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Governing Speech on the Internet: From the Free Marketplace Policy to a Controlled 'Public Sphere'
https://cis-india.org/raw/blog_governing-speech-on-the-internet
<b>This post by Smarika Kumar is part of the 'Studying Internets in India' series. Smarika is a consultant with Alternative Law Forum, Bangalore. She is interested in issues concerning law and technology. In this essay, Smarika explores how through the use of policy and regulation, the private marketplace of the internet is sought to be reined in and reconciled to the public sphere, which is mostly represented through legislations governing the internet.</b>
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<h2>Introduction</h2>
<p>The internet is widely thought to be unprecedented and radically different from the media which preceded it. Interestingly, the internet has been unlike other media, in that it does not have a history of being monopolised by governments. True, certain States have tried to regulate the internet in a manner which allows them to exercise an increased control over it, some others have a greater control over the internet root given the history of development of the internet, but nevertheless no one State can be said to “own” the internet in any jurisdiction, in the manner of telephone or broadcast monopolies. Internet as it stands now, at its essence, is a largely private of networks connecting privately-owned, and occasionally publicly-funded platforms.</p>
<p>This feature of the internet poses an interesting problem when one tries to think about speech. In law and policymaking, an important question remains: Should internet be treated as the marketplace of privately managed avenues for speech, or should speech on the internet be treated within the bigger concept of the public sphere? Moreover, how are law and policy in India currently disposed towards speech on the internet? In the present essay, I hope to discuss some of these issues by looking at the judgement in <em>Shreya Singhal v. Union of India</em> [1], which was pronounced by the Supreme Court of India in March 2015. The judgement is most widely recognised as a culmination of several challenges to Section 66A of the Information Technology Act, 2000 which criminalised a wide range of speech on the internet on the grounds of very broad terms like “grossly offensive”, “causing annoyance” and “inconvenience, danger, and obstruction.” Section 66A was challenged along with Sections 69A and 79 of the Act, which lay down the rules for blocking of content on the internet, and for intermediary liability and responsibility to take down internet content, respectively. This challenge was made on grounds of being in violation of the Right to Freedom of Speech and Expression and Right to Equality guaranteed by the Constitution of India among others. However, while the judgement struck down Section 66A as unconstitutional, it upheld the constitutionality of the State-directed Internet blocking Rules as well as Intermediary Liability Guidelines. This may pose a paradox if one accounts for the fact that at the heart of it, all—Section 66A, Section 69A and Section 79, were actually legislations regulating speech. Then why strike one down and uphold others? To seek an answer in the present essay, I broadly look at the philosophical origins of regulation of speech on the internet. Two theories in philosophy—John Stuart Mill’s The Marketplace of Ideas and Jurgen Habermas’ Public Sphere have been very influential in liberal democratic traditions and jurisdictions in thinking about the governance of speech. Scholarly work concerning media law in other jurisdictions has also elaborated on how each of these theories can be implicitly used differently in judicial interpretations to serve different ends [2]. In this, the Marketplace of Ideas approach tends to treat speech and platforms for speech as part of the competition within a market context, whereby different kinds of ideas or speech compete with each other to find an avenue for expression. The Public Sphere approach on the other hand, treats different kinds of speech as part of a larger democratic concept of discussion and speech, whereby the aspiration is for representation of diverse kinds and sources of speech, rather than competition between them.</p>
<p>With the utilisation of these different underlying philosophical assumptions, legal implications can be so vastly different. And when that happens, it becomes essential to trace the process of how these philosophical approaches themselves work in legal argumentation. For these reasons, it becomes critical to probe the thinking in <em>Shreya Singhal</em> judgement to understand which philosophical attitude to speech it actually inheres: the Marketplace of Ideas conception, or the Public Sphere approach? I argue in this essay that while traces of both the Marketplace of Ideas and the Public Sphere approach are present in <em>Shreya Singhal</em>, neither of these philosophies actually govern the rationale of the judgement. An analysis of <em>Shreya Singhal</em> along with the judgement in <em>Cricket Association of Bengal</em> (1995) [3] which it refers to, shows that it is in fact, a third philosophy, rooted in the impulse of colonial control, which gives <em>Shreya Singhal</em> its philosophical consistency.</p>
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<h2>The Marketplace of Ideas in <em>Shreya Singhal</em></h2>
The judgement in <em>Shreya Singhal</em> actually employs the idea of the marketplace in its approach to discuss the implications of Section 66A. It begins by referring to the 2010 Supreme Court judgement of <em>S. Khushboo v. Kanniamal and Anr</em> [4] which had spoken about the concept of the marketplace of ideas, and how employing it is essential to safeguard “unpopular speech” under the Right to Freedom of Speech and Expression in the Article 19(1)(a) of the Constitution of India. The Court marks out this reference to the marketplace of ideas, tracing this concept back to the 1919 American judgement of <em>Abrams v. United States</em> [5]. The Supreme Court states, talking about the Khushboo case:
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<blockquote>This last judgement is important in that it refers to the “market place of ideas” concept that has permeated American Law. This was put in the felicitous words of Justice Holmes in his famous dissent in Abrams v. United States, 250 US 616 (1919), thus: “But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.” (para 11)</blockquote>
<p>The Supreme Court judgement goes onto trace the history of Marketplace of Ideas in American jurisprudence, and understand its place within the Indian Constitution. The Court holds:</p>
<blockquote>This leads us to a discussion of what is the content of the expression “freedom of speech and expression”. There are three concepts which are fundamental in understanding the reach of this most basic of human rights. The first is discussion, the second is advocacy, and the third is incitement. Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. (para 13)</blockquote>
<p>The Marketplace of Ideas then becomes the philosophical tenet which pivots the judgement around its unique jurisprudential concept: the distinction between discussion, advocacy and incitement. This conception of the marketplace holds that State interference in speech on the internet has to be kept off as long as the condition of such speech being incitement is not fulfilled. In a way, this is a hands-off approach to the governance of speech which is solidified in the Court’s declaration of the unconstitutionality of Section 66A. The Court refers to the American judgement of Reno, Attorney General of <em>United States v. American Civil Liberties Union</em> [6] to bring this logic to speech on the internet as well. Citing the district court judgement in this case, it holds:</p>
