Centre for Internet and Society

Free Speech and Contempt of Court – I: Overview

Gautam Bhatia — 2014-06-08T15:29:33Z

Gautam Bhatia explores an under-theorised aspect of India's free speech jurisprudence: the contempt power that equips courts to "protect the dignity of the Bench". In this introductory post, he examines jurisprudence from the US and England to inform our analysis of Indian law.

On May 31, the Times of India reported some observations of a two-judge bench of the Supreme Court on its contempt powers. The Court noted that the power to punish for contempt was necessary to “secure public respect and confidence in the judicial process”, and also went on to add – rather absurdly – to lay down the requirements, in terms of timing, tone and tenor, of a truly “contrite” apology. This opinion, however, provides us with a good opportunity to examine one of the most under-theorised aspects of Indian free speech law: the contempt power.

Indeed, the contempt power finds express mention in the Constitution. Article 19(2) permits the government to impose reasonable restrictions upon the freedom of speech and expression “… in relation to contempt of court.” The legislation governing contempt powers is the 1971 Contempt of Courts Act. Contempt as a civil offence involves willful disobedience of a court order. Contempt as a criminal offence, on the other hand, involves either an act or expression (spoken, written or otherwise visible) that does one of three things: scandalises, or tends to scandalize, or lowers, or tends to lower, the authority of any court; prejudices or interferes (or tends to interfere) with judicial proceedings; or otherwise obstructs, or tends to obstruct, the administration of justice. As we can see, contempt can – broadly – take two forms: first, obstructing the proceedings of the Court by acts such as disobeying an order, holding up a hearing through absence or physical/verbal disturbance etc. This is straightforward enough. More problematically, however, contempt also covers instances of what we may call “pure speech”: words or other forms of expression about the Court that are punished for no other reason but their content. In particular, “scandalising the Court” seems to be particularly vague and formless in its scope and ambit.

“Scandalising the court” is a common law term. The locus classicus is the 1900 case of R v. Gray, which – in language that the Contempt of Courts Act has largely adopted – defined it as “any act done or writing published calculated to bring a Court or a judge of the Court into contempt, or to lower his authority.” The basic idea is that if abusive invective against the Court is permitted, then people will lose respect for the judiciary, and justice will be compromised.

It is obvious that this argument is flawed in many respects, and we shall analyse the Supreme Court’s problematic understanding of its contempt powers in the next post. First, however, it is instructive to examine the fate of contempt powers in the United States – which, like India, constitutionally guarantees the freedom of speech – and in England, whose model India has consciously followed.

America’s highly speech-protective Courts have taken a dim view of contempt powers. Three cases stand out. Bridges v. California involved a contempt of court accusation against a labour leader for calling a Court decision “outrageous”, and threatening a strike if it was upheld. Reversing his prior conviction, the Supreme Court noted that “public interest is much more likely to be kindled by a controversial event of the day than by a generalization, however penetrating, of the historian or scientist.” Given the strong public interest, the burden of justifying restrictions upon this speech was particularly high. The Court identified two possible justifications: respect for the judiciary, and the orderly administration of justice. On the first, it observed that “an enforced silence, however limited, solely in the name of preserving the dignity of the bench would probably engender resentment, suspicion, and contempt much more than it would enhance respect.” On the second, it held that since striking itself was entirely legal, it was no argument that the threat of a strike would illegally intimidate a judge and subvert the course of justice. Throughout the case, the Court stressed that unfettered speech on matters of public interest was of paramount value, and could only be curtailed if there was a “clear and present danger” that the substantially evil consequences would result out of allowing it.

Similarly, in Garrison v. Lousiana, an attorney accused certain judges of inefficiency and laziness. Reversing his conviction, the Supreme Court took note of “the paramount public interest in a free flow of information to the people concerning public officials, their servants…. few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official's private character.” Consequently, it held that only those statements could be punished that the author either knew were false, or were made with reckless disregard for the truth. And lastly, in Landmark Communications v. Virginia, the Court held that “the operations of the courts and the judicial conduct of judges are matters of utmost public concern”, and endorsed Justice Frankfurter’s prior statement, that “speech cannot be punished when the purpose is simply "to protect the court as a mystical entity or the judges as individuals or as anointed priests set apart from the community and spared the criticism to which in a democracy other public servants are exposed.”

What stands out here is the American Courts’ rejection of the ideas that preserving the authority of judges by suppressing certain forms of speech is an end in itself, and that the Courts must be insulated to some greater degree than other officials of government. Consequently, it must be shown that the impugned expression presents a clear and present danger to the administration of justice, before it can be punished.

Now to England. The last successful prosecution of the offence was in 1931. In 2012, the Law Commission published a paper on contempt powers, in which it expressly recommended abolishing the offence of “scandalising the Court”; its recommendations were accepted, and the offence was abolished in 2013. Admittedly, the offence remains on the statute books in many commonwealth nations, although two months ago – in April 2014 – the Privy Council gave it a highly circumscribed interpretation while adjudicating a case on appeal from Mauritius: there must, it held, be a “real risk of undermining public confidence in the administration of justice” (something akin to clear and present danger?), and the Prosecution must demonstrate that the accused either intended to do so, or acted in reckless disregard of whether or not he was doing so.

What is particularly interesting is the Law Commission’s reasoning in its recommendations. Tracing the history of the offence back to 18^th century England, it noted that the original justification was to maintain a “haze of glory” around the Courts, and it was crucial that the Courts not only be universally impartial, but also perceived to be so. Consequently, the Law Commission observed that “this language suggests that “to be impartial” and “to be universally thought so” are two independent requirements, implying that the purpose of the offence is not confined to preventing the public from getting the wrong idea about the judges, and that where there are shortcomings, it is equally important to prevent the public from getting the right idea.” Obviously, this was highly problematic.

The Law Commission also noted the adverse impact of the law on free speech: the well-known chilling effect, whereby people would self-censor even justified criticism. This was exacerbated by the vagueness of the offence, which left unclear the intent requirement, and the status of defences based on truth and public interest. The Law Commission was concerned, as well, about the inherently self-serving nature of the offence, which give judges the power to sit in judgment over speech and expression that was directly critical of them. Lastly, the Law Commission noted that the basic point of contempt powers was similar to that of seditious libel: to ensure the good reputation of the State (or, in the case of scandalising, the judges) by controlling what could be said about them. With the abolition of seditious libel, the raison d’être of scandalising the Court was also – now – weakened.

