Centre for Internet and Society

Right to Exclusion, Government Spaces, and Speech

TorShark — 2021-07-02T12:05:13Z

The conclusion of the litigation surrounding Trump blocking its critiques on Twitter brings to forefront two less-discussed aspects of intermediary liability: a) if social media platforms could be compelled to ‘carry’ speech under any established legal principles, thereby limiting their right to exclude users or speech, and b) whether users have a constitutional right to access social media spaces of elected officials. This essay analyzes these issues under the American law, as well as draws parallel for India, in light of the ongoing litigation around the suspension of advocate Sanjay Hegde’s Twitter account.

This article first appeared on the Indian Journal of Law and Technology (IJLT) blog, and can be accessed here. Cross-posted with permission.

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Introduction

On April 8, the Supreme Court of the United States (SCOTUS), vacated the judgment of the US Court of Appeals for Second Circuit’s in Knight First Amendment Institute v Trump. In that case, the Court of Appeals had precluded Donald Trump, then-POTUS, from blocking his critics from his Twitter account on the ground that such action amounted to the erosion of constitutional rights of his critics. The Court of Appeals had held that his use of @realDonaldTrump in his official capacity had transformed the nature of the account from private to public, and therefore, blocking users he disagreed with amounted to viewpoint discrimination, something that was incompatible with the First Amendment.

The SCOTUS ordered the case to be dismissed as moot, on account of Trump no longer being in office. Justice Clarence Thomas issued a ten-page concurrence that went into additional depth regarding the nature of social media platforms and user rights. It must be noted that the concurrence does not hold any direct precedential weightage, since Justice Thomas was not joined by any of his colleagues at the bench for the opinion. However, given that similar questions of public import, are currently being deliberated in the ongoing Sanjay Hegde litigation in the Delhi High Court, Justice Thomas’ concurrence might hold some persuasive weightage in India. While the facts of these litigations might be starkly different, both of them are nevertheless characterized by important questions of applying constitutional doctrines to private parties like Twitter and the supposedly ‘public’ nature of social media platforms.

In this essay, we consider the legal questions raised in the opinion as possible learnings for India. In the first part, we analyze the key points raised by Justice Thomas, vis-a-vis the American legal position on intermediary liability and freedom of speech. In the second part, we apply these deliberations to the Sanjay Hegde litigation, as a case-study and a roadmap for future legal jurisprudence to be developed.

A flawed analogy

At the outset, let us briefly refresh the timeline of Trump’s tryst with Twitter, and the history of this litigation: the Court of Appeals decision was issued in 2019, when Trump was still in office. Post-November 2020 Presidential Election, where he was voted out, his supporters broke into Capitol Hill. Much of the blame for the attack was pinned on Trump’s use of social media channels (including Twitter) to instigate the violence and following this, Twitter suspended his account permanently.

It is this final fact that seized Justice Thomas’ reasoning. He noted that a private party like Twitter’s power to do away with Trump’s account altogether was at odds with the Court of Appeals’ earlier finding about the public nature of the account. He deployed a hotel analogy to justify this: government officials renting a hotel room for a public hearing on regulation could not kick out a dissenter, but if the same officials gather informally in the hotel lounge, then they would be within their rights to ask the hotel to kick out a heckler. The difference in the two situations would be that, “the government controls the space in the first scenario, the hotel, in the latter.” He noted that Twitter’s conduct was similar to the second situation, where it “control(s) the avenues for speech”. Accordingly, he dismissed the idea that the original respondents (the users whose accounts were blocked) had any First Amendment claims against Trump’s initial blocking action, since the ultimate control of the ‘avenue’ was with Twitter, and not Trump.

In the facts of the case however, this analogy was not justified. The Court of Appeals had not concerned itself with the question of private ‘control’ of entire social media spaces, and given the timeline of the litigation, it was impossible for them to pre-empt such considerations within the judgment. In fact, the only takeaway from the original decision had been that an elected representative’s utilization of his social media account for official purposes transformed only that particular space into a public forum where constitutional rights would find applicability. In delving into questions of ‘control’ and ‘avenues of speech’, issues that had been previously unexplored, Justice Thomas conflates a rather specific point into a much bigger, general conundrum. Further deliberations in the concurrence are accordingly put forward upon this flawed premise.

Right to exclusion (and must carry claims)

From here, Justice Thomas identified the problem to be “private, concentrated control over online content and platforms available to the public”, and brought forth two alternate regulatory systems — common carrier and public accommodation — to argue for ‘equal access’ over social media space. He posited that successful application of either of the two analogies would effectively restrict a social media platform’s right to exclude its users, and “an answer may arise for dissatisfied platform users who would appreciate not being blocked”. Essentially, this would mean that platforms would be obligated to carry all forms of (presumably) legal speech, and users would be entitled to sue platforms in case they feel their content has been unfairly taken down, a phenomenon Daphne Keller describes as ‘must carry claims’.

Again, this is a strange place to find the argument to proceed, since the original facts of the case were not about ‘dissatisfied platform users’, but an elected representative’s account being used in dissemination of official information. Beyond the initial ‘private’ control deliberation, Justice Thomas did not seem interested in exploring this original legal position, and instead emphasized on analogizing social media platforms in order to enforce ‘equal access’, finally arriving at a position that would be legally untenable in the USA.

The American law on intermediary liability, as embodied in Section 230 of the Communications Decency Act (CDA), has two key components: first, intermediaries are protected against the contents posted by its users, under a legal model termed as ‘broad immunity’, and second, an intermediary does not stand to lose its immunity if it chooses to moderate and remove speech it finds objectionable, popularly known as the Good Samaritan protection. It is the effect of these two components, combined, that allows platforms to take calls on what to remove and what to keep, translating into a ‘right to exclusion’. Legally compelling them to carry speech, under the garb of ‘access’ would therefore, strike at the heart of the protection granted by the CDA.

Learnings for India

In his petition to the Delhi High Court, Senior Supreme Court Advocate, Sanjay Hegde had contested that the suspension of his Twitter account, on the grounds of him sharing anti-authoritarian imagery, was arbitrary and that:

Twitter was carrying out a public function and would be therefore amenable to writ jurisdiction under Article 226 of the Indian Constitution; and
The suspension of his account had amounted to a violation of his right to freedom of speech and expression under Article 19(1)(a) and his rights to assembly and association under Article 19(1)(b) and 19(1)(c); and
The government has a positive obligation to ensure that any censorship on social media platforms is done in accordance with Article 19(2).

The first two prongs of the original petition are perhaps easily disputed: as previous commentary has pointed out, existing Indian constitutional jurisprudence on ‘public function’ does not implicate Twitter, and accordingly, it would be a difficult to make out a case that account suspensions, no matter how arbitrary, would amount to a violation of the user’s fundamental rights. It is the third contention that requires some additional insight in the context of our previous discussion.

Does the Indian legal system support a right to exclusion?

Suing Twitter to reinstate a suspended account, on the ground that such suspension was arbitrary and illegal, is in its essence a request to limit Twitter’s right to exclude its users. The petition serves as an example of a must-carry claim in the Indian context and vindicates Justice Thomas’ (misplaced) defence of ‘dissatisfied platform users’. Legally, such claims perhaps have a better chance of succeeding here, since the expansive protection granted to intermediaries via Section 230 of the CDA, is noticeably absent in India. Instead, intermediaries are bound by conditional immunity, where availment of a ‘safe harbour’, i.e., exemption from liability, is contingent on fulfilment of statutory conditions, made under section 79 of the Information Technology (IT) Act and the rules made thereunder. Interestingly, in his opinion, Justice Thomas had briefly visited a situation where the immunity under Section 230 was made conditional: to gain Good Samaritan protection, platforms might be induced to ensure specific conditions, including ‘nondiscrimination’. This is controversial (and as commentators have noted, wrong), since it had the potential to whittle down the US' ‘broad immunity’ model of intermediary liability to a system that would resemble the Indian one.

It is worth noting that in the newly issued Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, proviso to Rule 3(1)(d) allows for “the removal or disabling of access to any information, data or communication link [...] under clause (b) on a voluntary basis, or on the basis of grievances received under sub-rule (2) [...]” without dilution of statutory immunity. This does provide intermediaries a right to exclude, albeit limited, since its scope is restricted to content removed under the operation of specific sub-clauses within the rules, as opposed to Section 230, which is couched in more general terms. Of course, none of this precludes the government from further prescribing obligations similar to those prayed in the petition.

On the other hand, it is a difficult proposition to support that Twitter’s right to exclusion should be circumscribed by the Constitution, as prayed. In the petition, this argument is built over the judgment in Shreya Singhal v Union of India, where it was held that takedowns under section 79 are to be done only on receipt of a court order or a government notification, and that the scope of the order would be restricted to Article 19(2). This, in his opinion, meant that “any suo-motu takedown of material by intermediaries must conform to Article 19(2)”.

To understand why this argument does not work, it is important to consider the context in which the Shreya Singhal judgment was issued. Previously, intermediary liability was governed by the Information Technology (Intermediaries Guidelines) Rules, 2011 issued under section 79 of the IT Act. Rule 3(4) made provisions for sending takedown orders to the intermediary, and the prerogative to send such orders was on ‘an affected person’. On receipt of these orders, the intermediary was bound to remove content and neither the intermediary nor the user whose content was being censored, had the opportunity to dispute the takedown.

As a result, the potential for misuse was wide-open. Rishabh Dara’s research provided empirical evidence for this; intermediaries were found to act on flawed takedown orders, on the apprehension of being sanctioned under the law, essentially chilling free expression online. The Shreya Singhal judgment, in essence, reined in this misuse by stating that an intermediary is legally obliged to act only when a takedown order is sent by the government or the court. The intent of this was, in the court’s words: “it would be very difficult for intermediaries [...] to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not.”

In light of this, if Hegde’s petition succeeds, it would mean that intermediaries would now be obligated to subsume the entirety of Article 19(2) jurisprudence in their decision-making, interpret and apply it perfectly, and be open to petitions from users when they fail to do so. This might be a startling undoing of the court’s original intent in Shreya Singhal. Such a reading also means limiting an intermediary’s prerogative to remove speech that may not necessarily fall within the scope of Article 19(2), but is still systematically problematic, including unsolicited commercial communications. Further, most platforms today are dealing with an unprecedented spread and consumption of harmful, misleading information. Limiting their right to exclude speech in this manner, we might be exacerbating this problem.

