Centre for Internet and Society

Why Geospatial Bill is draconian and how it will hurt startups

praskrishna — 2016-07-02T04:57:35Z

Last week, the Indian government rejected Google’s plans to map Indian cities, tourist spots and mountain ranges, using the 360-degree panoramic Google Street View feature.

The article was published in Indian Express on June 13, 2016

Last week, the Indian government rejected Google’s plans to map Indian cities, tourist spots and mountain ranges, using the 360-degree panoramic Google Street View feature. The government officials cited “national security” as a reason for not granting permission to Google. It is expected that the Google’s Street View permission would be relooked at, once the draft Geospatial Information Regulation Bill, 2016, is enforced as law. Many however feel that this draft bill is draconian and will have serious repercussions on the startup ecosystem.

The Geospatial Bill seeks to make creating, accessing and distribution or sharing of map related information, illegal and that every company will have to take prior permission and license from the government for the same. Wayback in 2011, Google had announced the introduction of Street View for Bangalore, on Google Maps. But the project ran into trouble with Bangalore Police stopping Street View cars from plying in the city, citing security reasons.

Google Street View, launched in 2007, is popular in San Francisco, Las Vegas, Denver, New York and Miami, which allows users to navigate virtual streets from photographs gathered from directional cameras on special vehicles. While the service has been hugely successful it has caused problems of privacy in some countries.

In 2010 almost 250,000 Germans told Google to blur pictures of their homes on the Street View service, while Czech government also banned Google from taking any new photos for the service. In Switzerland, the matter went to the court and it was accepted that Google would be obliged to pixelate 99% of images to blur faces, vehicle registrations and that it would not be filming certain sensitive places such as schools, prisons and shelter homes.

This adds to the list of recent controversies on Google Earth, and the draft Geospatial Information Regulation Bill, on adoption of mapping technology in India. Commenting on the development, Sumandro Chattapadhyay, research director at the Centre for Internet and Society said, the key country where the Google Street View faced legal challenge, and was fined too, is Germany. This legal challenge, however, was not based on the concern for national security but on that for the privacy of the citizens. However, it was eventually allowed to roll out Street View in Germany provided that it asks for consent from the house owners before images of any house.”

“One of the crucial concerns with the draft Geospatial Information Regulation Bill remains its vast scope of application. Not only initiatives like Google Street View may be regulated under it (for capturing geo-referenced imagery from the street level) but absolutely any mobile application that requires the user’s geo-location (either automatically detected, or manually entered by the user) would be within the purview of this Bill. This evidently creates a great pressure upon the entire ICT-enable product and service sector in India,” Chattapadhyay added.

This would mean that, any company, particularly the new age startups, those in the food tech, fintech and e-commerce space, which uses geo-location to identify the customer location to either deliver goods, food products, or the likes of Ola and Uber which uses maps to pickup and drop customers, will have to obtain license from the government.

Raman Shukla, director—strategy and product, Medikoe, said, “At Medikoe we are helping users to locate the nearest healthcare service provider with the available technologies. Google Maps is one of key feature our company banks on. Though we understand the country’s security concerns, the draft bill, if implemented, would be a violation of independent internet. We believe that a much better solution can be identified to solve security concerns.”

Venu Kondur, founder of LOBB, the online truck booking platform said, “Geostatial data is a very important data for our business. Customers booking truck through LOBB platform get real-time track & trace facility. Our customers rely heavily on this data for their day-day activity. Startups like us depend largely on maps data for real-time tracking of consignment. Lot of our business intelligence data is drawn out of it.”

In case, if the draft gets implemented, many startups will be forced to change the business model and while it will also increase the product delivery time. A group of 15 volunteers created a SaveTheMap.in portal to educate the readers about the draft bill and also give complete information on how the bill have an impact on the citizen and users of certain application. Sajjad Anwar one of the volunteer, said, through the portal about 1700 mails have been sent to the ministry of home affairs airing their view on why they do not support the draft Bill.

Comparing with other countries, Chattapadhyay further said, “At first, other countries deal with the question of display of security establishments in publicly available maps through direct interactions with large mapping companies, and does not turn this into a financial and political burden for the entire economy. Secondly, it is the concern about privacy of the citizens that should frame the Indian government’s response to products and services like Google Street View, and not concerns regarding national security.”

What the draft bill says

No person shall, in any manner, make use of, disseminate, publish or distribute any geospatial information of India, outside India, without prior permission from the security vetting authority under the Central government.

Penalty

Whoever acquires any geospatial information of India in contravention to the rules, shall be punished with a fine ranging from Rs 1 crore to Rs 100 crore and /or imprisonment for a period upto seven years.

Application for license

Every person who has already acquired any geospatial imagery or data of any part of India either through space or aerial platforms such as satellite, aircrafts, airships, balloons, unmanned aerial vehicles or terrestrial vehicles shall within one year from the commencement of this Act, make an application along with requisite fees to the security vetting authority.

For more details visit https://cis-india.org/internet-governance/news/financial-express-prabhu-mallikarjunan-june-13-2016-why-geospatial-bill-is-draconian-and-how-it-will-hurt-startups

When #GOIBlocks, twitterati fly off their ‘handles’

praskrishna — 2012-08-26T05:56:19Z

Ever since the news broke mid-week that some genuine Twitter accounts and six spoof accounts were blocked, the social networking platform has been in a tizzy.

Published in the Hindustan Times on August 26, 2012. Pranesh Prakash is quoted.

Hashtags like #GOIblocks and variations on the same theme began “trending” and the twitterati, functioning like a virtual democracy, have been bombarding the world in real time with posts about the issue. 16 accounts of the 15 million twitter users in India, among them those of a few journalists, spoof accounts like @PM0India, a right-wing parody of @PMOIndia, the official twitter account of the Prime Minister’s office, and a few anonymous accounts like Barbarian Indian (@barbarindian) and Dosabandit (@dosabandit) were blocked.

While Narendra Modi turned his twitter display picture black in solidarity with the idea of freedom of speech (and was promptly termed a hypocrite with many like @JagPaws, who has 641 followers, tweeting, “Whoa!! Is he supporting Jihadi sites?”), Pankaj Pachauri, (49,827 followers) Communications Adviser to the Prime Minister’s office, has put up twitter rules and the National Security Advisor Shivshankar Menon’s ominously pro-surveillance keynote address at the release of the IDSA report on “India’s Cyber Security Challenge”.

Many like Nitin Pai @acorn, with 16,988 followers, founder of Takshashila Institute, a public policy think tank, tweeted that “under extraordinary circumstances, the govt must do whatever it can under the constitution to prevent loss of life” and added that targeted and temporary blocks of sites, facebook pages and twitter handles that spewed hate were acceptable. Others like film maker Harini Calamur (@calamur) (11,277 followers) who says she is against censorship tweeted that “Blocking internet handles & sites is silly” and “the Govt’s job is to uphold the constitution & protect our fundamental rights. Not make value judgements.” Much of the debate has led to a genuine exchange, sometimes making comrades of people from opposing camps. Kanchan Gupta, a journalist known for his pro-Hindutva views, whose twitter handle @KanchanGupta (26,424 followers) was among those blocked, accepted on TV that scores of “people from all communities” many of whom “disagreed violently” with him had extended their support on twitter.

Others like writer Shivam Vij (@Dilidurast), who has 3,296 followers, whom Hindutvawadis has often branded ‘pseudo sickular’, surprised baiters by speaking against the ban.

Many were strident in their criticism of the arbitrary nature of the blocks and tweeted that it was indicative of authoritarianism. “Internet blocks in India have been increasing in frequency&intensity. I wouldn't put this down to knee-jerk/foolishness.There is *intent*,” tweeted Nikhil Pahwa (@nixxin), founder and editor of @medianama. Others like business journalist Samidha Sharma @samidhas worried that the government’s frequent attacks on freedom of expression shows that it is “following china in all the wrong things”.

While Pranesh Prakash (@pranesh_prakash) of the Centre for Internet and Society tweeted, “They've blocked sites from all parts of the spectrum: Muslim right-wing, Hindu right-wing, neutral news sites, etc. No politics”, many others saw the move as a “self-serving” one. “Dear GoI: why not be honest enough to say that this web censorship has NOTHING to do with security+ all to do with your own arrogance” tweeted Sunny Singh (@sunnysingh_nw3).

For more details visit https://cis-india.org/news/www-hindustan-times-aug-26-2012-when-goi-blocks-twitterati-fly-off-their-handles

What the experts said on live chat

praskrishna — 2015-03-26T02:35:49Z

Three eminent panellists shared their views and answered questions from readers on the Supreme Court verdict striking down Section 66 A of the IT Act that allowed the arrest of people posting “offensive content” on the Internet, in a live chat hosted by The Hindu.

The article was published in the Hindu on March 25, 2015. Geetha Hariharan was one of the panelists.

Does this now mean anything goes on the Internet, asked one reader.

“No, the standard penal laws — against defamation, hate speech (S. 153A), religious incitement (S. 295A) — continue to apply,” said Gautam Bhatia, a practicing lawyer and author of forthcoming book “Offend, shock or disturb: Free Speech under the Constitution.” The argument that the Internet needed separate rules when it came to the content of speech was what was rejected by the Court, he said.

What was the rationale for the Court upholding Section 69 A, allowing the blocking of websites, asked another.

