Centre for Internet and Society

India blocks access to 857 porn sites

pranesh — 2015-08-05T01:31:32Z

India has blocked free access to 857 porn sites in what it says is a move to prevent children from accessing them.

The story was published by BBC on August 3, 2015. Pranesh Prakash gave his inputs.

Adults will still be able to access the sites using virtual private networks (VPNs) or proxy servers. In July, the Supreme Court expressed its unhappiness over the government's inability to block sites, especially those featuring child pornography.

Telecom companies have said they will not be able to enforce the "ban" immediately.

"We have to block each site one by one and it will take a few days for all service providers to block all the sites," an unnamed telecom company executive told The Times of India newspaper.

A senior official, who preferred to remained unnamed, told the BBC Hindi that India's department of telecommunications had "advised" telecom operators and Internet service providers to "control free and open access" to 857 porn sites.

"There is no total ban. This was done in the backdrop of Supreme Court's observation on children having free access to porn sites. The idea is also to protect India's cultural fabric. This will not prevent adults from visiting porn sites," the official said.

In July, the top court had observed that it was not for the court to order a ban on porn sites.

"It is an issue for the government to deal with. Can we pass an interim order directing blocking of all adult websites? And let us keep in mind the possible contention of a person who could ask what crime have I committed by browsing adult websites in private within the four walls of my house. Could he not argue about his right to freedom to do something within the four walls of his house without violating any law?," the court said.

According to statistics released by adult site Pornhub, India was its fourth largest source of traffic in 2014, behind the US, UK and Canada. Pranesh Prakash of the Bangalore based Centre for Internet and Society said the directive to block the 857 sites was "the largest single order of its kind" in India.

"The government's reasoning that it is not a ban because adults can still access the porn sites is ridiculous," he told the BBC. The move has caused a great deal of comment on Indian social media networks, with many prominent personalities coming forward to condemn it.

Popular author Chetan Bhagat, writer and commentator Nilanjana Roy, politician Milind Deora and director Ram Gopal Varma have all added their voices to the debate.

For more details visit https://cis-india.org/internet-governance/news/bbc-news-august-3-2015-india-blocks-access-to-857-porn-sites

India 'jihadi' web blocking causes anger

praskrishna — 2015-01-03T02:48:48Z

A government block on more than 30 high-profile websites has caused anger across India.

The story was published in BBC on January 2, 2015. It was also mirrored in the Puffington Post the same day. Pranesh Prakash is quoted.

India's Department of Telecoms ordered the blocking of the sites in order to prevent the publicising of "jihadi activities".

After considerable pressure, four of the sites - Weebly, Vimeo, Daily Motion and Github - were unblocked.

Officials said the other sites would have their blocks lifted if they complied with the "law of the land".

The Indian Ministry for Communication and Information Technology said in a statement: "It was stated that Anti National group are using social media for mentoring Indian youths to join the Jihadi activities."

It went on to say that the primary concern was that users posting material on the sites did not require any authentication, and that identities could be hidden.

The four websites that have been unblocked were said to have worked with the Indian government to address concerns - although it is unclear what changes, if any, have been made.

Some users were reporting that they were still unable to reach the apparently unblocked sites.

Pranesh Prakash, from the India-based Centre for Internet and Society, said: "Any intelligent person can see these sites don't incite terrorism."

'Many complaints'

Ahead of the ban lifting, a Vimeo spokeswoman said: "It is Vimeo's longstanding policy not to allow videos that promote terrorism, and we remove such videos whenever we become aware of them.

"We have not received notice from the Indian government concerning such videos and have contacted them requesting the blocking order to identify, and evaluate the video in question."

Many internet users in the country are angry that other sites remain blocked, in particular Pastebin - a site used for "dumping" text online anonymously - and The Internet Archive, a US organisation that offers a database of old websites.

The Internet Archive said on Twitter that it had received "many complaints" from users who were unable to access the service.

India has a history of sporadically blocking websites, or issuing warnings about online content.

In August 2012, 245 sites were blocked by the government in an attempt, it said, to quell violence.

For more details visit https://cis-india.org/internet-governance/news/bbc-january-2-2015-india-jihadi-web-blocking-causes-anger

I dare you, I double dare you: Social media celebrates Sec 66A verdict

praskrishna — 2015-03-26T16:33:55Z

Users across social media platforms on Tuesday welcomed the Supreme Court's scrapping of the controversial Section 66A of the Information Technology Act, hailing it as a measure that will strengthen freedom of expression online.

The article by Vishakha Saxena published in the Hindustan Times on March 25, 2015 quotes Pranesh Prakash.

"This is the first SC judgment since the 60s to plainly strike down a law for free expression violation! #66A," tweeted Pranesh Prakash, policy director at the Centre for Internet and Society in Bengaluru.

Prakash, who tweeted "I AM ECSTATIC!!" minutes after the judgement, was one of the most vocal critics of Section 66A - which made offensive comments online punishable with jail terms - and played a key role in creating awareness about freedom of expression.

Apar Gupta, a representative of the People's Union for Civil Liberties (one of the parties that petitioned the Supreme Court against section 66A), also took to Twitter to jubilantly declare victory.

