Centre for Internet and Society

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.

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-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

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.

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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

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

Fixing India’s anarchic IT Act

pranesh — 2012-11-30T06:33:58Z

Section 66A of the Information Technology (IT) Act criminalizes “causing annoyance or inconvenience” online, among other things. A conviction for such an offence can attract a prison sentence of as many as three years.

Pranesh Prakash's article was published in LiveMint on November 28, 2012.

How could the ministry of communications and information technology draft such a loosely-worded provision that’s clearly unconstitutional? How could the ministry of law allow such shoddy drafting with such disproportionate penalties to pass through? Were any senior governmental legal officers—such as the attorney general—consulted? If so, what advice did they tender, and did they consider this restriction “reasonable”? These are some of the questions that arise, and they raise issues both of substance and of process.

When the intermediary guidelines rules were passed last year, the government did not hold consultations in anything but name. Industry and non-governmental organizations (NGOs) sent in submissions warning against the rules, as can be seen from the submissions we retrieved under the Right to Information Act and posted on our website. However, almost none of our concerns, including the legality of the rules, were paid heed to.

Earlier this year, parliamentarians employed a little-used power to challenge the law passed by the government, leading communications minister Kapil Sibal to state that he would call a meeting with “all stakeholders”, and will revise the rules based on inputs. A meeting was called in August, where only select industry bodies and members of Parliament were present, and from which a promise emerged of larger public consultations. That promise hasn’t been fulfilled.

Substantively, there is much that is rotten in the IT Act and the various rules passed under it, and a few illustrations—a longer analysis of which is available on the Centre for Internet and Society (CIS) website—should suffice to indicate the extent of the malaise.

Some of the secondary legislation (rules) cannot be passed under the section of the IT Act they claim as their authority. The intermediary guidelines violate all semblance of due process by not even requiring that a person whose content is removed is told about it and given a chance to defend herself. (Any content that is complained about under those rules is required to be removed within 36 hours, with no penalties for wilful abuse of the process. We even tested this by sending frivolous complaints, which resulted in removal.)

The definition of “cyber terrorism” in section 66F(1)(B) of the IT Act includes wrongfully accessing restricted information that one believes can be used for defamation, and this is punishable by imprisonment for life. Phone-tapping requires the existence of a “public emergency” or threat to “public safety”, but thanks to the IT Act, online surveillance doesn’t. The telecom licence prohibits “bulk encryption” over 40 bits without key escrow, but these are violated by all, including the Reserve Bank of India, which requires that 128-bit encryption be used by banks. These are but a few of the myriad examples of careless drafting present in the IT Act, which lead directly to wrongful impingement of our civil and political liberties. While we agree with the minister for communications, that the mere fact of a law being misused cannot be reason for throwing it out, we believe that many provisions of the IT Act are prone to misuse because they are badly drafted, not to mention the fact that some of them display constitutional infirmities. That should be the reason they are amended, not merely misuse.

What can be done? First, the IT Act and its rules need to be fixed. Either a court-appointed amicus curiae (who would be a respected senior lawyer) or a committee with adequate representation from senior lawyers, Internet policy organizations, government and industry must be constituted to review and suggest revisions to the IT Act. The IT Act (in section 88) has a provision for such a multi-stakeholder advisory committee, but it was filled with mainly government officials and became defunct soon after it was created, more than a decade ago. This ought to be reconstituted. Importantly, businesses cannot claim to represent ordinary users, since except when it comes to regulation of things such as e-commerce and copyright, industry has little to lose when its users’ rights to privacy and freedom of expression are curbed.

Second, there must be informal processes and platforms created for continual discussions and constructive dialogue among civil society, industry and government (states and central) about Internet regulation (even apart from the IT Act). The current antagonism does not benefit anyone, and in this regard it is very heartening to see Sibal pushing for greater openness and consultation with stakeholders. As he noted on the sidelines of the Internet Governance Forum in Baku, different stakeholders must work together to craft better policies and laws for everything from cyber security to accountability of international corporations to Indian laws. In his plenary note at the forum, he stated: “Issues of public policy related to the Internet have to be dealt with by adopting a multi-stakeholder, democratic and transparent approach” which is “collaborative, consultative, inclusive and consensual”. I could not have put it better myself. Now is the time to convert those most excellent intentions into action by engaging in an open reform of our laws.

