or defy Anton Pillar orders.[15]

Notwithstanding this temporary setback, Anton Piller orders and John Doe orders remain powerful weapons in the arsenal of large copyright owners who continue to use it in ways that are extremely intrusive. These orders exemplify an instance of how courts rarely reflect on the privacy implications of the orders that they themselves issue –similar action undertaken by the executive would have most likely invited the court’s consideration on whether they violate privacy.

In the next section we move on to private ‘technological’ measures of enforcing copyright which are likely to receive statutory sanction.

Technological Measures

In the light of the industry’s perception of a weakening of its enforcement options due to the judiciary’s waning enthusiasm, it remains to be seen what new manoeuvres they would make to strengthen enforcement. One foreseeable arena of conflict would be the new measures proposed to be included in the Copyright Act that criminalise the circumvention of ‘technological protection measures’ (TPMs) built into software by manufacturers. The proposed new Section 65A criminalises the circumvention of “an effective technological measure applied for the purpose of protecting any of the rights conferred by this Act," "with the intention of infringing such rights”. This is punishable with imprisonment up to two years and a fine. However the section also creates a vast list of exceptions including research, testing, national security etc which make it a comparatively soft tool in the hands of prosecutors. Among the list of exceptions is a clause that enables the circumvention of TPMs in order to facilitate purposes that are 'not expressly prohibited' – including, conceivably, to exercise fair dealing rights under Section 52. Although this is a welcome provision, it requires, as a condition of its exercise, that the person ‘facilitating the circumvention’ maintain a record of the persons for whose benefit this has been done. This has led to apprehensions of violations of privacy especially from disability rights groups, who would potentially be the biggest users of this section as it would enable them to make electronic content more widely accessible. However, the lawful exercise of this right would mean that each instance of use of electronic content – say an e-book – by a disabled person would be recorded, which could deter them from accessing content. It would also clearly amount to a violation of their privacy compared to other analog users who are not required to similarly maintain logs each time they share books, for instance.

On the whole, despite the effect these measures have of diminishing absolute control over our electronic resources, the fact that the IIPA - which has been one the most rapid ‘defenders’ of IP - has consistently complained about their inadequacy in its Special 301 Reports[16] gives us some cause for optimism that the privacy invasions it could occasion would not be too severe.

Meanwhile, in a first of its kind, in 2005 the High Court of Andhra Pradesh permitted the prosecution, under the Copyright Act, of persons accused of having circumvented technological protection measures in mobile devices.

In Syed Asifuddin and Ors. v The State of Andhra Pradesh [17] the accused had altered the software on the mobile handsets provided by one service provider (Reliance), so that the same handset could be used to access the network of a rival provider (Tata Indicom). The Court observed that "if a person alters computer programme of another person or another computer company, the same would be infringement of the copyright." The matter was then relegated to the trial court to receive evidence on whether in fact such alteration had occurred.

This ruling, if correct, effectively negates the need for any amendment to the law since circumvention of technological measures typically involves an unauthorized alteration of copyrighted code. Of course it would always be open to the defendant to assert his fair dealing rights in defence, but that issue was not deliberated upon by the High Court in this instance.

Portents

With the terrain of copyright infringement increasingly shifting from ‘street piracy’ to online piracy, it remains to be seen how innovations in copyright enforcement impact privacy. Three events are particularly interesting in this context.

In August 2007, a techie from Bangalore was arrested on charges of having posted incendiary images of a popular folk hero on a website. He had been traced based on the IP Address details provided by a leading ISP. It later turned out that the IP address information was incorrect. By the time the error was noticed, he had already been held in jail illegally for a period of 50 days.[19] Shocking as this incident is, it offers a portent of the gravity of the possible privacy abuses that we are likely to witness in the years to come as copyright owners begin to hunt down infringers on the Internet.
In 2006, the Delhi High Court the pioneer among the Indian Judiciary in issuing John Doe orders added another feather to its cap by permitting the filing of a suit against an IP address. In a case of defamation by email from an unknown sender, a company was able to successfully file a suit against the IP address and obtain an order against the ISP to track down the user who was later impleaded as a party to the suit. This case and the growing number of John Doe orders issued, indicates that the judiciary in India has been quite willing to partner with litigants in their fishing expeditions. While it cannot be gainsaid that this has aided the legitimate interests of litigants, this has come at the price of a callous disregard for the interests of consumer privacy in India, which, as the incident described above highlights, could easily descend into a full blown human rights violation.
With the arrest in November 2010 of a four-member gang from Hyderabad for uploading media content – including popular film titles - on Bittorrent, the popular online file sharing tool, the industry has signalled its capacity and willingness to take the battle over copyright to the Internet.[20] New rules notified under the Information Technology Act make it mandatory for 'intermediaries' (ISPs) to co-operate in locating and removing ‘infringing content’ that is stored or transmitted by them.[21] This will facilitate untrammelled access to users by copyright industries.

Although it is too early to predict the future for the Internet that these developments will result in, they are definitely a source of apprehension from the perspective of privacy.

Copyright and Confidential Information

Although the protection of 'confidential information' and 'copyright' occupy distinct realms in the law[22], they converge occasionally, and copyright has been used as an instrument by people and organisations to protect their confidential information. In fact it has become quite routine for written pleadings by plaintiffs in cases to assert the omnibus infringement of their ‘copyrights, confidential information, trade secrets, trademarks designs etc’ without specifying which of the claims is urged. For instance in Mr. M. Sivasamy v M/S. Vestergaard Frandsen[23] a case before the Delhi High Court, the plaintiffs claimed that. "Defendants are violating the trade secrets, confidential information and copyrights of the plaintiffs.”; Similarly in Dietrich Engineering Consultant v Schist India & Ors , before the Bombay High Court, the plaintiffs contended"..the suit is filed to prevent unauthorized and illegal use of the plaintiffs confidential information and infringement of the 1st plaintiffs Copyright".[24]

In one of the earliest cases of this kind, Zee Telefilms Ltd. v Sundial Communications Pvt. Ltd, the Bombay High Court delivered a ruling in favour of the plaintiffs on both grounds of copyright infringement and confidential information. Here the employees of the plaintiffs – a company engaged in the business of producing television serials - had developed the concept for a program which they had registered with the Film Writers Association. Subsequently, they made a confidential pitch of the concept to the representatives of the defendants, a well known TV channel. Although initially the defendants appeared reluctant to take the concept forward, they proceeded later on, without the authorization of the plaintiffs, to produce a TV serial that closely mirrored the ideas contained in the show conceived by the plaintiff. In an action seeking to restrain the defendants from proceeding with their production, the High Court agreed with the plaintiff’s claims both on the count of copyright infringement and confidentiality. Curiously, the determination of both issues turned on the similarities between the plaintiff’s and defendant’s concepts – which is traditionally a determination relevant only to copyright cases. On the issue of confidentiality, the court held "Keeping in view numerous striking similarities in two works and in the light of the material produced on record, it is impossible to accept that the similarities in two works were mere coincidence...the plaintiffs' business prospect and their goodwill would seriously suffer if the confidential information of this kind was allowed to be used against them in competition with them by the defendants."

Although a clear line is demarcated between the claims of confidentiality and copyright in this case, this distinction is less sharp in other cases of the same nature.