“One wishes that the court had paid as much attention to the blocking orders as they did to 66A,” said Lawrence Liang, lawyer and researcher at Alternative Law Forum working on free speech.

Geetha Hariharan, a Programme Officer at Centre for Internet and Society, focusing on Internet governance and freedom of expression, was the third expert on the panel.

Click here to read the full transcript of the chat

For more details visit https://cis-india.org/internet-governance/news/the-hindu-march-25-2015-what-the-experts-said-on-live-chat

What lurks beneath the Network

nishant — 2012-08-25T07:10:38Z

There is a series of buzzwords that have become a naturalised part of discussions around digital social media—participation, collaboration, peer-2-peer, mobilisation, etc. Especially in the post Arab Spring world (and our own home-grown Anna Hazare spectacles), there is this increasing belief in the innate possibilities of social media as providing ways by which the world as we know it shall change for the better. Young people are getting on to the streets and demanding their rights to the future.

Nishant Shah's column on the North East exodus and digital networks was published in Down to Earth magazine on August 24, 2012

Citizens are mobilising themselves to overthrow authoritarian governments. Socio-economically disadvantaged people, who have always been an alternative to the mainstream, are finding ways of expressing themselves through collaborative practices. Older boundaries of nation, region and body are quickly collapsing as we all become avatars of our biological selves, occupying futures that were once available only to science fiction heroes.

To this list of very diverse phenomena, I want to add the recent tragic and alarming exodus of people from the north eastern states, from the city of Bengaluru, where I live. There might not be many connections between this state of fear which instigated thousands of people, fearing their safety and security, to leave Bengaluru and return home and the global spectacles of political change that I listed earlier. And yet, there is something about the digital networks, the social web and the ways in which they shape our information societies, that needs to be thought through. In the Arab Spring like events, which are events of global spectacle, there is a certain imagination of digital technologies and its circuits that gets overturned.

These events challenge the idea that digital networks are always outward looking—connecting us to somebody and someplace ‘out there’ in a world that is quickly getting flat—and show how these networks actually create new local and specific communities around information production, consumption and sharing. These networks that connect people in their information practices, often make themselves simultaneously ubiquitous and invisible. So that the interfaces that we operate through—laptops, cellphones and other portable computing devices—become such a part of our everyday life, that we stop noticing them. They are a natural element of our everyday mechanics of urban survival, and in their omnipresence, become invisible.

This invisibility or naturalisation of the digital technologies, often make us forget the intricate and inextricable way in which they are woven into our basic survival strategies. Especially with the younger generation that has ‘grown up digital’, the interface, the gadget and the network is the default space that they turn to for their everyday needs. We develop intimate relationships with these technologised circuits, making them such a part of our quotidian existence that we often forget that these technologies are external to us. Which is why we come across articulations like, “I love my computer because my friends live in it,” or “I feel amputated when you take away my cell-phone”. These are ways in which we naturalise and internalise the digital technologies that we live in and live with. However, in times of crises, we suddenly realise the separation, as the technologies make themselves present, unable to sustain the new conditions of crises. It would be fruitful to see then that the eruption in our seamless connection with the digital technologies is a sign of an external crisis –something that we have seen in the Arab Spring or the Anna Hazare campaign, where these networks became visible to signal towards an external crisis. The emergence of networks into public view is a symptom that there is something that has gone wrong and so we see the separation of the digital ecosystem from its external reality and context.

The unexpected visibility of the network indicates that the regular information ecologies have been disrupted, the contexts which support community interaction at the local level have been changed, and those changes need to be accounted for and addressed in order for the network to become the transparent infrastructure of new urban communities again. In many ways, it resonates with the science fiction logic of the Matrix Trilogy where, if you can see the matrix, it means that something has gone wrong in the fabric of reality and it needs to be fixed.

The exodus of the north eastern people also needs to be examined in this context. In an immigrant city like Bengaluru, the sense of belonging and community is often deeply mediated by the digital ecologies of information sharing. Beneath the veneer of a global city that is to connect with the external world, there is also a huge network of local, specific and invisible practices that do not become a part of the global spectacle of digital technologies, and operate in a condition of relative invisibility. However, when the logic of a migrant city gets disrupted because the conditions of its work force get threatened, these networks go into an overdrive. They become gossip and rumour mills. They become visible and suddenly create conditions of fear, danger and crisis that were unexpected. And so, without a warning, over-night, a huge number of people, who were a part of these networks, decided to abandon their lives and head home, because the larger social, cultural and political threats transmitted through these local networks before they could become global spectacles that we could consume.

A large part of the people fleeing the city had already crowded the trains and left their lives behind, before any attempt at regulation or control could be made. All kinds of post-facto theories about the real or perceived nature of the threat, the actual cases of violence, and the conditions of life in the IT City have emerged since then. However, in all these theories is a recognition that the crisis which led to this phenomenon lingers on and cannot be addressed. There is no particular person to hold responsible. The few scattered incidents of attacks, violence or intimidation have been recognised as strategic and opportunistic interventions by local regressive groups. All in all, we have a condition where something drastic and dramatic has happened and there is no real or material person or group of people who can be blamed for it. And so, instead of addressing the crisis and the conditions which led to the exodus, we have committed an ellipsis, where we have made technology the scape-goat of our problems.

And we have done this repeatedly in the history of technology and crises in India. In the early days, when the notorious Delhi Public School MMS clip that captured two under-age students in sexual activity, became hugely visible, instead of addressing the problem at hand, we eventually set up a committee to regulate the conditions of cultural production and distribution online. During the horrifying bomb-attacks in the trains in Mumbai, we tried to block Blogspot and curtail information online as if technology was the reason that these acts were made possible. Last year, Dr. Sibal’s attempts at establishing a pre-censorship regime on information on the social web, because he encountered material that was disrespectful to the Congress party leader Mrs. Gandhi, sought to regulate the web rather than look at the political discontent and dissent that was being established through those articulations. Because there was no way by which the local situation could be controlled or contained, technology became the only site of regulation, inspiring draconian measures that limit the volume of text messaging and try and censor the web for lingering traces of the information mill that catalysed and facilitated this exodus.

This is a remarkable ellipsis where the actual problem – the conditions of life and safety in our global cities – is hidden under a perceived problem, which is the sudden visibility of a digital information ecosystem which was not apparent to us hitherto. And while there is no denying that at the level of tactics, for immediate fire-fighting this kind of regulation is important, nay, necessary, we also need to realise that at the level of strategy, these kinds of knee-jerk regulatory mechanisms are not a resolution of the problem. These laws and attempts at censorship are neither going to correct what has happened, nor are they going to be potent enough to curb such networked information sharing in the future. They are symbolic tactics that are trying to correct the crisis – the feeling of fear and danger – and in that, they do their job well in establishing some sense of control over the quickly collapsing world. However, we need to look beyond the visibility of this network, and realise that the crisis is not its emergence or its functioning but at something else that lurks behind the facade of the network.

Nishant Shah is director (research), Centre for Internet and Society, Bengaluru

For more details visit https://cis-india.org/internet-governance/down-to-earth-org-nishant-shah-aug-24-2012-what-lurks-beneath-the-network

What Does Facebook's Transparency Report Tell Us About the Indian Government's Record on Free Expression & Privacy?

pranesh — 2015-04-05T05:08:37Z

Given India's online population, the number of user data requests made by the Indian government aren't very high, but the number of content restriction requests are not only high on an absolute number, but even on a per-user basis.

Further, Facebook's data shows that India is more successful at getting Facebook to share user data than France or Germany. Yet, our government complains far more about Facebook's lack of cooperation with Indian authorities than either of those countries do. I think it unfair for any government to raise such complaints unless that government independently shows to its citizens that it is making legally legitimate requests.

Since the Prime Minister of India Shri Narendra Modi has stated that "transparency and accountability are the two cornerstones of any pro-people government", the government ought to publish a transparency report about the requests it makes to Internet companies, and which must, importantly, provide details about how many user data requests actually ended up being used in a criminal case before a court, as well as details of all their content removal requests and the laws under which each request was made.

At the same time, Facebook's Global Government Requests Report implicitly showcases governments as the main causes of censorship and surveillance. This is far from the truth, and it behoves Facebook to also provide more information about private censorship requests that it accedes to, including its blocking of BitTorrent links, it's banning of pseudonymity, and the surveillance it carries out for its advertisers.

For more details visit https://cis-india.org/internet-governance/blog/what-does-facebook-transparency-report-tell-us-about-indian-government-record-on-free-expression-and-privacy

What are People's Rights in Digital World

praskrishna — 2016-01-12T01:51:53Z

Vanya Rakesh participated in this workshop organized by IT for Change on December 4, 2015 in Bangalore.


Above: Participants from the workshop

This workshop by IT for Change to build conceptions of rights with regard to the digital realm based on our tacit formative consciousness about them and undertake such an exercise to draw the first outlines of the social contract that must underpin our pervasively digital existence. IT for Change brought together thought leaders engaged in rights frameworks (including rights activists across domains and digital rights activists) to participate in this preliminary inquiry, to build from scratch a conception of what constitutes an equitable and just digital society, and what individual and collective rights would be commensurate to such a conception.

For more info click here.

