Centre for Internet and Society

Facebook Free Basics vs Net Neutrality: The top arguments in the debate

praskrishna — 2016-01-07T02:26:16Z

On Twitter, there's a whole conversation around Facebook Free Basics and whether zero-rating platforms should be allowed in India. Here's a look at the debate.

The article was published in the Indian Express on December 31, 2015. Sunil Abraham and Pranesh Prakash were quoted.

Facebook’s Free Basics app, which aims to provide ‘free Internet access’ to users who can’t afford data packs, has run into trouble in India over the last two weeks. After regulator TRAI issued a paper questioning the fairness of zero-rating platforms, it also asked Reliance Communications (the official telecom partner for Free Basics) to put the service on hold.

Facebook on its part has gone for an aggressive campaign, both online and offline, to promote Free Basics and ensure that its platform is not banned permanently. For Net Neutrality activists, zero-rating platforms are in violation of the principle as it restricts access to free, full Internet for users.

On Twitter too, there’s a serious debate unfolding around Free Basics and whether zero-rating platforms should be allowed in India. Here’s a look at some of the prominent voices around this Net Neutrality vs Free Basics debate.

Watch our video

Nikhil Pahwa, founder of news website MediaNama, has been campaigning for quite some time against zero-rating platforms in general and Net Neutrality. On Twitter, Pahwa points out that the problem with the zero-rating apps is that it gives telecos right to play kingmaker, and get into a direct relationship between a website and a user.

Pahwa also wrote a counter-blog to Mark Zuckerberg’s column in The Times of India questioning why Facebook is going with this restricted version of the web on Free Basics, rather than giving access to all websites.

He posted recently on Twitter, “Why hasn’t Facebook tried any model other than on which gives it a competitive advantage?”

Pahwa adds, “With zero rating, telcos insert themselves into a previously direct relationship between a site and user. Some sites made cheaper versus others. Said it earlier, saying it again. Problem with zero rating is that it gives telcos the right to play kingmaker through pricing. So Net Neutrality battle isn’t just about Facebook. It’s about telcos lobbying for differential pricing+revenue share from Internet companies.”

Check out some of this tweets on the issue of Net Neutrality:

Pranesh Prakash, the director for policy at Centre for Internet and Society (CIS) in Bangalore, has said that a total ban might not be the ideal solution and one should look at the platforms on a case by case basis.

He writes on Twitter, “My position: We should ban some zero-rating, allow some zero-rating, and deal w/ middle category either w/ +ve obligation or case-by-case. I’m all for banning Free Basics if it harms people more than it benefits them. I’ve even proposed tests for determining this. The regulator needs more data on a) conversion rates to full-Internet; b) cost of subsidy & c) QoE (speed, etc.) of Free Basics.”

Check out Pranesh's tweets below

Sunil Abraham, executive director at Centre for Internet and Society, has however questioned Free Basics on Twitter. He also posted counter-points to Pranesh’s tweets about data on conversion being used to create regulations around zero-ratings. He’s also called for a ban on Free Basics.

Check out his tweets below

For more details visit https://cis-india.org/internet-governance/news/indian-express-december-31-2015-facebook-free-basics-vs-net-neutrality-the-top-arguments-in-the-debate

Facebook Arrests Ignite Free-Speech Debate In India

praskrishna — 2013-01-07T10:16:39Z

Shaheen Dhada is an unlikely looking protagonist in the battle under way in India to protect free speech from government restrictions in the new media age.

This article by Julie McCarthy was published in npr on November 29, 2012. Pranesh Prakash is quoted.

Slight and soft-spoken, Dhada perches on the edge of her bed in a purple-walled room that has been her own for the past 20 years. Outside, police officers are posted for her protection in the town of Palghar, 2 1/2 hours outside Mumbai.

The 21-year-old management science grad's Facebook post last week triggered her arrest and the wrath of local residents. Her "crime" was questioning the shutdown of Mumbai as mourners gathered for the cremation of Bal Thackeray, who had dominated the city's political stage for decades with cagey intimidation tactics.

In a Facebook post on Nov. 18, Dhada wrote: "Every day thousands of people die, but still the world moves on. ... Today, Mumbai shuts down out of fear, not out of respect."

Within minutes, she got a call from a stranger. "And he told me, 'Do you really think whatever you posted is right?' " Dhada says. "I was actually confused about what he was asking for."

She hung up and deleted her comment. But by then a mob had gathered at her uncle's medical clinic around the corner, smashing windows and equipment, and vandalizing the operating room.

"Within 10 minutes, the police came and told me to come to the police station. I had to apologize in a written statement," says Dhada, who was held until 2 a.m. and then released on bail. A friend of hers, Renu Srinivasan, who "liked" the post, had been detained with her. A mob descended on the station. Dhada says she couldn't see it, but heard: "They were shouting, and at that time I was really very scared."

Meanwhile, Dhada's father, Farooq Dhada, says his family cowered inside their home for hours in the darkness, afraid the mob would come for them next.

The episode has shaken the Muslim father of two, who says he never expected things to escalate to such a frightening pitch. Reflecting on the incident days later, he says freedom of speech in India "exists only on paper." He says he doubts the common person feels any sense of security — no matter what religion they are.

Shiv Sena's Legacy Of Violence

Shaheen Dhada's post had angered followers of Thackeray, a political cartoonist turned Hindu hard-liner. His Hindu party, Shiv Sena, won popular appeal in the state of Maharashtra, where Mumbai is located. Exploiting enmity against migrants from other states, the party encouraged brute force to win jobs and opportunities.

Journalist Naresh Fernandes says when Hindu nationalism became a potent force, Shiv Sena turned its ire on Mumbai's Muslims — igniting riots that killed 900 people in 1992 and '93.

Thackeray fanned the violence, Fernandes says, by "making extremely provocative statements essentially calling upon his followers to attack Muslims."

Vaibhav Purandare, author of The Shiv Sena Story, says the party's legacy of violence has cost it support over the years.

"They refused to believe that the India of the 21st century was very different from the India of the 20th century ... when a section [of the population] would not mind the use of violence," Purandare says. The bust-up of the medical clinic "shows they continue with violence tactics," he adds.

Anil Desai, the secretary of Shiv Sena, says it is not a matter of disowning the violence. "It was an emotional outburst," he says, "and the incidents ... were blown out of proportion, that much I say."

Inciting Religious Enmity

At a restaurant in Palghar on Friday night, the talk among locals turned to the Facebook row. Sunil Mahendrakar said Dhada should be prohibited from posting comments critical of Thackeray because he was considered a father figure to many, if not to her.

"Talking cheap or bad about somebody's father should be denied, anywhere in the world. In India ... in America," he said. "It's wrong."

Retired Supreme Court Justice Markandey Katju says every freedom is subject to "reasonable restrictions in the public interest." But he says in the case of Dhada, her post actually underscores a Supreme Court ruling that bringing a city to a standstill is illegal.

"You can mourn a death in whichever way you want, but you can't bring a whole city to a stoppage. So what this girl wrote was in consonance with the verdict of the Supreme Court — nothing illegal," Katju says.

Nonetheless, police charged Dhada under a statute that makes it a crime to promote "religious enmity" between groups. The initial police report refers to her as a Muslim. But Dhada says she does not believe she was singled out for her faith.

Writer Fernandes says it's more likely police were scrambling for a convenient hook on which to hang a charge.

"They needed to find a cause of anger and suggested that she, as a Muslim girl, had insulted them, who were Hindus," he says. "That's ridiculous. She questioned why a city shut down after Bal Thackeray's death — and Bal Thackeray is not a religion; he's a leader of a political party."

The general consensus seems to be that the police not only misapplied the law but also succumbed to the will of the mob.

"There were thousands of guys outside their police station and inside the station house who were doing what the Shiv Sena has always done — threatening to burn the town up," Fernandes says. "They just wanted to get them off their backs and wanted to make sure that order was maintained even as they didn't quite uphold the law."

Communal Harmony

The case also throws a harsh light on India's new Information Technology Act that governs electronic speech. Police charged Dhada with violating a section of the law, which prohibits speech that, among other things, causes "annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will."

Pranesh Prakash, the director of the Centre for Internet and Society, says it's a poorly drafted catchall. Under such a sweeping statute, Prakash says, 95 percent of India's Internet users could well be imprisoned.

"I have 3,500 followers on Twitter, and I'm pretty sure I annoy 100 of them on a daily basis," he says.

Tackling issues of communal harmony is a serious issue in India, but, Prakash says, "it should not lead to forsaking fundamental rights guaranteed by the Indian Constitution."

The government conferred Thursday over problems with the IT Act, while the Supreme Court is hearing challenges to it.

Shaheen Dhada and Renu Srinivasan are not expected to face prosecution under the country's controversial IT Act or any other law. Following a public outcry, two senior officials from the local Palghar police have been suspended and a magistrate transferred.

From her self-imposed house arrest, Dhada says she'll venture back onto Facebook, but her experience is certain to color her musings.

"I don't want this to happen again," she says, laughing, "but I'll be careful next time."

For more details visit https://cis-india.org/news/npr-julie-mccarthy-november-29-2012

Facebook and its Aversion to Anonymous and Pseudonymous Speech

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

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

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

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

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

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

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

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

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

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

Expert Meeting on Freedom of Expression and Intellectual Property Rights

praskrishna — 2012-03-16T07:41:39Z

This report provides an overview of the discussion from the Expert Meeting on Freedom of Expression and Intellectual Property Rights, organized by ARTICLE 19 in London on November 18, 2011.

At the meeting, nineteen international scholars, experts and human rights activists met to explore the antagonistic relationship between Intellectual Property (IP) and the rights to freedom of expression and information (FoE). This conversation is timely if not overdue, as governments are increasingly using the pretext of IP protection to place unjustified restrictions on the exercise of FoE, particularly on the Internet. ARTICLE 19 believes that increasing the profile of the human rights perspective in debates on IP law and policy is essential to protecting FoE, particularly in the digital environment. The objective of the meeting was therefore to develop an appropriate rights framework for evaluating IP law and enforcement mechanisms, to advance a policy paper on the issue and eventually to establish a set of key principles on IP and FoE.

This report outlines:

A summary of the discussions that took place during the meeting; and
Outstanding issues and those requiring follow-up discussion in order to conceptualise and complete a position paper on the subject.