<blockquote>[I]t is no exaggeration to conclude that the Internet has achieved, and continues to achieve, the most participatory marketplace of mass speech that this country – and indeed the world – as yet seen. The plaintiffs in these actions correctly describe the ‘democratizing’ effects of Internet communication: individual citizens of limited means can speak to a worldwide audience on issues of concern to them. Federalists and Anti-federalists may debate the structure of their government nightly, but these debates occur in newsgroups or chat rooms rather than in pamphlets. Modern-day Luthers still post their theses, but to electronic bulletins boards rather than the door of the Wittenberg Schlosskirche. More mundane (but from a constitutional perspective, equally important) dialogue occurs between aspiring artists, or French cooks, or dog lovers, or fly fishermen. 929 F. Supp. At 881. (at page 425) (para 60)</blockquote>
<p><em>Shreya Singhal</em>’s striking down of 66A then becomes founded in the idea that the State need not interfere in what kind of speech is made in the marketplace of the internet, as long as such speech does not amount to incitement. In a particular sphere of speech which is “not incitement” then, the logic of the Marketplace of Ideas approach seems to work in the <em>Shreya Singhal</em> judgement.</p>
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<h2>Recognition of the Limitations of the Marketplace of Ideas and a Move towards Public Sphere</h2>
<p>One would then surmise that the use of the Marketplace of Ideas approach is what makes <em>Shreya Singhal</em> such a pro-freedom of speech pronouncement. But interestingly, the judgement also cites the matter of <em>The Secretary, Ministry of Information & Broadcasting v. Cricket Association of Bengal and Anr</em> [3] which has been remarkable for outlining the limitations of the marketplace in the governance and production of a diversity of opinions and sources in speech. The <em>Cricket Association of Bengal</em> case was brought forth before the Supreme Court in 1995, after the liberalisation regime in media, to challenge the constitutionality of preventing a private broadcaster to use Indian airwaves in order to exclusively broadcast a cricket match.</p>
<p>The Court, while holding that there was no such exclusive right inhering in a private broadcaster since airwaves had to be allocated and used in public interest, also held that the limitations on a private broadcaster’s right to broadcast also could not extend beyond Article 19(2). In doing so, the Court recognises that the marketplace in a free and competitive system may not always be sufficient enough to make use of the media to generate and represent speech which is in the democratic public interest of discussion and advocacy. <em>Shreya Singhal</em> cites this portion of the judgement in support of its own rationale of striking down Section 66A. It holds:</p>
<blockquote>The right to use the airwaves and the content of the programmes, therefore, needs regulation for balancing it and as well as to prevent monopoly of information and views relayed, which is a potential danger flowing from the concentration of the right to broadcast/telecast in the hands either of a central agency or of few private affluent broadcasters. That is why the need to have a central agency representative of all sections of the society free from control both of the Government and the dominant influential sections of the society. This is not disputed. But to contend that on that account the restrictions to be imposed on the right under Article 19(1)(a) should be in addition to those permissible under Article 19(2) and dictated by the use of public resources in the best interests of the society at large, is to misconceive both the content of the freedom of speech and expression and the problems posed by the element of public property in, and the alleged scarcity of, the frequencies as well as by the wider reach of the media. (para 29)</blockquote>
<p>The recognition in <em>Shreya Singhal</em> that unregulated, the marketplace can lead to “a monopoly of information and views relayed” flowing from the hands of “either a central agency or a few private affluent broadcasters” points to the limitation of the Marketplace of Ideas approach itself. Such recognition culminated into a more participation-focused idea of what it means to live in a democracy: the idea of a Public Sphere where regulation and governance of media is done in order to expand participation of different kinds of ideas and people within public speech. The Court again cites <em>Cricket Association of Bengal</em> in this regard to state:</p>
<blockquote>When, however, there are surplus or unlimited resources and the public interests so demand or in any case do not prevent telecasting, the validity of the argument based on limitation of resources disappears. It is true that to own a frequency for the purposes of broadcasting is a costly affair and even when there are surplus or unlimited frequencies, only the affluent few will own them and will be in a position to use it to subserve their own interest by manipulating news and views. That also poses a danger to the freedom of speech and expression of the have-nots by denying them the truthful information on all sides of an issue which is so necessary to form a sound view on any subject. (para 29)</blockquote>
<p>In background of this, it could be said that the Marketplace of Ideas, while it forms an important part of the backbone in the striking down of Section 66A, it is not all there is to it. The idea of participation in a Public Sphere is recognised as well, and to an extent it is the barrier to participation in this Public Sphere, which enables the declaration of Section 66A as unconstitutional.</p>
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<h2>Public Sphere or the Marketplace? : (N)either, but a Dynamics of Control</h2>
<p>Much of the discourse around <em>Shreya Singhal</em>’s discussion on Sections 69A and 79, has seen it as divorced from the discussion around Section 66A. The discussion on Section 69A and 79 in the judegment has been seen as regressive, or ambiguous, while the portion of the judgement dealing with Section 66A has been largely been pronounced progressive and liberal. It has also been argued that the discussion on Section 66A in <em>Shreya Singhal</em> departs from a myriad previous judgements and their approach towards the governance of free speech [7]. I would like to argue on the contrary, that there is in fact, a deep continuity in the judgement on various provisions, as well as with prior judgements on speech, as far as the approach which is taken towards the governance of speech generally, and speech on the internet, specifically, is concerned.</p>
<p>To understand this continuity, it is of critical importance to note how the approaches of Public Sphere and the Marketplace of Ideas are contrasted in <em>Cricket Association of Bengal</em>, and by reference in <em>Shreya Singhal</em> as well—while the former is used to justify regulation for participation of a larger public in reception of information from the media, and the latter to keep off excessive interference by the Government. Moreover, the judgement also seems to conflate the Marketplace of Ideas and the Public Sphere conceptions of speech governance when it states:</p>
<blockquote>It is clear, therefore, that the petitioners are correct in saying that the public’s right to know is directly affected by Section 66A. Information of all kinds is roped in – such information may have scientific, literary or artistic value, it may refer to current events, it may be obscene or seditious. That such information may cause annoyance or inconvenience to some is how the offence is made out. It is clear that the right of the people to know – the market place of ideas – which the internet provides to persons of all kinds is what attracts Section 66A. (para 20)</blockquote>