For more details visit https://cis-india.org/internet-governance/news/what-are-peoples-rights-in-digital-world

What 66A Judgment Means For Free Speech Online

geetha — 2015-03-27T16:50:43Z

This week India's Supreme Court redefined the boundaries of freedom of speech on the internet. With the Court's decision in Shreya Singhal & Ors. v. Union of India, Section 66A of the Information Technology Act, 2000, has been struck down in entirety and is no longer good law.

Geetha Hariharan's article was originally published in the Huffington Post on March 26, 2015.

This week India's Supreme Court redefined the boundaries of freedom of speech on the internet. With the Court's decision in Shreya Singhal & Ors. v. Union of India, Section 66A of the Information Technology Act, 2000, has been struck down in entirety and is no longer good law. Through a structured, well-reasoned and heartening judgment, the court talks us through the nuances of free speech and valid restrictions. While previously, intermediaries were required to take down content upon suo moto determination of lawfulness, Section 79(3)(b) of the Act -- the intermediary liability provision -- has been read down to require actual knowledge of a court order or a government notification to take down content. Section 69A of the Act and its corresponding Rules, the provisions enabling the blocking of web content, have been left intact by the court, though infirmities persist.

The Supreme Court's decision comes at a critical moment for freedom of speech in India. In recent years, the freedom guaranteed under Article 19(1)(a) of the Constitution has suffered unmitigated misery: Wendy Doniger's The Hindus: An Alternative History was banned for hurting religious sentiments, publisher Orient Blackswan fearing legal action stayed its release of an academic work on sexual violence in Ahmedabad, the author Perumal Murugan faced harsh criticism for his novel One Part Woman and chose to slay his authorial identity.

"The Supreme Court's decision comes at a critical moment for freedom of speech in India. In recent years, the freedom guaranteed under Article 19(1)(a) of the Constitution has suffered unmitigated misery."

The tale of free speech on the Internet is similar. In response to takedown requests, intermediaries prefer to tread a safe path, taking down even legitimate content for fear of triggering penalties under Section 79 of the IT Act. The government has blocked websites in ways that transgress the bounds of 'reasonable restrictions' on speech. Section 66A alone has gathered astounding arrests and controversy. In 2012, Shaheen Dhada and her friend were arrested in Maharashtra for observing that Bal Thackeray's funeral shut down Mumbai, Devu Chodankar in Goa and Syed Waqar in Karnataka were arrested in 2014 for making posts about PM Narendra Modi, and a Puducherry man was arrested for criticizing P. Chidambaram's son. The misuse of Section 66A, and the inadequacy of other provisions of the IT Act, were well-documented.

Section 66A: No longer draconian

In a writ petition filed in 2012, the law student Shreya Singhal challenged the constitutionality of Section 66A on grounds, inter alia, of vagueness and its chilling effect. More petitions were filed challenging other provisions of the IT Act including Section 69A (website blocking) and Section 79 (intermediary liability), and these were heard jointly by justices Rohinton F. Nariman and G. Chelameshwar. Section 66A, implicating grave issues of freedom of speech on the internet, was at the centre of the challenge.

"It is difficult -impossible, in fact - to foresee or predict what speech is permitted or criminalised under Section 66A. As a result, there is a chilling effect on free speech online, resulting in self-censorship."

Section 66A makes it a criminal offence to send any online communication that is "grossly offensive" or "menacing", or false information sent for the purposes of causing "annoyance, inconvenience, insult, injury, obstruction, enmity, hatred, ill will", etc. These terms are not defined. Neither do they fall within one of the eight subjects for limitation under Article 19(2). It is difficult -impossible, in fact - to foresee or predict what speech is permitted or criminalised under Section 66A. As a result, there is a chilling effect on free speech online, resulting in self-censorship.

With yesterday's decision, the Supreme Court has struck down Section 66A on grounds of vagueness, excessive range and chilling effects on speech online. What is perhaps most uplifting is the court's affirmation of the value of free speech. In the midst of rising conservatism towards free speech, the Court reminds us that an "informed citizenry" and a "culture of open dialogue" are crucial to our democracy. Article 19(1)(a) shields us from "occasional tyrannies of governing majorities", and its restriction should be within Constitutional bounds enumerated in Article 19(2).

What speech is protected?

There are three types of speech, the court says: Discussion, advocacy and incitement. Discussion and advocacy are at the heart of Article 19(1)(a), and are unquestionably protected. But when speech amounts to incitement - that is, if it is expected to cause harm, danger or public disorder- it can be reasonably restricted for any of these reasons: public order, sovereignty and integrity of India, security of the State and friendly relations with foreign states.

" The Union of India argued that Section 66A is saved by the clauses "public order", "defamation", "incitement to an offence" and "decency, morality". But as the court finds that these are spurious grounds."

Section 66A, however, does not meet the legal standards for any of the limitation-clauses under Article 19(2), and so is unconstitutional. The Union of India argued that Section 66A is saved by the clauses "public order", "defamation", "incitement to an offence" and "decency, morality". But as the court finds that these are spurious grounds. For instance, Section 66A covers "all information" sent via the Internet, but does not make any reference (express or implied) to public order. Section 66A is not saved by incitement, either. The ingredients of "incitement" are that there must be a "clear tendency to disrupt public order", or an express or implied call to violence or disorder, and Section 66A is remarkably silent on these. By its vague and wide scope, Section 66A may apply to one-on-one online communication or to public posts, and so its applicability is uncertain. For these grounds, Section 66A has been struck down.

For freedom of speech on the internet, this is fantastic news! The unpredictability and threat of Section 66A has been lifted. Political commentary, criticism and dialogue are clearly protected under Article 19(1)(a). Of course, the government is still keen to regulate online speech, but the bounds within which it may do so have been reasserted and fortified.

Section 69A and website blocking

Section 69A empowers the government and its agencies to block websites on any of six grounds: "in the interest of sovereignty and integrity of India, defense of India, security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence relating to above". The blocking procedure is set out in the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009. It requires that a Committee for Examination of Request (CER) examines each blocking request, and gives the content-generator or host 48 hours to make a representation. The Secretary of the Department of Electronics and Information Technology then issues the blocking direction to the intermediary.

"[The court has] failed to consider the impact of Section 69A and its Rules. Our free speech rights as listeners are equally affected when legitimate websites containing information are blocked. Transparency, blockpage notifications and judicial review are essential to determine whether each blocking direction is valid."

Now, the Supreme Court decision has left Section 69A and its Rules intact, stating that it is a "narrowly drawn provision with several safeguards". However, the Court has overlooked some crucial details. For instance, no judicial review is available to test the validity of each blocking direction. Moreover, Rule 14 of the Blocking Rules requires that all blocking requests and directions are kept confidential. This means that neither the content-generator, nor the reader/listener or general public, will have any idea of how many blocking directions have been issued or why. There is no standard blockpage display in India, either, and this further aggravates the transparency problem.

Lamentably, the Supreme Court has not considered this. Though the court has recognised and upheld the rights of viewers, readers and listeners in its decision on Section 66A, it failed to consider the impact of Section 69A and its Rules on readers and listeners. Our free speech rights as listeners are equally affected when legitimate websites containing information are blocked. Transparency, blockpage notifications and judicial review are essential to determine whether each blocking direction is valid.

Section 79 and the intermediary as a judge

Section 79 provides a safe harbour for intermediaries: if they abide by the requirements of Section 79(2), they retain immunity. But under Section 79(3)(b), intermediaries can lose their immunity from prosecution if, after receiving a takedown notice, they do not take down content in three circumstances: (1) if they have actual knowledge that third-party information within their control is being used to commit an unlawful act (i.e., by suo moto deciding the lawfulness of content); (2) if a court order requires takedown of content; (3) if a government notification requires takedown. Rule 3(4) of the Intermediaries Guidelines Rules, 2011 has a similar provision.

"The Supreme Court has wisely put an end to private adjudication of lawfulness. Section 79(3)(b) and Rule 3(4) have been read down to mean that the intermediary must have actual knowledge of a court order or government notification."

This leads to a situation where a private intermediary is responsible for deciding what constitutes lawful content. Previous studies have shown that, when placed in such a position, intermediaries prefer overbroad blocking to escape liability. As readers, we can then only access uncontroversial content. But the freedom of speech includes, as the European Court of Human Rights emphasised in Otto-Preminger Institut, the freedom to "offend, shock and disturb".

In Shreya Singhal, the Supreme Court has wisely put an end to private adjudication of lawfulness. Section 79(3)(b) and Rule 3(4) have been read down to mean that the intermediary must have actual knowledge of a court order or government notification. Even if an intermediary chooses not to act in response to a private takedown notice, it will retain its immunity under Section 79.

With Shreya Singhal, India has reaffirmed its protections for freedom of speech on the internet. One may now freely speak online without fear of illegitimate and unconstitutional prosecution. However, a re-examination of the blocking procedure, with its infirmities and direct impact on speech diversity, is essential. But today, we celebrate!

For more details visit https://cis-india.org/internet-governance/blog/huffington-post-geetha-hariharan-march-26-2015-what-66-a-judgment-means-for-free-speech-online

Webinar on the draft Intermediary Guidelines Amendment Rules

Admin — 2019-01-18T02:13:23Z

CCAOI and the ISOC Delhi Chapter organised a webinar on January 10 to discuss the draft "The Information Technology [Intermediary Guidelines (Amendment) Rules] 2018". Gurshabad Grover was a discussant in the panel.

