Centre for Internet and Society

A beauty’s blog creates furore

praskrishna — 2012-04-11T03:50:47Z

Her first Tamil poetry anthology Otraiyilaiyena (As a single leaf) saw three editions and the second one Ulagin Azhagiya Muthal Penn (The first beautiful woman in the world) invited mixed reactions like Iyal Poetry Award and a call for a ban by Hindu Makkal Katchi. Parathaiyarul Raani (Queen of sluts) her third collection was a reaction to all the moral policing.

Lakshmi Krupa's article was published in Deccan Chronicle on April 10, 2012

While her film Sengadal The Dead Sea was stopped from being screened to the public, until the Supreme Court’s Appellate tribunal intervened with regional censor board for the film clearance, groups like the Makkal Kalai Ilakiya Kazhagam attacked her beliefs. Adding to this list is the latest revelation that the Principal Secretary of IT Department of the Tamil Nadu government requested that her blog be blocked along with a host of others.

In a text sent from A.K. Kaushik, Additional Director & CPIO Cyber Laws & E-Security in response to an RTI petition on Website Blocking, it was reported that Leena’s blog http://ulaginazhagiyamuthalpenn.blogspot.com was requested to be blocked on 21.07.2010 by the Principal Secretary, IT Department.

This recent revelation has led to an outrage over the fact that artists and activists like Leena have had to constantly knock on the doors of the legal system to exercise the most basic of their rights. In an interview from London where she is currently the Charles Wallace Visiting Scholar at the University of London, Leena says, “Center for Internet and Society in Bengaluru that works towards upholding Civil Liberties Online, had obtained a list of all websites that were sought to be blocked by Governmental authorities with the use of Right to Information Act.

They sent me all the details on how my blog was one amongst them as the Principal Secretary, IT Department, Govt of TN had asked for it to be blocked. As the Internet’s role in free speech becomes increasingly prevalent, tactics to control the Internet are growing more refined each year. Methods of accessing private data and censoring content vary between countries, but all maintain an element of oppression. We, who are concerned about civil liberties should wake up to the secret missions of our government on Internet Censorship and protect freedom of speech online.”

Leena’s blog has been in the center of controversies before too. “Hindu Makkal Katchi, the right wing moral police lodged a police complaint to ban my poetry collections and ban my blog ulaginazhagiyamuthalpenn. blogspot.com. They went to every possible media house and were making threat calls and there were discussions on the alleged obscenity in my poems. They even wanted the Iyal International Poetry Prize and Sirpi Literary Awards to be revoked.”

Leena’s poetry challenges fanatic minds. “My poetry has a feminist agenda and it is just not about equal rights for women. It is a socialist, anti-institutional political movement which calls for women to break the code, destroy capitalism, live their sexuality and witch hunt every possible patriarchal design. I am not amused about the fact that my poetry gave jitters to ultra blasphemous right and left wingers,” she concludes.

For more details visit https://cis-india.org/news/beauty-blog-creates-furore

Intermediary Liability in India: Chilling Effects on Free Expression on the Internet 2011

Rishabh Dara — 2012-04-21T18:05:58Z

Intermediaries are widely recognised as essential cogs in the wheel of exercising the right to freedom of expression on the Internet. Most major jurisdictions around the world have introduced legislations for limiting intermediary liability in order to ensure that this wheel does not stop spinning. With the 2008 amendment of the Information Technology Act 2000, India joined the bandwagon and established a ‘notice and takedown’ regime for limiting intermediary liability.

On the 11th of April 2011, the Government of India notified the Information Technology (Intermediaries Guidelines) Rules 2011 that prescribe, amongst other things, guidelines for administration of takedowns by intermediaries. The Rules have been criticised extensively by both national and international media. The media has projected that the Rules, contrary to the objective of promoting free expression, seem to encourage privately administered injunctions to censor and chill free expression. On the other hand, the Government has responded through press releases and assured that the Rules in their current form do not violate the principle of freedom of expression or allow the government to regulate content.

This study has been conducted with the objective of determining whether the criteria, procedure and safeguards for administration of the takedowns as prescribed by the Rules lead to a chilling effect on online free expression. In the course of the study, takedown notices were sent to a sample comprising of 7 prominent intermediaries and their response to the notices was documented. Different policy factors were permuted in the takedown notices in order to understand at what points in the process of takedown, free expression is being chilled.

The results of the paper clearly demonstrate that the Rules indeed have a chilling effect on free expression. Specifically, the Rules create uncertainty in the criteria and procedure for administering the takedown thereby inducing the intermediaries to err on the side of caution and over-comply with takedown notices in order to limit their liability and as a result suppress legitimate expressions. Additionally, the Rules do not establish sufficient safeguards to prevent misuse and abuse of the takedown process to suppress legitimate expressions.