Government-controlled spaces on social media platforms

On the other hand, the original finding of the Court of Appeals, regarding the public nature of an elected representative’s social media account and First Amendment rights of the people to access such an account, might yet still prove instructive for India. While the primary SCOTUS order erases the precedential weight of the original case, there have been similar judgments issued by other courts in the USA, including by the Fourth Circuit court and as a result of a lawsuit against a Texas Attorney General.

A similar situation can be envisaged in India as well. The Supreme Court has repeatedly held that Article 19(1)(a) encompasses not just the right to disseminate information, but also the right to receive information, including receiving information on matters of public concern. Additionally, in Secretary, Ministry of Information and Broadcasting v Cricket Association of Bengal, the Court had held that the right of dissemination included the right of communication through any media: print, electronic or audio-visual. Then, if we assume that government-controlled spaces on social media platforms, used in dissemination of official functions, are ‘public spaces’, then the government’s denial of public access to such spaces can be construed to be a violation of Article 19(1)(a).

Conclusion

As indicated earlier, despite the facts of the two litigations being different, the legal questions embodied within converge startlingly, inasmuch that are both examples of the growing discontent around the power wielded by social media platforms, and the flawed attempts at fixing it.

While the above discussion might throw some light on the relationship between an individual, the state and social media platforms, many questions still continue to remain unanswered. For instance, once we establish that users have a fundamental right to access certain spaces within the social media platform, then does the platform have a right to remove that space altogether? If it does so, can a constitutional remedy be made against the platform? Initial commentary on the Court of Appeals’ decision had contested that the takeaway from that judgment had been that constitutional norms had a primacy over the platform’s own norms of governance. In such light, would the platform be constitutionally obligated to not suspend a government account, even if the content on such an account continues to be harmful, in violation of its own moderation standards?

This is an incredibly tricky dimension of the law, made trickier still by the dynamic nature of the platforms, the intense political interests permeating the need for governance, and the impacts on users in the instance of a flawed solution. Continuous engagement, scholarship and emphasis on having a human rights-respecting framework underpinning the regulatory system, are the only ways forward.

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The author would like to thank Gurshabad Grover and Arindrajit Basu for reviewing this piece.

For more details visit https://cis-india.org/internet-governance/blog/right-to-exclusion-government-spaces-and-speech

Right to be forgotten poses a legal dilemma in India

praskrishna — 2014-06-09T10:02:25Z

The “right to be forgotten” judgment has raised a controversy, while some argue that it upholds an individual’s privacy, others say it leaves a lot of room for interpretation.

The article by Leslie D' Monte was published in Livemint on June 5, 2014. Sunil Abraham gave his inputs.

Medianama.com has become perhaps the first Indian website to be asked by an individual to remove a link, failing which the user would approach Google Inc. to delete the link under the “right to be forgotten” provision granted by a European court. There’s one hitch: India doesn’t have any legal provision to entertain or process such request.

In his request to the media website, the individual cited a landmark 13 May judgment by the Court of Justice of the European Union (EU), which said users could ask search engines like Google or Bing to remove links to web pages that contain information about them.

According to the judgement, the user is also free to approach “the competent authorities in order to obtain, under certain conditions, the removal of that link from the list of results” if the search engines do not comply.

“...this individual told us of a plan to appeal to Google on the basis of the judgment of the European Court of Justice, and asked us to either convert the public post into a non-indexable post, such that it may not be surfaced by search engines, or to modify the individual’s name, place and any references to his/her employer in the post that we’ve written, so that it cannot be linked directly to the individual,” said Nikhil Pahwa, founder of medianama.com.

Pahwa did not reveal the identity of the individual, who made the request on 31 May. Medianama, according to Pahwa, had written about the individual “a few years ago, protesting against attacks on his/her freedom of speech.” It did not give details. The media website reported about the request on 2 June.

Under legal pressure, the individual eventually relented and retracted the request.

The individual, Pahwa said, requested medianama.com to retain only his last name on the web page, cautioning that if the website does not do so, he would submit the URL (uniform resource locator or address of that link) of that web page to Google in a “right to be forgotten” request.

This, Pahwa said, “might hurt our search ranking, or lead to a blanket removal of our website from Google’s search index.”

“This is a tricky one, and we’ve declined this request,” said Pahwa. He added that “the implications for media are immense, since digital data, which is a recording of online history, will be affected.”

The EU ruling came after a Spanish national complained in 2010 that searching his name in Google threw up links to two newspaper webpages which reported a property auction to recover social security debt he once owed, even though the information had become irrelevant since the proceedings had since been resolved.

Following the ruling, Google put up an online form (mintne.ws/1oYVP5Y), inviting users in Europe to submit their requests.

“...we will assess each individual request and attempt to balance the privacy rights of the individual with the public’s right to know and distribute information,” the form reads.

“When evaluating your request, we will look at whether the results include outdated information about you, as well as whether there’s a public interest in the information—for example, information about financial scams, professional malpractice, criminal convictions, or public conduct of government officials...”

A Google spokesman said on Tuesday that the company had received over 41,000 requests to be forgotten so far.

On the first day itself, Google had received 12,000 requests.

“Almost a third of the requests were in relation to accusations of fraud, 20% were in relation to violent/serious crimes, and around 12% regarded child pornography arrests. More than 1,500 of these requests are believed to have come from people in the UK. An ex-politician seeking re-election, a paedophile and a GP (general practitioner) were among the British applicants”, according to a 2 June report inThe Telegraph of London.

The “right to be forgotten” judgment has raised a controversy. While some argue that it upholds an individual’s privacy, others say it leaves a lot of room for interpretation.

In an interview to Mint on 26 May, Anupam Chander, director of the California International Law Center, reasoned that if a person could simply scrub all the bad information about him from being searchable on the Internet, she/he could do so by claiming that such information was “no longer relevant”.

“Do we want search engines to then judge whether information remains “relevant” or is somehow “inadequate” under the threat of liability for leaving information accessible? An Internet sanitized of accessible negative information will only tell half the truth,” he argued.

The ruling is not binding on India and applies only to EU countries.

According to legal experts, the country has no provision for a right to be forgotten, either in the Information Technology (IT) Act 2000 (amended in 2008) or the IT Rules, 2011. India, for that matter, does not even have a privacy act as yet.

“In India, we do not have a concept of the right to be Forgotten. It’s a very Western concept,” said Pavan Duggal, a cyberlaw expert and Supreme Court advocate.

Still, intermediaries like search engines and Internet services providers, under the country’s IT Act and IT Rules, have the obligation to exercise due diligence if an aggrieved party sends them a written notice, he said.

According to Sunil Abraham, executive director of the Centre for Internet and Society, an Internet rights lobby group, “right to be forgotten” cases should pass the “public interest” test.

“Privacy protection should not have a chilling effect on transparency. The question is: Does the content (which a user wants to be removed) serve a public interest that outweighs the harm that it is doing to the individual concerned? If no public interest is being served, there is no point in knowing what the content is all about. The complication with the EU ruling is that it wants intermediaries and over-the-top providers to play the role of judges,” said Abraham.

For more details visit https://cis-india.org/news/livemint-leslie-d-monte-june-5-2014-right-to-be-forgotten-poses-legal-dilemma-in-india

Resurrecting the marketplace of ideas

basu — 2019-02-22T02:18:53Z

There is no ‘silver bullet’ for regulating content on the web. It requires a mix of legal and empirical analysis.

The article by Arindrajit Basu was published in Hindu Businessline on February 19, 2019.

A century after the ‘marketplace of ideas’ first found its way into a US Supreme Court judgment through the dissenting opinion of Justice Oliver Wendell Holmes Jr (Abrams v United States, 1919), the oft-cited rationale for free speech is arguably under siege.

The increasing quantity and range of online speech hosted by internet platforms coupled with the shock waves sent by revelations of rampant abuse through the spread of misinformation has lead to a growing inclination among governments across the globe to demand more aggressive intervention by internet platforms in filtering the content they host.

Rule 3(9) of the Draft of the Information Technology [Intermediary Guidelines (Amendment) Rules] 2018 released by the Ministry of Electronics and Information Technology (MeiTy) last December follows the interventionist regulatory footsteps of countries like Germany and France by mandating that platforms use “automated tools or appropriate mechanisms, with appropriate controls, for proactively identifying and removing or disabling public access to unlawful information or content.”

Like its global counterparts, this rule, which serves as a pre-condition for granting immunity to the intermediary from legal claims arising out of user-generated communications, might not only have an undue ‘chilling effect’ on free speech but is also a thoroughly uncooked policy intervention.

Censorship by proxy

Rule 3(9) and its global counterparts might not be in line with the guarantees enmeshed in the right to freedom of speech and expression for three reasons. First, the vague wording of the law and the abstruse guidelines for implementation do not provide clarity, accessibility and predictability — which are key requirements for any law restricting free speech .The NetzDG-the German law, aimed at combating agitation and fake news, has attracted immense criticism from civil society activists and the UN Special Rapporteur David Kaye on similar grounds.

Second, as proved by multiple empirical studies across the globe, including one conducted by CIS on the Indian context, it is likely that legal requirements mandating that private sector actors make determinations on content restrictions can lead to over-compliance as the intermediary would be incentivised to err on the side of removal to avoid expensive litigation.

Finally, by shifting the burden of determining and removing ‘unlawful’ content onto a private actor, the state is effectively engaging in ‘censorship by proxy’. As per Article 12 of the Constitution, whenever a government body performs a ‘public function’, it must comply with all the enshrined fundamental rights.

Any individual has the right to file a writ petition against the state for violation of a fundamental right, including the right to free speech.

However, judicial precedent on the horizontal application of fundamental rights, which might enable an individual to enforce a similar claim against a private actor has not yet been cemented in Indian constitutional jurisprudence.

This means that any individual whose content has been wrongfully removed by the platform may have no recourse in law — either against the state or against the platform.

