Centre for Internet and Society

Role of Intermediaries in Countering Online Abuse

jyoti — 2015-08-02T16:38:36Z

The Internet can be a hostile space and protecting users from abuse without curtailing freedom of expression requires a balancing act on the part of online intermediaries.

This got published as two blog entries in the NALSAR Law Tech Blog. Part 1 can be accessed here and Part 2 here.

As platforms and services coalesce around user-generated content (UGC) and entrench themselves in the digital publishing universe, they are increasingly taking on the duties and responsibilities of protecting rights including taking reasonable measures to restrict unlawful speech. Arguments around the role of intermediaries tackling unlawful content usually center around the issue of regulation—when is it feasible to regulate speech and how best should this regulation be enforced?

Recently, Twitter found itself at the periphery of such questions when an anonymous user of the platform, @LutyensInsider, began posting slanderous and sexually explicit comments about Swati Chaturvedi, a Delhi-based journalist. The online spat which began in February last year, culminated into Swati filing an FIR against the anonymous user, last week. Within hours of the FIR, the anonymous user deleted the tweets and went silent. Predictably, Twitter users hailed this as a much needed deterrence to online harassment. Swati’s personal victory is worth celebrating, it is an encouragement for the many women bullied daily on the Internet, where harassment is rampant. However, while Swati might be well within her legal rights to counter slander, the rights and liabilities of private companies in such circumstances are often not as clear cut.

Should platforms like Twitter take on the mantle of deciding what speech is permissible or not? When and how should the limits on speech be drawn? Does this amount to private censorship?The answers are not easy and as the recent Grand Chamber of the European Court of Human Rights (ECtHR) judgment in the case of Delfi AS v. Estonia confirms, the role of UGC platforms in balancing the user rights, is an issue far from being settled. In its ruling, the ECtHR reasoned that because of their role in facilitating expression, online platforms have a requirement “to take effective measures to limit the dissemination of hate speech and speech inciting violence was not ‘private censorship”.

This is problematic because the decision moves the regime away from a framework that grants immunity from liability, as long as platforms meet certain criteria and procedures. In other words the ruling establishes strict liability for intermediaries in relation to manifestly illegal content, even if they may have no knowledge. The 'obligation' placed on the intermediary does not grant them safe harbour and is not proportionate to the monitoring and blocking capacity thus necessitated. Consequently, platforms might be incentivized to err on the side of caution and restrict comments or confine speech resulting in censorship. The ruling is especially worrying, as the standard of care placed on the intermediary does not recognize the different role played by intermediaries in detection and removal of unlawful content. Further, intermediary liability is its own legal regime and is at the same time, a subset of various legal issues that need an understanding of variation in scenarios, mediums and technology both globally and in India.

Law and Short of IT

Earlier this year, in a leaked memo, the Twitter CEO Dick Costolo took personal responsibility for his platform's chronic problem and failure to deal with harassment and abuse. In Swati's case, Twitter did not intervene or take steps to address harrassment. If it had to, Twitter (India), as all online intermediaries would be bound by the provisions established under Section 79 and accompanying Rules of the Information Technology Act. These legislations outline the obligations and conditions that intermediaries must fulfill to claim immunity from liability for third party content. Under the regime, upon receiving actual knowledge of unlawful information on their platform, the intermediary must comply with the notice and takedown (NTD) procedure for blocking and removal of content.

Private complainants could invoke the NTD procedure forcing intermediaries to act as adjudicators of an unlawful act—a role they are clearly ill-equipped to perform, especially when the content relates to political speech or alleged defamation or obscenity. The SC judgment in Shreya Singhal addressing this issue, read down the provision (Section 79 by holding that a takedown notice can only be effected if the complainant secures a court order to support her allegation. Further, it was held that the scope of restrictions under the mechanism is restricted to the specific categories identified under Article 19(2). Effectively, this means Twitter need not take down content in the absence of a court order.

Content Policy as Due Diligence

Another provision, Rule 3(2) prescribes a content policy which, prior to the Shreya Singhal judgment was a criteria for administering takedown. This content policy includes an exhaustive list of types of restricted expressions, though worryingly, the terms included in it are not clearly defined and go beyond the reasonable restrictions envisioned under Article 19(2). Terms such as “grossly harmful”, “objectionable”, “harassing”, “disparaging” and “hateful” are not defined anywhere in the Rules, are subjective and contestable as alternate interpretation and standard could be offered for the same term. Further, this content policy is not applicable to content created by the intermediary.

Prior to the SC verdict in Shreya Singhal, actual knowledge could have been interpreted to mean the intermediary is called upon its own judgement under sub-rule (4) to restrict impugned content in order to seek exemption from liability. While liability accrued from not complying with takedown requests under the content policy was clear, this is not the case anymore. By reading down of S. 79 (3) (b) the court has addressed the issue of intermediaries complying with places limits on the private censorship of intermediaries and the invisible censorship of opaque government takedown requests as they must and should adhere, to the boundaries set by Article 19(2). Following the SC judgment intermediaries do not have to administer takedowns without a court order thereby rendering this content policy redundant. As it stands, the content policy is an obligation that intermediaries must fulfill in order to be exempted from liability for UGC and this due diligence is limited to publishing rules and regulations, terms and conditions or user agreement informing users of the restrictions on content. The penalties for not publishing this content policy should be clarified.

Further, having been informed of what is permissible users are agreeing to comply with the policy outlined, by signing up to and using these platforms and services. The requirement of publishing content policy as due diligence is unnecessary given that mandating such ‘standard’ terms of use negates the difference between different types of intermediaries which accrue different kinds of liability. This also places an extraordinary power of censorship in the hands of the intermediary, which could easily stifle freedom of speech online. Such heavy handed regulation could make it impossible to publish critical views about anything without the risk of being summarily censored.

Twitter may have complied with its duties by publishing the content policy, though the obligation does not seem to be an effective deterrence. Strong safe harbour provisions for intermediaries are a crucial element in the promotion and protection of the right to freedom of expression online. By absolving platforms of responsibility for UGC as long as they publish a content policy that is vague and subjective is the very reason why India’s IT Rules are in fact, in urgent need of improvement.

Size Matters

The standards for blocking, reporting and responding to abuse vary across different categories of platforms. For example, it may be easier to counter trolls and abuse on blogs or forums where the owner or an administrator is monitoring comments and UGC. Usually platforms outline monitoring and reporting policies and procedures including recourse available to victims and action to be taken against violators. However, these measures are not always effective in curbing abuse as it is possible for users to create new accounts under different usernames. For example, in Swati’s case the anonymous user behind @LutyensInsider account changed their handle to @gregoryzackim and @gzackim before deleting all tweets. In this case, perhaps the fear of criminal charges ahead was enough to silence the anonymous user, which may not always be the case.

Tackling the Trolls

Most large intermediaries have privacy settings which restrict the audience for user posts as well as prevent strangers from contacting them as a general measure against online harassment. Platforms also publish monitoring policy outlining the procedure and mechanisms for users to register their complaint or report abuse. Often reporting and blocking mechanisms rely on community standards and users reporting unlawful content. Last week Twitter announced a new feature allowing lists of blocked users to be shared between users. An improvement on existing mechanism for blocking, the feature is aimed at making the service safer for people facing similar issues and while an improvement on standard policies defining permissible limits on content, such efforts may have their limitations.

The mechanisms follow a one-size-fits-all policy. First, such community driven efforts do not address concerns of differences in opinion and subjectivity. Swati in defending her actions stressed the “coarse discourse” prevalent on social media, though as this article points out she might be assumed guilty of using offensive and abusive language. Subjectivity and many interpretations of the same opinion can pave the way for many taking offense online. Earlier this month, Nikhil Wagle’s tweets criticising Prime Minister Narendra Modi as a “pervert” was interpreted as “abusive”, “offensive” and “spreading religious disharmony”. While platforms are within their rights to establish policies for dealing with issues faced by users, there is a real danger of them doing so for “political reasons” and based on “popularity” measures which may chill free speech. When many get behind a particular interpretation of an opinion, lawful speech may also be stifled as Sreemoyee Kundu found out. A victim of online abuse her account was blocked by Facebook owing to multiple reports from a “faceless fanatical mob”. Allowing the users to set standards of permissible speech is an improvement, though it runs the risk of mob justice and platforms need to be vigilant in applying such standards.

While it may be in the interest of platforms to keep a hands off approach to community policies, certain kind of content may necessiate intervention by the intermediary. There has been an increase in private companies modifying their content policy to place reasonable restriction on certain hateful behaviour in order to protect vulnerable or marginalised voices. Twitter and Reddit's policy change in addressing revenge porn are reflective of a growing understanding amongst stakeholders that in order to promote free expression of ideas, recognition and protection of certain rights on the Internet may be necessary. However, any approach to regulate user content must assess the effect of policy decisions on user rights. Google's stand on tackling revenge porn may be laudable, though the decision to push down 'piracy' sites in its search results could be seen to adversely impact the choice that users have. Terms of service implemented with subjectivity and lack of transparency can and does lead to private censorship.

The Way Forward

Harassment is damaging, because of the feeling of powerlessness that it invokes in the victims and online intermediaries represent new forms of power through which users' negotiate and manage their online identity. Content restriction policies and practices must address this power imbalance by adopting baseline safeguards and best practices. It is only fair that based on principles of equality and justice, intermediaries be held responsible for the damage caused to users due to wrongdoings of other users or when they fail to carry out their operations and services as prescribed by the law. However, in its present state, the intermediary liability regime in India is not sufficient to deal with online harassment and needs to evolve into a more nuanced form of governance.

Any liability framework must evolve bearing in mind the slippery slope of overbroad regulation and differing standards of community responsibility. Therefore, a balanced framework would need to include elements of both targeted regulation and soft forms of governance as liability regimes need to balance fundamental human rights and the interests of private companies. Often, achieving this balance is problematic given that these companies are expected to be adjudicators and may also be the target of the breach of rights, as is the case in Delfi v Estonia. Global frameworks such as the Manila Principles can be a way forward in developing effective mechanisms. The determination of content restriction practices should always adopt the least restrictive means of doing so, distinguishing between the classes of intermediary. They must evolve considering the proportionality of the harm, the nature of the content and the impact on affected users including the proximity of affected party to content uploader.

Further, intermediaries and governments should communicate a clear mechanism for review and appeal of restriction decisions. Content restriction policies should incorporate an effective right to be heard. In exceptional circumstances when this is not possible, a post facto review of the restricton order and its implementation must take place as soon as practicable. Further, unlawful content restricted for a limited duration or within a specific geography, must not extend beyond these limits and a periodic review should take place to ensure the validity of the restriction. Regular, systematic review of rules and guidelines guiding intermediary liability will go a long way in ensuring that such frameworks are not overly burdensome and remain effective.

For more details visit https://cis-india.org/internet-governance/blog/role-of-intermediaries-in-counting-online-abuse

Criminal Defamation: The Urgent Cause That has United Rahul Gandhi, Arvind Kejriwal and Subramanian Swamy

praskrishna — 2015-07-16T13:45:04Z

Three years ago when the then Janata Party president Subramanian Swamy accused Congress vice president Rahul Gandhi and his mother of misappropriation of funds while trying to revive the National Herald newspaper, the Nehru-Gandhi scion threatened to sue him.

The article by Betwa Sharma was published in Huffington Post on July 15, 2015. Sunil Abraham gave his inputs.

Swamy's response was characteristic: "Grow up and file a defamation case".

In a strange turn of events, the matter of criminal defamation has brought together an unlikely cast of characters in an ongoing petition in the Supreme Court--Swamy, Gandhi and Delhi chief minister Arvind Kejriwal, who knows a thing or two about making allegations.

They are petitioning the Apex Court to strike down penal provisions criminalising defamation, which they argue, has a "chilling effect" on the fundamental right to free speech. Opinion is divided around the world on whether or not defamation ought to be a criminal offence. Because some jurisdictions have stricter defamation laws, some indulge in a practise known as 'forum shopping', or suing in jurisdictions with harsher views on libel and slander.

The three leaders have filed separate petitions that are now being jointly heard by the court. They are challenging the constitutional validity of Sections 499 and 500 of the Indian Penal Code which make defamation a criminal offence punishable with up to two years in prison.

A verdict striking down the colonial-era S. 499, used by the British to suppress those opposing their rule, could prove to be a huge victory for free speech in India. Earlier this year, the Supreme Court struck down the draconian Section 66A of the Information Technology Act as "unconstitutional and void".

There is cause for optimism. The Supreme Court has already said that the validity of criminal defamation laws must be tested against the free speech guarantees of the constitution. The bench comprising of Justices Dipak Misra and Prafulla C Pant have observed that political debates maybe excluded as a criminal defamation offence.

While Gandhi, Subramanian and Kejriwal have been slapped with defamation suits by political rivals, there have been long-standing concerns over the threat posed by these provisions to the media and those who use social media to express their opinions against the rich and the powerful.

The government of the day is keen to maintain the status quo. In a recent submission, it has argued that S.499 is now the only provision to deal with defamation on social media and the only protection for reputation of citizens. But free speech activists say there is no evidence to show that a defamation law deters a person who is out to spread lies.

The questionable utility of S.499, the scope for its abuse and the culture of self-censorship, they argue, removes it from the ambit of "reasonable restrictions" which the state can impose on free speech under article 19 (2) of the constitution.

"Hardly a day goes by in India without some rich and powerful person initiating or threatening to initiate defamation suits against rivals or traditional media or ordinary citizens on social media," said Sunil Abraham, executive director of the Bangalore-based Centre for Internet & Society. "It is unclear how much self-censorship is going on because Indians fearing jail terms avoid speaking truth to power.

On the issue of protecting people's dignity, Abraham said there is no prima facie evidence in India that criminalising defamation in India has resulted in the protection of the reputations of citizens from falsehoods.

"On the the other hand every other national media house and quite of few investigative journalists have been and continue to be harassed by criminal suits filed by the powerful," he told HuffPost India. "The chilling effect on speech is a disproportionate price for citizenry to pay for what is only a personal harm."

Under the leadership of Chief Minister J Jayalalithaa, the Tamil Nadu government filed 125 defamation cases against The Hindu and other publications between 2001 and 2004. On Tuesday, she filed a defamation suit against news portal Rediff.com for running two articles related to speculations about her health.

In the United States, defamation claims by public officials and public figures were severely curtailed after its Supreme Court ruled in 1964 that the complainant needs to prove actual malice with "clear and convincing" evidence. Further, truth is an absolute defence against defamation in the U.S.

On Tuesday, Swamy and Gandhi also argued that truth should be defence in defamation suits. “Truth is not a complete defence in criminal defamation. For a nation with a national motto of Satyameva Devata it is ironic," Swamy said.

BJP leader Swamy is of the view that defamation should only be subject to a civil suit which can be redressed by payment of monetary compensation. But the central government has argued that a defamer could be too poor to compensate the complainant.