Of the 7 intermediaries to which takedown notices were sent, 6 intermediaries over-complied with the notices, despite the apparent flaws in them. From the responses to the takedown notices, it can be reasonably presumed that not all intermediaries have sufficient legal competence or resources to deliberate on the legality of an expression. Even if such intermediary has sufficient legal competence, it has a tendency to prioritise the allocation of its legal resources according to the commercial importance of impugned expressions. Further, if such subjective determination is required to be done in a limited timeframe and in the absence of adequate facts and circumstances, the intermediary mechanically (without application of mind or proper judgement) complies with the takedown notice.

The results also demonstrate that the Rules are procedurally flawed as they ignore all elements of natural justice. The third party provider of information whose expression is censored is not informed about the takedown, let alone given an opportunity to be heard before or after the takedown. There is also no recourse to have the removed information put-back or restored. The intermediary is under no obligation to provide a reasoned decision for rejecting or accepting a takedown notice. The Rules in their current form clearly tilt the takedown mechanism in favour of the complainant and adversely against the creator of expression.

The research highlights the need to:

increase the safeguards against misuse of the privately administered takedown regime;

reduce the uncertainty in the criteria for administering the takedown;

reduce the uncertainty in the procedure for administering the takedown;

include various elements of natural justice in the procedure for administering the takedown; and

replace the requirement for subjective legal determination by intermediaries with an objective test.

This executive summary is a research output of the Google Policy Fellowship 2011. The Centre for Internet & Society was the host organization. For the entire paper along with references, please write to rishabhdara@gmail.com or sunil@cis-india.org

For more details visit https://cis-india.org/internet-governance/intermediary-liability-in-india

Statutory Motion Against Intermediary Guidelines Rules

pranesh — 2012-04-03T09:35:41Z

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

Motion to Annul Intermediary Guidelines Rules

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

The motion reads:

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

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

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

Fundamental Problems with Intermediary Guidelines Rules

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

Shifting blame.

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

No chance to defend.

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

Lack of transparency

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

No differentiation between intermediaries.

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

No proportionality.

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

Vague and unconstitutional requirements.

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

Allows private censorship.

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

Presumption of illegality.

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

Government censorship, not 'self-regulation'.

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

Problems Noted Early

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

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

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

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

Save Your Voice — A movement against Web censorship

praskrishna — 2012-03-13T11:44:27Z

‘Save Your Voice (SYV)’ is a movement against Web censorship and its main demand is the repealing of the Information Technology Act, said SYV founders, Aseem Trividi, a cartoonist, and Alok Dixit, a journalist, on Monday.

DNA Correspondent covered a press conference held on March 12, 2012 in Bangalore. Sunil Abraham was quoted in the story.

Trivedi’s website — www.cartoonistagainstcorruption.com — was banned during Anna Hazare’s movement. Trivedi said: “Mumbai police banned the website without any prior notice and cases of ‘treason’ were also filed. The website was banned without a judicial order and I haven’t received an explanation about the crime committed.”

Sunil Abraham, executive director, Centre for Internet and Society, said the private sector does not protect the freedom of expression.

Read the original published by Daily News & Analysis on March 13, 2012

For more details visit https://cis-india.org/news/save-your-voice-2014-a-movement-against-web-censorship

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

pranesh — 2012-02-20T18:02:44Z

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

Suit No 505/11

Mufti Aijaz Arshad Qasmi
vs.
Facebook etc.

20.12.11

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

Present: Plaintiff in person with Ld. Counsel.

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

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

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

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

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

Put up for further proceedings on 24.12.11.

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

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

India won't censor social media: Telecom Minister

praskrishna — 2012-03-01T07:15:29Z

India does not intend to censor online social networks such as Facebook, a minister said Tuesday, but he demanded that they obey the same rules governing the press and other media. The article by AFP was published in the Tribune on February 14, 2012.

“I never wanted to censor social media and no government wants to do so. But like the print and electronic media, they have to obey the laws of the country.” He held a number of meetings with leading Internet companies late last year in which he asked about the possibility of checking content before it is posted online by users.

The minister was said to have shown Internet executives examples of obscene images found on the Internet that risked offending Muslims or defaming politicians, including the boss of the ruling Congress party, Sonia Gandhi. “The media reported I had said I wanted to pre-screen the content on social media. I have never even heard the word pre-screen,” he told the summit.

Since these meetings, 19 Internet firms including Google, Yahoo! and Facebook have been targeted in criminal and civil cases lodged in lower courts, holding them responsible for content posted by users of their platforms. The government has given its sanction for the firms to be tried for serious crimes such as fomenting religious hatred and spreading social discord — offences that could land company directors in prison.