The agenda of the discussion was:

A brief introduction to the draft highlighting the key issues[Shashank Mishra]
Invited experts sharing their view on the paper and questions asked [Nehaa Chaudhari, Paul Brooks, Arjun Sinha, Gurshabad Grover]
Open Discussion Q&A
Summarizing the session

A recording of the session can be accessed here

For more details visit https://cis-india.org/internet-governance/news/webinar-on-the-draft-intermediary-guidelines-amendment-rules

Watch out for fettered speech

praskrishna — 2012-09-02T09:30:50Z

The constant attempts at censorship in the name of national security should give all right-thinking Indians pause.

This article by Rohit Pradhan was published in the Business Standard on September 1, 2012. Pranesh Prakash is quoted.

It was always predictable. That the Indian government’s war against social media “hate mongers” would turn farcical and begin targeting all and sundry: from random parodies of Prime Minister Manmohan Singh’s Twitter account to prominent journalists like Kanchan Gupta and Shiv Aroor. And then Communication Minister Milind Deora discovered that his own Twitter account had been blocked.

The government blames social media for hosting objectionable content and rumour-mongering that allegedly contributed to the exodus of people of northeastern origin from cities like Bangalore and Hyderabad. Despite its best attempts, the government argues, it was unable to control the mass hysteria and was left with little alternative but to block 300 websites as well as ask Twitter and Facebook to delete “objectionable” content.

It is hardly the first time that social media has been blamed for facilitating riots. The role of BlackBerry’s instant messenger during the London riots of 2011 was constantly highlighted and there was even talk of banning the popular service before saner heads prevailed. Clearly, while rumours and doctored images have always been part of riots, the instantaneous nature of social media and the relative anonymity it affords offer additional challenges.

Nevertheless, the government’s constant attempts at censorship in the name of social harmony and national security should give all right-thinking Indians pause. Four simple reasons.

First, it is astounding how quickly the attention has shifted away from the governance failures that were largely responsible for the Assam riots and the mass departure of people of northeastern origin from India’s major metropolitan centres. The local government’s laggardly response to the initial bursts of violence allowed the riots to rage for days while the government dithered over calling the army. Social media had little, if any, role to play. And while panic is admittedly difficult to control, it is the poor record of the Indian state in responding to politically motivated violence that contributed to the panic-stricken reaction of people of northeastern origin. What should worry the Indian state are not the ravings of some anonymous Twitter account but the utter lack of faith in its ability to secure the safety of some of its most vulnerable citizens.

Second, while all governments wish to control the flow of information, the track record of the Indian state in the matter of free speech has been spectacularly poor. At the slightest allegation of “hurting religious sentiments”, books are banned, movies censored, and violence is threatened. Lacking an explicit First Amendment protection, Indian citizens are virtually powerless when the government wishes to quell free speech. The draconian Information Technology Act, 2008, orders internet providers to immediately remove content that may be “grossly harmful”, “blasphemous”, “obscene”, or even disparaging with little oversight and virtually no due process of law. As the Centre for Internet and Society’s Pranesh Prakash has demonstrated, internet providers are ready to remove “objectionable” content even in the case of frivolous complaints originating from ordinary citizens. What is particularly disconcerting is that the disregard for free speech extends even to some of India’s most prominent media personalities who can often be heard exhorting the government to regulate the internet or scrub off “hate mongers”. Given this history and the government’s demonstrated contempt for free speech, its attempts at censorship should be strongly scrutinised and vigorously resisted except in the most extenuating of circumstances.

Third, the Luddites in the Indian government may not yet comprehend it, but the internet is virtually impossible to police. The government may be able to threaten giant companies like Facebook and Twitter into cooperating, but that simply means the “objectionable” content would move to darker corners of the Net. Indeed, it is surprising that the government has not considered using technology to counter malicious rumours or to reach a mass audience with a message of reassurance. Technology can be a powerful tool for doing good and it is high time the government properly harnessed its potential. As a first step, the government has to recognise that the days when it had a monopoly on information are long gone and it has to compete for people’s attention.

Finally, even the most ardent supporter of free speech should have no qualms about admitting that it can offer a platform to the bigoted or can indirectly lead to social unrest. That may be especially true for a country like India where passions run high and an ambivalent attitude towards political violence prevails. That, however, is simply the price of liberty. Yes, a society that lacks free speech may be more stable, but it would lack the spirit of rambunctious discussion, criticism and argument — the hallmarks of a liberal democracy.

India can adopt a China-lite model, which emphasises social stability over freedom. Or India can go down the path of other liberal democracies and understand that freedom – of speech, thought and behaviour – is an ideal worth cherishing and protecting. As a constitutional republic with genuine claims of being a liberal democracy, it is clear which path India should embrace.

The writer is a fellow at the Takshashila Institution. These views are personal.

For more details visit https://cis-india.org/news/www-business-standard-rohit-pradhan-sep-1-2012-watch-out-for-fettered-speech

Vinay Rai v. Facebook India and Ors. | Summons Order

pranesh — 2012-03-15T07:53:05Z

This is Judge Sudesh Kumar's summons order (dated December 23, 2011) by which he notes there is enough prima facie evidence to proceed with trial against the intermediaries named and their senior officials. In the order he notes that, "It seems that instead of regulating the undesirable and offensive content they have promoted the same for increasing the profits and promoting their business. They have closed their eyes and promoted obscene derogatory defamatory and inflammatory material continuously on their network. It appears from a bare perusal of the documents that prima facie the accused in connivance with each other and other unknown persons are selling, publicly exhibiting and have put into circulation obscene, lascivious content which also appeals to the prurient interests and tends to deprave and corrupt the persons who are likely to read, see or hear the same."

IN THE COURT OF SUDESH KUMAR, METROPOLITAN MAGISTRATE PATIALA HOUSE COURTS, NEW DELHI

Complaint Case No. 136 of 2011

In the matter of:

Vinay Rai
S/o Sh. Mahima Rai
10 A. First Floor. Pritvi Raj Road
New Delhi

...Complainant

Versus

...Accused

Facebook India
Through its country head
Ms. Kirthiga Reddy
Office at: 4th Floor, Building-14. OPUS Towers,
Mindspace. Cyberabad, APIIC SW Unit Layout.
Madhapur. Hyderabad-500081
kirthiga@fb.com 07799021119
Facebook
Through its chairman
Donald Edward Graham —
Facebook Corporate Office
1601 S. California Ave. Palo Alto. CA 94304
Google India (P) Ltd.
Orkut
Youtube
Blogspot
Through its Country head
Shri Rajan Anandan
8th and 9th Floors. Tower — C, Building No.8,
DLF Cyber City, Gurgaon - 122 002
Google
Youtube
Blogspot
Orkut
Through its CEO, Larry Page — CEO
1600, Amphitheatre, Parkway, Mountain View,
CA 94043, USA
Yahoo India (P) Ltd
Shri Arun Tadanki
Building No.8, Tower-C,
DLF Cyber CityPhase-2 Gurgaon-
Yahoo
Through Roy J. Bostock — Chairman
Yahoo! Inc. 701 1st Ave., Sunnyvale, CA 94089
Microsoft India (P) Ltd.
Sri Bhaskar Pramanik 7th Floor,
Cyber Green Tower-A, DLF Cyber City, Phase-3
Gurgaon – 122002
Microsoft
Through Steve Ballmer — CEO
Microsoft Corporation, One Microsoft Way
Redmond, WA 98052-7329 USA
Zombie Time
DNS Services, 1650-302 Margaret St #332
Jacksonville, FL 32204-3869, US
Exbii
BoardReader.com
700 Tower Drive, Suite 140
Troy, Michigan 48098 US
Through its CEO/CHAIRMAN
IMC India
Through Sh. K.M. Gala-CEO, IMC India (Head Office)
418, Swastik Chambers, Sion Trombay Road
Chembur, Mumbai - 400 071 (Maharashtra)
My Lot
Through its CEO/CHAIRMAN
MyLot LLC, 7415 W 130th St
Suite #100, Overland Park, KS 66213, US
Shyni Blog
Through Sri Rajan Anandan
C/o Google India (P) Ltd
8th and 9th Floors. Tower—C, Building No 8,
DLF Cyber City Gurgaon—122002.
Topix
Through its CEO/CHAIRMAN
TOPIX.COM.P.O. Box 821650
Vancouver, WA 98682, US

IN THE COURT OF SH. SUDESH KUMAR

Ld. METROPOLITAN MAGISTRATE / PATIALA HOUSE COURTS / NEW DELHI

CC No. 136/1
Vinay Rai Vs. Facebook
PS Tughlak Road
23.12.2011

Order on Summoning:

The complainant in the present case is a Senior Journalist and Editor of Urdu Weekly namely Akbari. He has filed the present complaint U/s 200 Cr. PC r/w 156 (3) Cr. PC therein praying that the accused persons be summoned for having committed offences punishable U/ s 153-A, 153-B, 292, 293, 295 (A), 298, 109, 500 and 120-B of IPC. The complainant has submitted that the accused persons are the publishers and service providers of the electronic content in question in the present complaint and also responsible for the management and control of online site and internet content and the accused includes those who used, posted and uploaded the material on the site through the internet. It is alleged by the complainant that the content in question has been hosted on various websites which is per-se inflammatory, unacceptable by any set of community standards; seeks to create enmity, hatred and communal Violence amongst various religious communities: is demeaning, degrading and obscene, and it will corrupt minds and adversely affect religious sentiments. It is further submitted that the complainant had received some information in this regard and while going through the contents in the above said websites realized that the same were unacceptable to the secular fabric provided by the Constitution of India and would be intolerable to any community or religion. It is further alleged that on a bare perusal of the contents it is clear that the same would certainly corrupt young minds below the age of 18 and even elders, it is highly provocative and which may even lead to consequences effecting communal harmony. The complainant has mentioned the names of the websites allegedly hosting the said objectionable content in the memo of parties and provided the alleged objectionable material in a sealed envelope. The complainant has further stated that the Social Networking Websites are meant only for providing content with respect to educational, historical, research material and entertainment work etc. as part of their commercial activities for social purposes. However, the objectionable content available on these social networking websites may lead to communal riots. It is further alleged that Government authorities have turned a blind eye to the same and do not have any established procedure or rules and guidelines to control and regulate the same. It is averred that the Government is least bothered and as usual waiting for some mishappening before taking some appropriate actions. Neither police officials nor the Government have initiated any action to curb or check these activities sou moto and failed to register any case against the above named accused persons under any law to remove such contents from there. The complainant has further alleged that the main social networking websites are Google, Facebook, Youtube, Orkut, Broadreader, Mylot, Zombie Time, Shyni Blog, Blogspot, Exbii.com, IMC India. It is alleged that the accused persons knowingly allowed these contents and materials to be hosted in the websites which is dangerous to communal harmony with common and malfide intentions and have failed to remove the objectionable content for their wrongful gain. The complainant further stated that he has provided the said contents to the Court, in a sealed cover with request for directions not to publicize the offensive and inflammatory material which may lead to communal disharmony under his social responsibility. It is further stated by the complainant that the said contents available and hosted on the these sites are per-se unacceptable and clearly established the offences punishable under various provisions mentioned in the IPC and in case no action is taken against the accused person the same will cause serious prejudice to our society and social values provided and protected under the Constitution of India. It is further submitted that as a member of the community the complainant is not only individually hurt but also believes that it such content is allowed to continue on these platforms in this form, then incalculable and irreparable damage will be caused to the secular fabric of India. It is alleged that all those who are responsible for allowing this content to be hosted on the websites conspired with those who are the source of such content, and those who are promoting such material with malice to defame the country and with intent to spread communal violence to destabilise the country with undisclosed persons and are liable to be prosecuted and punished for offences U/s 153 (A), 153(B), 292, 293, 295(A), 298, 109, 500 and120-B IPC.

It is further averred that the contents which are shown on the social networking websites are clearly showing and instigating enmity between different groups on grounds of religion, race, place of birth, residence, language etc. and doing acts prejudicial to the maintenance of harmony as is quite apparent on a bare look at the material available on these social networking websites. It is further stated that the content which has been shown on these websites amount to imputations, assertions, which are prejudicial to national integration. It is alleged that the contents which are available on these social networking websites are obscene may lead to creation of obscene books, pamphlets, paper, which can easily be downloaded from these social networking websites affecting the minds of children and was harmful for social harmony and may lead to increase in crime against women also.

That the contents which are clearly mentioned and annexed in the sealed cover show the malafide intentions of these social networking websites hosting such content in these websites is an act of malice intended to outrage, religious feelings of classes of citizens by insulting their religion or religious beliefs. It is averred that the cause of action for filing the present complaint has risen on 8.12.2011 when the complainant downloaded these pictures and photos and these facts came to the knowledge of the complainant while sitting at his above stated residence and still continuing.

The complainant prays that the above said accused persons alongwith undisclosed persons are liable to be prosecuted and punished U/s U/s 153-A, 153-B, 292, 293, 295(A), 298, 109, 500 and 120-B of IPC.

The complainant has thereafter examined four witness in support of his complaint. Complainant Mr. Vinay Rai has examined himself as CW 1 in pre summoning evidence and he deposed on oath that he has gone through the contents which have been posted on various social networking websites as alleged and the documents downloaded from those sites are original as these have been downloaded directly from those websites. He produced Ex. CW 1/A-1 to Ex. CW 1/A-16 which have been downloaded from the website named as www.zombietime.com. He further deposed that Ex. CW 1/A-17 has been downloaded from Orkut which is arrayed as accused no.4 and 10. He also proved on record Ex. CW 1/A-18 downloaded from website mylot.com, which is a pre-se defamatory to all politicians. He further stated that Ex. CW 1/A-19 to Ex. CW 1/A-22 were downloaded from the post of topix.com and the contents are dangerous for our social structure and community. He further deposed that Ex. CW 1/A-23 to Ex. CW 1/A-36 which are posted by the service provider youtube.com without any sensor or prohibitory or disclaimer which is also dangerous for communal harmony and peace. He deposed that Youtube shown as accused no.5 and 8 provided the internet service and allowed to post these defamatory contents on websites and same is available to people below 18 years of age also which was also alarming danger to our society and Country. He deposed that such contents are against the secular fabric of our society, religion and culture. The witness has further stated that Ex. CW 1/A-37 to Ex. CW 1/A-48 are taken from the website facebook.com. He further proved on record Ex. CW 1/A-49 to Ex. CW 1/A-52 as provided by the blogspot.com, which is arrayed as accused at number 6 & 10 in the complaint and these documents are obscene and against the culture of our Country. He further stated that the blogspot is being managed by googleindia and googleinternational who have already been arrayed as accused in his complaint. He further stated that Ex. CW 1/A-53 has been taken from the website exbii.com, which provides services through google.com. The contents of the said exhibit are dangerous to our society and same has also been shown as political conspiracy to destabilize our Country. He further stated that Ex. CW 1/A-54 has been taken from website indymedia.org and same has been shown as a article posted by imcindia.org, which is against the Hinduism and defamatory to our religion. He further stated that the Ex. CW 1/A-55 provided by broadreader.com which is defamatory to Indian politicians and the Ex. CW 1/A-56 and Ex. CW 1/A-57 have been taken from the service provider blogspot.com which has been provided by the websites Further more, the complainant has deposed on the lines of his complaint. It is further prayed by the complainant that said accused persons alongwith certain undisclosed person were liable to be prosecuted U/s U/s 153-A, 153-B, 292, 293, 295(A), 298, 109, 500 and 120-B of IPC. It is further deposed by the complainant that all the contents were clearly showing and instigating enmity between different groups on the grounds of religion, race, place of birth, residence, language etc. and doing acts prejudicial to maintenance of harmony.

Complainant thereafter examined Mr. Rohit Mammen Alex as CW 2 in pre summoning evidence, who deposed on oath that he was not only a practicing Orthodox Christian but is an extremely secular person and has seen and found extremely shocking some of the contents on the websites in question. He further stated that the present complaint is filed by the complainant not only in public interest but also as an affected person who believes in a secular India. He further deposed that the accused persons are the publishers and service providers of the electronic contents and also responsible to manage and control online site and internet contents as also whoever user and post the material on the site through internet. CW 2 further deposed that the contents of the website in question not only are inflammatory and shocking but have been deliberately posted by the persons in question to inflame the minds of the persons who view it but also create grave communal tensions and to incite hatred amongst religious denominations across the country. He further deposed that on bare perusal of the said contents it is clear that the same will certainly corrupt young and impressionable minds and is highly provocative and which may lead to illogical and dangerous consequences. He deposed that the contents prima facie appear to be dangerous to society and communal harmony. He stated that the exhibited documents clearly show the malafide intentions of the these social networking websites to create deliberate and malicious acts intended to outrage religious feelings of people. He further stated that each and every documents exhibited herein the complaint are downloaded from the website of the accused persons and same may be treated as original of their respective documents.

Thereafter Dr. Aziz Ahmad Khan was examined as CW 3, who also deposed on oath that he is a scholar and P.HD. in Urdu but is an extremely secular person and has seen and found extremely shocking some of the contents of the websites in question. He also deposed that the complainant has filed the present complaint not only in public interest but also as an affected person who believes in a secular India. He further deposed that the accused person are the publishers and service providers of the electronic contents and also responsible to manage and control online site and internet contents as also whoever uses and posts the material on the site through internet. He also deposed that the contents of the websites in question not only are inflammatory and shocking but have been deliberately posted by the persons in question to inflame the minds of persons who view it but also to create grave communal tensions and to incite hatred amongst religious denominations across the country. He further deposed that the on a bare perusal of the said contents it is clear that the same will certainly corrupt young and impressionable minds and is highly provocative and which may lead to dangerous consequences. He submitted that these contents prima facie appear to be dangerous to society and communal harmony. He deposed that if such contents are allowed to be hosted on these websites would seriously damage the secular fabric of India and would severely hurt the sentiments of the general public following different religions. He further deposed that the contents of the exhibited documents clearly show the malafide intention of these social networking websites to create deliberate and malicious acts intended to outrage religious feelings of people. He further deposed that all the documents exhibited herein the complaint are downloaded from the website of the accused and same may be treated as original of their respective documents.