Algorithmic governmentality

Using automated technologies comes with its own set of technical challenges even though they enable the monitoring of greater swathes of content. The main challenge to automated filtering is the incomplete or inaccurate training data as labelled data sets are expensive to curate and difficult to acquire, particularly for smaller players.

Further, an algorithmically driven solution is an amorphous process.

Through it is hidden layers and without clear oversight and accountability mechanisms, the machine generates an output, which corresponds to assessing the risk value of certain forms of speech, thereby reducing it to quantifiable values — sacrificing inherent facets of dignity such as the speaker’s unique singularities, personal psychological motivations and intentions.

Possible policy prescriptions

The first step towards framing an adequate policy response would be to segregate the content needing moderation based on the reason for them being problematic.

Detecting and removing information that is false might require the crafting of mechanisms that are different from those intended to tackle content that is true but unlawful, such as child pornography.

Any policy prescription needs to be adequately piloted and tested before implementation. It is also likely that the best placed prescription might be a hybrid amalgamation of the methods outlined below.

Second, it is imperative that the nature of intermediaries to which a policy applies are clearly delineated. For example, Whatsapp, which offers end-to-end encrypted services would not be able to filter content in the same way internet platforms like Twitter can.

The first option going forward is user-filtering, which as per a recent paper written by Ivar Hartmann, is a decentralised process, through which the users of an online platform collectively endeavour to regulate the flow of information.

Users collectively agree on a set of standards and general guidelines for filtering. This method combined with an oversight and grievance redressal mechanism to address any potential violation may be a plausible one.

The second model is enhancing the present model of self-regulation. Ghonim and Rashbass recommend that the platform must publish all data related to public posts and the processes followed in a certain post attaining ‘viral’ or ‘trending’ status or conversely, being removed.

This, combined with Application Programme Interfaces (APIs) or ‘Public Interest Algorithms’, which enables the user to keep track of the data-driven process that results in them being exposed to a certain post, might be workable if effective pilots for scaling are devised.

The final model that operates outside the confines of technology are community driven social mechanisms. An example of this is Telengana Police Officer Remi Rajeswari’s efforts to combat fake news in rural areas by using Janapedam — an ancient form of story-telling — to raise awareness about these issues.

Given the complex nature of the legal, social and political questions involved here, the quest for a ‘silver-bullet’ might be counter-productive.

Instead, it is essential for us to take a step back, frame the right questions to understand the intricacies in the problems involved and then, through a mix of empirical and legal analysis, calibrate a set of policy interventions that may work for India today.

For more details visit https://cis-india.org/internet-governance/blog/hindu-businessline-february-19-2019-arindrajit-basu-resurrecting-the-marketplace-of-ideas

Response to the Draft of The Information Technology [Intermediary Guidelines (Amendment) Rules] 2018

Gurshabad Grover, Elonnai Hickok, Arindrajit Basu, Akriti — 2019-02-07T08:06:41Z

In this response, we aim to examine whether the draft rules meet tests of constitutionality and whether they are consistent with the parent Act. We also examine potential harms that may arise from the Rules as they are currently framed and make recommendations to the draft rules that we hope will help the Government meet its objectives while remaining situated within the constitutional ambit.

This document presents the Centre for Internet & Society (CIS) response to the Ministry of Electronics and Information Technology’s invitation to comment and suggest changes to the draft of The Information Technology [Intermediary Guidelines (Amendment) Rules] 2018 (hereinafter referred to as the “draft rules”) published on December 24, 2018. CIS is grateful for the opportunity to put forth its views and comments. This response was sent on the January 31, 2019.

In this response, we aim to examine whether the draft rules meet tests of constitutionality and whether they are consistent with the parent Act. We also examine potential harms that may arise from the Rules as they are currently framed and make recommendations to the draft rules that we hope will help the Government meet its objectives while remaining situated within the constitutional ambit.

The response can be accessed here.

For more details visit https://cis-india.org/internet-governance/blog/response-to-the-draft-of-the-information-technology-intermediary-guidelines-amendment-rules-2018

Response to Mozilla DNS over HTTPS (DoH) and Trusted Recursive Resolver (TRR) Comment Period

Gurshabad Grover, Divyank Katira — 2021-01-19T07:35:24Z

CIS has submitted a response to Mozilla's DNS over HTTPS (DoH) and Trusted Recursive Resolver (TRR) Comment Period

This submission presents a response by the Centre for Internet & Society (CIS) to Mozilla’s DNS over HTTPS (DoH) and Trusted Recursive Resolver (TRR) Comment Period (hereinafter, the “Consultation”) released on November 18, 2020. CIS appreciates Mozilla’s consultations, and is grateful for the opportunity to put forth its views and comments.

Read the response here.

For more details visit https://cis-india.org/internet-governance/blog/response-to-mozilla-dns-over-https-doh-and-trusted-recursive-resolver-trr-comment-period

Respite from Internet Censorship?

praskrishna — 2012-08-10T15:51:30Z

Of late, a lot of the blocked websites have started reappearing. So should we sit back and relax? We take a look at how it's not really the start of something beautiful...writes Nimish Sawant. Sunil Abraham is quoted.

Published in thinkdigit on June 2, 2012

In April, Chennai based Copyrights Labs got a John Doe order (An order against no one in particular) from Madras High Court which ordered ISPs to block several video hosting websites such as Vimeo and Dailymotion along with a string of torrent sites such as Isohunt and Pirate Bay. The motive was to prevent illegal sharing of the movies 3 and Dhammu. The ISPs went on this whole website blocking spree welcoming users with messages such as, “This website has been blocked as per instructions from the Department of Telecom (DoT)”.

In June, the Madras High Court issued an order which made it mandatory for complainants to provide exact URLs where they find illegal content, such that ISPs could block only that content and not the entire site.

This order is definitely a relief for Indian internet users, who were facing a variety of blocked websites for a couple of months. In the May-June period there was a lot of media coverage around Internet censorship and then there was the much-hyped Anonymous protest (http://goo.gl/YCQod) that saw a not-so-great participation. Just like most media stories, it is slowly departing from the public conciousness. So does this mean our censorship woes are behind us?

Far from it.

The dark cloud of Intermediaries Guidelines
The Information Technology (Intermediaries Guidelines) Rules 2011 were added to the IT Act 2000. According to it, the intermediaries (website, domain registrar, blog owner and so on) guidelines allows the government to pull up any website that hosts “objectionable” content. It gives anyone the right to send “content removal notice” to an intermediary, asking it to be removed within 36 hours. Terms describing such content - grossly harmful, harassing, blasphemous, defamatory, obscene - are those that are open to interpretation. So, Facebook can be hauled up for derogatory content or pages on its site. Hell, even if you own a blog and someone else posts a derogatory comment, you can be pulled up.

This is a rather smart move by the government to force self-censorship down our throats. Just try imagining - Every 60 seconds: on YouTube there are 48 hours worth of videos uploaded; Wordpress users publish 347 blogs; Twitter users send over 100,000 tweets among others. (Source: http://goo.gl/U7qT8) How on earth is monitoring such a vast amount of data even possible?

Karnika Seth, Cyberlaw Expert	"Any content which is illegal can be blocked by ISP or on directions of a court.A person who uploads illegal content does not have a right to claim that it should not be blocked. But if harmless content is blocked arbitrarily by government or by an ISP, a person can approach the court for a direction that content should not be blocked from public access. No specific section in IT Act entitles a person to sue in such cases . However freedom of speech and expression is our fundamental right guaranteed under Art.19 of the Constitution of India and it is our constitutional right to seek legal redress for its protection by approaching the court."

Karnika Seth, Cyberlaw Expert

"Any content which is illegal can be blocked by ISP or on directions of a court.A person who uploads illegal content does not have a right to claim that it should not be blocked. But if harmless content is blocked arbitrarily by government or by an ISP, a person can approach the court for a direction that content should not be blocked from public access. No specific section in IT Act entitles a person to sue in such cases . However freedom of speech and expression is our fundamental right guaranteed under Art.19 of the Constitution of India and it is our constitutional right to seek legal redress for its protection by approaching the court."

Every site has internal checks and balances in the form of a 'Report Abuse' option, where users raise flags against content which they may find objectionable and the site takes a call. But with the intermediary rules, the content has to be removed within 36 hours. And here's the kicker – the content can be removed without informing the owner or giving him or her a chance to defend. A political cartoon website cartoonsagainstcorruption.com was a victim of such rules. In March this year, Rajya Sabha MP, P. Rajeeve, had moved a motion calling for the annulment of the intermediaries rules sometime in April. This motion, as would be expected, was defeated by a voice vote.

“Any content which is illegal can be blocked by the ISP or on directions of a court. A person who uploads illegal content does not have a right to claim that it should not be blocked. But if harmless content is blocked arbitrarily by government or by an ISP, a person can approach the court for a direction that content should not be blocked from public access,” said cyberlaw expert Karnika Seth. When asked if there is a clause in the IT Act which enables a person to drag the government or the ISP for blocking access to their harmless content on the web, Seth said, “No specific section in the IT Act entitles a person to sue in such cases . However, freedom of speech and expression is our fundamental right guaranteed under Art.19 of the Constitution of India and it is our constitutional right to seek legal redress for its protection by approaching the court.”

So what should one do if his or her content is blocked due to the blanket ban on websites? “If I am blocked access to my content on the web (say by blocking sites such as Vimeo or Blogspot for instance) I should file an appeal against the John Doe order in the higher court or to the division bench of High court if earlier order has been passed by single bench of the same High court. These provisions are there for any citizen in Procedural Law of India. The IT Act, 2000 need not be invoked,” says Advocate Prashant Mali, President, Cyber Law Consulting.

Google Transparency report clearly established a link between internet censorship and the government. According to the report, between January and June 2011 Google received 1739 requests for disclosure of user data from the Indian government whereas from July to December 2011, the number of requests by the government went up to 2207. Thankfully Google's compliance rate has come down, but the requests will keep increasing. And this is just Google products we are talking about. Is it then right for just the government to go ahead and draft the rules regarding internet usage? Are there provisions for you, the user to play a part in drafting of these rules. According to Advocate Mali, laws are generally put up for debate on various Government websites. But in the case of the Intermediaries Guidelines, the government used the two-thirds majority to pass the rules.