In a more recent case Diljeet Titus, Advocate v Mr. Alfred A. Adebare & Ors[25] four associates of the plaintiff’s law firm quit together to start their own practice. While leaving they took documents they had drafted including agreements, due diligence reports and a list of clients along with them. The plaintiff filed a suit for injunction, asserting both that this material was confidential and that he owned the copyrights over them. The Delhi High Court agreed and issued an injunction restraining the defendants from “utilizing the material of the plaintiff forming subject matter of the suit and from disseminating or otherwise exploiting the same including the data for their own benefit.” What is interesting in this case is the conflation of confidentiality and copyright – both in the allegations of the plaintiff and the rebuttals of the defendant who sought to resist claims of confidentialty on grounds that they had themselves authored the papers in question.

Curiously, where copyright and confidentiality claims coincide, it would appear that the parameters of determining copyright infringement end up determining the issue of confidentiality as well.

In the next section we move on to the last copyright/privacy issue that we had flagged in the introduction – the invocation of copyright in aid of the ‘right to publicity’ of individuals which can be read as a kind of privacy claim.

Copyright and Publicity

Do we have a copyright over our identities – our names, our appearances, our life histories, our reputation and our bodies - so that we have an actionable interest in preventing their deployment in public without our express authorization?

This question has arisen in a limited set of cases in India that raise interesting questions. As with the confidentiality cases discussed above, the lines separating ‘defamation’ actions from ‘copyright’ claims is not brightly drawn in these cases. Neither is the line linking copyright to the protection of privacy clearly evident. All one can say with confidence is that copyright and privacy are two words tossed into the plaints by the plaintiffs while asserting their claims.

In one of the most high-profile cases of its kind, Phoolan Devi v Shekhar Kapoor[26] the Delhi High Court was faced with the question of whether ‘public figures’ are entitled to any degree of control over the representation of their lives. Here the petitioner, Phoolan Devi, a reformed bandit, had 'licensed'[27] the production of a biopic on her life to the defendant, a film director of note, who was to consult the plaintiff’s own writings and those of her authorised biographer in making the film. However, the defendant – the director of the biopic – had exceeded this mandate and also depicted incidents that emerged from various newspaper accounts – including a graphic gang rape scene where the plaintiff was the victim, and a massacre which she had allegedly orchestrated. Although generally well-known, neither of these incidents were either admitted to by the plaintiff herself or mentioned in the plaintiff’s own writings and those of her biographer. Even worse, the film had not been shown to her even several months after it had been released to national and international audiences.[28] In Arundhati Roy’s moving words the producers of the film “[R]e-invent her life. Her loves. Her rapes. They implicate her in the murder of twenty-two men that she denies having committed. Then they try to slither out of showing her the film!”[29]

One of the contentions that the petitioner’s advocate had advanced was that the defendant had no right “to mutilate or distort the facts as based upon prison diaries” and that any such distortion would fall afoul of her right under Sec 57 of the Indian Copyright Act. This section confers certain ‘special rights’ on the author including the right to claim authorship and to restrain any distortion/mutilation or modification of the work that would be prejudicial to his/her honour or reputation.[30]

These rights survive any assignment of the copyright made by the author i.e. they can e asserted by the author above any contract entered into by her with third parties such as the producer in this case. The Court framed the question it was faced with in these terms:

[T]he question before me is whether such person like the plaintiff has no right to defend when someone enlarges the terrible facts, enters the realm of her private life, depicts in graphic details rape, sexual intercourse, exhibits nudity, portrays the living person which brings shame, humiliation and memories of events which haunts and will go on haunting the plaintiff, more so the person is still living. Whether the plaintiff has no right and her life can become an excuse for film makers and audience to participate in an exercise of legitimate violence with putting all inhibitions aside.

Ultimately, the High Court sided with the petitioner and issued an injunction restraining the defendant from exhibiting his film.[31] This decision was based more on a consideration of constitutional right to privacy principles than an evaluation of the plaintiff’s case under Copyright law. However, it does provide an interesting factual matrix for the exploration of the way in which protection of copyright and privacy might overlap.

In a contrasting case before the Bombay High Court, Manisha Koirala v Shashilal Nair & Ors [32] an injunction was sought against the release of a film in which the petitioner, a noted actress, was depicted in the nude through the device of a ‘body double’. Here the plot was entirely fictional and the plaintiff, a noted actress, had agreed to perform in the film with ‘substituted shots’ during the scenes in the story that involved nudity. Subsequently, she appears to have reconsidered this decision and objected to the very inclusion of these scenes in its final version. In her petition before the court, she alleged defamation and malicious injurious falsehood, arguing that the exhibition of the film would result in a violation her right to privacy "as the objectionable shots, attempt to expose the body of a female which is suggested to be that of the plaintiff". She contended that “the right to portray her on screen can only be exercised in a manner, which is subject to the fundamental principle that such portrayal can only be with her unconditional consent." "The present rendition" of her part in the film, she alleged was “an invasion of privacy as it is embarrassing and will cause irreparable damage to her reputation which remains untarnished thereby causing irreparable loss and injury”. Although Copyright is not invoked in this case by the petitioner, there is an audible echo of some of the reputational anxieties that had animated Phoolan Devi’s case mentioned above. The difference, however, is that in this case the petitioner’s claim was not grounded in a quest for control over her biography, but over the image of her body. Unlike the previous case, here the Court was unsympathetic to the petitioner’s claims. The court treated her previous ‘consents’ as determinative of all issues and dismissed her case holding:

"The Court ...cannot be a moral guardian in this context. ..It is.. clear to my mind that once having agreed to act in the film it will be too late for the plaintiff .. to hold that a case of defamation has been made out.. To maintain a case of malicious falsehood it must be held out that the statement was false. In the instant case what is sought to be contended is that the scenes involving the film artist would result in an action of malicious injurious falsehood or malicious falsehood by associating the plaintiff's with the scenes which she had not enacted.. The plaintiff was prima facie aware as earlier held and that the scenes formed part of the story board have been enacted by a double and consequently it cannot be said that in the present case the plaintiff has been able to establish a case of malicious falsehood."[33]

One of the facts that was relevant in the court’s decision was that the defendant, as the ‘holder of the copyright in the film’, had incurred vast expenditure in publicising its release. Here, in a reversal of the Phoolan Devi case, copyright is held up as a shield against a competing privacy claim. The issue of the extent of overlap between copyright and privacy however remains unsettled in law. In April 2007, the Madras High Court granted a temporary injunction against the publishers of an unauthorised biography of former Tamil Nadu Chief Minister Jayalalitha. In her petition she alleged that the biography “had been written without any verification of facts. Such a publication would spoil her image and damage her status in politics and public life.” Her petition contended that “No one has a right to publish anything concerning personal private matters without consent, whether truthful or otherwise, whether laudatory or critical.[34]

Although it does not reference Copyright law, this case is another illustration of the enduring relevance of the question of whether we are entitled to the exclusive authorship of our private life-stories.

The Private under the Copyright Act

In its various sections, the Copyright Act inscribes certain spaces and actions as either public or private. Specified activities are labelled public even though they are conducted within the domestic confines of one’s home. Similarly, activities that infringe copyright are nevertheless immunised from prosecution due to the fact that they are conducted for a ‘private’ purpose. In this concluding section of this paper, we try to piece together a narrative of privacy and the private domain that emerges from a combined reading of various sections and decisions under the Copyright Act.