Pranesh Prakash is policy director at the Centre for Internet and Society.

For more details visit https://cis-india.org/internet-governance/blog/livemint-opinion-november-28-2012-pranesh-prakash-fixing-indias-anarchic-it-act

Fear, Uncertainty and Doubt

sunil — 2015-04-17T01:44:39Z

Much confusion has resulted from the Section 66A verdict. Some people are convinced that online speech is now without any reasonable restrictions under Article 19 (2) of the Constitution. This is completely false.

There are many other provisions within the IT Act that still regulate speech online, for example the section on obscenity (Sec. 67) and also the data protection provision (Sec. 43A). Additionally there are provisions within the Indian Penal Code and other Acts that regulate speech both online and offline. For example, defamation remains a criminal offence under the IPC (Sec. 499), and disclosing information about children in a manner that lowers their reputation or infringes their privacy is also prohibited under the Protection of Children from Sexual Offences Act, 2012 (Sec. 23).

Others are afraid that the striking down of Section 66A results in a regulatory vacuum where it will be possible for bad actors to wreak havoc online because the following has been left unaddressed by the IT Act.

Criminal Intimidation: The phrase "criminal intimidation" was included in Sec. 66A(b), but the requirement was that intimidation should be carried out using "information which he knows to be false". Sec. 506 of the IPC which punishes criminal intimidation does not have this requirement and is therefore a better legal route for affected individuals, even though the maximum punishment is a year shorter than the three years possible under the IT Act.
Cyber-stalking: A new section for stalking - Sec. 345 D - was added into the IPC in 2013 which also recognised cyber stalking. The definition within Sec.345D is more precise compared to the nebulous phrasing in Sec. 66A, which read - "monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking".
Phishing: Sec. 66A (c) dealt with punishment to people who "deceive or mislead the addressee or recipient about the origin of such messages". Sec.66D, which will be the operative section after this verdict, deals with "cheating by impersonation" and forms a more effective safeguard against phishing.

Cyber-bulling of children is arguably left unaddressed. Most importantly, spam, the original intention behind 66A, now cannot be tackled using any existing provision of the law. However, the poorly drafted section made it impossible for law enforcement to crack down on spammers. A 2005 attempt by the ITU to produce model law for spam based on a comparative analysis of national laws resulted in several important best practices that were ignored during the 2008 Amendment of the Act. For example, the definition of spam must cover the following characteristics - mass, unsolicited and commercial. All of which was missing in 66A.

Good quality law must be drafted by an open, participatory process where all relevant stakeholders are consulted and responded to before bills are introduced in parliament.

A scanned copy of the article was published in the Deccan Chronicle on March 26, 2015.

For more details visit https://cis-india.org/internet-governance/blog/deccan-chronicle-march-26-2015-sunil-abraham-fear-uncertainty-doubt

Fake News, Rumors & Online Content Regulation

praskrishna — 2017-02-28T02:46:13Z

Medianama and Mint organized #NAMApolicy open house on 'Fake News, Rumors & Online Content Regulation' on February 22, 2017 at the India Habitat Centre. Japreet Grewal and Amber Sinha attended the event.

The discussions broadly covered the impact of Fake News on democratic processes, Legal status of online content regulation in India & administrative challenges with Fake News, Responsibility and accountability of online platforms, while addressing challenges of identification of sources of Fake News, Potential legal and non-legal ways of addressing Fake News, etc.

Agenda

06:30 to 07:00 pm - Registration
07:00 to 07:10 pm - Introductory note
07:10 to 09:00 pm - Round-table discussion moderated by Nikhil Pahwa
09:00 pm onwards - Networking dinner

For more details visit https://cis-india.org/internet-governance/news/fake-news-rumors-online-content-regulation

Facebook, Google deny spying access

praskrishna — 2013-07-02T10:18:48Z

The CEOs of Facebook and Google on Saturday categorically denied that the US National Security Agency had "direct access" to their company servers for snooping on Gmail and Facebook users. But both acknowledged that the companies complied with the 'lawful' requests made by the US government and shared user data with sleuths.