According to Sunil Abraham, Director, Centre for Internet and Society – a Bangalore-based internet advocacy group, we are very far in terms of Internet policies. “Dr. Gulshan Rai of CERT-IN has not taken even the public feedback process seriously and does not hold public consultations. This is very unlike TRAI, the telecoms regulator that has a very sophisticated approach towards transparent and participatory policy formulation.” He says that in India there is little transparency in some areas of policy articulation and our representatives do not seem sufficiently interested in protecting the public interest.

Also according to Adv. Mali, the recent Madras High Court directive asking the ISPs to block only the ‘pirated content’ and not the entire website, is just half the battle won for the ISPs. “If ISP's feel they have won, then that's just half the victory, because if they don't implement the order with full might and even if one copyright gets infringed because of there weak enforcement, then it would amount to Contempt of Court which will land ISP's into soup,” he says.

“The Madras High Court judgement which essentially directs ISPs to block “pirated content”, and not the website as a whole, is a good judgment with respect to Internet users, but implementing it selectively would be a mammoth task for ISP's. If ISP's feel they have won, then it's just half the battle won, because if they don't implement the order with full might and even if one copyright gets infringed because of weak enforcement, then it would amount to Contempt of Court which will land ISP's into soup."

Advocate Prashant Mali, President, Cyber Law Consulting

Is the Anonymous way, the right way?
In June, we saw the global hactivist organisation - Anonymous attacking a string of Government websites and that of ISPs such as Reliance communications, which had blocked access to websites. On June 9, there was a street protest across various metros in India. While the participation was not very encouraging, the sympathy for what Anonymous hackers were doing to those opposing Internet censorship was immense.

According to Advocate Mali, though the agenda of Anonymous was good, their means of achieving that end were wrong. “One cannot put a gun on the Government’s head in a democracy. If they keep doing this, they will be outlawed. If Anonymous really wants to work for the netizens, they should find better ways to protest instead of those which are cognizable cyber crimes in India.” said Mali.

According to Abraham, Anonymous are embracing the civil disobedience movement to protest against unjust laws. He feels that it is pertinent for Anonymous to retain the moral high ground. “Breaking into servers, leaks of personal information and defacement of websites is both illegal and also unlikely to win them more supporters from within the policy formulation space,” concurs Abraham.

Sunil Abraham, Executive Director, Centre for Internet & Society

“The government ie. the government in power, does only frame subsidiary rules. For example – the draconian rules related to reasonable security measures, cyber cafes and intermediaries were drafted in April last year. The main Act in this case the Information Technology Act is framed in the Lok Sabha and Rajya Sabha. Even though the elected government may dominate the proceedings, if they have a clear majority, the opposition parties must debate every detail especially in laws that affect our civil liberties. Unfortunately, since the Internet is not used by the majority of the population it is politically still an insignificant issue. The private sector cannot frame laws that regulate itself – that would be a contradiction in terms. Citizens cannot be asked to vote in referendums each time laws have to be passed, that would just be too slow. Transparency representative democracy is the online option – unfortunately in India there is little transparency in some areas of policy articulation and our representatives don't seem to be sufficiently interested in protecting the public interest.”

Where do we go from here?
So it is safe to say that even though the issue of censorship is not making headlines everyday, it will never will be behind us. “This is just a temporary lull in the storm. Governments are always keen to crack down on free speech and privacy online,” feels Abraham. According to him, projects such as Unique Identification (UID) and National Intelligence Grid (NATGRID) means the death of anonymity and pseudonymity for Internet and mobile users in the country.

On the other hand, Adv. Mali says that so long as the Intermediaries guidelines are part of the IT Act, it will only mean bad news for regular netizens. “Till the rules are effective, censorship and blocking would be a weapon in the hands of the Government, even though it may violate certain Fundamental Rights enshrined by Indian Constitution to Indian Citizens,” he said.

“Indian Internet users have to be very vigilant – if not, we will loose all our rights and freedoms one by one,” warns Abraham.

We can just hope that the issue does not get completely out of hand.

For more details visit https://cis-india.org/news/www-thinkdigit-com-nimish-sawant-02-06-2012-respite-from-internet-censorship

Report on CIS' Workshop at the IGF:'An Evidence Based Framework for Intermediary Liability'

jyoti — 2014-09-24T10:47:30Z

An evidence based framework for intermediary liability' was organised to present evidence and discuss ongoing research on the changing definition, function and responsibilities of intermediaries across jurisdictions.

The discussion from the workshop will contribute to a comprehensible framework for liability, consistent with the capacity of the intermediary and with international human-rights standards.

Electronic Frontier Foundation (USA), Article 19 (UK) and Centre for Internet and Society (India) have come together towards the development of best practices and principles related to the regulation of online content through intermediaries. The nine principles are: Transparency, Consistency, Clarity, Mindful Community Policy Making, Necessity and Proportionality in Content Restrictions, Privacy, Access to Remedy, Accountability, and Due Process in both Legal and Private Enforcement. The workshop discussion will contribute to a comprehensible framework for liability that is consistent with the capacity of the intermediary and with international human-rights standards. The session was hosted by Centre for Internet and Society (India) and Centre for Internet and Society, Stanford (USA) and attended by 7 speakers and 40 participants.

Jeremy Malcolm, Senior Global Policy Analyst EFF kicked off the workshop highlighting the need to develop a liability framework for intermediaries that is derived out of an understanding of their different functions, their role within the economy and their impact on human rights. He went on to structure the discussion which would follow to focus on ongoing projects and examples that highlight central issues related to gathering and presenting evidence to inform the policy space.

Martin Husovec from the International Max Planck Research School for Competition and Innovation, began his presentation, tracking the development of safe harbour frameworks within social contract theory. Opining that safe harbour was created as a balancing mechanism between a return of investments of the right holders and public interest for Internet as a public space, he introduced emerging claims that technological advancement have altered this equilibrium. Citing injunctions and private lawsuits as instruments, often used against law abiding intermediaries, he pointed to the problem within existing liability frameoworks, where even intermediaries, who diligently deal with illegitimate content on their services, can be still subject to a forced cooperation to the benefit of right holders. He added that for liability frameworks to be effective, they must keep pace with advances in technology and are fair to right holders and the public interest.

He also pointed that in any liability framework because the ‘law’ that prescribes an interference, must be always sufficiently clear and foreseeable, as to both the meaning and nature of the applicable measures, so it sufficiently outlines the scope and manner of exercise of the power of interference in the exercise of the rights guaranteed. He illustrated this with the example of the German Federal Supreme Court attempts with Wi-Fi policy-making in 2010. He also raised issues of costs of uncertainty in seeking courts as the only means to balance rights as they often, do not have the necessary information. Similarly, society also does not benefit from open ended accountability of intermediaries and called for a balanced approach to regulation.

The need for consistency in liability regimes across jurisdictions, was raised by Giancarlo Frosio, Intermediary Liability Fellow at Stanford's Centre for Internet and Society. He introduced the World Intermediary Liability Map, a project mapping legislation and case law across 70 countries towards creating a repository of information that informs policymaking and helps create accountability. Highlighting key takeaways from his research, he stressed the necessity of having clear definitions in the field of intermediary liability and the need to develop taxonomy of issues to deepen our understanding of the issues at stake towards an understanding of type of liability appropriate for a particular jurisdiction.

Nicolo Zingales, Assistant Professor of Law at Tilburg University highlighted the need for due process and safeguards for human rights and called for more user involvement in systems that are in place in different countries to respond to requests of takedown. Presenting his research findings, he pointed to the imbalance in the way notice and takedown regimes are structured, where content is taken down presumptively, but the possibility of restoring user content is provided only at a subsequent stage or not at all in many cases. He cited several examples of enhancing user participation in liability mechanisms including notice and notice, strict litigation sanction inferring the knowledge that the content might have been legal and shifting the presumption in favor of the users and the reverse notice and takedown procedure. He also raised the important question, if multistakeholder cooperation is sufficient or adequate to enable the users to have a say and enter as part of the social construct in this space? Reminding the participants of the failure of the multistakeholder agreement process regarding the cost for the filters in the UK, that would be imposed according to judicial procedure, he called for strengthening our efforts to enable users to get more involved in protecting their rights online.

Gabrielle Guillemin from Article 19 presented her research on the types of intermediaries and models of liability in place across jurisdictions. Pointing to the problems associated with intermediaries having to monitor content and determine legality of content, she called for procedural safeguards and stressed the need to place the dispute back in the hands of users and content owners and the person who has written the content rather than the intermediary. She goes on to provide some useful and practically-grounded solutions to strengthen existing takedown mechanisms including, adding details to the notices, introducing fees in order to extend the number of claims that are made and defining procedure regards criminal content.

Elonnai Hickok introduced CIS' research to the UNESCO report Fostering Freedom Online: the Role of Internet Intermediaries, comparing a range of liability models in different stages of development and provisions across jurisdictions. She argued for a liability framework that tackles procedural and regulatory uncertainty, lack of due process, lack of remedy and varying content criteria.

Francisco Vera, Advocacy Director, Derechos Digitales from Chile raised issues related to mindful community policy-making expounding on Chile's implementation of intermediary liability obligation with the USA, the introduction of judicial oversight under Chilean legislation which led to US objection to Chile on grounds of not fulfilling their standards in terms of Internet property protection. He highlighted the tensions that arise in balancing the needs of the multiple communities and interests engaged over common resources and stressed the need for evidence in policy-making to balance the needs of rights holders and public interest. He stressed the need for evidence to inform policy-making and ensure it keeps pace with technological developments citing the example of the ongoing Transpacific Partnership Agreement negotiations that call for exporting provisions DMCA provisions to 11 countries even though there is no evidence of the success of the system for public interest. He concluded by cautioning against the development of frameworks that are or have the potential to be used as anti-competitive mechanisms that curtail innovation and therby do not serve public interest.

Malcolm Hutty associated with the European Internet Service Providers Association, Chair of the Intermediary Reliability Committee and London Internet Exchange brought in the intermediaries' perspective into the discussion. He argued for challenging the link between liability and forced cooperation, understated the problems arising from distinction without a difference and incentives built in within existing regimes. He raised issues arising from the expectancy on the part of those engaged in pre-emptive regulation of unwanted or undesirable content for intermediaries to automate content. Pointing to the increasing impact of intermediaries in our lives he underscored how exposing vast areas of people's lives to regulatory enforce, which enhances power of the state to implement public policy in the public interest and expect it to be executed, can have both positive and negative implications on issues such as privacy and freedom of expression.