We begin, here, by collating the Copyright Act’s various articulations of the ‘public’ and ‘private’. By treating them as intertwining, mutually constitutive terms, we proceed to analyse these various articulations in the Copyright Act with a view to seeing what account of the private realm may emerge.

Public/Publish

One of the key rights that most owners of copyrights enjoy is the exclusive right to "publish" or "communicate their work to the public".

The Act defines "publication" to mean “making a work available to the public by issue of copies or by communicating the work to the public”. Significantly, in case of dispute, if the issue of copies or communication to the public is “of an insignificant nature” it is deemed not to constitute a publication [Section 6]. This signals that the notions of publicity and publication under the Copyright Act are in some senses moored to the magnitude of the receiving public. The ‘private’ then is constituted, reciprocally, as the ‘insignificant public’.

Under the Indian Copyright Act, "communication to the public" occurs when a person makes any work “available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work”. Such communication occurs “regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made available.”[Section 2(ff)][35]

Private

The word ‘private’ is expressly referenced in four provisions of the Copyright Act.

Section 39 declares that “the making of any sound recording or visual recording for the private use of the person making such recording, or solely for purposes of bona fide teaching or research” would not violate the broadcast reproduction right or performer's right;
Section 51 which stipulates when copyrights are infringed declares that the “imports into India, any infringing copies of the work” would constitute an infringement except if it is only a single copy of any work that is imported “for the private and domestic use of the importer”.
Section 52(1) of the Copyright Act lists certain acts as not infringing of copyright. These include:

(a) a fair dealing with a literary, dramatic, musical or artistic work, not being a computer programme, for the purposes of private use, including research. A proposed amendment to this section seeks to extend this protection to all ‘personal’ uses in addition to ‘private uses including research[36]. ‘Personal use’ has been interpreted in non-copyright contexts to include the family members of the person living with him.[37] The definition of ‘person’ under the General Clauses Act includes a “company or association or body of individuals, whether incorporated or not”. Although the case law on the point is scant[38], it would be interesting to see if ‘personal use’ can be read to include the use by companies internally, thereby casting a shroud of privacy on corporations for the purpose of copyright.
(p) the reproduction, for the purpose of research or private study or with a view to publication, of an unpublished literary, dramatic or musical work kept in a library, museum or other institution to which the public has access.

In addition to the provisions listed above, Section 52 the Act also shields certain spaces and occasions as immune from the charge of copyright infringement (although they are not specially designated as ‘private’). These include educational institutions[39], non-profit clubs, societies[40], religious institutions[41] and religious ceremonies including marriages.[42]

Perhaps the most elaborate calibration of the boundaries between the 'private' and 'public' under the Indian Ccopyright Act by the judiciary occurs in the case Garware Plastics and Polyester vs Telelink & Ors[43]., decided by the Bombay High Court in 1989. The case called for the determination of whether films transmitted via neighbourhood cable networks and viewed in the privacy of customers’ homes would constitute an unauthorised ‘communication to the public’ under the Copyright Act. Here the defendants had purchased video tapes of popular films and begun transmitting them over cable networks owned by them. For this they charged a monthly maintenance fee from their customers. Under the Copyright Act then in force, ‘communication to the public’ was defined simply as "communication to the public in whatever manner, including communication through satellite.” After an extensive review of English law on the subject, the court ruled that this did constitute an unauthorised communication to the public:

"Whether a communication is to the public or whether it is a private communication depends essentially on the persons receiving the communication. If they can be characterized as the public or a protein of the public , the communication is to the public…From the authorities the principal criteria which emerge for determining the issue are(1) the character of audience and whether it can be described as a private or domestic audience consisting of family members or members of the household, (2) whether the audience in relation to the owner of the copyright can be so considered…Applying the test of the character of the audience watching these video films , can this audience be called a Section of the public or is this audience a private or domestic audience of the defendants ? In the present case it cannot be said that the audience which watches video films shown by the defendants consists of family members and guests of the defendants. The video film may be watched by a large Section of the public in the privacy of their homes. But this does not make it a private communication so as to take it our of the definition of "broadcast" under the Copyright Act, 1957.

It is true that the network operates through the connection of a cable to all these various apartments or houses. But this cannot in any way affect the character of the audience. The viewers are not members of one family or their guests. They do not have even the homogeneity of club members of one family or their guests. They do not have even the homogeneity of a club membership.[44] (emphasis added)

A central feature emerging from this case that distinguishes public form private in Copyright law is homogeneity or affiliation: that space is marked ‘private’ where a pre-affiliated group – united either by kinship or association in pursuit of a common goal – comes together in pursuit of a non-commercial common interest. Conversely, ‘Public’ is where the unaffiliated congregate. On the face, this accords with the spirit of the various fair dealing rights under the Copyright Act which carve out immunised spaces for institutions that correspond to these definitions – educational institutions, religious institutions and ceremonies, amateur clubs etc are immune from infringement actions because, one could say, their activities are ‘private’.

In 1994 the Copyright Act was amended to fortify this conclusion by expanding the definition of ‘communication to the public’ to include ‘communication through satellite or cable or any other means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public;” (Sec 2(ff), Explanation)

Conclusion

I would like to conclude this paper with some reflections on the assertion I made in the introduction about copyright law being both an instrument for the protection and violation of privacy. From the discussion in the previous sections, it follows:

Firstly, that 'property' – as embodied by copyright law – is, at best, an unreliable guarantor of privacy. It works when bussed along with dignity claims– for instance the Phoolan Devi case where the petitioner’s suffering underlay her property claim– but fails when asserted as ‘property’ per se (as in Manisha Koirala’s case[45]). One does not (under the Indian Copyright Act, at least) have a reliable ‘property’ interest in one’s life story, bodily representation, name etc. This stands in contrast with other regimes such as the US where several states have enacted ‘Right to publicity’ statutes or have recognised publicity rights through common law processes.[46]

These rights can be read to offer people a 'property' means for protecting their privacy (by preventing unauthorised publicity) in those jurisdictions. Analogous claims are unavailable in India.

Secondly, that ‘property’ operates frequently as a license for the violation of privacy with impunity. This emerges most clearly from the cases of copyright investigation that we examined in Section 1.2 above. Pecuniary copyright interests appear to completely overwhelm any regard for competing privacy concerns.

Thirdly, that, notwithstanding the preceding two points, the copyright act does protect privacy in limited ways. Chiefly these are a) By conferring limited copyright on 'unpublished works', it enables authors to restrict their publication except on terms acceptable to them. b) The Act grants a very wide “Performer’s right” to performers and no sound or visal recording may be made of them without their express consent. No such recording can broadcast or communicated to the public without their consent. This gives a very powerful weapon of control in the hands of performers to restrict the extent to which representations of them are publicised. C) As mentioned above in the penultimate section of this paper, various fair dealing exceptions carve out spaces of privacy where infringing acts are granted immunity – for instance private uses, uses in educational institutions and libraries, etc.