"My TL is a little crazy right now…This decision means a lot to me. Thank you. I am smiling." he posted.

Supreme Court advocate Karuna Nundy, who too represents PUCL, expressed her happiness on Facebook.

The top court struck down the provision, described as draconian by many internet rights activists, describing it as "unconstitutional" and a "restriction on free speech".

Section 66A, incorporated through an amendment of the IT Act in 2009, prohibited the sending of information of a "grossly offensive" or "menacing" nature through communication devices. It was used by several states to arrest people over posts on social media that officials claimed were "seditious" or "communally sensitive".

Discussions on social media against the provision had gained pace hours ahead of the court's ruling. Twitter, in fact, was abuzz as thousands used the hashtag #No66A to voice their opinions.

Reddit, known for being unabashed with opinion and language, wasn’t far behind. The first post announcing the verdict was upvoted 96% and garnered 460 points within four hours.

"Supreme Court zindabad! Now can we abuse Azam Khan without any fear?" commented user Apunebolatumerilaila.

Another user, Indian_galileo, wrote, "FINALLY, SOME SENSE HAS PREVAILED PRAISE THE OVERLORDS AT SC THANK YOU SC THANK YOU VERY VERY MUCH."

For more details visit https://cis-india.org/internet-governance/news/hindustan-times-march-25-2015-vishakha-saxena-i-dare-you-i-double-dare-you

Historic day for freedom of speech and expression in India

vidushi — 2015-03-26T02:19:17Z

In a petition that finds its origin in a simple status message on Facebook, Shreya Singhal vs Union of India marks a historic reinforcement of the freedom of speech and expression in India.

The article by Vidushi Marda was published in Bangalore Mirror on March 25, 2015.

Hearing a batch of writ petitions, the bench comprising Justices Rohinton F Nariman and J Chelameswar considered the constitutionality of three provisions of the Information Technology Act, 2000. The provisions under consideration were Section 66A, dealing with punishment of sending offensive messages through communication services, Section 69A which discusses website blocking and Section 79, dealing with intermediary liability.

The intent behind Section 66A was originally to regulate spam and cyber stalking, but in the last seven years not a single spammer has been imprisoned.

Instead, innocent academics have been arrested for circulating caricatures. The Court struck down the section in its entirety, declaring it unconstitutional.

It held that the language of the section was "nebulous" and "imprecise" and did not satisfy reasonable restrictions under A. 19(2) of the Constitution of India.

Section 79 was meant to result in the blossoming of free speech since it stated that intermediaries will not be held liable for content created by their users unless they refused to act on take-down notices. Unfortunately, intermediaries were unable to decide whether content was legal or illegal, and when the Centre for Internet and Society in 2011 sent flawed take-down notices to seven prominent national and international intermediaries, they erred on the side of caution and over-complied, often deleting legitimate content. By insisting on a court order, the Supreme Court has eliminated the chilling effect of this Section.

Block orders issued by the Indian government to telecom operators and ISPs were shrouded in opacity.

The process through which such orders were developed and implemented was not within public scrutiny. When a film is banned, it becomes part of public discourse, but website blocking does not enjoy the same level of transparency. The person whose speech has been censored is not notified or given an opportunity to be heard as part of the executive process. Unfortunately, in dealing with Section 69A, the Court chose to leave it intact, stating that it is a "narrowly drawn provision with several safeguards."

On balance, this is a truly a landmark judgment as it is the first time since the 1960s that the Supreme Court has struck down any law in its entirety for a violation of free speech.

For more details visit https://cis-india.org/internet-governance/blog/bangalore-mirror-vidushi-marda-march-25-2015-historic-day-for-freedom-of-speech-and-expression-in-india

Govt cracks down on cyber jehad network, blocks access to 32 websites

praskrishna — 2015-01-03T03:29:21Z

The Modi government is starting the New Year with the resolve to wipe out terror and it has cracked down on websites that have been carrying anti-India views and spreading the propaganda of the Islamic State (IS).

The article published in India Today on January 1, 2015 quotes Pranesh Prakash.

Reacting to an alert from the antiterror squad of a state police department, the Department of Telecom (DoT) has blocked access to 32 websites. The DoT order that was tweeted by Pranesh Prakash, policy director of the Bangalore-based research organisation, said that 32 URLs have been blocked under section 69 of the Information and Technology Act, 2000.

The order was reportedly issued on December 16 and it was shared on Twitter on Wednesday. GitHub, Archive.org, Imgur, Vimeo, Daily Motion, Pastebin, sourceforge, justpaste, cryptbin were among the sites that were blocked.

As reports emerged on the ban of these sites, there was outrage on Twitter on the issue of internet censorship. However, most of the websites mentioned in the list that were to be blocked were accessible. Pastebin and Internet Archive, two websites that have reportedly been blocked, tweeted their views.

"If you are from India and unable to visit Pastebin, please email us," Pastebin tweeted on December 19. Internet Archive tweeted on December 31 that they too received complaints from users in India who can't access its website.

Reacting to the outrage, Arvind Gupta, national head of the BJP IT Cell took to Twitter and said that these sites have been blocked after an alert from an anti-terrorism squad that most of them were carrying anti-India content from the Islamic State (IS).