<p>One notes in the abovementioned extract that the right to know is seen to emerge from the Marketplace of Ideas rather than through participation in the Public Sphere. In light of these observations, one can then ask the question: What is really at the philosophical heart of <em>Shreya Singhal</em> judgement when it can employ both these approaches? One can argue that the focus of the judgement is to balance these two approaches for the governance of speech. But what is the aim of such an attempt to “balance”? Where is it really leading to? The answer may lie in analysing the rest of <em>Shreya Singhal</em>, including its pronouncements on Executive Rules under Section 69A and Section 79, both of which while being regressive, were upheld as constitutional.</p>
<p>The issue under Section 69A concerned the constitutional validity of the Blocking Rules of the internet, while that under Section 79 concerned the liability of intermediaries on the internet. What is interesting is that the Court in its analysis of Rules under both these sections does not go into the grounds which have been prescribed for the blocking of websites, or for pinning intermediary liability. Commenting on the Rules under Section 69A, the judgement holds:</p>
<blockquote>Merely because certain additional safeguards such as those found in Section 95 and 96 CrPC are not available does not make the Rules constitutionally infirm. We are of the view that the Rules are not constitutionally infirm in any manner. (para 111)</blockquote>
<p>Additionally it places emphasis on the premise the satisfaction of the Central Government that it is necessary to block a website, is a valuable assumption to proceed with the blocking of such website within the tenet of Article 19(2). It holds:</p>
<blockquote>It will be noticed that Section 69A unlike Section 66A is a narrowly drawn provision with several safeguards. First and foremost, blocking can only be resorted to where the Central Government is satisfied that it is necessary so to do. (para 109)</blockquote>
<p>Similarly, for the Rules under Section 79, the Court strikes down the premise that private censorship of internet content based on the judgement of intermediaries is constitutionally permissible. (see para 117) However, it upholds constitutionality of removal of content by an intermediary upon knowledge of a court order to this effect, as well as knowledge of notification by the appropriate government. It states:</p>
<blockquote>Section 79(3)(b) has to be read down to mean that the intermediary upon receiving actual knowledge that a court order has been passed asking it to expeditiously remove or disable access to certain material must then fail to expeditiously remove or disable access to that material. This is for the reason that otherwise it would be very difficult for intermediaries like Google, Facebook etc. to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not. We have been informed that in other countries worldwide this view has gained acceptance, Argentina being in the forefront. Also, the Court order and/or the notification by the appropriate Government or its agency must strictly conform to the subject matters laid down in Article 19(2). (para 117)</blockquote>
<p>In this manner while the power of speech regulation is taken away from private intermediaries existing in the Marketplace of Ideas, it is restored within the organs of the State—the Judiciary and the Executive. This may not necessarily be repressive, as long as these powers of regulations are used to actually expand the Public Sphere, rather than limiting or controlling it. But the architecture of the regulations under both Sections 69A, and 79 suggest that they have been designed for control, rather than promoting discussion in the Public Sphere, as is evident from the strong censorship models they employ.</p>
<p>Such type of speech regulation aimed at creating a State-controlled “Public Sphere” has a long history: It has been additionally opined that the First Amendment to the Constitution which expanded the grounds under Article 19(2) embodies this colonial continuity within the Constitution framework itself [8]. Eminent lawyer, Rajeev Dhavan has analysed the colonial history of laws governing speech in India to observe continuity from the administration then, to the post-independence orientation of speech laws, to point out that an inherent distrust of the media has always existed in the legal structure, be it before or after the Indian Constitution. He traces such form of legal structure to a desire to control, rather than enable the “public” rooted in the context of colonial rather than democratic pressures [9].</p>
<p>This trend also links back to what happens in the case of <em>Cricket Association of Bengal</em> which is cited in support of the striking down of Section 66A in <em>Shreya Singhal</em>. In <em>Cricket Association of Bengal</em>, while there is a recognition of the limitations of Marketplace of Ideas in how it can concentrate participation in democratic discussions only to the hands of those with adequate purchasing power,9 it also fails to amend this through a process of greater participation and representation of diverse public on media. What it broadly does instead is conflate the public to the State, holding that it is only through State-administered public broadcasting that greater participation and representation of diverse public on media can happen. Accordingly, Justice B.P. Jeevan Reddy in his judgement states:</p>
<blockquote>Public good lies in ensuring plurality of opinions, views and ideas and that would scarcely be served by private broadcasters, who would be and who are bound to be actuated by profit motive. There is a far greater likelihood of these private broadcasters indulging in misinformation, disinformation and manipulation of news and views than the government-controlled media, which is at least subject to public and parliamentary scrutiny. (para 181, emphasis added)</blockquote>
<p>Such architecture of Government regulation in the governance of speech, visible both in <em>Cricket Association of Bengal</em>, and by extension in the 66A discussion in <em>Shreya Singhal</em>, but also in the Sections 69A and 79 discussion in the latter judgement, aspires not at expanding and creating a Habermasian Public Sphere of unlimited lively discussion, but rather, a pre-defined, controlled sphere of the “public” which behaves in congruence with the interests of the State. While on the surface it may seem to recognise the limits of the Marketplace of Ideas approach in speech governance and aim for reform of the same, in the bigger scheme of things, the criticism of the marketplace is really directed towards putting more control of public speech in the hands of the State machinery [9].</p>
<p>In such a background of the control trend, even a judgement like <em>Shreya Singhal</em> with such a progressive outcome, appears like a flash in the pan. It might allow for some seemingly liberal advancements in free speech, but it does so only within the larger structure of control mechanisms created for speech ingrained within a pre-independence, undemocratic form of governance which was disrespectful of an independent Public Sphere. The question which then needs to be asked is this: While judgements like <em>Shreya Singhal</em> strike down the really repressive, do they actually bring about a structural change in legal assumptions about public speech? Or is the same colonial desire of control which is permeating the most progressive pronouncements of our jurisdiction? Is it moving towards a participatory, diverse and independent Public Sphere, or something which appears close enough to free discussion, but really is carefully monitored to produced “socially relevant” content, whereby what is relevant is defined through a complicated State apparatus? As our speech laws move to the Internet Age, these are some questions we must ask if the hope for the law is to enable involved, democratic citizenry, rather than a colonial-flavoured Internet public.</p>
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<h2>References</h2>
<p>[1] Judgement accessed from <a href="http://supremecourtofindia.nic.in/FileServer/2015-03-24_1427183283.pdf">http://supremecourtofindia.nic.in/FileServer/2015-03-24_1427183283.pdf</a>.</p>
<p>[2] Stein, Laura. 2006. <em>Speech rights in America: The First Amendment, Democracy, and the Media</em>. Chicago: University of Chicago Press.</p>