“All I want is that they (social media) should follow the laws of the land. Social media must not consider itself to be above that,” Sibal said. But Internet privacy groups say social media sites may not have the resources to screen obscene material that violates local laws posted on the Internet. Local laws prohibit the sale or distribution of obscene material as well as those that can hurt religious sentiments in overwhelmingly-Hindu India.

“It is just not humanly possible to pre-censor content and Sibal knows that very well,” said Rajan Gandhi, founder of a New Delhi-based advocacy group Society in Action. Pranesh Prakash of the Bangalore-based Centre for Internet and Society said he was “glad Sibal does not believe in censorship and that companies operating in India should follow local laws.” “But on the other hand he has asked them to evolve new guidelines and actively monitor user content which is not legally sanctioned. This makes him look two-faced,” Prakash added.

Google and Facebook said earlier this month they had removed the allegedly offensive content used as evidence in the court cases.

The groups have appealed to the Delhi High Court asking for the cases against them to be quashed on the basis they cannot be held responsible for their clients’ actions. The comments of a judge hearing the case raised further fears that freedom of expression online could be restricted. “You must have a stringent check. Otherwise, like in China, we may pass orders banning all such websites,” the judge said at the January hearing. Facebook is banned in China and Google moved its operations out of the country in 2010 in protest at censorship laws there.

The debate about social networks mirrors a larger national dialogue about freedom of speech in the world’s biggest democracy following recent protests by religious groups. Indian-origin writer Salman Rushdie was prevented from speaking at a literature festival in Jaipur last month after Muslim groups protested against his presence over his allegedly blasphemous 1988 novel “The Satanic Verses.” A group led by author and journalist Nilanjana Roy organised public readings of banned literary works on Monday to protest against what it said were recent curbs on intellectual freedom.

The initiative, called “Flashreads for free speech”, was widely advertised on social networks including Twitter and Facebook.

Originally published by AFP and reproduced in the Tribune.

For more details visit https://cis-india.org/news/india-wont-censor-social-media

World Narrow Web

pranesh — 2012-03-27T16:00:24Z

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

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

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

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

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

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

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

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

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

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

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

The original article was published in the Indian Express

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

Sense and Censorship

sunil — 2012-01-31T06:15:38Z

The Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) bills, at the US House of Representatives and Senate, respectively, appear to enforce property rights, but are, in fact, trade bills. This article by Sunil Abraham was published in the Indian Express on 20 January 2012.

In developed countries like the US, intellectual property (IP) plays a dominant role in the economy, unlike in economies like India. Countries that have significant IP are keen to increase global and national enforcement activities, while countries with little domestic IP are keen to reduce outgoing royalties in the balance of payments and therefore, keen to expand alternatives, limitations and exceptions like copyleft licensing, compulsory/statutory licensing and fair dealing.

The loss of generic medicines, hardware based on open standards, public domain content, free and open source software, open access journal articles, etc will equally impoverish consumers in the US and in India. SOPA and PIPA, therefore, do not represent the will of the average American but rather the interests of the IP sector, which has tremendous influence in the Hill. There is one more layer of complication for policy-makers to consider as they work towards a compromise of interests in Internet governance — the tension between the old and the new. The incumbents — corporations with business models that have been rendered obsolete by technological developments — versus emerging actors who provide competing products and services, often with greater technological sophistication, higher quality, at a lower cost.

The US, in terms of policy and infrastructure, still controls the global Domain Name System (DNS) and consequently, post-SOPA/PIPA, can take unilateral trade action without worrying about national variations enabled by international law. These bills directly undermine the business models of many Indian companies — generic drug manufacturers like Ranbaxy, software service providers like Infosys, electronics manufacturers like Spice and players in many other sectors dominated by IP rights. So it is baffling that they have not added their voices to the global outcry.

SOPA and PIPA, if passed, will enable the US administration to take three-pronged action against IP infringers — seizure of domain names and DNS filtering, blocking of transactions by financial intermediaries and revocation of hosting by ISPs. While circumvention may still be possible, it will get increasingly laborious — something like the Great Firewall of China, but worse. Unfortunately, the implementation of these blunt policy instruments will require more and more public-funded surveillance and censorship.

The censorship potential of efforts like SOPA and PIPA may appeal to others, as autocratic and democratic regimes across the world have been keen to try technology-mediated social engineering — these efforts have been multiplied in the post-Arab Spring and Occupy Wall Street world. Organised religion, social conservatives and those who have been at the receiving end of free speech would all want to shut down platforms like WikiLeaks and political movements like Anonymous and the Pirate Party.