Lastly, with the arena of copyright infringement shifting gradually to the internet, it is foreseeable that the IT Act will be employed with greater frequency in the coming years to do the work of copyright enforcement. The legal regime already supports this change through provisions in the IT Act which preserve all existing rights available under the Copyright Act [Section 81 (proviso) of the IT Act] and put new powers of take-down [see Intermediary Guidelines] in the hands of Copyright Owners. Thus on the one hand, copyright owners would be able to lawfully hack into potential infringers’ computers while enjoying immunity under the IT Act. On the other hand, ‘intermediaries’ would be legally bound to co-operate in copyright enforcement including, conceivably, handing over a number of personal details of those accused of copyright infringement. In other jurisdictions, such as the EU, such ‘co-operation’ is heavily policed by judicial oversight where personally identifiable information is involved[47]. Contrastingly, in India, with its diminished concerns for privacy and limited awareness of how IP address data can seriously imperil privacy, there is a very real threat that these provision will license the wholesale violation of online privacy.

Notes

[1]Anon, 2005. Towards Knowledge Societies, Paris: UNESCO. Available at: http://unesdoc.unesco.org/images/0014/001418/141843e.pdf [Accessed April 20, 2011].

[2]Sundaram says "Temporal acceleration was a significant part of the imaginary of developmentalism - this was inherent in the logic of 'catching up' with the core areas of the world economy by privileging a certain strategy of growth that actively delegitimized local and 'traditional' practices."

[3]This aspiration underlies several of the policy documents prepared in India in the last decade – Illustratively, the report submitted by the National Task Force on Information Technology (NTFIT) in 1998 captures this sentiment well: “For India, the rise of Information Technology is an opportunity to overcome historical disabilities and once again become the master of one's own national destiny. IT is a tool that will enable India to achieve the goal of becoming a strong, prosperous and self-confident nation. In doing so, IT promises to compress the time it would otherwise take for India to advance rapidly in the march of development and occupy a position of honor and pride in the comity of nations” Tiwari, Ghanshyam et al. Government of India. Central Advisory Board of Education, Ministry of Human Resource Development .Report of the Central Advisory Board of Education Committee On Universalisation of Secondary Education. New Delhi: 2005

[4]There is some ambiguity on whether offences under the Copyright Act punishable with imprisonment “which may extend to three years” are 'cognizable' or not. The Code of Criminal Procedure 1973 classifies all offences which prescribe a penalty of three years and above as cognizable and non bailable [First Schedule]. Offences which are punishable with imprisonment of less than three years are classified as ‘non-cognizable’ and ‘bailable’. In the absence of a definitive ruling from the Supreme Court on this issue, different High Courts have offered conflicting interpretations. See Singh, S. & Aprajita, 2008. Insight into the nature of offence of Copyright Infringement. Journal of Intellectual Property Rights, 13(6), pp.583-589. Available at: http://nopr.niscair.res.in/bitstream/123456789/2433/1/JIPR%2013%286%29%20583-589.pdf [Accessed May 12, 2011]. See also Agarwal, D.K., 2010. Arrest under the customs act ? Bailable or non-bailable offence. Translation Interpreting Services. Available at: http://translation-tech.com/blog/213/arrest-under-the-customs-act-bailable-or-non-bailable-offence/ [Accessed May 12, 2011]. The determination of this issue would have wide ranging implications since the police have a wider assortment of powers with respect to interrogation, arrest, search and seizure in the course of investigating cognizable offences than they have with respect to non-cognizable offences.

[5]"Where Director of Inspection or Commissioner in consequence of information in his possession, has reason to believe that any person having in possession of any money, etc.." has not disclosed it for purposes of Income Tax.

[6]AIR 1997 Raj 78 < http://indiankanoon.org/doc/661363/>

[7]Event and Entertainment Management Association v. Union of India (Delhi HC) Order dated 2nd May 2011 <http://courtnic.nic.in/dhcorder/dhcqrydisp_o.asp?pn=84697&yr=2011>. Harkauli, S., 2011. HC nullifies police circular on copyright issue. The Pioneer. Available at: http://www.dailypioneer.com/336974/HC-nullifies-police-circular-on-copyright-issue.html [Accessed May 9, 2011].

[8]Ibid

[9]As recently as April 2011, the Delhi high court restrained “cable operators nationwide from telecasting matches of the Indian Premier League (IPL) without authorization from MSM Satellite (Singapore) Pte Ltd, which owns the broadcasting rights. See Bailay, R., 2011. Cable operators can’t telecast IPL without authorization, says HC. Livemint. Available at: http://www.livemint.com/articles/2011/04/27212449/Cable-operators-can8217t-te.html?atype=tp [Accessed May 13, 2011]. For an early history of John Doe orders in India, see Krishnamurthy, N. & Anand, P., 2003. India Trade marks in a state of change. Managing Intellectual Property. Available at: http://www.managingip.com/Article/1321770/India-Trade-marks-in-a-state-of-change.html [Accessed May 13, 2011].

[10]These orders are granted by the Court supposedly under Section 75 read with Order 26 of the Code of Civil Procedure which empowers the court to appoint “Local Commissioners” to record evidence in special cases. I have stated my opinions elsewhere on why I believe these powers may not be invoked for the purpose of effecting routine searches and seizures in the manner as is currently being practiced by the higher judiciary – especially the Delhi High Court. See Iyengar, P., 2009. BSA’s response on Spicy IP – in perspective. Original Fakes. Available at: http://originalfakes.wordpress.com/2009/04/04/bsas-response-on-spicy-ip-in-perspective/ [Accessed May 10, 2011].

[11]Anon, 2009. Ghost Post on IP (Software) Raids: Court Sponsored Extortion? SPICY IP. Available at: http://spicyipindia.blogspot.com/2009/03/ghost-post-on-ip-software-raids-court.html [Accessed May 10, 2011].

[12]Autodesk Inc Vs. AVT Shankardass, Available at: http://delhicourts.nic.in/Jul08/Autodesk%20Inc%20Vs.%20AVT%20Shankardass.pdf [Accessed May 10, 2011].

[13]The 2011 Special 301 Country Report on India prepared by the IIPA specifically cites the Delhi High Court in this context, statng “The industry enjoys a very high success rate with respect to the grant of such orders at the Delhi High Court”. According to this report, the Business Software Alliance was able to obtain 34 such orders in 2009.

[14]Anon, 2011. Special 301 Report on Copyright Protection and Enforcement: 2011 India Country Report, International Intellectual Property Alliance. Available at: http://www.iipa.com/rbc/2011/2011SPEC301INDIA.pdf [Accessed May 9, 2011].

[15]Ibid at. Pp 41-42.

[16]The 2010 Special 301 Country Report lists the following defects of the proposed Section 65A: “(a) does not cover access controls and is limited only to TPMs protecting the exercise of exclusive rights; (b) covers only the “act” of circumvention and does not also cover manufacturing, trafficking in, or distributing circumvention devices or services; (c) does not define an “effective technological measure”; (d) contains an exception which would appear to permit circumvention for any purpose that would not amount to infringement under the act (thereby almost completely eviscerating any protection); (e) creates other overbroad exceptions; and (f) provides for only criminal and not civil remedies."

[17]Syed Asifuddin And Ors. v The State Of Andhra Pradesh, 2005 CriLJ 4314 (Andhra Pradesh HC ).

[18]Ibid.