"We should congratulate the government for taking a preventive and precautionary step in a proactive manner based on an advisory," Gupta told Mail Today.

He added that he does not have any details of the Department of Telecommunications (DoT) order and only reacted to the Twitter debate on the subject.

Intelligence agencies have been struggling to monitor terror activities on cyber space. There have been reports of terror groups using social media to attract young minds to jehadi ideology.

The recent arrest of Bangalore-based executive Mehdi Masroor Biswas, who was operating a Twitter handle under the the name @ShamiWitness and promoting the views of the Islamic State, has come as a wake-up call for security agencies. Biswas, an engineer working as a "manufacturing executive" with ITC Foods, was nabbed from his rented oneroom apartment after a news report stated that his was the most popular IS Twitter account with close to 17,000 followers, and his tweets were getting viewed over two lakh times a month.

Sources said there are close to 30,000 such Twitter handles and other social media forums along with websites that are spewing venom, and little can be done to monitor all of them and act on time. With cyber threat becoming a clear and present danger, the Centre has decided to set up a highlevel committee to only monitor social media and cyber space. Counter-terror officials believe that the jehadi nexus has a huge bearing on India as youth active on social media are vulnerable to the propaganda being carried out online.

Other than @ShamiWitness, there are Twitter handles such as @MagnetGas with radical views and pro-IS tone that are now under the lens. What is disturbing is that many such sites are India-specific and some are believed to be handled by Indians.

"If there is misuse of Internet and social media, it needs to be dealt with legally. The Internet is like a public place, so if there are extreme views, the state needs to exercise its powers," says D.C. Pathak, former chief of the Intelligence Bureau.

This is not the first time that the DoT has clamped down on websites for promoting "objectionable" content. In June 2013, 39 websites that allowed users to share pornographic content were reportedly blocked.

For more details visit https://cis-india.org/internet-governance/news/india-today-january-1-2015-govt-cracks-down-on-cyber-jehad-network-blocks-access-to-32-websites

Government blocks 32 websites to check ISIS propaganda

praskrishna — 2015-01-02T13:37:39Z

The Centre has blocked 32 websites, including vimeo.com, dailymotion.com, pastebin.com and github.com, in an effort to curb ISIS propaganda, prompting a wave of online protests.

The article by Kim Arora was published in the Times of India on January 1, 2015. Pranesh Prakash gave his inputs.

An Indian "hacktivist" group, Anonymous India, has threatened reprisal. By Wednesday evening, however, websites that had complied with the government order to remove objectionable content had been unblocked, sources said.

A confidential department of telecom order, dated December 17, instructing all internet service licensees to block the websites appeared online on Wednesday. When contacted to verify the news, Dr Gulshan Rai, director of the Indian Computer Emergency Response Team (CERT-In), told TOI the directions had been issued to internet service providers following a Mumbai additional chief metropolitan magistrate's November order directing the government's Department of Electronics and Information Technology (DeitY) to implement the same.

He added that Mumbai's Anti-Terrorism Squad (ATS) had approached the judiciary after interrogating Arif Majeed, a 23-year-old ISIS recruit from Kalyan. More recently, Bengaluru professional Mehdi Biswas was arrested for allegedly spreading ISIS propaganda on Twitter. "These websites were being used to invite youths to join ISIS. We had contacted the websites sometime back and asked for the removal of the objectionable content. At that time, our communications were ignored. Some of them have now agreed to work with the government. The websites that have complied are being unblocked," Rai told TOI.

The move met with opposition from the online community. While the tech community opposed the Github ban, others were upset about video-sharing websites like dailymotion.com and vimeo.com being taken down. "By blocking vimeo and dailymotion along with other websites, India is walking in the footsteps of Pakistan," tweeted @baawraman.

The list of websites in the DoT document was heavy on large text-sharing and collaboration websites, like Github and Pastebin, popular with coders and software developers. Many objected to the blocking of entire websites instead of specific URLs hosting problematic content. However, Rai explained that individual URLs could not be blocked because of the "high mobility of content" on the websites. "It can just be removed and pasted elsewhere. There are no checks and balances," he said.

Hacktivist group Anonymous India tweeted, "One fine morning, Indian government decided to block sites like Github. Now now, it is time to wake-up. Government of India, Expect Us," a tweet from their handle @opindia_revenge said.

As questions began to be raised on social networks, BJP IT cell head Arvind Gupta tweeted, "The websites that have been blocked were based on an advisory by the Anti-Terrorism Squad, and were carrying anti-India content from ISIS. The sites that have removed objectionable content and/or cooperated with the ongoing investigations, are being unblocked."

The sustainability of counter-measures like blanket blocking to contain threats is being questioned. Prasanth Sugathan, counsel at Software Freedom and Law Center, said such a move is short-sighted. "If you block one website, terrorists can always use another one. Or they will move to using encrypted channels, peer-to-peer communication or even telephones. One can't block everything. In my opinion, such a move only inconveniences the daily users and doesn't solve the long-term purpose," said Sugathan. The sentiment was echoed by common Twitter users as well.

