Centre for Internet and Society

You Have the Right to Remain Silent

nishant — 2013-07-22T06:59:53Z

Reflecting upon the state of freedom of speech and expression in India, in the wake of the shut-down of the political satire website narendramodiplans.com.

Nishant Shah's column was published in Down to Earth on July 17, 2013.

It took less than a day for narendramodiplans.com, a political satire website that had more than 60,000 hits in the 20 hours of its existence, to be taken down. A simple webpage that showed a smiling picture of Narendra Modi, the touted candidate for India’s next Prime Ministerial campaign, flashing his now trademark ‘V’ for ~~Vengeance~~ Victory sign. At the first glimpse it looked like another smart media campaign by the net-savvy minister who has already made use of the social web quite effectively, to connect with his constituencies and influence the younger voting population in the country. Below the image of Mr. Modi was a text that said, "For a detailed explanation of how Mr. Narendra Modi plans to run the nation if elected to the house as a Prime Minister and also for his view/perspective on 2002 riots please click the link below." The button, reminiscent of 'sale' signs on shops that offer permanent discounts, promised to reveal, for once and for all, the puppy plight of Mr. Modi's politics and his plans for the country that he seeks to lead.

However, when one tried to click on the button, hoping, at least for a manifesto that combined the powers of Machiavelli with the sinister beauty of Kafka, it proved to be an impossible task. The button wiggled, and jiggled, and slithered all over the page, running away from the mouse following it. Referencing the layers of evasive answers, the engineered Public Relations campaigns that try to obfuscate the history to some of the most pointed questions that have been posited to the Modi government through judicial and public forums, the button never stayed still enough to actually reveal the promised answers. For people who are familiar with the history of such political satire and protest online would immediately recognise that this wasn’t the most original of ideas. In fact, it was borrowed from another website - http://www.thepmlnvision.com/ that levelled similar accusations of lack of transparency and accountability on the part of Nawaz Sharif of Pakistan. Another instance, which is now also shut down, had a similar deployment where the webpage claimed to give a comprehensive view into Rahul Gandhi’s achievements, to question his proclaimed intentions of being the next prime-minister. In short, this is an internet meme, where a simple web page and a java script allowed for a critical commentary on the future of the next elections and the strengthening battle between #feku and #pappu that has already taken epic proportions on Twitter.

The early demise of these two websites (please do note, when you click on the links that the Nawaz Sharif website is still working) warns us of the tightening noose around freedom of speech and expression that politicos are responsible for in India. It has been a dreary last couple of years already, with the passing of the Intermediaries Liabilities Rules as an amendment to the IT Act of India, Dr. Sibal proposing to pre-censor the social web in a quest to save the face of erring political figures, teenagers being arrested for voicing political dissent, and artists being prosecuted for exercising their rights to question the state of governance in our country. Despite battles to keep the web an open space that embodies the democratic potentials and the constitutional rights of freedom of speech and expression in the country, it has been a losing fight to keep up with the ad hoc and dictatorial mandates that seem to govern the web.


Above is a screen shot from narendramodiplans.com website

We have no indication of why this latest piece of satirical expression, which should be granted immunity as a work of art, if not as an individual’s right to free speech, was suddenly taken down. The website now has a message that says, “I quit. In a country with freedom of speech, I assumed that I was allowed to make decent satire on any politician more particularly if it is constructive. Clearly, I was wrong.” The web is already abuzz with conspiracy theories, each sounding scarier than the other because they seem so plausible and possible in a country that has easily sacrificed our right to free speech and expression at the altar of political egos. And whether you subscribe to any of the theories or not, whether your sympathies lie with the BJP or with the UPA, whether or not you approve of the political directions that the country seems to be headed in, there is no doubt that you should be as agitated as I am, about the fact that we are in a fast-car to blanket censorship, and we are going there in style.

What happens online is not just about this one website or the one person or the one political party – it is a reflection on the rising surveillance and bully state that presumes that making voices (and sometimes people) invisible, is enough to resolve the problems that they create. And what happens on the web is soon going to also affect the ways in which we live our everyday lives. So the next time, you call some friends over for dinner, and then sit arguing about the state of politics in the country, make sure your windows are all shut, you are wearing tin-foil hats and if possible, direct all conversations to the task of finally finding Mamta Kulkarni. Because anything else that you say might either be censored or land you in a soup, and the only recourse you might have would be a website that shows the glorious political figures of the country, with a sign that says “To defend your right to free speech and expression, please click here”. And you know that you are never going to be able to click on that sign. Ever.

For more details visit https://cis-india.org/internet-governance/blog/down-to-earth-july-17-2013-nishant-shah-you-have-the-right-to-remain-silent

Can India Trust Its Government on Privacy?

pranesh — 2013-07-15T10:35:33Z

In response to criticisms of the Centralized Monitoring System, India’s new surveillance program, the government could contend that merely having the capability to engage in mass surveillance won’t mean that it will. Officials will argue that they will still abide by the law and will ensure that each instance of interception will be authorized.

Pranesh Prakash's article was published in the New York Times on July 11, 2013.

In fact, they will argue that the program, known as C.M.S., will better safeguard citizens’ privacy: it will cut out the telecommunications companies, which can be sources of privacy leaks; it will ensure that each interception request is tracked and the recorded content duly destroyed within six months as is required under the law; and it will enable quicker interception, which will save more lives. But there are a host of reasons why the citizens of India should be skeptical of those official claims.

Cutting out telecoms will not help protect citizens from electronic snooping since these companies still have the requisite infrastructure to conduct surveillance. As long as the infrastructure exists, telecom employees will misuse it. In a 2010 report, the journalist M.A. Arun noted that “alarmingly, this correspondent also came across several instances of service providers’ employees accessing personal communication of subscribers without authorization.” Some years back, K.K. Paul, a top Delhi Police officer and now the Governor of Meghalaya, drafted a memo in which he noted mobile operators’ complaints that private individuals were misusing police contacts to tap phone calls of “opponents in trade or estranged spouses.”

India does not need to have centralized interception facilities to have centralized tracking of interception requests. To prevent unauthorized access to communications content that has been intercepted, at all points of time, the files should be encrypted using public key infrastructure. Mechanisms also exist to securely allow a chain of custody to be tracked, and to ensure the timely destruction of intercepted material after six months, as required by the law. Such technological means need to be made mandatory to prevent unauthorized access, rather than centralizing all interception capabilities.

At the moment, interception orders are given by the federal Home Secretary of India and by state home secretaries without adequate consideration. Every month at the federal level 7,000 to 9,000 phone taps are authorized or re-authorized. Even if it took just three minutes to evaluate each case, it would take 15 hours each day (without any weekends or holidays) to go through 9,000 requests. The numbers in Indian states could be worse, but one can’t be certain as statistics on surveillance across India are not available. It indicates bureaucratic callousness and indifference toward following the procedure laid down in the Telegraph Act.

In a 1975 case, the Supreme Court held that an “economic emergency” may not amount to a “public emergency.” Yet we find that of the nine central government agencies empowered to conduct interception in India, according to press reports — Central Board of Direct Taxes, Intelligence Bureau, Central Bureau of Investigation, Narcotics Control Bureau, Directorate of Revenue Intelligence, Enforcement Directorate, Research & Analysis Wing, National Investigation Agency and the Defense Intelligence Agency — three are exclusively dedicated to economic offenses.

Suspicion of tax evasion cannot legally justify a wiretap, which is why the government said it had believed that Nira Radia, a corporate lobbyist, was a spy when it defended putting a wiretap on her phone in 2008 and 2009. A 2011 report by the cabinet secretary pointed out that economic offenses might not be counted as “public emergencies,” and that the Central Board of Direct Taxes should not be empowered to intercept communications. Yet the tax department continues to be on the list of agencies empowered to conduct interceptions.

India has arrived at a scary juncture, where the multiple departments of the Indian government don’t even trust each other. India’s Department of Information Technology recently complained to the National Security Advisor that the National Technical Research Organization had hacked into National Informatics Center infrastructure and extracted sensitive data connected to various ministries. The National Technical Research Organization denied it had hacked into the servers but said hundreds of e-mail accounts of top government officials were compromised in 2012, including those of “the home secretary, the naval attaché to Tehran, several Indian missions abroad, top investigators of the Central Bureau of Investigation and the armed forces,” The Mint newspaper reported. Such incidents aggravate the fear that the Indian government might not be willing and able to protect the enormous amounts of information it is about to collect through the C.M.S.