He called out practices in regulatory regimes that focus on one size fits all solutions such as seeking automating filters on a massive scale and instead called for context and content specific solutions, that factor the commercial imperatives of intermediaries. He also addressed the economic consequences of liability frameworks to the industry including cost effectiveness of balancing rights, barriers to investments that arise in heavily regulated or new types of online services that are likely to be the targeted for specific enforcement measures and the long term costs of adapting old enforcement mechanisms that apply, while networks need to be updated to extend services to users.

The workshop presented evidence of a variety of approaches and the issues that arise in applying those approaches to impose liability on intermediaries. Two choices emerged towards developing frameworks for enforcing responsibility on intermediaries. We could either rely on a traditional approach, essentially court-based and off-line mechanisms for regulating behaviour and disputes. The downside of this is it will be slow and costly to the public purse. In particular, we will lose a great deal of the opportunity to extend regulation much more deeply into people's lives so as to implement the public interest.

Alternatively, we could rely on intermediaries to develop and automate systems to control our online behaviour. While this approach does not suffer from efficiency problems of the earlier approach it does lack, both in terms of hindering the developments of the Information Society, and potentially yielding up many of the traditionally expected protections under a free and liberal society. The right approach lies somewhere in the middle and development of International Principles for Intermediary Liability, announced at the end of the workshop, is a step closer to the developing a balanced framework for liability.

See the transcript on IGF website.

For more details visit https://cis-india.org/internet-governance/report-on-cis-workshop-at-igf

Reply to RTI Application on Blocking of website and Rule 419A of Indian Telegraph Rules, 1951

praskrishna — 2013-03-21T07:58:12Z

The Department of Telecommunications sent its reply to an RTI application from the Centre for Internet and Society. The application was sent on December 27, 2012 with reference to blocking of websites and Rule 419A of the Indian Telegraph Rules, 1951.

To
Shri Subodh Saxena
Central Public Information Officer (RTI)
Director (DS-II), Room No 1006, Sanchar Bhawan
Department of Télécommunications (DoT)
Ministry of Communications and Information Technology
20, Ashoka Road, New Delhi — 110001

Dear Sir,
Subject: Information on Website Blocking Requested under the Right to Information Act, 2005

1. Full Name of the Applicant: Centre for Internet & Society

2. Address of the Applicant

Mailing Address: Centre for Internet and Society
194, 2־C Cross,
Domlur Stage II,
Bangalore 560071

3. Details of the information required

It has come to our attention that Airtel Broadband Services ("Airtel") and Mahanagar Téléphoné Nigam Limited ("MTNL") have recently blocked access to a number of domain sites for all their users across the country. Airtel has blocked Fabulous Domains (http://www.fabulous.com/), BuyDomains (http://www.buvdomains.com/) and Sedo (http://sedo.co.uk/uk/home/welcome/). MTNL has blocked Sedo (http://sedo.co.uk/uk/home/welcQme/). Subscribers trying to access this website receive a message noting "This website/URL has been blocked until further notice either pursuant to Court orders or on the Directions issued by the Department of Télécommunications". In this regard, we request information on the following queries under Section 6(1) of the Right to Information Act, 2005:

Does the Department have powers to require an Internet Service Provider to block a website? If so, please provide a citation of the statute under which power is granted to the Department, as well as the safeguards prescribed to be in accordance with Article 19(1)(a) of the Constitution of India.
Did the Department order Airtel or MTNL to block any or all of the above mentioned websites? If so, please provide a copy of such order or orders. If not, what action, if at all, has been taken by the Department against Airtel and MTNL for blocking of websites?
Has the Department ever ordered the blocking of any website? If so, please provide a list of addresses of all the websites that have been ordered to be blocked.
Please provide use the present composition of the Committee constituted under rule 419A of the Indian Telegraph Rules, 1951.
Please provide us the dates and copies of the minutes of all meetings held by the Committee constituted under rule 419A of the Indian Telegraph Rules, 1951, and copies of all their recommendations.

4. Years to which the above requests pertain: 2012

5. Designation and address of the PIO from whom the information is required

Shri Subodh Saxena
Central Public Information Officer (RTI)
Director (DS-II), Room No 1006, Sanchar Bhawan
Department of Télécommunications (DoT)
Ministry of Communications and Information Technology
20, Ashoka Road, New Delhi — 110001

To the best of my belief, the détails sought for fall within your authority. Further, as provided under section 6(3) of the Right to Information Act ("RTI Act"), in case this application does not fall within your authority, I request you to transfer the same in the designated time (5 days) to the concerned authority and inform me of the same immediately.

To the best of my knowledge the information sought does not fall within the restrictions contained in section 8 and 9 of the RTI Act, and any provision protecting such information in any other law for the time being in force is inapplicable due to section 22 of the RTI Act.

Please provide me this information in electronic form, via the e-mail address provided above. This to certify that I, Smitha Krishna Prasad, am a citizen of India.

A fee of Rs. 10/- (Rupees Ten Only) has been made out in the form of a demand draft drawn in favour of "Pay and Accounts Officer (HQ), Department of Telecom" payable at New Delhi.

Date. Monday November 26,2012
Place: Bengaluru, Karnataka

Below is the reply received from the Department of Telecommunications for the above RTI application

Government of India
Department of Télécommunications
Sanchar Bhawan, 20, Ashoka Road. New Delhi -110 001
(DS-CelI)

No. DIR(DS-II)/RTI/2009																		Dated:ll/01/2013

To,
Centre for Internet and Society,
No. 194, 2-C Cross,
Domlur Stage II,
Bangalore - 560 071

This has reference to RTI application dated 27/12/2012 with reference to Blocking of website and Rule 419A of Indian Telegraph Rules, 1951

In this regard it is submitted that Internet Service licensees are to follow the provisions of Information Technology Act 2000 as amended from time to time. Under Information Technology Act 2000, "Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules 2009" were notified on 27/10/2009.(Annexure) Aforesaid notified rules describes the "Designated Officer" for the purpose of issuing direction for blocking for access by the public any information generated, transmitted, received, stored or hosted in any computer resource under subsection (2) of Section 69(A) of the ACT. Wide Gazette Notification dated 20/01/2010 Group Coordinator , Cyber Law division, Department of Information Technology has been authorized and designated as "Designated Officer".

As per the directions of Group Coordinator, Cyber Law division, under Information Technology Act 2000, instructions for blocking/ unblocking of websites/URLs are issued to Internet Service Licensees.

As per the available information no instruction to Internet Service Providers has been issued for Blocking of http://www.fabulous.com/, http://www.buydomains.com/, http://sedo.co.uk/uk/home/welcome/ and http://sedo.co.uk/uk/home/welcome/ as mentioned in your RTI application.

Copies of Blocking order for which blocking instructions issued by DoT are not being provided are not provided as per Clause 16 of "Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules 2009" which says "Strict confidentiality shall be maintained regarding all the requests and complaints received and actions taken thereof."
With reference to information (Para 4 & 5 of RTI Aplication ) on Rule 419A of Indian Telegraph Rule, 1951 , the RTI is being forwarded to Dir (AS-III) & CPIO, DoT for providing the information.
The appeal, it any, may be made before Shri Nitin Jain, DDG(DS) & Appellate Authority, Department of Télécommunications, Room No. 1201, Sanchar Bhawan, 20 Ashoka Road, Nevy Delhi-110 001 within 30 days from the date of receipt of this letter.

Encl: As above
																							(Subodh Saxena) DIR (DS-II) 011-2303 6860 011-2335 9454

Copy to:

(I) Shri Rajiv Kumar, CPIO & Director (AS-III), DoT, New Delhi

NOTIFICATION
New Delhi, the 27th October, 2009

G.S.R. 781 (E). — In exercise of the powers conferred by clause (z) of sub-section (2) of section 87, read with sub-section (2) of section 69A of the Information Technology Act 2000 (21 of 2000), the Central Government hereby makes the following rules, namely:

Short title and commencement — (1) These rules may be called the Information Technology (Procedure and Safeguards for Blocking for Access and Information by Public) Rules, 2009.
(2) They shall come into force on the date of their publication in the Official Gazette.
Definitions. — In these rules, unless the context otherwise requires. —
(a) "Act" means the Information Technology Act, 2000 (21 of 2000);
(b) "computer resource" means computer resource as defined in clause (k) of sub-section (1) of section 2 of the Act;
(c) "Designated Officer" means an officer designated as Designated Officer under rule 3;
(d) "Form" means a form appended to these rules;
(e) "intermediary" means an intermediary as defined in clause (w) of sub-section (1) of section 2 of the Act;
(f) "nodal officer" means the nodal officer designated as such under rule 4;
(g) "organisation" means
(i) Ministries or Departments of the Government of India;
(ii) State Governments and Union Territories;
(iii) Any agency of the Central Government, as may be notified in the Official Gazette, by the Central Government
(h) "request" means the request for blocking of access by the public any information generated, transmitted, received, stored or hosted in any computer resource;
(i) "Review Committee" means the Review Committee constituted under rule 419A of Indian Telegraph Rules, 1951.
Designated Officer — The Central Government shall designate by notification in Official Gazette, an officer of the Central Government not below the rank of a Joint Secretary, as the "Designated Officer", for the purpose of issuing direction for blocking for access by the public any information generated, transmitted. received,, stored or hosted in any computer resource under sub-section (2) of section 69A of the Act.
Nodal officer or organisation.— Every organisation for the purpose of these rules, shall designate one of its officer as the Nodal Officer and shall intimate the same to the Central Government in the Department of Information Technology under the Ministry of Communications and Information Technotogy, Government of India and also publish the name of the said Nodal Officer on their website.
Direction by Designated Officer. — The Designated Officer may, on receipt of any request from the Nodal Officer of an organisation or a competent court, by order direct any Agency of the Government or intermediary to block for access by the public any information or part thereof generated, transmitted, received, stored or hosted in any computer resource for any of the reasons specified in sub-section (1) of section 69A of the Act.
Forwarding of requests by organisation. — (1) Any person may send their complaint to the Nodal Officer of the concerned organisation for blocking of access by the public any information generated, transmitted, received, stored or hosted in any computer resource:
Provided that any request other than the one from the Nodal Officer of the organisation shall be sent with the approval of the Chief Secretary of the concerned State or Union territory to the Designated Officer.
Provided further that in case a Union territory has no Chief Secretary, then, such request may be approved by the Adviser to the Administrator of that Union territory.
(2) The organisation shall examine the complaint received under sub-rule (1) to satisfy themselves about the need for taking of action in relation to the reasons enumerated in sub-section (1) of section 69A of the Act and after being satisfied, it shall send the request through its Nodal Officer to the Designated Officer in the format specified in the Form appended to these rules.
(3) The Designated Officer shall not entertain any complaint or request for blocking of information directly from any person.
(4) The request shall be in writing on the letter head of the respective organisation, complete in all respects and may be sent either by mail or by fax or by e-mail signed with electronic signature of the Nodal Officer.
Provided that in case the request is sent by fax or by e-mail which is not signed with electronic signature, the Nodal Officer shall provide a signed copy of the request so as to reach the Designated Officer within a period of three days of receipt of the request by such fax or e-mail.
(5) On receipt, each request shall be assigned a number along with the date and time of its receipt by the Designated Officer and he shall acknowledge the receipt thereof to the Nodal Officer within a period of twenty four hours of its receipt.
Committee for examinatlon of request.— The request along with the printed sample content of the alleged offending information or part thereof shall be examined by a committee consisting of the Designated Officer as its chairperson and representatives, not below the rank of Joint Secretary in Ministries of Law and Justice, Home Affairs. Information and Broadcasting and the Indian Computer Emergency Response Team appointed under sub-section (1) of section 70B of the Act.
Examination of request.— (1) On receipt of request under rule 6, the Designated Officer shall make all reasonable efforts to identify the person or intermediary who has hosted the information or part thereof as well as the computer resource on which such information or part thereof is being hosted and where he is able to identify such person or intermediary and the computer resource hosting the informalion or part thereof which have been requested to be blocked for public access, he shall issue a notice by way of letters or fax or e-mail signed with electronic signatures to such person or intermediary in control of such computer resource to appear and submit their reply and clarifications, if any, before the committee referred to in rule 7, at a specified date and time, which shall not be less than forty-eight hours from the time of receipt of such notice by such person or intermediary.
(2) In case of non-appearance of such person or intermediary, who has been served with the notice under sub-rule (I), before the committee on such specified date and time, the committee shall give specific recommendation in writing with respect to the request received from the Nodal Officer, based on the information available with the committee.
(3) In case, such a person or intermediary, who has been served with the notice under sub-rule (1), is a foreign entity or body corporate as identified by the Designated Officer, notice shall be sent by way of letters or fax or e-mail signed with electronic signatures to such foreign entity or body corporate and any such foreign entity or body corporate shall respond to such a notice within the time specified therein, failing which the committee shall give specific recommendation in writing with respect to the request received from the Nodal Officer, based on the information available with the committee.
(4) The committee referred to in rule 7 shall examine the request and printed sample information and consider whether the request is covered within the scope of sub-section (1) of section 69A of the Act and that it is justifiable to block such information or part thereof and shall give specific recommendation in writing with respect to the request received from the Nodal Officer.
(5) The designated Officer shall submit the recommendation of the committee, in respect of the request for blocking of information along with the details sent by the Nodal Officer to the Secretary in the Department of Information Technology under the Ministry of Communications and Information Technology, Government of India (hereinafter referred to as the "Secretary, Department of Information Technology").
(6) The Designated Officer, on approval of the request by the Secretary, Department of Information Technology, shall direct any agency of the Government or the intermediary to block the offending information generaled, transmitted, received, stored or hosted in their computer resource for public access within time limit specified in the direction:
Provided that in case the request of the Nodal Officer is not approved by the Secretary, Department of Information Technology, the Designated Officer shall convey the same to such Nodal Officer.
Blocking of Information in cases of emergency.— (1) Notwithstanding anything contained in rules 7 and 8, the Designated Officer, in any case of emergency nature, for which no delay is acceptable, shall examine the request and printed sample information and consider whether the request is within the scope of sub-section (1) of section 69A of the Act and it is necessary or expedient and justifiable to block such information or part thereof and submit the request with specific recommendations in writing to Secretary, Department of Information Technology.
(2) In a case of emergency nature, tne Secretary. Department of Information Technology may, if he is satisfied that it is necessary or expedent and justifiable for blocking for public access of any information or part thereof through any computer resource and after recording reasons in writing as an interim measure issue such directions as he may consider necessary to such identified or identifiable persons or intermediary in control of such computer resource hosting such information or part thereof without giving him an opportunity of hearing.
(3) The Designated Officer, at ihe earliest but not later than forty-eight hours of issue of direction under sub-rule 2, shall bring the request before the committee referred to in rule 7 for its consideration and recommendation.
(4) On receipt of recommendations of committee, Secretary, Department of Information Technology, shall pass the final order as regard to approval of such request and in case the request for blocking is not approved by the Secretary. Department of Information Technology in his final order, the interim direction issued under sub-rule (2) shall be revoked and the person or intermediary in control of such information shall be accordingly directed to unblock the information for public access.
Process of order of court for blocking of Information — In case of an order from a competent court in India for blocking of any information or part thereof generated, transmitted, received, stored or hosted in a computer resource, the Designated Officer shall, immediately on receipt of certified copy of the court order, submit it to the Secretary, Department of Information Technology and initiate action as directed by the court.
Expeditious disposal of request - The request received from the Nodal Officer shall be decided expeditiously which in no case shall be more than seven working days from the date of receipt of the request.
Action for non-compliance of direction by Intermediary — In case the intermediary fails to comply with the direction issued to him under rule 9, the Designated Officer shall, with the prior approval of the Secretary, Department of Information Technology, initiate appropriate action as may be required to comply with the provisions of sub-section (3) of section 69A of the Act.
Intermediary to designate one person to receive and handle directions — (1) Every intermediary shall designate at least one person to receive and handle the directions for blocking of access by the public any information generated, transmitted, received, stored or hosted in any computer resource under these rules.
(2) The designated person of the intermediary shall acknowledge receipt of the directions to the Designated Officer within two hours on receipt of the direction through acknowledgement letter or fax or e-mail signed with electronic signature.
Meeting of Review Commlttee — The Review Committee shall meet at least once in two months and record its findings whether the directions issued under these rules are in accordance with the provisions of sub-seclion (1) of section 69A of the Act and if is of the opinion that the directions are not in accordance with the provisions referred above, it may set aside the directions and issue order for unblocking of said information generated, transmitted, received, stored or hosted in a computer resource for public access.
Maintenance of records by Designated Officer — The Designated Officer shall maintain complete record of the request received and action taken thereof, in electronic database and also in register of the cases of blocking for public access of the information generated, transmitted, received, stored or hosted in a computer resource.
Requests and complaints to be confidential — Strict confidentiality shall be maintained regarding all the requests and complaints received and actions taken thereof.

FORM
(See rule 6(2))

A. Complaint

Name of the complainant: --_________________________________________________________________
(Person who has sent the complaint to the Ministry/Department/State Govt./Nodal Officer)
Address: ________________________________________________________________________________
________________________________________________________________________________
City: ______________________________ Pin Code: __________________
Telephone: ________________________ (prefix STD code)
Fax (if any): _______________________
Mobile (if any): ______________________
Email (if any): __________________________________

B. Details of website/computer resource/intermediary/offending information hosted on the website
(Please give details wherever known)
URL / web address: ____________________________________
IP Address: _______________________________________
Hyperlink: ________________________________________
Server/Proxy Server address: ________________________________________
Name of the Intermediary: _________________________________________
URL of the Intermediary: __________________________________________
(Please attach screenshot/printout of the offending information)
Address or location of intermediary in case the intermediary is telecom service provider, network service provider, internet service provider, web-hosting service provider and cyber cafe or other form of intermediary for which information under points (7), (8), (9), (10), (11) and (12) are not available.
___________________________________________________________
___________________________________________________________
___________________________________________________________
C. Details of Request for blocking
Recommendations/Comments of the Ministry/State Govt: ________________________
________________________________________________________________________
________________________________________________________________________
The level at which the comments/recommendation have been approved
(Please specify designation) ________________________________________________
Have the complaint been examined in Ministry / State Government: Y/N
If yes, under which of the following reasons it falls (please tick):
(i) Interest of sovereignty or integrity of India
(ii) Defence of India
(iii) Security of the State
(iv) Friendly relations with foreign states
(v) Public order
(vi) For preventing incitement to the commission of any cognisable offence relating to above
D. Details of the Nodal Officer, forwarding the complaint along with recommendation of the Ministry/State Govt. and related enclosures
Name of the Nodal Officer: ___________________________________________
Designation: ______________________________________________________
Organisation: _____________________________________________________
Address: ________________________________________________ _________

__________________________________________________________

City: __________________________ Pin Code: _________________
Telephone: ___________________________ (prefix STD code)
Fax (if any) _____________________
Mobile (if any) ______________________
Email (if any): ___________________________
E: Any other information:
F: Enclosures:

1.

2.

3.

Date Place Signature

[No. 9(16)J2004-EC]
N. RAVI SHANKER, Jt. Secy

3855GI/09-5

For more details visit https://cis-india.org/internet-governance/resources/reply-to-rti-application-on-blocking-of-website-and-rule-419a-of-indian-telegraph-rules-1951

Religious pluralism and freedom of expression in India, Europe and other countries

praskrishna — 2013-11-08T05:54:06Z

The Venice-Delhi Seminars are Reset-Dialogues on Civilizations project, in cooperation with the Jamia Millia Islamia, Seminar and the India Habitat Centre is organizing this event from October 10 to 12, 2013. Chinmayi Arun will be speaking at this event.

Click to read the full details published by Reset DOC on October 10, 2013.

