Centre for Internet and Society

Twitter users find several accounts suspended for unknown reasons

praskrishna — 2014-12-07T01:27:05Z

Twitter users woke up on Saturday to find several accounts suspended for unknown reasons, triggering conspiracy theories that only the accounts of right-wing supporters had been targeted.

The article by Vasudha Venugopal was published in the Economic Times on November 2, 2014. Pranesh Prakash gave his inputs.

While it was said to have resulted from a technical glitch that suspended random accounts, several tweeters said there was a pattern to the suspension because 'suspended users' were asked to change their behaviour to be able to continue using the micro-blogging site. But by afternoon it was clear that many accounts, irrespective of their posts, had been suspended for a few hours. All suspended accounts were restored by afternoon.

A message sent out to a tweeter whose account was suspended read, "Twitter has automated systems that find and remove multiple automated spam accounts in bulk.

Unfortunately, your account got caught in one of these spam groups by mistake." Twitter also apologised for the inconvenience but added, "It is possible your account posted an update that appeared to be spam, so please be careful what you tweet... You will need to change your behaviour to continue using Twitter. Repeat violations of the Twitter rules may result in the permanent suspension of your account."

This triggered outrage among the Twitteratti who called it internet policing. There was humour too, with a tweeter posting, "In the Twitter canteen you never get chicken wings in pairs because the right wing is blocked."

Twitter officials said there was no deliberate blocking of accounts and that the incident was an accident as part of spam cleaning process. Pranesh Prakash, policy director, Centre for Internet and Society, said though there have been instances of 'privatisation of censorship' in the recent past, this incident did not look like one such attempt. "It doesn't look deliberate especially because even accounts such as eBay India were suspended."

For more details visit https://cis-india.org/internet-governance/news/the-economic-times-vasudha-venugopal-november-2-2014-twitter-users-find-several-accounts-suspended-for-unknown-reasons

We the goondas

praskrishna — 2014-08-04T15:06:18Z

You can now be arrested in Karnataka even before you commit an offence under the IT Act. You could be in jail under the Goonda Act even if not guilty under the Indian Copyright Act. If govt thinks you are planning to send a 'lascivious' photo to a WhatsApp group, or forwarding a copyrighted song, you can be arrested.

The article by Shyam Prasad was published in the Bangalore Mirror on August 4, 2014. Sunil Abraham gave his inputs.

Have a smartphone? Run for cover. Bizarre as this might sound, the cops are going to come after you if you so much as forward a song to a friend. Forget actually doing it, any plans to do so could land you in serious trouble too. You could be labelled a 'goonda' in the eyes of the State and find yourself behind bars.

In a completely unfathomable move, Karnataka has brought most offences under the Information Technology Act, 2000, and Indian Copyright Act, 1957, under the ambit of the Goonda Act. Until now, people with a history of offences like bootlegging, drug offences and immoral trafficking could be taken into preventive custody. But the government, in its enthusiasm, while adding acid attackers and sexual predators to the law, has also added 'digital offenders'. While it was thought to be against audio and video pirates, Bangalore Mirror has found it could be directed at all those who frequent FB, Twitter and the online world, posting casual comments and reactions to events unfolding around them.

So if you are planning a digital 'offence' — which could be an innocuous opinion like the young girls' in Mumbai after the bandh declared on Bal Thackeray's death — that could attract the provisions of the Information Technology Act. You can even be taken into preventive custody like a 'goonda'. Even those given exceptions under the Indian Copyright Act can find themselves in jail for a year without being presented before a magistrate. Technically, if you are even planning to forward 'lascivious' memes and images to a WhatsApp group or forwarding a song or 'copyrighted' PDF book, you can be punished under the Goondas Act.

The law-makers clearly did not dwell much on the implications while bringing the majority of the populace within the ambit of this law. On July 28, the Karnataka Legislature passed (it took barely a minute from tabling to voice vote), 'The Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum-grabbers and Video or Audio Pirates, (Amendment) Bill, 2014'. The amendment adds, "Acid attackers, Depradator of Environment, Digital Offenders, Money Launderers and Sexual Predators", to the title. In common parlance, this law is known as the 'Goonda Act'.

The move has come as a shock to the legal community which has slammed it, terming it an attempt by the state to usurp central powers. The government had earlier included 'piracy' under the Goonda Act. But it was applicable only to those pirating film DVDs. Now, this will include books, film songs, music, software or anything big corporates and multinationals claim they have copyright on.

Sunil Abraham, executive director, Centre for Internet and Society, is left in no doubt that the new law is "a terrible thing". "It is a sad development. It is not just bringing the provisions of the IT Act, but also the Copyright Act, that will hurt the common man," he said.

'Digital Offenders' means "any person who knowingly or deliberately violates, for commercial purposes, any copyright law in relation to any book, music, film, software, artistic or scientific work and also includes any person who illegally enters through the identity of another user and illegally uses any computer or digital network for pecuniary gain for himself or any other person or commits any of the offences specified under sections 67, 68, 69, 70, 71, 72, 73, 74 and 75 of the Information Technology Act, 2000."

Section 67 of the IT Act will be the most dangerous for the common man with a smartphone in hand now. The section, "Publishing of information which is obscene in electronic form," includes "any material which is lascivious or appeal to the prurient interest." This could have a very broad interpretation.

Advocate Nagendra Naik says, "The Goonda Act provides for preventive arrest. In the Information Technology Act and The Copyright Act, you have to commit the offence to be arrested. But here, you can be taken into preventive custody even before you commit the said offences. In normal arrests, you can straightaway apply for bail. But under the Goonda Act, you cannot. There is a long process of review and you will be in custody at least till then. The third impact is, you can have a history sheet started against you by the police. Technically, your slips on WhatsApp will attract the Goonda Act against you."

Supreme Court advocate KV Dhananjay said the Goonda Act is a draconian piece of legislation and it necessarily mocks at the institution of courts and lawyers. "After the passage of the various amendments to the Goonda Act, Karnataka now looks like a mini North Korea where police mood swings will decide whether the ordinary citizen has any right at all," he said.

Advocate Shyam Sundar, says, "What if your smartphone has a list of repeated material sent out over days or weeks. Most people do not even know if their phones are affected by viruses which could be sending out such material. Another example is of Facebook. There are so many FB pages with pornographic content. If someone who has subscribed to such a page sends you a friend request and you accept it, that content will surface on your page. It will have a history of repetition. The amendment clearly opens up huge problems for the common people. There is no doubt of the law being grossly misused and the amendment to include provisions of the IT Act has been done without application of mind. What is lascivious appeal in the first place? A porn star has been made a film star in India. Is this not lust? Are there enough filters in place to secure your smartphone from online abuse?"

The new law will in all probability create more corruption than anything else, say experts. Dhananjay says, "Until last week, police postings in Bangalore and other bigger cities were selling for tens of lakhs. Thanks to these amendments, some postings that enforce the Goonda Act will now sell for a couple of crores. The public will not feel safe due to this draconian legislation. Those who enforce the Goonda Act, however, will become richer through corruption, thanks to the fear created by these new amendments."

One year in jail for the innocent too

Sunil Abraham gives two examples by which the amended Goonda Act will become a ruthless piece of legislation. "If I publish an image of a naked body as part of a scientific article about the human body, is it obscene or not? It will not be obscene and, if I am arrested under the IT Act, I will be produced before the magistrate within 24 hours and can explain it to him. But now, I will be arrested under the Goonda Act and need not be produced before a magistrate for 90 days. It can be extended to one year. So for one year, I will be in jail even if I have not committed any wrong. Another example pertains to bringing offences under the Copyright Act under the Goonda Act. In the Copyright Act, there is an exception for reporting, research, educational and people with disability. A visually impaired person, for example, can, without paying royalty, convert a book into another format like Braille or audio and share it with another visually impaired person on a non-profit basis. But if he is arrested under Goonda Act, he will be in jail for one year, even before he does it."

HAVE THEY READ STATUTE?
Supreme Court advocate KV Dhananjay says, "The definition of a 'digital offender' is simply laughable. I do not think that whoever asked the state government to include 'digital offence' under the Goonda Act has carefully read the Constitution of India. Under the Constitution, both copyright and telecommunications are exclusive central subjects. This means that states simply cannot make any law on these subjects." Dhananjay gives the example of payment of income tax. "You know already that only the central government can demand and collect your income taxes. Can any state government say that it will create a new law to punish its resident who defaults in payment of income tax? You would simply laugh at any such law. This new definition of 'digital offender' is no less amusing. Offences under the Information Technology Act, 2000, are exclusively punishable by the central government only. State governments have no power to say that an Act shall become an offence when it does not even have the power to regulate such an Act."