List of Participants

Andrew Puddephatt: Director, Global Partners & Associates
Brett Soloman: Executive Director, ACCESS.
Dinah PoKempner: General Counsel, Human Rights Watch.
Jérémie Zimmermann: Co-founder and spokesperson, LaQuadrature du Net: Internet & Libertés
Jeremy Malcolm: Project Coordinator for IP and Communications; Consumer International.
Jim Killock: Executive Director, Open Rights Group
Michael Camilleri: Human Rights Specialist, Office of the Special Rapporteur for Freedom of Expression at OAS.
Michael Geist: Chair of Internet and E-commerce Law, Univesity of Ottowa.
Pranesh Prakash: Programme Manager, Center for Internet and Society
Raegan MacDonald: Policy Analyst, ACCESS (Brussels)
Saskia Walzel: Senior Policy Advocate, Consumer Focus
Yaman Akdeniz: Associate Professor in Law; Human Rights Law Research Center, Faculty of Law, Istanbul Bilgi University.
Walter van Holst: IT legal consultant, Mitopics
Agnes Callamard: Executive Director, ARTICLE 19
Barbora Bukovska: Senior Direct for Law and Policy, ARTICLE 19
David Banisar: Senior Legal Counsel, ARTICLE 19
Gabrielle Guillemin: Legal Officer, ARTICLE 19
Andrew Smith: Lawyer, ARTICLE 19
Michael Polak: Intern, ARTICLE 19

Welcome, Introductions, Purpose

Agnès Callamard opened the meeting with a welcome and introduction, giving a brief overview of ARTICLE 19’s extensive experience over twenty years bringing together coalitions to increase the profile of various advocacy issues and develop key policy documents, including the Camden Principles on FoE and equality, and the Johannesburg Principles on FoE and national security.

In the last three years, the Internet has increasingly come to the forefront of ARTICLE 19’s work. During this time it has become clear that the agenda for protecting IP negatively impacts FoE, and that there is a notable absence of traditional human rights groups engaged with the IP agenda or campaigning on its implications for human rights. ARTICLE 19 believes that there is a clear need for this gap to be filled, for us to enter this dialogue and challenge current preconceptions with an alternative human rights narrative that counters that promoted by IP industries.

The purpose of this meeting, therefore, is to develop a strategy for promoting the FoE perspective in debates on IP. To do this, it is important to first conceptualise the relationship between FoE and IP within a rights framework: to identify how or if these interests should be balanced and what the areas of conflict and conciliation are. This discussion should clarify the best way to proceed, with a view to arrive at a policy paper and eventually a set of principles on how to best protect FoE in the IP context.

Session 1: Brief comments by participants on issues of concern for freedom of expression campaigners in relation to IPR

The objective of the first session was for all participants to identify the most significant issues in current debates on freedom of expression and IP, and the extent to which some issues may have been overlooked, underestimated, or over-emphasised. These issues, ideas and perspectives would then guide discussions during the remainder of the meeting and at future meetings.

All participants agreed that applying a human rights framework to this debate is an important and worthwhile endeavour. The following issues were identified during the discussions:

Conceptual starting point

Participants agreed that the status quo should not be the “starting point” for discussions, and that we should avoid being trapped in the narrative that has been developed and imposed by IP rights holders. This requires questioning accepted language and norms, pushing the boundaries of the debate and thinking outside the box. The proliferation of terms such as “piracy”, “theft” and other criminal law language to describe non-commercial copyright infringement demonstrates the extent to which corporate interest groups have controlled the agenda. We should reject these terms and instead adopt positive language that emphasises the cultural and economic value of information sharing, and frame IP as a potential obstacle to these values. This dialogue should recognise that the relationship between people and information has changed in the digital age, and that a new generation of people express themselves through sharing media online and creating new works such as video mash-ups.

A human right to IP?
Several participants questioned whether we should accept interests in IP as “human rights”, particularly as the concept is one born from censorship. Rejecting IP as a human right would require challenging accepted language such as “intellectual property rights” and “rights holder”. If we speak of IP interests or claims, rather than human rights, then it is also inaccurate to speak of their interaction with other rights as a “conflict between rights” that requires “balancing”. Instead, certain IP claims, and the detection or enforcement mechanisms that support them, should be framed as restrictions on the right to freedom of expression.

Some participants expressed doubts over the value of advocating that IP is not a human right when the idea is already embedded and various regional courts have already recognised it as such. Such a campaign would be difficult and achieve little, particularly as it may require changing established agreements such as Berne and TRIPS that would take decades to reform. Staying within the existing legal framework may be the only pragmatic way to achieve change in the short and medium-term. There was agreement that understanding how different treaties and human rights instruments or bodies understand IP is important before proceeding.

In the alternative, it was suggested that IP could be viewed as a “human right” to the extent that it complements other human rights, such as FoE. Copyright is often justified on terms that it is essential for incentivising creativity and that it is an “engine” of free speech – this argument needs further exploration, as it shows that the two rights may sometimes be complementary. ARTICLE 19 is familiar with a strategy focussed on complementarity, as the Camden Principles promoted a similar approach to advocate that the right to equality and right to FoE were mutually reinforcing rather than contradictory. Similarly, participants spoke about a “social value” approach to viewing IP as a human right, i.e. the greater the social value behind the IP protection, the more weight it would have in a rights “balancing” exercise.

Other suggestions on reframing or reversing IP preconceptions included recommending a system where the “public domain” is the norm and any monopoly interest the exception. Exceptions would have to be argued on a case-by-case basis and would be granted only when it would be in the public interest to do so.

A consensus seemed to develop that rejecting the idea of IP as a right would not be a helpful strategy. However, between the various alternative suggestions the only agreement seemed to be that the issue requires more exploration so that the nature of IP as a right can be better understood. It is anticipated that reaching a definite conclusion on this issue will inevitably not satisfy everyone, but would be necessary to proceed with an advocacy campaign.

The Right to Culture
As well as the right to property and the right to freedom of expression, there is also the right to culture in Article 27 of the UDHR and Article 15 of the ICESCR. Both instruments reflect the tension between a right to access culture and the competing right of individuals to protect the material interests in their intellectual property. Participants recommended further exploration of the economic, social and cultural rights perspective on IP issues and integrating this into a campaign.

Pulling apart multiple IP issues
Participants identified a number of ways in which IP engages freedom of expression, and that it is therefore important that a FoE analysis dealt with these issues separately. One focus should be on the IP protections themselves – these give individuals monopolies over information and thereby restrict others’ FoE. Within this, the breadth of exceptions regimes is important, as these vary significantly between countries, in particular the duration of copyright protection and how ‘fair use’ or ‘fair dealing’ type exceptions are defined. The use of digital rights management systems (DRMS) as preventative measures also relate to this area. A second focus, and a current “hot topic” in IP circles, is the enforcement agenda. This includes the criminalisation of non-commercial IP infringement, the privatisation of policing IP infringement and its impact on net neutrality, and criminal and civil law protections for DRMS.

The difference between types of IP was also discussed. There are different rationales behind copyright, trademarks, and patents. Our approach should be as nuanced and specific as possible – when we are criticising copyright we should only refer to copyright and not IP generally. Unpacking the issues in relation to the different types of IP will be important for developing a coherent policy.

The way that international trade agreements have consistently augmented IP rights was also highlighted. In relation to electronic data, the copyright holder now has so much control over the use of the information, particularly through digital rights management systems protected by the criminal law, that purchasing such products is increasingly more like renting than owning. This augmentation should be tracked and highlighted in an advocacy campaign.

Advocacy Strategy
It was also noted that developing a human rights perspective on IP is not only an intellectual pursuit but needs to be viewed in terms of a citizen movement capable of achieving outcomes. Participants identified several further issues that should be considered when developing an advocacy strategy.

One consideration would be how we develop campaigning alliances. Some industries are potential allies, in particular Internet intermediaries that are increasingly under pressure to be the private police of copyright holders. Some artists themselves are also sympathetic to FoE arguments. More obviously, consumers and information users should be mobilised by a campaign. It is important to develop distinct strategies for targeting identified groups that reflects our understanding of their diverse interests; this would allow us to build commonalities between actors who may normally be regarded as having divergent objectives, and mobilise each to push for change in a direction that supports our ultimate goal.

Central to a campaign strategy is also the idea of having a clear message as to what the problem is and how it impacts people on a day to day basis. The utility of graphics illustrating the inequitable geographic distribution of IP interests was recommended as a useful tool to demonstrate the scale of this global problem. Ways of countering campaigns conducted by IP holders over the last two decades were also discussed, in particular how to push back against the idea of copyright infringement as “theft”, as has been promoted through slogans such as “you wouldn’t steal a handbag.” Illustrative analogies were discussed, including viewing IP infringement as mere trespass rather than theft and as “copying” rather than depriving a person of property. However, it was concluded that these analogies were helpful for developing our understanding of the issues, but would not be as effective as campaign tools. An effective campaign would have to distinguish between background issues and our actual advocacy points, which would be focussed on a clear set of key fundamental principles.

Participants also identified the importance of engaging governments and the media on the inconsistency of their policies and coverage of FoE and IP. The US, in particular, is loudly proclaiming its commitments to FoE on-line whilst simultaneously promoting aggressive enforcements mechanisms for IP that directly undermine FoE rights.

The campaign against ACTA in the European Parliament (EP) was also recommended as a platform from which to launch further dialogue on FoE and IP. Since the meeting, ARTICLE 19 has released a statement on ACTA that we have shared with all participants, and plans to circulate this statement to various EP committees and MEPs in the coming weeks.[1]

Opportunities for strategic litigation were also identified. In particular, there are a number of Article 10 ECHR cases pending before the European Court of Human Rights on the blocking of websites, many being from Turkey.

Session 2: The tension between freedom of expression and IPR

The second session began with a presentation by Gabrielle of the background paper on intellectual property and freedom of expression. Participants gave feedback on issues raised in the paper and suggested ways of developing it into a policy paper to compliment an advocacy campaign.

Gabrielle’s opening comments acknowledged that the background paper is very much focussed on FoE in the digital age, and is centred more on copyright rather than trademarks and patents. Gabrielle outlined the way in which conflicts between tangible property rights and freedom of expression have been dealt with by the ECHR. She also identified key challenges to reframing understandings of IP, in particular in relation to the notion that the public domain and information sharing should be the norm while information monopolies should be the exception. Gabrielle also highlighted the timeliness of this discussion as significant changes to the enforcement agenda are taking place; including the criminalisation of copyright infringement and DRMS circumvention.

