Centre for Internet and Society

Arrested for tweeting: Legitimate or Curbing Free Speech?

praskrishna — 2012-11-02T06:09:57Z

As a man in Puducherry is arrested for allegedly posting on Twitter that MR Chidambaram's son had amassed wealth more than that of Robert Vadra, we discuss whether freedom of speech is absolute.

Sunil Abraham along with Shivam Vij, Journalist and Blogger, SB Mishra, Additional DCP, Census Wing, Economic Offence Wing, Delhi Police, and Sanjay Pinto, Advocate, Madras High Court participated in this discussion aired in NDTV on October 31, 2012.

Watch the full video on NDTV

For more details visit https://cis-india.org/news/ndtv-news-oct-31-2012-arrested-for-tweeting-legitimate-or-curbing-free-speech

Arrest of girl over Thackeray FB update a clear misuse of Sec 295A

praskrishna — 2012-11-20T12:00:53Z

The arrest of 21-year-old Shaheen Dhada over her Facebook status update questioning the shutdown of Mumbai over Shiv Sena supremo Bal Thackeray‘s death, is a clear misapplication of section 295 A of the Indian Penal Code (“outrage religious feelings of any class”), according to Pranesh Prakash of the Centre for Internet and Society.

The article was published in FirstPost on November 19, 2012. Pranesh Prakash is quoted.

In comments to Firstpost, Prakash said that this law had been misused numerous times in the state of Maharashtra.

“Even the banning of James Laine’s book Shivaji happened under section 295 A, and the ban was subsequently held to have been unlawful. What makes this seem ironic, and almost a parodic news report, is the fact that Bal Thackeray probably violated this provision more times than most other politicians, but was only charged under it once or twice”, he said.

Dhada’s status update reportedly read, “People like Thackeray are born and die daily and one should not observe a bandh for that.” A friend of hers who ‘liked’ the comment was also arrested.

Prakash said that the arrest called for a discussion on the regulation of speech and expression. “It being a Facebook status update should not grant it any special immunity; the fact of that update not being punishable under s.295 A should! It isn’t regulation of social media that needs to be discussed, but regulation of speech and expression”, he said.

News of the arrest has understandably drawn a lot of attention on social media, and forums like Facebook and Twitter reflected outrage at the news.

The Times of India also reported that a mob of Shiv Sena workers attacked and ransacked the girl’s uncle’s orthopaedic clinic at Palghar, even though she withdrew her comment and apologised.

For more details visit https://cis-india.org/news/first-post-india-nov-19-2012-arrest-of-girl-over-thackeray-fb-update-clear-misuse-of-sec-295a

Are we Losing the Right to Privacy and Freedom of Speech on Indian Internet?

Amber Sinha — 2016-03-16T14:44:19Z

The article was published in DNA on March 10, 2016.

Last month, it was reported that National Security Council Secretariat (NSCS) had proposed the setting up of a National Media Analytics Centre (NMAC). This centre’s mandate would be to monitor blogs, media channels, news outlets and social media platforms. Sources were quoted as stating that the centre would rely upon a tracking software built by Ponnurangam Kumaraguru, an Assistant Professor at the Indraprastha Institute of Information Technology in Delhi. The NMAC seems to mirror other similar efforts in countries such as US, Canada, Australia and UK, to monitor online content for the reasons as varied as prevention of terrorist activities, disaster relief and criminal investigation.

The NSCS, the parent body that this centre will fall under, is a part of the National Security Council, India’s highest agency looking to integrate policy-making and intelligence analysis, and advising the Prime Minister’s Office on strategic issues as well as domestic and international threats. The NSCS represents the Joint Intelligence Committee and its duties include the assessment of intelligence from the Intelligence Bureau, Research and Analysis Wing (R&AW) and Directorates of Military, Air and Naval Intelligence, and the coordination of the functioning of intelligence agencies.

From limited reports available, it appears that the tracking software used by NMAC will generate tags to classify post and comments on social media into negative, positive and neutral categories, paying special attention to “belligerent” comments. The reports say that the software will also try to determine if the comments are factually correct or not. The idea of a government agency systematically tracking social media, blogs and news outlets and categorising content as desirable and undesirable is bound to create a chilling effect on free speech online. The most disturbing part of the report suggested that the past pattern of writers’ posts would be analysed to see how often her posts fell under the negative category, and whether she was attempting to create trouble or disturbance, and appropriate feedback would be sent to security agencies based on it. Viewed alongside the recent events where actors critical of the government and holding divergent views have expressed concerns about attempts to suppress dissenting opinions, this initiative sounds even more dangerous, putting at risk individuals categorised as “negative” or “belligerent”, for exercising their constitutionally protected right to free speech.

