Centre for Internet and Society

Internet censorship will continue in opaque fashion

sunil — 2015-03-26T02:07:28Z

A division bench of the Supreme Court has ruled on three sections of the Information Technology Act 2000 - Section 66A, Section 79 and Section 69A. The draconian Section 66A was originally meant to tackle spam and cyber-stalking but was used by the powerful elite to crack down on online dissent and criticism.

The article by Sunil Abraham was published in the Times of India on March 25, 2015.

Section 79 was meant to give immunity to internet intermediaries for liability emerging from third-party speech, but it had a chilling effect on free speech because intermediaries erred on the side of caution when it came to deciding whether the content was legal or illegal.

And Section 69A was the web blocking or internet censorship provision, but the procedure prescribed did not adhere to the principles of natural justice and transparency. For instance, when books are banned by courts, the public is informed of such bans but when websites are banned in India, there's no clear message from the Internet Service Provider.

The Supreme Court upheld 69A, so web blocking and internet censorship in India will continue to happen in an opaque fashion which is worrying. But on 66A and 79, the landmark judgment protects the right to free speech and expression. It struck down 66A in entirety, saying the vague and imprecise language made the provision unconstitutional and it interfered with "the right of the people to know - the market place of ideas - which the internet provides to persons of all kinds". However, it only read down Section 79 saying "unlawful acts beyond what is laid down" as reasonable restrictions to the right to free speech in the Constitution "obviously cannot form any part" of the section. In short, the court has eliminated any additional restrictions for speech online even though it admitted that the internet is "intelligibly different" from traditional media and might require additional laws to be passed by the Indian Parliament."

For more details visit https://cis-india.org/internet-governance/blog/the-times-of-india-march-25-2015-sunil-abraham-internet-censorship-will-continue-in-opaque-fashion

Internet At Liberty 2012

praskrishna — 2012-07-05T05:24:33Z

Activists and experts from all over the world came together for this event organised by Google on May 23 and 24, 2012 to explore free expression in the digital age.

Sunil Abraham was a speaker in Plenary IV Debate 3: In a world where nearly nine out of ten Internet users are not American, what is the responsibility of United States institutions in promoting internet freedom? Cynthia Wong, Mohamed El Dahshan, Dunja Mijatović and Judy Woodruff were the other speakers in this panel. See the video below:

Video

Internet at Liberty 2012: Plenary IV - Sunil Abraham, Cynthia Wong, Mohamed El Dahshan and Dunja Mijatović

View the video on YouTube

For more details visit https://cis-india.org/news/internet-liberty-2012

Internet Analysts Question India’s Efforts to Stem Panic

praskrishna — 2012-09-04T11:46:03Z

The Indian government’s efforts to stem a weeklong panic among some ethnic minorities has again put it at odds with Internet companies like Google, Facebook and Twitter.

This article by Vikas Bajaj was published by New York Times on August 21, 2012. Sunil Abraham is quoted. This was reposted in NDTV on August 22, 2012.

Officials in New Delhi, who have had disagreements with the companies over restrictions on free speech, say the sites are not responding quickly enough to their requests to delete and trace the origins of doctored photos and incendiary posts aimed at people from northeastern India. After receiving threats online and on their phones, tens of thousands of students and migrants from the northeast have left cities like Bangalore, Pune and Chennai in the last week.

The government has blocked 245 Web pages since Friday, but still many sites are said to contain fabricated images of violence against Muslims in the northeast and in neighboring Myanmar meant to incite Muslims in cities like Bangalore and Mumbai to attack people from the northeast. India also restricted cellphone users to five text messages a day each for 15 days in an effort to limit the spread of rumors.

Officials from Google and industry associations said they were cooperating fully with the authorities. Some industry executives and analysts added that some requests had not been heeded because they were overly broad or violated internal policies and the rights of users.

The government, used to exerting significant control over media like newspapers, films and television, has in recent months been frustrated in its effort to extend similar and greater regulations to Web sites, most of which are based in the United States. Late last year, an Indian minister tried to get social media sites to prescreen content created by their users before it was posted. The companies refused and the attempt failed under withering public criticism.

While just 100 million of India’s 1.2 billion people use the Internet regularly, the numbers are growing fast among people younger than 25, who make up about half the country’s population. For instance, there were an estimated 46 million active Indian users on Facebook at the end of 2011, up 132 percent from a year earlier.

Sunil Abraham, an analyst who has closely followed India’s battles with Internet companies, said last week’s effort to tackle hate speech was justified but poorly managed. He said the first directive from the government was impractically broad, asking all Internet “intermediaries” — a category that includes small cybercafes, Internet service providers and companies like Google and Facebook — to disable all content that was “inflammatory, hateful and inciting violence.”

“The Internet intermediaries are responding slowly because now they have to trawl through their networks and identify hate speech,” said Mr. Abraham, executive director of the Center for Internet and Society, a research and advocacy group based in Bangalore. “The government acted appropriately, but without sufficient sophistication.”

In the days since the first advisory went out on Aug. 17, government officials have asked companies to delete dozens of specific Web pages. Most of them have been blocked, but officials have not publicly identified them or specified the sites on which they were hosted. Ministers have blamed groups in Pakistan, a neighbor with which India has tense relations, for creating and uploading many of the hateful pages and doctored images.

A minister in the Indian government, Milind Deora, acknowledged that officials had received assistance from social media sites but said officials were hoping that the companies would move faster.