We see, therefore, that the United States has rejected sweeping contempt powers as unconstitutional. England, which created the offence that India incorporated into its law, stopped prosecuting people for it in 1931, and formally abolished it last year. And even when its hands have been bound by the law that it is bound the enforce, the Privy Council has interpreted the offence in as narrow a manner as possible, in order to remain solicitous of free speech concerns. Unfortunately, as we shall see in the next essay, all these developments have utterly passed our Courts by.

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

For more details visit https://cis-india.org/internet-governance/blog/free-speech-and-contempt-of-court-2013-i-overview

Free Speech and Civil Defamation

gautam — 2014-07-08T08:31:18Z

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

FOEX Live: May 28-29, 2014

geetha — 2014-05-29T08:58:47Z

A selection of news from across India with a bearing on online freedom of expression and use of digital technology

Media focus on the new government and its ministries and portfolios has been extensive, and to my knowledge, few newspapers or online sources have reported violations of freedom of speech. However, on his first day in office, the new I&B Minister, Prakash Javadekar, acknowledged the importance of press freedom, avowing that it was the “essence of democracy”. He has assured that the new government will not interfere with press freedom.

Assam:

A FICCI discussion in Guwahati, attended among others by Microsoft and Pricewaterhouse Coopers, focused on the role of information technology in governance.

Goa:

Following the furore over allegedly inflammatory, ‘hate-mongering’ Facebook posts by shipping engineer Devu Chodankar, a group of Goan netizens formed a ‘watchdog forum’ to police “inappropriate and communally inflammatory content” on social media. Diana Pinto feels, however, that some ‘compassion and humanism’ ought to have prompted only a stern warning in Devu Chodankar’s case, and not a FIR.

Karnataka:

Syed Waqar was released by Belgaum police after questioning revealed he was a recipient of the anti-Modi MMS. The police are still tracing the original sender.

Madhya Pradesh:

The cases of Shaheen Dhada and Rinu Srinivasan, and recently of Syed Waqar and Devu Chodankar have left Indore netizens overly cautious about “posting anything recklessly on social media”. Some feel it is a blow to democracy.

Maharashtra:

In Navi Mumbai, the Karjat police seized several computers, hard disks and blank CDs from the premises of the Chandraprabha Charitable Trust in connection with an investigation into sexual abuse of children at the Trust’s school-shelter. The police seek to verify whether the accused recorded any obscene videos of child sexual abuse.

In Mumbai, even as filmmakers, filmgoers, artistes and LGBT people celebrated the Kashish Mumbai International Queer Film Festival, all remained apprehensive of the new government’s social conservatism, and were aware that the films portrayed acts now illegal in India.

Manipur:

At the inauguration of the 42nd All Manipur Shumang Leela Festival, V.K. Duggal, State Governor and Chairman of the Manipur State Kala Akademi, warned that the art form was under threat in the digital age, as Manipuri films are replacing it in popularity.

Rajasthan:

Following the lead of the Lok Sabha, the Rajasthan state assembly has adopted a digital conference and voting system to make the proceedings in the House more efficient and transparent.

Seemandhra:

Seemandhra Chief Minister designate N. Chandrababu Naidu promised a repeat of his hi-tech city miracle ‘Cyberabad’ in Seemandhra.

West Bengal:

West Bengal government has hired PSU Urban Mass Transit Company Limited to study, install and operationalize Intelligent Transport System in public transport in Kolkata. GPS will guide passengers about real-time bus routes and availability. While private telecom operators have offered free services to the transport department, there are no reports of an end-date or estimated expenditure on the project.

News and Opinion:

Over a week ago, Avantika Banerjee wrote a speculative post on the new government’s stance towards Internet policy. At Fair Observer, Gurpreet Mahajan laments that community politics in India has made a lark of banning books.

India’s Computer Emergency Response Team (CERT-In) has detected high-level virus activity in Microsoft’s Internet Explorer 8, and recommends upgrading to Explorer 11.

Of the projected 400 million users that Twitter will have by 2018, India and Indonesia are expected to outdo the United Kingdom in user base. India saw nearly 60% growth in user base this year, and Twitter played a major role in Elections 2014. India will have over 18.1 million users by 2018.

Elsewhere in the world:

Placing a bet on the ‘Internet of Everything’, Cisco CEO John Chambers predicted a “brutal consolidation” of the IT industry in the next five years. A new MarketsandMarkets report suggests that the value of the ‘Internet of Things’ may reach US $1423.09 billion by 2020 at an estimated CAGR of 4.08% from 2014 to 2020.

China’s Xinhua News Agency announced its month-long campaign to fight “infiltration from hostile forces at home and abroad” through instant messaging. Message providers WeChat, Momo, Mi Talk and Yixin have expressed their willingness to cooperate in targeting those engaging in fraud, or in spreading ‘rumours’, violence, terrorism or pornography. In March this year, WeChat deleted at least 40 accounts with political, economic and legal content.

Thailand’s military junta interrupted national television broadcast to deny any role in an alleged Facebook-block. The site went down briefly and caused alarm among netizens.

Snowden continues to assure that he is not a Russian spy, and has no relationship with the Russian government.

For more details visit https://cis-india.org/internet-governance/blog/foex-live-may-28-29-2014

FOEX Live: May 26-27, 2014

geetha — 2014-05-27T12:42:51Z

A selection of news from across India implicating online freedom of expression and use of digital technology

Media reports across India are focusing on the new government and its Cabinet portfolios. In the midst of the celebration of and grief over the regime change, we found many reports indicating that civil society is wary of the new government’s stance towards Internet freedoms.

Andhra Pradesh:

Andhra MLA and All India Majlis-e-Ittihad ul-Muslimin member Akbaruddin Owaisi has been summoned to appear before a Kurla magistrate’s court on grounds of alleged hate speech and intention to harm harmony of Hinduism and Islam. Complainant Gulam Hussain Khan saw an online video of a December 2012 speech by Owaisi and filed a private complaint with the court. “I am prima facie satisfied that it disclosed an offence punishable under Section(s) 153A and 295A of the Indian Penal Code,” the Metropolitan Magistrate said.

Goa:

A Goa Sessions Judge has dismissed shipbuilding diploma engineer Devu Chodankar’s application for anticipatory bail. On the basis of an April 26 complaint by CII state president Atul Pai Kane, Goa cybercrime cell registered a case against Chodankar for allegedly posting matter on a Facebook group with the intention of promoting enmity between religious groups in view of the 2014 general elections. The Judge noted, inter alia, that Sections 153A and 295A of the Indian Penal Code were attracted, and that it is necessary to find out whether, on the Internet, “there is any other material which could be considered as offensive or could create hatred among different classes of citizens of India”.