<p>[3] Judgement accessed from <a href="http://indiankanoon.org/doc/539407/">http://indiankanoon.org/doc/539407/</a>.</p>
<p>[4] Judgement accessed from <a href="http://indiankanoon.org/doc/1327342/">http://indiankanoon.org/doc/1327342/</a>.</p>
<p>[5] 250 US 616 (1919).</p>
<p>[6] 521 U.S. 844 (1997).</p>
<p>[7] Bhatia, Gautam. 2015. At the Heart of the Landmark 66A Ruling: The Crucial Distinction between Advocacy and Incitement. Scroll. March 25. Accessed from <a href="http://scroll.in/article/716034/at-the-heart-of-the-landmark-66a-ruling-the-crucial-distinction-between-advocacy-and-incitement">http://scroll.in/article/716034/at-the-heart-of-the-landmark-66a-ruling-the-crucial-distinction-between-advocacy-and-incitement</a>.</p>
<p>[8] See: Liang, Lawrence. 2011. Reasonable Restrictions and Unreasonable Speech. InfoChange. Accessed from <a href="http://infochangeindia.org/agenda/freedom-of-expression/reasonable-restrictions-and-unreasonable-speech.html">http://infochangeindia.org/agenda/freedom-of-expression/reasonable-restrictions-and-unreasonable-speech.html</a>. Also see: Acharya, Bhairav. 2015. Free Speech Policy in India: Community, Custom, Censorship, and the Future of Internet Regulation. May 06. Accessed from <a href="http://notacoda.net/2015/05/06/free-speech-policy-in-india-community-custom-censorship-and-the-future-of-internet-regulation/">http://notacoda.net/2015/05/06/free-speech-policy-in-india-community-custom-censorship-and-the-future-of-internet-regulation/</a>.</p>
<p>[9] Dhavan, Rajeev. 2009. Moral Consensus in a Law and Order Society. In Aravind Rajagopal (ed.), <em>The Indian Public Sphere</em>. Oxford University Press. Pp. 92-93.</p>
<p>[10] See the discussion in the previous section of this essay.</p>
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<p><em>The post is published under <a href="https://creativecommons.org/licenses/by/4.0/">Creative Commons Attribution 4.0 International</a> license, and copyright is retained by the author.</em></p>
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For more details visit <a href='https://cis-india.org/raw/blog_governing-speech-on-the-internet'>https://cis-india.org/raw/blog_governing-speech-on-the-internet</a>
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No publisherSmarika KumarFreedom of Speech and ExpressionJudiciaryRAW Blog69ACensorshipSection 66AResearchers at Work2015-08-28T05:57:55ZBlog EntryStats from 2014 reveal horror of scrapped section 66A of IT Act
https://cis-india.org/internet-governance/news/hindustan-times-august-20-2015-aloke-tikku-stats-from-2014-reveal-horror-of-scrapped-section-66-a-of-it-act
<b>An average of six netizens were arrested every day in 2014 for posting offensive content online under section 66A of the Information Technology Act, a draconian and much abused law no longer in use.</b>
<p style="text-align: justify; ">The article by Aloke Tikku was <a class="external-link" href="http://www.hindustantimes.com/tech/stats-from-2014-reveal-horror-of-scrapped-section-66a-of-it-act/story-G2xCoELsNbxpl5dXvl0aFJ.html">published in the Hindustan Times</a> on August 20, 2015. Pranesh Prakash gave inputs.</p>
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<p style="text-align: justify; ">A first-of-its-kind set of statistics compiled by the National Crime Records Bureau reveals that 2,402 people, including 29 women, were arrested in 4,192 cases under section 66A — which was struck down in March by the Supreme Court that ruled that it violated the constitutional freedom of speech.</p>
<p style="text-align: justify; ">These arrests made up nearly 60% of all arrests under the IT Act, and 40% of arrests for cyber crimes in 2014. It was also a little less than twice the number of people caught red-handed accepting bribes the same year.</p>
<p style="text-align: justify; ">“These statistics are shocking. I had assumed there may be a few hundred cases, at worst,” said Shreya Singhal, on whose petition the top court had scrapped the provision.</p>
<p style="text-align: justify; ">“It validates the judgment even more than when it was delivered,” said Singhal, a law student.</p>
<p style="text-align: justify; ">Quite like Rinu Srinivasan – one of two Mumbai girls arrested in 2012 for a Facebook post regarding Shiv Sena chief Bal Thackrey’s death — nearly half of those arrested (1,217) were in the 18-29 age group. This included nine girls. Another 1,015 were in the 30-44 age group while 166 were between 45 and 59 years old.</p>
<p style="text-align: justify; ">The now-repealed section 66A prescribed a three-year jail term for online content that could be construed to be offensive or false.</p>
<p style="text-align: justify; ">This is the first time the NCRB has collected detailed statistics on cyber crimes, listing out the number of cases registered under each section of the IT Act.</p>
<p style="text-align: justify; ">A government official conceded that the large number of cases registered under section 66A meant that the Centre’s guidelines — issued after a public outcry in November 2012 against its misuse — had served little purpose. In May 2013, the Supreme Court too put its weight behind the guidelines and made it legally binding on them.</p>
<p style="text-align: justify; ">In these guidelines, the Centre had made prior approval of an inspector general of police-rank officer mandatory for all arrests under section 66A. “Either this rule wasn’t followed or the IGPs did not rise to the occasion,” the official said.</p>
<p style="text-align: justify; ">The NCRB did not give a state-wise break-up of arrests under section 66A.</p>
<p style="text-align: justify; ">But in terms of cases registered, Uttar Pradesh led the pack with 898, followed by Karnataka (603), Assam (377), Maharashtra (375), Telangana (352), Rajasthan (291), Kerala (229), Punjab (123) and Delhi (137).</p>
<p style="text-align: justify; ">“It was “unconscionable that 2,402 persons were arrested in 2014, and many made to languish in jail, under a provision that we now know to have been unconstitutional,” said Pranesh Prakash at the Bengaluru-headquartered research and advocacy group, Centre for Internet and Society.</p>
<p style="text-align: justify; ">“Even after the Supreme Court laid down more stringent ad-hoc guidelines on arrests under Section 66A, it is clear they were not effective in the least: 860 charge-sheets were filed by the police under Section 66A in 2014,” the policy director at CIS said.</p>
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For more details visit <a href='https://cis-india.org/internet-governance/news/hindustan-times-august-20-2015-aloke-tikku-stats-from-2014-reveal-horror-of-scrapped-section-66-a-of-it-act'>https://cis-india.org/internet-governance/news/hindustan-times-august-20-2015-aloke-tikku-stats-from-2014-reveal-horror-of-scrapped-section-66-a-of-it-act</a>
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No publisherpraskrishnaIT ActInternet GovernanceSection 66A2015-09-26T07:28:13ZNews ItemNo more 66A!
https://cis-india.org/internet-governance/blog/no-more-66a
<b>In a landmark decision, the Supreme Court has struck down Section 66A. Today was a great day for freedom of speech on the Internet! When Section 66A was in operation, if you made a statement that led to offence, you could be prosecuted. We are an offence-friendly nation, judging by media reports in the last year. It was a year of book-bans, website blocking and takedown requests. Facebook’s Transparency Report showed that next to the US, India made the most requests for information about user accounts. A complaint under Section 66A would be a ground for such requests.</b>
<p style="text-align: justify; ">Section 66A hung like a sword in the middle: Shaheen Dhada was arrested in Maharashtra for observing that Bal Thackeray’s funeral shut down the city, Devu Chodankar in Goa and Syed Waqar in Karnataka were arrested for making posts about Narendra Modi, and a Puducherry man was arrested for criticizing P. Chidambaram’s son. The law was vague and so widely worded that it was prone to misuse, and was in fact being misused.</p>