"I am not saying there is no such thing as defamation. You can sue someone for defamation, but you cannot deprive someone of his liberty," he said in a recent interview with The Sunday Guardian.

Jayalalithaa filed a defamation suit against the senior BJP leader who alleged that most of the boats of Indian fishermen captured by Sri Lanka belong to the AIADMK chief, her close aide Sasikala and DMK leader TR Baalu.

The suit against the Congress Vice President was filed by the Rashtriya Swayamsevak Sangh for allegedly blaming the Hindu right-wing organisation for the assassination of Mahatma Gandhi.

BJP leader Nitin Gadkari sued Kejriwal after his name was included in AAP's list of "India's most corrupt."

"The accused is in the habit of making false and defamatory statements without any basis. The statements made by the accused and his party members have damaged and tarnished my image in the eyes of the people," Gadkari told the court, last year.

Legal analysts also find it hard to predict just how far the Supreme Court will go to protect free speech. Its judgment against S.66A of the IT Act is regarded as one of the biggest victories for free speech in India. Justice Misra was on the bench that struck down the provision for being “open-ended and unconstitutionally vague," and not fit to be covered under Article 19 (2).

But last month, in a judgment regarded as a blow to free speech, it was Justices Misra and Pant who ruled that freedom of speech is not an absolute right.

Senior Advocate Gopal Subramanium had argued, "Freedom to offend is also a part of freedom of speech.”

For more details visit https://cis-india.org/internet-governance/news/huffington-post-july-16-2015-betwa-sharma-criminal-defamation-the-urgent-cause-that-has-united-rahul-gandhi-arvind-kejriwal-and-subramanian-swamy

Free Speech Policy in India: Community, Custom, Censorship, and the Future of Internet Regulation

bhairav — 2015-08-23T10:12:16Z

This note summarises my panel contribution to the conference on Freedom of Expression in a Digital Age at New Delhi on 21 April 2015, which was organised by the Observer Research Foundation (ORF) and the Centre for Internet and Society (CIS) in collaboration with the Internet Policy Observatory of the Center for Global Communication Studies (CGCS) at the Annenberg School for Communication, University of Pennsylvania

Download the Note here (PDF, 103 Kb)

Preliminary

There has been legitimate happiness among many in India at the Supreme Court’s recent decision in the Shreya Singhal case to strike down section 66A of the Information Technology Act, 2000 ("IT Act") for unconstitutionally fettering the right to free speech on the Internet. The judgment is indeed welcome, and reaffirms the Supreme Court’s proud record of defending the freedom of speech, although it declined to interfere with the government’s stringent powers of website blocking. As the dust settles there are reports the government is re-grouping to introduce fresh law, allegedly stronger to secure easier convictions, to compensate the government’s defeat.

Case Law and Government Policy

India’s constitutional courts have a varied history of negotiating the freedom of speech that justifiably demands study. But, in my opinion, inadequate attention is directed to the government’s history of free speech policy. It is possible to discern from the government’s actions over the last two centuries a relatively consistent narrative of governance that seeks to bend the individual’s right to speech to its will. The defining characteristics of this narrative – the government’s free speech policy – emerge from a study of executive and legislative decisions chiefly in relation to the press, that continue to shape policy regarding the freedom of expression on the Internet.

India’s corpus of free speech case law is not uniform nor can it be since, for instance, the foundational issues that attend hate speech are quite different from those that inform contempt of court. So too, Indian free speech policy has been varied, captive to political compulsions and disparate views regarding the interests of the community, governance and nation-building. There has been consistent tension between the individual and the community, as well as the role of the government in enforcing the expectations of the community when thwarted by law.

Dichotomy between Modern and Native Law

To understand free speech policy, it is useful to go back to the early colonial period in India, when Governor-General Warren Hastings established a system of courts in Bengal’s hinterland to begin the long process of displacing traditional law to create a modern legal system. By most accounts, pre-modern Indian law was not prescriptive, Austinian, and uniform. Instead, there were several legal systems and a variety of competing and complementary legal sources that supported different interpretations of law within most legal systems. J. Duncan M. Derrett notes that the colonial expropriation of Indian law was marked by a significant tension caused by the repeatedly-stated objective of preserving some fields of native law to create a dichotomous legal structure. These efforts were assisted by orientalist jurists such as Henry Thomas Colebrook whose interpretation of the dharmasastras heralded a new stage in the evolution of Hindu law.

In this background, it is not surprising that Elijah Impey, a close associate of Hastings, simultaneously served as the first Chief Justice of the Supreme Court at Fort William while overseeing the Sadr Diwani Adalat, a civil court applying Anglo-Hindu law for Hindus, and the Sadr Faujdari Adalat, a criminal court applying Anglo-Islamic law to all natives. By the mid-nineteenth century, this dual system came under strain in the face of increasing colonial pressure to rationalise the legal system to ensure more effective governance, and native protest at the perceived insensitivity of the colonial government to local customs.

Criminal Law and Free Speech in the Colony

In 1837, Thomas Macaulay wrote the first draft of a new comprehensive criminal law to replace indigenous law and custom with statutory modern law. When it was enacted as the Indian Penal Code in 1860 ("IPC"), it represented the apogee of the new colonial effort to recreate the common law in India. The IPC’s enactment coincided with the growth and spread of both the press and popular protest in India. The statute contained the entire gamut of public-order and community-interest crimes to punish unlawful assembly, rioting, affray, wanton provocation, public nuisance, obscenity, defiling a place of worship, disturbing a religious assembly, wounding religious feelings, and so on. It also criminalised private offences such as causing insult, annoyance, and intimidation. These crimes continue to be invoked in India today to silence individual opinion and free speech, including on the Internet. Section 66A of the IT Act utilised a very similar vocabulary of censorship.

Interestingly, Macaulay’s IPC did not feature the common law offences of sedition and blasphemy or the peculiar Indian crime of promoting inter-community enmity; these were added later. Sedition was criminalised by section 124A at the insistence of Barnes Peacock and applied successfully against Indian nationalist leaders including Bal Gangadhar Tilak in 1897 and 1909, and Mohandas Gandhi in 1922. In 1898, the IPC was amended again to incorporate section 153A to criminalise the promotion of enmity between different communities by words or deeds. And, in 1927, a more controversial amendment inserted section 295A into the IPC to criminalise blasphemy. All three offences have been recently used in India against writers, bloggers, professors, and ordinary citizens.

Loss of the Right to Offend

The two amendments of 1898 and 1927, which together proscribed the promotion of inter-community enmity and blasphemy, represent the dismantling of the right to offend in India. But, oddly, they were defended by the colonial government in the interests of native sensibilities. The proceedings of the Imperial Legislative Council reveal several members, including Indians, were enthusiastic about the amendments. For some, the amendments were a necessary corrective action to protect community honour from subversive speech. The 1920s were a period of foment in India as the freedom movement intensified and communal tension mounted. In this environment, it was easy to fuse the colonial interest in strong administration with a nationalist narrative that demanded the retrieval of Indian custom to protect native sensibilities from being offended by individual free speech, a right derived from modern European law. No authoritative jurist could be summoned to prove or refute the claim that native custom privileged community honour.

Sadly the specific incident which galvanised the amendment of 1927, which established the crime of blasphemy in India, would not appear unfamiliar to a contemporary observer. Mahashay Rajpal, an Arya Samaj activist, published an offensive pamphlet of the Prophet Muhammad titled Rangeela Rasool, for which he was arrested and tried but acquitted in the absence of specific blasphemy provisions. With his speech being found legal, Rajpal was released and given police protection but Ilam Din, a Muslim youth, stabbed him to death. Instead of supporting its criminal law and strengthening its police forces to implement the decisions of its courts, the colonial administration surrendered to the threat of public disorder and enacted section 295A of the IPC.

Protest and Community Honour

The amendment of 1927 marks an important point of rupture in the history of Indian free speech. It demonstrated the government’s policy intention of overturning the courts to restrict the individual’s right to speech when faced with public protest. In this way, the combination of public disorder and the newly-created crimes of promoting inter-community enmity and blasphemy opened the way for the criminal justice system to be used as a tool by natives to settle their socio-cultural disputes. Both these crimes address group offence; they do not redress individual grievances. In so far as they are designed to endorse group honour, these crimes signify the community’s attempt to suborn modern law and individual rights.

Almost a century later, the Rangeela Rasool affair has become the depressing template for illegal censorship in India: fringe groups take offence at permissible speech, crowds are marshalled to articulate an imagined grievance, and the government capitulates to the threat of violence. This formula has become so entrenched that governance has grown reflexively suppressive, quick to silence speech even before the perpetrators of lumpen violence can receive affront. This is especially true of online speech, where censorship is driven by the additional anxiety brought by the difficulty of Internet regulation. In this race to be offended the government plays the parochial referee, acting to protect indigenous sensibilities from subversive but legal speech.

The Censorious Post-colony

Independence marked an opportunity to remake Indian governance in a freer image. The Constituent Assembly had resolved not to curb the freedom of speech in Article 19(1)(a) of the Constitution on account of public order. In two cases from opposite ends of the country where right-wing and left-wing speech were punished by local governments on public order grounds, the Supreme Court acted on the Constituent Assembly’s vision and struck down the laws in question. Free speech, it appeared, would survive administrative concerns, thanks to the guarantee of a new constitution and an independent judiciary. Instead Prime Minister Jawaharlal Nehru and his cabinet responded with the First Amendment in 1951, merely a year after the Constitution was enacted, to create three new grounds of censorship, including public order. In 1963, a year before he demitted office, the Sixteenth Amendment added an additional restriction.

Nehru did not stop at amending the Constitution, he followed shortly after with a concerted attempt to stage-manage the press by de-legitimising certain kinds of permissible speech.

Under Justice G. S. Rajadhyaksha, the government constituted the First Press Commission which attacked yellow journalism, seemingly a sincere concern, but included permissible albeit condemnable speech that was directed at communities, indecent or vulgar, and biased. Significantly, the Commission expected the press to only publish speech that conformed to the developmental and social objectives of the government. In other words, Nehru wanted the press to support his vision of India and used the imperative of nation-building to achieve this goal. So, the individual right to offend communities was taken away by law and policy, and speech that dissented from the government’s socio-economic and political agenda was discouraged by policy. Coupled with the new constitutional ground of censorship on account of public order, the career of free speech in independent India began uncertainly.

How to regulate permissible speech?

Despite the many restrictions imposed by law on free speech, Indian free speech policy has long been engaged with the question of how to regulate the permissible speech that survives constitutional scrutiny. This was significantly easier in colonial India. In 1799, Governor-General Richard Wellesley, the brother of the famous Duke of Wellington who defeated Napoleon at Waterloo, instituted a pre-censorship system to create what Rajeev Dhavan calls a “press by permission” marked by licensed publications, prior restraint, subsequent censorship, and harsh penalties. A new colonial regime for strict control over the publication of free speech was enacted in the form of the Press and Registration of Books Act, 1867, the preamble of which recognises that “the literature of a country is…an index of…the condition of [its] people”. The 1867 Act was diluted after independence but still remains alive in the form of the Registrar of Newspapers.

After surviving Indira Gandhi’s demand for a committed press and the depredations of her regime during the Emergency, India’s press underwent the examination of the Second Press Commission. This was appointed in 1978 under the chairmanship of Justice P. K. Goswami, a year after the Janata government released the famous White Paper on Misuse of Mass Media. When Gandhi returned to power, Justice Goswami resigned and the Commission was reconstituted under Justice K. K. Mathew. In 1982, the Commission’s report endorsed the earlier First Press Commission’s call for conformist speech, but went further by proposing the appointment of a press regulator invested with inspection powers; criminalising attacks on the government; re-interpreting defamation law to encompass democratic criticism of public servants; retaining stringent official secrecy law; and more. It was quickly acted upon by Rajiv Gandhi through his infamous Defamation Bill.

The contours of future Internet regulation

The juggernaut of Indian free speech policy has received temporary setbacks, mostly inflicted by the Supreme Court. Past experience shows us that governments with strong majorities – whether Jawaharlal Nehru’s following independence or Indira Gandhi’s in the 1970s – act on their administrative impulses to impede free speech by government policy. The Internet is a recent and uncontrollable medium of speech that attracts disproportionately heavy regulatory attention. Section 66A of the IT Act may be dead but several other provisions remain to harass and punish online free speech. Far from relaxing its grip on divergent opinions, the government appears poised for more incisive invasions of personal freedoms.

I do not believe the contours of future speech regulation on the Internet need to be guessed at, they can be derived from the last two centuries of India’s free speech policy. When section 66A is replaced – and it will be, whether overtly by fresh statutory provisions or stealthily by policy and non-justiciable committees and commissions – it will be through a regime that obeys the mandate of the First Press Commission to discourage dissenting and divergent speech while adopting the regulatory structures of the Second Press Commission to permit a limited inspector raj and forbid attacks on personalities. The interests of the community, howsoever improperly articulated, will seek precedence over individual freedoms and the accompanying threat of violence will give new meaning to Bhimrao Ambedkar’s warning of the “grammar of anarchy”.

For more details visit https://cis-india.org/internet-governance/blog/policy-in-india-community-custom-censorship-and-future-of-internet-regulation

DesiSec: Cybersecurity and Civil Society in India

Laird Brown — 2015-06-29T16:25:43Z

As part of its project on mapping cyber security actors in South Asia and South East Asia, the Centre for Internet & Society conducted a series of interviews with cyber security actors. The interviews were compiled and edited into one documentary. The film produced by Purba Sarkar, edited by Aaron Joseph, and directed by Oxblood Ruffin features Malavika Jayaram, Nitin Pai, Namita Malhotra, Saikat Datta, Nishant Shah, Lawrence Liang, Anja Kovacs, Sikyong Lobsang Sangay and, Ravi Sharada Prasad.

Originally the idea was to do 24 interviews with an array of international experts: Technical, political, policy, legal, and activist. The project was initiated at the University of Toronto and over time a possibility emerged. Why not shape these interviews into a documentary about cybersecurity and civil society? And why not focus on the world’s largest democracy, India? Whether in India or the rest of the world there are several issues that are fundamental to life online: Privacy, surveillance, anonymity and, free speech. DesiSec includes all of these, and it examines the legal frameworks that shape how India deals with these challenges.

From the time it was shot till the final edit there has only been one change in the juridical topography: the dreaded 66A of the IT Act has been struck down. Otherwise, all else is in tact. DesiSec was produced by Purba Sarkar, shot and edited by Aaron Joseph, and directed by Oxblood Ruffin. It took our team from Bangalore to Delhi and, Dharamsala. We had the honour of interviewing: Malavika Jayaram, Nitin Pai, Namita Malhotra, Saikat Datta, Nishant Shah, Lawrence Liang, Anja Kovacs, Sikyong Lobsang Sangay and, Ravi Sharada Prasad. Everyone brought something special to the discussion and we are grateful for their insights. Also, we are particularly pleased to include the music of Charanjit Singh for the intro/outro of DesiSec. Mr. Singh is the inventor of acid house music, predating the Wikipedia entry for that category by five years. Someone should correct that.