Prime Minister Narendra Modi's tweet from August 2012 condemning blanket blocking of websites was pulled out for recirculation. "As a common man, I join the protest against crackdown on freedom of speech! Have changed my DP. 'Sabko Sanmati De Bhagwan.' #GOIBlocks," Modi had tweeted on August 24, 2012.

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

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

For more details visit https://cis-india.org/internet-governance/news/the-times-of-india-jan-1-2015-kim-arora-government-blocks-32-websites-to-check-isis-propaganda

Good Intentions, Recalcitrant Text - I: Why India’s Proposal at the ITU is Troubling for Internet Freedoms

geetha — 2014-11-02T15:13:45Z

The UN's International Telecommunications Union (ITU) is hosting its Plenipotentiary Conference (PP-14) this year in South Korea. At PP-14, India introduced a new draft resolution on ITU's Role in Realising Secure Information Society. The Draft Resolution has grave implications for human rights and Internet governance. Geetha Hariharan explores.

At the 2014 Plenipotentiary Conference (‘PP-14’ or ‘Plenipot’) of the International Telecommunications Union (ITU), India has tabled a draft proposal on “ITU’s Role in Realising Secure Information Society” [Document 98, dated 20 October 2014] (“Draft Resolution”). India’s proposal has incited a great deal of concern and discussion among Plenipot attendees, governments and civil society alike. Before offering my concerns and comments on the Draft Resolution, let us understand the proposal.

Our Draft Resolution identifies 3 security concerns with exchange of information and resource allocation on the Internet:

First, it is troubling for India that present network architecture has “security weaknesses” such as “camouflaging the identity of the originator of the communication”;[1] random IP address distribution also makes “tracing of communication difficult”;[2]
Second, India is concerned that under the present allocation system of naming, numbering and addressing resources on the Internet, it is impossible or at the very least, cumbersome to identify the countries to which IP address are allocated;[3]
Third, India finds it insecure from the point of view of national security that traffic originating and terminating in the same country (domestic traffic) often routes through networks overseas;[4] similarly, local address resolution also routes through IP addresses outside the country or region, which India finds troubling.[5]

In an effort to address these concerns, the Draft Resolution seeks to instruct the ITU Secretary General:

First, to develop and recommend a ‘traffic routing plan’ that can “effectively ensure the traceability of communication”;[6]
Second, to collaborate with relevant international and intergovernmental organisations to develop an “IP address plan” which facilitates identification of locations/countries to which IP addresses are allocated and coordinates allocation accordingly;[7]
Third, to develop and recommend “a public telecom network architecture” that localizes both routing[8] as well as address resolution[9] for local/domestic traffic to “within the country”.

Admittedly, our Draft Resolution is intended to pave a way for “systematic, fair and equitable allocation” of, inter alia, naming, numbering and addressing resources,[10] keeping in mind security and human rights concerns.[11] In an informal conversation, members of the Indian delegation echoed these sentiments. Our resolution does not, I was told, raise issues about the “concentration of control over Internet resources”, though “certain governments” have historically exercised more control. It also does not, he clarified, wish to make privacy or human rights a matter for discussion at the ITU. All that the Draft Resolution seeks to do is to equip the ITU with the mandate to prepare and recommend a “roadmap for the systematization” of allocation of naming, numbering and addressing resources, and for local routing of domestic traffic and address resolution. The framework for such mandate is that of security, given the ITU’s role in ‘building confidence and security in the use of ICTs’ under Action Line C5 of the Geneva Plan of Action, 2003.

Unfortunately, the text of our Draft Resolution, by dint of imprecision or lack of clarity, undermines India’s intentions. On three issues of utmost importance to the Internet, the Draft Resolution has unintended or unanticipated impacts. First, its text on tracing communication and identity of originators, and systematic allocation of identifiable IP address blocks to particular countries, has impacts on privacy and freedom of expression. Given Edward Snowden’s NSA files and the absence of adequate protections against government incursions or excesses into privacy,[12] either in international human rights law or domestic law, such text is troublesome. Second, it has the potential to undermine multi-stakeholder approaches to Internet governance by proposing text that refers almost exclusively to sovereign monopolies over Internet resource allocation, and finally, displays a certain disregard for network architecture and efficiency, and to principles of a free, open and unified Internet, when it seeks to develop global architecture that facilitates (domestic) localization of traffic-routing, address resolution and allocation of naming, numbering and addressing.

In this post, I will address the first concern of human rights implications of our Draft Resolution.

Unintended Implications for Privacy and Freedom of Expression:

India’s Draft Resolution has implications for individual privacy. At two different parts of the preamble, India expresses concerns with the impossibility of locating the user at the end of an IP address:

Pream. §(e): “recognizing… that the modern day packet networks, which at present have many security weaknesses, inter alia, camouflaging the identity of originator of the communication”;
Pream. §(h): “recognizing… that IP addresses are distributed randomly, that makes the tracing of communication difficult”.