Getty Images

It has been argued that the Internet is a public space, and should be treated as subject to monitoring by the government as any other space. Further, this kind of analysis does not concern itself with private communication between two or more parties but only with publicly available information. Why must we raise eyebrows if the government is accessing and analysing it for the purposes of legitimate state interests? There are two problems with this argument. First, any surveillance of communication must always be limited in scope, specific to individuals, necessary and proportionate, and subject to oversight. There are no laws passed by the Parliament in India which allow for mass surveillance measures. Such activities are being conducted through bodies like NSC which came into existence through an Executive Order and have no clear oversight mechanisms built into its functioning. A quick look at the history of intelligence and surveillance agencies in India will show that none of them have been created through a legislation. A host of surveillance agencies have come up in the last few years including the Central Monitoring System, which was set up to monitor telecommunications, and the absence of legislative pedigree translates into lack of appropriate controls and safeguards, and zero public accountability.

The second and the larger issue is that the scale and level of granularity of personal information available now is unprecedented. Earlier, our communications with friends and acquaintances, our movements, our association, political or otherwise, were not observable in the manner it is today. It would be remiss to underestimate the importance of personal information merely because it exists in the public domain. The ability to act without being subject to monitoring and surveillance is key to the right to free speech and expression. While we accept the importance of free speech and the value of an open internet and newer technologies to enable it, we do not give sufficient importance to how these technologies are affecting the right to privacy.

Getty Images

In the last few years, the social media scene in India has been characterised by extreme polemic with epithets such as ‘bhakt’, ‘sanghi’, ‘sickular’ and ‘presstitutes’ thrown around liberally, turning political discussions into a mess of ugliness. It remains to be seen whether the NMAC intends to deal with the professional trolls who rely on a barrage of abuse to disrupt public conversations online. However, the appropriate response would not be greater surveillance, let alone a body like NMAC, with a sweeping mandate and little accountability.

Link to the original here.

For more details visit https://cis-india.org/internet-governance/blog/dna-amber-sinha-march-10-2016-are-we-losing-right-to-privacy-and-freedom-of-speech-on-indian-internet

Arbitrary Arrests for Comment on Bal Thackeray's Death

pranesh — 2013-01-02T03:42:37Z

Two girls have been arbitrarily and unlawfully arrested for making comments about the late Shiv Sena supremo Bal Thackeray's death. Pranesh Prakash explores the legal angles to the arrests.

Facts of the case

This morning, there was a short report in the Mumbai Mirror about two girls having been arrested for comments one of them made, and the other 'liked', on Facebook about Bal Thackeray:

Police on Sunday arrested a 21-year-old girl for questioning the total shutdown in the city for Bal Thackeray’s funeral on her Facebook account. Another girl who ‘liked’ the comment was also arrested.

The duo were booked under Section 295 (a) of the IPC (for hurting religious sentiments) and Section 64 (a) of the Information Technology Act, 2000. Though the girl withdrew her comment and apologised, a mob of some 2,000 Shiv Sena workers attacked and ransacked her uncle’s orthopaedic clinic at Palghar.

“Her comment said people like Thackeray are born and die daily and one should not observe a bandh for that,” said PI Uttam Sonawane.

What provisions of law were used?

There's a small mistake in Mumbai Mirror's reportage as there is no section "64(a)"¹ in the Information Technology (IT) Act, nor a section "295(a)" in the Indian Penal Code (IPC). They must have meant section 295A of the IPC ("outraging religious feelings of any class") and section 66A of the IT Act ("sending offensive messages through communication service, etc."). (Update: The Wall Street Journal's Shreya Shah has confirmed that the second provision was section 66A of the IT Act.)

Section 295A of the IPC is cognizable and non-bailable, and hence the police have the powers to arrest a person accused of this without a warrant.² Section 66A of the IT Act is cognizable and bailable.

Update: Some news sources claim that section 505(2) of the IPC ("Statements creating or promoting enmity, hatred or ill-will between classes") has also been invoked.

Was the law misapplied?