These are equally dismal times for Internet governance in India. Google, Facebook and 20-odd other intermediaries are trying to avoid jail time at the hands of a Delhi court. However, ever since the IT Act amendments were put in place three years back, digital activists have been requesting intermediaries to register their protests early and often, regarding draconian provisions in the statute and in the associated rules. Their silence is going to be very expensive for all of us. We cannot depend on the private sector alone to defend our constitutional rights. As yet unpublished research from CIS demonstrates that private intermediaries only bother with defending freedom of expression when it undermines their business interests. Working with an independent researcher, we conducted a policy sting operation — faulty take-down notices were served to seven intermediaries asking for legitimate content to be taken down. In six of those cases, the intermediaries over-complied, in one case deleting all comments on a news article instead of just those comments identified in the notice. The only take-down that was resisted was one claiming that sale of diapers was “harmful to minors” under the Indian IT Act (because they caused nappy rash). It is clear that the IT Act and its associated rules have already had a chilling effect on online participation by Indians.

Fortunately for us, during the previous parliamentary session — Jayant Chaudhary, Lok Sabha MP from the Rashtriya Lok Dal, asked for the revision of rules concerning intermediaries, cyber-cafes and reasonable security practices. The next Parliament session is the last opportunity for the House to reject these rules and intervene for a free Internet.

The writer is executive director of the Bangalore-based Centre for Internet and Society

Read the original published in the Indian Express

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

Twitter’s Censorship Move Aimed at Regaining China?

praskrishna — 2012-01-30T04:54:51Z

Twitter, the popular social networking site for micro-blogging, has announced it is open to content censorship and region-based filtering, if required by law. The service boasts nearly 300 million users from across the world. Vinod Yalburgi writes this in the International Business Times.

In a Twitter post - "Tweets Must Still Flow", the service's management has stated: "Starting today, we give ourselves the ability to reactively withhold content from users in a specific country, while keeping it available in the rest of the world."

Twitter's drastic move comes in the wake of recent U.S. government allegations against Internet sites like Google, Yahoo and Facebook, regarding the need to regulate and filter controversial user-generated content. Both Google and Facebook have made similar commitments.

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However, it must be seen if either of the three do follow through with those commitments.

Meanwhile, experts quoted in a report by The Times of India, where too social networking Web sites are coming under the scanner, suggest the lack of clarity in laws in countries like India means Twitter can only act reactively; the situation in Germany or France, for example, where laws about pro-Nazi propaganda are codified, they can act proactively.

Another post by Twitter speaks of a new feature that will allow the site's administrators to enable region-based selective content blocking, thereby allowing region-sensitive information to remain hidden from users in those areas. The post also cited the example of Germany and France: "Some countries differ so much from our ideas that we will not be able to exist there. Others restrict certain types of content, such as France or Germany, which ban pro-Nazi content."

There is also speculation that one reason for this decision could be Twitter's plans to re-enter the Chinese market, where the micro-blogging service has been banned since 2009. Incidentally, China boasts the largest number of Internet users in the world, at this moment.

The hope, for Twitter, must be the promise to block sensitive tweets (or those the Chinese government deems offensive) without affecting the global audience. Twitter has rarely resorted to such censorship practices. However, the company does not seem unwilling to shy away from that responsibility.

"...if and when we are required to withhold a tweet in a specific country, we will attempt to let the user know, and we will clearly mark when the content has been withheld," the company's statement said.

"The region-specific blocking was already being used on video hosting websites like Youtube and Hulu, where due to the wishes of copyright owners many videos are not available in India. Twitter is extending this technology to its tweets," said Pranesh Prakash at the Centre for Internet and Society in Bangalore, India.

"We have to take care of the sensibilities of our people. Cultural ethos is very important to us," Kapil Sibal, the Indian Telecom Minister, said last month, during his request to both Google and Facebook to filter offensive content.

The trend of social networking Web sites resisting censorship seems a thing of the past. Prakash recalls an incident in 2011, when the U.S. government sought detailed information about a Twitter user, only to be challenged, by the Internet company, in court.

Read the original published by International Business Times on 28 January 2012. Pranesh Prakash was quoted in it.

For more details visit https://cis-india.org/news/twitter2019s-censorship-move-aimed-at-regaining-china

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

pranesh — 2012-02-21T11:50:56Z

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

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

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

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

E-Book Bans Cannot Be Challenged

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

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

E-Book Censors Are Faceless

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

Challenging Invisible Censorship

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

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

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

This was reproduced in Outlook Magazine on 27 January 2012

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

Invisible Censorship: How the Government Censors Without Being Seen

pranesh — 2012-01-04T08:59:14Z

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

Power of the Internet and Freedom of Expression

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

Intermediary Guidelines Rules

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

Excessive Censoring by Internet Companies

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

Government Has Powers to Censor and Already Censors

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

'Self-Regulation': Undetectable Censorship

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

Backdoor Censorship through Copyright Act

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

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

The article was translated to Marathi and featured in Lokmat

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

Press Coverage of Online Censorship Row

pranesh — 2011-12-08T11:31:30Z

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

Monday, December 5, 2011

India Asks Google, Facebook to Screen Content | Heather Timmons (New York Times, India Ink)