“There is a sense of importance and urgency, and that’s why the government has taken these out-of-the-way decisions with regards to even curtailing communications,” Mr. Deora, a junior minister of communications and information technology, said in a telephone interview. “And we are hoping for cooperation from the platforms and companies to help us as quickly as possible.”

Indian officials have long been concerned about the power of modern communications to exacerbate strife and tension among the nation’s many ethnic and religious groups. While communal violence has broadly declined in the last decade, in part because of faster economic growth, many grievances simmer under the surface. Most recently, fighting between the Bodo tribe and Muslims in the northeastern state of Assam has displaced about half a million people and, through text messages and online posts, affected thousands more across India.

Officials at social media companies, speaking on the condition of anonymity to avoid offending political leaders, said that they were moving as fast as they could but that policy makers must realize that the company officials have to follow their own internal procedures before deleting content and revealing information like the Internet protocol addresses of users.

“Content intended to incite violence, such as hate speech, is prohibited on Google products where we host content, including YouTube, Google Plus and Blogger,” Google said in a statement. “We act quickly to remove such material flagged by our users. We also comply with valid legal requests from authorities wherever possible.”

Facebook said in a statement that it also restricts hate speech and “direct calls for violence” and added that it was “working through” requests to remove content. Twitter declined to comment on the Indian government’s request.

Telecommunications company executives criticized the government’s response to the crisis as being excessive and clumsy. There was no need to limit text messages to just five a day across the country when problems were concentrated in a handful of big cities, said Rajan Mathews, director general of the Cellular Operators Association of India.

“It could have been handled much more tactically,” he said.

Others said the government could have been more effective had it quickly countered hateful and threatening speech by sending out its own messages, which it was slow to do when migrants from the northeast began leaving Bangalore on Aug. 15.

“It has to also reach out on social networking and Internet platforms and dismantle these rumors,” Mr. Abraham said, “and demonstrate that they are false.”

A version of this article appeared in print on August 22, 2012, on page B4 of the New York edition with the headline: Internet Moves by India to Stem Rumors and Panic Raise Questions.

For more details visit https://cis-india.org/news/www-nytimes-vikas-bajaj-aug-21-2012-internet-analysts-question-indias-efforts-to-stem-panic

Intermediary Liability Resources

elonnai — 2014-07-03T06:45:48Z

We bring you a list of intermediary resources as part of research on internet governance. This blog post will be updated on an ongoing basis.