The article by Javed Anwer was published in the Times of India on June 9, 2013. Pranesh Prakash is quoted.

In a post titled "What the ...?" Google's official blog, CEO Larry Page wrote, "We have not joined any program that would give the US governmentâ€”or any other governmentâ€”direct access to our servers. We had not heard of a program called PRISM until yesterday."

A few hours later, Facebook CEO Mark Zuckerberg responded. "Facebook is not and has never been part of any program to give the US or any other government direct access to our servers... We hadn't even heard of PRISM before yesterday," he wrote on his page at the social media site.

According to a few PowerPoint slides allegedly leaked by an NSA official, nine technology companies - Google, AOL, Apple, Yahoo, Microsoft, Skype, Facebook, YouTube and PalTalk - are providing the US government easy access to user data. While all companies have denied being part anything called PRISM, Facebook and Google have been most vocal about it.

A few hours after Facebook and Google statements, the New York Times said in a report that technology companies had "opened discussions with national security officials about developing technical methods to more efficiently and securely share the personal data of foreign users".

"In some cases, they (companies) changed their computer systems to do so," noted the NYT report.

The statements by the CEOs have done little to allay privacy fears. "The denials from the companies look highly coordinated, including similar phrases in all their responses. I don't think they are lying outright, though the NYT report suggests that they are telling a half-truth. They may not provide the US government 'direct access' to all their servers, but may be providing indirect access, or may just be responding to very broad FISA orders," said Pranesh Prakash, a policy director with Centre for Internet and Society in India.

On Friday US president Barack Obama had tacitly acknowledged NSA surveillance programmes aimed at non-US citizens. "You can't have a hundred per cent security and also then have a hundred per cent privacy and zero inconvenience. You know, we're going to have to make some choices as a society," he told reporters in the US.

Page and Zuckerberg also called on the governments to be more open about surveillance programmes. "The level of secrecy around the current legal procedures undermines the freedoms we all cherish," wrote Page.

Added Zuckerberg, "We strongly encourage all governments to be much more transparent about all programs aimed at keeping the public safe. It's the only way to protect everyone's civil liberties and create the safe and free society we all want over the long term."

For more details visit https://cis-india.org/news/times-of-india-javed-anwer-june-9-2013-facebook-google-deny-spying-access

Facebook's Delicate Dance With Delhi On Censorship

praskrishna — 2012-09-03T04:39:45Z

At the end of last week, a hashtag briskly rose across India: #Emergency2012. It was a reference to the 21-month stint, beginning in the summer of 1975, when then PM Indira Gandhi determined democracy an inconvenience.

Contributed by Mark Bergen, the post was published in Forbes on August 29, 2012. Sunil Abraham is quoted.

This time around, the government launched a jumbled attempt, following ethnic violence in the northeast, to stem rumors behind a panicked exodus. They blocked over 300 sites and axed at least 16 Twitter accounts, including those of political opponents and journalists. Many of us found our cell phone texts suddenly, with no announcement, cut off after five missives.

It was hardly the Emergency of 1975. The government’s actions were far less draconian than three decades ago. But, back then, there were no foreign internet companies to complicate matters—and, it seems, absolve the government.

In response to the recent charges, Delhi claimed that there was “no censorship at all.” As the communications minister, Kapil Sibal, put it, “Facebook and Google are cooperating with us.”

Under the circumstances, shutting down the incendiary hate speech online was warranted, explained Sunil Abraham, the director of the Centre for Internet and Society (CIS) in Bangalore. The process was just incredibly inept. “There were so many things they did wrong,” he told me when I asked about the government’s response. And the reaction can be tacked onto a very recent history of Delhi issuing sweeping, usually empty, threats of censoring U.S. internet companies.

“Perhaps the Indian government has wasted, frittered a way goodwill,” Abraham continued. “It has cried ‘wolf’ so many times that this time the internet intermediaries are not taking them as seriously as they should.”

His group analyzed the sites shut down last week, pointing out the “numerous mistakes and inconsistencies that make blocking pointless and ineffectual.” It’s clear that the censorship was also opportunistic—used to stamp out political parody Twitter accounts—and counterproductive. Among the sites blocked was a Pakistani blog debunking the rumors behind the whole exodus episode.