CRIMINAL LAW EXPERTS SAY
Senior designate advocate, MT Nanaiah: "This law will be too harsh. There are MLAs who do not know the meaning of cyber crime. We (advocates) will be kept busy at the cost of innocent people because of this step. It provides for arresting anyone who would allegedly be planning to do something. Finding him guilty or otherwise comes later. What happens if your phone is lost or somebody sends something from your phone without your knowledge? For the first few years, innocents will go to jail. Then the courts will probably intervene and call for modifying what is at best a bad law. A similar situation arose with Section 498(A) of IPC and Sections 3 and 4 of Dowry Prohibition Act. It was misused to such an extent that courts had to step in." Senior designate advocate and former State Public Prosecutor HS Chandramouli : "Even social legislations have been misused. And, in this case, most people are illiterate about what cyber crime is. It is mostly teenagers and college students who will feel the heat. These are the people who mostly forward material considered obscene. It is necessary to educate people through discussions, workshops in the bar associations, law college and with experts. The amendment has been passed in the Legislature without discussion, which is a tragedy. At least now, before it is gazetted, people should be warned about what is being brought into the Goonda Act. I do not know how fair adding 'digital offenders' in the Goonda Act will be to the public, but the chances of misuse are more. There are no riders or prosecution for misuse. And how many policemen know about cyber crimes? During the infamous 'kidney' case (where people were cheated and their kidneys removed) many policemen did not know the difference between kidneys and testicles."

ONE YEAR IN JAIL WITHOUT CHANCE OF BAIL FOR..

Forwarding a song from your phone
Forwarding an e-book from your email
A nude photo which the govt thinks is obscene
Any software that a company says it owns
A movie which a company says it has copyright on

For more details visit https://cis-india.org/news/bangalore-mirror-shyam-prasad-august-4-2014-we-the-goondas

GNI and IAMAI Launch Interactive Slideshow Exploring Impact of India's Internet Laws

jyoti — 2014-07-17T12:01:01Z

The Global Network Initiative and the Internet and Mobile Association of India have come together to explain how India’s Internet and technology laws impact economic innovation and freedom of expression.

The Global Network Initiative (GNI), and the Internet and Mobile Association of India (IAMAI) have launched an interactive slide show exploring the impact of existing Internet laws on users and businesses in India. The slide show created by Newsbound, and to which Centre for Internet and Society (CIS) has contributed its comments—explain the existing legislative mechanisms prevalent in India, map the challenges of the regulatory environment and highlight areas where such mechanisms can be strengthened.

Foregrounding the difficulties of content regulation, the slides are aimed at informing users and the public of the constraints of current legal mechanisms in place, including safe harbour and take down and notice provisions. Highlighting Section 79(3) and the Intermediary Liability Rules issued in 2011, the slide show identifies some of the challenges faced by Internet platforms, such as the broad interpretation of the legislation by the executive branch.

Challenges governing Internet platforms highlighted in the slide show include uniform Terms of Service that do not consider the type of service being provided by the platform, uncertain requirements for taking down content and compliance obligations related to information disclosure. Further the issues of over compliance and misuse of the legal notice and take down system introduced under Section 79 of the Information Technology (Intermediaries Guidelines) Rules 2011.

The Rules were created with the purpose of providing guidelines for the ‘post-publication redressal mechanism expression as envisioned in the Constitution of India'. However, since their introduction, the Rules have been criticised extensively, by both the national and the international media on account of not conforming to principles of natural justice and freedom of expression. Critics have pointed out that by not recognising the different functions performed by the different intermediaries and by not providing safeguards against misuse of such mechanism for suppressing legitimate expression, the Rules have a chilling effect on freedom of expression.

Under the current Rules, the third party provider/creator of information is not given a chance to be heard by the intermediary, nor is there a requirement to give a reasoned decision by the intermediary to the creator whose content has been taken down. The take down procedure also, does not have any provisions for restoring the removed information, such as providing a counter notice filing mechanism or appealing to a higher authority. Further, the content criteria for removal of content includes terms like 'disparaging' and 'objectionable', which are not defined and prima facie seem to be beyond the reasonable restrictions envisioned by the Constitution of India. With uncertainty in content criteria and no safeguards to prevent abuse complainant may send frivolous complaints and suppress legitimate expressions without any fear of repercussions.

Most importantly, the redressal mechanism under the Rules shifts the burden of censorship, previously, the exclusive domain of the judiciary or the executive, and makes it the responsibility of private intermediaries. Often, private intermediaries, do not have sufficient legal resources to subjectively determine the legitimacy of a legal claim, resulting in over compliance to limit liability. The slide show cites the 2011 CIS research carried out by Rishabh Dara to determine whether the Rules lead to a chilling effect on online free expression, towards highlighting the issue of over compliance and self censorship.

The initiative is timely, given the change of guard in India, and stresses, not only the economic impact of fixing the Internet legal framework, but also the larger impact on users rights and freedom of expression. The initiative calls for a legal environment for the Internet that enables innovation, protects the rights of users, and provides clear rules and regulations for businesses large and small.

See the slideshow here: How India’s Internet Laws Can Help Propel the Country Forward

Other GNI reports and resources:

Closing the Gap: Indian Online Intermediaries and a Liability System Not Yet Fit for Purpose

Strengthening Protections for Online Platforms Could Add Billions to India’s GDP

For more details visit https://cis-india.org/internet-governance/blog/gni-and-iamai-launch-interactive-slideshow-exploring-impact-of-indias-internet-laws

Delhi High Court Orders Blocking of Websites after Sony Complains Infringement of 2014 FIFA World Cup Telecast Rights

sinha — 2014-07-08T07:02:16Z

Of late the Indian judiciary has been issuing John Doe orders to block websites, most recently in Multi Screen Media v. Sunit Singh and Others. The order mandated blocking of 472 websites, out of which approximately 267 websites were blocked as on July 7, 2014. This trend is an extremely dangerous one because it encourages flagrant censorship by intermediaries based on a judicial order which does not provide for specific blocking of a URL, instead provides for blocking of the entire website.

The High Court of Delhi on June 23, 2014 issued a John Doe injunction restraining more than 400 websites from broadcasting 2014 FIFA world cup matches. News reports indicate that the Single judge bench of Justice V. Kameswar Rao directed the Department of Telecom to issue appropriate directions to ISPs to block the websites that Multi Screen Media provided, as well as “any other website identified by the plaintiff” in the future. On July 4, Justice G. S. Sistani permitted reducing the list to 219 websites.

Background

Multi Screen Media (MSM) is the official broadcaster for the ongoing 2014 FIFA World Cup tournament. FIFA (the Governing body) had exclusively licensed rights to MSM which included live, delayed, highlights, on demand, and repeat broadcast of the FIFA matches. MSM complained that the defendants indulged in hosting, streaming, providing access to, etc, thereby infringing the exclusive rights and broadcast and reproduction rights of MSM.

The court in the instant order held that the defendants had prima facie infringed MSM’s broadcasting rights, which are guaranteed by section 37 of the Copyright Act, 1957. In an over-zealous attempt to pre-empt infringement the court called for a blanket ban on all websites identified by MSM. Further, the court directed the concerned authorities to ensure ISPs complied with this order and block the websites mentioned by MSM presently, and other websites which may be subsequently be notified by MSM.

Where the Court went Wrong

The court stated that MSM successfully established a prima facie case, and on its basis granted a sweeping injunction to MSM ordering blocking 471 second level domains. I’d like to point out numerous flaws with the order-

Dissatisfactory "Prima facie case"

In my opinion the court could have scrutinised the list of websites provided by MSM more carefully. There is nothing in the order to suggest that evidence was proffered by MSM in support of the list. The order reveals that the list was prepared by MarkScan, a “consulting boutique dedicated to (the client’s) IP requirements in the cyberspace and the Indian sub-continent.” The list throws up names such as docs.google.com, goo.gl & ad.ly (provide URL shortening service only), torrent indexing websites, IP addresses, online file streaming websites, etc., at a cursory glance. Evidently, perfectly legitimate websites have been targeted by an ill conducted search and shoddily prepared list which may lead to blocking of legitimate content on account of no verification by the court. 471 websites out of 472 mentioned in the first list are second level domains and 23 websites have been listed twice.

2. Generic order which abysmally fails to identify specific infringing URLS

Out of the 472 websites (list provided in the order by MarkScan)-

471 are file streaming websites, video sharing websites, file lockers, URL shorteners, file storage websites; only one is a specific URL [http://www.24livestreamtv.com/brazil-2014-fifa-world-cup-football-%20%C2%A0%C2%A0live-streaming-online-t ].

The order calls for blocking of complete websites. This is in complete contradiction to the 2012 Madras High Court’s order in R K Productions v BSNL which held that only a particular URL where the infringing content is kept should be blocked, rather than the entire website. The Madras High Court order had also made it mandatory for the complainants to provide exact URLs where they find illegal content, such that ISPs could block only that content and not the entire site. MSM did not adhere to this and I have serious doubts if the defendants brought the distinguishing Madras High Court judgment to the attention of the bench. The entire situation is akin to MarkScan scamming MSM by providing their clients a dodgy list, and MSM scamming the court and the public at large.

3. Lack of Transparency – Different blocking messages on different ISPs

The message displayed uniformly on blocked websites was:

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

I observed that a few websites showed the message “Error 404 – File or Directory not found” without the blocking message (above) on the network provider Reliance, and same Error 404 with the blocking message on the network provider Airtel highlighting the non-transparent manner of adherence to the order. Further, both the messages do not indicate the end period of the block.