Shielding the Messengers: Protecting Platforms for Expression and Innovation. The Centre for Democracy and Technology. December 2012, available at: https://www.cdt.org/files/pdfs/CDT-Intermediary-Liability-2012.pdf: This paper analyses the impact that intermediary liability regimes have on freedom of expression, privacy, and innovation. In doing so, the paper highlights different models of intermediary liability regimes, reviews different technological means of restricting access to content, and provides recommendations for intermediary liability regimes and provides alternative ways of addressing illegal content online.
Internet Intermediaries: Dilemma of Liability: Article 19. 2013, available at: http://www.article19.org/data/files/Intermediaries_ENGLISH.pdf:This Policy Document reviews different components of intermediary liability and highlights the challenges and risks that current models of liability have to online freedom of expression. Relying on international standards for freedom of expression and comparative law, the document includes recommendations and alternative models that provide stronger protection for freedom of expression. The key recommendation in the document include: web hosting providers or hosts should be immune from liability to third party content if they have not modified the content, privatised enforcement should not be a model and removal orders should come only from courts or adjudicatory bodies, the model of notice to notice should replace notice and takedown regimes, in cases of alleged serious criminality clear conditions should be in place and defined.
Comparative Analysis of the National Approaches to the Liability of Internet Intermediaries: Prepared by Daniel Seng for WIPO, available at http://www.wipo.int/export/sites/www/copyright/en/doc/liability_of_internet_intermediaries.pdf:This Report reviews the intermediary liability regimes and associated laws in place across fifteen different contexts with a focus on civil copyright liability for internet intermediaries. The Report seeks to find similarities and differences across the regimes studied and highlight principles and components in different that can be used in international treaties and instruments, upcoming policies, and court decisions.
Freedom of Expression, Indirect Censorship, & Liability for Internet Intermediaries. The Electronic Frontier Foundation. February 2011, available at: http://infojustice.org/download/tpp/tpp-civil-society/EFF%20presentation%20ISPs%20and%20Freedom%20of%20Expression.pdf:This presentation was created for the Trans-Pacific Partnership Stakeholder Forum in Chile and highlights that for freedom of expression to be protected, clear legal protections for internet intermediaries are needed and advocates for a regime that provides blanket immunity to intermediaries or is based on judicial takedown notices.
Study on the Liability of Internet Intermediaries. Contracted by the European Commission. 2007, available at: http://ec.europa.eu/internal_market/e-commerce/docs/study/liability/final_report_en.pdf. This Report provides insight on the application of the intermediary liability sections of the EU e-commerce directive and studies the impact of the regulations under the Directive on the functioning of intermediary information society services. To achieve this objective, the study identifies relavant case law across member states, calls out and evaluates developing trends across Member States, and draws conclusions.
Internet Intermediary Liability: Identifying Best Practices for Africa. Nicolo Zingales for the Association for Progressive Communications, available at: https://www.apc.org/en/system/files/APCInternetIntermediaryLiability_BestPracticesAfrica_20131125.pdf: This background paper seeks to identify challenges and opportunities in addressing intermediary liability for countries in the African Union and recommend safeguards that can be included in emerging intermediary liability regimes in the context of human rights. The paper also reviews different models of intermediary liability and discusses the limitations, scope, and modes of operation of each model.
The Liability of Internet Intermediaries in Nigeria, Kenya, South Africa, and Uganda: An uncertain terrain. Association for Progressive Communications. October 2012, available at: http://www.academia.edu/2484536/The_liability_of_internet_intermediaries_in_Nigeria_Kenya_South_Africa_and_Uganda_An_uncertain_terrain:This Report reviews intermediary liability in Nigeria, Kenya, South Africa and Uganda – providing background to the political context, relevant legislation, and present challenges . In doing so, the Report provides insight into how intermediary liability has changed in recent years in these contexts and explores past and present debates on intermediary liability. The Report concludes with recommendations for stakeholders affected by intermediary liability.
The Fragmentation of intermediary liability in the UK. Daithi Mac Sithigh. 2013, available at: http://jiplp.oxfordjournals.org/content/8/7/521.full.pdf?keytype=ref&ijkey=zuL8aFSzKJqkozT. This article looks at the application of the Electronic Commerce Directive across Europe and argues that it is being intermixed and subsequently replaced with provisions from national legislation and provisions of law from area specific legislation. Thus, the article argues that systems for intermediary liability are diving into multiple systems – for example for content related to copyright intermediaries are being placed with new responsibilities while for content related to defamation, there is a reducing in the liability that intermediaries are held to.
Regimes of Legal Liability for Online Intermediaries: an Overview. OECD, available at: http://www.oecd.org/sti/ieconomy/45509050.pdf. This article provides an overview of different intermediary liability regimes including EU and US.
Closing the Gap: Indian Online Intermediaries and a Liability System Not Yet Fit for Purpose. GNI. 2014, available at: http://www.globalnetworkinitiative.org/sites/default/files/Closing%20the%20Gap%20-%20Copenhagen%20Economics_March%202014_0.pdf. This Report argues that the provisions of the Information Technology Act 2000 are not adequate to deal with ICT innovations , and argues that the current liability regime in India is hurting the Indian internet economy.
Intermediary Liability in India. Centre for Internet and Society. 2011, available at: http://cis-india.org/internet-governance/intermediary-liability-in-india.pdf. This report reviews and ‘tests’ the effect of the Indian intermediary liability on freedom of expression. The report concludes that the present regime in India has a chilling effect on free expression and offers recommendations on how the Indian regime can be amended to protect this right.
The Liability of Internet Service providers and the exercise of the freedom of expression in Latin America have been explored in detail through the course of this research paper by Claudio Ruiz Gallardo and J. Carlos Lara Galvez. The paper explores the efficacy and the implementation of proposals to put digital communication channels under the oversight of certain State sponsored institutions in varying degrees. The potential consequence of legal intervention in media and digital platforms, on the development of individual rights and freedoms has been addressed through the course of this study. The paper tries to arrive at relevant conclusions with respect to the enforcement of penalties that seek to redress the liability of communication intermediaries and the mechanism that may be used to oversee the balance between the interests at stake as well as take comparative experiences into account. The paper also analyses the liability of technical facilitators of communications while at the same time attempting to define a threshold beyond which the interference into the working of these intermediaries may constitute an offence of the infringement of the privacy of users. Ultimately, it aims to derive a balance between the necessity for intervention, the right of the users who communicate via the internet and interests of the economic actors who may be responsible for the service: http://www.palermo.edu/cele/pdf/english/Internet-Free-of-Censorship/02-Liability_Internet_Service_Providers_exercise_freedom_expression_Latin_America_Ruiz_Gallardo_Lara_Galvez.pdf

Click to read the newsletter from the Association of Progressive Communications. The summaries for the reports can be found below:

Internet Intermediaries: The Dilemma of Liability in Africa. APC News, May 2014, available at: http://www.apc.org/en/node/19279/. This report summarizes the challenges facing internet content regulators in Africa, and the effects of these regulations on the state of the internet in Africa. Many African countries do not protect intermediaries from potential liability, so some intermediaries are too afraid to transmit or host content on the internet in those countries. The report calls for a universal rights protection for internet intermediaries.

APC’s Frequently Asked Questions on Internet Intermediary Liability: APC, May 2014, available at: http://www.apc.org/en/node/19291/. This report addresses common questions pertaining to internet intermediaries, which are entities which provide services that enable people to use the internet, from network providers to search engines to comments sections on blogs. Specifically, the report outlines different models of intermediary liability, defining two main models. The “Generalist” model intermediary liability is judged according to the general rules of civil and criminal law, while the “Safe Harbour” model protects intermediaries with a legal safe zone.

New Developments in South Africa: APC News, May 2014, available at: http://www.apc.org/en/news/intermediary-liability-new-developments-south-afri. This interview with researchers Alex Comninos and Andrew Rens goes into detail about the challenges of intermediary in South Africa. The researchers discuss the balance that needs to be struck between insulating intermediaries from a fear of liability and protecting women’s rights in an environment that is having trouble dealing with violence against women. They also discuss South Africa’s three strikes policy for those who pirate material.