Simply put, government entities have engaged in unofficial and illegal surveillance, and the C.M.S. is not likely to change this. In a 2010 article in Outlook, the journalist Saikat Datta described how various central and state intelligence organizations across India are illegally using off-the-air interception devices. “These systems are frequently deployed in Muslim-dominated areas of cities like Delhi, Lucknow and Hyderabad,” Mr. Datta wrote. “The systems, mounted inside cars, are sent on ‘fishing expeditions,’ randomly tuning into conversations of citizens in a bid to track down terrorists.”

The National Technical Research Organization, which is not even on the list of entities authorized to conduct interception, is one of the largest surveillance organizations in India. The Mint reported last year that the organization’s surveillance devices, “contrary to norms, were deployed more often in the national capital than in border areas” and that under new standard operating procedures issued in early 2012, the organization can only intercept signals at the international borders. The organization runs multiple facilities in Mumbai, Bangalore, Delhi, Hyderabad, Lucknow and Kolkata, in which monumental amounts of Internet traffic are captured. In Mumbai, all the traffic passing through the undersea cables there is captured, Mr. Datta found.

In the western state of Gujarat, a recent investigation by Amitabh Pathak, the director general of police, revealed that in a period of less than six months, more than 90,000 requests were made for call detail records, including for the phones of senior police and civil service officers. This high a number could not possibly have been generated from criminal investigations alone. Again, these do not seem to have led to any criminal charges against any of the people whose records were obtained. The information seems to have been collected for purposes other than national security.

India is struggling to keep track of the location of its proliferating interception devices. More than 73,000 devices to intercept mobile phone calls have been imported into India since 2005. In 2011, the federal government asked various state governments, private corporations, the army and intelligence agencies to surrender these to the government, noting that usage of any such equipment for surveillance was illegal. We don’t know how many devices were actually turned in.

These kinds of violations of privacy can have very dangerous consequences. According to the former Intelligence Bureau head in the western state of Gujarat, R.B. Sreekumar, the call records of a mobile number used by Haren Pandya, the former Gujarat home minister, were used to confirm that it was he who had provided secret testimony to the Citizens’ Tribunal, which was conducting an independent investigation of the 2002 sectarian riots in the state. Mr. Pandya was murdered in 2003.

The limited efforts to make India’s intelligence agencies more accountable have gone nowhere. In 2012, the Planning Commission of India formed a group of experts under Justice A.P. Shah, a retired Chief Justice of the Delhi High Court, to look into existing projects of the government and to suggest principles to guide a privacy law in light of international experience. (Centre for Internet and Society, where I work was part of the group). However, the government has yet to introduce a bill to protect citizens’ privacy, even though the governmental and private sector violations of Indian citizens’ privacy is growing at an alarming rate.

In February, after frequent calls by privacy activists and lawyers for greater accountability and parliamentary oversight of intelligence agencies, the Centre for Public Interest Litigation filed a case in the Supreme Court. This would, one hopes, lead to reform.

Citizens must also demand that a strong Privacy Act be enacted. In 1991, the leak of a Central Bureau of Investigation report titled “Tapping of Politicians’ Phones” prompted the rights groups, People’s Union of Civil Liberties to file a writ petition, which eventually led to a Supreme Court of India ruling that recognized the right to privacy of communications for all citizens as part of the fundamental rights of freedom of speech and of life and personal liberty. However, through the 2008 amendments to the Information Technology Act, the IT Rules framed in 2011 and the telecom licenses, the government has greatly weakened the right to privacy as recognized by the Supreme Court. The damage must be undone through a strong privacy law that safeguards the privacy of Indian citizens against both the state and corporations. The law should not only provide legal procedures, but also ensure that the government should not employ technologies that erode legal procedures.

A strong privacy law should provide strong grounds on which to hold the National Security Advisor’s mass surveillance of Indians (over 12.1 billion pieces of intelligence in one month) as unlawful. The law should ensure that Parliament, and Indian citizens, are regularly provided information on the scale of surveillance across India, and the convictions resulting from that surveillance. Individuals whose communications metadata or content is monitored or intercepted should be told about it after the passage of a reasonable amount of time. After all, the data should only be gathered if it is to charge a person of committing a crime. If such charges are not being brought, the person should be told of the incursion into his or her privacy.

The privacy law should ensure that all surveillance follows the following principles: legitimacy (is the surveillance for a legitimate, democratic purpose?), necessity (is this necessary to further that purpose? does a less invasive means exist?), proportionality and harm minimization (is this the minimum level of intrusion into privacy?), specificity (is this surveillance order limited to a specific case?) transparency (is this intrusion into privacy recorded and also eventually revealed to the data subject?), purpose limitation (is the data collected only used for the stated purpose?), and independent oversight (is the surveillance reported to a legislative committee or a privacy commissioner, and are statistics kept on surveillance conducted and criminal prosecution filings?). Constitutional courts such as the Supreme Court of India or the High Courts in the Indian states should make such determinations. Citizens should have a right to civil and criminal remedies for violations of surveillance laws.

Indian citizens should also take greater care of their own privacy and safeguard the security of their communications. The solution is to minimize usage of mobile phones and to use anonymizing technologies and end-to-end encryption while communicating on the Internet. Free and open-source software like OpenPGP can make e-mails secure. Technologies like off-the-record messaging used in apps like ChatSecure and Pidgin chat conversations, TextSecure for text messages, HTTPS Everywhere and Virtual Private Networks can prevent Internet service providers from being able to snoop, and make Internet communications anonymous.

Indian government, and especially our intelligence agencies, violate Indian citizens’ privacy without legal authority on a routine basis. It is time India stops itself from sleepwalking into a surveillance state.

For more details visit https://cis-india.org/internet-governance/blog/new-york-times-july-11-2013-can-india-trust-its-government-on-piracy

Indian govt blocks 40 smut sites, forgets to give reason

praskrishna — 2013-07-01T09:04:26Z

Don't mind us, we're just censoring your content for you...

The article by Phil Muncaster was published in "The Register" on June 27, 2013. Sunil Abraham is quoted.

The Indian government has ordered ISPs to block 39 smut flick web sites hosted outside the country without giving any explanation, stoking further fears of online censorship by the back door.

Most of the sites are web forums and so allow for the uploading of naughty images and URLs where smut-seekers can download their grumble flicks, according to Times of India.

However, the sites claim to operate under the 18 USC 2257 rule, meaning actors are (supposedly) over 18 years of age, and there is apparently no indication from the Department of Telecom's order why ISPs are being asked to comply.

The message greeting web users who try to visit a blocked site now reads as follows:

This website has been blocked until further notice either pursuant to court orders or on the directions issued by the Department of Telecommunications.

While the law, updated in 2011, does forbid production, transmission and sharing of smutty content in India - therefore requiring internet cafes, for example, to block such content - there is no ban on consumption, especially from sites hosted outside India.

Sunil Abraham, director of Indian not-for-profit the Centre for Internet and Society, told ToI that the government is probably interpreting the law to serve its own ends, and that its ISP order “is a clear overreach”.

The Union government has certainly been quick in the past to order blocks on any content deemed inappropriate.

Facebook and Google were forced to remove “objectionable content” from their Indian sites last year after complaints it was offensive to Muslims, Hindus and Christians.

The government was also one of many across the globe to force Google to block notorious YouTube video Innocence of Muslims.

A controversial anti-piracy ruling last June, meanwhile, led to a clumsy, large-scale block on a number of legitimate sites in the country – drawing the ire of hacktivist group Anonymous.

The government also closed hundreds of sites and social media accounts in August last year in a bid to prevent the escalation of sectarian violence across the country.

In fact, the number of content removal requests received by Google increased by 90 per cent from July-December 2012 compared with the previous six months.

For these reasons, India only enjoys “Partly Free” status, according to the Freedom on the Net 2012 report from not-for-profit Freedom House.

For more details visit https://cis-india.org/news/the-register-phil-muncaster-june-27-2013-indian-govt-blocks-40-smut-sites-forgets-to-give-reason

Govt goes after porn, makes ISPs ban sites

praskrishna — 2013-07-01T10:11:29Z

The government has decided to put a blanket ban on several websites that allow users to share pornographic content.

The article by Javed Anwer was published in the Times of India on June 26, 2013. Sunil Abraham is quoted.

In an order dated June 13, department of telecom (DoT) has directed internet service providers (ISPs) to block 39 websites. Most of them are web forums, where internet users share images and URLs to download pornographic files. But some of these websites are also image hosts and file hosts, mostly used to store and share files that are non-pornographic.