Karnataka:

Syed Waqas, an MBA student from Bhatkal pursuing an internship in Bangalore, was picked up for questioning along with four of his friends after Belgaum social activist Jayant Tinaikar filed a complaint. The cause of the complaint was a MMS, allegedly derogatory to Prime Minister Narendra Modi. After interrogation, the Khanapur (Belgaum) police let Waqas off on the ground that Waqas was not the originator of the MMS, and that Mr. Tinaikar had provided an incorrect mobile phone number.

In another part of the country, Digvijaya Singh is vocal about Indian police’s zealous policing of anti-Modi comments, while they were all but visible when former Prime Minister Dr. Manmohan Singh was the target of abusive remarks.

Kerala:

The Anti-Piracy Cell of Kerala Police plans to target those uploading pornographic content on to the Internet and its sale through memory cards. A circular to this effect has been issued to all police stations in the state, and civil society cooperation is requested.

In other news, Ernakulam MLA Hibi Eden inaugurated “Hibi on Call”, a public outreach programme that allows constituents to reach the MLA directly. A call on 1860 425 1199 registers complaints.

Maharashtra:

Mumbai police are investigating pizza delivery by an unmanned drone, which they consider a security threat.

Tamil Nadu:

Small and home-run businesses in Chennai are flourishing with the help of Whatsapp and Facebook: Mohammed Gani helps his customers match bangles with Whatsapp images, Ayeesha Riaz and Bhargavii Mani send cakes and portraits to Facebook-initiated customers. Even doctors spread information and awareness using Facebook. In Madurai, you can buy groceries online, too.

Opinion:

Chethan Kumar fears that Indian cyberspace is strangling freedom of expression through the continued use of the ‘infamous’ Section 66A of the Information Technology Act, 2000 (as amended in 2008). Sunil Garodia expresses similar concerns, noting a number of arrests made under Section 66A.

However, Ankan Bose has a different take; he believes there is a thin but clear line between freedom of expression and a ‘freedom to threaten’, and believes Devu Chodankar and Syed Waqar may have crossed that line. For more on Section 66A, please redirect here.

While Nikhil Pahwa is cautious of the new government’s stance towards Internet freedoms, given the (as yet) mixed signals of its ministers, Shaili Chopra ruminates on the new government’s potential dive into a “digital mutiny and communications revolution” and wonders about Modi’s social media management strategy. For Kashmir Times reader Hardev Singh, even Kejriwal’s arrest for allegedly defaming Nitin Gadkari will lead to a chilling effect on freedom of expression.

Elsewhere, the Hindustan Times is intent on letting Prime Minister Narendra Modi know that his citizens demand their freedom of speech and expression. Civil society and media all over India express their concerns for their freedom of expression in light of the new government.

For more details visit https://cis-india.org/internet-governance/blog/foex-live-may-26-27-2014

FOEX Live: June 16-23, 2014

geetha — 2014-06-24T10:23:18Z

A weekly selection of news on online freedom of expression and digital technology from across India (and some parts of the world).

A quick and non-exhaustive perusal of this week’s content shows that many people are worried about the state of India’s free speech following police action on account of posts derogatory to or critical of the Prime Minister. Lawyers, journalists, former civil servants and other experts have joined in expressing this worry.

While a crackdown on freedom of expression would indeed be catastrophic and possibly unconstitutional, fears are so far based on police action in only 4 recent cases: Syed Waqar in Karnataka, Devu Chodankar in Goa and two cases in Kerala where college students and principals were arrested for derogatory references to Modi. Violence in Pune, such as the murder of a young Muslim man on his way home from prayer, or the creation of a Social Peace Force of citizens to police offensive Facebook content, are all related, but perhaps ought to be more carefully and deeply explored.

Kerala:

In the Assembly, State Home Minister Ramesh Chennithala said that the State government did not approve of the registration of cases against students on grounds of anti-Modi publications. The Minister denunciation of political opponents through cartoons and write-ups was common practice in Kerala, and “booking the authors for this was not the state government’s policy”.

Maharashtra:

Nearly 20,000 people have joined the Social Peace Force, a Facebook group that aims to police offensive content on the social networking site. The group owner’s stated aim is to target religious posts that may provoke riots, not political ones. Subjective determinations of what qualifies as ‘offensive content’ remain a troubling issue.

Tamil Nadu:

In Chennai, 101 people, including filmmakers, writers, civil servants and activists, have signed a petition requesting Chief Minister J. Jayalalithaa to permit safe screening of the Indo-Sri Lankan film “With You, Without You”. The petition comes after theatres cancelled shows of the film following threatening calls from some Tamil groups.

Telangana:

The K. Chandrasekhar Rao government has blocked two Telugu news channels for airing content that was “derogatory, highly objectionable and in bad taste”.

The Telagana government’s decision to block news channels has its supporters. Padmaja Shaw considers the mainstream Andhra media contemptuous and disrespectful of “all things Telangana”, while Madabushi Sridhar concludes that Telugu channel TV9’s coverage violates the dignity of the legislature.

West Bengal:

Seemingly anti-Modi arrests have led to worry among citizens about speaking freely on the Internet. Section 66A poses a particular threat.

News & Opinion:

The Department of Telecom is preparing a draft of the National Telecom Policy, in which it plans to treat broadband Internet as a basic right. The Policy, which will include deliberations on affordable broadband access for end users, will be finalised in 100 days.

While addressing a CII CEO’s Roundtable on Media and Industry, Information and Broadcasting Minister Prakash Javadekar promised a transparent and stable policy regime, operating on a time-bound basis. He promised that efforts would be streamlined to ensure speedy and transparent clearances.

A perceived increase in police action against anti-Modi publications or statements has many people worried. But the Prime Minister himself was once a fierce proponent of dissent; in protest against the then-UPA government’s blocking of webpages, Modi changed his display pic to black.

Medianama wonders whether the Mumbai police’s Cyber Lab and helpline to monitor offensive content on the Internet is actually a good idea.

G. Sampath wonders why critics of the Prime Minister Narendra Modi can’t voluntarily refrain from exercising their freedom of speech, and allow India to be an all-agreeable development haven. Readers may find his sarcasm subtle and hard to catch.