Legality of John Doe orders in Website Blocking

It is pertinent to reiterate the ‘misuse’ of John Doe orders to block websites in India. The judiciary has erred in applying the John Doe order to protect copyrightable content on the internet. While the R K Productions v BSNL case appears reasonable in terms of permitting blocking of only URL specific content, the application of John Doe order to block websites remains unfounded in law. Ananth Padmanabhan in a three part study (Part I, II and III) had earlier analysed the improper use of John Doe injunctions to block websites in India. The John Doe order was conceived by US courts to pre-emptively remedy the irreparable damages suffered by copyright holders on account of unidentified/unnamed infringers. The interim injunction allowed collection of evidence from infringers, who were identified later as certain defendants and the final relief was accordingly granted. The courts routinely advocated judicious use of the order, and ensured that the identified defendants were provided and informed of their right to apply to the court within twenty four hours for a review of the order and a right to claim damages in an appropriate case. Therefore, the John Doe order applied against primary infringers per se.

On the other hand, whilst extending this remedy in India the courts have unfortunately placed onus on the conduit i.e. the ISP to block websites. This is tantamount to providing final relief at the interim stage, since all content definitely gets blocked; however, this hardly helps in identifying the actual infringer on the internet. The court is prematurely doling out blocking remedies to the complaining party, which, legally speaking should be meted out only during the final disposition of the case after careful examination of the evidence available. Thus, the intent of a John Doe order is miserably lost in such an application. Moreover, this lends an arbitrary amount of power in the hands of intermediaries since ISPs may or may not choose to approach the court for directions to specifically block URLs which provide access to infringing content only.

For more details visit https://cis-india.org/internet-governance/blog/delhi-high-court-orders-blocking-of-websites-after-sony-complains-infringement-of-2014-fifa-world-cup-telecast-rights

FOEX Live

geetha — 2014-07-07T12:36:49Z

Selections of news on online freedom of expression and digital technology from across India (and some parts of the world)

For feedback, comments and any incidents of online free speech violation you are troubled or intrigued by, please email Geetha at geetha[at]cis-india.org or on Twitter at @covertlight.

For more details visit https://cis-india.org/internet-governance/blog/foex-live

Free Speech and Surveillance

Gautam Bhatia — 2014-07-07T04:59:59Z

Gautam Bhatia examines the constitutionality of surveillance by the Indian state.

The Indian surveillance regime has been the subject of discussion for quite some time now. Its nature and scope is controversial. The Central Monitoring System, through which the government can obtain direct access to call records, appears to have the potential to be used for bulk surveillance, although official claims emphasise that it will only be implemented in a targeted manner. The Netra system, on the other hand, is certainly about dragnet collection, since it detects the communication, via electronic media, of certain “keywords” (such as “attack”, “bomb”, “blast” and “kill”), no matter what context they are used in, and no matter who is using them.

Surveillance is quintessentially thought to raise concerns about privacy. Over a series of decisions, the Indian Supreme Court has read in the right to privacy into Article 21’s guarantee of the right to life and personal liberty. Under the Supreme Court’s (somewhat cloudy) precedents, privacy may only be infringed if there is a compelling State interest, and if the restrictive law is narrowly tailored – that is, it does not infringe upon rights to an extent greater than it needs to, in order to fulfill its goal. It is questionable whether bulk surveillance meets these standards.

Surveillance, however, does not only involve privacy rights. It also implicated Article 19 – in particular, the Article 19(1)(a) guarantee of the freedom of expression, and the 19(1)(c) guarantee of the freedom of association.

Previously on this blog, we have discussed the “chilling effect” in relation to free speech. The chilling effect evolved in the context of defamation cases, where a combination of exacting standards of proof, and prohibitive damages, contributed to create a culture of self-censorship, where people would refrain from voicing even legitimate criticism for fear of ruinous defamation lawsuits. The chilling effect, however, is not restricted merely to defamation, but arises in free speech cases more generally, where vague and over-broad statutes often leave the border of the permitted and the prohibited unclear.

Indeed, a few years before it decided New York Times v. Sullivan, which brought in the chilling effect doctrine into defamation and free speech law, the American Supreme Court applies a very similar principle in a surveillance case. In NAACP v. Alabama, the National Association for the Advancement of Coloured People (NAACP), which was heavily engaged in the civil rights movement in the American deep South, was ordered by the State of Alabama to disclose its membership list. NAACP challenged this, and the Court held in its favour. It specifically connected freedom of speech, freedom of association, and the impact of surveillance upon both:

“Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the “liberty” assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny… it is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute [an] effective a restraint on freedom of association… this Court has recognized the vital relationship between freedom to associate and privacy in one’s associations. Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”

In other words, if persons are not assured of privacy in their association with each other, they will tend to self-censor both who they associate with, and what they say to each other, especially when unpopular groups, who have been historically subject to governmental or social persecution, are involved. Indeed, this was precisely the argument that the American Civil Liberties Union (ACLU) made in its constitutional challenge to PRISM, the American bulk surveillance program. In addition to advancing a Fourth Amendment argument from privacy, the ACLU also made a First Amendment freedom of speech and association claim, arguing that the knowledge of bulk surveillance had made – or at least, was likely to have made – politically unpopular groups wary of contacting it for professional purposes (the difficulty, of course, is that any chilling effect argument effectively requires proving a negative).

If this argument holds, then it is clear that Articles 19(1)(a) and 19(1)(c) are prima facie infringed in cases of bulk – or even other forms of – surveillance. Two conclusions follow: first, that any surveillance regime needs statutory backing. Under Article 19(2), reasonable restrictions upon fundamental rights can only be imposed by law, and not be executive fiat (the same argument applies to Article 21 as well).

Assuming that a statutory framework is brought into force, the crucial issue then becomes whether the restriction is a reasonable one, in service of one of the stated 19(2) interests. The relevant part of Article 19(2) permits reasonable restrictions upon the freedom of speech and expression “in the interests of… the security of the State [and] public order.” The Constitution does not, however, provide a test for determining when a restriction can be legitimately justified as being “in the interests of” the security of the State, and of public order. There is not much relevant precedent with respect to the first sub-clause, but there happens to be an extensive – although conflicted – jurisprudence dealing with the public order exception.

One line of cases – characterised by Ramji Lal Modi v. State of UP and Virendra v. State of Punjab – has held that the phrase “for the interests of” is of very wide ambit, and that the government has virtually limitless scope to make laws ostensibly for securing public order (this extends to prior restraint as well, something that Blackstone, writing in the 18^th century, found to be illegal!). The other line of cases, such as Superintendent v. Ram Manohar Lohia and S. Rangarajan v. P. Jagjivan Ram, have required the government to satisfy a stringent burden of proof. In Lohia, for instance, Ram Manohar Lohia’s conviction for encouraging people to break a tax law was reversed, the Court holding that the relationship between restricting free speech and a public order justification must be “proximate”. In Rangarajan, the Court used the euphemistic image of a “spark in a powder keg”, to characterise the degree of proximity required. It is evident that under the broad test of Ramji Lal Modi, a bulk surveillance system is likely to be upheld, whereas under the narrow test of Lohia, it is almost certain not to be.

Thus, if the constitutionality of surveillance comes to Court, three issues will need to be decided: first, whether Articles 19(1)(a) and 19(1)(c) have been violated. Secondly – and if so – whether the “security of the State” exception is subject to the same standards as the “public order” exception (there is no reason why it should not be). And thirdly, which of the two lines of precedent represent the correct understanding of Article 19(2)?

Gautam Bhatia — @gautambhatia88 on Twitter — is a graduate of the National Law School of India University (2011), and has just received an LLM from the Yale Law School. He blogs about the Indian Constitution at http://indconlawphil.wordpress.com. Here at CIS, he blogs on issues of online freedom of speech and expression.

For more details visit https://cis-india.org/internet-governance/blog/free-speech-and-surveillance

Free Speech and Civil Defamation

gautam — 2014-07-08T08:31:18Z

Does defamation become a tool in powerful hands to suppress criticism? Gautam Bhatia examines the strict and unrealistic demands of defamation law, and concludes that defamation suits are a weapon to silence dissent and bad press.

Previously on this blog, we have discussed one of the under-analysed aspects of Article 19(2) – contempt of court. In the last post, we discussed the checking – or “watchdog” – function of the press. There is yet another under-analysed part of 19(2) that we now turn to – one which directly implicates the press, in its role as public watchdog. This is the issue of defamation.

Unlike contempt of court – which was a last-minute insertion by Ambedkar, before the second reading of the draft Constitution in the Assembly – defamation was present in the restrictions clause since the Fundamental Rights Sub-Committee’s first draft, in 1947. Originally, it accompanied libel and slander, before the other two were dropped for the simpler “reasonable restrictions… in the interests of… defamation.” Unlike the other restrictions, which provoked substantial controversy, defamation did not provoke extended scrutiny by the Constituent Assembly.

In hindsight, that was a lapse. In recent years, defamation lawsuits have emerged as a powerful weapon against the press, used primarily by individuals and corporations in positions of power and authority, and invariably as a means of silencing criticism. For example, Hamish MacDonald’s The Polyester Prince, a book about the Ambanis, was unavailable in Indian bookshops, because of threats of defamation lawsuits. In January, Bloomsbury withdrew The Descent of Air India, which was highly critical of ex-Aviation Minister Praful Patel, after the latter filed a defamation lawsuit. Around the same time, Sahara initiated a 200 crore lawsuit against Tamal Bandyopadhayay, a journalist with The Mint, for his forthcoming book, Sahara: The Untold Story. Sahara even managed to get a stay order from a Calcutta High Court judge, who cited one paragraph from the book, and ruled that “Prima facie, the materials do seem to show the plaintiffs in poor light.” The issue has since been settled out of Court. Yet there is no guarantee that Bandyopadhyay would have won on merits, even with the absurd amount claimed as damages, given that a Pune Court awarded damages of Rs. 100 crores to former Justice P.B. Sawant against the Times Group, for a fifteen-second clip by a TV channel that accidentally showed his photograph next to the name of a judge who was an accused in a scam. What utterly takes the cake, though, is Infosys serving legal notices to three journalistic outlets recently, asking for damages worth Rs. 200 crore for “loss of reputation and goodwill due to circulation of defamatory articles.”