While watching or distributing child pornography is illegal in India, watching adult pornography is not banned. The blocked websites are hosted outside India and claim to operate under the 18 USC 2257 rule enforced by the US. The rule specifies that producers of pornographic material are required to retain records showing performers were over 18 years of age at the time of video or image shoot.

The DoT order doesn't specify any reason or law under which the websites have been blocked. It says, "It has been decided to immediately block the access to the following URLs... you are accordingly directed to immediately block the access to above URLs."

If a user visits the blocked website, he/she is either shown a blank page or a message telling "this website has been blocked until further notice either pursuant to court orders or on the directions issued by the Department of Telecommunications".

A senior DoT official, who pleaded anonymity because he is not authorized to speak to the media, said the department was just following the orders issued by cyber security coordination committee and hence could not talk about the specific reasons behind the block.

Centre for Internet and Society (CIS), a Bangalore-based organization, says blocking of pornographic website is overreach on the part of the government.

"In the case of file hosts and image hosts, which people use for various purposes including for storing personal files, the DoT order is a clear overreach," said Sunil Abraham, director of CIS. "Even in the case of pornography, there is nothing in the IT Act that can be used to block websites hosted outside in India."

He added, "There is a possibility that government is interpreting some sections of the IT Act to suit its purpose but I feel that is wrong and should be challenged in the court by ISPs if they care about the rights of their users."

Rajesh Chharia, president of Internet Service Providers Association of India, said that it was not possible for ISPs to pushback orders from DoT. "We are the licensee and we have to operate under the laws... we can't pushback," he said.

"But I feel ideally the government should ask the people who have produced objectionable content to remove it from the web if these people are in India... If they are outside, the websites should be blocked at the international cable landing stations. Involving 150-odd ISPs to implement an order is not the right way to do it," added Chharia.

Though IT Act doesn't criminalize watching porn, the new rules notified in 2011 have certain provisions that show the government wants to dictate what people watch or do not watch on the web. For example, the rules ask an intermediary like an ISP to "inform users of computer resources not to host, display, upload, modify, publish, and transmit any information that is obscene and pornographic".

The rules meant for cyber cafe owners specify that they "shall display a board, clearly visible to the users, prohibiting them from viewing pornographic sites as well as copying or downloading information which is prohibited under the law".

Abraham says that going after pornographic websites, and that too in a non-transparent manner, serves no purpose.

"I have travelled to China and Middle East and have seen that people access pornographic websites using various web tools. In fact, by banning websites the governments have made it more alluring for users to watch and access pornography," he said. None of the western democracies have explicit ban on pornography.

Abraham added that Indian government should also be more transparent about blocking websites because the current method was prone to abuse. "They should notify owner of the blocked website, clearly tell web users why a website is getting blocked and tell public how many websites they have blocked."

For more details visit https://cis-india.org/news/times-of-india-javed-anwer-june-26-2013-govt-goes-after-porn-makes-isps-ban-sites

Facebook, Google deny spying access

praskrishna — 2013-07-02T10:18:48Z

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

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

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

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

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

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

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

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

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

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

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

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

The Bapsybanoo Marchioness of Winchester Lectures

praskrishna — 2013-06-09T03:35:38Z

Chinmayi Arun was a speaker at the Bapsybanoo Marchioness of Winchester Lectures on 'India's Politics of Free Expression' in the University of Oxford on May 31 2013, in the session on 'media and security'.

The Asian Studies Centre, Free Speech Debate, the Oxford India Society and Ideas for India Oxbridge Exchange were the co-sponsors for this event.

Theme: India's Politics of Free Expression
Date: May 31, 2013
Time: 10.00 a.m. to 6.15 p.m.
Venue: Nissan Lecture Theatre, St. Antony's College, Oxford

More details can be found here.

For more details visit https://cis-india.org/news/sant-ox-ac-uk-may-31-2013-bapsybanoo-marchioness-winchester-lectures

A Technological Solution to the Challenges of Online Defamation

Eduardo Bertoni — 2013-07-02T14:47:46Z

When people are insulted or humiliated on the Internet and decide to take legal action, their cases often follow a similar trajectory.

This blog post written by Eduardo Bertoni was published in GlobalVoices on May 28, 2013. CIS has cross-posted this under the Creative Commons Licence.

Consider this scenario:

A public figure, let’s call her Senator X, enters her name into a search engine. The results surprise her — some of them make her angry because they come from Internet sites that she finds offensive. She believes that her reputation has been damaged by certain content within the search results and, consequently, that someone should pay for the personal damages inflicted.

Her lawyer recommends appealing to the search engine – the lawyer believes that the search engine should be held liable for the personal injury caused by the offensive content, even though the search engine did not create the content. The Senator is somewhat doubtful about this approach, as the search engine will also likely serve as a useful tool for her own self-promotion. After all, not all sites that appear in the search results are bothersome or offensive. Her lawyer explains that while results including her name will likely be difficult to find, the author of the offensive content should also be held liable. At that point, one option is to request that the search engine block any offensive sites related to the individual’s name from its searches. Yet the lawyer knows that this cannot be done without an official petition, which will require a judge’s intervention.

“We must go against everyone – authors, search engines – everyone!” the Senator will likely say. “Come on!” says the lawyer, “let's move forward.” However, it does not occur to either the Senator or the lawyer that there may be an alternative approach to that of classic courtroom litigation. The proposal I make here suggests a change to the standard approach – a change that requires technology to play an active role in the solution.

Who is liable?

The “going against everyone” approach poses a critical question: Who is legally liable for content that is available online? Authors of offensive content are typically seen as primarily liable. But should intermediaries such as search engines also be held liable for content created by others?

This last question raises a very specific, procedural question: Which intermediaries will be the subjects of scrutiny and viewed as liable in these types of situations? To answer this question, we must distinguish between intermediaries that provide Internet access (e.g. Internet service providers) and intermediaries that host content or offer content search functions. But what exactly is an ‘intermediary’? And how do we evaluate where an intermediary’s responsibility lies? It is also important to distinguish those intermediaries which simply connect individuals to the Internet from those that offer different services.

What kind of liability might an intermediary carry?

This brings us to the second step in the legal analysis of these situations: How do we determine which model we use in defining the responsibility of an intermediary? Various models have been debated in the past. Leading concepts include:

strict liability, under which the intermediary must legally respond to all offensive content
subjective liability, under which the intermediary’s response depends on what it has done and what it was or is aware of
conditional liability – a variation on subjective liability – under which, if an intermediary was notified or advised that it was promoting or directing users to illegal content and did nothing in response, it is legally required to respond to the offensive content.

These three options for determining liability and responses to offensive online content have been included in certain legislation and have been used in judicial decisions by judges around the world. But not one of these three alternatives provides a perfect standard. As a result, experts continue to search for a definition of liability that will satisfy those who have a legitimate interest in preventing damages that result from offensive content online.

How are victims compensated?

Now let’s return to the example presented earlier. Consider the concept of Senator X’s “satisfaction.” In these types of situations, “satisfaction” is typically economic — the victim will sue for a certain amount of money in “damages”, and she can target anyone involved, including the intermediary.

Interestingly, in the offline world, alternatives have been found for victims of defamation: For example, the “right to reply” aims to aid anyone who feels that his or her reputation or honor has been damaged and allows individuals to explain their point of view.

We must also ask if the right to reply is or is not contradictory to freedom of expression. It is critical to recognize that freedom of expression is a human right recognized by international treaties; technology should be able to achieve a similar solution to issues of online defamation without putting freedom of expression at risk.

Solving the problem with technology

In an increasingly online world, we have unsuccessfully attempted to apply traditional judicial solutions to the problems faced by victims like Senator X. There have been many attempts to apply traditional standards because lawyers are accustomed to using in them in other situations. But why not change the approach and use technology to help “satisfy” the problem?

The idea of including technology as part of the solution, when it is also part of the problem, is not new. If we combine the possibilities that technology offers us today with the older idea of the right to reply, we could change the broader focus of the discussion.

My proposal is simple: some intermediaries (like search engines) should create a tool that allows anyone who feels that he or she is the victim of defamation and offensive online content to denounce and criticize the material on the sites where it appears. I believe that for victims, the ability to say something and to have their voices heard on the sites where others will come across the information in question will be much more satisfactory than a trial against the intermediaries, where the outcome is unknown.

This proposal would also help to limit regulations that impose liability on intermediaries such as search engines. This is important because many of the regulations that have been proposed are technologically impractical. Even when they can be implemented, they often result in censorship; requirements that force intermediaries to filter content regularly infringe on rights such as freedom of expression or access to information.