This year, the Rome-based international association Reset-Dialogues on Civilizations will continue promoting dialogue between cultures and the culture of dialogue, reciprocal awareness between East and West and valorising the cultural, religious and political differences in a globalized world.

The schedule for autumn 2013 is as follows; the next Venice-Delhi Seminars will take place from October 10 to 12 in Delhi with the participation of the Indian magazine Seminar, and Jamia Millia Islamia, the Islamic University of Delhi and the India Habitat Centre. After the first meeting in the Indian capital in October 2010 on the subject “Minorities and Pluralism” (see Seminar 621, 2011) and a second meeting in Venice at the Giorgio Cini Foundation from October 18 to 20, 2012, dedicated to “Cultural differences in times of economic turbulence. Social tensions, cultural conflicts and policies of integration in Europe and India”, the Venice-Delhi Seminars have become a regular event, with one being held in Venice and the next in Delhi.

Pluralism

The project’s general framework is religious and cultural pluralism, seen through the perspective analysis of social and political processes and exchanges between East and West. Every encounter is an opportunity to deepen political, social and economic trends that run through society, like India’s and, increasingly, European society, where cultural, ethnic and political differences coexist and interact. Each meeting consists of five sessions lasting three days and papers presented by by experts and academics from all over the world attending roundtable discussions dedicated to the analysis of policies relating to minorities and the global challenge of the multi-ethnic composition of our societies.

The proceedings and more articles from our 2012 edition in Venice, Italy, are published in the September 2013 issue of Seminar magazine. You can visit its website here: www.india-seminar.com

10-12 October 2013 – Third Venice-Delhi Seminars
Coexistence and mutual respect, rights to be protected, freedom of speech and freedom of worship, blasphemy, the ethics of responsibility

The third Venice-Delhi Seminars will take place from October 10 to 12, 2013 in Delhi and will be dedicated to three days of study on the subject “Religious Pluralism and Freedom of Expression in India and Europe: Coexistence and Mutual Respect, Rights to Protect, Freedom of Speech and Freedom of Worship, Blasphemy, Ethics of Responsibility”. The objective of this second round of the “Plural Future” project will be to critically examine the growing tension between the democratic need to protect differences and the right to freedom of expression and the vital need for modern democracies to guarantee peaceful coexistence between majorities and minorities, as well as freedom of worship in conditions of cultural and religious pluralism protected from the extremist excesses of demands based on ethnicity and identity. We will therefore also analyze the public visibility of radical and extremist tendencies from the United States to Europe, to Muslim-majority countries and India.

Analysis will take place from a perspective paying particular attention to the manner in which this wave of violent opposition to dialogue and cultural differences challenges liberal democratic order, tested by a new need to implement rights and respect of minorities. Specific importance will be attributed to conditions experienced by Muslim and Christian minorities. The subject of respect between communities and the rights of minorities will be analyzed also in the European context. European, Indian and American scholars will attend.

Particular attention will paid to the media in this 2013 edition, and its role in portraying cultural and religious differences as well as its capacity to encourage or prevent the development of peaceful co-existence and an acceptance of differences in conditions of cultural, religious and ethnic pluralism.

The Reset-Dialogues on Civilizations project has been organised also so as to involve a large number of students, graduates and doctoral students.

For more details visit https://cis-india.org/news/resetdoc-october-10-2013-religious-pluralism-and-freedom-of-expression-in-india-europe-other-countries

Regulating the Internet by fiat

praskrishna — 2012-08-26T10:13:03Z

The Union government’s move to ban or block 310 online entities is worrisome.

This article by V Sridhar was published in the Hindu on August 26, 2012. Pranesh Prakash is quoted.

The unprecedented spike in the velocity of hateful, offensive and blatantly communal online content earlier this month, which reinforced rumour mongering on the ground that resulted in the exodus of people from the northeast from several Indian cities has been a classic example of how new technologies can be harnessed for old vices. But just as disturbing has been the manner in which the government yielded to the old itch of censoring, banning or blocking content. Between August 18 and August 21, the Department of Telecommunications (DoT), in four separate directives issued to all Internet service licensees, asked them to “block access” to a total of 310 URLs (Unique Resource Locators).

Directing ISPs

The number of URLs blocked does not quite convey the extent of the banned content because the list includes instances of entire websites, a single Web page in some cases, videos posted on YouTube, Twitter handles, Facebook entries, or even instances of links that would take the browser to an img tag (an individual image that is linked to an HTML page). Although the directives clearly stated that the service providers should block only the specific URLs leading to the main sites such as YouTube, Facebook or Twitter.

Airtel, the leading telecom and Internet service provider, blocked youtu.be, the short URL that Twitter and Facebook users normally use for sharing images and videos. A perusal of the four orders clearly shows that Airtel overreacted. Although the service provider subsequently corrected the error, worries about arbitrary disruptions remain.

Pranesh Prakash, Programme Manager, Centre for Internet and Society (CIS), who did the first analysis of the resources that were pulled out of the Web, said the list was only partial, because they related only to the URLs that ISPs were asked to block, not what action would have been initiated against those offering Web services.

A ragtag list

Net activists, even those who do not have an absolutist notion of the right to free speech, have expressed deep reservations about the manner in which the government has blocked 310 URLs. Although Mr. Prakash, who is also a lawyer, believes that “temporary curbs” of freedom of expression, in situations such as the unprecedented situation earlier this month may be necessary, he argued that the government acted carelessly and in a kneejerk manner. “It is a ragtag list, prepared in a haphazard manner,” he told The Hindu.

Logically, the rules applicable to hate content ought to be the same whether the offence is in print or whether it appears as online content. Mr. Prakash pointed to the fact that official agencies such as the police have not gone after those responsible for the content posted in the blocked URLs, which shows that the government’s approach is not backed by a resolve to bring to book those responsible for spreading hate.

The ban-first, examine-later approach is wrong for three sets of reasons, argued Mr. Prakash. First, because there are what he characterises as “egregious mistakes”. Second, he doubts whether regulations prescribing due process of enforcing and reviewing the ban were indeed followed. Third, the government ought to have acted smarter, by using the same media to debunk the rumours that were swirling in several Indian cities but also in the northeast. Mr. Prakash pointed to the case of a Canadian intern working at the CIS who received an SMS from a Canadian government agency that asked her not to heed the rumours. Although the Bangalore police did issue an SMS asking people not to heed such rumours, it came well after the rumour mongering had passed its peak.

“I generally believe that the government must exercise utmost caution in censoring,” said Mr. Prakash. He pointed out that in the list were sites and people who had done nothing to promote hate. He refered to the case of Amit Paranjpe, whose twitter handles were blocked. “If you go through his timeline, you will not find anything that is communal at all,” Mr. Prakash says. “I do not think the government acted responsibly by going after material that is not directly inflammatory, or contributes to the state of panic,” he argued. “I do not doubt the motives of the government, because I see that the overwhelming majority of the material it has blocked is stuff that has something to do with communalism or rioting, whether it is as reportage or as material that contributes to tension,” he observed. He also did not think the government used the crisis as an excuse to put down politically dissenting voices, which was what happened last October (critical references to Sonia Gandhi were removed then).

Cyber terror?

Significantly, the list of blocked domains did not match the government’s claim that a lot of the hate content were in the form of images with misleading captions, most of which came from Pakistan. Mr. Prakash pointed out that many of these images had “been floating around” in Pakistan for at least a month before the rumours hit their peak in mid-August. He noted that within Pakistan there had been debates about the authenticity of these images. “In fact, the reportage and the countering of the reportage in the Pakistani media has been much more sophisticated than in India,” he observed. Significantly, the debate was not even targeted at the Indian audience, but to Pakistani or a global audience. “This debunks the notion some sections of the media have propagated, that this is about cyber war or cyber terrorism,” he says. “I have not seen evidence that India has been targeted from Pakistan,” he observed.

Lack of transparency

It has also been done without abiding by the procedures that are clearly laid down. Mr. Prakash pointed out, the provisions of the Information Technology Act require that “persons or intermediaries” blocked ought to have been given an opportunity to explain their position within 48 hours. He doubted that this had been followed. Moreover, he argued that the people or companies hosting the offensive content, not the ISPs, ought to have been asked to remove them. After all, most of the large and popular intermediaries have clearly laid down conditions of usage, he said.

The lack of transparency in the manner in which the government blocked these websites — even if it is accepted that the content was hateful, abhorrent and aimed at stirring social tension — is worrisome because it sets a precedent for unchecked use of power, without proper sanction. Nor was it a smart way of addressing an innovatively virulent way of spreading chaos. While the government’s use of the sledgehammer may have got it out of the immediate crisis it found itself in, it may have fewer friends when faced with a similar outbreak later.

For more details visit https://cis-india.org/news/www-the-hindu-aug-26-v-sridhar-regulating-the-internet-by-fiat

Regulating Social Media: Unrealistic, Impossible, Necessary?

praskrishna — 2013-04-30T16:50:13Z

The Press Council of India Chairperson Justice Markandey Katju calls for regulating social media, saying it will prevent offensive material coming into the public domain. But is it really necessary to regulate the social media? If yes, is it possible to do it?

This was published by NDTV on April 11, 2013.

NDTV aired a discussion by Ashwin S Kumar, Co-editor, Columnist, The Unreal Times; Kunal Majumder, Assitant Editor, Tehelka.com and Pranesh Prakash, Policy Director, Centre for Internet and Society on April 11, 2013 in response to Justice Katju's comments on bringing 'social media' under the Press Council of India.

Pranesh Prakash laid out four brief points:

'Social media' allows coffee house discussion and toilet wall scrawls to seem like print publications, but it's a mistake to treat it the same way we do print publications. The UK is now planning on using prosecutorial flexibility to refrain from prosecuting simple offensive speech on social media.
The same laws should apply online as they do offline (but how the apply, can differ), and that is currently the case. Most content-related offences in the IPC, etc., are offences online as well as offline.
Editors and journalists exist for most print publications and broadcast programmes, while that isn't true for most 'social media'. So guidelines applicable to the press mostly won't be applicable online.
Electronic publications (like Medianama, The Daily Dish, Huffington Post) which consider themselves engaged in a journalistic venture present a special problem that we do need to have a public conversation about.