Something is very wrong here. The plaintiffs are invariably politicians or massive corporate houses, and the defendants are invariably journalists or newspapers. The subject is always critical reporting. The damages claimed (and occasionally, awarded) are astronomical – enough to cripple or destroy any business – and the actual harm is speculative. A combination of these factors, combined with a broken judicial system in which trials take an eternity to progress, leading to the prospect of a lawsuit hanging perpetually over one’s head, and financial ruin just around the corner, clearly has the potential to create a highly effective chilling effect upon newspapers, when it come to critical speech on matters of public interest.

One of the reasons that this happens, of course, is that extant defamation law allows it to happen. Under defamation law, as long as a statement is published, is defamatory (that is, tending to lower the reputation of the plaintiff in the minds of reasonable people) and refers to the plaintiff, a prima facie case of defamation is made out. The burden then shifts to the defendant to argue a justification, such as truth, or fair comment, or privileged communication. Notice that defamation, in this form, is a strict liability offence: that is, the publisher cannot save himself even if he has taken due care in researching and writing his story. Even an inadvertent factual error can result in liability. Furthermore, there are many things that straddle a very uncomfortable barrier between “fact” and “opinion” (“opinions” are generally not punishable for defamation): for example, if I call you “corrupt”, have I made a statement of fact, or one of opinion? Much of reporting – especially political reporting – falls within this slipstream.

The legal standard of defamation, therefore, puts almost all the burden upon the publisher, a burden that will often be impossible to discharge – as well as potentially penalising the smallest error. Given the difficulty in fact-checking just about everything, as well as the time pressures under which journalists operate, this is an unrealistic standard. What makes things even worse, however, is that there is no cap on damages, and that the plaintiff need not even demonstrate actual harm in making his claims. Judges have the discretion to award punitive damages, which are meant to serve both as an example and as a deterrent. When Infosys claims 2000 crores, therefore, it need not show that there has been a tangible drop in its sales, or that it has lost an important and lucrative contract – let alone showing that the loss was caused by the defamatory statement. All it needs to do is make abstract claims about loss of goodwill and reputation, which are inherently difficult to verify either way, and it stands a fair chance of winning.

A combination of onerous legal standards and crippling amounts in damages makes the defamation regime a very difficult one for journalists to operate freely in. We have discussed before the crucial role that journalists play in a system of free speech whose underlying foundation is the maintenance of democracy: a free press is essential to maintaining a check upon the actions of government and other powerful players, by subjecting them to scrutiny and critique, and ensuring that the public is aware of important facts that government might be keen to conceal. In chilling journalistic speech, therefore, defamation laws strike at the heart of Article 19(1)(a). When considering what the appropriate standards ought to be, a Court therefore must consider the simple fact that if defamation – as it stands today – is compromising the core of 19(1)(a) itself, then it is certainly not a “reasonable restriction” under 19(2) (some degree of proportionality is an important requirement for 19(2) reasonableness, as the Court has held many times).

This is not, however, a situation unique to India. In Singapore, for instance, “[political] leaders have won hundreds of thousands of dollars in damages in defamation cases against critics and foreign publications, which they have said are necessary to protect their reputations from unfounded attacks” – the defamation lawsuit, indeed, was reportedly a legal strategy used by Lee Kuan Yew against political opponents.

Particularly in the United States, the European Union and South Africa, however, this problem has been recognised, and acted upon. In the next post, we shall examine some of the legal techniques used in those jurisdictions, to counter the chilling effect that strict defamation laws can have on the press.

We discussed the use of civil defamation laws as weapons to stifle a free and critical press. One of the most notorious of such instances also birthed one of the most famous free speech cases in history: New York Times v. Sullivan. This was at the peak of the civil rights movement in the American South, which was accompanied by widespread violence and repression of protesters and civil rights activists. A full-page advertisement was taken out in the New York Times, titled Heed Their Rising Voices, which detailed some particularly reprehensible acts by the police in Montgomery, Alabama. It also contained some factual errors. For example, the advertisement mentioned that Martin Luther King Jr. had been arrested seven times, whereas he had only been arrested four times. It also stated that the Montgomery police had padlocked students into the university dining hall, in order to starve them into submission. That had not actually happened. On this basis, Sullivan, the Montgomery police commissioner, sued for libel. The Alabama courts awarded 500,000 dollars in damages. Because five other people in a situation similar to Sullivan were also suing, the total amount at stake was three million dollars – enough to potentially boycott the New York Times, and certainly enough to stop it from publishing about the civil rights movement.

In his book about the Sullivan case, Make No Law, Anthony Lewis notes that the stakes in the case were frighteningly high. The civil rights movement depended, for its success, upon stirring public opinion in the North. The press was just the vehicle to do it, reporting as it did on excessive police brutality against students and peaceful protesters, practices of racism and apartheid, and so on. Sullivan was a legal strategy to silence the press, and its weapon of choice was defamation law.

In a 9 – 0 decision, the Supreme Court found for the New York Times, and changed the face of free speech law (and, according to Lewis, saved the civil rights movement). Writing for the majority, Justice Brennan made the crucial point that in order to survive, free speech needed “breathing space” – that is, the space to make errors. Under defamation law, as it stood, “the pall of fear and timidity imposed upon those who would give voice to public criticism [is] an atmosphere in which the First Amendment freedoms cannot survive.” And under the burden of proving truth, “would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is, in fact, true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which "steer far wider of the unlawful zone." For these reasons, Justice Brennan laid down an “actual malice” test for defamation – that is, insofar as the statement in question concerned the conduct of a public official, it was actionable for defamation only if the publisher either knew it was false, or published it with “reckless disregard” for its veracity. After New York Times, this standard has expanded, and the press has never lost a defamation case.

There are some who argue that in its zeal to protect the press against defamation lawsuits by the powerful, the Sullivan court swung the opposite way. In granting the press a near-unqualified immunity to say whatever it wanted, it subordinated the legitimate interests of people to their reputation and their dignity to an intolerable degree, and ushered in a regime of media unaccountability. This is evidently what the South African courts felt. In Khulamo v. Holomisa, Justice O’Regan accepted that the common law of defamation would have to be altered so as to reflect the new South African Constitution’s guarantees of the freedom of speech. Much like Justice Brennan, she noted that “the media are important agents in ensuring that government is open, responsive and accountable to the people as the founding values of our Constitution require”, as well as the chilling effect in requiring journalists to prove the truth of everything they said. Nonetheless, she was not willing to go as far as the American Supreme Court did. Instead, she cited a previous decision by the Supreme Court of Appeals, and incorporated a “resonableness standard” into defamation law. That is, “if a publisher cannot establish the truth, or finds it disproportionately expensive or difficult to do so, the publisher may show that in all the circumstances the publication was reasonable. In determining whether publication was reasonable, a court will have regard to the individual’s interest in protecting his or her reputation in the context of the constitutional commitment to human dignity. It will also have regard to the individual’s interest in privacy. In that regard, there can be no doubt that persons in public office have a diminished right to privacy, though of course their right to dignity persists. It will also have regard to the crucial role played by the press in fostering a transparent and open democracy. The defence of reasonable publication avoids therefore a winner-takes-all result and establishes a proper balance between freedom of expression and the value of human dignity. Moreover, the defence of reasonable publication will encourage editors and journalists to act with due care and respect for the individual interest in human dignity prior to publishing defamatory material, without precluding them from publishing such material when it is reasonable to do so.”

The South African Constitutional Court thus adopts a middle path between the two opposite zero-sum games that are traditional defamation law, and American first amendment law. A similar effort was made in the United Kingdom – the birthplace of the common law of defamation – with the passage of the 2013 Defamation Act. Under English law, the plaintiff must now show that there is likely to be “serious harm” to his reputation, and there is also public interest exception.

While South Africa and the UK try to tackle the problem at the level of standards for defamation, the ECHR has taken another, equally interesting tack: by limiting the quantum of damages. In Tolstoy Milolasky v. United Kingdom, it found a 1.5 million pound damage award “disproportionately large”, and held that there was a violation of the ECHR’s free speech guarantee that could not be justified as necessary in a democratic society.

Thus, constitutional courts the world over have noticed the adverse impact traditional defamation law has on free speech and a free press. They have devised a multiplicity of ways to deal with this, some more speech-protective than others: from America’s absolutist standards, to South Africa’s “reasonableness” and the UK’s “public interest” exceptions, to the ECHR’s limitation of damages. It is about time that the Indian Courts took this issue seriously: there is no dearth of international guidance.

For more details visit https://cis-india.org/internet-governance/blog/free-speech-and-civil-defamation

FOEX Live: June 16-23, 2014

geetha — 2014-06-24T10:23:18Z

A weekly selection of news on online freedom of expression and digital technology from across India (and some parts of the world).

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.

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.

Kerala:

In the Assembly, State Home Minister Ramesh Chennithala said that the State government did not approve 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 “booking the authors for this was not the state government’s policy”.