DesiSec is released under the Creative Commons License Attribution 3.0 Unported (CC by 3.0). You can watch it on Vimeo: https://vimeo.com/123722680 or download it legally and free of charge via torrent. Feel free to show, remix, and share with your friends. And let us know what you think!

Video

For more details visit https://cis-india.org/internet-governance/blog/desi-sec-cybersecurity-and-civil-society-in-india

DeitY says 143 URLs have been Blocked in 2015; Procedure for Blocking Content Remains Opaque and in Urgent Need of Transparency Measures

jyoti — 2015-04-30T07:37:40Z

Across India on 30 December 2014, following an order issued by the Department of Telecom (DOT), Internet Service Providers (ISPs) blocked 32 websites including Vimeo, Dailymotion, GitHub and Pastebin.

In February 2015, the Centre for Internet and Society (CIS) requested the Department of Electronics and Information Technology (DeitY) under the Right to Information Act, 2005 (RTI Act) to provide information clarifying the procedures for blocking in India. We have received a response from DeitY which may be seen here.

In this post, I shall elaborate on this response from DeitY and highlight some of the accountability and transparency measures that the procedure needs. To stress the urgency of reform, I shall also touch upon two recent developments—the response from Ministry of Communication to questions raised in Parliament on the blocking procedures and the Supreme Court (SC) judgment in Shreya Singhal v. Union of India.

Section 69A and the Blocking Rules

Section 69A of the Information Technology Act, 2008 (S69A hereinafter) grants powers to the central government to issue directions for blocking of access to any information through any computer resource. In other words, it allows the government to block any websites under certain grounds. The Government has notified rules laying down the procedure for blocking access online under the Procedure and Safeguards for Blocking for Access of Information by Public Rules, 2009 (Rules, 2009 hereinafter). CIS has produced a poster explaining the blocking procedure (download PDF, 2.037MB).

There are three key aspects of the blocking rules that need to be kept under consideration:

Officers and committees handling requests

Designated Officer (DO) – Appointed by the Central government, officer not below the rank of Joint Secretary.
Nodal Officer (NO) – Appointed by organizations including Ministries or Departments of the State governments and Union Territories and any agency of the Central Government.
Intermediary contact–Appointed by every intermediary to receive and handle blocking directions from the DO.
Committee for Examination of Request (CER) – The request along with printed sample of alleged offending information is examined by the CER—committee with the DO serving as the Chairperson and representatives from Ministry of Law and Justice; Ministry of Home Affairs; Ministry of Information and Broadcasting and representative from the Indian Computer Emergency Response Team (CERT-In). The CER is responsible for examining each blocking request and makes recommendations including revoking blocking orders to the DO, which are taken into consideration for final approval of request for blocking by the Secretary, DOT.
Review Committee (RC) – Constituted under rule 419A of the Indian Telegraph Act, 1951, the RC includes the Cabinet Secretary, Secretary to the Government of India (Legal Affairs) and Secretary (Department of Telecom). The RC is mandated to meet at least once in 2 months and record its findings and has to validate that directions issued are in compliance with S69A(1).

Provisions outlining the procedure for blocking

Rules 6, 9 and 10 create three distinct blocking procedures, which must commence within 7 days of the DO receiving the request.

a) Rule 6 lays out the first procedure, under which any person may approach the NO and request blocking, alternatively, the NO may also raise a blocking request. After the NO of the approached Ministry or Department of the State governments and Union Territories and/or any agency of the Central Government, is satisfied of the validity of the request they forward it to the DO. Requests when not sent through the NO of any organization, must be approved by Chief Secretary of the State or Union Territory or the Advisor to the Administrator of the Union Territory, before being sent to the DO.

The DO upon receiving the request places, must acknowledge receipt within 24 four hours and places the request along with printed copy of alleged information for validation by the CER. The DO also, must make reasonable efforts to identify the person or intermediary hosting the information, and having identified them issue a notice asking them to appear and submit their reply and clarifications before the committee at a specified date and time, within forty eight hours of the receipt of notice.

Foreign entities hosting the information are also informed and the CER gives it recommendations after hearing from the intermediary or the person has clarified their position and even if there is no representation by the same and after examining if the request falls within the scope outlined under S69A(1). The blocking directions are issued by the Secretary (DeitY), after the DO forwards the request and the CER recommendations. If approval is granted the DO directs the relevant intermediary or person to block the alleged information.

b) Rule 9 outlines a procedure wherein, under emergency circumstances, and after the DO has established the necessity and expediency to block alleged information submits recommendations in writing to the Secretary, DeitY. The Secretary, upon being satisfied by the justification for, and necessity of, and expediency to block information may issue an blocking directions as an interim measure and must record the reasons for doing so in writing.

Under such circumstances, the intermediary and person hosting information is not given the opportunity of a hearing. Nevertheless, the DO is required to place the request before the CER within forty eight hours of issuing of directions for interim blocking. Only upon receiving the final recommendations from the committee can the Secretary pass a final order approving the request. If the request for blocking is not approved then the interim order passed earlier is revoked, and the intermediary or identified person should be directed to unblock the information for public access.

c) Rule 10 outlines the process when an order is issued by the courts in India. The DO upon receipt of the court order for blocking of information submits it to the Secretary, DeitY and initiates action as directed by the courts.

Confidentiality clause

Rule 16 mandates confidentiality regarding all requests and actions taken thereof, which renders any requests received by the NO and the DO, recommendations made by the DO or the CER and any written reasons for blocking or revoking blocking requests outside the purview of public scrutiny. More detail on the officers and committees that enforce the blocking rules and procedure can be found here.

Response on blocking from the Ministry of Communication and Information Technology

The response to our RTI from E-Security and Cyber Law Group is timely, given the recent clarification from the Ministry of Communication and Information Technology to a number of questions, raised by parliamentarian Shri Avinash Pande in the Rajya Sabha. The questions had been raised in reference to the Emergency blocking order under IT Act, the current status of the Central Monitoring System, Data Privacy law and Net Neutrality. The Centre for Communication Governance (CCG), National Law University New Delhi have extracted a set of 6 questions and you can read the full article here.

The governments response as quoted by CCG, clarifies under rule 9—the Government has issued directions for emergency blocking of a total number of 216 URLs from 1st January, 2014 till date and that a total of 255 URLs were blocked in 2014 and no URLs has been blocked in 2015 (till 31 March 2015) under S69A through the Committee constituted under the rules therein. Further, a total of 2091 URLs and 143 URLs were blocked in order to comply with the directions of the competent courts of India in 2014 and 2015 (till 31 March 2015) respectively. The government also clarified that the CER, had recommended not to block 19 URLs in the meetings held between 1^stJanuary 2014 upto till date and so far, two orders have been issued to revoke 251 blocked URLs from 1st January 2014 till date. Besides, CERT-In received requests for blocking of objectionable content from individuals and organisations, and these were forwarded to the concerned websites for appropriate action, however the response did not specify the number of requests.

We have prepared a table explaining the information released by the government and to highlight the inconsistency in their response.

Applicable rule and procedure outlined under the Blocking Rules	Number of websites
	2014	2015	Total
Rule 6 - Blocking requests from NO and others	255	None	255
Rule 9 - Blocking under emergency circumstances	-	-	216
Rule 10 - Blocking orders from Court	2091	143	2234
Requests from individuals and orgs forwarded to CERT-In	-	-	-
Recommendations to not block by CER	-	-	19
Number of blocking requests revoked	-	-	251

In a response to an RTI filed by the Software Freedom Law Centre, DeitY said that 708 URLs were blocked in 2012, 1,349 URLs in 2013, and 2,341 URLs in 2014.

Shreya Singhal v. Union of India

In its recent judgment, the SC of India upheld the constitutionality of 69A, stating that it was a narrowly-drawn provision with adequate safeguards. The constitutional challenge on behalf of the People’s Union for Civil Liberties (PUCL) considered the manner in which the blocking is done and the arguments focused on the secrecy present in blocking.

The rules may indicate that there is a requirement to identify and contact the originator of information, though as an expert has pointed out, there is no evidence of this in practice. The court has stressed the importance of a written order so that writ petitions may be filed under Article 226 of the Constitution. In doing so, the court seems to have assumed that the originator or intermediary is informed, and therefore held the view that any procedural inconsistencies may be challenged through writ petitions. However, this recourse is rendered ineffective not only due to procedural constraints, but also because of the confidentiality clause. The opaqueness through rule 16 severely reigns in the recourse that may be given to the originator and the intermediary. While the court notes that rule 16 requiring confidentality was argued to be unconstitutional, it does not state its opinion on this question in the judgment. One expert, holds the view that this, by implication, requires that requests cannot be confidential. However, such a reading down of rule 16 is yet to be tested.

Further, Sunil Abraham has pointed out, “block orders are unevenly implemented by ISPs making it impossible for anyone to independently monitor and reach a conclusion whether an internet resource is inaccessible as a result of a S69A block order or due to a network anomaly.” As there are no comprehensive list of blocked websites or of the legal orders through which they are blocked exists, the public has to rely on media reports and filing RTI requests to understand the censorship regime in India. CIS has previously analysed the leaked block lists and lists received as responses to RTI requests which have revealed that the block orders are full of errors and blocking of entire platforms and not just specific links has taken place.

While the state has the power of blocking content, doing so in secrecy and without judical scrutiny, mark deficiencies that remain in the procedure outlined under the provisions of the blocking rules . The Court could read down rule 16 except for a really narrow set of exceptions, and in not doing so, perhaps has overlooked the opportunities for reform in the existing system. The blocking of 32 websites, is an example of the opaqueness of the system of blocking orders, and where the safeguards assumed by the SC are often not observed such as there being no access to the recommendations that were made by the CER, or towards the revocation of the blocking orders subsequently. CIS filed the RTI to try and understand the grounds for blocking and related procedures and the response has thrown up some issues that must need urgent attention.

Response to RTI filed by CIS

Our first question sought clarification on the websites blocked on 30^thDecember 2014 and the response received from DeitY, E-Security and Cyber Law Group reveals that the websites had been blocked as “they were being used to post information related to ISIS using the resources provided by these websites”. The response also clarifies that the directions to block were issued on 18-12-2014 and as of 09-01-2015, after obtaining an undertaking from website owners, stating their compliance with the Government and Indian laws, the sites were unblocked.

It is not clear if ATS, Mumbai had been intercepting communication or if someone reported these websites. If the ATS was indeed intercepting communication, then as per the rules, the RC should be informed and their recommendations sought. It is unclear, if this was the case and the response evokes the confidentiality clause under rule 16 for not divulging further details. Based on our reading of the rules, court orders should be accessible to the public and without copies of requests and complaints received and knowledge of which organization raised them, there can be no appeal or recourse available to the intermediary or even the general public.

We also asked for a list of all requests for blocking of information that had been received by the DO between January 2013 and January 2015, including the copies of all files that had accepted or rejected. We also specifically, asked for a list of requests under rule 9. The response from DeitY stated that since January 1, 2015 to March 31, 2015 directions to block 143 URLs had been issued based on court orders. The response completely overlooks our request for information, covering the 2 year time period. It also does not cover all types of blocking orders under rule 6 and rule 9, nor the requests that are forwarded to CERT-In, as we have gauged from the ministry's response to the Parliament. Contrary to the SC's assumption of contacting the orginator of information, it is also clear from DeitY's response that only the websites had been contacted and the letter states that the “websites replied only after blocking of objectionable content”.

Further, seeking clarification on the functioning of the CER, we asked for the recent composition of members and the dates and copies of the minutes of all meetings including copies of the recommendations made by them. The response merely quotes rule 7 as the reference for the composition and does not provide any names or other details. We ascertain that as per the DeitY website Shri B.J. Srinath, Scientist-G/GC is the appointed Designated Officer, however this needs confirmation. While we are already aware of the structure of the CER which representatives and appointed public officers are guiding the examination of requests remains unclear. Presently, there are 3 Joint Secretaries appointed under the Ministry of Law and Justice, the Home Ministry has appointed 19, while 3 are appointed under the Ministry of Information and Broadcasting. Further, it is not clear which grade of scientist would be appointed to this committee from CERT-In as the rules do not specify this. While the government has clarified in their answer to Parliament that the committee had recommended not to block 19 URLs in the meetings held between 1st January 2014 to till date, it is remains unclear who is taking these decisions to block and revoke blocked URLs. The response from DeitY specifies that the CER has met six times between 2014 and March 2015, however stops short on sharing any further information or copies of files on complaints and recommendations of the CER, citing rule 16.

Finally, answering our question on the composition of the RC the letter merely highlights the provision providing for the composition under 419A of the Indian Telegraph Rules, 1951. The response clarifies that so far, the RC has met once on 7th December, 2013 under the Chairmanship of the Cabinet Secretary, Department of Legal Affaits and Secretary, DOT. Our request for minutes of meetings and copies of orders and findings of the RC is denied by simply stating that “minutes are not available”. Under 419A, any directions for interception of any message or class of messages under sub-section (2) of Section 5 of the Indian Telegraph Act, 1885 issued by the competent authority shall contain reasons for such direction and a copy of such order shall be forwarded to the concerned RC within a period of seven working days. Given that the RC has met just once since 2013, it is unclear if the RC is not functioning or if the interception of messages is being guided through other procedures. Further, we do not yet know details or have any records of revocation orders or notices sent to intermediary contacts. This restricts the citizens’ right to receive information and DeitY should work to make these available for the public.

Given the response to our RTI, the Ministry's response to Parliament and the SC judgment we recommend the following steps be taken by the DeitY to ensure that we create a procedure that is just, accountable and follows the rule of law.

The revocation of rule 16 needs urgent clarification for two reasons:

Under Section 22 of the RTI Act provisions thereof, override all conflicting provisions in any other legislation.
In upholding the constitutionality of S69A the SC cites the requirement of reasons behind blocking orders to be recorded in writing, so that they may be challenged by means of writ petitions filed under A rticle 226 of the Constitution of India.

If the blocking orders or the meetings of the CER and RC that consider the reasons in the orders are to remain shrouded in secrecy and unavailable through RTI requests, filing writ petitions challenging these decisions will not be possible, rendering this very important safeguard for the protection of online free speech and expression infructuous. In summation, the need for comprehensive legislative reform remains in the blocking procedures and the government should act to address the pressing need for transparency and accountability. Not only does opacity curtial the strengths of democracy it also impedes good governance. We have filed an RTI seeking a comprehensive account of the blocking procedure, functioning of committees from 2009-2015 and we shall publish any information that we may receive.

For more details visit https://cis-india.org/internet-governance/blog/deity-says-143-urls-blocked-in-2015

Cry, you nasty trolls

praskrishna — 2015-05-09T15:05:23Z

Micro-blogging site Twitter has introduced a tool that identifies abusive tweets and hides them from their targets. Will it stem the tide of viciousness online, asks Prasun Chaudhuri.