[19]Holla, A., 2009. Wronged, techie gets justice 2 yrs after being jailed. Mumbai Mirror. Available at: http://www.mumbaimirror.com/index.aspx?page=article&sectid=2&contentid=200906252009062503144578681037483 [Accessed March 23, 2011]. See also Nanjappa, V., 2008. “I have lost everything.” Rediff.com News. Available at: http://www.rediff.com/news/2008/jan/21inter.htm [Accessed March 23, 2011].

[20]Pahwa, N., 2010. Hyderabad Police Arrests Torrent Uploaders - MediaNama. MediaNama. Available at: http://www.medianama.com/2010/11/223-hyderabad-police-arrests-torrent-uploaders/ [Accessed May 12, 2011].

[21]GSR 314(E) Dated 11 April 2011: Information Technology (Intermediaries guidelines) Rules, 2011 http://www.mit.gov.in/sites/upload_files/dit/files/GSR314E_10511(1).pdf [Accessed May 12, 2011].

[22]See Zee Telefilms Ltd. v Sundial Communications Pvt. Ltd., 2003 (5) BomCR 404 (Bombay High Court 2003).

[23]Mr. M. Sivasamy v M/S. Vestergaard Frandsen (Delhi High court 2009).< http://indiankanoon.org/doc/916718/>

[24]Dietrich Engineering Consultant v Schist India & Ors (Bombay High Court, 2009) < http://indiankanoon.org/doc/1634545/>

[25]Mr. Diljeet Titus, Advocate vs Mr. Alfred A. Adebare And Ors, 130 DLT 330 (Delhi High Court 2006).

[26]Phoolan Devi v Shekhar Kapoor And Ors. (1994). DLT (Vol. 57 (1995), p. 154). Retrieved from http://indiankanoon.org/doc/793946/

[27]The conditions under which this license were obtained speak eloquently to the ills of the current copyright system. According to Phoolan Devi’s lawyer, the noted advocate Indira Jaisingh, the contract was signed by Phoolan Devi while she was behind prison bars. She did not speak or understand Hindi or English and only spoke in a local dialect. The copyright contract was written entirely in English and gave her a paltry sum or Rs. 2 lakh – which was a pittance considering the budget and projected returns from the film. Jaisingh, I., 2001. Supreme Court lawyer Indira Jaisingh pays tribute to Phoolan Devi. Available at: http://www.rediff.com/news/2001/jul/26spec.htm [Accessed June 10, 2011]. Arundhati Roy’s two superb critiques of the film and its director movingly capture why this is not a simple case of copyright assignment. See Roy, A., 1994. The Great Indian Rape Trick - I. Sawnet. Available at: http://www.sawnet.org/books/writing/roy_bq1.html [Accessed June 10, 2011].; Roy, A., 1994. The Great Indian Rape Trick - II. Sawnet. Available at: http://www.sawnet.org/books/writing/roy_bq2.html [Accessed June 10, 2011].

[28]Ibid, Roy, A., 1994. The Great Indian Rape Trick - I.

[29]Ibid, Roy, A., 1994. The Great Indian Rape Trick - II

[30]Section 57 of the Act reads “Author’s Special Rights: ‘Independently of the author's copyright and even after the assignment either wholly or partially of the said copyright, the author of a work shall have the right-

(a) to claim authorship of the work; and
(b) to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work which is done before the expiration of the term of copyright if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation:”

[31]The case was later settled out of court with Phoolan Devi being able to secure a substantially higher compensation. Ultimately, the case was not about the depiction of rape generally, but primarily about Phoolan Devi’s sovereign right to decide the terms on which her own life would be represented.

[32]Manisha Koirala v Shashilal Nair & Ors. (2002). BomCR (Vol. 2003 (2), p. 136). Retrieved from http://indiankanoon.org/doc/1913646/

[33]Ibid

[34]Anon, 2011. High Court Grants Injunction Till June 7 Against Publishing Book on Jayalalithaa. The Hindu, p.01. Available at: http://www.hindu.com/2011/04/27/stories/2011042762360100.htm [Accessed May 12, 2011].

[35]For a more dispersed account on the concept of the ‘public’ under Indian law, See Iyengar, P, ‘Where the private and the public collide’, iCommons Lab Report, September- October 2007, pp. 7-8, Icommons.org, < http://archive.icommons.org/articles/what-is-public> last visited May 2011

[36]Copyright (Amendment) Bill 2010 http://prsindia.org/uploads/media/Copyright%20Act/Copyright%20Bill%202010.pdf

[37]See Sivasubramania Iyer v. S.H. Krishnaswamy AIR 1981 Ker 57 , a case under Kerala Buildings (Lease & Rent Control) Act 1965.

[38]Goods purchased for the private use of a corporation would be goods purchased for the ”personal use” of the corporation. 158 IC 703.

[39]52(1)(g), (h) and (i)

[40]52(1)(k) and (l)

[41]52(1)(l)

[42]52(1)(za)

[43]AIR 1989 Bom 331, 1989 (2) BomCR 433, (1989) 91 BOMLR 139 <http://indiankanoon.org/doc/858705/>

[44]Ibid.

[45]At first glance this distinction may seem facile since even Manisha Koirala invoked ‘reputational harm’ as a prop to buttress her property claim. However, I believe this case was complicated by the fact that the court had to consider whether the display of someone else’s body could have implicated Manisha Koirala’s privacy/dignity. Koirala was, in effect, arguing that she had absolute ‘proprietorial’ control over all representations of her body – a property argument which the court was unwilling to concede.

[46]See Footnote 90 and accompanying text in Samuelson, P., 2000. Privacy as Intellectual Property? SSRN eLibrary; Stanford Law Review. Available at: http://ssrn.com/paper=239412 [Accessed on June 14, 2011].

[47]Lebatard, F.-R., Copyright Enforcement and the Protection of Privacy in France. Translegal. Available at: http://www.translegal.com/feature-articles/copyright-enforcement-and-the-protection-of-privacy-in-france [Accessed June 14, 2011].

For more details visit https://cis-india.org/internet-governance/blog/privacy/copyright-enforcement

Locating Internets: Histories of the Internet(s) in India — Research Training and Curriculum Workshop: Call for Participation

praskrishna — 2011-07-21T06:00:39Z

Deadline for submission: 26th July 2011-06-08; When: 19th - 22nd August, 2011; Where: Centre for Environmental Planning and Technology (CEPT) University, Ahmedabad; Organised by: Centre for Internet and Society, Bangalore and CEPT University, Ahmedabad. Please Note: Travel support is only available for domestic travel within India.

LOCATING INTERNETS is an innovative, multi-disciplinary, workshop that engages with some of the most crucial debates around Internet and Society within academic scholarship, discourse and practice in India. It explores Where, When, How and What has changed with the emergence of Internet and Digital Technologies in the country. The Internet is not a singular monolithic entity but is articulated in various forms – sometimes materially, through accessing the web; at others, through our experiences; and yet others through imaginations of policy and law. Internets have become a part of our everyday practice, from museums and archives, to school and university programmes, living rooms and public spaces, relationships and our bodily lived realities. It becomes necessary to reconfigure our existing concepts, frameworks and ideas to make sense of the rapidly digitising world around us. The Internet is no longer contained in niche disciplines or specialised everyday practices. LOCATING INTERNETS invites scholars, teachers, researchers, advanced research students and educationalists from any discipline to learn and discuss how to ask new questions and design innovative curricula in their discipline by introducing concepts and ideas from path-breaking research in India.