This proposal may not be easy to implement from a technical standpoint. But I hope it will encourage discussion about the issue, given that a tool like the one I have proposed, although with different characteristics, was once part of Google’s search engine (the tool, “Google Sidewiki” is now discontinued). It should be possible improve upon this tool, adapt it, or do something completely new with the technology it was based on in order to help victims of defamation clarify their opinions and speak their minds about these issues, instead of relying on courts to impose censorship requirements on search engines. This tool could provide much greater satisfaction for victims and could help prevent the violation of the rights of others online as well.

Critics may argue that people will not read the disclaimers or statements written by “defamed” individuals and that the impact and spread of the offensive content will continue unfettered. But this is a cultural problem that will not be fixed by placing liability on intermediaries. As I explained before, the consequences of doing so can be unpredictable.

If we continue to rely on traditional regulatory means to solve these problems, we’ll continue to struggle with the undesirable results they can produce, chiefly increased controls on information and expression online. We should instead look to a technological solution as a viable alternative that cannot and should not be ignored.

Eduardo Bertoni is the Director of the Center for Studies on Freedom of Expression and Access to Information at Palermo University School of Law in Buenos Aires. He served as the Special Rapporteur for Freedom of Expression to the Organization of American States from 2002-2005.

For more details visit https://cis-india.org/internet-governance/blog/global-voices-may-28-2013-eduardo-bertoni-a-technological-solution-to-the-challenges-of-online-defamation

Google Policy Fellowship Programme: Call for Applications

praskrishna — 2013-05-17T01:01:47Z

The Centre for Internet & Society (CIS) is inviting applications for the Google Policy Fellowship programme. Google is providing a USD 7,500 stipend to the India Fellow, who will be selected by July 1, 2013.

The Google Policy Fellowship offers successful candidates an opportunity to develop research and debate on the fellowship focus areas, which include Access to Knowledge, Openness in India, Freedom of Expression, Privacy, and Telecom, for a period of about ten weeks starting from July 7, 2013 upto October 1, 2013. CIS will select the India Fellow. Send in your applications for the position by June 15, 2013.

To apply, please send to google.fellowship@cis-india.org the following materials:

Statement of Purpose: A brief write-up outlining about your interest and qualifications for the programme including the relevant academic, professional and extracurricular experiences. As part of the write-up, also explain on what you hope to gain from participation in the programme and what research work concerning free expression online you would like to further through this programme. (About 1200 words max).
Resume
Three references

Fellowship Focus Areas

Access to Knowledge: Studies looking at access to knowledge issues in India in light of copyright law, consumers law, parallel imports and the interplay between pervasive technologies and intellectual property rights, targeted at policymakers, Members of Parliament, publishers, photographers, filmmakers, etc.

Openness in India: Studies with policy recommendations on open access to scholarly literature, free access to law, open content, open standards, free and open source software, aimed at policymakers, policy researchers, academics and the general public.

Freedom of Expression: Studies on policy, regulatory and legislative issues concerning censorship and freedom of speech and expression online, aimed at bloggers, journalists, authors and the general public.

Privacy: Studies on privacy issues like data protection and the right to information, limits to privacy in light of the provisions of the constitution, media norms and privacy, banking and financial privacy, workplace privacy, privacy and wire-tapping, e-governance and privacy, medical privacy, consumer privacy, etc., aimed at policymakers and the public.

Telecom: Building awareness and capacity on telecommunication policy in India for researchers and academicians, policymakers and regulators, consumer and civil society organisations, education and library institutions and lay persons through the creation of a dedicated web based resource focusing on knowledge dissemination.

Frequently Asked Questions

What is the Google Policy Fellowship program?

The Google Policy Fellowship program offers students interested in Internet and technology related policy issues with an opportunity to spend their summer working on these issues at the Centre for Internet and Society at Bangalore. Students will work for a period of ten weeks starting from June 1, 2013. The research agenda for the program is based on legal and policy frameworks in the region connected to the ground-level perceptions of the fellowship focus areas mentioned above.

I am an International student can I apply and participate in the program? Are there any age restrictions on participating?

Yes. You must be 18 years of age or older by January 1, 2013 to be eligible to participate in Google Policy Fellowship program in 2013.

Are there citizenship requirements for the Fellowship?

For the time being, we are only accepting students eligible to work in India (e.g. Indian citizens, permanent residents of India, and individuals presently holding an Indian student visa. Google cannot provide guidance or assistance on obtaining the necessary documentation to meet the criteria.

Who is eligible to participate as a student in Google Policy Fellowship program?

In order to participate in the program, you must be a student. Google defines a student as an individual enrolled in or accepted into an accredited institution including (but not necessarily limited to) colleges, universities, masters programs, PhD programs and undergraduate programs. Eligibility is based on enrollment in an accredited university by January 1, 2013.

I am an International student can I apply and participate in the program?

In order to participate in the program, you must be a student (see Google's definition of a student above). You must also be eligible to work in India (see section on citizen requirements for fellowship above). Google cannot provide guidance or assistance on obtaining the necessary documentation to meet this criterion.
I have been accepted into an accredited post-secondary school program, but have not yet begun attending. Can I still take part in the program?

As long as you are enrolled in a college or university program as of January 1, 2013, you are eligible to participate in the program.
I graduate in the middle of the program. Can I still participate?

As long as you are enrolled in a college or university program as of January 1, 2013, you are eligible to participate in the program.

Payments, Forms, and Other Administrative Stuff

How do payments work?

Google will provide a stipend of USD 7,500 equivalent to each Fellow for the summer.

Accepted students in good standing with their host organization will receive a USD 2,500 stipend payable shortly after they begin the Fellowship in June 2013.
Students who receive passing mid-term evaluations by their host organization will receive a USD 1,500 stipend shortly after the mid-term evaluation in July 2013.
Students who receive passing final evaluations by their host organization and who have submitted their final program evaluations will receive a USD 3,500 stipend shortly after final evaluations in August 2013.

Please note: Payments will be made by electronic bank transfer, and are contingent upon satisfactory evaluations by the host organization, completion of all required enrollment and other forms. Fellows are responsible for payment of any taxes associated with their receipt of the Fellowship stipend.

*While the three step payment structure given here corresponds to the one in the United States, disbursement of the amount may be altered as felt necessary.

What documentation is required from students?

Students should be prepared, upon request, to provide Google or the host organization with transcripts from their accredited institution as proof of enrollment or admission status. Transcripts do not need to be official (photo copy of original will be sufficient).

I would like to use the work I did for my Google Policy Fellowship to obtain course credit from my university. Is this acceptable?

Yes. If you need documentation from Google to provide to your school for course credit, you can contact Google. We will not provide documentation until we have received a final evaluation from your mentoring organization.

Host Organizations

What is Google's relationship with the Centre for Internet and Society?

Google provides the funding and administrative support for individual fellows directly. Google and the Centre for Internet and Society are not partners or affiliates. The Centre for Internet and Society does not represent the views or opinions of Google and cannot bind Google legally.

Important Dates

What is the program timeline?

June 15, 2013	Student Application Deadline. Applications must be received by midnight.
July 1, 2013	Student applicants are notified of the status of their applications.
July 2013	Students begin their fellowship with the host organization (start date to be determined by students and the host organization); Google issues initial student stipends.
August 2013	Mid-term evaluations; Google issues mid-term stipends.
October 2013	Final evaluations; Google issues final stipends.

For more details visit https://cis-india.org/internet-governance/blog/google-policy-fellowship-call-for-applications-2013

Is free speech an Indian value?

praskrishna — 2013-04-30T07:18:10Z

Is freedom of speech and expression deeply accepted in Indian society? Or is it merely a European cultural import that made its way along with the English language and appeared in the Constitution because of the founding fathers' genius? Satarupa Sen Bhattacharya reviews Freedom Song, a film and connects the dots.

Satarupa Sen Bhattacharya's blog post was published in India Together on April 27, 2013. Snehashish Ghosh is quoted.

Debates on freedom of speech can be traced back to the earliest evolutions of human society, but if there is a time which could be considered most apposite for this debate to come to the fore and dominate public thought and discourse, this surely would be it for Indian society.

From the banishment of literary icons such as Salman Rushdie to repeated assaults on artists and cartoonists seeking to express their viewpoints through their art, and even the gag on the common man’s voice in traditional and new media, freedom of speech and expression has found itself under fire increasingly and in the most alarming of ways.

Is India as a nation becoming more intolerant of contrarian perspectives, or is it merely that voices seeking to stifle dissent are now amplified, thanks to a greater number, as well as newer forms, of media covering this debate?

Can India really achieve free speech in the way that its founding fathers conceived of and constitutionalized it?