Mr. Rahul Agrawal was examined as CW 4 in pre summoning evidence by the complainant, who also deposed on oath that he is a Journalist and running a News Agency and he is a secular person and believe to maintain peace and harmony amongst the society and Country. He stated that he felt offended when he had seen and found extremely shocking some of the contents of the websites in question. He further stated that accused persons are the publishers and service providers of the electronic contents and also responsible to manage and control online site and internet contents as also whoever uses and posts the material on the site through internet. He further stated that the contents of the websites in question not only are inflammatory and shocking but have been deliberately posted by the persons in question to inflame the minds of the persons who view it but also to create grave communal tensions and to incite hatred amongst religious denominations across the country. He further stated that even on a bare perusal of the said contents it is clear that the same will certainly corrupt young and impressionable minds and is highly provocative and which may lead to illogical and dangerous consequence. He further stated that the contents as exhibited prima facie appear to be dangerous to society and communal harmony and if such contents are allowed to be hosted on these websites would seriously damage the secular fabric of India and would severely hurt the sentiments of the general public following different religions. He further stated that the contents of the exhibited documents clearly show the malafide intention of these social networking websites to create deliberate and malicious acts intended to outrage religious feelings of people. He further stated that the contents hosted on each of these websites are ex-facie scurrilous, defamatory, prejudicial to the maintenance of harmony between different religions and communities, likely to cause fear and generate a feeling of insecurity amongst members of religious communities, obscene by any criteria of community standards of obscenity, seeks to corrupt young minds, malicious and insulting to religions and religious feelings of persons and under no stretch of imagination be considered to be under freedom of speech and expression. He further stated that each and every documents exhibited herein the complaint are downloaded from the website of the accused and same may be treated as original of their respective documents.

No other Complainant witness was examined in pre summoning evidence and the pre summoning evidence was closed. As the addresses of most of the respondents are beyond the jurisdiction of this court, an enquiry report U/s 202 Cr. PC was sought from the SHO concerned regarding the authenticity of documents as filed in the court.

SHO PS Tughlak Road has furnished this enquiry report on 17.12.2011. Today, the matter has been fixed for Orders on summoning. The complainant has furnished about 60 internet generated print outs alongwith the complaint in a sealed cover. The sealed cover was opened during pre summoning evidence. I have gone through each and every internet generated print out. Today, complainant has also furnished a CD submitting that the same contained the vulgar and obscene data available on the networks of the proposed accused and print outs of which were placed on record vide Annexure-A.

To my mind the printouts as furnished and exhibited on bare perusal are found to be obscene, lascivious, indecent and shocking. The printouts shown are totally degrading and demeaning. Some of the printouts are showing various religious idols in a very degrading, demeaning and obscene way which are certainly unacceptable to any person professing such religion and also to civilized society as a whole. There are obscene picture and derogatory articles pertaining to Prophet Mohammed, Jesus and various Hindu God and Godesses. There are defamatory and obscene articles pertaining to various Indian political leaders. The contents are certainly disrespectful to the religious sentiments and faith and seem to be intended to outrage the feelings of the religious people whether Hindu, Muslim or Christian. There are certain degrading and obscene photographs of various political leaders belonging to different political parties and the photographs pasted and the language used is also obscene, filthy and degrading.

Prima facie, I am satisfied that the material produced on record will promote enmity between different religious sections and groups and a feeling of hatred and ill-will between them would be promoted if the offensive material was allowed to be publicised as such. The documents are certainly prejudicial to the maintenance of harmony between different religious groups. They tend to promote feeling of insecurity amongst members of some religion. The documents are obscene and could certainly corrupt the minds of the young. Most of the obscene pictures produced on record are tending to hurt the feelings of different religions. In my considered view, the said contents are certainly prejudicial to national harmony and integration. The publication of such offensive and inflammatory material which has tendency to inflame minds cannot be considered to be an expression of freedom of speech by any stretch of imagination in civil society. Having gone through the record, I am satisfied that the said contents produced on record by the complainant and which were available on various websites are not protected by the doctrine of free speech of expression under our Constitution. In fact much content fell foul of Provisions of Article 19 (1) (a) of the Constitution of India.

The Counsel for complainant has further argued vehemently that the offensive material as placed on record was just a part of a very large bunch of such content which was available on these networks. He further argued that it was impossible that availability of such content in such large quantity was publicised without the knowledge and connivance of the accused persons. He further alleged that all the accused persons in connivance with each other and some unknown persons have intentionally and knowingly permitted such content to be publicised just for the sake of commercial gains.

Having gone through the record, I find force in the arguments advanced on behalf of the complainant. All the accused persons are involved in the business of publication and are providing service of the electronic contents to users. They are certainly doing it for commercial gain. The accused persons having full control over the working of their sites it seems have purposely promoted and publicised offensive material for their commercial gains. It seems that instead of regulating the undesirable and offensive content they have promoted the same for increasing the profits and promoting their business. They have closed their eyes and promoted obscene derogatory defamatory and inflammatory material continuously on their network.

It appears from a bare perusal of the documents that prima facie the accused in connivance with each other and other unknown persons are selling, publicly exhibiting and have put into circulation obscene, lascivious content which also appeals to the prurient interests and tends to deprave and corrupt the persons who are likely to read, see or hear the same. It is also evident that such contents are continuously openly and freely available to every one who is using the said network irrespective of their age and even the persons under the age of 18 years have full and uncensored access to such obscene contents.

From the above, it is clear that there is prima facie material on record against the accused persons for committing offences U/s 292/293/120 IPC and they are liable to be summoned for facing trial for the same.

However, from the testimony of these witnesses examined on record belonging to three different religions alongwith the material produced on record, it is evident that the same promotes enmity between different groups and religions, which is certainly prejudicial to the maintenance of peace and communal harmony. The accused persons through the publication and promotion of the offensive material as produced on record seem to be promoting disharmony, feeling of enmity, hatred or ill-will between different religions. The act / omission on part of the accused person as alleged certainly tends to prejudice the maintenance of harmony between different groups and religions. The imputations and assertions and publications as produced on record are prejudicial to the national interest.

The contents as produced by the complainant are insulting and outrageous to the religious feelings of various classes of people.

From the above as argued vehemently by the Ld. Counsel for the complainant. I find, prima facie, that the accused persons are liable to be summoned for offences U/s 153-A, 153-B and 295-A IPC. However, owing to the embargo under section 196 Cr. PC which prohibits taking of cognizance under the said Provisions except with the previous sanction of the Central Government or State Government or District Magistrate, the accused persons are not summoned for the said offences. All the accused persons however, be summoned for facing trial U/s 292, 293 and 120-B IPC for 13.01.2012 on filing of PF.

Ld. Counsel for complainant has also vehemently argued that even the Government of India seems to have turned a blind eye to the offensive, degrading and demeaning content on these websites which is outrageous and also against national integration. In the facts and circumstances of the case, taking into consideration the submissions made on behalf of the complainant, let a copy of this Order be also sent to the Government of India through the Secretary (Information and Technology), Secretary (Home) and Secretary (Law) for taking the immediate appropriate steps in this regard and file a report on the next date of hearing i.e. 13.01.2012.

Sudesh Kumar / MM / ND / 23.12.2011.

For more details visit https://cis-india.org/internet-governance/resources/vinay-rai-v-facebook-summons-order-2011-12-23

Vimeo, DailyMotion, Pastebin Among Sites Blocked In India For 'Anti-India' Content From ISIS

praskrishna — 2015-01-02T16:43:20Z

The Indian government has convinced ISPs to block dozens of popular websites accused of hosting “anti-India” content posted by members of the Islamic State group, also known as ISIS or ISIL.

The story was published by IB Times on December 31. Pranesh Prakash is quoted.

GitHub, Pastebin, as well as the video sites Vimeo and DailyMotion were among those rendered inaccessible to many of India’s nearly 250 million Internet users.

The text repository Pastebin first tweeted on Dec. 19 that it had been blocked, confirming on Dec. 26 that the blockade was at the behest of India’s Department of Telecom. Pranesh Prakash, the policy director at the Center for Internet and Society in Bangalore, posted a list of the blocked sites Wednesday. Notice the list was issued Dec. 17.

Insane! Govt orders blocking of 32 websites including @internetarchive @vimeo @github @pastebin #censorship #FoEx pic.twitter.com/F75ngSGohJ

â€” Pranesh Prakash (@pranesh_prakash) December 31, 2014

Hours later Arvind Gupta, the national head of information technology at India’s Bharatiya Janata Party, confirmed on Twitter that a block had indeed been put in place. Other than referencing “ongoing investigations,” Gupta did not provide specific details on the type of threats being made.

The websites that have been blocked were based on an advisory by Anti Terrorism Squad, and were carrying Anti India content from ISIS. 1/2

â€” Arvind Gupta (@buzzindelhi) December 31, 2014

The sites that have removed objectionable content and/or cooperated with the on going investigations, are being unblocked. 2/2

â€” Arvind Gupta (@buzzindelhi) December 31, 2014

The move comes after it was discovered that the operator of a prominent pro-ISIS Twitter account was based in Bangalore. Mehdi Masroor Biswas, 24, was arrested earlier this month after a Channel 4 News investigation determined he was behind @ShamiWitness, an account with more than 17,700 followers and 2 million tweets seen each month.

Indian Prime Minister Narendra Modi unveiled the “Make in India” campaign earlier this year in an attempt to encourage international businesses to invest in India. The campaign specifically mentions information technology as a sector in which India wishes to improve.