The article by Prasun Chaudhuri was published in the Telegraph on April 26, 2015. Rohini was quoted.

When India's star batsman Virat Kohli failed to perform at the India vs Australia semi-final match at the World Cup, a section of Indian fans started venting their fury on his girlfriend Anushka Sharma on Twitter. The actress, who had flown to Sydney to watch the match, was blamed for India's loss and her Twitter account was flooded with abusive posts. One Atul Khatri tweeted: Hey Anushka, can you please distract the Aussie fielders on the boundary by showing them your lip job? Plleeeaasee. One anonymous tweet requested the "public to boycott Anushka Sharma's films (sic)" while another by Bollywood producer Kamal R. Khan incited his followers to "stone Anushka's house".

The star couple are not alone. Media persons, scholars and celebrities - especially if they are women - often face such vicious attacks on Twitter. Ask Chinmayi Sripada, the Chennai-based singer, or Sagarika Ghose, a prime time TV anchor, or scholar and columnist Ramachandra Guha who have endured worse forms of assaults - ranging from threats of gang rape, torture and murder. Many Twitter users across the world have gone silent and even deactivated their Twitter accounts after being harassed on the platform.

With more and more people around the world facing such vitriolic attacks, Twitter - the San Francisco-based online social networking service - recently decided to protect its users from abusive tweets. It switched on an anti-abuse tool that automatically identifies abusive tweets and hides them from their intended target. According to Twitter, the tool will search for patterns of misuse and identify repeat offenders so as to enable the social media platform to impose account suspension on them. "Users must feel safe on Twitter in order to fully express themselves and we need to ensure that voices are not silenced because people are afraid to speak up," wrote Shreyas Doshi, director of product management at Twitter, in a blog post.

Dick Costolo, Twitter's CEO, admitted two months ago at an internal forum that his company "sucked" at dealing with bullies and abusers. He said he would "start kicking these [abusive] people off... and making sure that when they issue their ridiculous attacks, nobody hears them."

Hemanshu Nigam, former chief security officer of social media platform MySpace and software giant Microsoft in the US, hails Twitter's new move. "The new tools are meant to honour human dignity and safety. Now that online and offline persona of many social media users have converged, it's become essential for tech companies to take steps to protect people from assaults in the cyber world." Nigam, a founder of SSP Blue, a leading online security firm, had sifted through thousands of offensive comments and abusive images during his earlier avatar in social media companies. "People with such evil intentions are minuscule but their twisted expressions can have a profound impact not only on the victims but thousands of impressionable minds of young users," he says.

Abuse on social media platforms can be extremely brutal and traumatising. According to Debarati Halder, a lawyer and cyber victim counsellor based in Tirunelveli, Tamil Nadu, a large proportion of these attacks - especially those where explicit pictures and videos of sexual acts are sent - are perpetrated on women by their former boyfriends or husbands to seek revenge on their ex-partners.

She feels that social media giants have failed to protect their users and that these so-called "new tools" and automated systems fail to screen most cases of abuse. "They (social media platforms) also don't react to reports of abusive behaviour unless they are lodged by celebrities or other influential people," she adds.

While announcing the new policy, Twitter's general counsel Vijaya Gadde wrote in The Washington Post, "At times, this (tweet) takes the form of hateful speech directed at women or minority groups; at others, it takes the form of threats aimed to intimidate those who take a stand on issues. These users often hide behind the veil of anonymity on Twitter and create multiple accounts expressly for the purpose of intimidating and silencing people." She also wrote how technicians at Twitter are going to erect a "better framework to protect vulnerable users, such as banning the posting of non-consensual intimate images."

Rohini Lakshane, programme officer at the Bangalore-based Centre for Internet and Society, says that Twitter had simplified and enhanced its system of reporting abuse in December last year. "Measures such as muting and blocking users and manual review of reports were already in place. The changes included mechanisms for Twitter's review teams to expedite responses from dire forms of abuse," she says.

Evidently, these measures have not been too effective. Says Lakshane, "Women are still disproportionately targeted on Twitter and several users simply choose to leave rather than face the strain of dealing with abuse, rape and death threats, and insults."

Singer Sripada, however, is one of those few Twitter users who stood up against her abusers. When she tweeted in support of Tamil fishermen who were attacked by the Sri Lankan Navy, she was flooded with abusive tweets that were tantamount to sexual harassment. She says, "I took on the abusers - one of them a professor at a top fashion institute. I filed a case under Section 66A of the IT Act (which is now defunct) and they were jailed for two weeks. That was when I saw the worst face of online abuse."

Advocate Halder rues the recent scrapping of Section 66A of the IT Act to protect freedom of speech. "The act could have have been modified to protect victims of abuse." She believes the new Twitter policy to check abuse may not be able to check the spread of the meta data of a post as it is replicated across thousands of sites.

"If the visuals or texts depict explicit sex, these spread like wildfire in voyeuristic websites, mirror sites and caches before any law enforcer anywhere in the world can react," says Siddhartha Chakraborty, a cyber expert based in Calcutta. A single tweet, a Facebook comment or a YouTube video "gone viral" often causes significant damage to an individual or a company before they can even report the abuse, says Rajiv Pratap, a data analyst based in Calcutta and California.

The problem also lies with over 20 million robot users - or automated accounts, not actively operated by humans but remotely controlled by groups of anonymous people - who are difficult to track. "These bots generate a lot of spam and even abusive comments," says Harsh Ajmera, a social media expert based in New Delhi. "Twitter is not striking at all the nasty content, but putting various checks like limiting the reach, asking you to get rid of those tweets which can protect genuine users."

On the other hand, stresses Lakshane, using parameters such as the number of flags (reports of abuse) a tweet receives can have implications for free speech - an unpopular but non-abusive view could also be targeted. Moreover, it's essential for reviewers to understand cultural and linguistic connotations to be able to effectively address abuse.

Still, Nigam is hopeful. He says, "Social media companies are going through a learning curve. As they evolve they will learn how to rein in abusers."

Twitter's 288 million users worldwide are waiting for that to happen.

For more details visit https://cis-india.org/internet-governance/news/the-telegraph-april-26-2015-prasun-chaudhuri-cry-you-nasty-trolls

Net neutrality: Net activism packs a punch

praskrishna — 2015-05-09T09:02:03Z

For the first time in the history of internet campaigns in India, a protest movement has successfully changed the course of a debate without having to take to the streets. The net neutrality movement is being fought almost totally in the virtual world. Hashtag activism isn't new in India. In recent times, several big campaigns have been bolstered by the internet which helped mobilize mass support and kept people constantly updated on events. Pink Chaddi, Jan Lokpal and the Nirbhaya movements were some examples of successful on-the-ground campaigns that were galvanized by social media. But they still needed public action — dharnas, candlelight vigils and actual pink undies — to make a difference.

The article by Sandhya Soman was published in the Times of India on April 19, 2015. Pranesh Prakash was quoted.

But the ongoing battle for internet freedom has proved that clicktivism isn't just about passive engagement with a cause. While it's all too easy to 'like' a cause, leading to what David Carr describes as "favoriting fatigue" in an article in the New York Times, some clicks can count in the real world.

It all started when the Telecom Regulatory Authority of India (Trai) posted a vaguely worded and complicated discussion paper on net neutrality and called for public responses to it. "Clearly, many people understood that some of the proposals put forward by Trai in its paper threatened the internet as they knew it," says Anja Kovacs, who directs the Internet Democracy Project and has closely followed online activism in India.

Soon, an unlikely collective of techies, lawyers, journalists and even stand-up comics had banded together. Some of them — such as tech entrepreneur Kiran Jonnalagadda and journalist Nikhil Pahwa — had been writing and tweeting about the issue for a while but the Trai paper galvanized them. "I dropped everything and asked for help. Kiran, (lawyers) Apar Gupta amd Raman Chima, Sandeep Pillai, standup group All India Bakchod and several Reddit India users (some of whom remain anonymous), started getting involved," says Pahwa, who is the founder of Medianama. The only common factor was their love for internet and an acute worry what this policy consultation might do to destroy its open and equal nature.

Though scattered across India, once they came together online, this 'apolitical collective' was able to rope in engineers, developers, open source activists, entrepreneurs, policy experts, lawyers and journalists as volunteers.

The best way to counter propaganda and opposition was to get people involved. An abridged version of the voluminous Trai paper was posted online, and a FAQ section created on a public Google Doc. "Many came forward to answer the questions and that exercise helped create an understanding of the situation," explains Pahwa. By the time, Jonnalagadda and a few other developers set up the savetheinternet.in website by April 1, there was enough information and data points. Lawyers Gupta and Chima had also decoded the legalese and prepared cogent answers to Trai's 20 questions. This was turned into a ready-to-use email template for users to hit 'send'.

And send they did. The flood of emails to the Trai inbox number is already 803,723 and counting. The results of the social media backlash are evident — with e-commerce retailer Flipkart pulling out of Airtel Zero and several websites backing out of Facebook and Reliance's internet.org. "I was hoping to get around 15,000 responses to counter, say, 15 from the telecom lobby. Now, people make fun of me because I said that," laughs Pahwa. In this case, what also struck a chord was the idea of a bunch of young guys using tech to take on mismanagement by the older generation and corporate greed, says entrepreneur Mahesh Murthy. "We were telling them we like things on the internet as they are now."

But it is hard to sustain online outrage without an action plan, relentless groundwork and some comic warfare. So, when the contentious paper came out on March 27, the website was followed by AIB's punchy video that decoded the concept and took irreverent potshots at those who wanted to limit access while urging people to write to Trai. A lot of the lessons for the campaign came from the US where a John Oliver video turned the tide in the net neutrality debate. "We had seen that several people don't take internet petitions seriously. Also, we wanted to follow the proper legal course in this issue and not hold dharnas," says Jonnalagadda.

It is also important for campaigns to result in doable action. As Kovacs points out, savetheinternet.in and netneutrality. in gave users practical tools to respond before the April 24 deadline. The team also kept clarifying doubts and complex concepts on social media and also had an AMA (ask me anything) chat on Scrollback on Saturday while the 'other side' stuck to big words and jargon.

Of course, like every movement, this one too has attracted criticism. The proneutrality band has been branded as socialist and utopian and there were intense arguments amongst supporters. "Disagreements and arguments are not unique to the activism online," says Pranesh Prakash, policy director at Centre for Internet and Society.

Earlier in the debate, Prakash had said he'd received strong pushback from friends and allies when he spoke about the possible benefits of non-competitive zero rating, an example would be allowing companies to offer free access to their sites and apps via an arrangement with a telecom company — if effective competition exists. Airtel Zero and Reliance's Internet.org claim to do the same though most supporters remain critical. Says Prakash: "There might've been differences. But the fact that a lot of people are thinking about effects of 'free', and comparing it to predatory pricing shows that #savetheinternet is one of the better examples of engaged activism."

Online campaigns have previously also successfully mobilized people to get involved in issues they do not know much about, says author Nilanajana Roy, who is an influential voice on Twitter. The J&K flood relief efforts last year started on Twitter but got volunteers moving on the ground, she says. "People don't always realize what they care strongly about so, despite the risk of compassion fatigue or armchair volunteerism, it's worth having some online activism," says Roy.

Meanwhile, those behind the savetheinternet campaign are struggling with their new-found identity as "activists". "I think of myself as a venture capitalist and marketing consultant, not a khadi kurta-jholawala from JNU," says Mahesh Murthy, among those who strongly support the movement.

And at the end of the day, most of these activists would like to go back to their cubicles, free to browse or start a business. But not before they've tried to keep the internet open.

For more details visit https://cis-india.org/internet-governance/news/the-times-of-india-sandhya-soman-april-19-2015-net-neutrality-net-activism-packs-a-punch

Shreya Singhal and 66A

sunil — 2015-04-19T08:09:42Z

Most software code has dependencies. Simple and reproducible methods exist for mapping and understanding the impact of these dependencies. Legal code also has dependencies --across court orders and within a single court order. And since court orders are not produced using a structured mark-up language, experts are required to understand the precedential value of a court order.

The article was published in the Economic and Political Weekly Vol-L No.15. Vidushi Marda, programme officer at the Centre for Internet and Society, was responsible for all the research that went into this article. PDF version here.

As a non–lawyer and engineer, I cannot authoritatively comment on the Supreme Court’s order in Shreya Singhal vs Union of India (2015) on sections of the Information Technology Act of 2000, so I have tried to summarise a variety of views of experts in this article. The Shreya Singhal order is said to be unprecedented at least for the last four decades and also precedent setting as its lucidity, some believe, will cause a ripple effect in opposition to a restrictive understanding of freedom of speech and expression, and an expansiveness around reasonable restrictions. Let us examine each of the three sections that the bench dealt with.

The Section in Question

Section 66A of the IT Act was introduced in a hastily-passed amendment. Unfortunately, the language used in this section was a pastiche of outdated foreign laws such as the UK Communications Act of 2003, Malicious Communications Act of 1988 and the US Telecommunications Act, 1996.¹ Since the amendment, this section has been misused to make public examples out of innocent, yet uncomfortable speech, in order to socially engineer all Indian netizens into self-censorship.²

Summary: The Court struck down Section 66A of the IT Act in its entirety holding that it was not saved by Article 19(2) of the Constitution on account of the expressions used in the section, such as "annoying," "grossly offensive," "menacing,", "causing annoyance." The Court justified this by going through the reasonable restrictions that it considered relevant to the arguments and testing them against S66A. Apart from not falling within any of the categories for which speech may be restricted, S66A was struck down on the grounds of vagueness, over-breadth and chilling effect. The Court considered whether some parts of the section could be saved, and then concluded that no part of S66A was severable and declared the entire section unconstitutional. When it comes to regulating speech in the interest of public order, the Court distinguished between discussion, advocacy and incitement. It considered the first two to fall under the freedom of speech and expression granted under Article 19(1)(a), and held that it was only incitement that attracted Article 19(2).