Participants agreed that the policy paper was an excellent starting point for discussions on FoE and IP, and recommended a number of areas for further elaboration in future drafts:

The objective tone of the paper, placing ARTICLE 19 as an impartial arbiter, is a productive starting point.
The legal framework for IP/FoE should be elaborated to acknowledge the right to culture as contained in Article 27 of the UDHR and Article 15 of the IESCR. The ways that states periodically report their IESCR compliance could be explored.
Intermediaries should be referred to in broader terms than just as ISPs. “Information society service providers” is an umbrella phrase that includes search engines, advertisers, payment services.
The Scarlett decision by the ECJ should be incorporated once it is released.[2]
The concept of “filtering” is essentially a type of “blocking”, both may be referred to as censorship to clarify their immediate impact on FoE.
Some participants felt that explaining why the FoE implications are different for civil and criminal law would be helpful.
Participants felt that the section on the implications of the ACTA regime could be built upon.[3]
In developing the section on FoE rights, the Latin American view of FoE as a collective right may also be worth emphasising. It may also be worth comparing the potential balance between IP and FoE to other balancing exercises related to privacy or reputational rights.
The differences between copyright, trademarks and patents should be explained.
A section outlining the philosophical foundations of these protections, in particular the difference between the US (incentivise creation) and European (natural rights) approach to IP might also be helpful.
It should be stressed that the failure of IP law to adapt to new technologies is the problem, not new technologies themselves. This failure undermines the justifications for protecting IP rights.
Greater emphasis should be placed on the way in which the current legal framework is based on an ideal of an 18th century author, and does not acknowledge the impact of IP on scientific research and collaboration, indigenous knowledge, peer-to-peer sharing, the creative power of new technology etc.
Positive examples of IP infringement would be useful for illustrating why IP protection shouldn’t be safeguarded at all costs. In particular, efforts to make works more accessible to minority language speakers (crowd-sourcing methods in particular) and the impact that IP law has on blind people’s access to information.
Similarly, examples of censorship that make the impact of IP protections of FoE clearer to policy makers would be helpful in debunking the myth that the interests of the IP industry giants are synonymous with those of the individual creators.
It would also be helpful to illustrate that IP protection is also a geographic concentration of wealth issues as much as a moral issue.[4]
The role of de minimis exception regimes in protecting FoE should also be explored in greater depth.
Several sources were also recommended, including the Association littéraire et artistique internationale (ALAI)[5], the International Federation of Libraries Association (Stuart Hamilton identified as a contact)[6] and the OSCE study on Internet Freedom.[7]

Session 3: Key questions, issues and challenges

Dave chaired a third session to elaborate upon the key issues discussed prior to lunch, with a view to reaching some level of consensus on the appropriate scope of restrictions on freedom of expression in defence of IPR.

Gabrielle offered comments on the balance that could be applied between the right to property (Article 1 of Protocol 1 to the ECHR) and the right to freedom of expression (Article 10 of the ECHR). However, as the European Court of Human Rights has not ruled on the balance that ought to be struck between these two rights in the context of intellectual property, it is difficult to speculate on how it would be litigated.

Participants agreed that the ‘public interest’ is central to assessing when property rights can be restricted to promote other rights, including FoE. The need to stress the importance of the Internet as a public forum was also identified.

The participants also discussed what limitations are appropriate to place on IP rights. Various ideas were suggested, but it was concluded that any recommended framework on the substance of IP rights would have to be compliant with the Berne Convention. This means that in terms of copyright duration, the minimum that could be recommended is 50 years. It was also stated that any system that recommends a default public domain with a system of registration for copyright “exceptions” would not be compliant with Berne. The augmentation of IP rights through these international agreements was again referenced, as there appears to have been a pattern of the US and EU exporting the worst aspects of their IP regimes abroad through trade arrangements without elaborating on how exceptions to IP rights should be developed. It was also noted that copyright holders will continue to support this process, as their business model depends upon having as much control over the use of information as possible.

Again participants identified the need to distinguish between the limitations that are imposed on FoE by the IP rights themselves, those limitations imposed by preventative technological measures and those imposed by enforcement mechanisms.

The importance of distinguishing the different actors involved was also emphasised, i.e. whether we are discussing competing rights between private creators (e.g. original creator vs. derivative creator) or the direct relationship between the state and individuals (e.g. enforcement of criminal provisions against an individual infringing IP). It is important that our analysis does not conflate private actors with state actors, and that it is clear what positive and negative obligations are on these parties and the rationale for their application.

It was suggested that an approach that balances competing human rights is appropriate where the interests of two creators are in conflict, but perhaps not when the state intervenes to prevent or punish IP infringements. Where the state acts to restrict an individual’s access to the Internet, it is not a balance issue but an unnecessary and disproportionate interference with the right to freedom of expression.

Participants stressed the economic and social significance of blanket (and even many specific) restrictions on Internet access. Blanket prohibitions on access to the Internet was compared to solitary confinement, and participants agreed that sanctions such as these are never necessary or proportionate responses to IP infringement. An analogy was made to a statement recently issued by ARTICLE 19 on services to counterfeit mobile telephones being shut down in Kenya.[8] Participants also indicated that these blanket measures are increasingly rare, but that states still violate the principles of necessity and proportionality through limitations that they impose.

Further FoE concerns were raised in relation to the enforcement of IP rights in the digital environment. In order to monitor the Internet for IP infringement, it is necessary to monitor the content of all Internet communications. This has implications for FoE rights and privacy rights, and has a potential chilling effect on all on-line expression.

There was also some discussion on defining what our working definition of FoE should be in this context, particularly in relation to use of new technologies and DRMS. Does FoE necessarily include the right to scan a document, to use translation technology on it, to copy and paste, to save in various formats etc?

Participants also discussed that the ordinary de minimis exceptions cannot simply be transplanted and applied as ‘exceptions’ or defences to DRMS circumvention offences. DRMS limit the use of works severely, and unless you have the technical knowledge to circumvent these devices, it is not possible to take advantage of exceptions or defences.

There were also discussions on access to justice issues, due to the prohibitively expensive cost of contesting litigation against large corporations.

Several participants mentioned that discussions on these issues have a tendency to become too narrow in their focus. Examples given were that the focus drifts to copyright rather than trademarks and patents, that peer2peer sharing gets more attention than other technology uses, and that artistic expression is talked about but not technical or scientific forms of expression. At the same time, some participants expressed an aversion to a “kitchen sink” approach in any campaign, as it may result in an incoherent message.

Various sources were recommended for further reading. These included a report by Consumers International on best state practices (Brazil, Canada and South Africa mentioned for enacting progressive legislation recently),[9] and the UN guidelines on consumer protection.[10]

Session 4: Measures for protecting and enforcing IP rights on the Internet: finding a better balance with FOE

At the fourth session, Barbora chaired a discussion on procedural issues that pose a threat to freedom of expression and Internet freedom. Key issues identified at the outset were whether sticking to a human rights view that judicial oversight is the best option or is there a human rights compliant alternative model? As it was decided in the previous session that disconnection is disproportionate, are all forms of criminal liability for Internet use disproportionate? And what limits should be placed on civil remedies, such as damages-award ceilings.

Discussions began on whether an administrative model for notice and takedown would be appropriate. Advantages that were identified of non-judicial models include:

An administrative system is more effective in terms of time and cost. The number of notice and takedown requests that happen on-line would overwhelm a traditional judicial organ.
Protections for intermediaries from liability can be built into the system.
Guidelines can ensure compliance with legal certainty, transparency, due process, specificity of remedies, protections for the identities of users.
Could also be subject to judicial oversight.
That limitations on cost would also “disarm” corporations who would not be able to threaten expensive court procedures that intimidate individuals into prematurely settling civil actions.
The need for fast remedies in digital infringements was also stressed. For example, a website may be created only for the 90 minutes of a football game and then disappear – traditional judicial methods cannot be used to provide redress in these circumstances. Although this may appear to be a “shoot first, aim later” approach, one needs to consider these pragmatic concerns. An administrative model is better suited to this than a judicial system.
Alternatives to an administrative model included the use of non-legal ombudsmen or arbitration proceedings. These measures could also keep costs low.

A number of participants disagreed that an administrative model was appropriate. Their concerns focussed on the following issues:

That the independence of an administrative body could not be guaranteed.
That an administrative procedure should never be used to impose criminal liability.
The procedural guarantees in an administrative system are less robust, particularly in countries that do not have a strong separation of powers.
That the time and cost of a judicial system is necessary to comply with international human rights standards.

Concerns were also raised about recommending any boilerplate solution that should be ‘copy and pasted’ into all national contexts without adequate consideration being paid to that country’s legal system or traditions. In terms of accuracy of language, it was also commented that notice and takedown affects hosts of content, and not ISPs, who are mere conduits.

Systems in place in Canada and Japan for “notice and notice” were also discussed. In these systems, the IP holder notifies the intermediary, who notifies the user, who has a time to reply before action is taken. The role of the intermediary in this system is to facilitate communications and they are not subject to liability. The accommodation of “emergency requests” could also be considered within this system.

With any notice and takedown system it would also be important to make it clear to those controlling the content how you object to a takedown notice. Access to justice principles are important here, particularly considering the amount of misinformation that has circulated in recent years on the nature of IP infringement.

Various examples were given of forum shopping by IP owners in provincial courthouses where judges are less experienced in IP law and therefore more responsive to the arguments of IP holders.

There was also a discussion on why copyright holders would favour criminal sanctions as opposed to civil remedies. On the one hand, it seems intuitive that the rights holder would rather receive damages than have a person fined or imprisoned by the government. It was suggested that the criminal law has the advantage of having a more significant chilling effect. Also, in criminal cases, the costs of detection and enforcement can be placed on the state.

A number of initial principles were identified through this discussion:

Intermediaries should be immunised from civil liability.
There should not be liability for hyperlinking. It must be distinguished from “re-publication”.
Non-commercial infringement should not be criminalized. It was noted that TRIPS requires commercial scale infringement to be criminalized. Narrowly defining what is meant by “commercial” is important:

Peer-to-peer sharing should not be considered commercial.
IP infringement committed by individuals should not be considered commercial.

The need for clarity in the law and for information on IP law to be available to end-users facing litigation threats from copyright holders. In particular, states should educate individuals in the exceptions to copyright protections that serve the public interest.
Possible limitations on damages could be developed.