Maharashtra:

Nearly 20,000 people have joined 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.

Tamil Nadu:

In Chennai, 101 people, including filmmakers, writers, civil servants and activists, have signed a petition requesting Chief Minister J. Jayalalithaa to permit safe screening of the Indo-Sri Lankan film “With You, Without You”. The petition comes after theatres cancelled shows of the film following threatening calls from some Tamil groups.

Telangana:

The K. Chandrasekhar Rao government has blocked two Telugu news channels for airing content that was “derogatory, highly objectionable and in bad taste”.

The Telagana government’s decision to block news channels has its supporters. Padmaja Shaw considers the mainstream Andhra media contemptuous and disrespectful of “all things Telangana”, while Madabushi Sridhar concludes that Telugu channel TV9’s coverage violates the dignity of the legislature.

West Bengal:

Seemingly anti-Modi arrests have led to worry among citizens about speaking freely on the Internet. Section 66A poses a particular threat.

News & Opinion:

The Department of Telecom is preparing a draft of the National Telecom Policy, in which it plans to treat broadband Internet as a basic right. The Policy, which will include deliberations on affordable broadband access for end users, will be finalised in 100 days.

While addressing a CII CEO’s Roundtable on Media and Industry, Information and Broadcasting Minister Prakash Javadekar promised 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.

A perceived increase in police action against anti-Modi publications or statements has many people worried. 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.

Medianama wonders whether the Mumbai police’s Cyber Lab and helpline to monitor offensive content on the Internet is actually a good idea.

G. Sampath wonders 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.

Experts in India mull over 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.

Some parts of the world:

Sri Lanka has banned public meetings or rallies intended to promote religious hatred.

In Pakistan, Twitter has restored accounts and tweets that were taken down last month on allegations of being blasphemous or ‘unethical’.

In Myanmar, an anti-hate speech network has been proposed throughout the country to raise awareness and opposition to hate speech and violence.

For feedback, comments and any incidents of online free speech violation you are troubled or intrigued by, please email Geetha at geetha[at]cis-india.org or on Twitter at @covertlight.

For more details visit https://cis-india.org/internet-governance/blog/foex-live-june-16-23-2014

Content Removal on Facebook — A Case of Privatised Censorship?

jessie — 2014-06-16T05:23:09Z

Any activity on Facebook, be it creating an account, posting a picture or status update or creating a group or page, is bound by Facebook’s Terms of Service and Community Guidelines. These contain a list of content that is prohibited from being published on Facebook which ranges from hate speech to pornography to violation of privacy.

Facebook removes content largely on the basis of requests either by the government or by other users. The Help section of Facebook deals with warnings and blocking of content. It says that Facebook only removes content that violates Community Guidelines and not everything that has been reported.

I conducted an experiment to primarily look at Facebook’s process of content removal and also to analyse what kind of content they actually remove.

I put up a status which contained personal information of a person on my Friend List (the information was false). I then asked several people (including the person about whom the status was made) to report the status — that of being harassed or for violation of privacy rights. Seven people reported the status. Within half an hour of the reports being made, I received the following notification:
"Someone reported your post for containing harassment and 1 other reason."

The notification also contained the option to delete my post and said that Facebook would look into whether it violated their Community Guidelines.

A day later, all those who had reported the status received notifications stating the following:

"We reviewed the post you reported for harassment and found it doesn't violate our Community Standards."

I received a similar notification as well.
I, along with around thirteen others, reported a Facebook page which contained pictures of my friend and a few other women with lewd captions in various regional languages. We reported the group for harassment and bullying and also for humiliating someone we knew. The report was made on 24 March, 2014. On 30 April, 2014, I received a notification stating the following:

"We reviewed the page you reported for harassment and found it doesn't violate our Community Standards.

Note: If you have an issue with something on the Page, make sure you report the content (e.g. a photo), not the entire Page. That way, your report will be more accurately reviewed."

I then reported each picture on the page for harassment and received a series of notifications on 5 May, 2014 which stated the following:

"We reviewed the photo you reported for harassment and found it doesn't violate our Community Standards."

These incidents are in stark contrast with repeated attempts by Facebook to remove content which it finds objectionable. In 2013, a homosexual man’s picture protesting against the Supreme Court judgment in December was taken down. In 2012, Facebook removed artwork by a French artist which featured a nude woman. In the same year, Facebook removed photographs of a child who was born with defect and banned the mother from accessing Facebook completely. Facebook also removed a picture of a breast cancer survivor who posted a picture of a tattoo that she had following her mastectomy. Following this, however, Facebook issued an apology and stated that mastectomy photographs are not in violation of their Content Guidelines. Even in the sphere of political discourse and dissent, Facebook has cowered under government pressure and removed pages and content, as evidenced by the ban on the progressive Pakistani band Laal’s Facebook page and other anti-Taliban pages. Following much social media outrage, Facebook soon revoked this ban. These are just a few examples of how harmless content has been taken down by Facebook, in a biased exercise of its powers.

After incidents of content removal have been made public through news reports and complaints, Facebook often apologises for removing content and issues statements that the removal was an “error.” In some cases, they edit their policies to address specific kinds of content after a takedown (like the reversal of the breastfeeding ban).

On the other hand, however, Facebook is notorious for refusing to take down content that is actually objectionable, partially evidenced by my own experiences listed above. There have been complaints about Facebook’s refusal to remove misogynistic content which glorifies rape and domestic violence through a series of violent images and jokes. One such page was removed finally, not because of the content but because the administrators had used fake profiles. When asked, a spokesperson said that censorship “was not the solution to bad online behaviour or offensive beliefs.” While this may be true, the question that needs answering is why Facebook decides to draw these lines only when it comes to certain kinds of ‘objectionable’ content and not others.

All of these examples represent a certain kind of arbitrariness on the part of Facebook’s censorship policies. It seems that Facebook is far more concerned with removing content that will cause supposed public or governmental outrage or defy some internal morality code, rather than protecting the rights of those who may be harmed due to such content, as their Statement of Policies so clearly spells out.

There are many aspects of the review and takedown process that are hazy, like who exactly reviews the content that is reported and what standards they are made to employ. In 2012, it was revealed that Facebook outsourced its content reviews to oDesk and provided the reviewers with a 17-page manual which listed what kind of content was appropriate and what was not. A bare reading of the leaked document gives one a sense of Facebook’s aversion to sex and nudity and its neglect of other harm-inducing content like harassment through misuse of content that is posted and what is categorised as hate speech.

In the process of monitoring the acceptability of content, Facebook takes upon itself the role of a private censor with absolutely no accountability or transparency in its working. A Reporting Guide was published to increase transparency in its content review procedures. The Guide reveals that Facebook provides for an option where the reportee can appeal the decision to remove content in “some cases.” However, the lack of clarity on what these cases are or what the appeal process is frustrates the existence of this provision as it can be misused. Additionally, Facebook reserves the right to remove content with or without notice depending upon the severity of the violation. There is no mention of how severe is severe enough to warrant uninformed content removal. In most of the above cases, the user was not notified that their content was found offensive and would be liable for takedown. Although Facebook publishes a transparency report, it only contains a record of takedowns following government requests and not those by private users of Facebook. The unbridled nature of the power that Facebook has over our personal content, despite clearly stating that all content posted is the user’s alone, threatens the freedom of expression on the site. A proper implementation of the policies that Facebook claims to employ is required along with a systematic record of the procedure that is used to remove content that is in consonance with natural justice.

For more details visit https://cis-india.org/internet-governance/blog/content-removal-on-facebook

FOEX Live: June 1-7, 2014

geetha — 2014-06-07T13:33:45Z

A weekly selection of news on online freedom of expression and digital technology from across India (and some parts of the world).

Delhi NCR:

Following a legal notice from Dina Nath Batra, publisher Orient BlackSwan “set aside… for the present” Communalism and Sexual Violence: Ahmedabad Since 1969 by Dr. Megha Kumar, citing the need for a “comprehensive assessment”. Dr. Kumar’s book is part of the ‘Critical Thinking on South Asia’ series, and studies communal and sexual violence in the 1969, 1985 and 2002 riots of Ahmedabad. Orient BlackSwan insists this is a pre-release assessment, while Dr. Kumar contests that her book went to print in March 2014 after extensive editing and peer review. Dina Nath Batra’s civil suit led Penguin India to withdraw Wendy Doniger’s The Hindus: An Alternative History earlier this year.

The Delhi Police’s Facebook page aimed at reaching out to Delhi residents hailing from the North East proved to be popular.

Goa:

Shipbuilding engineer Devu Chodankar’s ordeal continued. Chodankar, in a statement to the cyber crime cell of the Goa police, clarified that his allegedly inflammatory statements were directed against the induction of the Sri Ram Sene’s Pramod Muthalik into the BJP. Chodankar’s laptop, hard-disk and mobile Internet dongle were seized.

Jammu & Kashmir:

Chief Minister Omar Abdullah announced the withdrawal of a four-year-old SMS ban in the state. The ban was instituted in 2010 following widespread protests, and while it was lifted for post-paid subscribers six months later, pre-paid connections were banned from SMSes until now.