This is clearly a case of misapplication of s.295A of the IPC.³ This provision has been frivolously used numerous times in Maharashtra. Even the banning of James Laine's book Shivaji: Hindu King in Islamic India happened under s.295A, and the ban was subsequently held to have been unlawful by both the Bombay High Court as well as the Supreme Court. Indeed, s.295A has not been applied in cases where it is more apparent, making this seem like a parody news report.

Interestingly, the question arises of the law under which the friend who 'liked' the Facebook status update was arrested. It would take a highly clever lawyer and a highly credulous judge to make 'liking' of a Facebook status update an act capable of being charged with electronically "sending ... any information that is grossly offensive or has menacing character" or "causing annoyance or inconvenience", or under any other provision of the IT Act (or, for that matter, the IPC).⁴ That 'liking' is protected speech under Article 19(1)(a) is not under question in India (unlike in the USA where that issue had to be adjudicated by a court), since unlike the wording present in the American Constitution, the Indian Constitution clearly protects the 'freedom of speech and expression', so even non-verbal expression is protection.

Role of bad law and the police

In this case the blame has to be shared between bad law (s.66A of the IT Act) and an abuse of powers by police. The police were derelict in their duty, as they failed to provide protection to the Dhada Orthopaedic Hospital, run by the uncle of the girl who made the Facebook posting. Then they added insult to injury by arresting Shaheen Dhada and the friend who 'liked' her post. This should not be written off as a harmless case of the police goofing up. Justice Katju is absolutely correct in demanding that such police officers should be punished.

Rule of law

Rule of law demands that laws are not applied in an arbitrary manner. When tens of thousands were making similar comments in print (Justice Katju's article in the Hindu, for instance), over the Internet (countless comments on Facebook, Rediff, Orkut, Twitter, etc.), and in person, how did the police single out Shaheen Dhada and her friend for arrest?⁵

This should not be seen merely as "social media regulation", but as a restriction on freedom of speech and expression by both the law and the police. Section 66A makes certain kinds of speech-activities ("causing annoyance") illegal if communicated online, but legal if that same speech-activity is published in a newspaper. Finally, this is similar to the Aseem Trivedi case where the police wrongly decided to press charges and to arrest.

This distinction is important as it being a Facebook status update should not grant Shaheen Dhada any special immunity; the fact of that particular update not being punishable under s.295 or s.66A (or any other law) should.

Section 64 of the IT Act is about "recovery of penalty" and the ability to suspend one's digital signature if one doesn't pay up a penalty that's been imposed.↩
The police generally cannot, without a warrant, arrest a person accused of a bailable offence unless it is a cognizable offence. A non-bailable offence is one for which a judicial magistrate needs to grant bail, and it isn't an automatic right to be enjoyed by paying a bond-surety amount set by the police.↩
Section 295A of the IPC has been held not to be unconstitutional. The first case to challenge the constitutionality of section 66A of the IT Act was filed recently in front of the Madurai bench the Madras High Court.)↩
One can imagine an exceptional case where such an act could potentially be defamatory, but that is clearly exceptional.↩
This is entirely apart from the question of how the Shiv Sena singled in on Shaheen Dhada's Facebook comment.↩

This blog entry has been re-posted in the following places

Outlook (November 19, 2012).
KAFILA (November 19, 2012).

For more details visit https://cis-india.org/internet-governance/blog/bal-thackeray-comment-arbitrary-arrest-295A-66A

Anti-trafficking Bill may lead to censorship

Swaraj Barooah and Gurshabad Grover — 2018-08-02T13:59:16Z

There are a few problematic provisions in the proposed legislation—it may severely impact freedom of expression.

The article was published in Livemint on July 24, 2018.

The legislative business of the monsoon session of Parliament kicked off on 18 July with the introduction of the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018, in the Lok Sabha. The intention of the Union government is to “make India a leader among South Asian countries to combat trafficking” through the passage of this Bill. Good intentions aside, there are a few problematic provisions in the proposed legislation, which may severely impact freedom of expression.

For instance, Section 36 of the Bill, which aims to prescribe punishment for the promotion or facilitation of trafficking, proposes a minimum three-year sentence for producing, publishing, broadcasting or distributing any type of material that promotes trafficking or exploitation. An attentive reading of the provision, however, reveals that it has been worded loosely enough to risk criminalizing many unrelated activities as well.