Session 5: Political developments and strategies of response

The purpose of the fifth session was to provide participants with the opportunity to discuss developing strategies for working together to better combat governments’ attempts at restricting FoE on the basis of protecting IP.

The first priority that was identified was to finalise a policy paper on the issue. This would perhaps take some time to formulate, and may require further meetings to discuss key issues.

A second priority for advocacy was identified in relation to ACTA, which will be voted upon by the European Parliament in the coming months. ARTICLE 19 has issued a statement on ACTA that will also be circulated among participants.

A third discussion concerned the possibility of uncovering a wikileaks-type “scandal” in which the hypocrisy of copyrights holders, and their true motivations, could be exposed. Receiving internal emails from whistleblowers interested in exposing such a story would provide a good media storm in which to launch an advocacy campaign. Examples of IP industries illegally lobbying governments or interfering with the administration of justice would be helpful. The involvement of the British Phonographic Industry in lobbying for the Digital Economy Act was referenced in this discussion.

The utility of engaging with the copyright industries was also discussed. These industries have a reputation for not negotiating– they want as much control over information as possible, as control is essential to their business model. There may be some utility in identifying who our enemies’ enemies are. It was mentioned that the occupy movements may be interested in pursuing a human rights narrative against corporate property interests. These groups are very much engaged in promoting FoE rights. The traditional media was also identified as a group that may be interested in supporting a movement for greater FoE protections against IP.

In terms of developing strategy, it was also recommended that we look at successful human rights campaigns from the past, particularly any in the field of cultural rights. Potential partners for coalition building need to be looked at, and many of these partners may be within emerging economies such as BRIC or South Africa.

As we develop a strategy, we need to remain focussed on framing this battle as a human rights fight. We need to identify victims, perpetrators, and a call to action. A different plan may be needed for each audience that we identify. From the experience of activists at the meeting, theoretical arguments will not succeed in rousing a people-driven campaign. The use of new media, such as campaign videos on youtube, that clearly outline the human rights case would be helpful. It is also necessary to bridge the gap between popular campaigns and videos, and getting those campaigns into the mainstream media and creating a political issue out of it. As technology users that would be interested in this campaign tend not to vote, making this a political issue means making people who do vote understand the issue as one that is a mass-scale human rights violation.

Concluding comments and closing

Agnès closed the session by identifying several key steps:

The need to revise the policy paper in light of discussions throughout the day’s sessions.
The need to meet again to discuss the revised policy paper and to continue these discussions.
The objective of developing our role as advocates, identifying what we can initiate, what existing efforts we can support, and what our overall strategy should be.

[1].ARTICLE 19 statement “European Parliament must reject ACTA”, see: http://www.article19.org/resources.php/resource/2901/en/european-parliament:-reject-anti-counterfeiting-trade-agreement-%28acta%29

[2].This judgment has since been released. See ARTICLE 19 press release: http://www.article19.org/resources.php/resource/2872/en/landmark-digital-free-speech-ruling-at-european-court-of-justice

[3].ARTICLE 19 has since released a statement on ACTA. See: http://www.article19.org/resources.php/resource/2901/en/european-parliament:-reject-anti-counterfeiting-trade-agreement-(acta)

[4].http://www.worldmapper.org/images/largepng/167.png was recommended for its map of patent distribution in 2002.

[5].ALAI homepage: http://alaiorg.vincelette.net/index.php?option=com_content&task=view&id=50&Itemid=24

[6].See a list of publications at: http://www.ifla.org/en/publications

[7].OSCE study “Freedom of Expression on the Internet” (2010): http://www.osce.org/fom/80723

[8].ARTICLE 19 statement on FoE and counterfeit mobile telephones: http://www.article19.org/resources.php/resource/2762/en/kenya:-free-expression-standards-should-guide-fight-against-%E2%80%9Ccounterfeit%E2%80%9D-mobile-phones

[9].http://a2knetwork.org/watchlist

[10].http://www.un.org/esa/sustdev/publications/consumption_en.pdf

For more details visit https://cis-india.org/a2k/freedom-of-expression-and-ipr-meeting

Expect anti-net censorship echo in house

praskrishna — 2012-04-25T11:07:43Z

For the anti-Internet censorship movement in the country, hope is now in sight. Their fight against the intermediary provisions (section 79) of the IT laws, according to which, an intermediary (website, domain owner) would have to take off content that a third party (or complainant) finds ‘objectionable,’ without any room for appeal, has now garnered the attention of the government itself. What is at stake is our fundamental rights, warns CPM Member of Parliament P Rajeeve, who was perhaps the first at the government level to realise that there was a gaping hole in the provision, and took up the matter in the Rajya Sabha.

This blog post by Arpan Daniel Varghese was published in IBN Live on April 25, 2012

“A discussion on the annulment of the IT Act 2011 itself is likely to figure in the budget session of the Parliament on April 24. I am trying to mobilise other MPs. We have decided to convene a meeting of organizations, representatives of political parties and MPs to discuss this issue in detail,” says MP Rajeeve.

Noted Twitteratti and former Minister of State for External Affairs Shashi Tharoor too is concerned, particularly about the onus this places on Internet Service Providers.

“If a newspaper publishes something, you go after the newspaper, not the delivery boy. Yes, you can ask the delivery boy to stop delivering the newspaper, but that is such an extreme step that few democracies would contemplate. But what we are trying to do seems to go unacceptably far in this direction and needs further reconsideration,” Tharoor says, adding that he too is planning to raise the issue in the Lok Sabha.

Both Alok Dixit from ‘Save Your Voice’ and Sunil Abraham, the executive director of the Centre for Internet And Society (CIS), say they are speaking to MPs and others in the government and trying to initiate an motion in the Rajya Sabha against the intermediary provisions. And support has been pouring in from all quarters, be it cyber space or through the pan-India protests, including the recent one at the Marina Beach in Chennai that ‘Save Your Voice’ has been holding.

Alok, Sunil and scores of activists across the country are now pinning their hopes on the annulment motion introduced by MP Rajeeve, which is likely to be taken up during the second half of the Parliament session on Tuesday.
The main hassle, however, is ignorance. “People don’t even know about the laws. They are not aware of their rights. So, the kind of support we are getting is quite less,” says Alok.

The legal fraternity and the administration too face the same roadblock, agrees Kerala High Court advocate Jacob. “This is a new area and people are just learning the theoretical side of it. There are not many cases. Trained professionals are not there to train the legal fraternity itself,” he rues.

The fundamental question is, according to Sunil, “why should freedom of speech and expression be any different on the Internet?”
“Remember, this is the same Internet which brought out Kolaveri and structured the Anna movement. So, it affects you,” Alok signs off.

Read the original here

For more details visit https://cis-india.org/news/anti-net-censorship-echo-in-house

Examining the Constitutionality of the Ban on Broadcast of News by Private FM and Community Radio Stations

Gurshabad Grover, Torsha Sarkar, Rajashri Seal and Neil Trivedi — 2019-09-27T16:36:46Z

Gurshabad Grover and Torsha Sarkar along with Rajashri Seal and Neil Trivedi co-authored a paper that examined the constitutionality of the government prohibition on the broadcast of news against private and community FM channels.

In the article, the authors also mapped chronologically the history of the development of community and private radio channels in India. As part of the legal analysis, the authors examined the prohibition on the touchstones of existing Indian jurisprudence on media freedom and speech rights. Finally, they also utilized some key points made by the Additional Solicitor General in the Shreya Singhal case, to propose an alternative regulatory framework that would address both the interests of the radio channels and the government.

In 1995, the Supreme Court declared airwaves to be public property in the seminal case of The Secretary, Ministry of Information and Broadcasting v Cricket Association of Bengal, and created the stepping stones for liberalization of broadcasting media from government monopoly. Despite this, community radio and private FM channels, in their nearly two decades of existence, have been unable to broadcast their own news content because of the Government’s persisting prohibition on the same.In this paper, we document the historical developments surrounding the issue, and analyse the constitutional validity of this prohibition on the touchstone of the existing jurisprudence on free speech and media freedom. Additionally, we also propose an alternative regulatory framework which would assuage the government’s apprehensions regarding radicalisation through radio spaces, as well as ensure that the autonomy of these stations is not curtailed.

Click to download the full paper by NLUD Journal of Legal Studies here.

For more details visit https://cis-india.org/internet-governance/blog/nlud-journal-of-legal-studies-september-27-2019-gurshabad-grover-torsha-sarkar-rajashri-seal-neil-trivedi-examining-the-constitutionality-of-ban-on-broadcast-of-news-by-private-fm-and-community-radio-stations

European Court of Justice rules Internet Search Engine Operator responsible for Processing Personal Data Published by Third Parties

jyoti — 2014-05-14T14:18:46Z

The Court of Justice of the European Union has ruled that an "an internet search engine operator is responsible for the processing that it carries out of personal data which appear on web pages published by third parties.” The decision adds to the conundrum of maintaining a balance between freedom of expression, protecting personal data and intermediary liability.

The ruling is expected to have considerable impact on reputation and privacy related takedown requests as under the decision, data subjects may approach the operator directly seeking removal of links to web pages containing personal data. Currently, users prove whether data needs to be kept online—the new rules reverse the burden of proof, placing an obligation on companies, rather than users for content regulation.

A win for privacy?

The ECJ ruling addresses Mario Costeja González complaint filed in 2010, against Google Spain and Google Inc., requesting that personal data relating to him appearing in search results be protected and that data which was no longer relevant be removed. Referring to the Directive 95/46/EC of the European Parliament, the court said, that Google and other search engine operators should be considered 'controllers' of personal data. Following the decision, Google will be required to consider takedown requests of personal data, regardless of the fact that processing of such data is carried out without distinction in respect of information other than the personal data.

The decision—which cannot be appealed—raises important of questions of how this ruling will be applied in practice and its impact on the information available online in countries outside the European Union. The decree forces search engine operators such as Google, Yahoo and Microsoft's Bing to make judgement calls on the fairness of the information published through their services that reach over 500 million people across the twenty eight nation bloc of EU.

ECJ rules that search engines 'as a general rule,' should place the right to privacy above the right to information by the public. Under the verdict, links to irrelevant and out of date data need to be erased upon request, placing search engines in the role of controllers of information—beyond the role of being an arbitrator that linked to data that already existed in the public domain. The verdict is directed at highlighting the power of search engines to retrieve controversial information while limiting their capacity to do so in the future.