Maharashtra:

In a move to contain public protests over ‘objectionable posts’ about Chhatrapati Shivaji, Dr. B.R. Ambedkar and the late Bal Thackeray (comments upon whose death led to the arrests of Shaheen Dhada and Renu Srinivasan under Section 66A), Maharashtra police will take action against even those who “like” such posts. ‘Likers’ may be charged under the Information Technology Act and the Criminal Procedure Code, say Nanded police.

A young Muslim man was murdered in Pune, apparently connected to the online publication of ‘derogatory’ pictures of Chhatrapati Shivaji and Bal Thackarey. Members of Hindu extremists groups celebrated his murder, it seems. Pune’s BJP MP, Anil Shirole, said, “some repercussions are natural”. Members of the Hindu Rashtra Sena were held for the murder, but it seems that the photographs were uploaded from foreign IP addresses. Across Maharashtra, 187 riotingcases have been registered against a total of 710 persons, allegedly in connection with the offensive Facebook posts.

On a lighter note, Bollywood hopes for a positive relationship with the new government on matters such as film censorship, tax breaks and piracy.

News & Opinion:

Shocking the world, Vodafone reported the existence of secret, direct-access wires that enable government surveillance on citizens. India is among 29 governments that sought access to its networks, says Vodafone.

I&B Minister Prakash Javadekar expressed his satisfaction with media industry self-regulation, and stated that while cross-media ownership is a matter for debate, it is the legality of transactions such as the Reliance-Network18 acquisition that is important.

Nikhil Pahwa of Medianama wrote of a ‘right to be forgotten’ request they received from a user in light of the recent European Court of Justice ruling. The right raises a legal dilemma in India, LiveMint reports. Medianama also comments on Maharashtra police’s decision to take action against Facebook ‘likes’, noting that at the very least, a like and a comment do not amount to the same thing.

The Hindu was scorching in its editorial on the Pune murder, warning that the new BJP government stands to lose public confidence if it does not clearly demonstrate its opposition to religious violence. The Times of India agrees.

Sanjay Hegde wrote of Section 66A of the Information Technology Act, 2000 (as amended in 2008) as a medium-focused criminalization of speech. dnaEdit also published its criticism of Section 66A.

Ajit Ranade of the Mumbai Mirror comments on India as a ‘republic of hurt sentiments’, criminalizing exercises of free speech from defamation, hate speech, sedition and Section 66A. But in this hurt and screaming republic, dissent is crucial and must stay alive.

A cyber security expert is of the opinion that the police find it difficult to block webpages with derogatory content, as servers are located outside India. But data localization will not help India, writes Jayshree Bajoria.

Dharma Adhikari tries to analyze the combined impact of converging media ownership, corporate patronage of politicians and elections, and recent practices of forced and self-censorship and criminalization of speech.

Elsewhere in the world:

In Pakistan, Facebook has been criticized for blocking pages of a Pakistani rock band and several political groups, primarily left-wing. Across the continent in Europe, Google is suffering from a popularity dip.

The National Council for Peace and Order, the military government in Thailand, has taken over not only the government,but also controls the media. The military cancelled its meetings with Google and Facebook. Thai protesters staged a quiet dissent. The Asian Human Rights Commission condemned the coup. For an excellent take on the coup and its dangers, please redirect here. For a round-up of editorials and op-eds on the coup, redirect here.

China has cracked down on Google, affecting Gmail, Translate and Calendar. It is speculated that the move is connected to the 25^th anniversary of the Tiananmen Square protests and government reprisal. At the same time, a Tibetan filmmaker who was jailed for six years for his film, Leaving Fear Behind, has been released by Chinese authorities. Leaving Fear Behind features a series of interviews with Tibetans of the Qinghai province in the run-up to the controversial Beijing Olympics in 2008.

Japan looks set to criminalize possession of child pornography. According to reports, the proposed law does not extend to comics or animations or digital simulations.

Egypt’s police is looking to build a social media monitoring system to track expressions of dissent, including “profanity, immorality, insults and calls for strikes and protests”.

Human rights activists asked Facebook to deny its services to the election campaign of Syrian President Bashar al-Assad, ahead of elections on June 3.

Call for inputs:

The Law Commission of India seeks comments from stakeholders and citizens on media law. The consultation paper may be found here. The final date for submission is June 19, 2014.

____________________________________________________________________________________________________________

For feedback and comments, Geetha Hariharan is available by email at geetha@cis-india.org or on Twitter, where her handle is @covertlight.

For more details visit https://cis-india.org/internet-governance/blog/foex-live-june-1-7-2014

Two Arguments Against the Constitutionality of Section 66A

Gautam Bhatia — 2014-06-04T03:42:17Z

Gautam Bhatia explores the constitutionality of Section 66A in light of recent events.

In the immediate aftermath of the elections, free speech issues have come to the fore again. In Goa, a Facebook user was summoned for a post warning a second holocaust if Modi was elected to power. In Karnataka, a MBA student was likewise arrested for circulating an MMS that showed Modi’s face morphed onto a corpse, with the slogan “Abki baar antim sanskaar”. 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. Section 66A criminalises, among other things, the sending of information that is “grossly offensive or menacing in character” or causes “annoyance or inconvenience”. 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.

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 – inter alia – “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 held 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 “spark in a powder keg”). Similarly, while the Court has never precisely defined what “morality” – for the purposes of Article 19(2) – means, the term has been invoked 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.

This raises two constitutional problems with Section 66A: the problems of overbreadth and vagueness. Both doctrines have been developed to their fullest in American free speech law, but the underlying principles are universal.

A statute is overbroad when it potentially includes within its prohibitions both speech that it is entitled to prohibit, and speech that it is not. In Gooding v. Wilson, a Georgia statute criminalized the use of “opprobrious words or abusive language”. 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 “wide open the standard of responsibility, so that it [was] easily susceptible to improper application”, the Court struck it down.

A statute is vague when persons of “ordinary intelligence… have no reasonable opportunity to know what is prohibited.” In Grayned v. Rockford, the American Supreme Court noted that “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.” 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.

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 chilling effect: 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, “free speech needs breathing space to survive.” Overbroad and vague speech-restricting statutes are particularly pernicious in denying it that breathing space.

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 par excellence, then Section 66A is surely it!

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.

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 http://indconlawphil.wordpress.com. Here at CIS, he blogs on issues of online freedom of speech and expression.

For more details visit https://cis-india.org/internet-governance/blog/two-arguments-against-the-constitutionality-of-section-66a

Dark days for the creative class in India: Siddiqui

praskrishna — 2014-02-17T09:14:43Z

As India’s literacy rate improves, governments, courts, media, publishers and big business are all stifling free speech.

Haroon Siddiqui's article was published in thestar.com on February 16, 2014. Pranesh Prakash is quoted.

In contrast to North America and Europe, India’s book publishers, newspapers and TV/radio stations are doing well, thanks to a rising literacy rate and a growing middle class. Authors, artists, journalists and filmmakers are enjoying big audiences and relatively good paycheques. Yet, paradoxically, free speech has never been so imperilled in the world’s largest democracy, for several reasons.

Governments are using colonial-era laws to stifle free speech. The lower courts and police are caving in to religious bigots who demand bans on what they don’t want to see and hear. Vigilante groups are using goon tactics to intimidate the creative class. Big business is slapping lawsuits and creating libel chill. Publishing houses are capitulating to legal, political and economic pressure. The media are too busy mollycoddling governments and advertisers to stand up for free speech.

Legal framework

The constitution guarantees free speech but, as in Canada and several European nations, it also imposes “reasonable restrictions” to maintain peace and public order. The Supreme Court has set a high bar for imposing any restrictions, yet both the federal and state governments routinely shut down anything that might flare communal riots, especially between Hindus and Muslims — a real and ever-present danger. Politicians don’t want blood on their hands to uphold the right of a preening writer to poke people in the eye. Critics counter that the political class doesn’t really care for intellectual freedom.

Libel and defamation laws criminalize speech and prescribe jail terms. This, again, is not much different than, say, the Canadian Criminal Code, under which those convicted of hate speech may be jailed for up to three years. (That’s what we are left with after the Stephen Harper Conservatives axed the civilian remedy that was available under the Human Rights Act.)

India’s Anti-Sedition Act prohibits words and actions that may cause “hatred or contempt or disaffection” toward government. This is used even against journalists, activists and those protesting government policies. As many as 6,000 farmers and fishermen were charged for opposing a nuclear plant along the southeast coast.

The Penal Code makes it an offence, punishable by up to three years in jail, to hurt anyone’s religious sensibilities; promote enmity between different religious groups; circulate “any statement or report containing rumour or alarming news with intent to create or promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community feelings of enmity,” etc., etc.

Worse, the code allows anyone offended by anything to demand that the offensive material be removed.

Indians are easily offended, indeed are “desperate to be offended,” jokes novelist Manu Joseph. The milieu allows religious leaders and politicians to stoke real or imagined grievances and rush to the courts and the police, both of which usually cave in rather than risk the wrath of frenzied protesters.

“Instead of protecting the right of free expression, the state defends the offended,” writes Salil Tripathi on the website Index on Censorship.

Adds Kian Ganz, editor of the website Legally India: “Many of these British-colonial laws were written and enforced to ‘control’ a multi-ethnic and religious population. Yet they are still around and are regularly used to stifle free speech.”

Religious bigotry

While we hear mostly of angry Muslims taking offence to alleged insults to Islam — the 1988 ban on Salman Rushdie’s The Satanic Verses being the prime example — increasingly it is Hindu fundamentalists who have been agitating successfully against what they do not like.