Comprised of training, public lectures, open discussion spaces, and hands-on curriculum building exercises, this workshop will introduce the participants to contemporary debates, help them articulate concerns and problems from their own research and practice, and build knowledge clusters to develop innovative and open curricula which can be implemented in interdisciplinary undergraduate spaces in the country. It showcases the research outputs produced by the Centre for Internet and Society’s Researchers @ Work Programme, and brings together nine researchers to talk about alternative histories, processes, and bodies of the Internets, and how they can be integrated into mainstream pedagogic practices and teaching environments.

Knowledge Clusters for the Workshop

LOCATING INTERNETS is designed innovatively to accommodate for various intellectual and practice based needs of the participants. While the aim is to introduce the participants to a wide interdisciplinary range of scholarship, we also hope to address particular disciplinary and scholarly concerns of the participants. The workshop is further divided into three knowledge clusters which help the participants to focus their energies and ideas in the course of the four days.

Bridging the Gap: This workshop seeks to break away from the utopian public discourse of the Internets as a-historical and completely dis-attached from existing technology ecologies in the country. This knowledge cluster intends to produce frameworks that help us contextualize the contemporary internet policy, discourse and practice within larger geo-political and socio-historical flows and continuities in Modern India. The first cluster chartsdifferent pre-histories of the Internets, mapping the continuities and ruptures through philosophy of techno-science, archiving practices, and electronifcation of governments,to develop new technology-society perspectives.
Paradigms of Practice:One of the biggest concerns about Internet studies in India and other similar developed contexts is the object oriented approach that looks largely at specific usages, access, infrastructure, etc. However, it is necessary to understand that the Internet is not merely a tool or a gadget. The growth of Internets produces systemic changes at the level of process and thought. The technologies often get appropriated for governance both by the state and the civil society, producing new processes and dissonances which need to be charted. The second cluster looks at certain contemporary processes that the digital and Internet technologies change drastically in order to recalibrate the relationship between the state, the market and the citizen.
Feet on the Ground: The third cluster looks at contemporary practices of the Internet to understand the recent histories of movements, activism and cultural practices online. It offers an innovative way of understanding the physical objects and bodies that undergo dramatic transitions as digital technologies become pervasive, persuasive and ubiquitous. It draws upon historical discourse, everyday practices and cultural performances to form new ways of formulating and articulating the shapes and forms of social and cultural structures.

Workshop Outcomes

The participants are expected to engage with issue of Internet and it various systemic processes through their own disciplinary interests. Apart from lectures and orientation sessions, the participants will actively work on their own project ideas during the period in groups and will be guided by experts. The final outcome of the workshops would be curriculum for undergraduate and graduate teaching space of various disciplines in the country.

Participation Guidelines

LOCATING INTERNETS is now accepting submissions from interested participants in the following format:

Name:
Institutional affiliation and title:
Address:
Email address:
Phone number:
A brief resume of work experience (max. 350 words)
Statement of interest (max. 350 words)
Key concerns you want to address in the Internet and Society field (max. 350 words)
Identification with one Knowledge-cluster of the workshop and a proposal for integrating it in your research/teaching practice (max. 500 words)
Current interface with technologies in your pedagogic practices (max. 350 words)
Additional information or relevant hyperlinks you might want to add (Max. 10 lines)

Notes:

Submissions will be accepted only from participants in India, as attachments in .doc, .docx or .odt formats at locatingInternets@cis-india.org
Submissions made beyond 26th July 2011 may not be considered for participation.
Submissions will be scrutinized by the organisers and selected participants will be informed by the 30th July 2011, about their participation.
Selected participants will be required to make their own travel arrangements to the workshop. A 2nd A.C. train return fare will be reimbursed to the participants. Shared accommodation and selected meals will be provided at the workshop.
A limited number of air-fare reimbursements will be available to participants in extraordinary circumstances. All travel support is only available for domestic travel in the country.

Chairs: Nishant Shah, Director-Research, Centre for Internet and Society Bangalore;

Pratyush Shankar, Associate Professor & Head of Undergraduate Program, Faculty of Architecture, CEPT University

Supported by: Kusuma Foundation, Hyderabad

Experts:Anja Kovacs, Arun Menon, Asha Achuthan, Ashish Rajadhykasha, Aparna Balachandran, Namita Malhotra, Nithin Manayath, Nithya Vasudevan, Pratyush Shankar, Rochelle Pinto and Zainab Bawa

For more details visit https://cis-india.org/research/conferences/conference-blogs/workshop

NTP 2011 Objective: Broadband

Shyam Ponappa — 2012-07-26T10:09:17Z

The Indian government has to choose between accessible, affordable services and short-term revenue, writes Shyam Ponappa in this article published in the Business Standard on June 2, 2011.

Apart from the scams, confused ideas are roiling India’s telecom sector. One instance is the finance ministry urging spectrum auctions to collect Rs 30,000 crore to help bridge the fiscal deficit. Another is the Ashok Chawla committee recommending spectrum auctions for transparency, making transparency the criterion for managing spectrum. The committee apparently does not mention the disastrous US auction, and attributes the UK fiasco to extraneous reasons; presumably, they knew the facts. Such issues need logical and systematic remedies. Otherwise, the success of the telecom sector will degenerate into yet another failure.

Objectives: the transaction should be structured in the public interest;
A life-cycle analysis of costs and benefits, and not just windfall revenues (since short-term cash drives the finance ministry’s concerns, it is important for the ministry and the government to step back and consider alternatives, such as the sale of BSNL’s vast real estate. If the goal is ubiquitous and affordable broadband, this would be much less damaging to the public interest than spectrum auctions); and
End-to-end solutions are required from an integrated systems perspective.

The New Telecom Policy ’11

For the New Telecom Policy 2011 (NTP ’11), the first requirement is to define convergent goals. We could take a leaf from countries with excellent broadband that built high-quality next generation networks. While the US and UK have strong initiatives, Japan, Sweden, South Korea and Finland have highly rated broadband. Australia and Singapore are now building next-generation networks. Both are common-access, open-to-all service providers.

Spectrum Management

In India we must begin with unravelling the mess of spectrum management. There are two separate skeins. Legacy issues of irregularities and scams form one stream, to be dealt with by the process of law. On the other hand, policies for next-generation networks need a process of stakeholder workouts to deliver services. Broadly, there are two ways of approaching spectrum management. One is to allocate specified bands for exclusive use, as was customary until now. An alternative is to create a common spectrum pool for use by all service providers. In other words, any provider can dynamically access spectrum for carrying voice, image and/or data. This method of dynamic spectrum access is now feasible, and the US is starting off with TV white space. The Federal Communications Commission has appointed nine companies including Spectrum Bridge and Google as database administrators; a tenth, Microsoft, is under consideration. India could start out on this if the government chooses the objective of accessible and affordable services.

Network vs Revenue

The choice is between building/configuring a high-quality, least-cost network and high short-term government collections. Over a longer period, a restrained approach emphasising networks and services is likely to be superior to aggressive government fees, as we found with NTP ’99 — revenue sharing resulted in explosive growth together with higher collections than the amount foregone from licence fees (see data from the Telecom Regulatory Authority of India and the Comptroller and Auditor General2).