These are the questions probed in Freedom Song – a 52-minute documentary from the Public Services Broadcasting Trust, co-directed by veteran journalist, author and academic Paranjoy Guha Thakurta and Professor Subi Chaturvedi.

Freedom Song, the film

Interestingly, since the time Freedom Song was conceived of and filmed, the clamp-down or attacks on free speech in India have only become more frequent and flagrant. This was made much before the time that Salman Rushdie, in almost a repeat of the 2010 Jaipur Lit-fest incident, was stopped by the state from attending the screening of Midnight’s Children in Kolkata; or when two young girls from Palghar in Maharashtra were arrested by the police merely because one of them had questioned on Facebook the derailment of normal life in Mumbai following Balasaheb Thackeray’s death and the other had ‘liked’ it; or even before the long-awaited Kamal Hassan film Vishwaroopam was banned for purportedly offending the sensibilities of a religious community in a few scenes, which the director eventually had to agree to censor in order to ensure that his creation could reach the audience.

Freedom Song, the documentary, chronologically precedes all of these as well as the debate and outrage over sociologist Ashish Nandy’s remarks on corruption and backward castes; yet, when one sees it now, recalls the numerous incidents highlighted in the film, and hears the debates that rage on, the larger context and culture that has facilitated the perpetuation of suppression become clearer. It also drives home, disturbingly, the alarming regularity with which speech and expression have been muffled. It can thus be seen as a commentary on the gradual but consistent build-up to the current climate where there is an almost systematic and continuous crackdown on free speech whenever it inconveniences the powers-that-be.

Gags on expression - recent incidents

In July 2010, when T.J. Joseph, a professor of Malayalam at the Newman College in Thodupuzha (Ernakulam district) in Kerala was arrested by police following a controversial examination question set by him, allegedly containing disparaging remarks about the Prophet Mohammad. He was released on bail but suspended from his post following protests by Islamic organizations. But suspension wasn’t the last of Joseph’s tribulations: he was brutally attacked by a gang of men who chopped off his hand at the wrist with an axe. He was also stabbed in the arms and legs. While Joseph’s hand was stitched back in a 16-hour-long operation, even as he was recuperating, his college terminated his services on grounds that he had offended the religious sentiments of students. He was also stripped of all benefits and pension.

Curiously, Joseph himself distances the entire incident from the issue of freedom of expression. In his conversation with the film-makers he says that whatever happened could be interpreted as attempts to meddle with and dilute academic independence in the state. “The incident is not related to the issue of freedom of expression...external attempts to break down communication between students and their teacher was at the core of the entire episode,” says Joseph. Even Union Minister for Human Resource Development Shashi Tharoor, who hails from the state himself, attributes this incident to the act of some anti-social fringe elements who masquerade as representatives of a particular community. But these arguments from the victim himself, and an eminent authority, cannot resolve the question of his expulsion from service. Nor can they address the fact that the atmosphere of tolerance in the country is such that anti-socials can hijack as simple an academic exercise as question-setting to their advantage and perpetrate such atrocities.

A more recent incident highlighted in the documentary is the arrest and detention of Ambikesh Mahapatra, a professor of Chemistry in Jadavpur University of West Bengal for forwarding a set of cartoons that allegedly defamed Chief Minister Mamata Banerjee. Shortly after the dismissal of Union Railway Minister, Trinamool’s Dinesh Trivedi, and his replacement by Mukul Roy, the widely-circulated cartoon showed Roy and the CM having a conversation along the lines of one in a very popular Satyajit-Ray film, conspiring to get rid of Trivedi.

Ambikesh was not the creator of this cartoon – as he himself says, he received it on a forwarded email. Amused by it, he wanted to share it with his friends. Thus he forwarded it again to over 60 members of his housing co-operative society, some of whom happened to have affiliations to the party in power. This action led to the professor being arrested and charged under IPC Sections 509 (insulting the modesty of a woman), Section 500 (defamation) and Section 66 A of the IT Act (causing offence using a computer). He had to spend a night in jail before he was released on bail the following afternoon.

However, charges against the professor have since been dropped and the West Bengal Human Rights Commission (WBHRC) ruled that the state police were indeed guilty of harassing the professor (and one of his colleagues, who had also been arrested).

Paranjoy Guha Thakurta, co-director of Freedom Song

Muffling creativity

One thing that stands out pretty sharply in Freedom Song is the deep angst shared by the creative fraternity in the country over the assault on free speech. Perhaps, by dint of being that section of society which is most inclined to spontaneous and non-conformist expression, they also constitute one of the most vulnerable groups when it comes to being restrained or gagged.

One of the darkest chapters of suppression of artistic expression in India relates to the forced exile of iconic painter M F Hussain during the last days of his life, after being targeted for his nudist depictions of Hindu Gods and Goddesses. Sadly, as artist Arpana Caur points out, such waves of intolerance or fanaticism fail to factor in either subjective value judgments (how deeply Hussain must have loved Hindu culture and mythology to actually apply his creative instincts to bring it alive) or objective facts (that the nudist paintings were actually done in the ancient Khajuraho tradition of figurative depiction, it was not something Hussain had developed).

Often, the gag on works by artists and writers has transcended to direct discrimination against the person himself. The state of West Bengal banned exiled Bangladeshi author Taslima Nasreen’s book “Dwikhandito” in 2003 on fears that it would stoke communal disharmony. When human rights activists challenged the decision in Court and managed to win rulings on her behalf, the writer herself was banished from public life in the state. She was unceremoniously asked to leave the state in 2007, after violent protests against her by fundamentalists. Much later in 2012, even after the political reins in the state had changed hands, the launch of her book at the Kolkata Book Fair was cancelled upon threats of protest.

One of the most heart-rending is the story of Pakistani singer Ali Haidar, who confesses to being almost brainwashed, in one of his weakest moments, by radical elements into believing that the loss of his child was in fact a retribution for him having taken up music as a profession.

The feeling of anger, frustration and even a sense of bewilderment among the artists, writers and performers interviewed in the documentary is almost palpable. As Rajiv Lochan, Director of the National Gallery of Modern Art, says, “Freedom of expression, creative freedom…in simple words, that is the only freedom you are born with...” The unuttered question of how anyone can take that away from you hangs heavy in the silence.

If artists are the most vulnerable, they are also perhaps the most resilient. In the context of the various cartoon controversies that this nation has seen and the proscriptions of cartoonists from Shankar to Aseem Trivedi, eminent political cartoonist Sudhir Tailang says, “We cartoonists know only one way of protest, which is the most peaceful, Gandhian way…you do what you want, we’ll draw a cartoon…and more cartoons… we’ll flood you with cartoons.”

The defiance and rejection of censorship is also strongly voiced by noted danseuse Mallika Sarabhai, who talks of the various forms of attack and insult that she has been subjected to for her unconventional presentations and activism, but asserts that despite all of it, she feels it is her “dharma to go on.”

The language barrier

Perhaps unwittingly, Freedom Song tends to favour the premise that freedom of speech as a principle in India is largely a preoccupation among the English-educated, intellectual and creative segments of the populace. Even the musical score that has played such a dominant part in invoking the spirit of freedom throughout the film seems to underline that - from the refrains of Bob Marley’s ‘Won't you help to sing these songs of freedom,’ to the remixed pop version of ‘Raghupati Raghav Raja Ram’ that one hears in parties and joints in India’s westernized urban landscape.

How attuned to the issue of free speech is the wide majority of India, the section that still follows vernacular media and are relatively distanced from the constructs of Anglo-Saxon influence? The verdict on the linguistic divide does not emerge with clear certainty when we talk to intellectuals or thought leaders from various parts of the country.

In the words of academic Subhoranjan Dasgupta, a professor at the Kolkata-based Institute of Development Studies, mainstream Bengali media has played a big role in highlighting transgressions of freedom of speech and expression every time it has occurred, irrespective of the political regime in power at the time.

"Whether in the case of the ban on Taslima Nasreen or the arrest of Professor Mahapatra, local media - and especially two widely-followed dailies, the Anandabazar Patrika and Ei Shomoy - have been audibly vocal and consistent in their coverage of these incidents," says Dasgupta. "Irrespective of political ideologies, the common man in Bengal knows that Taslima Nasreen got a raw deal or that what happened to the professor was not acceptable," he adds. Ostensibly, the role of local media in such public consciousness cannot be written off. In a way, it might not be an exaggeration to say that the voices of these publications have been instrumental, to a large extent, in ensuring that these issues grab the eyeballs of the largest number possible, and hence gain traction.