“Hindu bigots have matched, or perhaps even outperformed, their Islamic counterparts,” writes Ramachandra Guha, India’s pre-eminent historian. He was condemning Penguin India’s decision last week to recall and pulp American academic Wendy Doniger’s The Hindus: an Alternative History, under pressure from a Hindu group that said the 2009 book contained “heresies” and was focused on “sex and eroticism.”

There has been no bigger victim of Hindu wrath than the late M.F. Hussain, the “Picasso of India.” His priceless work was vandalized, he was slapped with hundreds of lawsuits and threatened with death for painting Hindu deities in the nude. He went into exile in Doha, Qatar, where I spoke to him on the phone in 2011 and heard his pain at having been hounded out of his beloved India. We agreed to meet later but he died soon after, at age 95.

Last year, India’s leading intellectual Ashish Nandy was threatened with arrest for ostensibly offending Dalits (Hindus of a lower caste, formerly known as untouchables).

In 2012, Mumbai police arrested a young woman who complained on Facebook about the shutdown of the city of 18 million on the death of Bal Thackeray, leader of a chauvinist regional Hindu party. Another woman who “liked” the page was also detained,both for “hurting religious sentiments.”

In 2011, the western state of Gujarat stopped the sale of American journalist Joseph Lelyveld’s biography of Mahatma Gandhi, which suggested that the great leader may have had a sexual relationship with a male German architect. The chief minister (premier), Narendra Modi, is now the prime ministerial candidate of the Hindu nationalist Bharata Janata Party for federal elections in May, which he is favoured to win.

In 2010, Canadian author Rohinton Mistry’s 1995 book, A Fine Balance, was removed from the syllabus of Bombay University, his alma mater, following objections by a student, the grandson of Thackeray. The head of the university’s English Department had to go into hiding after receiving death threats.

In 2008, Delhi University expunged from its history course an essay by A.K. Ramanujam on Hinduism following complaints by a Hindu group, and Oxford University Press India temporarily stopped printing it.

Other examples:

In 2007, a court issued an arrest warrant for actor Richard Gere for kissing Bollywood actress Shilpa Shetty, following complaints by irate Hindus. An institute in the western city of Pune was vandalized because American academic James Laine had done part of his research there for his book, Shivaji: Hindu King in Islamic India. An art gallery in Bangalore hastily removed partially nude pictures of Hindu deities fearing retaliation by a Hindu moral squad.

Guha, the historian, once suggested that both Rushdie and Hussain, one pilloried by Muslims and the other by Hindus, be conferred India’s highest civilian honours. “That would have been a blow for artistic freedom. And it’d have equally offended Hindu and Islamic bigots.”

Libel chill

There has been a steady rise in what free speech advocates see as nuisance lawsuits by corporate houses, businessmen and political parties.

In December, Jitender Bhargava, executive director of Air India until 2010, saw his book on the national airline withdrawn by Bloomsbury India, allegedly under political pressure.

The same month, another book, Sahara: The Untold Story, on the controversial finance and real estate conglomerate, was held back under a court order.

In 2011, Penguin removed a chapter in The Beautiful and the Damned from its Indian edition after Arindam Chaudhuri, who runs business schools, sued about his profile in it. He also sued Caravan, a journal of politics and culture, for an article on how he had “made a fortune off the aspirations and insecurities of India’s middle class.” The Delhi-based businessman still has the Delhi-based magazine entangled in the case he filed in a jurisdiction 1,750 kilometres away — and 300 kilometres from the nearest airport.

Penguin also held back a biography of J. Jayalalithaa, chief minister of the southern state of Tamil Nadu, who had a stay order issued against it.

In 1998, a book about the head of a textile conglomerate, Dhirubhai Ambani, was not published in India after the publisher was threatened with lawsuits. A second edition of The Polyester Prince was issued in India but with the offending material cut out.

It is difficult for outsiders, especially without the benefit of reading the materials in dispute, to judge the timidity of the publishers. But there’s no questioning the creeping self-censorship.

Obeisant media

Vinod Jose, executive editor of Caravan, writes in its annual media issue:

“Media owners bargained with the government to secure lucrative licences to mine coal blocks in return for their power to influence the public. Editors got caught on tape striking deals with lobbyists but remained arrogantly unapologetic. Owners fired political editors who wrote about politics independently . . . Forbes India pulled a story because it irked the finance ministry.”

Jose said that in 2013, the year surveyed, “the dominant mood of the press was docility.” If in the 1950s and 1960s, the media served the state, now they serve big business. They have begun to expose government corruption but remain mostly mum on corporate malfeasance. The Times of India, the country’s largest English daily, takes equity in some companies it provides advertising space to.

State surveillance

India, like the United States and other democracies, is under heavy criticism for invasion of citizen privacy under sweeping state surveillance, especially by its eight intelligence agencies that operate under mostly secretive powers.

“The real problem is that we don’t know what powers they do have — we only know bits and pieces about the Centralised Monitoring System (CMS), from some tender documents that indicate that the government intends to track web usage, phone calls, text messages and map location information, apparently without the knowledge of even telecom operators,” says Nikhil Pahwa of MediaNama (Media Journal), a website that provides news and analysis of digital media. “The issue is even less obvious here than that of the NSA,” the National Security Agency in the United States.

“The rules give the Indian government the ability to gag free speech, and block any website it deems fit, without publicly disclosing why or who blocked it — or providing adequate recourse for getting the block removed.”

“Intelligence agencies are not answerable to parliament, only to the Home ministry,” says Anja Kovacs of the Centre for Internet and Society. There are few checks and balances, little or no civilian oversight.

“The Indian government’s centralized monitoring is chilling, given its reckless and irresponsible use of the sedition and Internet laws,” says Human Rights Watch. “New surveillance capabilities have been used . . . to target critics, journalists and human rights activists.”

“Every month at the federal level, 7,000 to 9,000 phone taps are authorized or re-authorized,” writes Pranesh Prakash, policy director for the Centre for Internet and Society.

Conclusion

It is useful to remember that whatever is true of India, the exact opposite may also be true. So, while the situation is getting bleaker on the free speech front, in India the state is not the sole culprit, unlike in Russia, China or other authoritarian places. India also has a vibrant civil society that’s hammering away — is free to hammer away — at the need for a liberal polity to be liberal. The intellectuals, activists and NGOs I have quoted, testify to that. Here’s another:

The PEN All-India Centre in Mumbai and the newly formed Delhi Pen, both part of the global network of writers dedicated to free speech, said this last week:

“The removal of books from our bookshops, bookshelves and libraries, whether through state-sanctioned censorship, private vigilante action or publisher capitulation are all egregious violations of free speech that we shall oppose in all forms at all times.”

For more details visit https://cis-india.org/news/the-star-op-ed-february-16-2014-haroon-siddiqui-dark-days-for-creative-class-in-india

Indian government wakes up to risk of Hotmail, Gmail

praskrishna — 2013-12-30T04:24:57Z

Worried by US spying revelations, India has begun drawing up a new email policy to help secure government communications, but the man responsible for drafting the rules still regularly uses Hotmail.

This was originally published by AFP on December 7, 2013, was also mirrored by the Times of India, Livemint, Reuters, Dawn, NDTV, Yahoo News, The Malaysian Insider and Asia One Digital. A slightly modified version was published by Silicon India on December 11. Sunil Abraham is quoted.

Like many of his peers in ministries across New Delhi, IT Minister Kapil Sibal's office recently sent an email inviting journalists to the launch of his new personal website using the free email service.

Others, including senior foreign ministry officials, the information and broadcasting minister and the health ministry secretary, also use Gmail, Hotmail or Yahoo instead of their government accounts.

When asked why he continued to use his Hotmail for official use, Sibal declined to comment, but a senior bureaucrat in his ministry admitted that he personally preferred Gmail because it is "just a lot easier".

"We keep moving, get different designations, go different places and with that, our emails change. You lose contacts and important emails, which you don't need to worry about with a Gmail account," the bureaucrat told AFP.

"To be honest, the quality of our official mail isn't that great yet. It still needs some work," he added on condition of anonymity.

Security concerns

IT security expert Sunil Abraham said the use of Gmail and the like was highly risky since the American services had their servers in the US and the National Security Agency has been known to tap into their database systems.

It is unclear how many state and federal public workers actively use popular email services for office, but some of the estimates are startling.

"As much as 90 percent of government officials use private email (services) for official use... that's because their official email is not as stable or speedy," said Abraham, executive director of the Bangalore-based Centre for Internet and Society.

In September Sibal's ministry announced a new "Email Policy of the Government of India" in the wake of spying allegations about the NSA revealed by former NSA contractor Edward Snowden.
NSA's tentacles not only crept into the Indian embassy in Washington and its UN office in New York, but also accessed email and chat messenger contact lists of hundreds of millions of ordinary citizens worldwide, according to media reports.

During a single day last year, the NSA's Special Source Operations branch collected 444,743 email address books from Yahoo, 105,068 from Hotmail, 82,857 from Facebook, 33,697 from Gmail and 22,881 from unspecified other providers, The Washington Post said, according to an internal NSA presentation.

The $11 million Indian project aims to bring some five million public employees onto the government's email domain powered by the National Informatics Centre (NIC) as early as mid-December.

It is awaiting clearances and suggestions from all ministries before the proposal goes to the cabinet this month.