Preventing Hate Speech Online In Kenya: APCNews, May 2014, available at: http://www.apc.org/en/news/intermediary-liability-preventing-hate-speech-onli. This interview with Grace Githaiga investigates the uncertain fate of internet intermediaries under Kenya’s new regime. The new government has mandated everyone to register their SIM cards, and indicated that it was monitoring text messages and flagging those that were deemed risky. This has led to a reduction in the amount of hate speech via text messages. Many intermediaries, such as newspaper comments sections, have established rules on how readers should post on their platforms. Githaiga goes on to discuss the issue of surveillance and the lack of a data protection law in Kenya, which she sees as the most pressing internet issue in Kenya.

New Laws in Uganda Make Internet Providers More Vulnerable to Liability and State Intervention: APCNews, May 2014, available at: http://www.apc.org/en/news/new-laws-uganda-make-internet-providers-more-vulne. In an interview, Lilian Nalwoga discusses Uganda’s recent anti-pornography law that can send intermediaries to prison. The Anti-Pornography Act of 2014 criminalizes any sort of association with any form of pornography, and targets ISPs, content providers, and developers, making them liable for content that goes through their systems. This makes being an intermediary extremely risky in Uganda. The other issue with the law is a vague definition of pornography. Nalwoga also explains the Anti-Homosexuality Act of 2014 bans any promotion or recognition of homosexual relations, and the monitoring technology the government is using to enforce these laws.

New Laws Affecting Intermediary Liability in Nigeria: APCNews, May 2014, available at: http://www.apc.org/en/news/new-laws-affecting-intermediary-liability-nigeria. Gbenga Sesan, executive director of Paradigm Initiative Nigeria, expounds on the latest trends in Nigerian intermediary liability. The Nigerian Communications Commission has a new law that mandates ISPs store users data for at least here years, and wants to make content hosts responsible for what users do on their networks. Additionally, in Nigeria, internet users register with their real name and prove that you are the person who is registration. Sesan goes on to discuss the lack of safe harbor provisions for intermediaries and the remaining freedom of anonymity on social networks in Nigeria.

Internet Policies That Affect Africans: APC News, May 2014, available at: http://www.apc.org/en/news/intermediary-liability-internet-policies-affect-af. The Associsation for Progressive Communcations interviews researcher Nicolo Zingales about the trend among African governments establishing further regulations to control the flow of information on the internet and hold intermediaries liable for content they circulate. Zingales criticizes intermediary liability for “creating a system of adverse incentives for free speech.” He goes on to offer examples of intermediaries and explain the concept of “safe harbor” legislative frameworks. Asked to identify best and worst practices in Africa, he highlights South Africa’s safe harbor as a good practice, and mentions the registration of users via ID cards as a worst practice.

Towards Internet Intermediary Responsibility: Carly Nyst, November 2013, available at: http://www.genderit.org/feminist-talk/towards-internet-intermediary-responsibility. Nyst argues for a middle ground between competing goals in internet regulation in Africa. Achieving one goal, of protecting free speech through internet intermediaries seems at odds with the goal of protecting women’s rights and limiting hate speech, because one demands intermediaries be protected in a legal safe harbor and the other requires intermediaries be vigilant and police their content. Nyst’s solution is not intermediary liability but responsibility, a role defined by empowerment, and establishing an intermediary responsibility to promote positive gender attitudes.

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

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

Rishabh Dara — 2012-12-14T10:22:24Z

The Centre for Internet & Society in partnership with Google India conducted the Google Policy Fellowship 2011. This was offered for the first time in Asia Pacific as well as in India. Rishabh Dara was selected as a Fellow and researched upon issues relating to freedom of expression. The results of the paper demonstrate that the ‘Information Technology (Intermediaries Guidelines) Rules 2011’ notified by the Government of India on April 11, 2011 have a chilling effect on free expression.

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 the national and the 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 prioritize 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

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

Click to download the report [PDF, 406 Kb]

Appendix 2

The above documents have been sent to:

Shri Kapil Sibal, Minister of Human Resource Development and Minister of Communications and Information Technology
Shri Milind Murli Deora, Minister of State of Communications and Information Technology
Shri Sachin Pilot, Minister of State, Ministry of Communications and Information Technology
Dr. Anita Bhatnagar, Joint Secretary, Department of Electronics & Information Technology, Ministry of Communications & Information Technology
Dr. Ajay Kumar, Joint Secretary, Department of Electronics & Information Technology, Ministry of Communications & Information Technology
Dr. Gulshan Rai, Scientist G & Group Coordinator, Director General, ICERT, Controller Of Certifying, Authorities and Head of Division, Cyber Appellate Tribunal

For more details visit https://cis-india.org/internet-governance/chilling-effects-on-free-expression-on-internet

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

Rishabh Dara — 2012-04-21T18:05:58Z

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

Intermediary Liability & Freedom of Expression — Executive Summary

Rishabh Dara — 2016-04-24T11:54:22Z

This document provides a critique of “The Information Technology (Intermediaries Guidelines) Rules 2011 and proposes an alternate set of Rules.

For more details visit https://cis-india.org/internet-governance/intermediary-liability-and-foe-executive-summary.pdf

Indian Supreme Court Overturns Law Barring ‘Offensive Messages’ Online

praskrishna — 2015-03-25T16:18:29Z

India’s Supreme Court on Tuesday struck down legislation barring “offensive messages” online, saying it violated constitutional guarantees of free expression.

The article by Niharika Mandhana published by Wall Street Journal on March 24, 2015 quotes Sunil Abraham.

A two-judge panel voided a part of India’s Information Technology Act that made it a crime to share information through computers or other communications devices that could cause “annoyance, inconvenience” and “enmity, hatred or ill will.”