And yet, a completely different picture emerges as one reaches out to another part of the country. Badri Seshadri, Publisher, New Horizon Media - a Chennai-based company that publishes books in Tamil, and an active blogger, feels that notions of freedom, or free speech, are essentially offshoots of the modern era which have found a voice in our country primarily through English media.

Seshadri goes back to the freedom struggle in India when many among the noted thought leaders and freedom exponents wrote both in English and the local language. In those days, the discourse on freedom of thought and expression were perhaps more at par across spheres. But with the dying trend of bilingual writing, intellectual writing increasingly gravitated towards English. Today, the gulf between English writers and regional writers has become so huge in his state that even the most fundamental of issues are discussed in vocabularies that cannot bridge the schism. Issues pertaining to secularism and democracy are viewed with a completely different lens in vernacular media, and those pertaining to liberalism, not at all.

"Take the case of the most recent ban on Kamal Hassan's Vishwaroopam," points out Seshadri; "this was not a film made in Hindi or English that you could assume to be emotively disconnected from the Tamil mindspace. It was a film that had been made by one of the cult film personalities of the region, and yet even as the national English media followed this issue and consistently questioned the violation of an individual's right to creative freedom, deliberations in local channels and publications were strangely muted and focused only on whether or not the disputed scenes in the film could be considered to be offensive to the Islamic community. The larger debate on whether one has the right to offend, in an impersonal way, was completely missing." Those who want to toe the line of liberalism either through their writing or new media are dismissed as harbouring "fancy" ideals or pandering to Western sensibilities.

Guhathakurta, himself, disagrees with the claim that free expression is essentially a Western construct or that debates around it are restricted to the chattering classes in plush drawing rooms. “It is something that concerns every common man,” he says, referring to the case of Laxmi Oraon, the teenaged tribal girl who was stripped, beaten and molested in the streets of Guwahati, where she had been part of a peaceful protest rally, seeking the inclusion of 80 lakh Adivasis living in Assam in the ST category. Traumatised and deeply angered by the brutal injustice meted out to her and the lack of legal redress, Laxmi eventually even contested the Lok Sabha elections, points out the director in order to elucidate the struggle that even the most marginalized take part in to press for their fundamental rights.


A still from the documentary Freedom Song. Pic: PSBT India via Youtube

"Reasonable” restrictions

Despite the continuous infringements on artistic and even individual expression, what emerges from the film is not a blanket wave of intolerance that is engulfing society but rather certain powerful groups with vested interests who are driven either by fanaticism for their ideologies or by the lure of political mileage to raise voices against freedom. In the age of 24x7 channels, their voices gain in both volume and pitch and new media enables greater visibility and debate around it.

As Tharoor says, “The government has the lowest level of tolerance possible because it cannot be seen as offending anybody who is held precious by any segments of Indian society.”

Veteran journalist Saeed Naqvi points out, “You have a whole link between the politician, the vote bank and the proprietor. Therefore, the freedom of the press, while this trio exists, is under threat.”

But having said all of the above, it is also clear that defining freedom, especially in an absolute sense, is in itself a huge challenge that most of society acknowledges. More so, in the context of Article 19 (2) of the Constitution which itself allows the state to impose “reasonable restrictions on the exercise of the right...in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”

Senior journalists such as Rajdeep Sardesai are quoted in the documentary, expressing their support for such ‘reasonable restrictions’ to combat the spread of expression or opinion that fuels divisiveness or hatred in society. But the fact remains that such restrictions not only add a qualifier to freedom as enshrined in the founding principles, but also create the larger question of ‘who decides?’

Young India however would prefer to see Article 19 (2) as an enabler rather than as a veto. As Apar Gupta, an advocate of the Supreme Court says in the film, he would like to believe that the incorporation of “reasonable restrictions” was done with a view to ensuring that the Constitution does not remain a static document and does not apply only to fixed definitions of facts and circumstances. Certainly not with the objective of curbing any form of dissent or deviation from convention.

Fali S. Nariman, senior advocate to the Supreme Court and a constitutional jurist, also points out very pertinently that the range of restrictions in 19(2) does not include public interest.

Reality does not bear that out though; especially when one looks at the many recent instances of arbitrary impositions of Sec 66A of the IT Act in booking individuals for expression of their opinion and stances through channels offered by new media and Internet. The documentary in itself does not delve deep into the challenges and threats to freedom of expression that have emerged in the FB/Twitter era, perhaps because many of the most volatile and controversial cases surrounding freedom of speech on the Internet occurred after the film was made. But a new debate is brewing in India, especially after the Palghar incident or the arrest of a Puducherry businessman for allegedly posting 'offensive' text on the micro-blogging site Twitter about the son of an Union Minister.

Snehashish Ghosh, a lawyer and Policy Associate at the Centre for Internet and Society, Bangalore, says, “Essentially, there are eight restrictions on freedom of speech and expression as enumerated in Article 19(2) of the Constitution. The Supreme Court in many cases has held that these reasonable restrictions should be construed narrowly and with due regards to the value of freedom of speech in a democratic society. Section 66A in its current form goes well beyond the restrictions laid down under Article 19(2). Therefore, it is liable to be struck down for being in violation of Article 19(1)(a) of the Constitution.”

Snehashish also feels that technologically, in the present time, it would be near-impossible to 'monitor' the Internet. As far as regulations are concerned, there are laws already in place which ensure the implementation of reasonable restrictions. For example, the Indian Penal Code, 1860 already covers offenses such as incitement of violence, obscenity, criminal intimidation and outraging religious sentiments. The laws which are being applied offline are well equipped to deal with offenses committed online. There is no need to have extraordinary laws where ordinary laws suffice.

But in a country that appears to grow increasingly thin-skinned with time, the import of such logic could well be lost.

Access and freedom

Interestingly, Freedom Song begins with a series of frames capturing the widely different and divergent faces of Indian society, fast moving scenes juxtaposing the educated, affluent sections of urban India against the child who performs on sidewalks to earn his bread or the old emaciated man getting his night’s sleep on the pavement. The clear correlation between access – to basic needs, education and media – and the very consciousness of freedom is hard to ignore.

“Freedom to me is the ability to do what I want, where no one tells me to do anything” says one child on screen, evidently from an English-speaking, relatively privileged background; but one cannot help feeling that his coherence and articulation on freedom would be hard to come across in the children on the streets who are filmed in some of the previous shots.

The point that access to the very basic necessities of life is a necessary condition for freedom of expression is driven home by social activist Ram Bhat in the documentary, who says that despite the technologies aiding free expression, and the profusion of players in this debate, talk of freedom of speech will be pointless unless the problem of access is solved. In its absence, such freedom will remain the privilege of a few.

On balance, in all the voices that emerge from our conversations, and the many more episodes that Freedom Song, the documentary narrates, the only thing that can be concluded without doubt is the challenge of establishing freedom as a perennial or permanent concept in a country as complex and diverse as India. A truly effective and desirable state of free speech and expression can only evolve out of a continuous, fearless, rational dialogue between society and its stakeholders, in which all voices are expressed and heard.

Whether India, as a whole, can facilitate such a dialogue is going to be the moot question in the times to come.

For more details visit https://cis-india.org/news/india-together-april-27-2013-satarupa-sen-bhattacharya-is-free-speech-an-indian-value

Regulating Social Media: Unrealistic, Impossible, Necessary?

praskrishna — 2013-04-30T16:50:13Z

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

This was published by NDTV on April 11, 2013.

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

Pranesh Prakash laid out four brief points:

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

Video

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

Parliament panel blasts govt over ambiguous internet laws

praskrishna — 2013-03-28T08:37:30Z

The Parliamentary Standing Committee on Subordinate Legislation has come out with a report in which it has lambasted the government and asked it to make changes to IT rules that govern internet-related cases in India.

This article by Ishan Srivastava was published in the Times of India on March 28, 2013. Pranesh Prakash is quoted.

It said in the report that multiple clauses in the laws had inherent ambiguity and that discrepancies exist in the government's stand on whether some rules are mandatory or only of advisory nature.

The committee said that inherent ambiguity of words like 'blasphemy' and `disparaging', among others, could lead to harassment of people as has happened with Section 66A of the IT Act repeatedly in recent times. Incidents include the arrest of two girls over 'liking' a Facebook post and a defamation case against an individual for an 'offensive' tweet. It has also been used by multiple politicians to suppress voices of dissent by branding them as 'defamatory'.