Between Speech and Harm

Gautam Bhatia, a constitutional law expert, has an optimistic reading of the judgment that will have value for precipitating the ripple effect. According to him, there were two incompatible strands of jurisprudence which have been harmonised by collapsing tendency into imminence.³ The first strand, exemplified by Ramjilal Modi vs State of UP⁴ and Kedar Nath Singh vs State of Bihar,⁵ imported an older and weaker American standard, that is, the tendency test, between the speech and public order consequences. The second strand exemplified byRam Manohar Lohia vs State of UP,⁶ S Rangarajan vs P Jagjivan Ram,⁷ andArup Bhuyan vs Union of India,⁸ all require greater proximity between the speech and the disorder anticipated. In Shreya Singhal, the Supreme Court held that at the stage of incitement, the reasonable restrictions will step in to curb speech that has a tendency to cause disorder. Other experts are of the opinion that Justice Nariman was doing no such thing, and was only sequentially applying all the tests for free speech that have been developed within both these strands of precedent. In legal activist Lawrence Liang's analysis, "Ramjilal Modi was decided by a seven judge bench and Kedarnath by a constitutional bench. As is often the case in India, when subsequent benches of a lower strength want to distinguish themselves from older precedent but are unable to overrule them, they overcome this constraint through a doctrinal development by stealth. This is achieved by creative interpretations that chip away at archaic doctrinal standards without explicitly discarding them."⁹

Compatibility with US Jurisprudence

United States (US) jurisprudence has been imported by the Indian Supreme Court in an inconsistent manner. Some judgments hold that the American first amendment harbours no exception and hence is incompatible with Indian jurisprudence, while other judgments have used American precedent when convenient. Indian courts have on occasion imported an additional restriction beyond the eight available in 19(2)-the ground of public interest, best exemplified by the cases of K A Abbas¹⁰ and Ranjit Udeshi.¹¹ The bench in its judgment-which has been characterised by Pranesh Prakash as a masterclass in free speech jurisprudence¹²-clarifies that while the American first amendment jurisprudence is applicable in India, the only area where a difference is made is in the "sub serving of general public interest" made under the US law. This eloquent judgment will hopefully instruct judges in the future on how they should import precedent from American free speech jurisprudence.

Article 14 Challenge

The Article 14 challenge brought forward by the petitioners contended that Section 66A violated their fundamental right to equality because it differentiated between offline and online speech in terms of the length of maximum sentence, and was hence unconstitutional. The Court held that an intelligible differentia, indeed, did exist. It found so on two grounds. First, the internet offered people a medium through which they can express views at negligible or no cost. Second, the Court likened the rate of dissemination of information on the internet to the speed of lightning and could potentially reach millions of people all over the world. Before Shreya Singhal, the Supreme Court had already accepted medium-specific regulation. For example in K A Abbas, the Court made a distinction between films and other media, stating that the impact of films on an average illiterate Indian viewer was more profound than other forms of communication. The pessimistic reading of Shreya Singhal is that Parliament can enact medium-specific law as long as there is an intelligible differentia which could even be a technical difference-speed of transmission. However, the optimistic interpretation is that medium-specific law can only be enacted if there are medium-specific harms, e g, phishing, which has no offline equivalent. If the executive adopts the pessimistic reading, then draconian sections like 66A will find their way back into the IT Act. Instead, if they choose the optimistic reading, they will introduce bills that fill the regulatory vacuum that has been created by the striking down of S66A, that is, spam and cyberbullying.

Section 79

Section 79 was partially read down. This section, again introduced during the 2008 amendment, was supposed to give legal immunity to intermediaries for third party content by giving a quick redressal for those affected by providing a mechanism for takedown notices in the Intermediaries Guidelines Rules notified in April 2011. But the section and rules had enabled unchecked invisible censorship¹³ in India and has had a demonstrated chilling effect on speech¹⁴ because of the following reasons:

One, there are additional unconstitutional restrictions on speech and expression. Rule 3(2) required a standard "rules and regulation, terms and condition or user agreement" that would have to be incorporated by all intermediaries. Under these rules, users are prohibited from hosting, displaying, uploading, modifying, publishing, transmitting, updating or sharing any information that falls into different content categories, a majority of which are restrictions on speech which are completely out of the scope of Article 19(2). For example, there is an overly broad category which contains information that harms minors in any way. Information that "belongs to another person and to which the user does not have any right to" could be personal information or could be intellectual property. A much better intermediary liability provision was introduced into the Copyright Act with the 2013 amendment. Under the Copyright Act, content could be reinstated if the takedown notice was not followed up with a court order within 21 days.¹⁵ A counter-proposal drafted by the Centre for Internet and Society for "Intermediary Due Diligence and Information Removal," has a further requirement for reinstatement that is not seen in the Copyright Act.¹⁶

Two, a state-mandated private censorship regime is created. You could ban speech online without approaching the court or the government. Risk-aversive private intermediaries who do not have the legal resources to subjectively determine the legitimacy of a legal claim err on the side of caution and takedown content.

Three, the principles of natural justice are not observed by the rules of the new censorship regime. The creator of information is not required to be notified nor given a chance to be heard by the intermediary. There is no requirement for the intermediary to give a reasoned decision.

Four, different classes of intermediaries are all treated alike. Since the internet is not an uniform assemblage of homogeneous components, but rather a complex ecosystem of diverse entities, the different classes of intermediaries perform different functions and therefore contribute differently to the causal chain of harm to the affected person. If upstream intermediaries like registrars for domain names are treated exactly like a web-hosting service or social media service then there will be over-blocking of content.

Five, there are no safeguards to prevent abuse of takedown notices. Frivolous complaints could be used to suppress legitimate expressions without any fear of repercussions and given that it is not possible to expedite reinstatement of content, the harm to the creator of information may be irreversible if the information is perishable. Transparency requirements with sufficient amounts of detail are also necessary given that a human right was being circumscribed. There is no procedure to have the removed information reinstated by filing a counter notice or by appealing to a higher authority.

The judgment has solved half the problem by only making intermediaries lose immunity if they ignore government orders or court orders. Private takedown notices sent directly to the intermediary without accompanying government orders or courts order no longer have basis in law. The bench made note of the Additional Solicitor General's argument that user agreement requirements as in Rule 3(2) were common practice across the globe and then went ahead to read down Rule 3(4) from the perspective of private takedown notices. One way of reading this would be to say that the requirement for standardised "rules and regulation, terms and condition or user agreement" remains. The other more consistent way of reading this part of the order in conjunction with the striking down of 66A would be to say those parts of the user agreement that are in violation of Article 19(2) have also been read down.

This would have also been an excellent opportunity to raise the transparency requirements both for the State and for intermediaries: for (i) the person whose speech is being censored, (ii) the persons interested in consuming that speech, and (iii) the general public. It is completely unclear whether transparency in the case of India has reduced the state appetite for censorship. Transparency reports from Facebook, Google and Twitter claim that takedown notices from the Indian government are on the rise.¹⁷ However, on the other hand, the Department of Electronics and Information Technology (DEITY) claims that government statistics for takedowns do not match the numbers in these transparency reports.¹⁸ The best way to address this uncertainty would be to require each takedown notice and court order to be made available by the State, intermediary and also third-party monitors of free speech like the Chilling Effects Project.

Section 69A

The Court upheld S69A which deals with website blocking, and found that it was a narrowly-drawn provision with adequate safeguards, and, hence, not constitutionally infirm. In reality, unfortunately, website blocking usually by internet service providers (ISPs) is an opaque process in India. Blocking under S69A has been growing steadily over the years. In its latest response to an RTI (right to information)¹⁹ query from the Software Freedom Law Centre, DEITY said that 708 URLs were blocked in 2012, 1,349 URLs in 2013, and 2,341 URLs in 2014. On 30 December 2014 alone, the centre blocked 32 websites to curb Islamic State of Iraq and Syria propaganda, among which were "pastebin" websites, code repository (Github) and generic video hosting sites (Vimeo and Daily Motion).²⁰ Analysis of leaked block lists and lists received as responses to RTI requests have revealed that the block orders are full of errors (some items do not exist, some items are not technically valid web addresses), in some cases counter speech which hopes to reverse the harm of illegal speech has also been included, web pages from mainstream media houses have also been blocked and some URLs are base URLs which would result in thousands of pages getting blocked when only a few pages might contain allegedly illegal content.²¹

Pre-decisional Hearing

The central problem with the law as it stands today is that it allows for the originator of information to be isolated from the process of censorship. The Website Blocking Rules provide that all "reasonable efforts" must be made to identify the originator or the intermediary who hosted the content. However, Gautam Bhatia offers an optimistic reading of the judgment, he claims that the Court has read into this "or" and made it an "and"-thus requiring that the originator must also be notified of blocks when he or she can be identified.²²

Transparency

Usually, the reasons for blocking a website are unknown both to the originator of material as well as those trying to access the blocked URL. The general public also get no information about the nature and scale of censorship unlike offline censorship where the court orders banning books and movies are usually part of public discourse. In spite of the Court choosing to leave Section 69A intact, it stressed the importance of a written order for blocking, so that a writ may be filed before a high court under Article 226 of the Constitution. While citing this as an existing safeguard, the Court seems to have been under the impression that either the intermediary or the originator is normally informed, but according to Apar Gupta, a lawyer for the People's Union for Civil Liberties, "While the rules indicate that a hearing is given to the originator of the content, this safeguard is not evidenced in practice. Not even a single instance exists on record for such a hearing."²³ Even worse, block orders have been unevenly implemented by ISPs with variations across telecom circles, connectivity technologies, making it impossible for anyone to independently monitor and reach a conclusion whether an internet resource is inaccessible as a result of a S69A block order or due to a network anomaly.

Rule 16 under S69A requires confidentiality with respect to blocking requests and complaints, and actions taken in that regard. The Court notes that this was argued to be unconstitutional, but does not state their opinion on this question. Gautam Bhatia holds the opinion that this, by implication, requires that requests cannot be confidential. Chinmayi Arun, from the Centre for Communication Governance at National Law University Delhi, one of the academics supporting the petitioners, holds the opinion that it is optimism carried too far to claim that the Court noted the challenge to Rule 16 but just forgot about it in a lack of attention to detail that is belied by the rest of the judgment.

Free speech researchers and advocates have thus far used the RTI Act to understand the censorship under S69A. The Centre for Internet and Society has filed a number of RTI queries about websites blocked under S69A and has never been denied information on grounds of Rule 16.²⁴ However, there has been an uneven treatment of RTI queries by DEITY in this respect, with the Software Freedom Law Centre²⁵ being denied blocking orders on the basis of Rule 16. The Court could have protected free speech and expression by reading down Rule 16 except for a really narrow set of exceptions wherein only aggregate information would be made available to affected parties and members of the public.

Conclusions

In Shreya Singhal, the Court gave us great news: S66A has been struck down; good news: S79(3) and its rules have been read down; and bad news: S69A has been upheld. When it comes to each section, the impact of this judgment can either be read optimistically or pessimistically, and therefore we must wait for constitutional experts to weigh in on the ripple effect that this order will produce in other areas of free speech jurisprudence in India. But even as free speech activists celebrate Shreya Singhal, some are bemoaning the judgment as throwing the baby away with the bathwater, and wish to reintroduce another variant of S66A. Thus, we must remain vigilant.

Notes

1 G S Mudur (2012): "66A 'Cut and Paste Job,'" The Telegraph, 3 December, visited on 3 April, 2015, http://www.telegraphindia.com/1121 203/jsp/frontpage/story_16268138.jsp

2 Sunil Abraham (2012): "The Five Monkeys and Ice Cold Water," Centre for Internet and Society, 26 September, visited on 3 April 2015, http://cis-india.org/internet-governance/www-deccan-chronicle-sep-16-201...

3 Gautam Bhatia (2015): "The Striking Down of 66A: How Free Speech Jurisprudence in India Found Its Soul Again," Indian Constitutional Law and Philosophy, 26 March, visited on 4 April 2015, https://indconlawphil.wordpress.com/2015/03/26/the-striking-down-of-sect...

4 Ramjilal Modi vs State of UP, 1957, SCR 860.

5 Kedar Nath Singh vs State of Bihar, 1962, AIR 955.

6 Ram Manohar Lohia vs State of UP, AIR, 1968 All 100.

7 S Rangarajan vs P Jagjivan Ram, 1989, SCC(2), 574.

8 Arup Bhuyan vs Union of India, (2011), 3 SCC 377.

9 Lawrence Liang, Alternative Law Forum, personal communication to author, 6 April 2015.

10 K A Abbas vs Union of India, 1971 SCR (2), 446.

11 Ranjit Udeshi vs State of Maharashtra,1965 SCR (1) 65.

12 Pranesh Prakash (2015): "Three Reasons Why 66A Verdict Is Momentous"/ Times of India/(29 March). Visited on 6 April 2015, http://timesofindia.indiatimes.com/home/sunday-times/all-that-matters/Th...

13 Pranesh Prakash (2011): "Invisble Censorship: How the Government Censors Without Being Seen," The Centre for Internet and Society, 14 December, visited on 6 April 2015, http://cis-india.org/internet-governance/blog/invisible-censorship

14 Rishabh Dara (2012): "Intermediary Liability in India: Chilling Effects on Free Expression on the Internet," The Centre for Internet and Society, 27 April, visited on 6 April 2015, http://cis-india.org/internet-governance/chilling-effects-on-free-expres... .

15 Rule 75, Copyright Rules, 2013.

16 The Draft Counter Proposal is available at http://cis-india.org/internet-governance/counter-proposal-by-cis-draft-i...

17 According to Facebook's transparency report, there were 4,599 requests in the first half of 2014, followed by 5,473 requests in the latter half. Available at https://govtrequests.facebook. com/country/India/2014-H2/ also see Google's transparency report available at http: //www.google. com/transparencyreport/removals/government/IN/?hl=en and Twitter's report, available at https:// transparency.twitter.com/country/in

18 Surabhi Agarwal (2015): "Transparency Reports of Internet Companies are Skewed: Gulashan Rai," Business Standard, 31 March, viewed on 5 April 2015, http://www.business-standard.com/article/current-affairs/transparency-re... .

19 http://sflc.in/deity-says-2341-urls-were-blocked-in-2014-refuses-to-reve...

20 "32 Websites Go Blank," The Hindu, 1 January 2015, viewed on 6 April 2015, http://www.thehindu.com/news/national/now-modi-govt-blocks-32-websites/a...

21 Pranesh Prakash (2012): "Analysing Latest List of Blocked Sites (Communalism and Rioting Edition)," 22 August, viewed on 6 April 2015, http://cis-india.org/internet-governance/blog/analysing-blocked-sites-ri... . Also, see Part II of the same series at http://cis-india.org/internet-governance/analyzing-the-latest-list-of-bl... and analysis of blocking in February 2013, at http://cis-india.org/internet-governance/blog/analyzing-latest-list-of-b...

22 Gautam Bhatia (2015): "The Supreme Court's IT Act Judgment, and Secret Blocking," Indian Constitutional Law and Philosophy, 25 March, viewed on 6 April 2015, https://indconlawphil.wordpress.com/2015/03/25/the-supreme-courts-it-act...

23 Apar Gupta (2015): "But What about Section 69A?," Indian Express, 27 March, viewed on 5 April 2015, http://indianexpress. com/article/opinion/ columns/but-what-about-section-69a/

24 Pranesh Prakash (2011): DIT's Response to RTI on Website Blocking, The Centre for Internet and Society, 7 April, viewed on 6 April 2015, http://cis-india.org/internet-governance/blog/rti-response-dit-blocking ). Also see http://cis-india.org/internet-governance/blog/analysis-dit-response-2nd-... and http://cis-india.org/internet-governance/resources/reply-to-rti-applicat...

25 http://sflc.in/wp-content/uploads/2015/04/RTI-blocking-final-reply-from-...