Announcing the ruling in a crowded courtroom in the Indian capital, Justice Rohinton Nariman said the law’s provisions were too vague and didn’t provide “clearly defined lines” for law-enforcement officials. “What is offensive to one person may not be offensive to another,” he said.

The court also ruled that Internet companies, such as Facebook and Google, could be required to remove or block access to online content only if ordered to do so by a court or by a notification from the government. Previously, they were expected to act when they had “actual knowledge” of allegedly illegal materials.

Free-speech activists had long argued against the broad language in the law, which was enacted in part as an effort to prevent the incitement of violence among different religious and ethnic groups in the world’s second-most-populous nation.

On Tuesday they applauded the decision.

“This provision was hugely problematic for anyone using the Internet in India and that is gone,” said Sunil Abraham, head of the Bangalore-based Center for Internet and Society. “The court has removed the additional, unconstitutional limits to free speech.”

India’s Information Technology minister, Ravi Shankar Prasad, said in a televised interview after the ruling that the government “supports free social media.”

“If the security establishment needs a response in cases of terrorism, extremism, communal violence, the government will take a view after wider consultations,” Mr. Prasad said. “But only with adequate safeguards.”

Enforcement of the law has sparked controversy for years. In 2012, a 21-year-old was detained after complaining on Facebook about the effective shutdown of Mumbai for the funeral of a right-wing Hindu leader. Another person was also detained for “liking” her comment.

That year, political cartoonist Aseem Trivedi was also charged under this law for his work lampooning Parliament. Mr. Trivedi said Tuesday that the court’s decision would “put a stop to years of misuse of the law by the government and politicians.”

“It sends a strong message that Indian law is with free speech,” Mr. Trivedi said.

According to a recent report by Facebook, the U.S. social media company blocked 5,832 pieces of content in the second half of 2014 on requests from Indian law-enforcement agencies and the government.

That was up from 4,960 pieces blocked from January to June last year. Facebook said it restricted access in India to a lot of “anti-religious content” and “hate speech that Indian officials reported could cause unrest and disharmony.”

J. Sai Deepak, a New Delhi-based lawyer involved in the case, said Tuesday’s decision was a significant victory for Internet companies in India. He said the law’s implementation—which earlier was “subject to the vagaries of the political winds of the state,” he said—would now be guided only by the free-speech rules laid down in the Indian constitution.

The order, however, rejected an argument by free-speech advocates that information shared on the Internet must be treated the same way as other kinds of speech, such as a live address or printed material. The court said lawmakers could create a separate law to deal with online speech because such content, unlike others, “travels like lightning and can reach millions of persons all over the world.”

But the current law, the court said, was too vague and included terms which “take into the net a very large amount of protected and innocent speech.” The law “is cast so widely that virtually any opinion on any subject would be covered by it,” the order said.

—Newley Purnell contributed to this article.

For more details visit https://cis-india.org/internet-governance/news/wall-street-journal-niharika-mandhana-march-24-2015-indian-supreme-court-overturns-law-barring-hate-speech-online

Indian Porn Ban is Partially Lifted But Sites Remain Blocked

pranesh — 2015-09-13T09:00:03Z

The Indian government made a quick about-face on its order to block hundreds of pornography websites on Tuesday, partially lifting the ban after political backlash against the moral policing.

The article was published in Wall Street Journal on August 5, 2015. Pranesh Prakash gave his inputs.

But the websites remained blocked because Internet service providers were afraid of legal trouble.

The new order from the Department of Telecommunications said that Internet service providers could unblock any of the 857 websites, so long as they don’t contain child pornography. However, the websites remain blocked because service providers say they have no way of knowing whether they contain child porn, and no control over whether they will in the future.

Ravi Shankar Prasad, the IT minister, said Tuesday night that the government would trim down the list of banned sites, to focus only on those that contain child porn.

“A new notification will be issued shortly. The ban will be partially withdrawn. Sites that do not promote child porn will be unbanned,” said Mr. Prasad on the TV news channel India Today.

The wording of the new order created confusion, because it appears to put the responsibility for policing the Internet for child pornography on service providers.

“How can we go ahead? What if something comes up tomorrow [on one of these sites], which has child porn, or something else?,” said an executive at an Indian service provider who asked not to be named.

“The onus cannot be put on the service providers. What the government is doing is inherently unfair, it is not what the law requires,” said Pranesh Prakash, policy director at the Centre for Internet and Society, a Bangalore-based civil liberties advocacy group. It is the government’s job to determine what violates the law, not private companies, Mr. Prakash said.

For more details visit https://cis-india.org/internet-governance/news/the-wall-street-journal-august-5-2015-sean-mclain-indian-porn-ban-is-partially-lifted-but-sites-remain-blocked

Indian Netizens Criticize Online Censorship of ‘Jihadi’ Content

subha — 2015-02-10T02:43:17Z

The article on online censorship by Subhashish Panigrahi was published in Global Voices on January 6, 2015.

Click to view the article on Global Voices here.

Indian Netizens Criticize Online Censorship of ‘Jihadi’ Content · Global Voices


Mock-up of a blocked URL (Image: Subhashish Panigrahi, CC-by-SA 3.0)

The Government of India in the last week of 2014 asked Internet service providers (ISPs) to block 32 websites including code repository Github, video streaming sites Vimeo and Dailymotion, online archive Internet Archive, free software hosting site Sourceforge and many other websites on the basis of hosting anti-India content from the violent extremist group known as ISIS.