How can the government evaluate this trade-off? The diagram below outlines alternative approaches to spectrum allocation and the likely outcomes. The outcomes should be evaluated as public interest costs and benefits.

The first step is to choose between exclusive spectrum use and common access. Exclusive use entails allocation through auctions; methods like first come, first served (FCFS); or “beauty contests”, for example, the evaluation of stipulated criteria such as technology, financial capacity and so on. Auctions are transparent. Common access, too, is completely transparent, provided the usage and payment systems have integrity.

If there are few operators (three or four), each can be allocated 20 MHz or more for exclusive use. In such circumstances, the relative merits are not obvious. However, in an emerging economy like India – without a ubiquitous network and with too little spectrum distributed among many operators – the logical choice for efficient spectrum management is common access.

Auctions often lead to service deprivation because of high costs (the “winner’s curse”). However, there are exceptions, where bidding is kept reasonable, as in Finland, or France because of its timing, after the fiasco of the European auctions. The other alternatives, FCFS or beauty contests, can result in low or high costs depending on government policies. High fees ratchet up costs with windfall gains to government in the short term, but users are deprived of these funds for networks and services. For example, in India, while the government collected nearly Rs 1,03,000 crore for 3G and broadband wireless access auctions, new facilities and services have been slow. Instead, this spectrum is largely used to support 2G users.

Low fees would have improved the odds of high-quality and low-cost facilities, affordable pricing, and better coverage. The government, however, would have lost its short-term windfall gains.

Once the government sets the objective of affordable, high-quality services, the next steps will be:

Spectrum allocation and management

The decision criteria are:

Technology: The rationale for optimal channel width is that with lower capital cost there is greater throughput with a 20 MHz band than with several smaller bands.
Economics: The capital cost of shared facilities through common access is far lower than if each operator invested in separate access networks.
Practical results: High-quality broadband in countries like Japan, Sweden and South Korea was built without spectrum auctions.
Carbon footprint and resources: Both are minimised with shared facilities, such as towers and equipment.

These reasons make common spectrum the logical choice, as against auctions for exclusive allocations.

Common network

A common network is, therefore, a logical and environmentally sound choice. The question is how best to own and operate it.

Notes

E.g. see: "Winner’s Curse", Chris Anderson, Wired, May ’02:http://www.wired.com/wired/archive/10.05/change.html
Trai’s estimate of foregone revenues by March ’07: under Rs 20,000 crore: “Indicators for Telecom Growth”, Trai, ’05: http://www.trai.gov.in/trai/upload/StudyPapers/2/ir30june.pdf
Revenue share collections by March ’07: Rs 40,000 crore; by March ’10: Rs 80,000 crore: "Performance Audit Report on the Department of Telecommunications, Ministry of Communications and Information Technology", http://saiindia.gov.in/cag/union-audit/report-no-19-performance-audit-issue-licences-and-allocation-2g-spectrum-department-tele

Read the original here

For more details visit https://cis-india.org/telecom/blog/ntp-2011-objective

Comments on the draft National Data Sharing and Accessibility Policy

pranesh — 2011-08-24T06:32:55Z

A draft of the 'National Data Sharing and Accessibility Policy', which some hope will be the open data policy of India, was made available for public comments in early May. This is what the Centre for Internet and Society submitted.

These are the comments that we at the Centre for Internet and Society submitted to the National Spatial Data Infrastructure on the draft National Data Sharing and Accessibility Policy.

Comments on the National Data Sharing and Accessibility Policy by the Centre for Internet and Society

We would like to begin by noting our appreciation for the forward-thinking nature of the government that is displayed by its pursuit of a policy on sharing of governmental data and enabling its use by citizens. We believe such a policy is a necessity in all administratively and technologically mature democracies. In particular, we applaud the efforts to make this applicable through a negative list of data that shall not be shared rather than a positive list of data that shall be shared, hence making sharing the default position. However, we believe that there are many ways in which this policy can be made even better than it already is.

1. Name

We believe that nomenclature of the policy must accurately reflect both the content of the policy as well as prevailing usage of terms. Given that 'accessibility' is generally used to mean accessibility for persons with disabilities, it is advisable to change the name of the policy.

Recommendation:

A. We would recommend calling this the "National Open Data Policy" to reflect the nomenclature already established for similar policies in other nations like the UK. In the alternative, it could be called a "National Public Sector Information Reuse Policy". If neither of those are acceptable, then it could be re-titled the "National Data Sharing and Access Policy".

2. Scope and Enforceability

It is unclear from the policy what all departments it covers, and whether it is enforceable.

Recommendation:

A. This policy should cover the same scope as the Right to Information (RTI) Act: all 'public authorities' as defined under the RTI Act should be covered by this policy.

B. Its enforceability should be made clear by including provisions on consequences of non-compliance.

3. Categorization

The rationale for the three-fold categorization is unclear. In particular, it is unclear why the category of 'registered access' exists, and on what basis the categorization into 'open access' and 'registered access' is to be done. If the purpose of registration is to track usage, there are many better ways of doing so without requiring registration.

Recommendation:

A. Having three categories of:

Open data
Partially restricted data
Restricted data

B. Data that is classified as non-shareable (as per a reading of s.8 and s.9 of RTI Act as informed by the decisions of the Central Information Commission) should be classified as ‘restricted’.

C. The rationale for classifying data as 'open' or 'partially restricted' should be how the data collection body is funded. If it depends primarily on public funds, then the data it outputs should necessarily be made fully open. If it is funded primarily through private fees, then the data may be classified as 'partially restricted'. 'Partially restricted' data may be restricted for non-commercial usage, with registration and/or a licence being required for commercial usage.

4. Licence

No licence has been prescribed in the policy for the data. Despite India not allowing for database rights, it still allows for copyright over original literary works, which includes original databases. All governmental works are copyrighted by default in India, just as they are in the UK. To ensure that this policy goes beyond merely providing access to data to ensure that people are able to use that data, it must provide for a conducive copyright licence.

Recommendation:

A. The licence that has been created by the UK government (another country in which all governmental works are copyrighted by default) may be referred to: http://www.nationalarchives.gov.uk/doc/open-government-licence/

B. However, the UK needed to draft its own licence because the concept of database rights are recognized in the EU, which is not an issue here in India. Thus, it would be preferable to use the Open Data Commons - Attribution licence:

http://www.opendatacommons.org/licenses/by/

The UK licence is compatible with both the above-mentioned licence as well as with the Creative Commons - Attribution licence, and includes many aspects that are common with Indian law, e.g., bits on usage of governmental emblems, etc.

5. Integrity of the data

Currently, there is no way of ensuring that the data that is put out by the data provider is indeed the data that has been downloaded by a citizen.

Recommendation:

It is imperative to require data providers to provide integrity checks (via an MD5 hash of the data files, for instance) to ensure that technological corruption of the data can be detected.

6. Authenticity of the data

Currently, there is no way of ensuring that the data that is put out by the data provider indeed comes from the data provider.

Recommendation:

It is preferable to require data providers to authenticate the data by using a digital signature.

7. Archival and versioning

The policy is silent on how long data must be made available.