<p style="text-align: justify; ">Today, the Supreme Court struck down Section 66A in its judgment on a <a class="external-link" href="http://cis-india.org/internet-governance/blog/overview-constitutional-challenges-on-itact">set of petitions</a> heard together last year and earlier this year. Stating that the law is vague, the bench comprising Chelameshwar and Nariman, JJ. held that while restrictions on free speech are constitutional insofar as they are in line with Article 19(2) of the Constitution. Section 66A, they held, does not meet this test: The central protection of free speech is the freedom to make statements that “offend, shock or disturb”, and Section 66A is an unconstitutional curtailment of these freedoms. To cross the threshold of constitutional limitation, the impugned speech must be of such a nature that it incites violence or is an exhortation to violence. Section 66A, by being extremely vague and broad, does not meet this threshold. These are, of course, drawn from news reports of the judgment; the judgment is not available yet.</p>
<p style="text-align: justify; ">Reports also say that Section 79(3)(b) has been read down. Previously, any private individual or entity, and the government and its departments could request intermediaries to take down a website, without a court order. If the intermediaries did not comply, they would lose immunity under Section 79. The Supreme Court judgment states that both in Rule 3(4) of the Intermediaries Guidelines and in Section 79(3)(b), the "actual knowledge of the court order or government notification" is necessary before website takedowns can be effected. In effect, this mean that intermediaries <i>need not</i> act upon private notices under Section 79, while they can act upon them if they choose. This stops intermediaries from standing judge over what constitutes an unlawful act. If they choose not to take down content after receiving a private notice, they will not lose immunity under Section 79.</p>
<p style="text-align: justify; ">Section 69A, the website blocking procedure, has been left intact by the Court, despite infirmities such as a lack of judicial review and non-transparent operation. More updates when the judgment is made available.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/no-more-66a'>https://cis-india.org/internet-governance/blog/no-more-66a</a>
</p>
No publishergeethaCensorshipFreedom of Speech and ExpressionHomepageIntermediary LiabilityFeaturedChilling EffectSection 66AArticle 19(1)(a)Blocking2015-03-26T02:01:31ZBlog EntryOverview of the Constitutional Challenges to the IT Act
https://cis-india.org/internet-governance/blog/overview-constitutional-challenges-on-itact
<b>There are currently ten cases before the Supreme Court challenging various provisions of the Information Technology Act, the rules made under that, and other laws, that are being heard jointly. Advocate Gopal Sankaranarayanan who's arguing Anoop M.K. v. Union of India has put together this chart that helps you track what's being challenged in each case.</b>
<br />
<br />
<br />
<table class="tg" style="undefined;table-layout: fixed; border=">
<tr>
<th class="tg-s6z2">PENDING MATTERS</th>
<th class="tg-s6z2">CASE NUMBER</th>
<th class="tg-0ord">PROVISIONS CHALLENGED</th>
</tr>
<tr>
<td class="tg-4eph">Shreya Singhal v. Union of India</td>
<td class="tg-spn1">W.P.(CRL.) NO. 167/2012</td>
<td class="tg-zapm">66A</td>
</tr>
<tr>
<td class="tg-031e">Common Cause & Anr. v. Union of India</td>
<td class="tg-s6z2">W.P.(C) NO. 21/2013</td>
<td class="tg-0ord">66A, 69A & 80</td>
</tr>
<tr>
<td class="tg-4eph">Rajeev Chandrasekhar v. Union of India & Anr.</td>
<td class="tg-spn1">W.P.(C) NO. 23/2013</td>
<td class="tg-zapm">66A & Rules 3(2), 3(3), 3(4) & 3(7) of the Intermediaries Rules 2011</td>
</tr>
<tr>
<td class="tg-031e">Dilip Kumar Tulsidas Shah v. Union of India & Anr.</td>
<td class="tg-s6z2">W.P.(C) NO. 97/2013</td>
<td class="tg-0ord">66A</td>
</tr>
<tr>
<td class="tg-4eph">Peoples Union for Civil Liberties v. Union of India & Ors.</td>
<td class="tg-spn1">W.P.(CRL.) NO. 199/2013</td>
<td class="tg-zapm">66A, 69A, Intermediaries Rules 2011 (s.79(2) Rules) & Blocking of Access of Information by Public Rules 2009 (s.69A Rules)</td>
</tr>
<tr>
<td class="tg-031e">Mouthshut.Com (India) Pvt. Ltd. & Anr. v. Union of India & Ors.</td>
<td class="tg-s6z2">W.P.(C) NO. 217/2013</td>
<td class="tg-0ord">66A & Intermediaries Rules 2011</td>
</tr>
<tr>
<td class="tg-4eph">Taslima Nasrin v. State of U.P & Ors.</td>
<td class="tg-spn1">W.P.(CRL.) NO. 222/2013</td>
<td class="tg-zapm">66A</td>
</tr>
<tr>
<td class="tg-031e">Manoj Oswal v. Union of India & Anr.</td>
<td class="tg-s6z2">W.P.(CRL.) NO. 225/2013</td>
<td class="tg-0ord">66A & 499/500 Indian Penal Code</td>
</tr>
<tr>
<td class="tg-4eph">Internet and Mobile Ass'n of India & Anr. v. Union of India & Anr.</td>
<td class="tg-spn1">W.P.(C) NO. 758/2014</td>
<td class="tg-zapm">79(3) & Intermediaries Rules 2011</td>
</tr>
<tr>
<td class="tg-031e">Anoop M.K. v. Union of India & Ors.</td>
<td class="tg-s6z2">W.P.(CRL.) NO. 196/2014</td>
<td class="tg-0ord">66A, 69A, 80 & S.118(d) of the Kerala Police Act, 2011</td>
</tr>
</table>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/overview-constitutional-challenges-on-itact'>https://cis-india.org/internet-governance/blog/overview-constitutional-challenges-on-itact</a>
</p>
No publisherpraneshIT ActCourt CaseFreedom of Speech and ExpressionIntermediary LiabilityConstitutional LawCensorshipSection 66AArticle 19(1)(a)Blocking2014-12-19T09:01:50ZBlog EntryFOEX Live
https://cis-india.org/internet-governance/blog/foex-live
<b>Selections of news on online freedom of expression and digital technology from across India (and some parts of the world)</b>
<p><iframe frameborder="0" height="650" src="http://cdn.knightlab.com/libs/timeline/latest/embed/index.html?source=0Aq0BN7sFZRQFdGJqaHNnSC1YNTYzZEM0SThGd2ZGVFE&font=Bevan-PotanoSans&maptype=toner&lang=en&height=650" width="100%"></iframe></p>
<hr style="text-align: justify; " />
<p style="text-align: justify; "><span>For feedback, comments and any incidents of online free speech violation you are troubled or intrigued by, please email Geetha at </span><span>geetha[at]cis-india.org or on Twitter at @covertlight.</span></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/foex-live'>https://cis-india.org/internet-governance/blog/foex-live</a>
</p>
No publishergeethaSocial MediaFeedbackPress FreedomsCensorshipFOEX LiveHuman Rights OnlineChilling EffectSection 66AArticle 19(1)(a)2014-07-07T12:36:49ZBlog EntryFOEX Live: June 16-23, 2014
https://cis-india.org/internet-governance/blog/foex-live-june-16-23-2014
<b>A weekly selection of news on online freedom of expression and digital technology from across India (and some parts of the world). </b>
<p style="text-align: justify; "><span>A quick and non-exhaustive perusal of this week’s content shows that many people are worried about the state of India’s free speech following police action on account of posts derogatory to or critical of the Prime Minister. Lawyers, journalists, former civil servants and other experts have joined in expressing this worry.</span></p>
<p style="text-align: justify; ">While a crackdown on freedom of expression would indeed be catastrophic and possibly unconstitutional, fears are so far based on police action in only 4 recent cases: Syed Waqar in Karnataka, Devu Chodankar in Goa and two cases in Kerala where college students and principals were arrested for derogatory references to Modi. Violence in Pune, such as the murder of a young Muslim man on his way home from prayer, or the creation of a Social Peace Force of citizens to police offensive Facebook content, are all related, but perhaps ought to be more carefully and deeply explored.</p>
<h3 style="text-align: justify; ">Kerala:</h3>
<p style="text-align: justify; ">In the Assembly, State Home Minister Ramesh Chennithala <a href="http://www.telegraphindia.com/1140618/jsp/nation/story_18524231.jsp#.U6kh1Y2SxDs">said that the State government did not approve</a> of the registration of cases against students on grounds of anti-Modi publications. The Minister denunciation of political opponents through cartoons and write-ups was common practice in Kerala, and “<i>booking the authors for this was not the state government’s policy</i>”.<span> </span></p>