Tuesday, December 6, 2011

Sibal warns social websites over objectionable content | Sandeep Joshi (The Hindu)

Hate speech must be blocked, says Sibal | Praveen Swami & Sujay Mehdudia (The Hindu)

Won't remove material just because it's controversial: Google | (Press Trust of India)

Any Normal Human Being Would Be Offended | Heather Timmons (New York Times, India Ink)

After Sibal, Omar too feels some online content inflammatory | (Press Trust of India)

Online uproar as India seeks social media screening | Devidutta Tripathy and Anurag Kotoky (Reuters)

Kapil Sibal for content screening: Facebook, Twitter full of posts against censorship | (IANS)

India May Overstep Its Own Laws in Demanding Content Filtering | John Ribeiro (IDG)

Kapil Sibal warns websites: Mixed response from MPs | (Press Trust of India)

Websites must clean up content, says Sibal | (NewsX)

Kapil Sibal warns websites; Google says won't remove material just because it's controversial | Press Trust of India

Censorship By Any Other Name... | Yamini Lohia (Mint)

Kapil Sibal: We have to take care of sensibility of our people | Associated Press

Kapil Sibal gets backing of Digvijaya Singh over social media screening | Press Trust of India

Sibal Gets What He Set Out To Censor | (Hindustan Times, Agencies)

Objectionable Matter Will Be Removed, Censorship Not in Picture Yet: Kapil Sibal | Amar Kapadia (News Tonight)

Wednesday, December 7, 2011

Kapil Sibal Doesn't Understand the Internet | Shivam Vij (India Today)

'Chilling' Impact of India's April Internet Rules | Heather Timmons (New York Times, India Ink)

Screening, not censorship, says Sibal | (Business Standard)

Chandni Chowk to China | Salil Tripathi (Mint)

Kapil Sibal vs the internet | Sandipan Deb (Mint)

No Need for Censorship of the Internet: Cyber Law Experts | (Times News Network)

Protest with flowers for Sibal | (The Hindu)

Kapil Sibal cannot screen this report | Team DNA, Blessy Chettiar & Renuka Rao (Daily News and Analysis)

Kapil Sibal warns websites, but experts say prescreening of user content not practical | (Reuters)

Sibal's Remarks Brought Disgust | Hitesh Mehta (News Tonight)

BJP backs mechanism to curb objectionable content on websites | (The Hindu)

Move to regulate networking sites should be discussed in Parliament: BJP | (Press Trust of India)

Sibal under attack in cyberspace | (Press Trust of India)

Kapil Sibal's web censorship: Indian govt wanted 358 items removed, says Google | (Press Trust of India)

Kapil Sibal gets BJP support but with rider | (Indo-Asian News Service)

Sibal's way of regulating web not okay, says BJP | (Indo-Asian News Service)

Censorship in Blasphemy's Clothings | Gautam Chikermane (Hindustan Times, Just Faith)

India wants Google, Facebook to screen content | Sharon Gaudin (Computer World)

Should we be taming social media? | Swati Prasad (ZDNet, Inside India)

Kapil Sibal gets lampooned for views on Web control | (Daily News and Analysis)

'We don't need no limitation' | Asha Prakash (Times of India)

Five reasons why India can't censor the internet | Prasanto K. Roy (Indo-Asian News Service)

We Are the Web | (Indian Express)

Thursday, December 8, 2011

Kapil Sibal under attack in cyberspace, (Press Trust of India)

Speak Up for Freedom | Pranesh Prakash (Indian Express)

Newswallah: Censorship | Neha Thirani (New York Times, India Ink)

No Question of Censoring the Internet, Says Sachin Pilot | (NDTV)

Mind Your Netiquette, or We'll Mind it for You | A.A.K. (The Economist)

Take Parliament's view to regulate social networking sites, BJP tells govt | (Times News Network)

India wanted 358 items removed | Priscilla Jebaraj (The Hindu)

Indian Government v Social Networking sites: Expert Views | (Bar & Bench News Network)

Can Government Muzzle Websites? | Priyanka Joshi & Piyali Mandal (Business Standard)

US concerned over internet curbs, sidesteps India move | (Indo-Asian News Service)

Why Internet Companies Are Upset with Kapil Sibal | (Rediff)

Why Censor Facebook When You Don't Censor Sunny Leone? | (Indo-Asian News Service)

Online content issue: Talks with India on, says U.S. | (Press Trust of India)

US calls for Internet freedom amid India plan | Agence France-Presse

For more details visit https://cis-india.org/internet-governance/blog/press-coverage-online-censorship

Online Pre-Censorship is Harmful and Impractical

pranesh — 2011-12-12T17:00:50Z

The Union Minister for Communications and Information Technology, Mr. Kapil Sibal wants Internet intermediaries to pre-censor content uploaded by their users. Pranesh Prakash takes issue with this and explains why this is a problem, even if the government's heart is in the right place. Further, he points out that now is the time to take action on the draconian IT Rules which are before the Parliament.