Experts in India mull over whether Section 79 of the Information Technology Act, 2000, carries a loophole enabling users to exercise a ‘right to be forgotten’. Some say Section 79 does not prohibit user requests to be forgotten, while others find it unsettling to provide private intermediaries such powers of censorship.

Some parts of the world:

Sri Lanka has banned public meetings or rallies intended to promote religious hatred.

In Pakistan, Twitter has restored accounts and tweets that were taken down last month on allegations of being blasphemous or ‘unethical’.

In Myanmar, an anti-hate speech network has been proposed throughout the country to raise awareness and opposition to hate speech and violence.

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

For more details visit https://cis-india.org/internet-governance/blog/foex-live-june-16-23-2014

FOEX Live: June 8-15, 2014

geetha — 2014-06-16T10:22:31Z

A weekly selection of news on online freedom of expression and digital technology from across India (and some parts of the world). Please email relevant news/cases/incidents to geetha[at]cis-india.org.

Karnataka:

A Hindu rightwing group demanded the arrest of a prominent activist, who during a speech on the much-debated Anti-superstition Bill, made comments that are allegedly blasphemous.

Kerala:

On June 10, the principal and six students of Government Polytechnic at Kunnamkulam, Thrissur, were arrested for publishing a photograph of Prime Minister Narendra Modi alongside photographs of Hitler, Osana bin Laden and Ajmal Kasab, under the rubric ‘negative faces’. An FIR was registered against them for various offences under the Indian Penal Code including defamation (Section 500), printing or engraving matter known to be defamatory (Section 501), intentional insult with intent to provoke breach of peace (Section 504), and concealing design to commit offence (Section 120) read with Section 34 (acts done by several persons in furtherance of common intention). The principal was later released on bail.

In a similarly unsettling incident, on June 14, 2014, a case was registered against the principal and 11 students of Sree Krishna College, Guruvayur, for using “objectionable and unsavoury” language in a crossword in relation to PM Narendra Modi, Rahul Gandhi, Shashi Tharoor, etc. Those arrested were later released on bail.

Maharashtra:

Facebook posts involving objectionable images of Dr. B.R. Ambedkar led to arson and vandalism in Pune. Police have sought details of the originating IP address from Facebook.

A Pune-based entrepreneur has set up a Facebook group to block ‘offensive’ posts against religious leaders. The Social Peace Force will use Facebook’s ‘Report Spam’ option to take-down of ‘offensive’ material.

Deputy Chief Minister Ajit Pawar suggested a ban on social media in India, and retracted his statement post-haste.

Punjab:

A bailable warrant was issued against singer Kailash Kher for failing to appear in court in relation to a case. The singer is alleged to have hurt religious sentiments of the Hindu community in a song, and a case registered under Sections 295A and 298, Indian Penal Code.

Uttar Pradesh:

The presence of a photograph on Facebook, in which an accused in a murder case is found posing with an illegal firearm, resulted in a case being registered against him under the IT Act.

News & Opinion:

Authors, civil society activists and other concerned citizens issued a joint statement questioning Prime Minister Modi’s silence over arrests and attacks on exercise of free speech and dissent. Signatories include Aruna Roy, Romila Thapar, Baba Adhav, Vivan Sundaram, Mrinal Pande, Jean Dreze, Jayati Ghosh, Anand Pathwardhan and Mallika Sarabhai.

In response to Mumbai police’s decision to take action against those who ‘like’ objectionable or offensive content on Facebook, experts say the freedom to ‘like’ or ‘share’ posts or tweets is fundamental to freedom of expression. India’s defamation laws for print and the Internet need harmonization, moreover.

While supporting freedom of expression, Minister for Information and Broadcasting Prakash Javadekar cautioned the press and all users of social media that the press and social media should be used responsibly for unity and peace. The Minister has also spoken out in favour of free publication, in light of recent legal action against academic work and other books.

Infosys, India’s leading IT company, served defamation notices on the Economic Times, the Times of India and the Financial Express, for “loss and reputation and goodwill due to circulation of defamatory articles”. Removal of articles and an unconditional apology were sought, and Infosys claimed damages amounting to Rs. 2000 crore. On a related note, Dr. Ashok Prasad argues that criminal defamation is a violation of freedom of speech.

Drawing on examples from the last 3 years, Ritika Katyal analyses India’s increasing violence and legal action against dissent and hurt sentiment, and concludes that Prime Minister Narendra Modi has both the responsibility and ability to “rein in Hindu hardliners”.

Discretionary powers resting with the police under the vaguely and broadly drafted Section 66A, Information Technology Act, are dangerous and unconstitutional, say experts.

Providing an alternative view, the Hindustan Times comments that the police ought to “pull up their socks” and understand the social media in order to effectively police objectionable and offensive content on the Internet.

Keeping Track:

Indconlawphil’s Free Speech Watch keeps track of violations of freedom of expression in India.

For more details visit https://cis-india.org/internet-governance/blog/foex-live-june-8-15-2014

FOEX Live: June 1-7, 2014

geetha — 2014-06-07T13:33:45Z

A weekly selection of news on online freedom of expression and digital technology from across India (and some parts of the world).

Delhi NCR:

Following a legal notice from Dina Nath Batra, publisher Orient BlackSwan “set aside… for the present” Communalism and Sexual Violence: Ahmedabad Since 1969 by Dr. Megha Kumar, citing the need for a “comprehensive assessment”. Dr. Kumar’s book is part of the ‘Critical Thinking on South Asia’ series, and studies communal and sexual violence in the 1969, 1985 and 2002 riots of Ahmedabad. Orient BlackSwan insists this is a pre-release assessment, while Dr. Kumar contests that her book went to print in March 2014 after extensive editing and peer review. Dina Nath Batra’s civil suit led Penguin India to withdraw Wendy Doniger’s The Hindus: An Alternative History earlier this year.

The Delhi Police’s Facebook page aimed at reaching out to Delhi residents hailing from the North East proved to be popular.

Goa:

Shipbuilding engineer Devu Chodankar’s ordeal continued. Chodankar, in a statement to the cyber crime cell of the Goa police, clarified that his allegedly inflammatory statements were directed against the induction of the Sri Ram Sene’s Pramod Muthalik into the BJP. Chodankar’s laptop, hard-disk and mobile Internet dongle were seized.

Jammu & Kashmir:

Chief Minister Omar Abdullah announced the withdrawal of a four-year-old SMS ban in the state. The ban was instituted in 2010 following widespread protests, and while it was lifted for post-paid subscribers six months later, pre-paid connections were banned from SMSes until now.