The ruling calls for maintaining a balance in addressing the legitimate interest of internet users in accessing personal information and upholding the data subject’s fundamental rights, but does not directly address either issues. The court also recognised, that the data subject's rights override the interest of internet users, however, with exceptions pertaining to nature of information, its sensitivity for the data subject's private life and the role of the data subject in public life. Acknowledging that data belongs to the individual and is not the right of the company, European Commissioner Viviane Reding, hailed the verdict, "a clear victory for the protection of personal data of Europeans".

The Court stated that if data is deemed irrelevant at the time of the case, even if it has been lawfully processed initially, it must be removed and that the data subject has the right to approach the operator directly for the removal of such content. The liability issue is further complicated by the fact, that search engines such as Google do not publish the content rather they point to information that already exists in the public domain—raising questions of the degree of liability on account of third party content displayed on their services.

The ECJ ruling is based on the case originally filed against Google, Spain and it is important to note that, González argued that searching for his name linked to two pages originally published in 1998, on the website of the Spanish newspaper La Vanguardia. The Spanish Data Protection Agency did not require La Vanguardia to take down the pages, however, it did order Google to remove links to them. Google appealed this decision, following which the National High Court of Spain sought advice from the European court. The definition of Google as the controller of information, raises important questions related to the distinction between liability of publishers and the liability of processors of information such as search engines.

The 'right to be forgotten'

The decision also brings to the fore, the ongoing debate and fragmented opinions within the EU, on the right of the individual to be forgotten. The 'right to be forgotten' has evolved from the European Commission's wide-ranging plans of an overhaul of the commission's 1995 Data Protection Directive. The plans for the law included allowing people to request removal of personal data with an obligation of compliance for service providers, unless there were 'legitimate' reasons to do otherwise. Technology firms rallying around issues of freedom of expression and censorship, have expressed concerns about the reach of the bill. Privacy-rights activist and European officials have upheld the notion of the right to be forgotten, highlighting the right of the individual to protect their honour and reputation.

These issues have been controversial amidst EU member states with the UK's Ministry of Justice claiming the law 'raises unrealistic and unfair expectations' and has sought to opt-out of the privacy laws. The Advocate General of the European Court Niilo Jääskinen's opinion, that the individual's right to seek removal of content should not be upheld if the information was published legally, contradicts the verdict of the ECJ ruling. The European Court of Justice's move is surprising for many and as Richard Cumbley, information-management and data protection partner at the law firm Linklaters puts it, “Given that the E.U. has spent two years debating this right as part of the reform of E.U. privacy legislation, it is ironic that the E.C.J. has found it already exists in such a striking manner."

The economic implications of enforcing a liability regime where search engine operators censor legal content in their results aside, the decision might also have a chilling effect on freedom of expression and access to information. Google called the decision “a disappointing ruling for search engines and online publishers in general,” and that the company would take time to analyze the implications. While the implications of the decision are yet to be determined, it is important to bear in mind that while decisions like these are public, the refinements that Google and other search engines will have to make to its technology and the judgement calls on the fairness of the information available online are not public.

The ECJ press release is available here and the actual judgement is available here.

For more details visit https://cis-india.org/internet-governance/blog/ecj-rules-internet-search-engine-operator-responsible-for-processing-personal-data-published-by-third-parties

E-Consultation on Cyber Security, Justice, and Governance Begins!

praskrishna — 2014-12-04T23:36:27Z

Sunil Abraham facilitated the e-consultation on "Internet access, the freedom of expression online, and development in the Global South" at the event organized by the Hague Institute for Global Justice.

This was originally published on the website of the Hague Institute for Global Justice on November 4, 2014.

On 3 November 2014, The Hague Institute launched its first e-consultation, which seeks to contribute to the work of the Commission on Global Security, Justice, and Governance. This is the first of a series of e-consultations on topics relevant to the research and policy agenda of the Commission.

This consultation brings together over 75 international cyber security and cyber governance experts and seeks to build on the high-level Expert Consultation on Cyber Security, Justice, and Governance hosted by The Hague Institute, The Stimson Center and the Observer Research Foundation in New Delhi on 18 October 2014 following the conclusion of the India Conference on Cyber Security and Cyber Governance.

The consultation was chaired by Dr. Jane Holl Lute – a Commissioner, and President and CEO of the Council on Cyber Security and Former U.S. Deputy-Secretary for Homeland Security. Speakers included former Deputy National Security Advisor of India, Ambassador Latha Reddy and Executive Director of the Centre for Internet and Society, Mr. Sunil Abraham.

A summary of the expert discussion can be read here.

For more details visit https://cis-india.org/internet-governance/news/the-hague-institute-for-global-justice-november-4-2014-e-consultation-on-cyber-security-justice-and-governance-begins

Dystopia vs development: The Kashmir paradox

Asmita Bakshi — 2019-10-20T06:31:00Z

On 26 July, Azmat Ali Mir, 26, landed in her hometown, Srinagar. A day later, uncertainty and panic gripped the Kashmir valley—the Amarnath yatris (pilgrims) and other tourists were being evacuated, there was heavy military deployment and news reports claimed that there could be a threat to the border.

The article by Asmita Bakshi was published by Livemint on October 19, 2019. Ambika Tandon was quoted.

But Mir had a lot of work to do—she had events planned as part of her startup Manzar Experience Curators, which promotes Kashmiri art, culture and fashion made and produced locally for audiences outside the state, particularly Bengaluru, where she now lives. “We are so used to things like this, we were like, ‘these things will keep happening, curfew laga denge (they will impose a curfew), that means you need to have ration in your home. But until then, you have to do your work’," Mir tells me over the phone from Bengaluru. “I had very little time, my tickets were already booked for 5 August, there was so much work, I had no time to think. I was going around, signing contracts, getting things done."

But soon, it became clear that things would be different this time. By August 1, fear and tension had escalated. Rumours of war grew louder, and additional troops were flown in. “The guy who heads the agency that was to help with online promotions for my event said things don’t seem okay and we should wait and see how this goes," says Mir. “Our lives, both personal and professional, are governed around the political calendar of Kashmir."

Across town, on 26 July, Sheikh Samiullah, 28, from downtown Srinagar was at a café called ZeroBridge Fine Dine along with his team and representatives from the state administration, including deputy commissioner Shahid Choudhary, to launch the Android app for his company FastBeetle. The logistics startup, launched last year by Samiullah and co-founder Abid Rashid Lone, is often called “Kashmir’s Dunzo", and provides door-to-door delivery services for businesses ranging from online grocers and retail commerce to pharmacies and individuals.

The launch of their iOS app was scheduled for 13 August, the day after Eid. But this had to be cancelled a few days later due to the prevailing situation in the valley. Today, FastBeetle’s operations—which run on the internet—have ceased. “I invested all my savings in this company. For me, it’s not possible to run this again. It is like starting from the beginning. I have a massive liability on my head," Samiullah tells me in Delhi, where he has gone from running a profitable business to being unemployed and now searching for work.

Over the same period, Qazi Zaid, 30, who runs and edits the news platform Free Press Kashmir, was in overdrive. “As journalists living in Kashmir, we aren’t just reporting the conflict, we are also living the conflict. We are members of the same society," he says. “One of the last stories we did was on the panic—how panic is being manufactured and the standard response of people who are scared and entering panic mode. That’s what happened with us as well." Free Press Kashmir, which is primarily an online news portal, has not published for close to three months. And now Zaid is in the Capital, exploring ways to save his news portal from complete closure and prevent the 15 young journalists he employs from being rendered jobless.

These young Kashmiris and their organizations have been driven into a state of near-obscurity since 5 August, when the Union government abrogated Article 370 of the Constitution, which granted the state of Jammu and Kashmir its special status, and subsequently sent the valley into a communication blackout. Two and a half months later, only landlines and post-paid mobile services (excluding SMS) have been restored. Internet and data services remain closed.

With thousands of arrests, instances of violence from both militants and the Armed Forces reported in the international press, the impact of this shutdown has been immense. But it has also inflicted a huge monetary cost. A report in the BBC, published on 8 October, stated that “the Kashmir Chamber of Commerce and Industry estimates the shutdown has already cost the region more than $1.4bn (around ₹9,800 crore), and thousands of jobs have been lost".

Shutting down of startups

In a region ridden with decades of armed conflict and the presence of the Indian armed forces in large numbers, entrepreneurship is no easy feat. Kashmiris have typically chosen public sector jobs, but the valley’s entrepreneurs agree that over the last decade or so, young and resilient men and women from the valley had been working to change this with online and offline ventures.

In fact, the startup ecosystem in Kashmir seemed to have been poised for growth. Notably, in September last year, the Jammu and Kashmir Entrepreneurship Development Institute (JKEDI), established by the state government, released the J&K Startup Policy 2018, which aimed to boost the startup ecosystem by granting founders a monthly allowance of up to ₹12,000 for a period of one year during incubation. Recognized startups would be provided with one-time assistance of up to ₹12 Lakh for product research and development, marketing and publicity.

It was around this time that Samiullah started FastBeetle. He had noticed that though logistics companies existed, they catered largely to big organizations like Amazon. FastBeetle tied up with smaller businesses, including close to 200 women in the valley who were making and selling apparel and other wares on Instagram. “They would have trouble going out every day on multiple deliveries since it is a conservative society," he says. FastBeetle had over 30 merchants within its first month of operations. Over the first five months, they had grown to making 100 deliveries per day, employed a team of six, got an office space and two bikes. In a year, they had generated a positive cash flow despite numerous internet shutdowns imposed in the valley.

Since August 5, the company has been plunged into what Samiullah believes is an interminable downturn. He estimates monetary losses at approximately ₹15 lakh, not considering the ₹4 lakh he invested in the Android app and another ₹3 lakh on the iOS app that never took off. In the unlikely event that restrictions are lifted immediately and business as usual resumes in the valley, it will cost him another ₹10 lakhs to restart the company.

Financial losses aside, he says, it is the time and passion he had invested in the business that won’t come back. And his young employees face an uncertain future as well. One of his delivery boys, Arsalan Shabir Bhat, 21, doesn’t know what the future holds both for him or the valley. “The salary of ₹10,000 for me was good, I was satisfied. “Aage ka nahi pata par haalaat bohot kharab hai. Filhaal toh baithe hi hai ghar pe (I don’t know about the future but the current situation is grim. For now, I am sitting at home)," he says.