Abraham criticized the government for coming to the intermediaries with broad demands first, rather than directly to Twitter, Facebook and Google. That approach, coupled with earlier censorship demands, may strain the trust between the ruling coalition and the web giants.

Still, Facebook has every reason to keep Delhi happy. This year, the number of users in India hit 32 million—a 85 percent jump from the last. The total is expected to nearly double next year, leap-frogging Indonesia for the title of second largest market. An overwhelming chunk of that growth will come from mobile users. As this solid report from Forbes India shows, the company is still struggling here, as it is in the U.S., to turn those new users into ad revenue:

Indian businesses spent Rs 2,850 crore on digital advertising as of March 2012, a number that’s expected to grow to Rs 4,391 crore next year, according to a report by the Internet Mobile Association of India/Indian Market Research Bureau (IAMAI/IMRB).

…But Facebook has not been able to capture much of this share. Mahesh Murthy reckons that businesses spent about Rs 150 crore on Facebook marketing, but only a third went to Facebook’s own kitties in the form of ad revenues. The rest went to social media marketing firms which handle Facebook accounts.

That’s not to say that the company will discontinue its aggressive efforts. It likely will not be deterred by policies that attack free speech—Zuckerberg’s empire has long been accused of complacency with censorship. It’s India’sinfamously unpredictable tax policies toward foreign entities that would conceivably slow the company’s expansion.

There’s little reason to suspect, then, that Facebook, Google and the western web behemoths will not continue to cooperate with Delhi moving forward. And much of that cooperation should come not as blatant censorship but covert surveillance. According to the Google Transparency Report, India has made over 2,000 data requests and 100 removal requests, third only to the States and Brazil. As the mobile revolution soars, that number will surely rise.

On Monday evening, Christopher Soghoian, a D.C.-based privacy analyst, spoke at the CIS before a crowd of young Indian law students and activists. Despite the shoddy security default of internet firms, he said, they can impose limits on government surveillance. “When these companies receive requests from where they don’t have an office,” he claimed, “they refuse.” Two years ago, Facebook India opened its first office in Hyderabad.

Soghoian advised his audience to push for privacy and transparency standards in India. He shared the story of the long-fought battle for encryption protection with Facebook in the U.S. Yet, he admitted that security provisions can falter when a government is bent on policing the internet—and a company is bent on cooperation. “If you can force companies to hand over the keys,” he said, “then encryption is useless.”

For more details visit https://cis-india.org/news/www-forbes-com-mark-bergen-aug-29-2012-facebooks-delicate-dance-with-delhi-on-censorship

Facebook Arrests Ignite Free-Speech Debate In India

praskrishna — 2013-01-07T10:16:39Z

Shaheen Dhada is an unlikely looking protagonist in the battle under way in India to protect free speech from government restrictions in the new media age.

This article by Julie McCarthy was published in npr on November 29, 2012. Pranesh Prakash is quoted.

Slight and soft-spoken, Dhada perches on the edge of her bed in a purple-walled room that has been her own for the past 20 years. Outside, police officers are posted for her protection in the town of Palghar, 2 1/2 hours outside Mumbai.

The 21-year-old management science grad's Facebook post last week triggered her arrest and the wrath of local residents. Her "crime" was questioning the shutdown of Mumbai as mourners gathered for the cremation of Bal Thackeray, who had dominated the city's political stage for decades with cagey intimidation tactics.

In a Facebook post on Nov. 18, Dhada wrote: "Every day thousands of people die, but still the world moves on. ... Today, Mumbai shuts down out of fear, not out of respect."

Within minutes, she got a call from a stranger. "And he told me, 'Do you really think whatever you posted is right?' " Dhada says. "I was actually confused about what he was asking for."

She hung up and deleted her comment. But by then a mob had gathered at her uncle's medical clinic around the corner, smashing windows and equipment, and vandalizing the operating room.

"Within 10 minutes, the police came and told me to come to the police station. I had to apologize in a written statement," says Dhada, who was held until 2 a.m. and then released on bail. A friend of hers, Renu Srinivasan, who "liked" the post, had been detained with her. A mob descended on the station. Dhada says she couldn't see it, but heard: "They were shouting, and at that time I was really very scared."