The concerns here surround difficulties in tracking IP addresses due to the widespread use of NATs, as also the existence of IP anonymisers like Tor. Anonymisers like Tor permit individuals to cover their online tracks; they conceal user location and Internet activity from persons or governments conducting network surveillance or traffic analysis. For this reason, Tor has caused much discomfort to governments. Snowden used Tor while communicating with Laura Poitras. Bradley (now Chelsea) Manning of Wikileaks fame is reported to have used Tor (page 24). Crypto is increasingly the safest – perhaps the only safe – avenue for political dissidents across the world; even Internet companies were coerced into governmental compliance. No wonder, then, that governments are doing all they can to dismantle IP anonymisers: the NSA and GCHQ have tried to break Tor; the Russian government has offered a reward to anyone who can.

Far be it from me to defend Tor blindly. There are reports suggesting that Tor is being used by offenders, and not merely those of the Snowden variety. But governments must recognize the very obvious trust deficit they face, especially after Snowden’s revelations, and consider the implications of seeking traceability and identity/geolocation for every IP address, in a systematic manner. The implications are for privacy, a right guaranteed by Article 17 of the International Covenant on Civil and Political Rights (ICCPR). Privacy has been recognized by the UN General Assembly as applicable in cases of surveillance, interception and data collection, in Pream. §4 of its resolution The Right to Privacy in the Digital Age. But many states do not have robust privacy protections for individuals and data. And while governments may state the necessity to create international policy to further effective criminal investigations, such an aim cannot be used to nullify or destroy the rights of privacy and free speech guaranteed to individuals. Article 5(1), ICCPR, codifies this principle, when it states that States, groups or persons may not “engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein…”.

Erosion of privacy has a chilling effect on free speech [New York Times v. Sullivan, 376 U.S. 254], so free speech suffers too. Particularly with regard to Tor and identification of IP address location and users, anonymity in Internet communications is at issue. At the moment, most states already have anonymity-restrictions, in the form of identification and registration for cybercafés, SIM cards and broadband connections. For instance, Rule 4 of India’s Information Technology (Guidelines for Cyber Cafe) Rules, 2011, mandates that we cannot not use computers in a cybercafé without establishing our identities. But our ITU Draft Resolution seeks to dismantle the ability of Internet users to operate anonymously, be they political dissidents, criminals or those merely acting on their expectations of privacy. Such dismantling would be both violative of international human rights law, as well as dangerous for freedom of expression and privacy in principle. Anonymity is integral to democratic discourse, held the US Supreme Court in McIntyre v. Ohio Elections Commission [514 U.S. 334 (1995)].[13] Restrictions on Internet anonymity facilitate communications surveillance and have a chilling effect on the free expression of opinions and ideas, wrote Mr. Frank La Rue, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (¶¶ 48-49).

So a law or international policy for blanket identification and traceability of IP addresses has grave consequences for and prima facie violates privacy, anonymity and freedom of speech. But these rights are not absolute, and can be validly restricted. And because these human rights are implicated, the ITU with its lack of expertise in the area may not be the adequate forum for discussion or study.

To be valid and justified interference, any law, policy or order interfering with privacy and free speech must meet the standards of reasonableness and proportionality, even if national security were the government’s legitimate aim, laid down in Articles 19(3) and 17 of the Covenant on Civil and Political Rights (CCPR) [Toonen v. Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994), ¶6.4]. And as the European Court of Human Rights found in Weber & Saravia v. Germany [Application no. 54934/00, 29 June 2006 (ECHR), ¶95], law or executive procedure that enables surveillance without sufficient safeguards is prima facie unreasonable and disproportionate. Re: anonymity, in Delfi AS v. Estonia [Application no. 64569/09, 17 February 2014, ¶83], while considering the liability of an Internet portal for offensive anonymous comments, the ECHR has emphasized the importance of balancing freedom of expression and privacy. It relied on certain principles such as “contribution to a debate of general interest, subject of the report, the content, form and consequences of the publication” to test the validity of government’s restrictions.

The implications of the suggested text of India’s Draft Resolution should then be carefully thought out. And this is a good thing. For one must wonder why governments need perfect traceability, geolocation and user identification for all IP addresses. Is such a demand really different from mass or blanket surveillance, in scale and government tracking ability? Would this not tilt the balance of power strongly in favour of governments against individuals (citizens or non-citizens)? This fear must especially arise in the absence of domestic legal protections, both in human rights, and criminal law and procedure. For instance, India’s Information Technology Act, 2000 (amended in 2008) has Section 66A, which criminalizes offensive speech, as well as speech that causes annoyance or inconvenience. Arguably, arrests under Section 66A have been arbitrary, and traceability may give rise to a host of new worries.

In any event, IP addresses and users can be discerned under existing domestic law frameworks. Regional Internet Registries (RIR) such as APNIC allocate blocks of IP addresses to either National Internet Registries (NIR – such as IRINN for India) or to ISPs directly. The ISPs then allocate IP addresses dynamically to users like you and me. Identifying information for these ISPs is maintained in the form of WHOIS records and registries with RIRs or NIRs, and this information is public. ISPs of most countries require identifying information from users before Internet connection is given, i.e., IP addresses allocated (mostly by dynamic allocation, for that is more efficient). ISPs of some states are also regulated; in India, for instance, ISPs require a licence to operate and offer services.

If any government wished, on the basis of some reasonable cause, to identify a particular IP address or its user, then the government could first utilize WHOIS to obtain information about the ISP. Then ISPs may be ordered to release specific IP address locations and user information under executive or judicial order. There are also technical solutions, such as traceroute or IP look-up that assist in tracing or identifying IP addresses. Coders, governments and law enforcement must surely be aware of better technology than I.