<h3 style="text-align: justify; ">Maharashtra:</h3>
<p style="text-align: justify; ">Nearly 20,000 people have <a href="http://www.iol.co.za/scitech/technology/internet/peace-force-takes-aim-at-facebook-1.1705842#.U6khAI2SxDs">joined</a> the Social Peace Force, a Facebook group that aims to police offensive content on the social networking site. The group owner’s stated aim is to target religious posts that may provoke riots, not political ones. Subjective determinations of what qualifies as ‘offensive content’ remain a troubling issue.</p>
<h3><span>Tamil Nadu:</span></h3>
<p style="text-align: justify; ">In Chennai, 101 people, including filmmakers, writers, civil servants and activists, have <a href="http://timesofindia.indiatimes.com/City/Chennai/Intelligentsia-ask-CM-to-ensure-screening-of-Lankan-movie/articleshow/37107317.cms">signed a petition</a> requesting Chief Minister J. Jayalalithaa to permit safe screening of the Indo-Sri Lankan film “<i>With You, Without You</i>”. The petition comes after theatres cancelled shows of the film following threatening calls from some Tamil groups.</p>
<h3 style="text-align: justify; ">Telangana:</h3>
<p style="text-align: justify; ">The K. Chandrasekhar Rao government <a href="http://www.newslaundry.com/2014/06/23/channels-on-the-telangana-block/">has blocked</a> two Telugu news channels for airing content that was “<i>derogatory, highly objectionable and in bad taste</i>”.</p>
<p style="text-align: justify; ">The Telagana government’s decision to block news channels has its supporters. Padmaja Shaw <a href="http://www.thehoot.org/web/When-media-threatens-democracy/7593-1-1-14-true.html">considers</a> the mainstream Andhra media contemptuous and disrespectful of “<i>all things Telangana</i>”, while Madabushi Sridhar <a href="http://www.thehoot.org/web/Abusive-media-vs-angry-legislature/7591-1-1-2-true.html">concludes</a> that Telugu channel TV9’s coverage violates the dignity of the legislature.</p>
<h3><span>West Bengal:</span></h3>
<p style="text-align: justify; ">Seemingly anti-Modi arrests <a href="http://www.telegraphindia.com/1140617/jsp/nation/story_18520612.jsp#.U6kh142SxDs">have led to worry</a> among citizens about speaking freely on the Internet. Section 66A poses a particular threat.</p>
<h3><span>News & Opinion:</span></h3>
<p style="text-align: justify; ">The Department of Telecom is preparing a draft of the National Telecom Policy, in which it <a class="external-link" href="http://articles.economictimes.indiatimes.com/2014-06-19/news/50710986_1_national-broadband-policy-broadband-penetration-175-million-broadband-connections">plans to treat broadband Internet as a basic right</a>. The Policy, which will include deliberations on affordable broadband access for end users, will be finalised in 100 days.</p>
<p style="text-align: justify; "><span>While addressing a CII CEO’s Roundtable on Media and Industry, Information and Broadcasting Minister </span><a href="http://www.indiantelevision.com/regulators/i-and-b-ministry/government-committed-to-communicating-with-people-across-media-platforms-javadekar-140619">Prakash Javadekar promised</a><span> a transparent and stable policy regime, operating on a time-bound basis. He promised that efforts would be streamlined to ensure speedy and transparent clearances.</span></p>
<p style="text-align: justify; ">A perceived increase in police action against anti-Modi publications or statements <a href="http://www.dw.de/indias-anti-modi-netizens-fear-possible-crackdown/a-17725267">has many people worried</a>. But the Prime Minister himself was once a fierce proponent of dissent; in protest against the then-UPA government’s blocking of webpages, Modi changed his display pic to black.</p>
<p style="text-align: justify; "><i><a href="http://www.medianama.com/2014/06/223-social-media-helpline-mumbai/">Medianama wonders</a></i> whether the Mumbai police’s Cyber Lab and helpline to monitor offensive content on the Internet is actually a good idea.</p>
<p style="text-align: justify; "><a href="http://www.livemint.com/Opinion/vGkg6ig9qJqzm2eL3SxkUK/Time-for-Modi-critics-to-just-shut-up.html">G. Sampath wonders</a> why critics of the Prime Minister Narendra Modi can’t voluntarily refrain from exercising their freedom of speech, and allow India to be an all-agreeable development haven. Readers may find his sarcasm subtle and hard to catch.</p>
<p style="text-align: justify; ">Experts in India <a href="http://www.business-standard.com/article/current-affairs/does-eu-s-right-to-be-forgotten-put-barrier-on-the-net-114062400073_1.html">mull over</a> whether Section 79 of the Information Technology Act, 2000, carries a loophole enabling users to exercise a ‘right to be forgotten’. Some say Section 79 does not prohibit user requests to be forgotten, while others find it unsettling to provide private intermediaries such powers of censorship.</p>
<h3><span>Some parts of the world:</span></h3>
<p style="text-align: justify; ">Sri Lanka <a href="http://www.canindia.com/2014/06/sri-lanka-bans-meetings-that-can-incite-religious-hatred/">has banned</a> public meetings or rallies intended to promote religious hatred.</p>
<p style="text-align: justify; ">In Pakistan, Twitter <a href="http://www.outlookindia.com/news/article/Twitter-Restores-Access-to-Blasphemous-Material-in-Pak/845254">has restored</a> accounts and tweets that were taken down last month on allegations of being blasphemous or ‘unethical’.</p>
<p style="text-align: justify; ">In Myanmar, an anti-hate speech network <a href="http://www.mmtimes.com/index.php/national-news/10785-anti-hate-speech-network-proposed.html">has been proposed</a> throughout the country to raise awareness and opposition to hate speech and violence.</p>
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<hr style="text-align: justify; " />
<p style="text-align: justify; "><span>For feedback, comments and any incidents of online free speech violation you are troubled or intrigued by, please email Geetha at </span><span>geetha[at]cis-india.org or on Twitter at @covertlight.</span></p>
</div>
<div class="relatedItems"></div>
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<div class="documentActions"></div>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/foex-live-june-16-23-2014'>https://cis-india.org/internet-governance/blog/foex-live-june-16-23-2014</a>
</p>
No publishergeethaSocial MediaFreedom of Speech and ExpressionFOEX LiveCensorshipSection 66AArticle 19(1)(a)2014-06-24T10:23:18ZBlog EntryFOEX Live: June 8-15, 2014
https://cis-india.org/internet-governance/blog/foex-live-june-8-15-2014
<b>A weekly selection of news on online freedom of expression and digital technology from across India (and some parts of the world). Please email relevant news/cases/incidents to geetha[at]cis-india.org.</b>
<h3 style="text-align: justify; ">Karnataka:</h3>
<p style="text-align: justify; "><span>A Hindu rightwing group </span><a href="http://www.daijiworld.com/news/news_disp.asp?n_id=241239">demanded the arrest</a><span> of a prominent activist, who during a speech on the much-debated Anti-superstition Bill, made comments that are allegedly blasphemous.</span></p>
<h3 style="text-align: justify; ">Kerala:</h3>
<p style="text-align: justify; "><span></span><span>On June 10, the principal and six students of Government Polytechnic at Kunnamkulam, Thrissur, </span><a href="http://indianexpress.com/article/india/india-others/modi-on-negative-faces-list-principal-6-others-booked/">were arrested</a><span> for publishing a photograph of Prime Minister Narendra Modi alongside photographs of Hitler, Osana bin Laden and Ajmal Kasab, under the rubric ‘negative faces’. An FIR was </span><a href="http://www.thehindu.com/news/national/kerala/case-against-principal-students-for-slighting-modi/article6101911.ece?ref=relatedNews">registered</a><span> against them for various offences under the Indian Penal Code including defamation (Section 500), printing or engraving matter known to be defamatory (Section 501), intentional insult with intent to provoke breach of peace (Section 504), and concealing design to commit offence (Section 120) read with Section 34 (acts done by several persons in furtherance of common intention). The principal was later </span><a href="http://www.thehindu.com/news/national/kerala/kerala-college-principal-arrested-over-modi-negative-faces-row/article6111575.ece?ref=relatedNews">released on bail</a><span>.</span></p>