The blanket block on many resourceful sites has been heavily criticized on social media and blogs by reviving the hashtag #GoIblocks that evolved in the past against internet censorship by the government.

Nikhil Pahwa at MediaNama notes that this time many ISPs published the list of the blocked sites:

Typically, users are not informed about which websites are blocked, so this was a welcome move from the ISP.

“Say No to Censorship. #GOIBlocks” (taken from Facebook page of Free Software Foundation, Tamil Nadu)

In 2012, opposition party leader Narendra Modi (who is now India's Prime Minister) tweeted against the URL blocks by the earlier ruling of India's National Congress when then-Minister of Communications and Information Technology Kapil Sibal ordered to block 300 websites. Many eyebrows were raised when Modi repeated the move this time around.

Internet censorship in India has been increasingly prominent since 1999 when Pakistani newspaper Dawn was blocked by the Videsh Sanchar Nigam Limited for post-Kargil War views against India. These caught heavy criticism from netizens, often under the hashtag #IdiotKapilSibal. Since then there have been many instances of government-mediated censorship, particularly with the enactment of India's Information Technology Act of 2000.

Arvind Gupta, head of Information Technology for India's ruling Bharatiya Janata Party, tweeted to clarify that the sites were blocked as advised by the Anti-Terrorism Squad.

Arvind Gupta ✔ @buzzindelhi
Follow

The websites that have been blocked were based on an advisory by Anti Terrorism Squad, and were carrying Anti India content from ISIS. 1/2

3:11 PM - 31 Dec 2014

362 Retweets 82 favorites

After agreeing to remove anti-India content posted by accounts that appeared to have some association with ISIS, weebly.com, vimeo.com, Pastebin, dailymotion.com and gist.github.com were unblocked.

These websites have undertaken not to allow pasting of such propaganda information on their website and also work with the government to remove such material as per the compliance with the laws of land.

- Ministry of Communications and Information Technology, Government of India (posted in Business Standard)

Arvind Gupta ✔ @buzzindelhi
Follow

Action has been initiated to unblock -- http://weebly.com , http://vimeo.com , http://dailymotion.com and (1/2)

12:36 AM - 1 Jan 2015

63 Retweets 25 favorites

Arvind Gupta ✔ @buzzindelhi

gist.github.com :: http://wap.business-standard.com/article/news-ians/government-decides-to-unblock-four-websites-out-of-32-114123101162_1.html … (2/2)

12:36 AM - 1 Jan 2015

39 Retweets 12 favorites

For more details visit https://cis-india.org/internet-governance/blog/global-voices-january-6-2015-subhashish-panigrahi-indian-netizens-criticize-online-censorship-of-jihadi-content

Indian net service providers too play censorship tricks

praskrishna — 2013-02-13T04:20:53Z

The study by a Canadian university has found that some major Indian ISPs have deployed web-censorship and filtering technology.

The article by T Ramachandran was published in the Hindu on February 9, 2013. Sunil Abraham is quoted.

Your internet service provider (ISP) could be blocking some content. A study conducted by a Canadian university has found that some major Indian ISPs have deployed web-censorship and filtering technology widely used in China and some West Asian countries.

The findings, published on January 15, were the result of a search for censorship software and hardware on public networks like those operated by ISPs.

A research team at Citizen Lab, an interdisciplinary laboratory based at the Munk School of Global Affairs, University of Toronto, found a software-hardware combo package called PacketShaper being used in many parts of the world, including India.

The study identified the presence of four PacketShaper installations on the networks of three major ISPs in India during the period of study in late 2012. These ISPs had been earlier “implicated in filtering to some degree,” the report said.

The deployment of such traffic management technologies by ISPs could threaten privacy, freedom of expression and competition, said Sunil Abraham, Executive Director of the Bangalore-based NGO, Centre for Internet and Society.

He said tools like PacketShaper could be used by ISPs for two types of censorship —“to block entire websites or choke traffic on certain services or destinations in a highly granular fashion.”

The U.S.-based producers of the technology, Blue Coat Systems, are quite open about the product features on the company’s website. They say it could be used to control and weed out undesirable content. It could also be used to slow down or speed up the operation of programmes and content flow to achieve the goals set by the operators of the networks.

Transparency is the key

Technology experts said such products could be used to exercise legitimate control over the internet traffic and prioritise the use of bandwidth and resources, if used ethically.

“If done in a transparent manner that does not discriminate against different actors within a class it does benefit the collective interest of the ISP’s clients. However, it could also be used to engage in hidden censorship against legitimate speech and also for anti-competitive behaviour,” said Mr. Abraham.

The study focussed on countries where concerns exist over “compliance with international human rights law, legal due process, freedom of speech, surveillance, and censorship.”

For more details visit https://cis-india.org/news/the-hindu-feb-9-2013-t-ramachandran-indian-net-service-providers-too-play-censorship-tricks

Indian mobiles go quiet amid SMS curbs

praskrishna — 2012-08-27T07:15:01Z

India’s 900m-plus mobile telephones have fallen unusually quiet since Saturday, when the government curbed text and multimedia messages for 15 days in an attempt to dispel panic among north-easterners fearing attacks from angry Muslims.

This article written by Victor Mallet in New Delhi and James Crabtree in Mumbai was published in Financial Times on August 21, 2012. Additional reporting by Jyotsna Singh in New Delhi. Pranesh Prakash is quoted.