Meanwhile, Dhada's father, Farooq Dhada, says his family cowered inside their home for hours in the darkness, afraid the mob would come for them next.

The episode has shaken the Muslim father of two, who says he never expected things to escalate to such a frightening pitch. Reflecting on the incident days later, he says freedom of speech in India "exists only on paper." He says he doubts the common person feels any sense of security — no matter what religion they are.

Shiv Sena's Legacy Of Violence

Shaheen Dhada's post had angered followers of Thackeray, a political cartoonist turned Hindu hard-liner. His Hindu party, Shiv Sena, won popular appeal in the state of Maharashtra, where Mumbai is located. Exploiting enmity against migrants from other states, the party encouraged brute force to win jobs and opportunities.

Journalist Naresh Fernandes says when Hindu nationalism became a potent force, Shiv Sena turned its ire on Mumbai's Muslims — igniting riots that killed 900 people in 1992 and '93.

Thackeray fanned the violence, Fernandes says, by "making extremely provocative statements essentially calling upon his followers to attack Muslims."

Vaibhav Purandare, author of The Shiv Sena Story, says the party's legacy of violence has cost it support over the years.

"They refused to believe that the India of the 21st century was very different from the India of the 20th century ... when a section [of the population] would not mind the use of violence," Purandare says. The bust-up of the medical clinic "shows they continue with violence tactics," he adds.

Anil Desai, the secretary of Shiv Sena, says it is not a matter of disowning the violence. "It was an emotional outburst," he says, "and the incidents ... were blown out of proportion, that much I say."

Inciting Religious Enmity

At a restaurant in Palghar on Friday night, the talk among locals turned to the Facebook row. Sunil Mahendrakar said Dhada should be prohibited from posting comments critical of Thackeray because he was considered a father figure to many, if not to her.

"Talking cheap or bad about somebody's father should be denied, anywhere in the world. In India ... in America," he said. "It's wrong."

Retired Supreme Court Justice Markandey Katju says every freedom is subject to "reasonable restrictions in the public interest." But he says in the case of Dhada, her post actually underscores a Supreme Court ruling that bringing a city to a standstill is illegal.

"You can mourn a death in whichever way you want, but you can't bring a whole city to a stoppage. So what this girl wrote was in consonance with the verdict of the Supreme Court — nothing illegal," Katju says.

Nonetheless, police charged Dhada under a statute that makes it a crime to promote "religious enmity" between groups. The initial police report refers to her as a Muslim. But Dhada says she does not believe she was singled out for her faith.

Writer Fernandes says it's more likely police were scrambling for a convenient hook on which to hang a charge.

"They needed to find a cause of anger and suggested that she, as a Muslim girl, had insulted them, who were Hindus," he says. "That's ridiculous. She questioned why a city shut down after Bal Thackeray's death — and Bal Thackeray is not a religion; he's a leader of a political party."

The general consensus seems to be that the police not only misapplied the law but also succumbed to the will of the mob.

"There were thousands of guys outside their police station and inside the station house who were doing what the Shiv Sena has always done — threatening to burn the town up," Fernandes says. "They just wanted to get them off their backs and wanted to make sure that order was maintained even as they didn't quite uphold the law."

Communal Harmony

The case also throws a harsh light on India's new Information Technology Act that governs electronic speech. Police charged Dhada with violating a section of the law, which prohibits speech that, among other things, causes "annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will."

Pranesh Prakash, the director of the Centre for Internet and Society, says it's a poorly drafted catchall. Under such a sweeping statute, Prakash says, 95 percent of India's Internet users could well be imprisoned.

"I have 3,500 followers on Twitter, and I'm pretty sure I annoy 100 of them on a daily basis," he says.

Tackling issues of communal harmony is a serious issue in India, but, Prakash says, "it should not lead to forsaking fundamental rights guaranteed by the Indian Constitution."

The government conferred Thursday over problems with the IT Act, while the Supreme Court is hearing challenges to it.

Shaheen Dhada and Renu Srinivasan are not expected to face prosecution under the country's controversial IT Act or any other law. Following a public outcry, two senior officials from the local Palghar police have been suspended and a magistrate transferred.