For more details visit https://cis-india.org/internet-governance/news/ib-times-jeff-stone-december-31-2014-sites-blocked-in-india-for-anti-india-content-from-isis

Views | Why the Left may for once be right

praskrishna — 2012-04-25T11:48:50Z

The article by Pramit Bhattacharya was published in LiveMint on April 23, 2012.

India’s information technology (IT) minister, Kapil Sibal appears to be running into rough weather over IT rules framed last year, which curb freedom of expression on the internet. The rules have incensed India’s growing blogging community and piqued at least a few of his fellow parliamentarians.

On the opening day of the upcoming parliamentary session on Tuesday, the Rajya Sabha is set to vote on an annulment motion against the IT rules, moved by P. Rajeeve of the Communist Party of India (Marxist), a rediff.com report said. Ironically, the party that still treats Stalin as a hero (quoting him unfailingly in its political resolutions) has become the first to stand up for internet freedom.
Rajeeve is of course not the only parliamentarian to take exception to the rules. Jayant Choudhry, a member of parliament (MP) from the Rashtriya Lok Dal, was the first to draw attention to the draconian rules late last year, and MPs from other regional parties such as the Samajwadi Party and the Asom Gana Parishad criticized the rules in a parliamentary discussion in December.

Two sets of rules, one governing cyber cafes and the other relating to intermediaries have attracted most criticism. The rules relating to intermediaries such as internet service providers, search engines or interactive websites such as Twitter and Facebook are the most disturbing. Intermediaries are required under the current rules to remove content that anyone objects to, within 36 hours of receiving the complaint, without allowing content creators any scope of defence.

The criteria for deciding objectionable content, laid down in the rules, are subjective and vague. For instance, intermediaries are mandated to remove among other things, ‘grossly harmful’ content, whatever that may mean.

This is a unique form of ‘private censorship’ that will endanger almost all online content. In this age of easily offended sensibilities, it is virtually impossible to write anything that does not “offend” anyone. For instance, even this piece may be termed ‘grossly harmful’ to the CPI(M) party.

However far-fetched this may sound, this has already become a reality. A researcher working with the Bangalore-based Centre for Internet and Society (CIS) tried out such a strategy with several different intermediaries, and was successful in six out of seven times, always with frivolous and flawed complaints, Pranesh Prakash of CIS wrote in a January blog-post. It has become much easier in India to ban an e-book than a book, Prakash pointed out.

The rules regulating cyber cafes are no better. Cyber cafes are required to keep a log detailing the identity of users and their internet usage, which has negative implications for privacy and personal safety of users, analysis of the rules by PRS legislative research said.

Internet freedom in India has declined over time and is only ‘partly free’, a 2011 report on internet freedom by US-based think tank, Freedom House said. India has joined a growing club of developing nations where, “internet freedom is increasingly undermined by legal harassment, opaque censorship procedures, or expanding surveillance,” the report noted.

The only saving grace is that some of the IT rules are drafted in a language so arcane that anyone will find it hard to decipher them, leave alone implementing them. Sample this: “The intermediary shall not knowingly deploy or install or modify the technical configuration of computer resource or become party to any such act which may change or has the potential to change the normal course of operation of the computer resource than what it is supposed to perform thereby circumventing any law for the time being in force: provided that the intermediary may develop, produce, distribute or employ technological means for the sole purpose of performing the acts of securing the computer resource and information contained therein.”

The first task at hand for Sibal may be to explain to fellow lawmakers what the above rule is supposed to mean, before he defends such rules.

Click for the original, Pranesh Prakash is quoted in this article.

For more details visit https://cis-india.org/news/left-may-for-once-be-right

US Clampdown Worse than the Great Firewall

sunil — 2012-01-26T20:42:14Z

If you thought China’s Internet censorship was evil, think again. American moves to clean up the Web could hurt global surfers, writes Sunil Abraham in this article published in Tehelka, Volume 8, Issue 50, 17 December 2011.

TWO PARTICULARLY terrible pieces of legislation — the PROTECT-IP Act and the Stop Online Piracy Act (SOPA) — have been introduced in the US Senate and House of Representatives. If passed, the US administration will be empowered to shut down specific websites using the same four measures it employed in its failed attempt to shut down WikiLeaks — domain name system (DNS) filtering, blocking financial transfers via financial intermediaries, revoking hosting and sanitising search engine results. SOPA represents the perfect policy interest overlap between a State clamping down on freedom of expression and IPR-holders protecting their obsolete business models. After all it was Bono who publicly articulated the unspoken desire of many right-holders: “We know from China’s ignoble effort to suppress online dissent that it’s perfectly possible to track content.”

China fortunately only censors the Internet for its own citizens, the Great Firewall does not, for example, prevent access to knowledge by Indian netizens. SOPA will enable the US to censor the global Internet unilaterally. The Great Firewall can be circumvented using tools like Tor, but SOPA will in many ways make its targets disappear for the average user. DNS filtering, even when implemented in a single country, has global consequences. DNS, one of the foundational mechanisms of the Internet, is an address look-up service that allows users to translate domain names (e.g. cisindia.org — easier for humans to remember) into IP addresses (e.g. 202.190.125.69 — easier for machines). The most critical servers in the global DNS hierarchy are the root servers, or today’s server clusters. Mandated DNS filtering would result in some DNS servers returning different IP addresses than other DNS servers for certain domain names. With PROTECT-IP and SOPA, these global consequences would be at unprecedented levels given that seven of the 13 server clusters that constitute the DNS root fall within US jurisdiction. We already have some indication where this is headed. The US Immigration and Customs Enforcement Agency announced recently that it has seized 150 domain names for alleged IPR infringement.

We must remember that IPR policy in some countries has been configured in public interest to take advantage of the exceptions and limitations afforded by the TRIPS (trade-related aspects of IPR) agreement. In others, even though the letter of the law goes beyond TRIPS requirements, access by ordinary citizens is protected because of poor enforcement of these maximalist policies. E-commerce platforms that sell Micromax, Karbonn, Spice and Lava mobile phones that are manufactured in China may be taken offline because an American court is convinced of patent infringement. An online publisher of George Orwell’s books, which are public domain in Russia, India and South Africa but still under copyright in the US and Europe, may have its Paypal account blocked.

After the witch-hunt against WikiLeaks, policymakers have realised the extent of American hypocrisy

In the recent past, activists in authoritarian regimes and democracies with draconian Internet laws have leveraged US Internet freedom rhetoric. This was first deployed by Hillary Clinton in early 2010 after Google’s melodramatic withdrawal from China. Even then, many observers were convinced that this was just selective tokenism and the real agenda was domination of global markets by US-based MNCs. Today, after the witch-hunts against WikiLeaks and Anonymous, global policymakers have realised the extent of American hypocrisy.

Fortunately, opposition for SOPA has cut across traditional political and ideological divides — libertarians, liberal human rights organisations and political conservatives who believe in small government and also modern- day capitalists like Google, Facebook and Twitter. Let us pray that Kapil Sibal registers his protest with the Obama administration to protect the online aspirations of millions of Indian citizens and entrepreneurs.

Read the original published in Tehelka here

For more details visit https://cis-india.org/internet-governance/us-clampdown

UN Special Rapporteur Report on Freedom of Expression and the Private Sector: A Significant Step Forward

vidushi — 2016-06-08T17:27:22Z

On 6 June 2016, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, David Kaye, released a report on the Information and Communications Technology (“ICT”) sector and freedom of expression in the digital age. Vidushi Marda and Pranesh Prakash highlight the most important aspects of the report.

Background

Today, the private sector is more closely linked to the freedom of expression than it has ever been before. The ability to speak to a mass audience was at one time a privilege restricted to those who had access to mass media. However, with digital technologies, that privilege is available to far more people than was ever possible in the pre-digital era. As private content created on these digital networks is becoming increasingly subject to state regulation, it is crucial to examine the role of the private sector in respect of the freedom of speech and expression.

The first foray by the Special Rapporteur into this broad area has resulted in a sweeping report, that covers almost every aspect of freedom of expression within the ICT sector, except competition which we will elaborate on later in this post.

Introduction

The report aims to “provide guidance on how private actors should protect and promote freedom of expression in a digital age”. It identifies the relevant international legal framework as Article 19 of the International Covenant on Civil and Political Rights, and Article 19 of the Universal Declaration of Human Rights. The UN “Protect, Respect and Remedy” Framework and Guiding Principles, also known as the Ruggie Principles provide the framework for private sector responsibilities on business and human rights.

The report categorises different roles of the private sector in organising, accessing, regulating and populating the internet. This is important because the manner in which the ICT sector affects the freedom of expression is far more complicated than traditional communication industries. The report identifies the distinct impact of internet service providers, hardware and software companies, domain name registries and registrars, search engines, platforms, web hosting services, platforms, data brokers and e-commerce facilities on the freedom of expression.

Legal and Policy Issues

The Special Rapporteur discusses four distinct legal and policy issues that find relevance in respect of this problem statement: Content Regulation, Surveillance and Digital Security, Transparency and Remedies.

Content Regulation

The report identifies two main channels through which content regulation takes place: the state, and internal processes.