Mr. Sibal is a knowledgeable lawyer, and according to a senior lawyer friend of his with whom I spoke yesterday, greatly committed to ideals of freedom of speech. He would not lightly propose regulations that contravene Article 19(1)(a) [freedom of speech and expression] of our Constitution. Yet his recent proposals regarding controlling online speech seem unreasonable. My conclusion is that the minister has not properly grasped the way the Web works, is frustrated because of the arrogance of companies like Facebook, Google, Yahoo and Microsoft. And while he has his heart in the right place, his lack of knowledge of the Internet is leading him astray. The more important concern is the IT Rules that have been in force since April 2011.

Background

The New York Times scooped a story on Monday revealing that Mr. Sibal and the MCIT had been in touch with Facebook, Google, Yahoo, and Microsoft, asking them to set up a system whereby they would manually filter user-generated content before it is published, to ensure that objectionable speech does not get published. Specifically, he mentioned content that hurt people's religious sentiments and content that Member of Parliament Shashi Tharoor described as 'vile' and capable of inciting riots as being problems. Lastly, Mr. Sibal defended this as not being "censorship" by the government, but "supervision" of user-generated content by the companies themselves.

Concerns

One need not give lectures on the benefits of free speech, and Mr. Sibal is clear that he does not wish to impinge upon it. So one need not point out that freedom of speech means nothing if not the freedom to offend (as long as no harm is caused). There can, of course, be reasonable limitations on freedom of speech as provided in Article 19 of the ICCPR and in Article 19(2) of our Constitution. My problem lies elsewhere.

Secrecy

It is unfortunate that the New York Times has to be given credit for Mr. Sibal addressing a press conference on this issue (and he admitted as much). What he is proposing is not enforcement of existing rules and regulations, but of a new restriction on online speech. This should have, in a democracy, been put out for wide-ranging public consultations first.

Making intermediaries responsible

The more fundamental disagreement is that over how the question of what should not be published should be decided, and how that decision should be and how that should be carried out, and who can be held liable for unlawful speech. I believe that "to make the intermediary liable for the user violating that code would, I think, not serve the larger interests of the market." Mr. Sibal said that in May this year in an interview with the Wall Street Journal. The intermediaries (that is, all persons and companies who transmit or host content on behalf of a third party), are but messengers just like a post office and do not exercise editorial control, unlike a newspaper. (By all means prosecute Facebook, Google, Yahoo, and Microsoft whenever they have created unlawful content, have exercised editorial control over unlawful content, have incited and encouraged unlawful activities, or know after a court order or the like that they are hosting illegal content and still do not remove it.) Newspapers have editors who can take responsibility for content published in the newspaper. They can afford to, because the number of articles in a newspaper is limited. YouTube, which has 48 hours of videos uploaded every minutes, cannot. One wag suggested that Mr. Sibal was not suggesting a means of censorship, but of employment generation and social welfare for censors and editors. To try and extend editorial duties to these 'intermediaries' by executive order or through 'forceful suggestions' to these companies cannot happen without amending s.79 of the Information Technology Act which ensures they are not to be held liable for their user's content: the users are. Internet speech has, to my knowledge, and to date, has never caused a riot in India. It is when it is translated into inflammatory speeches on the ground with megaphones that offensive speech, whether in books or on the Internet, actually become harmful, and those should be targeted instead. And the same laws that apply to offline speech already apply online. If such speech is inciting violence then the police can be contacted and a magistrate can take action. Indeed, Internet companies like Facebook, Google, etc., exercise self-regulation already (excessively and wrongly, I feel sometimes). Any person can flag any content on YouTube or Facebook as violating the site's terms of use. Indeed, even images of breast-feeding mothers have been removed from Facebook on the basis of such complaints. So it is mistaken to think that there is no self-regulation. In two recent cases, the High Courts of Bombay (Janhit Manch v. Union of India) and Madras (R. Karthikeyan v. Union of India) refused to direct the government and intermediaries to police online content, saying that places an excessive burden on freedom of speech.