J. Satyanarayana, secretary of the department of electronics and IT, dismissed claims that the policy was too late and was a response to the Snowden scandal.

"The policy is not a reaction to any global spying revelations, it was already in the works. It is just a mere coincidence that both came around the same time," he said.

Fresh doubts

Some cyber security experts say bringing millions aboard a centralised server could make a hacker's job easier, with all critical government information available on a single platform.
More than 11,000 Indian websites were hacked or defaced between May and August this year, with a large number of attacks on the ".in" domain whose servers are in India, the Times of India reported last month.

"Making the use of a centralised government server is not the best way to proceed. Having everything on one platform makes it even more vulnerable to cyber attacks and hacking," said Abraham.

"It also brings about new worries of the NIC becoming the local snoop."

Some also predict that the ambitious policy would eventually fizzle out for lack of attention from ministers and bureaucrats, who work in government offices where stacks of yellowing files and papers are still a common sight.

"It's sad but most of these officials don't understand much about technology, so mastering email is something that is miles and miles away," said Vijay Mukhi, a Mumbai-based cyber security expert.

"These guys saw all the snooping news and suddenly they woke up and said 'lets make an email policy'. Enforcing this is not possible on a practical basis."

The IT ministry also plans to conduct workshops to teach employees about email security such as when to change passwords and user names and how to use email.

"Every employee should know how, what and when critical data can be vulnerable... with most work still done on paper, it is important to know the nitty-gritty of using email," Satyanarayana said.

For more details visit https://cis-india.org/news/afp-december-7-2013-annie-banerjee-indian-government-wakes-up-to-risk-of-hotmail-gmail

India believes in Complete Freedom of Cyber Space: Kapil Sibal

praskrishna — 2013-10-25T07:13:44Z

The site of the impact of a cyber crime should determine jurisdiction, says information technology minister Kapil Sibal.

This article by Elizabeth Roche was published in Livemint on October 14, 2013. Moulishree Srivastava also contributed to this story. Sunil Abraham is quoted.

Minister for communications and information technology Kapil Sibal said on Monday that if a cyber crime had an impact on India or the subject matter was Indian, India should have the jurisdiction to investigate the crime and mete out justice.

India “believes in complete freedom of cyber space”, Sibal said, adding that the international community should arrive at a consensus on rules of jurisdiction and enforceability where cyber crimes are concerned. He was speaking at a conference on cyber security and cyber governance in New Delhi.

“Freedom of expression is central to our ideological stand on cyber space but at the same time there must be a de facto recognition of threats that are out there in cyber space and that we need to deal with those threats locally, nationally and globally and what we need is a consensus on those,” the minister said.

He was asked specifically about the need for changes in the global Internet governance structure following a US admission that its National Security Agency listened in on communications from the embassies of allies such as France, Italy and Greece, as well as Japan, Mexico, South Korea, India and Turkey.

The site of the impact of a cyber crime should determine jurisdiction, the minister said.

He gave an example: if anything happens in an Indian mission located in New York, it should be governed by Indian law because the mission would be considered Indian territory.

“So as long as the source of the data is Indian and the impact is on India then the jurisdiction must be Indian and that should apply across the world,” he said.

“If the harm has been caused to Indian citizens or Indian property then jurisdiction should be Indian,” said Sunil Abraham, executive director at Centre for Internet and Society. “This principle has already been developed by Justice Murlidhar in Banyan Tree case. So this principle already has legal precedent.”

But Abraham added that “even if Indian courts believe that it is their jurisdiction, foreign law enforcement agencies may not co-operate. This may be one of the biggest challenges in implementing this principle”.

“This move could be seen as one enhancing cyber security, but since there is no universally accepted definition to cyber security and some government include speech regulation, surveillance, cyber crime and hacktivism a part of cyber security—there can be damaging consequences for human rights online,” Abraham said.

The minister’s statement assumes significance against the backdrop of a number of countries including India protesting the spying by the US National Security Agency (NSA) on their missions in Washington and New York.

According to many news reports, India was among the top five countries whose missions in the US were targeted by the NSA as part of a clandestine effort to mine electronic data. Reports of the US snooping has caused unease world wide.

German Chancellor Angela Merkel raised the issue with US President Barack Obama in June while Brazil’s President Dilma Rouseff reportedly cancelled a summit with the US President in protest last month.

According to the ministry of external affairs in New Delhi, India raised the issue with the US embassy in New Delhi besides taking up the issue with the US state department in Washington. Both sides agreed to discuss the subject during their cyber security dialogue.

“That’s the law in the country...if anything happens there (in Indian embassies) that is part of Indian jurisdiction and similarly if you apply the same example and establish jurisdiction then anything that relates to Indian data and the impact on Indian data, it’s the courts in India that should have jurisdiction,” Sibal added later.

“We are talking about a principle and the principle is wherever there is Indian data wherever anything is done to impact on Indian data, the source of which is Indian then the jurisdiction must be of Indian courts,” the minister said adding that he was putting this view out as something the cyber security seminar should discuss.

India’s national security adviser Shiv Shankar Menon added that what the minister had voiced was India’s view but it was not a settled matter and that it had to be discussed at global forums.

With around 40% of the 120 million smartphone users in India accessing the Internet through mobile phones, network protection was an imperative. “The consequences of manipulation or distortion...can be potentially disastrous.” Menon said recalling how morphed pictures of violence seemingly targeting a particular ethnic group, circulated on the Internet and via cell phones, had resulted in thousands of people fleeing home from their places of work last year.

On certification of hardware security, Menon said: “India has recently received authorizing nation status for IT products and testing labs in the country will now gain global recognition,” adding that this was an opportunity for Indian industry.

Sibal, in his address, said the Internet had become a means of empowerment of people and most of this was due to the enormous freedom provided by the Internet. But “there can be no concept of sovereignty in cyber space because there are no territorial issues involved”, he said.

For more details visit https://cis-india.org/news/livemint-october-14-2013-elizabeth-roche-moulishree-srivastava-india-believes-in-complete-freedom-of-cyber-space

Decline in web freedom steepest in India: Report

praskrishna — 2013-10-24T03:50:51Z

In a report on the state of internet in 60 countries, Freedom House, a US-based organization, said that in 2013 India saw the "most significant year-on-year decline" in terms of the web freedom.

The article by Javed Anwer was published in the Times of India on October 3, 2013. Sunil Abraham is quoted.

The report said that that the internet in India was "partly free". This is the same status that India had in 2012. But the country's score is now 47 points (higher means more censorship) in 2013 compared to 39 in 2012. The 8-point fall is the steepest Freedom House found among all 60 countries that the group surveyed. Freedom House said it recorded 5-point fall in Brazil, Venezuela and the US.

Despite mass surveillance revealed by Edward Snowden, a former contractor for National Security Agency in the US, Freedom House calls the web in the country "free".

The Freedom House report said that in 2013 India "suffered from deliberate interruptions of mobile and internet service to limit unrest, excessive blocks on content during rioting in northeastern states, and an uptick in the filing of criminal charges against ordinary users for posts of social media sites".

In 2013, India's commitment to the web freedom has not only been worse than developed countries but has also been inferior to countries like Malawi, Tunisia and Mexico.

In the case of India, Freedom House particularly singles out Central Monitoring System, which Indian government is putting in place to regulate and monitor the web usage within the country. "Surveillance (under CMS) requires no judicial oversight. While some of this activity might be justifiable, the lack of transparency surrounding the system, which was never reviewed by Parliament, is concerning," it notes in the report. "The system's potential for abuse is also disquieting, as is its inadequate legal framework.

The report cites the case of the girl who was arrested for liking a Facebook post in Maharashtra, blocking of some Twitter accounts belonging to Indian users, overly broad court directives that have resulted in blocking of websites and a general lack of transparency in how Indian government blocks or filters content reach a conclusion that Indians now have less freedom on how they use the web.

Sunil Abraham, director at Bangalore-based Centre for Internet and Society, says that Freedom House reports are not very accurate because they don't factor in censorship by copyright holders. But he agreed with its basic premise that in India conditions for web users are getting more difficult.

"The report is absolutely right in pointing out that censorship and surveillance in India is increasing. Despite protests from many quarters, it is a real pity that the government is not taking steps to amend the IT act and has joined other nation states in the global race to the bottom of the internet freedom," said Abraham.

Anja Kovacs, founder of Delhi-based Internet Democracy Project, agrees. "I have some issues with Freedom House reports due to how they are prepared and their methodologies. But yes I can say that last year has been very eventful and difficult," said. "But at the same time, there has also been a lot of push back from web users and activists. There have been conversations around the issue of web censorship, which is good."

Globally, the web surveillance is on the rise. "Broad surveillance, new laws controlling web content, and growing arrests of social-media users drove a worldwide decline in internet freedom in the past year," noted Freedom House.

Overall, 34 out of 60 countries part of the report saw a decline in the web freedom. "Vietnam and Ethiopia continued on a worsening cycle of repression; Venezuela stepped up censorship during presidential elections; and three democracies—India, the United States, and Brazil—saw troubling declines," noted the report.

Iceland and Estonia topped the list of countries with the greatest degree of internet freedom. China, Cuba, and Iran were found to be the most repressive countries.

For more details visit https://cis-india.org/news/times-of-india-october-3-2013-javed-anwer-decline-in-web-freedom-steepest-in-india