The order limiting the number of SMS and MMS messages to five a day from each pre-paid account – which comprise 97 per cent of the market – has disrupted personal communications and threatens to squeeze the revenues of the mobile operating companies.

The government has also urged social media websites including Facebook and Twitter to remove “inflammatory” content it said had helped spread rumours that caused an exodus of migrants from some cities last week. Access to 245 web pages containing doctored videos and images had been blocked, the government claimed, and the relevant sites told to take the pages down.

Indians send more than a billion text messages a day, although it is not clear how many people have been affected by the restrictions or how many of the messages are mass mailings.

Akshat Dwivedi, 20, an undergraduate student at Delhi University, said the restrictions were “a stupid idea”.

“How can the government take away something that has become a basic, fundamental need today?” he said. “The ban has affected mostly students who use pre-paid connections because pre-paid connections are cheaper and more affordable for students like us. The ban has hugely disrupted our life. There are many people who rely on text messages because you can’t always call everybody.”

Civil rights activists wary of censorship accept that the ban may have been necessary to ease ethnic and religious tensions.

“There is the fear that the state will exercise inordinate powers,” said Akila Shivdas, a civil and consumer rights activist. “But regulation and state control are two different things … This is an opportunity to look at regulation seriously.”

India’s mobile industry earned about $20bn in revenue last year, of which 15-18 per cent was from data services, according to the Cellular Operators Association of India, a trade body. This suggests operators are set to suffer a loss of about $133m for the 15-day period, according to COAI figures.

“When we are going through the trauma of increased costs, being challenged on revenues does not help,” said Rajan Matthew, COAI director-general. “The government’s heart is in the right place in trying to address this issue ... But when we are fighting for every nickel and dime, this loss is not a small amount.”

Other analysts cautioned that the likely revenue impact would be much smaller, noting that most customers bought pre-paid SMS packages. “I’m not saying there will be no loss, but it will not be dramatic”, said Rohit Chordia, a telecoms analyst at Kotak, a Mumbai-based brokerage.

Industry sources and analysts also questioned the government’s decision to impose an extended nationwide ban, rather than experimenting with more limited short-term restrictions targeted to particular trouble spots.

“Some kind of limitation on communication was a reasonable step, but restricting everyone to just five per day I don’t think is reasonable at all,” said Pranesh Prakash, programme manager at the Centre for Internet and Society, a Bangalore-based think tank.

Thousands of north-easterners – physically similar to the Bodo people who have been fighting Muslim migrants over land and political power in Assam – fled from cities such as Bangalore and Hyderabad last week after threats of violence sent by SMS.

Muslims in Mumbai had previously been inflamed by media messages purportedly showing brutality towards their fellow followers of Islam, though the Indian government said some pictures were doctored and had been uploaded from Pakistan.

Events in Bangalore, said Pavan Duggan, a lawyer specialising in IT issues, were “a classic case of mobile cyberterrorism”. He backed the government’s measures despite concerns about censorship. “Obviously there are some rumblings, but these are still small murmurs because everyone is very clear that the national interest will come over [mobile] revenues.”

For more details visit https://cis-india.org/news/www-ft-com-aug-21-2012-victor-mallet-james-crabtree-indian-mobiles-go-quiet-amid-sms-curb

Indian Internet Lawsuit Puts Spotlight on Freedom of Expression

praskrishna — 2012-01-19T08:59:15Z

In India, Internet giants such as Google and Facebook are fighting a lawsuit after the government authorized their prosecution for online content on their sites deemed to be offensive. The case has put the spotlight on free speech in the world’s largest democracy.

The criminal lawsuit filed by the editor of New Delhi-based Urdu weekly Akbari accuses 21 Internet companies of violating Indian law. Vinay Rai alleged that online material on their websites has the potential to incite religious conflict.

Rai said his colleagues brought to his attention images of Prophet Muhammad which could offend Muslims. He cited other images and text which could hurt sentiments of Hindus and Christians. Rai wants Internet companies to screen content before it is posted.

Google and Facebook have asked the Delhi High Court to dismiss the case against them. In an appeal, they said it is impossible to filter all content or stop individuals from posting material online.

Editor Rai filed the case after the government indicated its approval for the prosecution. The official go-ahead came weeks after the government also raised a similar demand.

Voluntary framework

Telecommunications Minister Kapil Sibal told Internet company representatives to come up with a voluntary framework to keep offensive material off the net. After confronting them with photos and material derogatory of Indian Prime Minister Manmohan Singh and Congress Party leader Sonia Gandhi, he said the companies had not cooperated.

Both the court case and the government’s demands have stoked fears of net censorship in the world’s largest democracy.

Advocacy groups say the dispute between authorities and websites began simmering last year when India tightened laws to block content which could be deemed offensive. Citizens and officials can ask sites to block objectionable material and failure to comply within 36 hours can attract penalties or imprisonment of up to seven years.

Sunil Abraham, with the Center for Internet and Society in India, said these rules have the potential to curtail debate and discussion on the net.

“These limits are vague. They allow for all sorts of subjective tests by private parties and we predicted they would have a chilling effect on freedom of expression online," Abraham said. "Policy in India has been headed in a very worrisome direction."

Abraham pointed out that one of his organization’s recent studies indicates that, faced with the threat of stiff penalties, most service providers removed content when asked to do so, even when it was not offensive or controversial.

Free media?

The government insists its objective is not to encroach on the fundamental right of free speech guaranteed by India’s democratic constitution. The clarification came from Minister Kapil Sibal after his meetings with Internet companies last month.