From her self-imposed house arrest, Dhada says she'll venture back onto Facebook, but her experience is certain to color her musings.

"I don't want this to happen again," she says, laughing, "but I'll be careful next time."

For more details visit https://cis-india.org/news/npr-julie-mccarthy-november-29-2012

Expect anti-net censorship echo in house

praskrishna — 2012-04-25T11:07:43Z

For the anti-Internet censorship movement in the country, hope is now in sight. Their fight against the intermediary provisions (section 79) of the IT laws, according to which, an intermediary (website, domain owner) would have to take off content that a third party (or complainant) finds ‘objectionable,’ without any room for appeal, has now garnered the attention of the government itself. What is at stake is our fundamental rights, warns CPM Member of Parliament P Rajeeve, who was perhaps the first at the government level to realise that there was a gaping hole in the provision, and took up the matter in the Rajya Sabha.

This blog post by Arpan Daniel Varghese was published in IBN Live on April 25, 2012

“A discussion on the annulment of the IT Act 2011 itself is likely to figure in the budget session of the Parliament on April 24. I am trying to mobilise other MPs. We have decided to convene a meeting of organizations, representatives of political parties and MPs to discuss this issue in detail,” says MP Rajeeve.

Noted Twitteratti and former Minister of State for External Affairs Shashi Tharoor too is concerned, particularly about the onus this places on Internet Service Providers.

“If a newspaper publishes something, you go after the newspaper, not the delivery boy. Yes, you can ask the delivery boy to stop delivering the newspaper, but that is such an extreme step that few democracies would contemplate. But what we are trying to do seems to go unacceptably far in this direction and needs further reconsideration,” Tharoor says, adding that he too is planning to raise the issue in the Lok Sabha.

Both Alok Dixit from ‘Save Your Voice’ and Sunil Abraham, the executive director of the Centre for Internet And Society (CIS), say they are speaking to MPs and others in the government and trying to initiate an motion in the Rajya Sabha against the intermediary provisions. And support has been pouring in from all quarters, be it cyber space or through the pan-India protests, including the recent one at the Marina Beach in Chennai that ‘Save Your Voice’ has been holding.

Alok, Sunil and scores of activists across the country are now pinning their hopes on the annulment motion introduced by MP Rajeeve, which is likely to be taken up during the second half of the Parliament session on Tuesday.
The main hassle, however, is ignorance. “People don’t even know about the laws. They are not aware of their rights. So, the kind of support we are getting is quite less,” says Alok.

The legal fraternity and the administration too face the same roadblock, agrees Kerala High Court advocate Jacob. “This is a new area and people are just learning the theoretical side of it. There are not many cases. Trained professionals are not there to train the legal fraternity itself,” he rues.

The fundamental question is, according to Sunil, “why should freedom of speech and expression be any different on the Internet?”
“Remember, this is the same Internet which brought out Kolaveri and structured the Anna movement. So, it affects you,” Alok signs off.

Read the original here

For more details visit https://cis-india.org/news/anti-net-censorship-echo-in-house

DoT Reportedly Orders Blocking of 32 Websites Including GitHub, Archive.org, SourceForge

praskrishna — 2015-01-02T14:51:39Z

Many users on Twitter are claiming that several websites, including many software development resources such as GitHub and SourceForge, along with research resources like the Internet Archive have all been blocked on order of the Department of Telecom.

The story was published in NDTV on December 31, 2014. Pranesh Prakash gave his inputs.

A letter circulating online shows a list of 32 URLs that ISPs have reportedly been ordered to block, with most of these URLs being entire websites, instead of specific webpages that's usually been the case with such blocks in the past.

We tried to verify the users' claims, but on both our office broadband network, and also on Airtel and Vodafone 3G networks, all the sites were opening properly at the time of writing. Interestingly, many of the sites failed the load at the first try, but simply hitting refresh once solved the problem.

This does not mean that blocking is not happening - it is possible that the order has been sent recently, and will take some time to be fully implemented. Here is the email which purportedly shows the list of the 32 blocked URLs, as posted by Pranesh Prakash, Policy Director of the Center for Inernet and Society:

No information is available at present to confirm if blocking is truly happening, or why, but we are trying to ascertain the exact details and will update this story with the information as soon as possible.