Recommendation:

There must be a system of archival that is prescribed to enable citizens to access older data. Further, a versioning and nomenclature system is required alongside the metadata to ensure that citizens know the period that the data pertains to, and have access to the latest data by default.

8. Open standards

While the document does mention standards-compliance, it is preferable to require open standards to the greatest extent possible, and require that the data that is put out be compliant with the Interoperability Framework for e-Governance (IFEG) that the government is currently in the process of drafting and finalizing.

Recommendation:

A. The policy should reference the National Open Standards Policy that was finalised by the Department of Information Technology in November 2010, as well as to the IFEG.

B. The data should be made available, insofar as possible, in structured documents with semantic markup, which allows for intelligent querying of the content of the document itself. Before settling upon a usage-specific semantic markup schema, well-established XML schemas should be examined for their suitability and used wherever appropriate. It must be ensured that the metadata are also in a standardized and documented format.

9. Citizen interaction

One of the most notable failings of other governments' data stores has been the fact that they don't have adequate interaction with the citizen projects that emerge from that data. For instance, it is sometimes seen that citizens may point out flaws in the data put out by the government. At other times, citizens may create very useful and interesting projects on the basis of the data made public by the government.

Recommendation:

A. The government's primary datastore (data.gov.in) should catalogue such citizen projects, including open and documented APIs that the have been made available for easy access to that data.

B. Additionally the primary datastore should act as a conduit for citizen's comments and corrections to the data provider. Data providers should be required to take efforts to keep the data up-to-date.

C. Multiple forms of access should preferably be provided to data, to allow non-technical users interactive use of the data through the Web.

10. Principles, including 'Protection of Intellectual Property'

It is unclear why ‘protection of intellectual property’ is one of the guiding principles of this policy. Only those ideals which are promoted by this policy should be designated as ‘principles’. This policy, insofar as we can see, has no relation whatsoever with protection of intellectual property. The government is not seeking to enforce copyright over the data through this policy. Indeed, it is seeking to encourage the use of public data. Indeed, the RTI Act makes it clear in s.9 that government copyright shall not act as a barrier to access to information.

Given that, it makes no sense to include ‘protection of intellectual property’ amongst the principles guiding this policy. Further, there are some other principles that may be removed without affecting the purpose or aim of this document: ‘legal conformity’ (this is a given since a policy wouldn’t wish to violate laws); ‘formal responsibility’ (‘accountability’ encapsulates this); ‘professionalism’ (‘accountability’ encapsulates this); ‘security’ (this policy isn’t about promoting security, though it needs to take into account security concerns).

Recommendation:

A. Remove ‘protection of intellectual property’, ‘legal conformity’, ‘formal responsibility’, ‘professionalism’, and ‘security’ from the list of principles in para 1.2.

For more details visit https://cis-india.org/openness/blog-old/draft-ndsap-comments

Your cyber space is a hackers paradise

praskrishna — 2011-08-23T00:58:21Z

It Looks like hackers are having a ball targeting all kinds of websites — gaming, news, government, personal email and even those run by terror networks, writes Shayan Ghosh. The article was published in Mail Today on June 6, 2011.

After Sony PlayStation Network and Gmail breaches this week, the latest is an attack on Sony Pictures.

The hackers who broke into the Sony Pictures website have collected private information such as passwords and email identities.

"A group of criminal hackers known as LulzSec claimed to have breached some of our websites," CEO of Sony Pictures Entertainment Michael Lynton said.

LulzSec, involved in the hacking of several leading US media firms last month, however, has another story to tell. The group blamed Sony Pictures for carelessness.

"Every bit of data we took wasnt encrypted. Sony stored over 10 lakh passwords of its customers in plaintext, which means it is just a matter of taking it." "We broke into SonyPictures. com and compromised over 10 lakh users personal information, including passwords, email addresses, home addresses, dates of birth, and all Sony data associated with their accounts.

Among other things, we also compromised all administration details of Sony Pictures ( including passwords) along with 75,000 music codes and 3.5 million coupons", the group said in a post on Pastebin. com . Google mail, too, was breached this week and the hackers gained access to email accounts of hundreds of people, including senior US government officials and journalists. Google confirmed that Gmail accounts were hacked." We recently uncovered a campaign to collect user passwords, likely through phishing,” the search, cloud and net tech giant said on its blog.

Asked about reports that Gmail accounts of some Indian diplomats based in China had been hacked, Google declined to comment, saying it had no data of any specific people whose accounts have been hacked.

But the company pointed fingers at China.

"This campaign, which appears to originate from Jinan in China, affected what seem to be the personal Gmail accounts of hundreds of users, including senior US government officials, Chinese political activists, officials in several Asian countries ( predominantly South Korea), military personnel and journalists, among others," a posting on the companys official blog said.

Indian experts, too, blame Chinese hackers. "China poses a serious threat to our national security as these hacking issues dont just seem to stop," Ahmedabadbased cybercrime consultant Sunny Vaghela said.

The hackers probably targeted Gmail because of the number of users they have, Vaghela added.

All regimes have now started implementing surveillance mechanisms on the Internet. This is a disturbing trend all over the world.

China has supremacy on it mainly because they are an early adopter of Internet surveillance and content filtering mechanisms,” a software consultant based in Bangalore, Anivar Aravind, said.

"Its become more about proving a point. Hackers want to tell people that I can hack into your system and show its vulnerability," Center for Internet and Society director of research in Bangalore Nishant Shah said.

But LulzSec has its own logic: "Our goal here is not to come across as master hackers… Why do you put such faith in a company that allows itself to become open to these simple attacks?"

Online Safety Measures

Secure your Email:

Change passwords often
Use the Gmail feature to check your “ last account activity”. It shows the IP address ( denoting a specific computer) used to access your email
Do not open unknown email attachments
Do not store sensitive and personal data in email accounts

Things to Avoid

Do not visit unknown sites; Use different passwords for different accounts
Do not divulge credit card numbers over emails or on social networks
Keep track of your credit/ debit card account
For online transactions use encrypted websites. Look for SSL certificate or padlock icon

Read the original published by Mail Today here

For more details visit https://cis-india.org/news/cyber-space-hackers-paradise

Centre for Internet and Society

Consumer Privacy in e-Commerce

What is Consumer Privacy?

Breach of Privacy in Information Collection

Challenges Posed by Protection of Consumer Privacy

Conclusion

UID: The World’s Largest Biometric Database

People are Knowledge – Experimenting with Oral Citations on Wikipedia

The Problem

Oral Citations as a Possible Solution

The Experiment

The Pitfalls

Openness

Key Works

Publications

Film

Submissions

Workshops

Opening Government: A Guide to Best Practice in Transparency, Accountability and Civic Engagement across the Public Sector

Open Government Partnership

'Opening Government' report

Chapters and Contributing Authors

Privacy Matters, Guwahati — Event Report

Event Sessions

Privacy and the RTI

Privacy and Security/Law Enforcement in the North East of India

Privacy and the UID

Conclusion

Privacy as a Fundamental Right

Privacy & Media Law

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Constitutional Framework of Privacy

International Conventions

Public Person

Safeguarding Identity of Children

Safeguarding Identity of Rape Victims

Trial by Media & Media Victimisation

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International Law on Media & Privacy Ethics

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RTI and Third Party Information: What Constitutes the Private and Public?

June 2011 Bulletin

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