These ambiguous terms are used in the Intermediary Guidelines rules, passed in April 2011, which the committtee said could lead to legitimate speech being removed. Also, the Standing Committee noted that many categories of speech prohibited by the Intermediary Guidelines rules were not prohibited by any statute, and hence could not be prohibited by the government through these rules. The Standing Committee has asked the government to ensure that "no new category of crimes or offences is created" by these rules.

The committee also said that discrepancies exist in the nature of implementation of these laws. While the government's stand is that Intermediary Guidelines are only "of advisory nature and self-regulation" and that "it is not mandatory for the Intermediary to disable the information", the wording of the laws suggest otherwise. In many of the laws, terms like "shall act" within 36 hours are used. The committee said that there was a "need for clarity on the aforesaid contradiction" and "safeguards to protect against any abuse" since it could lead to censorship.

"The government has told the Committee that the rules are for "self-regulation", but they in fact aren't. The rules dictate what content cannot be hosted. And our research found that intermediaries react to fake takedown requests too, just to avoid being liable for their users' content. This is not self-regulation, but government-mandated private censorship," said Pranesh Prakash, policy director at the Centre for Internet and Society (CIS). CIS is a Bangalore-based non-profit body looking at issues of public accountability, privacy, free expression, and openness, and has consistently argued that many parts of the IT Act are unconstitutional.

The committee also suggested that all evidence relating to foreign websites refusing to honour Indian laws should be made public and a public debate should be encouraged as the internet is a global phenomena. Recently there have been instances of issues between the Indian government and tech giants like Facebook and Google related to censorship and taking down of 'offensive' and 'defamatory' content.

While the government's stand is that Intermediary Guidelines are only "of advisory nature and self-regulation" and that "it is not mandatory for the Intermediary to disable the information," the wording of the laws suggest otherwise.

For more details visit https://cis-india.org/news/times-of-india-ishan-srivastava-march-28-2013-parliament-panel-blasts-govt-over-ambiguous-internet-laws

CIS Welcomes Standing Committee Report on IT Rules

pranesh — 2013-04-03T10:54:52Z

The Centre for Internet and Society welcomes the report by the Standing Committee on Subordinate Legislation, in which it has lambasted the government and has recommended that the government amend the Rules it passed in April 2011 under section 79 of the Information Technology Act.

Click to read the Parliamentary Standing Committee Report on the IT Rules. A modified version was published in CiOL on March 27, 2013.

These rules have been noted by many, including CIS, Software Freedom Law Centre, and Society for Knowledge Commons, and many eminent lawyers, as being unconstitutional. The Standing Committee, noting this, has asked the government to make changes to the Rules to ensure that the fundamental rights to freedom of speech and privacy are safeguarded, and that the principles of natural justice are respected when a person’s freedom of speech or privacy are curtailed.

Ambiguous and Over-reaching Language

The Standing Committee has noted the inherent ambiguity of words like "blasphemy", "disparaging", etc., which are used in the Intermediary Guidelines Rules, and has pointed out that unclear language can lead to harassment of people as has happened with Section 66A of the IT Act, and can lead to legitimate speech being removed. Importantly, the Standing Committee recognizes that many categories of speech prohibited by the Intermediary Guidelines Rules are not prohibited by any statute, and hence cannot be prohibited by the government through these Rules. Accordingly, the Standing Committee has asked the government to ensure "no new category of crimes or offences is created" by these Rules.

Government Confused Whether Rules Are Mandatory or Advisory

The Standing Committee further notes that there is a discrepancy in the government’s stand that the Intermediary Guidelines Rules are not mandatory, and are only "of advisory nature and self-regulation", and that "it is not mandatory for the Intermediary to disable the information, the rule does not lead to any kind of censorship". The Standing Committee points out the flaw in this, and notes that the language used in the rules is mandatory language (“shall act” within 36 hours). Thus, it rightly notes that there is a "need for clarity on the aforesaid contradiction". Further, it also notes that there is "there should be safeguards to protect against any abuse", since this is a form of private censorship by intermediaries."

Evidence Needed Against Foreign Websites

The government has told the Standing Committee that "foreign websites repeatedly refused to honour our laws", however, it has not provided any proof for this assertion. The government should make public all evidence that foreign web services are refusing to honour Indian laws, and should encourage a public debate on how we should tackle this problem in light of the global nature of the Internet.

Cyber Cafes Rules Violate Citizens’ Privacy

The Standing Committee also pointed out that the Cyber Cafe Rules violated citizens’ right to privacy in requiring that "screens of the computers installed other than in partitions and cubicles should face open space of the cyber café". Unfortunately, the Standing Committee did not consider the privacy argument against retention of extensive and intrusive logs. Under the Cyber Cafe Rules, cyber cafes are required to retain (for a minimum of one year) extensive logs, including that of "history of websites accessed using computer resource at cyber café" in such a manner that each website accessed can be linked to a person. The Committee only considered the argument that this would impose financial burdens on small cybercafes, and rejected that argument. CIS wishes the Committee had examined the provision on log maintenance on grounds of privacy as well."

Government’s Half-Truths

In one response, the government notes that "rules under Section 79 in particular have undergone scrutiny by High Courts in the country. Based on the Rules, the courts have given reliefs to a number of individuals and organizations in the country. No provision of the Rules notified under Sections 43A and 79 of the IT Act, 2000 have been held ultra vires."

What the government says is a half-truth. So far, courts have not struck down any of the IT Rules. But that is because none of the High Court cases in which the vires of the Rules have been challenged has concluded. So it is disingenuous of the government to claim that the Rule have "undergone scrutiny by High Courts". And in those cases where relief has been granted under the Intermediary Guidelines, the cases have been ex-parte or have been cases where the vires of the Rules have not been challenged. The government, if it wants to defend the Rules, should point out to any case in which the vires of the Rules have been upheld. Not a single court till date has declared the Rules to be constitutional when that question was before it.

Lack of Representation of Stakeholders in Policy Formulation

Lastly, the Standing Committee noted that it is not clear whether the Cyber Regulatory Advisory Committee (CRAC), which is responsible for policy guidance on the IT Act, has "members representing the interests of principally affected or having special knowledge of the subject matter as expressly stipulated in Section 88(2) of the IT Act". This is a problem that we at CIS also noted in November 2012, when the CRAC was reconstituted after having been defunct for more than a decade.

CIS hopes that the government finally takes note of the view of legal experts, the Standing Committee on Delegated Legislation, the Parliamentary motion against the Rules, and numerous articles and editorials in the press, and withdraws the Intermediary Guidelines Rules and the Cyber Cafe Rules, and instead replaces them with rules that do not infringe our constitutional rights.

The Centre for Internet and Society is a non-profit research organization that works on policy issues relating to freedom of expression, privacy, accessibility for persons with disabilities, access to knowledge and IPR reform, and openness, and engages in academic research on digital natives and digital humanities. It was among the organizations that submitted evidence to the Standing Committee on Subordinate Legislation on the IT Rules.

For more details visit https://cis-india.org/internet-governance/blog/cis-welcomes-standing-committee-report-on-it-rules

Press controls ‘send wrong message to rest of world’

praskrishna — 2013-03-26T04:51:54Z

Britain could trigger an international media crackdown if the Government goes ahead with plans for a Royal Charter to introduce a new Press regulator, free speech campaigners warned yesterday.

Read the article written by Jerome Starkey from Johannesburg, Francis Elliott from Delhi and David Brown. It was published in the Times on March 21, 2013. Sunil Abraham is quoted.

Oppressive regimes will use the example of the planned regulation in Britain to justify tighter controls on their own media, it was claimed. Campaigners from across the Commonwealth are preparing to urge the Queen not to approve the Royal Charter when it is presented by the Privy Council on May 8. Senior journalists and campaigners in Africa and Asia accused Britain of “chilling media freedom” by legitimising state interference in the media.

Phenyo Butale, the director of South Africa’s Freedom of Expression Institute, said: “African governments have shown they are uncomfortable with free press acting as a watchdog, holding them to account. A move to statutory regulation in the UK would really be a gift for them.”

In Somalia, one of the most dangerous countries in the world to be a journalist, reporters said that they were alarmed by the British plans. “It’s alarming that the British Government is regulating the freedom of its press,” said Mohammed Ibrahim, secretary-general of the Somali Union of Journalists.

Sunil Abraham, director of the Centre for Internet and Society, a Bangalore-based organisation that campaigns against the Indian Government’s often heavy-handed attempts to regulate online content, said that the UK had surrendered the moral high ground in an important international debate.

“The UK has traditionally made free speech an important component of their foreign policy and when their own internal actions contradict their external position . . . they no longer have any influence on the Indian situation,” he said.