For more details visit https://cis-india.org/internet-governance/blog/economic-and-political-weekly-sunil-abraham-april-11-2015-shreya-singhal-and-66a

The Supreme Court Judgment in Shreya Singhal and What It Does for Intermediary Liability in India?

jyoti — 2015-04-17T23:59:34Z

Even as free speech advocates and users celebrate the Supreme Court of India's landmark judgment striking down Section 66A of the Information Technology Act of 2000, news that the Central government has begun work on drafting a new provision to replace the said section of the Act has been trickling in.

The SC judgement in upholding the constitutionality of Section 69A (procedure for blocking websites) and in reading down Section 79 (exemption from liability of intermediaries) of the IT Act, raises crucial questions regarding transparency, accountability and under what circumstances may reasonable restrictions be placed on free speech on the Internet. While discussions and analysis of S. 66A continue, in this post I will focus on the aspect of the judgment related to intermediary liability that could benefit from further clarification from the apex court and in doing so, will briefly touch upon S. 69A and secret blocking.

Conditions qualifying intermediary for exemption and obligations not related to exemption

The intermediary liability regime in India is defined under S. 79 and assosciated rules that were introduced to protect intermediaries for liability from user generated content and ensure the Internet continues to evolve as a “marketplace of ideas”. But as intermediaries may not have sufficient legal competence or resources to deliberate on the legality of an expression, they may end up erring on the side of caution and takedown lawful expression. As a study by Centre for Internet and Society (CIS) in 2012 revealed, the criteria, procedure and safeguards for administration of the takedowns as prescribed by the rules lead to a chilling effect on online free expression.

S. 69A grants powers to the Central Government to “issue directions for blocking of public access to any information through any computer resource”. The 2009 rules allow the blocking of websites by a court order, and sets in place a review committee to review the decision to block websites as also establishes penalties for the intermediary that fails to extend cooperation in this respect.

There are two key aspects of both these provisions that must be noted:

a) S. 79 is an exemption provision that qualifies the intermediary for conditional immunity, as long as they fulfil the conditions of the section. The judgement notes this distinction, adding that “being an exemption provision, it is closely related to provisions which provide for offences including S. 69A.”

b) S. 69A does not contribute to immunity for the intermediary rather places additional obligations on the intermediary and as the judgement notes “intermediary who finally fails to comply with the directions issued who is punishable under sub-section (3) of 69A.” The provision though outside of the conditional immunity liability regime enacted through S. 79 contributes to the restriction of access to, or removing content online by placing liability on intermediaries to block unlawful third party content or information that is being generated, transmitted, received, stored or hosted by them. Therefore restriction requests must fall within the contours outlined in Article 19(2) and include principles of natural justice and elements of due process.

Subjective Determination of Knowledge

The provisions for exemption laid down in S. 79 do not apply when they receive “actual knowledge” of illegal content under section 79(3)(b). Prior to the court's verdict actual knowledge could have been interpreted to mean the intermediary is called upon its own judgement under sub-rule (4) to restrict impugned content in order to seek exemption from liability. Removing the need for intermediaries to take on an adjudicatory role and deciding on which content to restrict or takedown, the SC has read down “actual knowledge” to mean that there has to be a court order directing the intermediary to expeditiously remove or disable access to content online. The court also read down “upon obtaining knowledge by itself” and “brought to actual knowledge” under Rule 3(4) in the same manner as 79(3)(b).

Under S.79(3)(b) the intermediary must comply with the orders from the executive in order to qualify for immunity. Further, S. 79 (3)(b) goes beyond the specific categories of restriction identified in Article 19(2) by including the term “unlawful acts” and places the executive in an adjudicatory role of determining the illegality of content. The government cannot emulate private regulation as it is bound by the Constitution and the court addresses this issue by applying the limitation of 19(2) on unlawful acts, “the court order and/or the notification by the appropriate government or its agency must strictly conform to the subject matters aid down in Article 19(2).”

By reading down of S. 79 (3) (b) the court has addressed the issue of intermediaries complying with takedown requests from non-government entities and has made government notifications and court orders to be consistent with reasonable restrictions in Article 19(2). This is an important clarification from the court, because this places limits on the private censorship of intermediaries and the invisible censorship of opaque government takedown requests as they must and should adhere, to the boundaries set by Article 19(2).

Procedural Safeguards

The SC does not touch upon other parts of the rules and in not doing so, has left significant procedural issues open for debate. It is relevant to bear in mind and as established above, S. 69A blocking and restriction requirements for the intermediary are part of their additional obligations and do not qualify them for immunity. The court ruled in favour of upholding S. 69A as constitutional on the basis that blocking orders are issued when the executive has sufficiently established that it is absolutely necessary to do so, and that the necessity is relatable to only some subjects set out in Article 19(2). Further the court notes that reasons for the blocking orders must be recorded in writing so that they may be challenged through writ petitions. The court also goes on to specify that under S. 69A the intermediary and the 'originator' if identified, have the right to be heard before the committee decides to issue the blocking order.

Under S. 79 the intermediary must also comply with government restriction orders and the procedure for notice and takedown is not sufficiently transparent and lacks procedural safeguards that have been included in the notice and takedown procedures under S. 69. For example, there is no requirement for committee to evaluate the necessity of issuing the restriction order, though the ruling does clarify that these restriction notices must be within the confines of Article 19(2). The judgement could have gone further to directing the government to state their entire cause of action and provide reasonable level of proof (prima facie). It should have also addressed issues such as the government using extra-judicial measures to restrict content including collateral pressures to force changes in terms of service, to promote or enforce so-called "voluntary" practices.

Accountability

The judgement could also have delved deeper into issues of accountability such as the need to consider 'udi alteram partem' by providing the owner of the information or the intermediary a hearing prior to issuing the restriction or blocking order nor is an post-facto review or appeal mechanism made available except for the recourse of writ petition. Procedural uncertainty around wrongly restricted content remains, including what limitations should be placed on the length, duration and geographical scope of the restriction. The court also does not address the issue of providing a recourse for the third party provider of information to have the removed information restored or put-back remains unclear. Relatedly, the court also does not clarify the concerns related to frivolous requests by establishing penalties nor is there a codified recourse under the rules presently, for the intermediary to claim damages even if it can be established that the takedown process is being abused.

Transparency

The bench in para 113 in addressing S. 79 notes that the intermediary in addition to publishing rules and regulations, privacy policy and user agreement for access or usage of their service has to also inform users of the due diligence requirements including content restriction policy under rule 3(2). However, the court ought to have noted the differentiation between different categories of intermediaries which may require different terms of use. Rather than stressing a standard terms of use as a procedural safeguard, the court should have insisted on establishing terms of use and content restriction obligations that is proportional to the role of the intermediary and based on the liability accrued in providing the service, including the impact of the restriction by the intermediary both on access and free speech. By placing requirement of disclosure or transparency on the intermediary including what has been restricted under the intermediary's own terms of service, the judgment could have gone a step further than merely informing users of their rights in using the service as it stands presently, to ensuring that users can review and have knowledge of what information has been restricted and why. The judgment also does not touch upon broader issues of intermediary liability such as proactive filtering sought by government and private parties, an important consideration given the recent developments around the right to be forgotten in Europe and around issues of defamation and pornography in India.

The judgment, while a welcome one in the direction of ensuring the Internet remains a democratic space where free speech thrives, could benefit from the application of the recently launched Manila principles developed by CIS and others. The Manila Principles is a framework of baseline safeguards and best practices that should be considered by policymakers and intermediaries when developing, adopting, and reviewing legislation, policies and practices that govern the liability of intermediaries for third-party content.

The court's ruling is truly worth celebrating, in terms of the tone it sets on how we think of free speech and the contours of censorship that exist in the digital space. But the real impact of this judgment lies in the debates and discussions which it will throw open about content removal practices that involve intermediaries making determinations on requests received, or those which only respond to the interests of the party requesting removal. As the Manila Principles highlight a balance between public and private interests can be obtained through a mechanism where power is distributed between the parties involved, and where an impartial, independent, and accountable oversight mechanism exists.

For more details visit https://cis-india.org/internet-governance/blog/sc-judgment-in-shreya-singhal-what-it-means-for-intermediary-liability

The block heads

praskrishna — 2015-05-07T11:51:48Z

An entire government department is on the job, but can it really take down ‘offending’ online content?

The article by Sibi Arasu was published in the Hindu Businessline on April 3, 2015. Sunil Abraham gave his inputs.

The Department of Electronics and Information Technology’s (Deity) offices are as layered as its official website. From inside ‘Electronics Niketan’ at the Central Government Offices (CGO) complex in south Delhi, Deity’s army of director-generals, joint secretaries, department heads, scientists, clerks and staff of various grades and ranks keep an eye on how the country engages with the world wide web.

One set of cubicles is dedicated to the Computer Emergency Response Team (CERT), the nodal agency meant to combat hacking, phishing and generally fortify the internet in India. This includes the task of blocking and unblocking websites. A rather complicated job in a country where, according to one senior government official, “it’s technically infeasible to completely block content. If it’s at the gateway level, then we can filter it out. But for videos and other similar content, it is just not possible to completely block them.”

No bandwidth

Be it the AIB roasts that were taken down from YouTube or the controversial documentary India’s Daughter, which was blocked within eight hours of going online, the CERT and other allied departments have been kept busy over the past few months.

In a classic example of how blocking can go wrong, more than 36 websites were taken down in December last year to “prevent the spread of ISIS propaganda” only to be unblocked within weeks. Like elsewhere in the world, the attempt to “protect” citizens had unwittingly ended up hurting legitimate websites, including video sharing sites vimeo.com, dailymotion.com and the reference site archive.org. It was embarrassingly similar to the Chinese government’s actions in 2010 when it blocked all images of empty chairs, stools and tables as it attempted to staunch discussions about Liu Xiabo, the Nobel Peace Prize winner that year, who was missing from the awards ceremony as he was incarcerated in China.

Terming such government actions as dangerous and Orwellian, Apar Gupta, a cyber law specialist in Delhi who appeared for the People’s Union for Civil Liberties (PUCL) in the PIL against Section 66A of the IT Act, says, “Any piece of content is contained within several file formats and obscured through technical devices like encryption, making its complete removal and eradication impossible.”

Internet freedom campaigners have maintained that Section 66A, which prescribed “punishment for sending offensive messages through a communication service”, was created solely to muzzle dissent and differences of opinion.

Although Section 66A was recently struck down, the law authorising blocking of content — namely, Section 69A — remains intact. The Central Government can block content it believes threatens the security of the State; the sovereignty, integrity or defence of India; friendly relations with foreign States; public order; or incites committing a cognisable offence related to any of the above. The government must, however, adhere to a set of procedures and safeguards, known as Blocking Rules.

“Larger, overbroad technical blocks can impede the functioning of the internet,” says internet policy analyst Raman Chima. “When a large website ‘blacklist’ and internet filter was proposed for Australia in 2009-10, research established that it would likely result in double-digit reductions in the internet’s speed and efficiency in that country.”

The ‘Streisand effect’, named after the Hollywood actress, is another common consequence of blocking. As Chima says, “Specific bans tend to be counterproductive and, more often than not, result in more awareness and interest in the banned content.”

Political manoeuvres

‘Ethical hacktivist’ and Hackers Hat founder Satish Ashwin sees banning and blocking as purely vote bank politics.

“Technically anything can be blocked or banned and it’s not a big deal, but the sheer volume of data uploaded makes it next to impossible to monitor and censor,” he says.

To those heralding the striking down of 66A as a victory for free speech, Sunil Abraham, executive director of the Bengaluru-based Centre for Internet and Society, points to the larger picture. “Nobody is really aware of the scale of censorship in India. Thousands of websites are blocked under Section 69A, mostly due to the maximalist enforcement of Intellectual Property Rights (IPR). While 66A is gone, there are many other provisions within the IT Act that still regulate speech online. It is important to have quality laws drafted through an open, participatory process, where all stakeholders are consulted and responded to before bills are introduced in Parliament."

For more details visit https://cis-india.org/internet-governance/news/hindu-businessline-april-3-2015-sibi-arasu-the-block-heads

You can still get into trouble for online posts: Digital law experts

praskrishna — 2015-04-02T01:44:32Z

The internet in India is freer now, but individuals could still to get into trouble for online posts, say digital media and law experts. Hailing the Supreme Court judgment on Tuesday as a landmark verdict for free speech in India, experts who have closely read the judgment say there is much to be careful about too.

The article by Kim Arora was published in the Times of India on March 30, 2015. Sunil Abraham is quoted.

The scrapping of the contentious section doesn't mean that one has a free run, cautions Sunil Abraham, executive director, Centre for Internet and Society. An online comment can still land you in jail, he says.

"The judgement in no way means that speech on online platforms will be unregulated now. You can still be charged for pornography or voyeurism under the IT Act. There are many provisions in the Constitution and Indian Penal Code that the government can use to target people it wants to go after. You can be still charged for hate speech or defamation - which is a criminal offence in India - for an online comment," says Abraham.

While lawyer Apar Gupta found the judgment to be forward-looking, he pointed to Para 98 of the 120 page judgment, which addresses Article 14 of the Constitution regarding "discrimination" and talks of the distinction between online and other media.

"We make it clear that there is an intelligible differentia between speech on the internet and other mediums of communication for which separate offences can certainly be created by legislation," says the judgment. "The court has indicated that special offences can be created for the internet. Constant vigilance is the price of liberty. We need to constantly engage with these issues to keep the internet free," says Gupta.

The judgment has been praised for making a distinction between online posts and messages that pertain to advocacy, discussion and incitement. "This is an excellent decision. The SC is saying that no matter what the medium, we stand for constitutional rights. The judges were ready to listen, and ready to share their experience of using the internet also," says Mishi Choudhary, legal director at Software Freedom Law Center, adding, "It was a lost opportunity for the Modi government. They should have gotten rid of section 66 A themselves."

Section 69A of the Act, which stands as is, allows non-transparent blocking of online content in the interest of "sovereignty and integrity of India, defense of India, security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence relating to above." However, Choudhary says that since it is a narrowly-drawn provision, it ensures more safeguards.

"It will be noticed that Section 69A unlike Section 66A is a narrowly drawn provision with several safeguards. First and foremost, blocking can only be resorted to where the Central Government is satisfied that it is necessary so to do. Secondly, such necessity is relatable only to some of the subjects set out in Article 19(2). Thirdly, reasons have to be recorded in writing in such blocking order so that they may be assailed in a writ petition under Article 226 of the Constitution," she says.

Going forward, the government plan of action should focus on balancing safety and freedom on the internet, says Rajya Sabha MP Rajeev Chandrasekhar, who himself was one of the petitioners. "The final endgame has to be one where we have a new law or even a new IT Act which meets the twin objectives of a safe and free internet. The two need not be mutually exclusive," he says.