Maharashtra:

In a move to contain public protests over ‘objectionable posts’ about Chhatrapati Shivaji, Dr. B.R. Ambedkar and the late Bal Thackeray (comments upon whose death led to the arrests of Shaheen Dhada and Renu Srinivasan under Section 66A), Maharashtra police will take action against even those who “like” such posts. ‘Likers’ may be charged under the Information Technology Act and the Criminal Procedure Code, say Nanded police.

A young Muslim man was murdered in Pune, apparently connected to the online publication of ‘derogatory’ pictures of Chhatrapati Shivaji and Bal Thackarey. Members of Hindu extremists groups celebrated his murder, it seems. Pune’s BJP MP, Anil Shirole, said, “some repercussions are natural”. Members of the Hindu Rashtra Sena were held for the murder, but it seems that the photographs were uploaded from foreign IP addresses. Across Maharashtra, 187 riotingcases have been registered against a total of 710 persons, allegedly in connection with the offensive Facebook posts.

On a lighter note, Bollywood hopes for a positive relationship with the new government on matters such as film censorship, tax breaks and piracy.

News & Opinion:

Shocking the world, Vodafone reported the existence of secret, direct-access wires that enable government surveillance on citizens. India is among 29 governments that sought access to its networks, says Vodafone.

I&B Minister Prakash Javadekar expressed his satisfaction with media industry self-regulation, and stated that while cross-media ownership is a matter for debate, it is the legality of transactions such as the Reliance-Network18 acquisition that is important.

Nikhil Pahwa of Medianama wrote of a ‘right to be forgotten’ request they received from a user in light of the recent European Court of Justice ruling. The right raises a legal dilemma in India, LiveMint reports. Medianama also comments on Maharashtra police’s decision to take action against Facebook ‘likes’, noting that at the very least, a like and a comment do not amount to the same thing.

The Hindu was scorching in its editorial on the Pune murder, warning that the new BJP government stands to lose public confidence if it does not clearly demonstrate its opposition to religious violence. The Times of India agrees.

Sanjay Hegde wrote of Section 66A of the Information Technology Act, 2000 (as amended in 2008) as a medium-focused criminalization of speech. dnaEdit also published its criticism of Section 66A.

Ajit Ranade of the Mumbai Mirror comments on India as a ‘republic of hurt sentiments’, criminalizing exercises of free speech from defamation, hate speech, sedition and Section 66A. But in this hurt and screaming republic, dissent is crucial and must stay alive.

A cyber security expert is of the opinion that the police find it difficult to block webpages with derogatory content, as servers are located outside India. But data localization will not help India, writes Jayshree Bajoria.

Dharma Adhikari tries to analyze the combined impact of converging media ownership, corporate patronage of politicians and elections, and recent practices of forced and self-censorship and criminalization of speech.

Elsewhere in the world:

In Pakistan, Facebook has been criticized for blocking pages of a Pakistani rock band and several political groups, primarily left-wing. Across the continent in Europe, Google is suffering from a popularity dip.

The National Council for Peace and Order, the military government in Thailand, has taken over not only the government,but also controls the media. The military cancelled its meetings with Google and Facebook. Thai protesters staged a quiet dissent. The Asian Human Rights Commission condemned the coup. For an excellent take on the coup and its dangers, please redirect here. For a round-up of editorials and op-eds on the coup, redirect here.

China has cracked down on Google, affecting Gmail, Translate and Calendar. It is speculated that the move is connected to the 25^th anniversary of the Tiananmen Square protests and government reprisal. At the same time, a Tibetan filmmaker who was jailed for six years for his film, Leaving Fear Behind, has been released by Chinese authorities. Leaving Fear Behind features a series of interviews with Tibetans of the Qinghai province in the run-up to the controversial Beijing Olympics in 2008.

Japan looks set to criminalize possession of child pornography. According to reports, the proposed law does not extend to comics or animations or digital simulations.

Egypt’s police is looking to build a social media monitoring system to track expressions of dissent, including “profanity, immorality, insults and calls for strikes and protests”.

Human rights activists asked Facebook to deny its services to the election campaign of Syrian President Bashar al-Assad, ahead of elections on June 3.

Call for inputs:

The Law Commission of India seeks comments from stakeholders and citizens on media law. The consultation paper may be found here. The final date for submission is June 19, 2014.

____________________________________________________________________________________________________________

For feedback and comments, Geetha Hariharan is available by email at geetha@cis-india.org or on Twitter, where her handle is @covertlight.

For more details visit https://cis-india.org/internet-governance/blog/foex-live-june-1-7-2014

Fixing India’s anarchic IT Act

pranesh — 2012-11-30T06:33:58Z

Section 66A of the Information Technology (IT) Act criminalizes “causing annoyance or inconvenience” online, among other things. A conviction for such an offence can attract a prison sentence of as many as three years.

Pranesh Prakash's article was published in LiveMint on November 28, 2012.

How could the ministry of communications and information technology draft such a loosely-worded provision that’s clearly unconstitutional? How could the ministry of law allow such shoddy drafting with such disproportionate penalties to pass through? Were any senior governmental legal officers—such as the attorney general—consulted? If so, what advice did they tender, and did they consider this restriction “reasonable”? These are some of the questions that arise, and they raise issues both of substance and of process.

When the intermediary guidelines rules were passed last year, the government did not hold consultations in anything but name. Industry and non-governmental organizations (NGOs) sent in submissions warning against the rules, as can be seen from the submissions we retrieved under the Right to Information Act and posted on our website. However, almost none of our concerns, including the legality of the rules, were paid heed to.

Earlier this year, parliamentarians employed a little-used power to challenge the law passed by the government, leading communications minister Kapil Sibal to state that he would call a meeting with “all stakeholders”, and will revise the rules based on inputs. A meeting was called in August, where only select industry bodies and members of Parliament were present, and from which a promise emerged of larger public consultations. That promise hasn’t been fulfilled.

Substantively, there is much that is rotten in the IT Act and the various rules passed under it, and a few illustrations—a longer analysis of which is available on the Centre for Internet and Society (CIS) website—should suffice to indicate the extent of the malaise.

Some of the secondary legislation (rules) cannot be passed under the section of the IT Act they claim as their authority. The intermediary guidelines violate all semblance of due process by not even requiring that a person whose content is removed is told about it and given a chance to defend herself. (Any content that is complained about under those rules is required to be removed within 36 hours, with no penalties for wilful abuse of the process. We even tested this by sending frivolous complaints, which resulted in removal.)