The phrase “any propaganda material that promotes trafficking of person or exploitation of a trafficked person in any manner” has wide amplitude, and many unconnected or even well-intentioned actions can be construed to come within its ambit as the Bill does not define what constitutes “promotion”. For example, in moralistic eyes, any sexual content online could be seen as promoting prurient interests, and thus also promoting trafficking.

Rather than imposing a rigorous standard of actual and direct nexus with the act of trafficking or exploitation, a vaguer standard which includes potentially unprovable causality, including by actors who may be completely unaware of such activity, is imposed. This opens the doors to using this provision for censorship and imposes a chilling effect on any literary or artistic work which may engage with sensitive topics, such as trafficking of women.

In the past, governments have been keen to restrict access to online escort services and pornography. In June 2016, the Union government banned 240 escort sites for obscenity even though it cannot do that under Section 69A or Section 79 of the Information Technology Act, or Section 8 of the Immoral Traffic (Prevention) Act. In July 2015, the government asked internet service providers (ISPs) to block 857 pornography websites sites on grounds of outraging “morality” and “decency”, but later rescinded the order after widespread criticism. If historical record is any indication, Section 36 in this present Bill will legitimize such acts of censorship.

Section 39 proposes an even weaker standard for criminal acts by proposing that any act of publishing or advertising “which may lead to the trafficking of a person shall be punished” (emphasis added) with imprisonment for 5-10 years. In effect, the provision mandates punishment for vaguely defined actions that may not actually be connected to the trafficking of a person at all. This is in stark contrast to most provisions in criminal law, which require mens rea (intention) along with actus reus (guilty act). The excessive scope of this provision is prone to severe abuse, since without any burden of showing a causal connect, it could be argued that anything “may lead” to the trafficking of a person.

Another by-product of passing the proposed legislation would be a dramatic shift in India’s landscape of intermediary liability laws, i.e., rules which determine the liability of platforms such as Facebook and Twitter, and messaging services like Whatsapp and Signal for hosting or distributing unlawful content.

Provisions in the Bill that criminalize the “publication” and “distribution” of content, ignore that unlike the physical world, modern electronic communication requires third-party intermediaries to store and distribute content. This wording can implicate neutral communication pipeways, such as ISPs, online platforms, mobile messengers, which currently cannot even know of the presence of such material unless they surveil all their users. Under the proposed legislation, the fact that human traffickers used Whatsapp to communicate about their activities could be used to hold the messaging service criminally liable.

By proposing such, the Bill is in direct conflict with the internationally recognized Manila Principles on Intermediary Liability, and in dissonance with existing principles of Indian law, flowing from the Information Technology Act, 2000, that identify online platforms as “safe harbours” as long as they act as mere conduits. From the perspective of intermediaries, monitoring content is unfeasible, and sometimes technologically impossible as in the case of Whatsapp, which facilitates end-to-end encrypted messaging. And as a 2011 study by the Centre for Internet & Society showed, platforms are happy to over-comply in favour of censorship to escape liability rather than verify actual violations. The proposed changes will invariably lead to a chilling effect on speech on online platforms.

Considering these problematic provisions, it will be a wise move to send the Bill to a select committee in Parliament wherein the relevant stakeholders can engage with the lawmakers to arrive at a revised Bill, hopefully one which prevents human trafficking without threatening the Constitutional right of free speech.

For more details visit https://cis-india.org/internet-governance/blog/livemint-july-24-2018-swaraj-barooah-and-gurshabad-grover-anti-trafficking-bill-may-lead-to-censorship

Anonymous joins protests against Internet shutdown in Kashmir

praskrishna — 2013-03-01T04:46:06Z

Hacktivist group Anonymous joined thousands of others to protest the shutdown of internet services in Kashmir for the fourth consecutive day by authorities after the hanging of Afzal Guru, a key accused in the Parliament attack case.

Indu Nandakumar's article was published in the Economic Times on February 12, 2013. Sunil Abraham is quoted.

Anonymous, which shot to fame in India after it brought down the websites of the Supreme Court and Congress Party last year, on Tuesday expressed its support to the people of Kashmir until the ban on internet and media services are lifted.

"We stand with # Kashmiras it comes to the end of its 3rd day under curfew. The comms blockade will fall. We are with you. # KashmirNow," a message posted on one of the Twitter accounts of Anonymous read.

Another Twitter account of the same group said, "#OpKashmir - Lift the media and internet blackout in #Kashmir".