The Editorial Board of The New York Times wrote that the proposed regulation would “do more harm than good”, adding: “It is worth keeping in mind that journalists at newspapers like The Guardianand The [New York] Times, not the police, first brought to light the scope and extent of hacking by British tabloids. It would be perverse if regulations . . . ended up stifling the kind of hard-hitting investigative journalism that brought it to light in the first place.”

Mumsnet, one of the most popular blogging sites, has sought a guarantee from the Government that it would not be caught by the regulations. The Department for Culture, Media and Sport told the website that it “will ultimately be for the court to decide on the definition of a ‘relevant publisher’ ” covered by the new regulations “but our view is that Mumsnet would not be covered by the new regime”.

Justine Roberts, the website’s founder, has asked to be specifically included in the list of exempted websites.

The House of Lords will vote on Monday on the definition of “relevant publisher” when peers consider new amendments to the Crime and Courts Bill. Some of Britain’s major newspaper and magazine publishers have indicated that they will not join the new regulator.

For more details visit https://cis-india.org/news/the-times-uk-jerome-starkey-francis-elliott-david-brown-march-21-2013-press-controls-send-wrong-message-to-rest-of-world

India’s Civil Liberties Crisis: Of Bans, Blocks, Bullying and Biometrics

praskrishna — 2013-03-25T10:39:43Z

Malavika Jayaram will be a speaker at this event which is organized by the Center for Global Communication Studies and will be held at Annenberg School of Communication, University of Pennslyvania, Philadelphia, on March 28, 2013, from 12 p.m. to 1.30 p.m.

Read about the event on the website of the Center for Global Communication Studies.

Unlike the US First Amendment, the first amendment to the Constitution of India actually strengthened state regulation over freedom of speech. Irony aside, the amendment that is considered by many scholars as the first media crisis in post-colonial India has increasing relevance today. Its prioritization of sovereignty and national security over democratic rights and institutions has resulted in a zone of contestation between nation building and free speech. This is playing out through a series of battles involving website blocking, book banning, biometric databases and bullying of all kinds.

In the last few months, an all-girl rock band in Kashmir was silenced, a village in Bihar banned women and girls from using mobile phones, and we had yet another Salman Rushdie controversy. Movies were blocked. Facebook and Google were taken to court for hosting objectionable content. Paintings were removed from an art gallery at the “suggestion” of the police because they depicted Hindu deities as semi-nude. At the same time, there was a drive to digitize governance and to build biometric databases to enumerate and record every individual. The impacts on free speech, anonymity, and privacy were considered fair game in the drive towards progress, inclusion, and maintenance of public order.

The relationship between the citizen and the state is undergoing a radical transformation mediated by the marriage of welfare schemes and commercial interests. The privacy of one’s body and identity is challenged by initiatives to capture fingerprints, irises, faces, and transactions. The heckler’s vote is increasingly powerful in silencing free expression. Civil society is under siege for resisting the onslaught of draconian legislation, arbitrary restrictions, and the banning of various forms of cultural output. Narratives are being constructed that attribute all civic engagement with “western values” and with being mouthpieces of foreign interests.

In this talk, I will give an overview of the strands of discord that are forming the fabric of India’s latest crisis of democracy. I will unpack some of the rhetoric behind the government’s drive to grasp the individual, and make the citizen visible to the state in an unprecedented manner. I will also discuss my experiences working with civil society in India, and the tools and techniques used to engage with policy formation and to adapt to the future of advocacy.

A dual-qualified lawyer, Malavika Jayaram spent eight years in London - with global law firm Allen & Overy in the Communications, Media & Technology group, and then with Citigroup. She relocated to India in 2006, and wears 3 hats as a practising lawyer, a Fellow at the Centre for Internet and Society (CIS) and a PhD scholar. As a partner at Jayaram & Jayaram, Bangalore, she focuses on corporate/tech transactions and has a special interest in new media and the arts. At CIS, Malavika collaborates on projects that study legislative and policy changes in the internet governance and privacy domains. As a PhD scholar, she is looking at data protection and privacy in India, with a special focus on e-governance schemes and the new biometric ID project.

A graduate of the National Law School of India, she has an LL.M. from Northwestern University, Chicago. She is on the advisory board of the Indian Journal of Law & Technology and is the author of the India chapter for the Data Protection & Privacy volume in the Getting the Deal Through series, launched this year. She is one of 10 Indian lawyers featured in “The International Who's Who of Internet e- Commerce & Data Protection Lawyers 2012” directory.

She is currently running a research project for Internews, studying internet policy in India. This will produce a landscape overview and interviews with various stakeholders in this domain.

For more details visit https://cis-india.org/news/global-asc-upenn-events-indias-civil-liberties-crisis

Namaste, Mr. Eric Schmidt

praskrishna — 2013-03-21T08:48:48Z

An article by R. Jai Krishna published in the Wall Street Journal on March 20, 2013 quotes Sunil Abraham.

Read the original published by the Wall Street Journal on March 20, 2013.

Sandwiched between a January visit to North Korea and a stop in Myanmar at the end of this week Google Inc.'s GOOG +0.42% executive chairman, Eric Schmidt, is visiting India until Thursday.

The world’s largest democracy might seem to have little in common with the two authoritarian states.

But free speech advocates say recent developments in India are troubling and observers are waiting to see whether Mr. Schmidt addresses them during two events over the next couple of days.

At issue is a debate in India over the limits to free speech. In 2011, India’s government, angered at the spread of inflammatory material online, passed a law that allows it to hold Internet companies liable for “offensive” material posted by users. Parts of the law are being challenged in India’s Supreme Court, which has yet to rule.

In December 2011, India’s then-telecoms minister, Kapil Sibal, urged Google Facebook Inc. FB -2.67% and other Internet companies to screen derogatory material from their sites. The requests came amid official anger over content that parodied Prime Minister Manmohan Singh and Sonia Gandhi, president of the ruling Congress party, as well as other leading politicians.

A journalist, Vinay Rai, subsequently filed criminal cases in a Delhi court against Internet firms including Google, alleging material they hosted was defamatory, obscene and promoted enmity among different religious and ethnic groups. The companies are challenging the validity of the case in a higher court. The lower court is expected to begin hearings next month.

Google and the others deny wrongdoing. Google has said it makes unavailable to Indian users any content that violates its terms of services or local laws.

Mr. Schmidt is unlikely to address the ongoing lawsuits. But he might take the opportunity to push India to reconsider its position on free speech, say activists.

“He will obviously make a case..but the government is unlikely to take it seriously,” said Sunil Abraham, executive director at the Bangalore-based Centre for Internet and Society. “It’s much more complicated.”

Mr. Schmidt is set to speak at two technology conferences – one organized by the country’s software industry body, the National Association of Software and Services Companies, or Nasscom, on Wednesday, and another by Google on Thursday.

Paroma Roy Chowdhury, a spokeswoman for Google India said: “The Google India team is very happy to host him here.”

Mr. Schmidt’s India visit follows his private visit to North Korea in January where he urged its officials to drop barriers to global Internet access if they hope to develop their economy. He is likely to travel to Myanmar on March 22, after his India trip.

Google is facing other legal challenges in India. They include a federal anti-trust probe on alleged anticompetitive practices by Google’s online advertising business. Google says it has done nothing wrong.

For Google, India is an important market for its Internet services as well as mobile-devices software Android.

Market research firm ComScore Inc. SCOR -0.41% said in June that Google reached 95% of online users in India. “Visitors spent 2.5 hours on Google sites, with YouTube accounting for a major share,” it said.

More and more Indians have started taking to the Internet to express their views. India has about 62 million people in urban areas using social media platforms, according to a recent study by the Internet and Mobile Association of India, a trade body, and market-research agency, IMRB. That is expected to rise to 66 million by June.

Demographically, the report said, the “highest proportion’ of social media usage was among young men and college students, representing 84% and 82% of the total internet users, respectively.

Last year, New Delhi issued a series of guidelines on how government departments should use social media to reach out to people and to ensure public participation in policy framing.

The ruling Congress-led coalition government has now started embracing these networks.

For example, Finance Minister P. Chidambaram earlier this month interacted with citizens during the annual budget proposal using social media platform Google+.

For many, this was seen as a move to counter Gujarat Chief Minister Narendra Modi’s use of online platforms during his successful re-election campaign late last year. Mr. Modi, widely expected to be named the prime ministerial candidate for the main opposition Bharatiya Janata Party in 2014, is scheduled to attend Google’s event Thursday.

For more details visit https://cis-india.org/news/wsj-r-jai-krishna-march-20-2013-namaste-mr-eric-schmidt