However, there is some partial confirmation because both Pastebin and the Internet Archive have tweeted about blocking from India.

Such blocks in the past have been due to John Doe orders but the fact it is targeting software development sites like Github and Sourceforge is strange - the John Doe orders have specifically been used to block piracy of films, and blocking off sites that have no connection to movies makes no sense.

Arvind Gupta, the National Head of the BJP IT cell also took to Twitter, stating that these websites were being blocked for security reasons, based on the advice of the Anti-Terrorism Squad. According to Gupta's Tweets, the sites were being unblocked as soon as they removed "objectionable materials", allegedly related to ISIS.

It's extremely unusual that a government decision is being communicated by a political party official - if the Department of Telecom is blocking sites, then it should be the one to communicate and clarify these events. However, so far, it has not issued any statements, and neither has the IT Ministry.

For more details visit https://cis-india.org/internet-governance/news/ndtv-december-31-2014-dot-reportedly-orders-blocking-of-32-websites-including-github-archiveorg-sourceforge

DoT Blocks Domain Sites — But Reasons and Authority Unclear

smita — 2012-11-21T10:03:39Z

Earlier this year, ISPs such as Airtel and MTNL blocked a number of domain sites including BuyDomains, Fabulous Domains and Sedo.co.uk. Whereas the Indian Government and courts have previously issued orders blocking websites, these actions have generally been attributed to issues such as posting of inflammatory content or piracy of copyrighted material. However, the reasoning behind blocking domain marketplaces such as the above mentioned sites is not clear.

These websites offer users various tools to buy and sell domain names and simplify the purchasing process. Users on India Broad Band forum and websites like Medianama reported that these domain sites were not accessible and the following message was displayed instead — "This website/URL has been blocked until further notice either pursuant to Court orders or on the Directions issued by the Department of Telecommunications".

.In Registry’s Anti-Abuse Policy

If the issue at hand is one of abusive registrations, it would fall under the .IN Domain Anti-abuse Policy adopted by the National Internet Exchange of India (NIXI) and the .in registry. This policy states that NIXI will have the right to "deny, cancel, or transfer any registration or transaction, or place any domain name(s) on registry lock, hold, or similar status" if necessary. This raises a question as to why the Department of Telecommunications (DoT) would issue directions to block these domain marketplaces instead of cancelling their registration or placing it on hold under the policies adopted by NIXI.

A second, more important question would be whether the DoT has the power to block websites or take action under NIXI’s anti-abuse policy. NIXI and the .in registry both work under the aegis of the Department of Electronics and Information Technology. In addition, the Information Technology Act, 2000 ("the IT Act") is the only legislation that provides the authority to block a website and this authority is bestowed upon the Secretary, Department of Information Technology.

Information Technology Act

Section 69-A of the IT Act authorizes the central government to issue directions/orders to block public access to any information generated, transmitted, received, stored or hosted in any computer resource i.e., block websites. Such orders can be issued if the authorized officer finds that it is necessary to do so in the India’s sovereign and national interests or in the interest of public order. These interests include defence, security of the state, friendly relations with foreign neighbours and preventing incitement to the commission of an offence.

The procedures and safeguards that are to be followed before issuing an order to block a website are detailed in the Information Technology (Procedure and Safeguards for blocking for access of information by public) Rules, 2009 ("the rules"). The rules provide that upon receiving a complaint, the concerned organization for the blocking of access to information shall examine the complaint to ensure that there is a need to take action under the reasons mentioned above. If such action is found necessary, a request if forwarded and a committee established as per the rules reviews any requests made to block access to any information. During this review, there is also provision for a notice and reply procedure. This allows for the person controlling the online publication of such information to appear before the committee and respond to the request or make any clarifications regarding the information.

The recommendations of the committee are then sent to the Secretary of the Department of Information Technology who further directs an agency of the government or the intermediary to block the relevant content/website. The rules also provide procedures for blocking access in case of an emergency and in cases where court orders directing the blocking of information have been issued.

Whereas the ideas of sovereign interest and public order are admittedly very broad, there is no clear explanation as to what actions of domain sites/marketplaces such as BuyDomain and sedo.co.uk would be considered to impinge upon either. Neither is there any information available regarding why the DoT considers this to be the case.