Mobile internet services were suspended across Kashmir Valley on Saturday after the hanging of Afzal Guru in New Delhi. Online protests gathered steam by evening and thousands took to Twitter to express their anger censorships and blockades.

A senior official from the Department of Telecom, which had last year ordered the blocking of several Twitter accounts and websites, said internet services were blocked to avoid any further escalation of violence in Kashmir. But internet experts said a ban of communication services do not result in peace, instead it curtails the basic right of citizens to exchange messages.

"Government can ban certain class of messages and certain class of users, but definitely not a blanket ban of all services," said Sunil Abraham, executive director of Bangalore-based research organisation, the Centre for Internet and Society.

Essential commodities such as medicines, newspapers etc too are in short supply in Kashmir, where three people died and over 50 were injured in clashes since Saturday.

Anonymous has also been posting photographs from the region. One of the Twitter accounts of the group, @ anon_warlockon Tuesday tweeted, "A gag has been put on everything, information at best is trickling down".

Last year, Anonymous, known for its use of Guy Fawkes masks, had organised rallies across Indian cities to protest internet censorship after India's Department of Telecom blocked over 250 websites and 30 Twitter accounts for posting communal images and videos that led to people from Northeast exit Bangalore and a few other Indian cities.

"Internet service providers in the Valley were asked by officials in the Ministry of Home Affairs to switch off connectivity on Saturday morning. There has been no further communication from the Ministry until now and we don't expect any withdrawal in the next few days," a senior industry executive with direct knowledge of the matter told ET. He added that any decision on withdrawal of the ban will be taken only after the MHA and intelligence officials take stock of the situation.

Centre of Internet's Abraham said he was not sure if messages on social media were being taken seriously by the government. "Research shows that during the times of public disruption, ban of communication services will only make things worse. Enlightened governments should know this and act accordingly."

For more details visit https://cis-india.org/news/economic-times-feb-12-2013-indu-nandakumar-anonymous-joins-protests-against-internet-shutdown-in-kashmir

Analyzing the Latest List of Blocked URLs by Department of Telecommunications (IIPM Edition)

snehashish — 2013-02-17T07:35:25Z

The Department of Telecommunications (DoT) in its order dated February 14, 2013 has issued directions to the Internet Service Providers (ISPs) to block seventy eight URLs. The block order has been issued as a result of a court order. Snehashish Ghosh does a preliminary analysis of the list of websites blocked as per the DoT order.

Medianama has published the DoT order, dated February 14, 2013, on its website.

What has been blocked?

The block order contains seventy eight URLs. Seventy three URLs are related to the Indian Institute of Planning and Management (IIPM). The other five URLs contain the term “highcourt”. The order also contains links from reputed news websites and news blogs including The Indian Express, Firstpost, Outlook, Times of India, Economic Times, Kafila and Caravan Magazine, and satire news websites Faking News and Unreal Times. The order also directs blocking of a public notice issued by the University Grants Commission (UGC).

The block order does not contain links to any social media website. However, some content related to IIPM has been removed but it finds no mention in the block order. Pursuant to which order or direction such content has been removed remains unclear. For example, Google has removed search results for the terms <Fake IIPM> pursuant to Court orders and it carries the following notice:

"In response to a legal request submitted to Google, we have removed 1 result(s) from this page. If you wish, you may read more about the request at ChillingEffects.org."

Are there any mistakes in the order?

The direction issued by the DoT is once again inaccurate and mired with errors. In effect, the DoT has blocked sixty one unique URLs and the block order contains numerous repetitions. By its order the DoT has directed the ISPs to block an entire blog [http://iipmexposed.blogspot.in] along with URLs to various posts in the same blog.

Reasons for Blocking Websites

According to news reports, the main reason for blocking of websites by the DoT is a Court order issued by a Court in Gwalior. The reason for issuing such a block order might have been a court proceeding with respect to defamation and removal of defamatory content thereof. However, the reasons for blocking of domain names containing the term ‘high court’, which is not at all related to the IIPM Court case is unclear. The DoT by its order has also blocked a link in the website of a internet domain registrar which carried advertisement for the domain name [www.highcourt.com].

Are the blocks legitimate?

The block order may have been issued by the DoT under Rule 10 of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009.