If we take into account this possibility of geolocation of IP addresses, then the Draft Resolution’s motivation to ‘systematize’ IP address allocations on the basis of states is unclear. I will discuss the implication of this proposal, and that of traffic and address localization, in my next post.

[1] Pream. §(e), Draft Resolution: “recognizing… that the modern day packet networks, which at present have many security weaknesses, inter alia, camouflaging the identity of originator of the communication”.

[2] Pream. §(h), Draft Resolution: “recognizing… that IP addresses are distributed randomly, that makes the tracing of communication difficult”.

[3] Op. §1, Draft Resolution: “instructs the Secretary General… to collaborate with all stakeholders including International and intergovernmental organizations, involved in IP addresses management to develop an IP address plan from which IP addresses of different countries are easily discernible and coordinate to ensure distribution of IP addresses accordingly”.

[4] Pream. §(g), Draft Resolution: “recognizing… that communication traffic originating and terminating in a country also many times flows outside the boundary of a country making such communication costly and to some extent insecure from national security point of view”.

[5] Pream. §(f), Draft Resolution: “recognizing… that even for local address resolution at times, system has to use resources outside the country which makes such address resolution costly and to some extent insecure from national security perspective”.

[6] Op. §6, Draft Resolution: “instructs the Secretary General… to develop and recommend a routing plan of traffic for optimizing the network resources that could effectively ensure the traceability of communication”.

[7] Op. §1, Draft Resolution; see note 3.

[8] Op. §5, Draft Resolution: “instructs the Secretary General… to develop and recommend public telecom network architecture which ensures that effectively the traffic meant for the country, traffic originating and terminating in the country remains within the country”.

[9] Op. §4, Draft Resolution: “instructs the Secretary General… to develop and recommend public telecom network architecture which ensures effectively that address resolution for the traffic meant for the country, traffic originating and terminating in the country/region takes place within the country”.

[10] Context Note to Draft Resolution, ¶3: “Planning and distribution of numbering and naming resources in a systematic, equitable, fair and just manner amongst the Member States…”

[11] Context Note to Draft Resolution, ¶2: “…there are certain areas that require critical attention to move in the direction of building the necessary “Trust Framework” for the safe “Information Society”, where privacy, safety are ensured”.

[12] See, for instance, Report of the Office of the High Commission for Human Rights (“OHCHR”), Right to Privacy in the Digital Age, A/HRC/27/37 (30 June 2014), ¶34-35, http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session27/Documents/A.HRC.27.37_en.pdf. See esp. note 30 of the Report, ¶35.

[13] Many thorny political differences exist between the US and many states (including India and Kenya, who I am told has expressed preliminary support for the Draft Resolution) with regard to Internet governance. Irrespective of this, the US Constitution’s First Amendment and judicial protections to freedom of expression remain a yardstick for many states, including India. India, for instance, has positively referred to the US Supreme Court’s free speech protections in many of its decisions; ex. see Kharak Singh v. State of Uttar Pradesh, 1963 Cri. L.J. 329; R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264.

For more details visit https://cis-india.org/internet-governance/blog/good-intentions-going-awry-i-why-india2019s-proposal-at-the-itu-is-troubling-for-internet-freedoms

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

jyoti — 2014-07-17T12:01:01Z

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

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

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

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

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

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

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

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

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

Other GNI reports and resources:

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

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

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

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

Free Speech and Source Protection for Journalists

Gautam Bhatia — 2014-06-19T20:10:28Z

Gautam Bhatia explores journalistic source protection from the perspective of the right to freedom of speech & expression. In this post, he articulates clearly the centrality of source protection to press freedoms, and surveys the differing legal standards in the US, Europe and India.

In the previous post, we discussed Vincent Blasi’s pathological perspective on free speech. The argument forms part of a broader conception that Blasi calls the “checking value of the First Amendment”. Blasi argues that the most important role of free speech is to “check” government abuses and reveal to the public information that government wants to keep secret from them. Naturally, in this model – which is a specific application of the democracy-centred theory of free speech – the press and the media become the most important organs of a system of free expression.

In addition to the checking value of free speech, there is another consideration that is now acknowledged by Courts in most jurisdictions, including our Supreme Court. When we speak about the “right” to free speech, we do not just mean – as might seem at first glance – the right of speakers to speak unhindered. We also mean the rights of listeners and hearers to receive information. A classic example is the Indian Supreme Court’s opinion in LIC v. Manubhai D. Shah, which used Article 19(1)(a) to vest a right-of-reply in a person who had been criticised in a newspaper editorial, on the ground of providing a balanced account to readers. Furthermore, instruments like the ICCPR and the ECHR make this clear in the text of the free speech right as well. For instance, Article 19 of the ICCPR states that “everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds.”

In addition to the individual right to receive information and ideas, free speech need not be understood exclusively in the language of a right at all. Free speech also serves as a public good – that is to say, a society with a thriving system of free expression is, all things considered, better off than a society without it. The unique value that free speech serves, as a public good, is in creating an atmosphere of accountability and openness that goes to the heart of the constitutive ideals of modern liberal democracies. As Justice Hugo Black noted, a good system of free speech “rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.” Unsurprisingly, he went on to add immediately after, that “a free press is a condition of a free society.”