"This government does not believe in censorship," noted Sibal. "This government does not believe in either directly or indirectly interfering in the freedom of the press, and we have demonstrated that time and again."

India does have a vibrant free media and Internet access is largely free, unlike in China. But in a country with a history of religious violence, authorities have long tussled with the dilemma of balancing free speech with the need to not inflame sentiments among religious groups. India was one of the first countries to ban Salman Rushdie’s “The Satanic Verses.”

Other books and articles have also faced bans. Many are challenged in courts and several have been overturned. Now the focus is on the Internet and questions are being raised about whether the web should or can be policed.

Online freedom

In a remark widely quoted in the domestic media, a judge hearing the case had warned websites that like China, India might be compelled to block some of them if they did not create means to curb material seen as offensive.

However, Abraham from the Center of Internet and Society hopes that, as the latest case navigates its way through Indian courts, online freedom will come up the winner.

"I think the executive in India has always been very conservative in freedom of expression. It is usually the courts in India that protect freedom of expression, the precedent," Abraham said. "So we are every hopeful that the current case is in the appropriate venue, and we are confident that, as in the past, the judiciary in India will stand on the side of freedom of expression."

With 100 million people surfing the web, India has the world’s third largest number of Internet users after China and the United States.

Published in the Voice of America on 19 January 2012. Sunil Abraham is quoted in this.

For more details visit https://cis-india.org/news/indian-internet-lawsuit-puts-spotlight-on-freedom-of-expression

Indian govt blocks 40 smut sites, forgets to give reason

praskrishna — 2013-07-01T09:04:26Z

Don't mind us, we're just censoring your content for you...

The article by Phil Muncaster was published in "The Register" on June 27, 2013. Sunil Abraham is quoted.

The Indian government has ordered ISPs to block 39 smut flick web sites hosted outside the country without giving any explanation, stoking further fears of online censorship by the back door.

Most of the sites are web forums and so allow for the uploading of naughty images and URLs where smut-seekers can download their grumble flicks, according to Times of India.

However, the sites claim to operate under the 18 USC 2257 rule, meaning actors are (supposedly) over 18 years of age, and there is apparently no indication from the Department of Telecom's order why ISPs are being asked to comply.

The message greeting web users who try to visit a blocked site now reads as follows:

This website has been blocked until further notice either pursuant to court orders or on the directions issued by the Department of Telecommunications.

While the law, updated in 2011, does forbid production, transmission and sharing of smutty content in India - therefore requiring internet cafes, for example, to block such content - there is no ban on consumption, especially from sites hosted outside India.

Sunil Abraham, director of Indian not-for-profit the Centre for Internet and Society, told ToI that the government is probably interpreting the law to serve its own ends, and that its ISP order “is a clear overreach”.

The Union government has certainly been quick in the past to order blocks on any content deemed inappropriate.

Facebook and Google were forced to remove “objectionable content” from their Indian sites last year after complaints it was offensive to Muslims, Hindus and Christians.

The government was also one of many across the globe to force Google to block notorious YouTube video Innocence of Muslims.

A controversial anti-piracy ruling last June, meanwhile, led to a clumsy, large-scale block on a number of legitimate sites in the country – drawing the ire of hacktivist group Anonymous.

The government also closed hundreds of sites and social media accounts in August last year in a bid to prevent the escalation of sectarian violence across the country.

In fact, the number of content removal requests received by Google increased by 90 per cent from July-December 2012 compared with the previous six months.

For these reasons, India only enjoys “Partly Free” status, according to the Freedom on the Net 2012 report from not-for-profit Freedom House.

For more details visit https://cis-india.org/news/the-register-phil-muncaster-june-27-2013-indian-govt-blocks-40-smut-sites-forgets-to-give-reason

Indian Government still blocks 20+ websites – Indian Censorship on Internet

praskrishna — 2015-01-03T03:47:16Z

Indian Government has blocked 20+ major websites to counter ISIS propaganda. The government has removed blocking of github.com, vimeo.com and other 10+ websites blocked till December 31, 2014.

The article was published in the Times of Assam on January 2, 2015. Pranesh Prakash is quoted.

A confidential department of telecom order – dated December 17, 2014 – instructing all internet service licensees to block the websites appeared online on Wednesday.

When contacted to verify the news, Dr Gulshan Rai – Director of the Indian Computer Emergency Response Team (CERT-In) – told, the directions had been issued to internet service providers following a Mumbai Additional Chief metropolitan magistrate’s November order directing the government’s Department of Electronics and Information Technology (DeitY) to implement the same.

Pranesh Prakash – Policy Director at Bengaluru-based Center for Internet and Society – questioned the lack of transparency around the practice of blocking websites under the Indian law. “Qn for govt: Why does the law require secrecy of web blocking orders when it doesn’t allow such secrecy for books, films? #GoIBlocks,” he tweeted, adding, “The 69A Rules don’t allow for transparency, accountability, time-limits on blocks, etc. So easily misused by govt. + courts + individuals.” The websites were blocked under section 69 A of the IT Act, 2000 and the IT (Procedure and sdafeguards for Blocking of Access of Information by Public) rules, 2009.

Currently, the Supreme Court is in the middle of hearing a clutch of petitions challenging several IT Act provisions, including blocking and takedown of websites.

For more details visit https://cis-india.org/internet-governance/news/times-of-assam-january-2-2015-indian-govt-still-blocks-websites-india-censorship-on-internet