Through all this, the state administration and Union government are trying to push the narrative of development. In late September, minister of state for finance and corporate affairs Anurag Thakur, told news outlets: “Our government has taken a historic decision to abrogate Article 370. Now, J&K will witness massive development." Yet, the 33 startups registered with the JKEDI and 70 with the Startup India portal in J&K, among others that run on private funding and bootstrapping models, have been struggling since this decision was taken. Earlier this week, militants attacked two non-local apple traders in the valley, casting doubt on the claim that Kashmir is safe for business.

It was to assess conflicting claims such as these, by providing an insight into the lives of people in the valley, that Zaid restarted Free Press Kashmir in 2017 (it was previously shut down in 2014), using investments from his family business. “It’s all the more important now. Because authentic voices from Kashmir are not coming out," says Zaid. He says that while the international media focuses on Kashmir from a breaking news perspective and some of the Indian press takes a nationalistic line, human perspectives from the valley largely remained unheard.

“There was a gap of a human narrative coming out of Kashmir, which we saw and filled," he says. “If we were to relaunch right now, I don’t think there would be a lot of positive stories. There would be stories of struggle, survival, trauma, pain, hardship. That’s what we would be reporting right now."

With a civil curfew reportedly in place in the valley as a means of protest, even businesses that could have provided financial assistance to these startups are not in operation.

“The economy is so badly hit and it will take another year or two years or more—no idea how long—to recover. Because right now advertisers will take some time to recover as well," says Zaid. “I don’t think we can sustain that long. Our business was at 50% of sustenance and now it’s down to 0. Traffic is down to 0 form 350,000-500,000 hits."

Some investors like Asmat Ashai, who runs the US-based non-profit organization Funkar International, would provide financial assistance to young Kashmiri artists, nevertheless maintain that the difficult situation will not deter them from providing support. “I will continue to help anyone who asks me for help because we cannot give up and we will not be broken. We will stay the course and save whatever we have in spite of the abrogation of all the articles. That is paperwork. Kashmiris will not be broken."

Lost hope

According to the Software Freedom Law Foundation, a legal services organization working to protect digital freedom, Kashmir has had the maximum number of internet shutdowns in the country—55, of varying durations and extents, in 2019 alone, and a total of 180 since 2015. This time however, the shutdown was far more severe—all media and communication platforms, including landlines, internet, news publications and certain television services were suspended. “A large majority of businesses today rely on the internet for some part if not all of their function," says Ambika Tandon, policy officer, Centre for Internet and Society (CIS), Bengaluru.

CIS published a digital book titled Internet Shutdown Stories in May 2018 which tracked how internet blockades impact lives and livelihoods in India. “We collected stories from Internet Service Providers (ISPs) and digital marketing firms in Kashmir that were on the brink of closing down due to the frequency of shutdowns in the valley. The reporters spoke to musicians who used YouTube as a means to earn a livelihood and popularity, and were doubly upset with the effect on their income and their freedom of expression. Given the absence of any public notice before shutdowns, or information regarding the extent and duration of shutdowns, the government definitely has the minimal responsibility of compensating direct losses incurred by those who cannot afford it," says Tandon.

Take the example of Furqan Qureshi, who set up KartFood, popularly called “Kashmir’s Zomato", when he was still pursuing a commerce degree from Islamia College, Srinagar. He started in 2017 and would take orders on call. Once the response grew, Qureshi had a website and application built. But for two months thereafter, in May and June 2017, there was a clampdown on the internet. “I suffered a loss of close to ₹1.5 lakh and that time I had no investment, but I had employed people and was responsible for them, so I persevered and started again from July. It’s always about working from scratch in Kashmir. Whenever there is a shutdown, you start from zero," he says on the phone from Bengaluru.

Qureshi says they always fought the odds and remained in business through internet shutdowns during which the team, which stood at 25-30 as on 5 August, would call customers and coordinate deliveries on the phone.

This dedication is what eventually resulted in his first round of investment in February 2018, from a local Kashmiri businessman. “I upgraded the app, included more restaurants, added delivery tracking features and was creating jobs."

Since 5 August, however, not only have communication channels been hit, initially there was complete restriction on movement within the valley. “I had to leave Kashmir around six or seven days after the clampdown, since I live in an area where there was stone-pelting every day and the police was entering homes and picking up boys. My parents were scared and said it was better to go to Bengaluru and stay here," he says, now hoping he can set up a small restaurant in the city, using whatever he has managed to save.

As young entrepreneurs leave, the JKEDI remains hopeful that the startup ecosystem will bounce back once normalcy returns. “I think as soon as the internet starts working again we will push the things here as well, with the policy we are trying to give some incentive to these people, so that we can get these startups back and they can inspire other people to start their own," says Irtif Lone, in-charge, Centre for Innovation Incubation and Business Modelling, JKEDI.

“It is difficult for people to choose to pursue a startup and these situations make it even tougher. We will be pushing all the startups that have made a mark and are now suffering due to the financial constraints. They will be given an incentive as soon as possible so that none of them are starved for finances."

But there are doubts about whether such promises can be fulfilled. In any case, it may already be too late. Shayan Nabi, 29, who ran a digital marketing company and had invested in other ventures of his own such as KashmirCalling (to coordinate private carpooling), has given up hope. As he waits for his employees to receive the emails he has sent asking them to look for alternative opportunities, he himself is facing professional uncertainty in Delhi. “I have been very vocal about providing internet freedom in Kashmir. It’s a basic human right. But it always falls on deaf ears." He adds: “I had ideas about making Kashmir digital. But I am sorry, not any more. Not after all the humiliation we have been through."

The road to recovery from here is paved with crippling debt, unemployment and loss of morale. What was once seen as an act of resilience amidst conflict, has today crumbled due to a State diktat, paradoxically executed with promises of peace and prosperity.

When Mir finally landed in Bengaluru on the morning of 5 August, she broke down when she finally heard the news. Today, with payments stuck with vendors and Mir’s inability to reach her artisans and wazas (Kashmiri cooks) in the valley, the Manzar website reads, “All verticals of Manzar Experience Curators... are currently unoperational due to the unprecedented lockdown in Kashmir". She fears that her venture, which set out to create conversations about Kashmir around the country, has lost all meaning and purpose. “I am not someone who set out with hate, I set out with love and passion and this idea of changing things," she says.

“Do you think with the kind of environment that this country has created for a Kashmiri today, I can go out and do what I do? Is it safe for someone like me to take a place somewhere in Bengaluru to open a place that serves authentic Kashmiri food? I am scared it could be burnt down the next day."

The question she now asks herself transcends the uncertainty of business in the valley, and straddles a precariousness both political and personal: “Where do I go from here?"

For more details visit https://cis-india.org/internet-governance/news/livemint-asmita-bakshi-october-18-2019-dystopia-vs-development

Draft nonsense

pranesh — 2012-12-03T09:08:10Z

Seriously flawed and dodgily drafted provisions in the IT Act provide the state a stick to beat its citizens with.

Pranesh Prakash's op-ed was published in the Times of India on November 24, 2012.

Section 66A of the Information Technology Act once again finds itself in the middle of a brewing storm. It has been used in cases ranging from the Mamata Banerjee cartoon case, the Aseem Trivedi case, the Karti Chidambaram case, the Chinmayi case, to the current Bal Thackeray-Facebook comments case. In all except the Karti Chidambaram case (which is actually a case of defamation where 's. 66A' is inapplicable), it was used in conjunction with another penal provision, showing that existing laws are more than adequate for regulation of online speech. That everything from online threats wishing sexual assault (the Chinmayi case) to harmless cartoons are sought to be covered under this should give one cause for concern. Importantly, this provision is cognisable (though bailable), meaning an arrest warrant isn't required. This makes it a favourite for those wishing to harass others into not speaking.

Section 66A prohibits the sending "by means of a computer resource or a communication device" certain kinds of messages. These messages are divided into three sub-parts : (a) anything that is "grossly offensive or has menacing character";(b) information known to be false for the purposes of "causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will" and is sent persistently;or (c) "for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages". This carries with it a punishment of up to three years in jail and a fine without an upper limit. As even non-lawyers can see, these are very broadly worded, with use of 'or' everywhere instead of 'and', and the punishment is excessive. The lawyers amongst the readers will note that while some of the words used are familiar from other laws (such as the Indian Penal Code), they are never used this loosely. And all should hopefully be able to conclude that large parts of section 66A are plainly unconstitutional.

If that is so obvious, how did we end up getting this law? We copied (and badly at that) from the UK. The sad part is that the modifications that were introduced while copying are the bits that cause the most trouble. The most noteworthy of these changes are the increase in term of punishment to 3 years (in the UK it's 6 months); the late introduction (on December 16, 2008 by A Raja) of sub-section (c), meant as an anti-spam provision, but covering everything in the world except spam;and the mangling up of sub-section (b) to become a witches brew of all the evil intentions in this world.

Further, we must recognise that our Constitution is much stronger when it comes to issues like free speech than the UK's unwritten constitution, and our high courts and Supreme Court have the power to strike down laws for being unconstitutional, unlike in the UK where Parliament reigns supreme. The most the courts can do there is accommodate the European Convention on Human Rights by 'reading down' laws rather than striking them down.

Lastly, even if we do decide to engage in policy-laundering, we need to do so intelligently. The way the government messed up section 66A should serve as a fine lesson on how not to do so. While one should fault the ministry of communications and IT for messing up the IT Act so badly, it is apparent that the law ministry deserves equal blame as well for being the sleeping partner in this deplorable joint venture. For instance, wrongfully accessing a computer to remove material which one believes can be used for defamation can be considered 'cyber-terrorism'. Where have all our fine legal drafters gone? In a meeting, former SEBI chairman M Damodaran noted how bad drafters make our policies seem far dumber than they are. We wouldn't be in this soup if we had good drafters who clearly understand the fundamental rights guaranteed by our constitution.

There are a great many things flawed in this unconstitutional provision, from the disproportionality of the punishment to the non-existence of the crime. The 2008 amendment to the IT Act was one of eight laws passed in 15 minutes without any debate in the 2008 winter session of Parliament. For far too long the Indian government has spoken about "multi-stakeholder" governance of the internet at international fora (meaning that civil society and industry must be seen as equal to governments when it comes to policymaking for the governance of the internet). It is about time we implemented multi-stakeholder internet governance domestically. The way to go forward in changing this would be to set up a multi-stakeholder body (including civil society and industry) which can remedy this and other ridiculously unconstitutional provisions of our IT Act.