If free speech is about the right to receive information, and about the public good of a society in which information circulates freely and widely, then the vehicles of information occupy a central position in any theory or doctrine about the scope of the constitutional right. In our societies, the press is perhaps the most important of those vehicles.

Establishing the crucial role of the free press in free speech theory is important to understand a crucial issue that has largely gone unaddressed in Indian constitutional and statutory law: that of source-protection laws for journalists. A source-protection law exempts journalists from having to compulsorily reveal their sources when ordered to do so by government or by courts. Such exemptions form part of ordinary Indian statutory law: under the Indian Evidence Act, for example, communications between spouses are “privileged” – that is, inadmissible as evidence in Court.

The question came up before the US Supreme Court in Branzburg v. Hayes. In a 5-4 split, the majority ruled against an unqualified reporters’ privilege, that could be invoked in all circumstances. However, all the justices understood the importance of the issue. Justice White, writing for the majority, held that government must “convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest.” Justice Powell’s concurring opinion emphasised that the balance must be struck on a case-to-case basis. Since Branzburg, there has been no federal legislation dealing with source protection. A number of states have, however, passed “shield laws”, albeit with broad national security exceptions.

Perhaps the reason for the American Supreme Court’s reticence lies in its reluctance – notwithstanding Justice Black’s ringing oratory – to place journalists on any kind of special pedestal above the rest of the public. The European Court of Human Rights, however, has felt no such compunctions. In Goodwin v. UK, the ECHR made it clear that the press serves a crucial function as a “public watchdog” (a consistent theme in the ECHR’s jurisprudence). Compelled disclosure of sources would definitely have a chilling effect on the functioning of the press, since sources would be hesitant to speak – and journalists would be reluctant to jeopardise their sources – if it was easy to get a court order requiring disclosure. Consequently, the ECHR – which is normally hesitant to intervene in domestic matters, and accords a wide margin of appreciation to states, found the UK to be in violation of the Convention. Journalists could only be compelled to reveal their sources if there was an “overriding requirement in the public interest.”

Where both the United States and Europe have recognised the importance of source-protection, and the simple fact that some degree of source protection is essential if the press is to perform its checking – or watchdog – function effectively, Indian jurisprudence on the issue is negligible. The Law Commission has twice proposed some manner of a shield law, but no concrete action has been taken upon its recommendations.

In the absence of any law, Article 19(1)(a) could play a direct role in the matter. As argued at the beginning of this post, the Supreme Court has accepted the democracy-based justification for free speech, as well as the individual right to receive information. Both these arguments necessarily make the role of the press crucial, and the role of the press is dependant on maintaining the confidentiality of sources. Thus, there ought to be an Article 19(1)(a) right that journalists can invoke against compelled disclosure. If this is so, then any disclosure can only be required through law; and the law, in turn, must be a reasonable restriction in the interests of public order, which – in turn, has normally been given a narrow interpretation by the Supreme Court in cases such as Ram Manohar Lohia.

It is unclear, however, whether the Courts will be sympathetic. As this article points out, while the Supreme Court has yet to rule on this issue, various High Courts have ordered disclosure, seemingly without much concern for the free speech implications. One thing is evident though: either a strong shield law, or a definitive Supreme Court ruling, is required to fill the current vacuum that exists.

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

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For more details visit https://cis-india.org/internet-governance/blog/free-speech-and-source-protection-for-journalists

Free Speech and Civil Defamation

gautam — 2014-07-08T08:31:18Z

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

FOEX Live

geetha — 2014-07-07T12:36:49Z

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

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

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

Fear, Uncertainty and Doubt

sunil — 2015-04-17T01:44:39Z

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

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

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

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

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

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

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

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

Facebook and its Aversion to Anonymous and Pseudonymous Speech

Jessamine Mathew — 2014-07-04T07:53:07Z

Jessamine Mathew explores Facebook's "real name" policy and its implications for the right to free speech.

The power to be unidentifiable on the internet has been a major reason for its sheer number of users. Most of the internet can now be freely used by anybody under a pseudonym without the fear of being recognised by anybody else. These conditions allow for the furtherance of free expression and protection of privacy on the internet, which is particularly important for those who use the internet as a medium to communicate political dissent or engage in any other activity which would be deemed controversial in a society yet not illegal. For example, an internet forum for homosexuals in India, discussing various issues which surround homosexuality may prove far more fruitful if contributors are given the option of being undetectable, considering the stigma that surrounds homosexuality in India, and the recent setting-aside of the Delhi High Court decision reading down Section 377 of the Indian Penal Code. The possibility of being anonymous or pseudonymous exists on many internet fora but on Facebook, the world’s greatest internet space for building connections and free expression, there is no sanction given to pseudonymous accounts as Facebook follows a real name policy. And as the recent decision of a New York judge, disallowing Facebook from contesting warrants on private information of over 300 of its users, shows, there are clear threats to freedom of expression and privacy.