IT Rules, 2011

In this regard, the IT Rules published in April 2011 are great offenders. While speech that is 'disparaging' (while not being defamatory) is not prohibited by any statute, yet intermediaries are required not to carry 'disparaging' speech, or speech to which the user has no right (how is this to be judged? do you have rights to the last joke that you forwarded?), or speech that promotes gambling (as the government of Sikkim does through the PlayWin lottery), and a myriad other kinds of speech that are not prohibited in print or on TV. Who is to judge whether something is 'disparaging'? The intermediary itself, on pain of being liable for prosecution if it is found have made the wrong decision. And any person may send a notice to an intermediary to 'disable' content, which has to be done within 36 hours if the intermediary doesn't want to be held liable. Worst of all, there is no requirement to inform the user whose content it is, nor to inform the public that the content is being removed. It just disappears, into a memory hole. It does not require a paranoid conspiracy theorist to see this as a grave threat to freedom of speech. Many human rights activists and lawyers have made a very strong case that the IT Rules on Intermediary Due Diligence are unconstitutional. Parliament still has an opportunity to reject these rules until the end of the 2012 budget session. Parliamentarians must act now to uphold their oaths to the Constitution.

For more details visit https://cis-india.org/internet-governance/online-pre-censorship-harmful-impractical

Comment by CIS at ACE on Presentation on French Charter on the Fight against Cyber-Counterfeiting

pranesh — 2011-12-01T11:59:45Z

The seventh session of the World Intellectual Property Organization's Advisory Committee on Enforcement is being held in Geneva on November 30 and December 1, 2011. Pranesh Prakash responded to a presentation by Prof. Pierre Sirinelli of the École de droit de la Sorbonne, Université Paris 1 on 'The French Charter on the Fight against Cyber-Counterfeiting of December 16, 2009' with this comment.

Thank you, Chair. I speak on behalf of the Centre for Internet and Society. First, I would like to congratulate you on your re-election.

And I would like to congratulate Prof. Sirenelli on his excellent presentation.

I would like to flag a few points, though:

One of the benefits of normal laws, as opposed to the soft/plastic laws, which he champions, is that normal laws are bound by procedures established by law, due process requirements, and principles of natural justice. Unfortunately, the soft/plastic laws, which in essence are private agreements, are not.
The report of the UN Special Rapporteur on the Freedom of Expression and Opinion made it clear in his report to the UN Human Rights Council that the Internet is now an intergral part of citizens exercising their right of freedom of speech under national constitutions and under the Universal Declaration of Human Rights. That report highlights that many initiatives on copyright infringement, including that of the French government with HADOPI and the UK, actually contravene the Universal Declaration of Human Rights
The right of privacy is also flagged by many as something that will have to be compromised if such private enforcement of copyright is encouraged.

I'd like to know Prof. Sirinelli's views on these three issues: due process, right of freedom of speech, and the right to privacy.

For more details visit https://cis-india.org/a2k/blogs/ace-7-french-charter-cis-comment

Analysis of DIT's Response to Second RTI on Website Blocking

pranesh — 2011-12-02T09:26:11Z

In this blog post, Pranesh Prakash briefly analyses the DIT's response to an RTI request on website blocking alongside the most recent edition of Google's Transparency Report, and what it tells us about the online censorship regime in India.

What the DIT's Response Tells Us, and What It Doesn't

We at the Centre for Internet and Society had sent in a right to information request to the Department of Information Technology (DIT) asking for more information about website blocking in India. The response we got from the DIT was illuminating in many ways. The following are the noteworthy points, in brief:

Six government officials, and one politician have so far made requests for 'disabling access' to certain online content under s.69A of the Information Technology (IT) Act.
68 individual items have been requested to be blocked, those being 64 websites (domain-level blocking), 1 sub-domain, and 3 specific web pages. Seemingly, none of these requests have been accepted.
The data provided by the government seemingly conflicts with the data released by the likes of Google (via its Transparency Report).
India's law enforcement agencies are circumventing the IT Act, the Indian Penal Code (IPC), and ultimately the Constitution, by not following proper procedure for removal of online content.
Either the DIT is not providing us all the relevant information on blocking, or is not following the law.

Conflicting Data on Censorship Requests

The latest Google Transparency Report, released on October 25, 2011, shows that there were 68 written requests (imaginably taking the form of forceful requests/orders) from Indian law enforcement agencies for removal of 358 items from Google's various. If you take the figures since January 2010, it adds up to over 765.

However, the official government statistics show only eight separate requests having been made to the DIT (which, under the IT Act, is the only authority that can order the blocking of online content), adding up to a total of 64 websites (domain-level), 1 sub-domain, and 3 specific web pages. Of these only 3 are for Google's services (2 for Blogger, and 1 for YouTube).

If classified according to presumable reason for seeking of the block, that would be 61 domains hosting adult content; 1 domain (tamil.net.in), 1 sub-domain (ulaginazhagiyamuthalpenn.blogspot.com), and 2 specific pages (video of a speech by Bal Thackeray on YouTube and Wikipedia page for Sukhbir Singh Badal) for political content; 1 for religious content (a blog post titled "Insults against Islam" in Malay); and 1 domain hosting online gambling (betfair.com). It is unclear for why one of the requests was made (topix.net).¹

Content Removal vs. Content Blocking

Section 69A of the IT Act provides the Central Government the power to "direct any agency of the Government or intermediary to block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource". The only person through whom this power can be exercised is the 'Designated Officer' (currently Dr. Gulshan Rai of the DIT), who in turn has to follow the procedure laid down in the rules drafted under s.69A ("Information Technology (Procedure and Safeguard for Blocking for Access of Information by Public) Rules, 2009", the 'Blocking Rules').