For more details visit https://cis-india.org/internet-governance/blog/times-crest-pranesh-prakash-november-24-2012-draft-nonsense

DoT Reportedly Orders Blocking of 32 Websites Including GitHub, Archive.org, SourceForge

praskrishna — 2015-01-02T14:51:39Z

Many users on Twitter are claiming that several websites, including many software development resources such as GitHub and SourceForge, along with research resources like the Internet Archive have all been blocked on order of the Department of Telecom.

The story was published in NDTV on December 31, 2014. Pranesh Prakash gave his inputs.

A letter circulating online shows a list of 32 URLs that ISPs have reportedly been ordered to block, with most of these URLs being entire websites, instead of specific webpages that's usually been the case with such blocks in the past.

We tried to verify the users' claims, but on both our office broadband network, and also on Airtel and Vodafone 3G networks, all the sites were opening properly at the time of writing. Interestingly, many of the sites failed the load at the first try, but simply hitting refresh once solved the problem.

This does not mean that blocking is not happening - it is possible that the order has been sent recently, and will take some time to be fully implemented. Here is the email which purportedly shows the list of the 32 blocked URLs, as posted by Pranesh Prakash, Policy Director of the Center for Inernet and Society:

No information is available at present to confirm if blocking is truly happening, or why, but we are trying to ascertain the exact details and will update this story with the information as soon as possible.

However, there is some partial confirmation because both Pastebin and the Internet Archive have tweeted about blocking from India.

Such blocks in the past have been due to John Doe orders but the fact it is targeting software development sites like Github and Sourceforge is strange - the John Doe orders have specifically been used to block piracy of films, and blocking off sites that have no connection to movies makes no sense.

Arvind Gupta, the National Head of the BJP IT cell also took to Twitter, stating that these websites were being blocked for security reasons, based on the advice of the Anti-Terrorism Squad. According to Gupta's Tweets, the sites were being unblocked as soon as they removed "objectionable materials", allegedly related to ISIS.

It's extremely unusual that a government decision is being communicated by a political party official - if the Department of Telecom is blocking sites, then it should be the one to communicate and clarify these events. However, so far, it has not issued any statements, and neither has the IT Ministry.

For more details visit https://cis-india.org/internet-governance/news/ndtv-december-31-2014-dot-reportedly-orders-blocking-of-32-websites-including-github-archiveorg-sourceforge

Donald Trump is attacking the social media giants; here’s what India should do differently

Anna Liz Thomas and Gurshabad Grover — 2020-06-25T09:07:52Z

For a robust and rights-respecting public sphere, India needs to ensure that large social media platforms receive adequate protections, and are made more responsible to its users.

This piece was first published at Scroll. The authors would like to thank Torsha Sarkar for reviewing and editing the piece, and to Divij Joshi for his feedback.

In retaliation to Twitter labelling one of US President Donald Trump’s tweets as being misleading, the White House signed an executive order on May 28 that seeks to dilute protections that social media companies in the US have with respect to third-party content on their platforms.

The order argues that social media companies that engage in censorship stop functioning as ‘passive bulletin boards’: they must consequently be treated as ‘content creators’, and be held liable for content on their platforms as such. The shockwaves of the decision soon reached India, with news coverage of the event starting to debate the consequences of Trump’s order on how India regulates internet services and social media companies.

The debate on the responsibilities of online platforms is not new to India, and recently took main stage in December 2018 when the Ministry of Electronics and Information Technology, Meity, published a draft set of guidelines that most online services – ‘intermediaries’ – must follow. The draft rules, which haven’t been notified yet, propose to significantly expand the obligations on intermediaries.

Trump’s executive order, however, comes in the context of content moderation practices by social media platforms, i.e. when platforms censor speech of their volition, and not because of legal requirements. The legal position of content moderation is relatively under-discussed, at least in legal terms, when it comes to India.

In contrast to commentators who have implicitly assumed that Indian law permits content moderation by social media companies, we believe Indian law fails to adequately account for content moderation and curation practices performed by social media companies. There may be adverse consequences for the exercise of freedom of expression in India if this lacuna is not filled soon.

India vs US

A useful starting point for the analysis is to compare how the US and India regulate liability for online services. In the US, Section 230 of the Communications Decency Act provides online services with broad immunity from liability for third party content that they host or transmit.

There are two critical components to what is generally referred to as Section 230.

First, providers of an ‘interactive computer service’, like your internet service provider or a company like Facebook, will not be treated as publishers or speakers of third-party content. This system has allowed the internet speech and economy to flourish since it allows companies to focus on their service without a constant paranoia for what users are transmitting through their service.

The second part of Section 230 states that services are allowed to moderate and remove, in ‘good faith’, such third-party content that they may deem offensive or obscene. This allows for online services to instate their own community guidelines or content policies.

In India, section 79 of the Information Technology Act is the analogous provision: it grants intermediaries conditional ‘safe harbour’. This means intermediaries, again like Facebook or your internet provider, are exempt from liability for third-party content – like messages or videos posted by ordinary people – provided their functioning meets certain requirements, and they comply with the allied rules, known as Intermediary Guidelines.

The notable and stark difference between Indian law and Section 230 is that India’s IT Act is largely silent on content moderation practices. As Rahul Matthan points out, there is no explicit allowance in Indian law for platforms to take down content based on their own policies, even if such actions are done in good faith.

Safe harbour

One may argue that the absence of an explicit permission does not necessarily mean that any platform engaging in content moderation practices will lose its safe harbour. However, the language of Section 79 and the allied rules may even create room for divesting social media platforms of their safe harbour.

The first such indication is that the conditions to qualify for safe harbour, intermediaries must not modify said content, not select the recipients of particular content, and take information down when it is brought to their notice by governments or courts.

Most of the conditions are almost a verbatim copy of a ‘mere conduit’ as defined by the EU Directive on E-Commerce, 2000. This definition was meant to encapsulate the functioning of services like infrastructure providers, which transmit content without exerting any real control. Thus, by adopting this definition for all intermediaries, Indian law mostly considers internet services, even social media platforms, to be passive plumbing through which information flows.

It is easy to see how this narrow conception of online services is severely lacking.

Most prominent social media platforms remove or hide content, algorithmically curate news-feeds to make users keep coming back for more, and increasingly add labels to content. If the law is interpreted strictly, these practices may be adjudged to run afoul of the aforementioned conditions that intermediaries need to satisfy in order to qualify for safe harbour.

Platforms or editors?

For instance, it can be argued that social media platforms initiate transmission in some form when they pick and ‘suggest’ relevant third-party content to users. When it comes to newsfeeds, neither the content creator nor the consumer have as much control over how their content is disseminated or curated as much as the platform does. By curating newsfeeds, social media platforms can be said to essentially ‘selecting the receiver’ of transmissions.

The Intermediary Guidelines further complicate matters by specifically laying out what is not to be construed as ‘editing’ under the law. Under rule 3(3), the act of taking down content pursuant to orders under the Act will not be considered as ‘editing’ of said content.

Since the term ‘editing’ has been left undefined beyond the negative qualification, several social media intermediaries may well qualify as editors. They use algorithms that curate content for their users; like traditional news editors, these algorithms use certain ‘values’ to determine what is relevant to their audiences. In other words, one can argue that it is difficult to draw a bright line between editorial and algorithmic acts.

To retain their safe harbour, the counter-argument that social media platforms can rely is the fact that Rule 3(5) of the Intermediary Guidelines requires intermediaries to inform users that intermediaries reserve the right to take down user content that relates to a wide of variety of acts, including content that threatens national security, or is “[...] grossly harmful, harassing, blasphemous, [etc.]”.

In practice, however, the content moderation practices of some social media companies may go beyond these categories. Additionally, the rule does not address the legal questions created by these platforms’ curation of news-feeds.

The purpose of highlighting how Section 79 treats the practices of social media platforms is not with the intention of arguing that these platforms should be held liable for user-generated content. Online spaces created by social media platforms have allowed for individuals to express themselves and participate in political organisation and debate.

A level of protection of intermediaries from immunity is therefore critical for the protection of several human rights, especially the right to freedom of speech. This piece only serves to highlight that section 79 is antiquated and unfit to deal with modern online services. The interpretative dangers that exist in the provision create regulatory uncertainty for organisations operating in India.

Dangers to speech

These dangers may not just be theoretical.

Only last year, Twitter CEO Jack Dorsey was summoned by the Parliamentary Committee on Information Technology to answer accusations of the platform having a bias against ‘right-wing’ accounts. More recently, BJP politician Vinit Goenka encouraged people to file cases against Twitter for promoting separatist content.

Recent interventions from the Supreme Court have imposed proactive filtration and blocking requirements on intermediaries, but these have been limited to reasonable restrictions that may be imposed on free speech under Article 19 of India’s Constitution. Content moderation policies of intermediaries like Twitter and Facebook go well beyond the scope of Article 19 restrictions, and the apex court has not yet addressed this.

The Delhi High Court, in Christian Louboutin v. Nakul Bajaj, has already highlighted criteria for when e-commerce intermediaries can stake claim to Section 79 safe harbour protections based on the active (or passive) nature of their services. While the order came in the context of intellectual property violations, nothing keeps a court from similarly finding that Facebook and Twitter play an ‘active’ role when it comes to content moderation and curation.

These companies may one day find the ‘safe harbour’ rug pulled from under their feet if a court reads section 79 more strictly. In fact, judicial intervention may not even be required. The threat of such an interpretation may simply be exploited by the government, and used as leverage to get social media platforms to toe the government line.

Protection and responsibility

Unfortunately, the amendments to the intermediary guidelines proposed in 2018 do not address the legal position of content moderation either. More recent developments suggest that the Meity may be contemplating amending the IT Act. This presents an opportunity for a more comprehensive reworking of the Indian intermediary liability regime than what is possible through delegated legislation like the intermediary rules.

Intermediaries, rather than being treated uniformly, should be classified based on their function and the level of control they exercise over the content they process. For instance, network infrastructure should continue to be treated as ‘mere conduits’ and enjoy broad immunity from liability for user-generated content.

More complex services like search engines and online social media platforms can have differentiated responsibilities based on the extent they can contextualise and change content. The law should carve out an explicit permission to platforms to moderate content in good faith. Such an allowance should be accompanied by outlining best practices that these platforms can follow to ensure transparency and accountability to their users.

For a robust and rights-respecting public sphere, India needs to ensure that large social media platforms receive adequate protections, and are made more responsible to its users.