The definition of “cyber terrorism” in section 66F(1)(B) of the IT Act includes wrongfully accessing restricted information that one believes can be used for defamation, and this is punishable by imprisonment for life. Phone-tapping requires the existence of a “public emergency” or threat to “public safety”, but thanks to the IT Act, online surveillance doesn’t. The telecom licence prohibits “bulk encryption” over 40 bits without key escrow, but these are violated by all, including the Reserve Bank of India, which requires that 128-bit encryption be used by banks. These are but a few of the myriad examples of careless drafting present in the IT Act, which lead directly to wrongful impingement of our civil and political liberties. While we agree with the minister for communications, that the mere fact of a law being misused cannot be reason for throwing it out, we believe that many provisions of the IT Act are prone to misuse because they are badly drafted, not to mention the fact that some of them display constitutional infirmities. That should be the reason they are amended, not merely misuse.

What can be done? First, the IT Act and its rules need to be fixed. Either a court-appointed amicus curiae (who would be a respected senior lawyer) or a committee with adequate representation from senior lawyers, Internet policy organizations, government and industry must be constituted to review and suggest revisions to the IT Act. The IT Act (in section 88) has a provision for such a multi-stakeholder advisory committee, but it was filled with mainly government officials and became defunct soon after it was created, more than a decade ago. This ought to be reconstituted. Importantly, businesses cannot claim to represent ordinary users, since except when it comes to regulation of things such as e-commerce and copyright, industry has little to lose when its users’ rights to privacy and freedom of expression are curbed.

Second, there must be informal processes and platforms created for continual discussions and constructive dialogue among civil society, industry and government (states and central) about Internet regulation (even apart from the IT Act). The current antagonism does not benefit anyone, and in this regard it is very heartening to see Sibal pushing for greater openness and consultation with stakeholders. As he noted on the sidelines of the Internet Governance Forum in Baku, different stakeholders must work together to craft better policies and laws for everything from cyber security to accountability of international corporations to Indian laws. In his plenary note at the forum, he stated: “Issues of public policy related to the Internet have to be dealt with by adopting a multi-stakeholder, democratic and transparent approach” which is “collaborative, consultative, inclusive and consensual”. I could not have put it better myself. Now is the time to convert those most excellent intentions into action by engaging in an open reform of our laws.

Pranesh Prakash is policy director at the Centre for Internet and Society.

For more details visit https://cis-india.org/internet-governance/blog/livemint-opinion-november-28-2012-pranesh-prakash-fixing-indias-anarchic-it-act

Fear, Uncertainty and Doubt

sunil — 2015-04-17T01:44:39Z

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

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

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

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

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

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

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

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

Fake News, Rumors & Online Content Regulation

praskrishna — 2017-02-28T02:46:13Z

Medianama and Mint organized #NAMApolicy open house on 'Fake News, Rumors & Online Content Regulation' on February 22, 2017 at the India Habitat Centre. Japreet Grewal and Amber Sinha attended the event.

The discussions broadly covered the impact of Fake News on democratic processes, Legal status of online content regulation in India & administrative challenges with Fake News, Responsibility and accountability of online platforms, while addressing challenges of identification of sources of Fake News, Potential legal and non-legal ways of addressing Fake News, etc.

Agenda

06:30 to 07:00 pm - Registration
07:00 to 07:10 pm - Introductory note
07:10 to 09:00 pm - Round-table discussion moderated by Nikhil Pahwa
09:00 pm onwards - Networking dinner

For more details visit https://cis-india.org/internet-governance/news/fake-news-rumors-online-content-regulation

Facebook: Limiting access to social media can restrict freedom of speech

praskrishna — 2013-08-08T04:07:38Z

In its counter-affidavit to the PIL in the Delhi high court, Facebook has argued that limiting access to social media can limit an individual's freedom of speech and expression.

Kim Arora's article was published in the Times of India on August 1, 2013. Sunil Abraham is quoted.

The PIL, among other things, deals with the issue of minors accessing Facebook services, arguing that under the Indian Contract Act 1872, minors can't enter into a contract. The PIL will be heard next on Friday.

Last year, the UN Human Rights Council had passed a resolution declaring access to Internet as a human right. Facebook has argued making a similar point for access to social media. "The Internet is increasingly becoming a platform for citizens including minors to interact and voice their opinions and, therefore, a meaningful interpretation of the right to freedom of speech and expression would include the freedom to access social media," the counter-affidavit says.

"It can be argued that in a technologically mediated society, social media and communication infrastructure is essential to exercise freedom of expression," says Sunil Abraham, director, Bangalore-based Center for Internet and Society.

Cyber lawyer Pavan Duggal sees it as "hyperbole". "The issue still remains that a minor doesn't have the capacity to act under the Contract Act," he says. Lawyers say that if a contract is entered into for free service in exchange of personal information, it is a "consideration" (like cash or kind) under the Indian Contract Act 1872. The Act says, "All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void." It then lists minors as incompetent to contract, and says, "The agreement, if any party is minor, is void ab initio." However, Abraham points out that "It is not an offence to enter a void contract."

To weed out fake profiles and children's profiles, the PIL, filed by former RSS ideologue K N Govindacharya, argues that "obligation is cast upon Facebook and other social networking sites to verify the authenticity of each and every subscribers (sic) which is mandatory for Mobile companies in telecommunication sector.

Mumbai-based professor of law Saurav Datta feels this sort of authentication could have serious privacy implications. "There is no way they can verify users without impinging on their privacy. The goal of the PIL is wrong. We need to protect children, not keep people out," says Datta.

Abraham says that a possible way to deal with this can be on the lines of Canadian privacy law where a privacy commissioner can raise such concerns with the service provider directly.

For more details visit https://cis-india.org/news/the-times-of-india-aug-1-2013-kim-arora-facebook-limiting-access-to-social-media-can-restrict-freedom-of-speech

Facebook’s Free Basics hits snag in India

praskrishna — 2016-02-15T02:33:26Z

Indian regulators have dealt a major blow to Facebook’s controversial Free Basics online access plan by forbidding so-called differential pricing by internet companies, in effect banning the programme in the country.

The article by James Crabtree with additional reporting by Tim Bradshaw was published in Financial Times on February 8, 2016. Pranesh Prakash was quoted.