<p style="text-align: justify; ">In a similarly unsettling incident, on June 14, 2014, a <a href="http://www.thehindu.com/news/national/kerala/another-kerala-college-wades-into-modi-row/article6111912.ece?ref=relatedNews">case was registered</a> against the principal and 11 students of Sree Krishna College, Guruvayur, for using “objectionable and unsavoury” language in a crossword in relation to PM Narendra Modi, Rahul Gandhi, Shashi Tharoor, etc. Those arrested were later <a href="http://www.thehindu.com/news/national/kerala/nine-students-arrested-in-kerala-for-antimodi-remarks-in-campus-magazine/article6116911.ece?homepage=true&utm_source=Most%20Popular&utm_medium=Homepage&utm_campaign=Widget%20Promo">released on bail</a>.</p>
<h3 style="text-align: justify; ">Maharashtra:</h3>
<p style="text-align: justify; ">Facebook posts involving objectionable images of Dr. B.R. Ambedkar led to <a href="http://www.thehindu.com/news/facebook-post-on-ambedkar-sparks-violence-in-mharashtra/article6096766.ece">arson and vandalism in Pune</a>. Police have sought details of the originating IP address from Facebook.</p>
<p style="text-align: justify; ">A Pune-based entrepreneur <a href="http://www.ndtv.com/article/cities/new-facebook-group-to-block-offensive-posts-against-religious-figures-542189">has set up</a> a Facebook group to block ‘offensive’ posts against religious leaders. The Social Peace Force will use Facebook’s ‘Report Spam’ option to take-down of ‘offensive’ material.<span> </span></p>
<p style="text-align: justify; ">Deputy Chief Minister Ajit Pawar <a href="http://indianexpress.com/article/india/india-others/maharashtra-deputy-cm-says-ban-social-media-retracts/">suggested</a> a ban on social media in India, and retracted his statement post-haste.</p>
<h3 style="text-align: justify; ">Punjab:</h3>
<p style="text-align: justify; ">A bailable warrant <a href="http://www.hindustantimes.com/punjab/chandigarh/warrants-against-singer-kailash-kher-for-hurting-religious-sentiments/article1-1227795.aspx">was issued</a> against singer Kailash Kher for failing to appear in court in relation to a case. The singer is alleged to have hurt religious sentiments of the Hindu community in a song, and a case registered under Sections 295A and 298, Indian Penal Code.</p>
<h3 style="text-align: justify; ">Uttar Pradesh:</h3>
<p style="text-align: justify; ">The presence of a photograph on Facebook, in which an accused in a murder case is found posing with an illegal firearm, resulted in a <a href="http://www.firstpost.com/india/up-murder-accused-booked-for-posing-on-facebook-with-illegal-gun-1567323.html">case being registered</a> against him under the IT Act.<span> </span></p>
<h3 style="text-align: justify; ">News & Opinion:</h3>
<p style="text-align: justify; ">Authors, civil society activists and other concerned citizens <a href="http://www.financialexpress.com/news/civil-society-activists-flay-narendra-modi-pmos-silence-on-attacks-on-dissent/1258143">issued a joint statement</a> questioning Prime Minister Modi’s silence over arrests and attacks on exercise of free speech and dissent. Signatories include Aruna Roy, Romila Thapar, Baba Adhav, Vivan Sundaram, Mrinal Pande, Jean Dreze, Jayati Ghosh, Anand Pathwardhan and Mallika Sarabhai.</p>
<p style="text-align: justify; ">In response to Mumbai police’s decision to take action against those who ‘like’ objectionable or offensive content on Facebook, experts say the <a href="http://indianexpress.com/article/cities/mumbai/freedom-to-like-shareany-content-a-fundamental-right-experts/">freedom to ‘like’ or ‘share’</a> posts or tweets is fundamental to freedom of expression. India’s defamation laws for print and the Internet need harmonization, moreover.</p>
<p style="text-align: justify; ">While supporting freedom of expression, Minister for Information and Broadcasting Prakash Javadekar cautioned <a href="http://www.mizonews.net/nation/no-compromise-on-press-freedom-but-practice-self-restraint-javadekar/">the press</a> and <a href="http://articles.economictimes.indiatimes.com/2014-06-09/news/50448166_1_facebook-post-prakash-javadekar-speech">all users of social media</a> that the press and social media should be used responsibly for unity and peace. The Minister has also <a href="http://blogs.reuters.com/faithworld/2014/06/09/indian-govt-vows-to-uphold-free-speech-after-hindu-book-withdrawal/">spoken out</a> in favour of free publication, in light of recent legal action against academic work and other books.</p>
<p style="text-align: justify; ">Infosys, India’s leading IT company, <a href="http://www.thehindu.com/news/national/infosys-slaps-defamation-notice-on-three-newspapers/article6098717.ece">served defamation notices</a> on the <i>Economic Times</i>, the <i>Times of India </i>and the Financial Express, for “loss and reputation and goodwill due to circulation of defamatory articles”. Removal of articles and an unconditional apology were sought, and Infosys claimed damages amounting to Rs. 2000 crore. On a related note, Dr. Ashok Prasad <a href="http://www.newslaundry.com/2014/06/09/arresting-the-slander/">argues</a> that criminal defamation is a violation of freedom of speech.</p>
<p style="text-align: justify; ">Drawing on examples from the last 3 years, Ritika Katyal <a href="http://southasia.foreignpolicy.com/posts/2014/06/11/warning_bells_for_freedom_of_expression_in_modi_s_india">analyses</a> India’s increasing violence and legal action against dissent and hurt sentiment, and concludes that Prime Minister Narendra Modi has both the responsibility and ability to “<i>rein in Hindu hardliners</i>”.</p>
<p style="text-align: justify; ">Discretionary powers resting with the police under the vaguely and broadly drafted Section 66A, Information Technology Act, are dangerous and unconstitutional, <a href="http://indiatogether.org/articles/freedom-of-speech-on-internet-section-66a-laws">say experts</a>.</p>
<p style="text-align: justify; ">Providing an alternative view, the <i>Hindustan Times </i><a href="http://www.hindustantimes.com/comment/efficient-policing-is-the-best-way-to-check-cyber-crimes/article1-1228163.aspx">comments</a> that the police ought to “<i>pull up their socks</i>” and understand the social media in order to effectively police objectionable and offensive content on the Internet.</p>
<h3 style="text-align: justify; ">Keeping Track:</h3>
<p style="text-align: justify; ">Indconlawphil’s <a href="http://indconlawphil.wordpress.com/free-speech-watch/">Free Speech Watch</a> keeps track of violations of freedom of expression in India.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/foex-live-june-8-15-2014'>https://cis-india.org/internet-governance/blog/foex-live-june-8-15-2014</a>
</p>
No publishergeethaFreedom of Speech and ExpressionSocial MediaFOEX LiveSection 66A2014-06-16T10:22:31ZBlog EntryTwo Arguments Against the Constitutionality of Section 66A
https://cis-india.org/internet-governance/blog/two-arguments-against-the-constitutionality-of-section-66a
<b>Gautam Bhatia explores the constitutionality of Section 66A in light of recent events.</b>