On the subject of using real names, Facebook’s Community Standards states, “Facebook is a community where people use their real identities. We require everyone to provide their real names, so you always know who you're connecting with. This helps keep our community safe.” Facebook’s Marketing Director, Randi Zuckerberg, bluntly dismissed the idea of online anonymity as one that “has to go away” and that people would “behave much better” if they are made to use their real names. Apart from being a narrow-minded statement, she fails to realise that there are many different kinds of expression on the internet, from stories of sexual abuse victims to the views of political commentators, or indeed, whistleblowers, many of whom may prefer to use the platform without being identified. It has been decided in many cases that humans have a right to anonymity as it provides for the furtherance of free speech without the fear of retaliation or humiliation (see Talley v. California).

While Facebook’s rationale behind wanting users to register for accounts with their own names is based on the goal of maintaining the security of other users, it is still a serious infraction on users’ freedom of expression, particularly when anonymous speech has been protected by various countries. Facebook has evolved from a private space for college students to connect with each other to a very public platform where not just social connections but also discussions take place, often with a heavily political theme. Facebook has been described as instrumental in the facilitation of communication during the Arab Spring, providing a space for citizens to effectively communicate with each other and organise movements. Connections on Facebook are no longer of a purely social nature but have extended to political and legal as well, with it being used to promote movements all through the country. Even in India, Facebook was the most widely adopted medium, along with Twitter and Facebook, for discourse on the political future of the country during, before and after the 2014 elections. Earlier in 2011, Facebook was used intensively during the India Against Corruption movement. There were pages created, pictures and videos uploaded, comments posted by an approximate of 1.5 million people in India. In 2012, Facebook was also used to protest against the Delhi gang rape with many coming forward with their own stories of sexual assault, providing support to the victim, organising rallies and marches and protesting about the poor level of safety of women in Delhi.

Much like its content policy, Facebook exhibits a number of discrepancies in the implementation of the anonymity ban. Salman Rushdie found that his Facebook account had been suspended and when it was reinstated after he sent them proof of identity, Facebook changed his name to the name on his passport, Ahmed Rushdie instead of the name he popularly goes by. Through a series of tweets, he criticised this move by Facebook, forcing him to display his birth name. Eventually Facebook changed his name back to Salman Rushdie but not before serious questions were raised regarding Facebook’s policies. The Moroccan activist Najat Kessler’s account was also suspended as it was suspected that she was using a fake name. Facebook has also not just stopped at suspending individual user accounts but has also removed pages and groups because the creators used pseudonyms to create and operate the pages in question. This was seen in the case of Wael Ghonim who created a group which helped in mobilizing citizens in Egypt in 2011. Ghonim was a Google executive who did not want his online activism to affect his professional life and hence operated under a pseudonym. Facebook temporarily removed the group due to his pseudonymity but later reinstated it.

While Facebook performs its due diligence when it comes to some accounts, it has still done nothing about the overwhelmingly large number of obviously fake accounts, ranging from Santa Claus to Jack the Ripper. On my own Facebook friend list, there are people who have entered names of fictional characters as their own, clearly violating the real name policy. I once reported a pseudonymous account that used the real name of another person. Facebook thanked me for reporting the account but also said that I will “probably not hear back” from them. The account still exists with the same name. The redundancy of the requirement lies in the fact that Facebook does not request users to upload some form identification when they register with the site but only when they suspect them to be using a pseudonym. Since Facebook also implements its policies largely only on the basis of complaints by other users or the government, the real name policy makes many political dissidents and social activists the target of abuse on the internet.

Further, Articles 21 and 22 of the ICCPR grant all humans the right to free and peaceful assembly. As governments increasingly crack down on physical assemblies of people fighting for democracy or against legislation or conditions in a country, the internet has proved to be an extremely useful tool for facilitating this assembly without forcing people to endure the wrath of governmental authorities. A large factor which has promoted the popularity of internet gatherings is the way in which powerful opinions can be voice without the fear of immediate detection. Facebook has become the coveted online space for this kind of assembly but their policies and more particularly, faulty implementation of the policies, lead to reduced flows of communication on the site.

Of course, Facebook’s fears of cyberbullying and harassment are likely to materialise if there is absolutely no check on the identity of users. A possible solution to the conflict between requiring real names to keep the community safe and still allowing individuals to be present on the network without the fear of identification by anybody would be to ask users to register with their own names but still allowing them to create a fictional name which would be the name that other Facebook users can see. Under this model, Facebook can also deal with the issue of safety through their system of reporting against other users. If a pseudonymous user has been reported by a substantial number of people for harassment or any other cause, then Facebook may either suspend the account or remove the content that is offensive. If the victim of harassment chooses to approach a judicial body, then Facebook may reveal the real name of the user so that due process may be followed. At the same time, users who utilise the website to present their views and participate in the online process of protest or contribute to free expression in any other way can do so without the fear of being detected or targeted. Safety on the site can be maintained even without forcing users to reveal their real names to the world. The system that Facebook follows currently does not help curb the presence of fake accounts and neither does it promote completely free expression on the site.

For more details visit https://cis-india.org/internet-governance/blog/facebook-and-its-aversion-to-anonymous-and-pseudonymous-speech

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