Noting that digital content made on private networks is increasingly subject to State regulation, the report highlights the competing interests of intermediaries who manage platforms and States which demand for regulation of this content on grounds of defamation, blasphemy, protection of national security etc. This tension is demonstrated through vague laws that compel individuals and private corporations to over-comply and err on the side of caution “in order to avoid onerous penalties, filtering content of uncertain legal status and engaging in other modes of censorship and self-censorship.” Excessive intermediary liability forces intermediaries to over-comply with requests in order to ensure that local access to their platforms are not blocked. States attempt at regulating content outside the law through extra legal restrictions, and push private actors to take down content on their own initiative. Filtering content is another method, wherein States block and filter content through the private sector. Government blacklists, illegal content and suspended accounts are methods employed, and these have sometimes raised concerns of necessity and proportionality. Network or service shutdowns are classified as a “particularly pernicious” method of content regulation. Non neutral networks also are a method of content regulation with the possibilities of internet service providers throttling traffic. Zero rating is a potential issue, although the report acknowledges that “it remains a subject of debate whether they may be permissible in areas genuinely lacking Internet access”.

The other node of content regulation has been identified as internal policies and practices of the private sector. Terms of service restrictions are often tailored to the jurisdiction’s laws and policies and don’t always address the needs and interests of vulnerable groups. Further, the report notes, design and engineering choices of how private players choose to curate content are algorithmically determined and increasingly control the information that we consume.

Transparency

The report notes that transparency enables those entities subject to internet regulation to take informed decisions about their responsibilities and liabilities in a digital sphere and points out, that there is a severe lack of transparency about government requests to restrict or remove content. Some states even prohibit the publication of such information, with India being one example. In respect of the private sector, content hosting platforms sometimes at least reveal the circumstances under which content is removed due to a government request, although this is rather erratic. The report recognises the need to balance transparency with competing concerns like security and trade secrecy, and this is a matter of continued debate.

Surveillance and Digital Security

Freedom of expression concerns arise as data transmitted on private networks is gradually being subjected to surveillance and interference from the State and private actors. The report finds that several internet companies have reported an increase in government requests for customer data and user information. According to the Special Rapporteur, effective resistance strategies include inclusion of human rights guarantees, restrictively interpreting government requests negotiations. Private players also make surveillance and censorship equipment that enable States to intercept communications. Covert surveillance has been previously reported, with States tapping into communications as and when necessary. When private entities become aware of interception and covert surveillance, their human rights responsibilities arise. As private entities work towards enhancing encryption, anonymity and user security, states respond by compelling companies to create loopholes for them to circumvent such privacy and security enhancing technology.

Remedies

Unlawful content removal, opaque suspensions, data security breaches are commonplace occurrences in the digital sphere. The ICCPR guarantees that all people whose rights have been violated must have an effective remedy, and similarly, the Ruggie principles require that remedial and grievance mechanisms must be provided by corporations. There is some ambiguity on how these complaint or appeal mechanisms should be designed and implemented, and the nature and structure of these mechanisms is also unclear. The report states that it is necessary to investigate the role of the state in supplementing/regulating corporate mechanisms, its role in ensuring that there is a mechanism for remedies, and its responsibility to make sure that more easily and financially accessible alternatives exist for remedial measures.

Special Rapporteur’s priorities for future work and thematic developments

Investigating laws, policies and extralegal measures that equip governments to impose restrictions on the provision of telecommunications and internet services. Examining the responsibility of companies to respond in a way that respects human rights, mitigates harm, and provides avenues for redress.
Evaluating content restrictions under terms of service and community standards. Private actors face substantial pressure from governments and individuals to restrict expression, and a priority is to evaluate the interplay of private and state actions on freedom of expression in light of human rights obligations and responsibilities.
Focusing on the legitimacy of rationales for intermediary liability for content hosting, restrictions, conditions for removing third party content.
Exploring censorship and surveillance within the human rights framework, and encouraging greater scrutiny before using these technologies for purposes that undermine the freedom of expression.
Identifying ways to balance an increasing scope of freedom of expression with the need to address governmental interests in national security and public order.
Internet access - Future work will explore issues around access and private sector engagement and investment in ensuring affordability and accessibility, particularly considering marginalized groups.
Internet governance - Internet governance frameworks and reform efforts are sensitive to the needs of women, sexual minorities and other vulnerable communities. Throughout this future work, the Special Rapporteur will pay particular attention to legal developments (legislative, regulatory, and judicial) at national and regional levels.

Conclusions and Recommendations

States: The report recommends that states should not pressurise the private sector to interfere with the freedom of speech and expression in a manner that does not meet the condition of necessary and proportionate principles. Any request to take down content or access customer information must be based on validly enacted law, subject to oversight, and demonstrate necessary and proportionate means of achieving the aims laid down in Article 19(3) of the ICCPR.
Private Actors: The Special Rapporteur recommends that private actors develop and implement transparent human rights assessment procedures, and develop policies keeping in mind their human rights impact. Apart from this, private entities should integrate commitments to the freedom of expression into internal processes and ensure the “greatest possible transparency”.
International Organisations: The report recommends that organisations make resources and educational material on internet governance publicly accessible. The Special Rapporteur also recommends encouraging meaningful civil society participation in multi-stakeholder policy making and standard setting processes, with an increased focus on sensitivity to human rights.

CIS Comments

CIS strongly agrees with the expansion of the Special Rapporteur’s scope that this report represents. He is no longer looking solely at states but at the private sector too.
CIS also notes that competition is an important aspect of the freedom of expression, but has not been discussed in this report. Viable alternatives to platforms, networks, internet service providers etc., will ensure a healthy, competitive marketplace, and will have a positive impact in resolving the issues identified above.
Our work has called for maintaining a balanced approach to liability of intermediaries for their users’ actions, since excessive liability or strict liability would lead to over-caution and removal of legitimate speech, while having no liability at all would make it difficult to act effectively against harmful speech, e.g., revenge porn.
CIS’ work on network neutrality has highlighted the importance of neutrality for freedom of speech, and has advocated for an evidence-based approach that ensures there is neither under-regulation, nor over-regulation. The Special Rapporteur suggests that ‘Zero-Rating’ practices always violate Net Neutrality, but the majority of the definitions of Net Neutrality proposed by academics and followed by regulators across the world often do not include Zero-Rating. Similarly, he suggests that the main exception for Zero-Rating is for areas genuinely lacking access to the Internet, whereas the potential for some forms of Zero-Rating to further freedom of expression, especially of minorities, even in areas with access to the Internet, provides sufficient reason for the issue to merit greater debate.

(Pranesh Prakash was invited by the Special Rapporteur to provide his views and took part in a meeting that contributed to this report)

For more details visit https://cis-india.org/internet-governance/un-special-rapporteur-report-on-freedom-of-expression-and-the-private-sector-a-significant-step-forward

UN Human Rights Council urged to protect human rights online

geetha — 2014-06-19T13:28:32Z

63 civil society groups urged the UN Human Rights Council to address global challenges to freedom of expression, privacy and other human rights on the Internet. Centre for Internet & Society joined in the statement, delivered on behalf of the 63 groups by Article 19.

The 26th session of the United Nations Human Rights Council (UNHRC) is currently ongoing (June 10-27, 2014). On June 19, 2014, 63 civil society groups joined together to urge the United Nations Human Rights Council to protect human rights online and address global challenged to their realization. Centre for Internet & Society joined in support of the statement ("the Civil Society Statement"), which was delivered by Article 19 on behalf of the 63 groups.

In its consensus resolution A/HRC/20/8 (2012), the UNHRC affirmed that the "same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice". India, a current member of the UNHRC, stood in support of resolution 20/8. The protection of human rights online was also a matter of popular agreement at NETmundial 2014, which similarly emphasised the importance of protecting human rights online in accordance with international human rights obligations. Moreover, the WSIS+10 High Level Event, organised by the ITU in collaboration with other UN entities, emphasized the criticality of expanding access to ICTs across the globe, including infrastructure, affordability and reach.

The Civil Society Statement at HRC26 highlights the importance of retaining the Internet as a global resource - a democratic, free and pluralistic platform. However, the recent record of freedom of expression and privacy online have resulted in a deficit of trust and free, democratic participation. Turkey, Malaysia, Thailand, Egypt and Pakistan have blocked web-pages and social media content, while Edward Snowden's revelations have heightened awareness of human rights violations on the Internet.

At a time when governance of the Internet and its institutions is evolving, a human rights centred perspective is crucial. Openness and transparency - both in the governance of Internet institutions and rights online - are crucial to continuing growth of the Internet as a global, democratic and free resource, where freedom of expression, privacy and other rights are respected regardless of location or nationality. In particular, the Civil Society Statement calls attention to principles of necessity and proportionality to regulate targeted interception and collection of personal data.

The UNHRC, comprising 47 member states, is called upon to address these global challenges. Guided by resolutions A/HRC/20/8 and A/RES/68/167, the WSIS+10 High Level Event Outcome Documents (especially operative paragraphs 2, 8 and 11 of the Vision Document) and the forthcoming report of the UN High Commissioner for Human Rights regarding privacy in the digital age, the UNHRC as well as other states may gather the opportunity and intention to put forth a strong case for human rights online in our post-2015 development-centred world.

Civil Society Statement:

The full oral statement can be accessed here.

For more details visit https://cis-india.org/internet-governance/blog/un-human-rights-council-urged-to-protect-human-rights-online