<p style="text-align: justify; "><span>In the immediate aftermath of the elections, free speech issues have come to the fore again. In Goa, a Facebook user </span><a href="http://m.firstpost.com/politics/goa-facebook-user-faces-jail-term-for-anti-modi-comments-1538499.html">was summoned</a><span> for a post warning a second holocaust if Modi was elected to power. In Karnataka, a MBA student was </span><a href="http://www.hindustantimes.com/india-news/aap-activist-arrested-for-allegedly-forwarding-anti-modi-mms-in-karnataka/article1-1222788.aspx">likewise arrested</a><span> for circulating an MMS that showed Modi’s face morphed onto a corpse, with the slogan “</span><i>Abki baar antim sanskaar</i><span>”. These arrests have reopened the debate about the constitutional validity of Section 66A of the IT Act, which is the legal provision governing online speech in India. </span><a href="https://cis-india.org/internet-governance/resources/section-66A-information-technology-act">Section 66A</a><span> criminalises, among other things, the sending of information that is “</span><i>grossly offensive or menacing in character</i><span>” or causes “</span><i>annoyance or inconvenience</i><span>”. The two instances cited above raise – not for the first time – the concern that when it comes to implementation, Section 66A is unworkable to the point of being unconstitutional.</span></p>
<p style="text-align: justify; "><span>Like all legal provisions, Section 66A must comply with the fundamental rights chapter of the Indian Constitution. Article 19(1)(a) guarantees the freedom of speech and expression, and Article 19(2) permits reasonable restrictions in the interests of – </span><i>inter alia</i><span> – “public order, decency or morality”. Presumably, the only way in which Section 66A can be justified is by showing that it falls within the category of “public order” or of “morality”. The precedent of the Supreme Court, however, has interpreted Article 19(2) in far narrower terms than the ones that Section 66A uses. The Court has </span><a href="http://indiankanoon.org/doc/1386353/">held</a><span> that “public order” may only be invoked if there is a direct and immediate relation between the offending speech and a public order disturbance – such as, for instance, a speaker making an incendiary speech to an excited mob, advocating imminent violence (the Court has colloquially stated the requirement to be a “</span><i>spark in a powder keg</i><span>”). Similarly, while the Court has never precisely defined what “morality” – for the purposes of Article 19(2) – means, the term has been </span><a href="http://www.indiankanoon.org/doc/1623275/">invoked</a><span> where (arguably) pornographic materials are concerned – and never simply because speech has “offended” or “menaced” someone. Indeed, the rhetoric of the Court has consistently rejected the proposition that the government can prohibit individuals from offending one another.</span></p>
<p style="text-align: justify; "><span>This raises two constitutional problems with Section 66A: the problems of </span><i>overbreadth </i><span>and </span><i>vagueness</i><span>. Both doctrines have been developed to their fullest in American free speech law, but the underlying principles are universal.</span></p>
<p style="text-align: justify; "><span>A statute is </span><i>overbroad </i><span>when it potentially includes within its prohibitions </span><i>both</i><span> speech that it is entitled to prohibit, and speech that it is not. In </span><a href="http://supreme.justia.com/cases/federal/us/405/518/case.html"><i>Gooding v. Wilson</i></a><span>, a Georgia statute criminalized the use of “</span><i>opprobrious words or abusive language</i><span>”. In defending the statute, the State of Georgia argued that its Courts had read it narrowly, limiting its application to “fighting words” – i.e., words that by their very nature tended to incite an imminent breach of the peace, something that was indisputably within the power of the State to prohibit. The Supreme Court rejected the argument and invalidated the statute. It found that the words “opprobrious” and “abusive” had greater reach than “fighting words”. Thus, since the statute left “</span><i>wide open the standard of responsibility, so that it [was] easily susceptible to improper application</i><span>”, the Court struck it down.</span></p>
<p style="text-align: justify; "><span>A statute is </span><i>vague </i><span>when persons of “</span><i>ordinary intelligence… have no reasonable opportunity to know what is prohibited</i><span>.” In </span><a href="http://www.bc.edu/bc_org/avp/cas/comm/free_speech/grayned.html"><i>Grayned v. Rockford</i></a><span>, the American Supreme Court noted that </span><i>“</i><i>a vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” </i><span>There are, therefore, a number of problems with vague laws: one of the fundamental purposes of law is to allow citizens to plan their affairs with a degree of certainty. Vagueness in legislation prevents that. And equally importantly, vague laws leave a wide scope of implementing power with non-elected bodies, such as the police – leading to the fear of arbitrary application.</span></p>
<p style="text-align: justify; "><span>While overbreadth and vagueness are problems that affect legislation across the board, they assume a particular urgency when it comes to free speech. This is because, as the American Supreme Court has recognized on a number of occasions, speech regulating statutes must be scrutinized with specific care because of the </span><i>chilling effect</i><span>: when speech is penalized, people will – out of fear and caution – exercise self-censorship, and the political discourse will be impoverished. If we accept – as the Indian Courts have – that a primary reason for guaranteeing free expression rights is their indispensability to democracy, then the danger of self-censorship is one that we should be particularly solicitous of. Hence, when speech-regulating statutes do proscribe expression, they must be clear and narrowly drawn, in order to avoid the chilling effect. As the American Supreme Court euphemistically framed it, “</span><i>free speech needs breathing space to survive</i><span>.” Overbroad and vague speech-restricting statutes are particularly pernicious in denying it that breathing space.</span></p>
<p style="text-align: justify; "><span>There seems to be little doubt that Section 66A is both overbroad and vague. However ill-judged a holocaust comparison or a morphed corpse-image may be, neither of them are like sparks in a powder keg, which will lead to an immediate breach in public order – or “immoral” in the way of explicit pornography. We can therefore see, clearly, that the implementation of the law leaves almost unbounded scope to officials such as the police, provides room for unconstitutional interpretations, and is so vaguely framed that it is almost impossible to know, in advance, what actions fall within the rule, and which ones are not covered by it. If there is such a thing as over-breadth and vagueness </span><i>par excellence</i><span>, then Section 66A is surely it!</span></p>
<p style="text-align: justify; "><span>At various times in its history, the Supreme Court has acknowledged the problems of overbreadth, vagueness and the chilling effect, but never directly incorporated them into Indian law. As we have seen, each of these elements is connected to the other: over-broad and vague speech-regulating statutes are problematic because of the chilling effect. Since Section 66A is presently being challenged before the Supreme Court, there is a great opportunity for the Court both to get rid of this unconstitutional law, as well as strengthen the foundations of our free speech jurisprudence.</span></p>
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<p style="text-align: justify; "><span><i>Gautam Bhatia — @gautambhatia88 on Twitter — is a graduate of the National Law School of India University (2011), and presently an LLM student at the Yale Law School. He blogs about the Indian Constitution at <a class="moz-txt-link-freetext" href="http://indconlawphil.wordpress.com/">http://indconlawphil.wordpress.com</a>. Here at CIS, he blogs on issues of online freedom of speech and expression.</i></span></p>
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For more details visit <a href='https://cis-india.org/internet-governance/blog/two-arguments-against-the-constitutionality-of-section-66a'>https://cis-india.org/internet-governance/blog/two-arguments-against-the-constitutionality-of-section-66a</a>
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No publisherGautam BhatiaFreedom of Speech and ExpressionConstitutional LawCensorshipSection 66A2014-06-04T03:42:17ZBlog Entry