Free Basics, a plan to make access to parts of the internet free, has been at the centre of a fierce row in the country between the social network and local start-ups and advocates for net neutrality — the idea that all web traffic should be treated equally and technology companies should not be allowed to price certain kinds of content differently from others.

Last December, the Telecom Regulatory Authority of India ordered Facebook to put its Free Basics programme on hold pending a review.

On Monday, Trai published the results of its deliberations, introducing a complete ban on any form of differential pricing.

The ruling is the latest in a series of regulatory battles pitting net neutrality campaigners against telecom and internet companies, and is likely to be viewed as a test case for other emerging markets in which programmes similar to Facebook’s are yet to be challenged in the courts.

It also marks the most significant setback yet for Free Basics, which Facebook founder Mark Zuckerberg launched in 2014 as the centrepiece of plans to help poorer people access the internet in emerging economies. It operates in more than 30 countries.

Facebook had launched a high-profile public campaign to defend its programme, which offered stripped-down access to sites such as BBC News or Facebook’s own app to customers of Reliance Communications, the US company’s local telecoms partner.

But critics attacked the programme as an attempt to become a gatekeeper for tens of millions of internet users.

In a post to his Facebook page on Monday, Mr Zuckerberg said the company “won’t give up on” finding new ways to boost internet access in India.

“While we’re disappointed with today’s decision, I want to personally communicate that we are committed to keep working to break down barriers to connectivity in India and around the world. Internet.org has many initiatives, and we will keep working until everyone has access to the internet,” he wrote.

Trai’s ruling was welcomed by anti-Facebook campaigners, a group that included the founders of many Indian start-ups including online retailers such as Flipkart, Paytm and restaurant search service Zomato, which had declined to offer their services as part of the Free Basics platform.

Analysts also hailed the Indian regulator’s ruling as a landmark. “This is the most broad and the most stringent set of regulations on differential pricing which exists anywhere in the world,” said Pranesh Prakash of the Bangalore-based Centre for Internet & Society, a think-tank.

India has become an increasingly important focus for the company’s global business, with the country becoming its second-largest market by users last year.

For more details visit https://cis-india.org/internet-governance/news/financial-times-february-8-2016-james-crabtree-facebooks-free-basics-hits-snag-in-india

Facebook’s Fight to Be Free

praskrishna — 2016-01-31T09:11:52Z

In India, Mark Zuckerberg can’t give Internet access away.

The article by Adi Narayan and Bhuma Shrivastava was published in Bloomberg Businessweek on January 15, 2016. Pranesh Prakash was quoted.

Thanks mostly to its mobile-ad profits, Facebook has had a great couple of years. According to its most recent earnings report, in November, the company’s quarterly ad revenue rose 45 percent, to $4.3 billion, from the same period in 2014. It has more than 1.5 billion monthly users, just over half of all the people online anywhere. Keeping up its rate of user growth—more than 100 million people each year—will only get tougher.

A big part of the problem is that a lot of potential new eyeballs are in places where Internet access is patchy at best. Some of Facebook’s grander projects anticipated that issue: It has satellites and giant solar-powered planes that beam Wi-Fi down to areas that don’t have it. And then there’s Free Basics, the two-year-old project Chief Executive Officer Mark Zuckerberg has called an online 911. In about three dozen countries so far, Free Basics—also known as Internet.org—includes a stripped-down version of Facebook and a handful of sites that provide news, weather, nearby health-care options, and other info. One or two carriers in a given country offer the package for free at slow speeds, betting that it will help attract new customers who’ll later upgrade to pricier data plans.

Facebook says Free Basics is meant to make the world more open and connected, not to boost the company’s growth. Either way, online access is an especially big deal in India, where there are 130 million people using Facebook, 375 million people online, and an additional 800 million-plus who aren’t. (The social network remains blocked in China.) That may help explain why Zuckerberg spent part of the first few weeks of his paternity leave appealing personally to Indians to lobby for Free Basics. On Dec. 21 the Indian government suspended the program, offered in the country by carrier Reliance Communications, while it weighs public comments and arguments from Internet freedom advocates who say preferential treatment for Facebook’s services threatens to stifle competition.

“An emerging country like India needs to provide the consumer with incentives to get onto the Internet.” —Neha Dharia, an analyst at consulting firm Ovum

Since the government’s telecommunications regulator announced the suspension, Facebook has bought daily full-page ads in major newspapers and plastered billboards with pictures of happy farmers and schoolchildren it says would benefit from Free Basics. Zuckerberg has frequently made the case himself via phone or newspaper op-ed, asking that Indians petition the government to approve his service. “If we accept that everyone deserves access to the Internet, then we must surely support free basic Internet services,” the CEO wrote in a column published in the Times of India, the nation’s largest daily paper, shortly before the new year. “Who could possibly be against this?”

Opponents, including some journalists and businesspeople, say Free Basics is dangerous because it fundamentally changes the online economy. If companies are allowed to buy preferential treatment from carriers, the Internet is no longer a level playing field, says Vijay Shekhar Sharma, founder of Indian mobile-payment company Paytm. A spokesman for Sharma confirmed that Zuckerberg called to discuss the matter but declined to comment further.

India’s Internet base will grow with or without Facebook’s help, says Nikhil Pahwa, a tech blogger and co-founder of the Save the Internet coalition, which opposes Free Basics. “We don’t see Free Basics as philanthropy. We see it as a land grab,” says Pahwa. When dealing with the famously protectionist Indian government, that’s a pretty good argument. An April attempt by India’s top mobile carrier to underwrite data costs for certain apps drew heavy criticism, and the carrier, Bharti Airtel, has put the program on hold.

None of that means Facebook can’t help get more Indians online, says Neha Dharia, an analyst at consulting firm Ovum. “An emerging country like India needs to provide the consumer with incentives to get onto the Internet,” she says. “What Facebook Free Basics is doing is a bit extreme, but what you do need is a bit of a middle path.”

Internet sampler packages such as Free Basics can also help carriers like Reliance, the fourth-largest in India, upgrade their often-struggling networks, Dharia says. That’s a symbiotic process, because customers may quickly grow frustrated with the bare-bones service and demand more. Free Basics doesn’t have Gmail, YouTube, Vimeo, Twitter, or Bollywood music streaming. (Video will account for 64 percent of India’s data traffic by March 2017, consulting firm Deloitte estimates.) It’s meant to be a steppingstone. Facebook says about 40 percent of Free Basics users start paying for data plans within a month.