Video

For more details visit https://cis-india.org/news/ndtv-video-april-11-2013-the-social-network-regulating-social-media-unrealistic-impossible-necessary

Regulating Sexist Online Harassment: A Model of Online Harassment as a Form of Censorship

amber — 2021-05-31T09:39:14Z

For more details visit https://cis-india.org/internet-governance/files/it-for-change-february-2021-amber-sinha-regulating-sexist-online-harassment.pdf

Regulating Sexist Online Harassment as a Form of Censorship

amber — 2021-05-31T09:56:31Z

This paper is part of a series under IT for Change’s project, Recognize, Resist, Remedy: Combating Sexist Hate Speech Online. The series, titled Rethinking Legal-Institutional Approaches to Sexist Hate Speech in India, aims to create a space for civil society actors to proactively engage in the remaking of online governance, bringing together inputs from legal scholars, practitioners, and activists. The papers reflect upon the issue of online sexism and misogyny, proposing recommendations for appropriate legal-institutional responses. The series is funded by EdelGive Foundation, India and International Development Research Centre, Canada.

Introduction

The proliferation of internet use was expected to facilitate greater online participation of women and other marginalised groups. However, over the past few years, as more and more people have come online, it is evident that social power in online spaces mirrors offline hierarchies. While identity and security thefts may be universal experiences, women and the LGBTQ+ community continue to face barriers to safety that men often do not, aside from structural barriers to access. Sexist harassment pervades the online experience of women, be it on dating sites, online forums, or social media.

In her book, Twitter and Tear Gas: The Power and Fragility of Networked Protest, Zeynep Tufekci argues that the nature and impact of censorship on social media are very different. Earlier, censorship was enacted by restricting speech. But now, it also works in the form of organised harassment campaigns, which use the qualities of viral outrage to impose a disproportionate cost on the very act of speaking out. Therefore, censorship plays out not merely in the form of the removal of speech but through disinformation and hate speech campaigns.

In most cases, this censorship of content does not necessarily meet the threshold of hate speech, and free speech advocates have traditionally argued for counter speech as the most effective response to such speech acts. However, the structural and organised nature of harassment and extreme speech often renders counter speech ineffective. This paper will explore the nature of online sexist hate and extreme speech as a mode of censorship. Online sexualised harassment takes various forms including doxxing, cyberbullying, stalking, identity theft, incitement to violence, etc. While there are some regulatory mechanisms – either in law, or in the form of community guidelines that address them, this paper argues for the need to evolve a composite framework that looks at the impact of such censorious acts on online speech and regulatory strategies to address them.

Click on to read the full text [PDF; 495 Kb]

For more details visit https://cis-india.org/internet-governance/blog/it-for-change-amber-sinha-regulating-sexist-online-harassment

Rebuttal of DIT's Misleading Statements on New Internet Rules

pranesh — 2012-07-11T13:18:04Z

The press statement issued on May 11 by the Department of Information Technology (DIT) on the furore over the newly-issued rules on 'intermediary due diligence' is misleading and is, in places, plainly false. We are presenting a point-by-point rebuttal of the DIT's claims.

In its press release on Wednesday, May 11, 2011, the DIT stated:

The attention of Government has been drawn to news items in a section of media on certain aspects of the Rules notified under Section 79 pertaining to liability of intermediaries under the Information Technology Act, 2000. These items have raised two broad issues. One is that words used in Rules for objectionable content are broad and could be interpreted subjectively. Secondly, there is an apprehension that the Rules enable the Government to regulate content in a highly subjective and possibly arbitrary manner.

There are actually more issues than merely "subjective interpretation" and "arbitrary governmental regulation".

The Indian Constitution limits how much the government can regulate citizens’ fundamental right to freedom of speech and expression. Any measure afoul of the constitution is invalid.
Several portions of the rules are beyond the limited powers that Parliament had granted the Department of IT to create interpretive rules under the Information Technology Act. Parliament directed the Government to merely define what “due diligence” requirements an intermediary would have to follow in order to claim the qualified protection against liability that Section 79 of the Information Technology Act provides; these current rules have gone dangerously far beyond that, by framing rules that insist that intermediaries, without investigation, has to remove content within 36-hours of receipt of a complaint, keep records of a users' details and provide them to law enforcement officials.

The Department of Information Technology (DIT), Ministry of Communications & IT has clarified that the Intermediaries Guidelines Rules, 2011 prescribe that due diligence need to be observed by the Intermediaries to enjoy exemption from liability for hosting any third party information under Section 79 of the Information Technology Act, 2000. These due diligence practices are the best practices followed internationally by well-known mega corporations operating on the Internet. The terms specified in the Rules are in accordance with the terms used by most of the Intermediaries as part of their existing practices, policies and terms of service which they have published on their website.

We are not aware of any country that actually goes to the extent of deciding what Internet-wide ‘best practices’ are and actually converting those ‘best practices’ into law by prescribing a universal terms of service that all Internet services, websites, and products should enforce.
The Rules require all intermediaries to include the government-prescribed terms in an agreement, no matter what services they provide. It is one thing for a company to choose the terms of its terms of service agreement, and completely another for the government to dictate those terms of service. As long as the terms of service of an intermediary are not unlawful or bring up issues of users’ rights (such as the right to privacy), there is no reason for the government to jump in and dictate what the terms of service should or should not be.
The DIT has not offered any proof to back up its assertion that 'most' intermediaries already have such terms. Google, a ‘mega corporation’ which is an intermediary, does not have such an overarching policy. Indiatimes, another ‘mega corporation’ intermediary, does not either. Just because a company like Rediff and Blizzard's World of Warcraft have some of those terms does not mean a) that they should have all of those terms, nor that b) everyone else should as well.

In attempting to take different terms of service from different Internet services and products—the very fact of which indicate the differing needs felt across varying online communities—the Department has put in place a one-size-fits-all approach. How can this be possible on the Internet, when we wouldn't regulate the post-office and a book publisher under the same rules of liability for, say, defamatory speech.
There is also a significant difference between the effect of those terms of service and that of these Rules. An intermediary-framed terms of service suggest that the intermediary may investigate and boot someone off a service for violation, while the Rules insist that the intermediary simply has to mandatorily remove content, keep records of users' details and provide them to law enforcement officials, else be subject to crippling legal liability.

So to equate the effect of these Rules to merely following ‘existing practices’ is plainly wrong. An intermediary—like the CIS website—should have the freedom to choose not to have terms of service agreements. We now don’t.“In case any issue arises concerning the interpretation of the terms used by the Intermediary, which is not agreed to by the user or affected person, the same can only be adjudicated by a Court of Law. The Government or any of its agencies have no power to intervene or even interpret. DIT has reiterated that there is no intention of the Government to acquire regulatory jurisdiction over content under these Rules. It has categorically said that these rules do not provide for any regulation or control of content by the Government.”

The Rules are based on the presumption that all complaints (and resultant mandatory taking down of the content) are correct, and that the incorrectness of the take-downs can be disputed in court. Why not just invert that, and presume that all complaints need to be proven first, and the correctness of the complaints (instead of the take-downs) be disputed in court?

Indeed, the courts have insisted that presumption of validity is the only constitutional way of dealing with speech. (See, for instance, Karthikeyan R. v. Union of India, a 2010 Madras High Court judgment.)

Further, only constitutional courts (namely High Courts and the Supreme Court) can go into the question of the validity of a law. Other courts have to apply the law, even if it the judge believes it is constitutionally invalid. So, most courts will be forced to apply this law of highly questionable constitutionality until a High Court or the Supreme Court strikes it down.

What the Department has in fact done is to explicitly open up the floodgates for increased liability claims and litigation - which runs exactly counter to the purpose behind the amendment of Section 79 by Parliament in 2008.

“The Government adopted a very transparent process for formulation of the Rules under the Information Technology Act. The draft Rules were published on the Department of Information Technology website for comments and were widely covered by the media. None of the Industry Associations and other stakeholders objected to the formulation which is now being cited in some section of media.”

This is a blatant lie.

Civil society voices, including CIS, Software Freedom Law Centre, and individual experts (such as the lawyer and published author Apar Gupta) sent in comments. Companies such as Google, E2E Networks, and others had apparently raised concerns as well. The press has published many a cautionary note, including editorials, op-ed and articles in the Hindu, the Hoot, Medianama.com, and Kafila.com, well before the new rules were notified. We at CIS even received a 'read notification' from the email account of the Group Coordinator of the DIT’s Cyber Laws Division—Dr. Gulshan Rai—on Thursday, March 3, 2011 at 12:04 PM (we had sent the mail to Dr. Rai on Monday, February 28, 2011). We never received any acknowledgement, though, not even after we made an express request for acknowledgement (and an offer to meet them in person to explain our concerns) on Tuesday, April 5, 2011 in an e-mail sent to Mr. Prafulla Kumar and Dr. Gulshan Rai of DIT.

The process can hardly be called 'transparent' when the replies received from 'industry associations and other stakeholders' have not been made public by the DIT. Those comments which are public all indicate that serious concerns were raised as to the constitutionality of the Rules.

The Government has been forward looking to create a conducive environment for the Internet medium to catapult itself onto a different plane with the evolution of the Internet. The Government remains fully committed to freedom of speech and expression and the citizen’s rights in this regard.

The DIT has limited this statement to the rules on intermediary due diligence, and has not spoken about the controversial new rules that stifle cybercafes, and restrict users' privacy and freedom to receive information.

If the government is serious about creating a conducive environment for innovation, privacy and free expression on the Internet, then it wouldn’t be passing Rules that curb down on them, and it definitely will not be doing so in such a non-transparent fashion.

For more details visit https://cis-india.org/internet-governance/blog/rebuttal-dit-press-release-intermediaries

Re:publica 2014: Looking for Freedom

praskrishna — 2014-06-04T05:37:57Z

Re:publica in partnership with DAIMLER, Global Innovation Gathering, Microsoft and Science:Lab organized this conference at Berlin from May 6 to 8, 2014.

Pranesh Prakash was a speaker at the session "The Architecture of Invisible Censorship: How Digital and Meatspace Censorship Differ". Click to read the full list of speakers here.

For more details visit https://cis-india.org/news/re-publica-2014-looking-for-freedom