(With inputs from Anand J in Bengaluru)

For more details visit https://cis-india.org/internet-governance/news/times-of-india-march-30-2015-kim-arora-you-can-still-get-into-trouble-for-online-posts

SECTION 66A: DELETE

praskrishna — 2015-03-30T01:32:18Z

The Supreme Court has killed a law that allowed the Government to control social media. What’s the Net worth of freedom hereafter?

The article by Kumar Anshuman was published in the Open Magazine on March 27, 2015. Sunil Abraham gave his inputs.

It was in 2009 that Section 66A was added as an amendment to India’s IT Act by the then UPA Government, but it took three years before it came to the notice of Shreya Singhal, a student of Law at Delhi University. By then, the Section had already earned itself a fair amount of notoriety for how much leeway it provided for the police and politicians to abuse the law.

The first time was in September 2011 when Musafir Baitha, a famous poet and government employee in Bihar, was suspended from his job because he criticised the state government on Facebook. An uproar followed, as people realised that freedom of speech in social media could now be construed as a criminal activity. Ambikesh Mahapatra, a professor at Jadavpur Unversity, became a target of the Mamata Banerjee government in April 2012 when he made cartoons of her. In September 2012, cartoonist Aseem Trivedi was arrested in Mumbai for a caricature of corruption under the UPA. But the case that caught Shreya Singhal’s attention was perhaps the most shocking of all. In November 2012, after Shiv Sena founder Bal Thackeray’s death, Shaheen Dhada, a Thane resident, posted a comment on her Facebook page criticising the near-total shutdown of Mumbai for the funeral. She wrote that Mumbai was shut not in respect, but fear, and that a leader should earn respect instead of forcing it out of people. Her friend Renu Srinivasan ‘liked’ this post. Hours later, both were arrested and booked under Section 66A. "I was shocked when I heard of this news," Singhal says, "I went and checked the post and there was nothing which could have provoked such an outrage." Her mother, Manali Singhal, a lawyer at the Supreme Court, advised her to file a Public Interest Litigation (PIL) against the Section.

The case continued for two years in the Supreme Court, while arbitrary arrests continued to be made. The UPA Government first defended 66A in court, taking the position that the current NDA Government took as well. It argued that the law would be used only in extreme cases where a person overreaches his or her online freedom to curtail the rights of others. Unconvinced, on 24 March, the apex court struck 66A down, saying that it could not allow such a law to exist on mere government assurances. The Court found several terms in the Act, such as ‘grossly offensive’ and ‘insult’, that were not clearly defined and could be interpreted arbitrarily to suit one’s convenience. ‘It is clear that Section 66A is unconstitutionally vague and it takes away a guaranteed freedom,’ observed the bench of Justice J Chelameswar and Justice Rohinton Nariman.

"We can celebrate the scrapping of Section 66A, but with caution," says Sunil Abraham, executive director at The Centre for Internet & Society in Bangalore. "[As for] those who are booked under Section 66A, the police also imposes different sections of the Indian Penal Code to justify their arrest." There are examples to support his statement, a recent one being the arrest of a Bareilly-based student, Gulrez Khan, who had posted a picture on Facebook of UP minister Azam Khan along with some derogatory comments about Hindus that he allegedly made. Gulrez Khan denied the comments, saying that his image was being maligned. The boy was arrested and booked. "People are making it out as a moment of triumph against the UP government. The fact is this boy had been arrested under Section 153A and 504 of the IPC along with Section 66A of the IT Act. We have said this even in the Supreme Court," says Gaurav Bhatia, a spokesperson of the Samajwadi Party and also a senior advocate.

But the import of scrapping Section 66A is that there is now one less law that can be misused, one that specifically stifles online freedom. "It’s an excellent judgment," says Lawrence Liang of Alternative Law Forum, Bangalore. “It couldn’t have been better than this. The fact that the apex court termed it ‘vague and overreaching’ signifies how important it was to scrap this."

Once the 122-page judgment arrived, there was a rush to welcome it—even by those who were responsible for Section 66A to begin with. Former Congress minister Kapil Sibal was one of them. "The Supreme Court has scrapped Section 66A to allow freedom of speech in cyberspace and we should welcome it,” he said. His former cabinet colleague P Chidambaram went to the extent of saying that it was poorly drafted. But the Congress as a party also warned of the possible misuse of this freedom, saying that it had woven various safeguards into Section 66A, including the condition that an arrest could only be made after an officer of the level of Inspector General or Superintendent of Police had okayed it. "The Supreme Court, it appears, has not found the safeguards sufficient," says Congress spokesperson and senior lawyer Abhishek Manu Singhvi. “It is now up to the current Government [to decide] how to strike the right balance between freedom of speech on one hand and [prevention of] abuse and hounding of groups or individuals through obscene or incorrigibly false information [on the other] to deter unbridled defamation in cyberspace." The Left parties, which were supporting the UPA Government back when Section 66A was imposed, have expressed happiness over the verdict. “The draconian provision of 66A was used to arrest people who express dissenting views against the Government and the State and to suppress criticism of those in power,” says senior CPM leader Sitaram Yechury.

The NDA Government has also welcomed the verdict. "The Government absolutely respects the right to freedom of speech and expression on social media and has no intention of curbing it," says Ravi Shankar Prasad, Union Minister for Information Technology.

But the scrapping of the Section leaves the Government with very little power to act against real abuse of online freedoms. Like Congress leader Milind Deora says, "An unregulated internet can be more dangerous than a regulated one." This argument is easily countered: there are enough provisions in existing laws that prevent a person from misusing freedom of speech. Says Apar Gupta, a senior lawyer, “Section 66A was a bailable section and arrests were made only with further imposition of IPC acts." While Article 19 (1) of the Constitution guarantees freedom of expression, at the same time Article 19 (2) provides a list of reasonable restrictions on freedom of speech. This is enough, experts believe, to curtail misuse of the internet. The court judgment also grants the Centre the freedom to enact any other law specific to the internet, provided it does not violate the provisions of freedom of speech as laid down by the Constitution of India.

This does, however, put a question mark on the necessity of Section 66A to begin with, if existing laws were quite enough to address freedom-of- speech abuses. "Section 66A of the IT Act, 2000, was enacted to prevent online abuse and hounding of groups and individuals, check the propagation of obscene or incorrigibly false information with the intent to create social divides and unrest, and deter unbridled defamation in cyberspace. This Act came into effect in 2008 when social media was yet evolving," says Singhvi. But experts disagree with this argument. "It is a perfect case of confusion and mixing up of facts,” says Sunil Abraham. “The purpose of this law was to curb unsolicited messages, spamming and harassing someone through fake identities in the internet space." He says that the Government claimed to borrow law provisions from the US, Canada and other countries, but the legislation was so poorly drafted that it didn’t have any teeth for action against spammers. "Even words like ‘unsolicited commercial mails’ were not included in the Act and that is the reason not a single person has been arrested in India for spam mails even after this Act came into being."

A section of the Indian legal fraternity believes that the country’s apex court should also have made a statement about the problem of spamming and harassment on the internet.

But there is bad news too. The same judgment that struck down Section 66A has upheld Section 69A of the IT Act as constitutionally valid. This allows the Government to block any website which it deems a direct threat to public order and security that might spread propaganda.

"In this case, the Government [can decide] to block a website without notifying [it with any] reason for it. If I am an internet user who wants to visit this site, I am also not notified why that website has been taken down. It is just the whims and fancies of a few officials in the Government, what to block and what not," says Apar Gupta. Using the section, the Union Government had blocked 32 websites just this January, saying that anti- national groups were using these websites for ‘jihadi propaganda’.

All major democracies have some form of legal net regulation. "Laws in foreign jurisdictions vary widely as per the guarantees of civil rights afforded to citizens in any legal system," adds Gupta. "The legislations of the United States, which borrowed certain phrases in Section 66A, have already been declared unconstitutional. In the United Kingdom, similar phrases have come under fierce critique and have been limited by guidelines issued by the office of prosecutions. In these jurisdictions, as in India, existing criminal law applies equally to online speech as much as to offline."

Also, while social media enthusiasts rejoice over their first big victory against restrictions on online freedom of speech, the internet is still a matter of great concern for any government, thanks to its reach and influence. The Union Government walks a thin line while dealing with instances of abuse on social media, and many believe India needs an IT Act drafted in proper consultation with all stakeholders.

For now, a young law student has found a place in the legal history of India. "It will always be remembered as Shreya Singhal vs Union of India," says Singhal.

INFORMATION TECHNOLOGY ACT

‘66A. Punishment for sending offensive messages through communication service, etc. Any person who sends, by means of a computer resource or a communication device:

Any information that is grossly offensive or has menacing character; or
Any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device;
Any electronic mail or message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages...

shall be punishable with imprisonment for a term which may extend to three years and with fine’

SUPREME COURT ORDER

‘In conclusion, we may summarise what has been held by us: Section 66A of the Information Technology Act, 2000 is struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2)’

For more details visit https://cis-india.org/internet-governance/news/open-magazine-march-27-2015-kumar-anshuman-section-66a-delete

Three reasons why 66A verdict is momentous

pranesh — 2015-03-29T16:22:51Z

Earlier this week, the fundamental right to freedom of expression posted a momentous victory. The nation's top court struck down the much-reviled Section 66A of the IT Act — which criminalized communications that are "grossly offensive", cause "annoyance", etc — as "unconstitutionally vague", "arbitrarily, excessively, and disproportionately" encumbering freedom of speech, and likely to have a "chilling effect" on legitimate speech.

The article was published in the Times of India on March 29, 2015.

It also struck down Sec 118(d) of the Kerala Police Act on similar grounds. This is a landmark judgment, as it's possibly the first time since 1973's Bennett Coleman case that statutory law was struck down by the Supreme Court for violating our right to free expression.

The SC also significantly 'read down' the draconian 'Intermediary Guidelines Rules' which specify when intermediaries — website hosts and search engines — may be held liable for what is said online by their users. The SC held that intermediaries should not be forced to decide whether the online speech of their users is lawful or not. While the judgment leaves unresolved many questions — phrases like "grossly offensive", which the SC ruled were vague in 66A, occur in the Rules as well — the court's insistence on requiring either a court or a government order to be able to compel an intermediary to remove speech reduces the 'invisible censorship' that results from privatized speech regulation.

The SC upheld the constitutional validity of Sec 69A and the Website Blocking Rules, noting they had several safeguards: providing a hearing to the website owner, providing written reasons for the blocking, etc. However, these safeguards are not practised by courts. Na Vijayashankar, a legal academic in Bengaluru, found a blogpost of his — ironically, on the topic of website blocking — had been blocked by a Delhi court without even informing him. He only got to find out when I published the government response to my RTI on blocked websites. Last December, Github, Vimeo and some other websites were blocked without being given a chance to contest it. As long as lower courts don't follow "principles of natural justice" and due process, we'll continue to see such absurd website blocking, especially in cases of copyright complaints, without any way of opposing or correcting them.

There are three main outcomes of this judgment. First is the legal victory: SC's analysis while striking down 66A is a masterclass of legal clarity and a significant contribution to free speech jurisprudence. This benefits not only future cases in India, but all jurisdictions whose laws are similar to ours, such as Bangladesh, Malaysia and the UK.

Second is the moral victory for free speech. Sec 66A was not merely a badly written law, it became a totem of governmental excess and hubris. Even when political parties realized they had passed 66A without a debate, they did not apologize to the public and revise it; instead, they defended it. Only a few MPs, such as P Rajeev and Baijayant Panda, challenged it. Even the NDA, which condemned the law in the UPA era, supported it in court. By striking down this totem, the SC has restored the primacy of the Constitution. For instance, while this ruling doesn't directly affect the censor board's arbitrary rules, it does morally undermine them.

Third, this verdict shows that given proper judicial reading, the Indian constitutional system of allowing for a specific list of purposes for which reasonable restrictions are permissible, might in fact be as good or even better in some cases, than the American First Amendment. The US law baldly states that Congress shall make no law abridging freedom of speech or of the press. However, the US Supreme Court has never held the opinion that freedom of speech is absolute. The limits of Congress's powers are entirely judicially constructed, and till the 1930s, the US court never struck down a law for violating freedom of speech, and has upheld laws banning obscenity, public indecency, offensive speech in public, etc. However, in India, the Constitution itself places hard limits on Parliament's powers, and also, since the first amendment to our Constitution, allows the judiciary to determine if the restrictions placed by Parliament are "reasonable". In the judgment Justice Nariman quotes Mark Antony from Julius Caesar. He could also have quoted Cassius: "The fault, dear Brutus, is not in our stars, but in ourselves." Judges like Justice Nariman show the constitutional limits to free speech can be read both narrowly and judiciously: we can no longer complain about the Constitution as the primary reason we have so many restrictions on freedom of expression.

For more details visit https://cis-india.org/internet-governance/blog/times-of-india-march-29-2015-pranesh-prakash-three-reasons-why-66a-is-momentous

India's landmark online speech ruling is step toward greater press freedom

praskrishna — 2015-03-29T00:55:35Z

In an historic decision, India's Supreme Court on Tuesday struck down part of a law used to silence criticism and free expression. While this marks a pivotal victory that has been welcomed in many quarters, many challenges remain for press freedom in the country.

The blog post by Sumit Galhotra was published by CPJ (Committee to Protect Journalists) on March 28, 2015. Pranesh Prakash is quoted.

Section 66A of the Information Technology Act--the vaguely worded provision struck down by the court--criminalized online speech deemed "grossly offensive" or "menacing," along with information for the purpose of causing "annoyance" or "inconvenience." Individuals convicted under the provision could face up to three years in prison. This law, along with others that remain on the books, has allowed India to become a paradise for the offended.

The law was challenged by a public interest litigation mounted by Shreya Singhal, in 2012. Singhal, who had just returned to Delhi from her studies in the U.K., was infuriated at how the law was being used to stifle debate and criticism in her home country, according to reports.

The September 2012 arrest of cartoonist Aseem Trivedi, on a range of charges including one under Section 66A, over his cartoons on politics and corruption, caught Singhal's attention. A few weeks later, she learned of the arrest of 21-year-old Shaheen Dhada, who questioned on Facebook the shutdown of Mumbai following the death of a politician, Singhal said. Dhada's friend, Renu Srinivasan, who had merely "liked" the comment, was arrested under the law. According to news reports, both were charged. These cases sparked a national debate on the space for free expression in the world's largest democracy, and led Singhal to challenge the law, she told reporters.

"It's a big victory," Singhal, who is currently studying law in Delhi, told the media following Tuesday's decision. "The Internet is so far-reaching and so many people use it now, it's very important for us to protect this right."

India is expected to overtake the U.S. as the second largest population of Internet users in the world, behind only China, according to the Internet and Mobile Association of India, a nonprofit group representing the Web and mobile industry. As Internet usage accelerates in India, thanks in large part to the widespread use of mobile devices, there has been an ongoing debate on how best to policeit in a country that has to contend with frequent episodes of violence, civil unrest, and terrorist attacks.