But again, if Free Basics catches on in India, people may just keep paying for data to use more Facebook and forget about some of those other services, says Dharia. “Facebook is the Internet” to a lot of people in India, she says. Google, whose services are most conspicuously absent from the Free Basics roster, declined to comment.

India’s telecommunications regulator says Facebook’s advocates and opponents have until Jan. 14 to file public comments; it’s received about 2.4 million responses so far, most of them form letters supporting Free Basics. The government’s decision could also ripple beyond India, says Pranesh Prakash, a Free Basics opponent and the policy director at the nonprofit Centre for Internet & Society in Bengaluru. In the weeks since India suspended Free Basics, Egypt, which had done the same back in October, once again shut down the Facebook plan, though the government wouldn’t say why. The India fight “will be a reputational challenge for Facebook,” says Prakash. “It will set the tone for Free Basics debate in other countries.”

The bottom line: Facebook’s free data plan in India faces strong opposition from local businesses and Internet freedom advocates.

For more details visit https://cis-india.org/internet-governance/news/bloomberg-businessweek-adi-narayan-bhuma-shrivastava

Facebook, Google tell India they won’t screen for derogatory content

praskrishna — 2011-12-07T05:25:52Z

In the world’s largest democracy, the government wants Internet sites like Facebook, YouTube, Twitter and Google to screen and remove offensive content about religious figures and political leaders as soon as they learn about it. But those companies now say they can’t help.

India’s minister of communications Kapil Sibal began discussions with the online companies in September. On Tuesday, he told reporters the government will have to create new guidelines to disable such content from the Internet sites on its own.

"We will not allow intermediaries to say that ‘we throw up our hands, we can’t do anything about it,’" Sibal said.

Sibal had shown company executives derogatory images of the Prophet Mohammed and morphed pictures of Indian Prime Minister Manmohan Singh and Congress Party chief Sonia Gandhi that appeared on their platforms. Sibal said these images would offend "any reasonable person" and also hurt religious sentiments of Indians.

But on Monday, according to Sibal, the company executives said they cannot do anything.

Soon after Sibal’s news conference, Facebook said in a statement: “We will remove any content that violates our terms, which are designed to keep material that is hateful, threatening, incites violence or contains nudity off the service.” Those parameters are unlikely to include all the images the government of India wants screened out.

Sibal’s move did not come as a surprise for some observers in India, which has the third-largest Internet-user community in the world--more than 100 million people. Earlier this year, India introduced new rules that called on Web sites, service providers and search engines to not host information that could be regarded as “harmful, “blasphemous” or “disparaging.” The rules also called on Web sites to remove offensive material within 36 hours of a complaint.

"I can’t believe a democracy is doing this," said Sunil Abraham, executive director of India’s Center for Internet and Society. He said recent, unpublished research conducted by the group showed that "such rules have a chilling effect on the freedom of expression on the Internet." Researchers sent mock take-down notices to seven sites, complaining about their content. Abraham said six sites immediately deleted content. "They did not even verify the validity of our flawed complaint. They over-complied," he said.

Sibal’s announcement also sparked a debate on Twitter, where Member of Parliament Shashi Tharoor and Chief Minister of Jammu and Kashmir Omar Abdullah weighed in:

The Streisand effect is an online phenomenon in which an attempt to censor a piece of information has the unintended consequence of publicizing the information further. (It is named after Barbara Streisand, who attempted in 2003 to hide pictures of her giant home; that only created more interest.)
But a blogger who calls himself the “Pragmatic Desi” argued that India had its own constraints:

But Member of Parliament Varun Gandi said that’s precisely why the Internet shouldn’t be censored:

The article written by Rama Lakshmi was originally published in the Washington Post on 6 December 2011. Sunil Abraham has been quoted in this. Read it here

For more details visit https://cis-india.org/facebook-google-tell-india-they-won2019t-screen-for-derogatory-content

Facebook, Google face censorship in India

praskrishna — 2012-01-09T05:10:37Z

Religious leaders in India are on a collision course with social media websites including Google, Facebook and Yahoo. Two Indian courts recently asked these American companies as well as 19 other websites to take down “anti-religious” material. They are now required to report their compliance by February. Betwa Sharma's blog post was published in SmartPlanet on 5 January 2012. Sunil Abraham has been quoted in it extensively.

Information technology minister Kapil Sibal also met with a delegation of different faith groups who are worried that certain internet content could lead to communal discord. India’s 1.2 billion people are made up of majority Hindus but it also has the third largest population of Muslims as well as large number of Christians, Sikhs, Buddhists, Jains and other faiths.

India has an estimated 100 million internet users–the third largest in the world after U.S and China. The proposed restrictions are not at all comparable to China’s but is the internet free enough for the world’s largest democracy?

Some observers are suspicious that promoting religious or social harmony is a front for censoring the internet. Sunil Abraham, head of Bangalore-based Centre for Internet and Society (CIS), said that "traditional intellectual property rights holders like movie studios, music companies and software vendors are trying to protect their obsolete business models by pushing for the adoption of blanket surveillance and filtering technologies."

"They have found common cause with both totalitarian and so-called democratic regimes across the world interested in protecting the political status-quo after upheavals like the Arab Spring, Occupy Wall Street, Anonymous and the Pirate Party," he said.

The Indian government has tried to reassure the public that it is not trying to censor. Google’s Transparency Report, however, recorded that out of the 358 items requested to be removed by the Indian government from Jan-June 2011, 255 had to do with government criticism and only a handful with hate speech.

Sibal has also been speaking to executives from Facebook, Yahoo and Google in India. But no agreement has been reached on taking down hate speech. New rules, issued in April, require internet intermediaries like Facebook and Yahoo to check for “unlawful” material and take it down.

CIS will soon be releasing a report called “Intermediary Liability in India: Chilling Effects on Free Expression on the Internet 2011." For the report, CIS conducted a sting operation by sending flawed takedown notices to seven intermediaries. The results showed that six intermediaries over-complied with the notices. "From the responses from the intermediaries don’t have sufficient legal competence or unwilling to dictate resources to determine legality of an online expression," Abraham said.

"Various pretexts like national security, protection of children, crackdown on online crime and terrorism, defense against cyber war etc are used to compromise civil liberties and clamp down on freedom of expression," he added.

(Photo-facebook24h.com/Google images)

Read the original published by SmartPlanet

For more details visit https://cis-india.org/news/facebook-google-face-censorship-in-india