For more details visit https://cis-india.org/internet-governance/blog/dot-blocks-domain-sites

Don’t SLAPP free speech

sunil — 2013-02-28T11:22:09Z

IIPM is proving adept at the tactical use of lawsuits to stifle criticism, despite safeguards. THE DEPARTMENT of Telecommunications, on 14 February, issued orders to block certain web pages critical of the Indian Institute of Planning and Management (IIPM).

Sunil Abraham's column with inputs from Snehashish Ghosh was published in Tehelka on February 3, 2013 (Issue 9 Volume 10)

Despite our best efforts, we have not managed to get a copy of the court order. Meanwhile, there has been a lot of speculation among Internet policy experts on Twitter. What is the title of the case? Which judge issued the order? Who is the affected party? Why have mainstream media houses like Outlook not been served notice by the court? Is the infamous Section 66A of the IT Act to be blamed? That is highly unlikely. News reports suggest that a lower court in Gwalior has issued an ad interim injunction in a defamation suit. Most experts agree that this is a SLAPP (Strategic Litigation Against Public Participation) suit, where a company uses the cost of mounting a legal defence to silence critics.

Bullies with deep pockets use the law in very creative ways, such as forum shopping, forum shifting and the use of proxies. Forum shopping can be best understood through the example of mining giant Fomento suing Goan blogger Sebastian Rodrigues for $1 billion at the Kolkata High Court, even though Goa would have been a more logical location. Though IIPM lost an earlier case against Careers360 before the Uttaranchal High Court, the offending URLs from that case are included in the latest block order, exemplifying successful forum shifting. The doctrine of ‘res subjudice’ does not permit courts to proceed in a matter which is “directly and substantially” similar to a previous suit between the same parties. Proxies are usually employed to circumvent this procedural doctrine.

Article 19(2) of our Constitution empowers the State to create laws that place eight types (depending on how you count) of reasonable restrictions on the freedom of speech and expression. One of these reasonable restrictions is defamation. Tort law on defamation in India has been mostly borrowed from common law principles developed in the UK, which include a series of exceptions where the law cannot be used. In the present context, the exceptions important for the IIPM case include: fair and bona fide comment and matter of public interest. In addition, Section 499 of the Indian Penal Code provides for 10 exceptions to defamation. The exceptions relevant to this case are: “first: imputation of truth which public good requires to be made or published”, “ninth: imputation made in good faith by person for protection of his or other’s interests” and “tenth: caution intended for good of person to whom conveyed or for public good”. The criminal law on defamation in India is based on robust legal principles, but for the sake of public interest it’d be best to do away with such a law as it has far-reaching, chilling effects on free speech.

On interim injunctions in defamation suits, the Delhi High Court set an important precedent protecting free speech in 2011. While applying the English principle — the Bonnard Rule — the court in Tata Sons Pvt Ltd versus Greenpeace International held that a higher standard should be adhered to while granting an interim injunction in a defamation suit, because such an injunction might impinge upon freedom of expression and thus potentially be in violation of the Indian Constitution. This century-old rule states that “until it is clear that an alleged libel is untrue… the importance of leaving free speech unfetter – ed is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions…”

In the same case, the Court rejected the argument that since it was published online and thus had wider reach and greater permanence, an injunction should be granted. It observed that “publication is a comprehensive term, embracing all forms and mediums — including the Internet”, thus ruling out special treatment for the Inter net in cases of defamation. That is good news for free speech online in India. Now let’s stick to it.

For more details visit https://cis-india.org/internet-governance/blog/tehelka-sunil-abraham-feb-3-2013-dont-slap-free-speech

Do IT Rules 2011 indirectly leads to Censorship of Internet

praskrishna — 2012-05-31T09:00:41Z

Pranesh Prakash along with Dr. Arvind Gupta, National Convener, BJP IT Cell and Ms. Mishi Choudhary, Executive Director, SFLC participated in a panel discussion on censorship of the Internet on May 8, 2012.

The discussion was broadcast on Yuva iTV. See the video below:

Video

Click for the video on YouTube

For more details visit https://cis-india.org/news/do-it-rules-indirectly-lead-to-censorship-of-internet