Karuna Nundy, an advocate at the Supreme Court of India who helped the legal challenge, says the country has several laws that are a threat to press freedom. (Geoffrey King)

Lawrence Liang, a lawyer and researcher at the Bangalore-based Alternative Law Forum, an Indian legal research organization, shared in Singhal's welcoming of the decision. "It is important to note that this is the first judgment in decades in which the Supreme Court has struck down a legal provision for violating freedom of speech, and in doing so, it simultaneously builds upon a rich body of free speech cases in India and paves the way for a jurisprudence of free speech in the 21st century, the era of the Internet and social media," he told CPJ.

Pranesh Prakash, policy director at Bangalore-based Centre for Internet and Society, an organization that focuses on issues of digital pluralism, called the judgment "a moral victory." He said the decision "furthers free speech jurisprudence in India, but also in all those other countries where an Indian precedent would be important," including many countries in Asia, and places such as South Africa.

As part of the judgment, the court narrowed its reading of Section 79 of the IT Act, under which private parties could submit notice-and-takedown orders directly to Internet intermediaries. The court held that intermediary liability can be pursued only through a court order or other government order, reports said.

Liang told CPJ the judgment falls short in some areas. The Supreme Court's 123-page judgment kept in place Section 69A of the IT Act and Information Technology Rules 2009 that allows the government to block websites if the content in question has the potential to create communal discord, social disorder, or impact India's relations with other countries, according to news reports.

"I would say that if there is missed opportunity in the judgment, it is the clarification of the process of blocking websites. If Section 66A was found to be arbitrary in that its scope covered protected and unprotected speech, then the procedure for blocking websites as laid out in Section 69A is also beset with similar problems," Liang said.

According to Chinmayi Arun, research director at the Centre for Communications Governance at the National Law University in Delhi, the 2009 rules require blocking requests and implementation to be kept confidential. "This means that speakers will have no way of finding out that the government has ordered intermediaries to block their content. Speakers will therefore not be able to question unconstitutional blocking orders before the judiciary--this is a clear interference with their constitutional rights," she told CPJ via email, referring to online users who could fall foul of the law.

Academic in me: As a matter of legal & constitutional analysis, the SC judgment is at its best on #66A, but weaker on 69A & weakest on 79.
-- Pranesh Prakash (@pranesh_prakash) March 24, 2015

For some journalists, the decision highlights how virtually no national party in India, including the ruling Bharatiya Janata Party (BJP), is a champion of these rights. In a piece for independent news website Scroll, journalist Shivam Vij criticizes the current Narendra Modi-led government for missing an opportunity by not acting decisively to address the problematic law. "It has become routine for India's politicians to avoid taking tough political decisions if they can be left to the courts," he said. "When in power, the BJP is as happy as the Congress to have at its disposal laws that can muzzle voices of dissent."

Trivedi told CPJ he agreed that the previous and current government did little to address abuses of the law. Trivedi, who up until the court decision, faced charges under Section 66A, and had joined Singhal as a petitioner in the case, added: "This decision marks a strong first step." The cartoonist's lawyer, Vijay Hiremath, told CPJ that the Section 66A charge has now been removed, but Trivedi still faces charges under the National Emblem Act.

While the striking down of Section 66A is a step in the right direction, many challenges remain for press freedom in India. Karuna Nundy, an advocate at the Supreme Court of India, who was at the forefront of the legal challenge, told CPJ numerous colonial-era laws, particularly in India's penal code, continue to pose threats to free speech and press freedom in India. CPJ has long documented cases of Indian journalists being threatened with sedition, defamation, and laws that criminalize "outraging religious sentiment."

Actually, next step(s): a review of the constitutionality of sedition, challenge criminal defamation, constitutionalise civil defamation.
-- Gautam Bhatia (@gautambhatia88) March 24, 2015

But Nundy expressed optimism for the challenges ahead for press freedom in India and elsewhere. She said the judgment shows, "If you do the work, you take the trouble, you make the challenge, you can achieve the kinds of values that you stand for. That is the work that is the duty of all us as national citizens and citizens of the world."

[Geoffrey King, CPJ Internet Advocacy Coordinator, contributed to this report from Manila]

For more details visit https://cis-india.org/internet-governance/news/cpj-march-28-2015-sumit-galhotra-indias-landmark-online-speech-ruling-is-step-toward-greater-press-freedom

66A DEAD. LONG LIVE 66A!

praskrishna — 2015-04-01T02:11:27Z

Last Tuesday, Twitter CEO Dick Costolo walked into Prime Minister Narendra Modi's office. India's most compulsive and most-followed tweeter, Modi, as Gujarat chief minister, had protested when the Manmohan Singh government blocked the micro-blogging site of a few journalists. Modi had blacked out his own Twitter profile and tweeted: “May God give good sense to everyone.”

The article by Soni Mishra was published in the Week on March 28, 2015. T. Vishnu Vardhan gave his inputs.

Today, with 11 million followers on Twitter, and 27.6 million likes on Facebook, Modi rules the virtual world and India. He received Costolo warmly and told him how Twitter could help his Clean India, girl child and yoga campaigns. Impressed, Costolo told Modi how Indian youth were innovating on Twitter.

But, the greatest and the most fundamental boost for all social media in India was being effected a few minutes drive away from the PMO. Ironically, in the Supreme Court of India, Modi's lawyers were defending a law made by the United Progressive Alliance government—section 66A of the Information Technology Act, which curbed free speech on social media.

Anything posted on the internet can go viral worldwide and reach millions in no time, argued Additional Solicitor General Tushar Mehta. While the traditional media is ruled by licences and checks, social media has nothing, he said. Finally, Mehta made an impassioned plea that the government meant well. Section 66A will be administered reasonably and will not be misused, he assured the court.

It seemed he, and the government, had forgotten an old saying: if there is a bad law, someone will use it. Luckily for India, and its liberal democracy, the judges saw a bad law and struck it down. “If section 66A is otherwise invalid, it cannot be saved by an assurance from the learned additional solicitor general,” said the bench comprising Justice Rohinton Nariman and Justice J. Chelameswar.

The fact is that 66A was knee-jerk legislation. Almost as thoughtless and compulsive as a netizen's derisive tweet. On December 22, 2008, the penultimate day of the winter session, the UPA government had got seven bills passed in seven minutes in the Lok Sabha; the opposition BJP had played along.

One of the bills was to amend the IT Act. It went to the Rajya Sabha the next day, when members were hurrying to catch their trains and flights home for the year-end vacation. They just okayed the bill and hurried home.

The argument then was that there was no need to discuss the bill as it had been examined by a standing committee of Parliament. Indeed, it had been. But, the committee, headed by Nikhil Kumar of the Congress, had met only for 23 hours and five minutes. Nine of its 31 members had not attended a single meeting. Ravi Shankar Prasad, the current Union minister for IT, was one among the 31.

Apparently, everyone wanted the bill, so did not bother to apply their minds. Only a CPI(M) member, A. Vijayaraghavan, had a few dissenting suggestions to the committee report. No one else bothered to mull over a law that was “unconstitutional, vague” and which would have a “chilling effect” on free speech.

Once the law was made, it was constable raj across India. Shaheen Dhada from Palghar simply commented on Facebook about a Shiv Sena bandh on the death of Bal Thackeray. Her friend Rinu Srinivasan liked it. The two teenagers were bundled into a police station. Rinu still remembers with a chill how “a mob of about 200 people gathered outside the police station that day.” This was when the Congress was ruling Maharashtra.

Jadavpur University professor Ambikesh Mahapatra was picked up by the police in Trinamool Congress-ruled West Bengal in April 2012, for posting a cartoon ridiculing Chief Minister Mamata Banerjee. “I was thrashed several times in police custody,” said the professor, who got relief from the West Bengal Human Rights Commission.

Vickey Khan, 22, was arrested in Rampur, UP, for a Facebook post on Samajwadi Party leader Azam Khan. Rampur is, of course, Khan's pocket borough. The Uttar Pradesh Police, controlled by the Samajwadi Party government, also arrested dalit writer Kanwal Bharti from Rampur for criticising the UP government's suspension of IAS officer Durga Shakti Nagpal in 2013.

At least 30 people in AIADMK-ruled Chennai have been booked under 66A; four of them this year. Ravi Srinivasan, general secretary of the Aam Aadmi Party in Puducherry, was picked up in October 2012 for his tweets on Karti Chidambaram, son of then Union home minister P. Chidambaram. “He was not even in India when I tweeted,” said Ravi. “He sent the complaint by fax from abroad and everything happened [fast] as Puducherry is a Union Territory and can be controlled by the home ministry.”

Whistleblower A. Shankar of Chennai was pulled up by the Madras High Court for the content on his blog, Savukku. The Orissa Police, controlled by the Biju Janata Dal (BJD) government, took Facebook to court in 2011 asking who created a Facebook page in the name of Chief Minister Naveen Patnaik. It is another thing that the page had no content.

Indeed, there had been stray political voices opposing the law. In Parliament, the CPI(M)'s P. Rajeeve, the BJD's Jay Panda and independent MP Rajeev Chandrasekhar pushed several times for scrapping 66A. Panda moved a private members bill, and Rajeeve moved a resolution. “I only wish we in Parliament had heeded the people's voice and repealed it, instead of yet again letting the judiciary do our work for us,” Panda said after the law was scrapped.

Finally, it was left to a young law student, Shreya Singhal, to move the Supreme Court on behalf of the Palghar girls. Singhal pointed out that several provisions in 66A violated fundamental rights guaranteed by article 19(1)(a)—the right to freedom of speech and expression. Several more cases followed and, finally, the court heard them together.

Indeed, Justices Nariman and Chelameswar have been extremely restrained in their comments. But, the fact that Parliament had not applied its mind comes through in the judgment.

The court “had raised serious concerns with the manner in which section 66A of the IT Act has been drafted and implemented across the country,” pointed out Supreme Court lawyer Shivshankar Panicker. Added Kiran Shanmugam, a cyber forensic expert and CEO of ECD Global Bengaluru: “The law lacked foresight in estimating the magnitude of the way the electronic media would grow.”

Apparently the government, too, knew it was defending the indefensible, and tried to win the case highlighting the benign nature of the democratic state. But, the court was not impressed. “Governments may come and governments may go, but section 66A goes on forever,” the judges noted. “An assurance from the present government, even if carried out faithfully, would not bind any successor government.”

Clearly, Mehta was defending the indefensible, a law that, the court found, would have a “chilling effect on free speech”. Moreover, as the judges found out, the new law did not provide even the safeguards that the older Criminal Procedure Code had provided. “Safeguards that are to be found in sections 95 and 96 of the CrPC are also absent when it comes to section 66A,” the judges said. For example, according to the CrPC, a book or document that contained objectionable matter could be seized by the police, but it also allowed the publisher to move court. The new law did not provide even such a cushion.

All the same, the court was careful and did not overturn the entire law. It scrapped section 66A, and section 118(D) of the Kerala Police Act, but upheld section 69A and section 79 of the IT Act, which too had been questioned by the litigants (see box on page 45).

The judgment has set the cyberworld rocking. “I am so happy now, I do not know how to express it,” said Rinu, now an audio-engineering student in Kerala. Shaheen is married and lives in Bengaluru. Vickey Khan is relieved. “Some people had told me that I could be jailed for three years,” he said. But, Azam Khan took it out on the media and said it “favours criminals”.

Karti, who claims to be a votary of free speech, however, wants “some protection” against defamation. “I filed a complaint in an existing provision of law,” he said. “If that provision is not available, then I will have to seek other provisions to safeguard my reputation.”

Mahapatra is still apprehensive. “The government will still try to harass me,” he said. “But I know that in the end I will win.” Shankar of Chennai called it “a huge relief for people like me, who are active on social media.” Ravi Srinivasan, who locked horns with Karti, said he felt “relieved and happy”.

The hard rap on the knuckles for their legislative laxity has sobered the political class. The Congress, the progenitor of 66A, admitted that the vagueness of the law was its undoing. “If in a particular area, the local constabulary took action to stifle dissent, it was never the purpose of the act,” said Congress spokesperson Abhishek Manu Singhvi. The Modi government officially welcomed the judgment, and its spokespersons are blaming the UPA for the law.

Apparently, the scrapped law was made after a series of grossly offensive posts appeared on the social media five years ago. “If such content is not blocked online, it would immediately lead to riots,” said a law ministry official, who said the posts had been shown to the court, too. He said the government would take some time to draft a new law.

But, is a new law required? Opinion is still divided. What if someone is defamed on the net? “There are defamation laws which can deal with these,” said T. Vishnuvardhan, programme director, Centre for Internet and Society, Bengaluru. “Also, the IT Act has various provisions. If somebody misuses your picture on social media, you can report it to the website immediately. The website is liable to take action on it within 36 hours.”

Smarika Kumar of Bengaluru-based Alternative Law Forum said the scrapping of 66A does not mean one can post anything online. “The Supreme Court has said that speech can be censored when it falls under the restrictions provided under article 19(2) of the Constitution,” she said. “But, if you prevent speech on any other ground, it is going to be unconstitutional.”

But, even critics of 66A think a replacement law is needed. Said Rajeev Chandrasekhar: “The government needs to act quickly and create a much more contemporaneous Act, via multi-stakeholder consultations, general consensus and collaboration, so that there is less ambiguity and freedom of expression is preserved.”

Senior Supreme Court advocate Pravin H. Parekh said, “As the cyberworld is growing day by day and there is increase in the number of social media users, we do require a proper mechanism which can regulate the expression of views on the internet.”

The government is putting forth the argument of national security. “If the security establishment says the present act is not sufficient, we will look into it. The government will consider it, but only with adequate safeguards,” said Ravi Shankar Prasad.

That will call for a legislative process undertaken in a cool and calm house, and not hurried through when the members are ready to hurry home.

Sound judgment

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The Supreme Court set aside section 66A of the IT act, which says any person who sends offensive, menacing or false information to cause annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, or uses email to trouble its recipient or deceive him/her about the origin of such messages, can be punished with a jail term up to three years and a fine.

The court also struck down section 118(d) of the Kerala Police Act, which says any person who makes indecent comments by calls, mails, messages or any such means causing grave violation of public order or danger can be punished with imprisonment up to three years or a fine not exceeding Rs10,000, or both.

Thumbs up
The Supreme Court upheld section 69A of the IT act, which allows the government to block the public's access to information in national interest and penalise intermediaries [telecom or internet service providers and web hosting services] who fail to comply with the government's directives.

Section 79 of the IT Act, which deals with intermediaries' exemption from liability in certain cases, too, was upheld.

With R. Prasanan, Mini P. Thoma, Ajay Uprety, Lakshmi Subramanian, Rabi Banerjee and Sharmista Chaudhury

For more details visit https://cis-india.org/internet-governance/news/the-week-march-28-2015-soni-mishra-66a-dead-long-live-66a