Anna Liz Thomas is a law graduate and a policy researcher, currently working with the Centre for Internet and Society. Gurshabad Grover manages research in the freedom of expression and internet governance team at CIS.

For more details visit https://cis-india.org/internet-governance/blog/donald-trump-is-attacking-the-social-media-giants-here2019s-what-india-should-do-differently

Don’t SLAPP free speech

sunil — 2013-02-28T11:22:09Z

IIPM is proving adept at the tactical use of lawsuits to stifle criticism, despite safeguards. THE DEPARTMENT of Telecommunications, on 14 February, issued orders to block certain web pages critical of the Indian Institute of Planning and Management (IIPM).

Sunil Abraham's column with inputs from Snehashish Ghosh was published in Tehelka on February 3, 2013 (Issue 9 Volume 10)

Despite our best efforts, we have not managed to get a copy of the court order. Meanwhile, there has been a lot of speculation among Internet policy experts on Twitter. What is the title of the case? Which judge issued the order? Who is the affected party? Why have mainstream media houses like Outlook not been served notice by the court? Is the infamous Section 66A of the IT Act to be blamed? That is highly unlikely. News reports suggest that a lower court in Gwalior has issued an ad interim injunction in a defamation suit. Most experts agree that this is a SLAPP (Strategic Litigation Against Public Participation) suit, where a company uses the cost of mounting a legal defence to silence critics.

Bullies with deep pockets use the law in very creative ways, such as forum shopping, forum shifting and the use of proxies. Forum shopping can be best understood through the example of mining giant Fomento suing Goan blogger Sebastian Rodrigues for $1 billion at the Kolkata High Court, even though Goa would have been a more logical location. Though IIPM lost an earlier case against Careers360 before the Uttaranchal High Court, the offending URLs from that case are included in the latest block order, exemplifying successful forum shifting. The doctrine of ‘res subjudice’ does not permit courts to proceed in a matter which is “directly and substantially” similar to a previous suit between the same parties. Proxies are usually employed to circumvent this procedural doctrine.

Article 19(2) of our Constitution empowers the State to create laws that place eight types (depending on how you count) of reasonable restrictions on the freedom of speech and expression. One of these reasonable restrictions is defamation. Tort law on defamation in India has been mostly borrowed from common law principles developed in the UK, which include a series of exceptions where the law cannot be used. In the present context, the exceptions important for the IIPM case include: fair and bona fide comment and matter of public interest. In addition, Section 499 of the Indian Penal Code provides for 10 exceptions to defamation. The exceptions relevant to this case are: “first: imputation of truth which public good requires to be made or published”, “ninth: imputation made in good faith by person for protection of his or other’s interests” and “tenth: caution intended for good of person to whom conveyed or for public good”. The criminal law on defamation in India is based on robust legal principles, but for the sake of public interest it’d be best to do away with such a law as it has far-reaching, chilling effects on free speech.

On interim injunctions in defamation suits, the Delhi High Court set an important precedent protecting free speech in 2011. While applying the English principle — the Bonnard Rule — the court in Tata Sons Pvt Ltd versus Greenpeace International held that a higher standard should be adhered to while granting an interim injunction in a defamation suit, because such an injunction might impinge upon freedom of expression and thus potentially be in violation of the Indian Constitution. This century-old rule states that “until it is clear that an alleged libel is untrue… the importance of leaving free speech unfetter – ed is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions…”

In the same case, the Court rejected the argument that since it was published online and thus had wider reach and greater permanence, an injunction should be granted. It observed that “publication is a comprehensive term, embracing all forms and mediums — including the Internet”, thus ruling out special treatment for the Inter net in cases of defamation. That is good news for free speech online in India. Now let’s stick to it.

For more details visit https://cis-india.org/internet-governance/blog/tehelka-sunil-abraham-feb-3-2013-dont-slap-free-speech

Discussion on Ranking Digital Rights in India (Delhi, January 07)

amber — 2016-12-29T07:07:34Z

Towards developing an understanding of how Indian ICT companies are recognising and upholding digital rights of their users, and to raise public awareness about the same, the Center for Internet and Society (CIS), with the support of Privacy International, has studied 8 Indian ICT companies, using the same methodology as the 2015 Corporate Accountability Index, to gain greater insight into company practices and initiate public dialogues. Please join us on Saturday, January 07, at the India Islamic Cultural Centre, New Delhi, for a presentation of our findings followed by an open structured discussion on the methodology and implications of the study.

Download: Invitation and agenda (PDF)

The Ranking Digital Rights Corporate Responsibility Index is a project hosted by the Open Technology Institute at New America Foundation that aims to rank Information and Communications Technology (ICTs) companies with respect to their Governance, Freedom of Expression, and Privacy practices. The inaugural Corporate Accountability Index, released in November 2015, evaluated 16 companies based on the project’s methodology that included 31 indicators in total.

Please join us on Saturday, January 07, at the India Islamic Cultural Centre, New Delhi, for a presentation of our findings followed by an open structured discussion on the methodology and implications of the Ranking Digital Rights study. We will begin at 10:30 am with a round of tea and coffee.

The event is open to all but the venue has limited space. The participants are requested to RSVP by sending an email to nisha@cis-india.org.

To further encourage programmers, researchers, journalists, students, and users in general to use and contribute to the findings of the Ranking Digital Rights study, and critique the underlying methodology, we are also organising a “rankathon” on Sunday, January 08, at the CIS office in Delhi. More details can be found here.

We look forward to your participation and contribution to the discussion. Please support us by sharing this invitation with your colleagues and networks.

Agenda

10:30-11:00	Coffee and Tea
11:00-11:15	Introduction
11:15-13:00	Presentation of the Findings and Discussion Divij Joshi and Aditya Singh Chawla
13:00-14:00	Lunch
14:00-15:00	Open Discussion #1: Parameters of Evaluation The RDR methodology was based upon evaluating commitments to uphold human rights through their services – in particular towards their commitment to users’ freedom of expression and privacy. Are there other parameters that may be considered in the Indian context?
15:00-16:00	Open Discussion #2: Towards Protecting Digital Rights What steps can be taken by the government, civil society, and industry in India to create an environment that recognizes and protects users digital rights? What are the relevant legal, political, and economic factors to take into consideration towards this? What are steps that other, multinational ICT companies have taken? Would these be realistic for Indian companies to implement?
16:00-16:30	Conclusion
16:30-17:00	Coffee and Tea

For more details visit https://cis-india.org/internet-governance/events/discussion-on-ranking-digital-rights-in-india-delhi-jan-07-2017

Digital native: Free speech? You must be joking!

nishant — 2017-06-08T01:16:01Z

India’s digital landscape is dotted with vigilante voices that drown out people’s right to free speech.

The article was published in the Indian Express on May 14, 2017.

Freedom of speech and expression has always been a tricky issue. While all of us are generally in favour of defending our rights to speak what is in our hearts, we are not equally thrilled about the speech of others that we might not enjoy. While we know that free speech and expression are not absolute — there are blurred lines of things that are offensive, might cause harm, and are directed with malice at different individuals or collectives — we also generally accept that this is a freedom that marks the maturity and sustainability of a stable democratic system.

Thus, even when confronted with speech and expression that might be undesirable: a political view that contradicts ours, an expression of blasphemy or profanity, a voice of dissent that questions the status quo, or an unsavoury information tidbit that mocks at somebody we admire, we generally take it in good stride, and learn to deal and engage with these actions. We do this, because we know that trying to curtail somebody else’s rights to free speech, would eventually restrict our own capacity for it, thus reducing the scope of an engaged and critical society. Especially in countries like India, where everybody has an opinion, where people offer critiques over chai and join heated debates over paan, there’s no denying that we are fond of our rights and capacity to speak
our minds.

However, within Digital India, these things seem to be changing fast. Every day we wake up to the cacophonous clamour of social media to realise that increasingly we are becoming an intolerant society filled with vigilantes bent on stopping people from saying things that we might just not like. In the ongoing saga of shrinking spaces of free speech, we now add the shameful incident at the Embassy of Sweden in India. On May 8, following mass populist trolling and complaints from the Twitteratti, the Embassy disinvited two women print and TV journalists — Swati Chaturvedi and Barkha Dutt — and cancelled their event, ironically, in the honour of World Press Freedom, on the topic of women’s participation in the online public space, to talk about trolls.

I shall wait here for the bitter irony to sink in: two of the strongest women voices in Indian public media, were disinvited to speak from an event where they were to talk about their experience of being trolled, harassed, bullied and intimidated in the newly emerging digital media landscape. Instead of giving them a voice, sharing their experiences, and engaging with their stories, the hypermasculine army of right wing vigilantes who object to these women’s history of critique of the current government and its leaders, decided to show their Twitter might, and celebrated as they succeeded in putting one more nail in the coffin of free and fearless speech in the country.

Some Twitter users went ahead and tagged their favourite leaders — @Narendramodi and @manekagandhibjp. They demanded, using their freedom of voice, to stop others from speaking. Social media networks have often been celebrated as alternative spaces where new, and unexpected voices can express their opinions without the fear of physical retribution or penalisation. While this has been consistently proven wrong by government authorities who have regularly policed, penalised and punished voices of dissent or disfavour, that at least is something we can notice, challenge and contest through legal redressal. However, with this new mob justice where the volume of voices engineered to amplify their disapproval, coupled with threats of violence and economic downfall (the users this time threatened to make a list of Swedish products and boycott them) is a recurring and disturbingly new phenomenon.

Crowds have always had the power to demand and leverage change of their liking. However, on social media, this can take up more sinister forms, because a handful of people through Twitter bots and chat scripts can create the illusion of a hugely amplified voice that can then be used to threaten and restrict the scope of free speech. The mass bullying effect needs a strong counterpoint in the form of better internet governance policies and regulations that nurture safe spaces for the tinier voices to be heard.

At the same time, however, the stifling attempts require another strategy — the need to speak up against such acts of intimidation and silencing, not only from the regular people on the web, but from the officials and leaders who have sworn to protect our constitutional rights. And this is, perhaps, where our leaders are failing us. Because, in an age of hypervisibility, where every step they take is a selfie moment, where every move they make makes it to the headlines, and they take pride in documenting their life in exceedingly boring detail, it creates a deafening silence when the leaders remain mute to the slow dissipation of the rights to free speech and expression by the angry mobs of networked digitality.

For more details visit https://cis-india.org/raw/indian-express-nishant-shah-may-14-2017-digital-native-free-speech-you-must-be-joking