Because of this, we see everyone from the Secretary of the Public Law and Order Department of Tamil Nadu to the Joint Commissioner of Police of Mumbai and the State President of the Bharatiya Janata Minority Morcha approaching the Designated Officer for blocking of websites.

However, as the data from Google shows, there are many times more requests being sent to remove content. The only explanation for this is that an order to 'block for access... or cause to be blocked for access by the public' is taken to be different from an order for removal of content. Nothing in the IT Act, nor in the Blocking Rules actually address this issue.²

Thus, there is a possibility that the forcible removal of content is treated separately from blocking of content. That would mean that while blocking is regulated by the IT Act, forcible removal of content is not. Thus, it would seem that forcible removal of online content is happening without clear regulation or limits.³

Role of the Indian Penal Code and Code of Criminal Procedure

There are existing provisions in the Indian Penal Code that provide the government the power to censor book, pamphlets, and other material on varied grounds, including obscenity, causing of enmity between communities, etc. The police is provided powers to enforce such governmental orders. Section 95 of the Code of Criminal Procedure allows the State Government to declare (through an official notification) certain publications which seem to violate the Indian Penal Code as 'forfeited to the Government' and to issue search warrants for the same. After this the police can enforce that notification.

It is clear that this is not the case for any of the content removal requests that were sent to Google.

Police Are Defeating the Constitution and the IT Act

Therefore, it would seem that law enforcement agencies are operating outside the bounds set up under the Indian Penal Code, the Code of Criminal Procedure, as also the Information Technology Act, when they send requests for removal of content to companies like Google. While a company might comply with it because it appears to them to violate their own terms of service (which generally include a wide clause about content being in accordance with all local laws), community guidelines, etc., it would appear that it is not required under the law to do so if the order itself is not legal.

However, anecdotal evidence has it that most companies comply with such 'requests' even when they are not under any legal obligation to do so.

This way the intention of Parliament in enacting s.69A of the IT Act—to regulate government censorship of the Internet and bring it within the bounds laid down in the Constitution—is defeated.

DIT Either Evasive or Not Following Rules

The DIT did not provide answers on:

Whether any block ordered by the DIT has ever been revoked
On what basis DIT decides which intermediary (web host, ISP, etc.) to send the order of blocking to

It also provided the minutes for only one meeting⁴ of the committee that decides whether to carry out a block, when we had requested for minutes of all the meetings it has ever held. That committee (the Committee for Examination of Requests, constituted under Rule 8(4) of the Blocking Rules) has to consider every single item in every single request forwarded to the Designated Officer, and 68 items were sent to the Designated Officer in 6 requests. Quite clearly something doesn't add up. Either the Committee is not following the Blocking Rules or the DIT is not providing a full reply under the RTI Act.

A request was made to block http://www.topix.net, by the 'Commmissioner, Maharashtra State, Colaba, Mumbai—400001', presumably the Commissioner of State Intelligence Department of Maharashtra, whose office is located in Colaba. ↩
However, the Blocking Rules require the person or the hosting intermediary being contacted for a response. This provides the person/intermediary the opportunity to remove the content voluntarily or to oppose the request for blocking.

"Rule 8. Examination of request: (1) On receipt of request under rule 6, the Designated Officer shall make all reasonable efforts to identify the person or intermediary who has hosted the information or part thereof as well as the computer resource on which such information or part thereof is being hosted and where he is able to identify such person or intermediary and the computer resource hosting the information or part thereof which have been requested to be blocked for public access, he shall issue a notice by way of letters or fax or e-mail signed with electronic signatures to such person or intermediary in control of such computer resource to appear and submit their reply and clarifications if any, before the committee referred to in rule 7, at a specified date and time, which shall not be less than forty-eight hours from the time of receipt of such notice by such person or intermediary." ↩
While it is possible to imagine that the Indian Penal Code and the Code of Criminal Procedure lay down limits, it is clear from the Google Transparency Report that the requests from removal are not coming based only on court orders, but from the executive and the police. The police have no powers under the IPC or the CrPC to request removal of content without either a public notification issued by the State Government or a court order. ↩
The minutes of the meeting held on August 24, 2010, on the request for blocking of www.betfair.com were sent as 'Annexure III' of the DIT response. This request was not granted. ↩

For more details visit https://cis-india.org/internet-governance/blog/analysis-dit-response-2nd-rti-blocking