The Court order seems to be an interim injunction in a defamation suit. Generally, Courts exercise utmost caution while granting interim injunction in defamation cases. According to the Bonnard Rule (Bonnard v. Perryman, [1891] 2 Ch 269) in a defamation case, “interim injunction should not be awarded unless a defence of justification by the defendant was certain to fail at trial level.” Moreover, in the case of Woodward and Frasier, Lord Denning noted “that it would be unjust to fetter the freedom of expression, when actually a full trial had not taken place, and that if during trial it is proved that the defendant had defamed the plaintiff, then should they be liable to pay the damages.” The Delhi High Court in Tata Sons Ltd. v. Green Peace International followed the Bonnard Rule and the Lord Denning’s judgements and ruled against the award of interim injunction for removal of defamatory content and stated:

“The Court notes that the rule in Bonnard is as applicable in regulating grant of injunctions in claims against defamation, as it was when the judgment was rendered more than a century ago. This is because the Courts, the world over, have set a great value to free speech and its salutary catalyzing effect on public debate and discussion on issues that concern people at large. The issue, which the defendant’s game seeks to address, is also one of public concern. The Court cannot also sit in value judgment over the medium (of expression) chosen by the defendant since in a democracy, speech can include forms such as caricature, lampoon, mime parody and other manifestations of wit.”

Therefore, it appears that the Court order has moved away from the settled principles of law while awarding an interim injunction for blocking of content related to IIPM. It is also interesting to note that in Green Peace International, the Court also answered the question as to whether there should be different standard for posting or publication of defamatory content on the internet. It was observed by the Court that publication is a comprehensive term, ‘embracing all forms and medium – including the Internet’.

Blocking a Public Notice issued by a Statutory Body of Government of India

The block order mentions a URL which contains a public notice issued by University Grants Commission (UGC) related to the derecognition of IIPM as a University. The blocking of a public notice issued by the statutory body of the Government of India is unprecedented. A public notice issued by a statutory body is a function of the State. It can only be blocked or removed by a writ order issued by the High Court or the Supreme Court and only if it offends the Constitution. However, so far, ISPs such as BSNL have not enforced the blocking of this URL.

Implementation of the order by the ISPs

As pointed out in my previous blog post on blocking of websites, the ISPs have again failed to notify their consumers the reasons for the blocking of the URLs. This lack of transparency in the implementation of the block order has a chilling effect on freedom of speech.

For more details visit https://cis-india.org/internet-governance/blog/analyzing-latest-list-of-blocked-urls-by-dot

Analyzing the Latest List of Blocked Sites (Communalism and Rioting Edition) Part II

snehashish — 2012-09-27T10:42:30Z

Snehashish Ghosh does a further analysis of the leaked list of the websites blocked by the Indian Government from August 18, 2012 till August 21, 2012 (“leaked list”).

Unnecessary Blocks and Mistakes:

http://hinduexistance.files.wordpress.com/..., which appears on the leaked list, does not exist because the URL is incorrect. However, the correct URL does contain an image which, in my opinion, can be considered to be capable of inciting violence. It has not been blocked due to a spelling error in the order. Instead of blocking hinduexistence.wordpress.com/... the DoT has ordered the blocking of hinduexistance.wordpress.com/..., which does not exist.
Two URLs in the block order are from the website of the High Council for Human Rights, Judiciary of the Islamic Republic of Iran. The reason for blocking these two links from this particular website is unclear.
The website of the Union of NGOs of the Islamic World was blocked. Again, the reason for blocking this website remains unclear.
URLs such as, http://farazahmed.com/..., mumblingminion.blogspot.com, were blocked. The content on these URLs was in fact debunking the fake photographs.
Certain blocked Facebook pages did not have any bearing on the North East exodus which was the main reason behind the blocks. For example, Facebook link leading to United States Institute for Peace page was blocked.

Duration of the Block

The Department of Telecommunications (DoT) did not specify the period for which the block has been implemented in its orders. As a result of which certain URLs still remain blocked while a majority of the links in the leaked list can be accessed. Lack of clear directions from the DoT has resulted in haphazard blocking and certain internet service providers (ISPs) have lifted the block on certain links whereas some other ISPs have continued with a complete block.

How have the intermediaries reacted to the block orders?

Going by the leaked list of websites blocked by DoT, it issued the block orders to ‘all internet service licensees’. Intermediaries that do not fall in the category of 'internet service licensees’ were also sent a separate set of requests for taking down third party content. However, it is unclear under which provision of the law such request was made by the Government.

Internet Service Licensees

The internet service licensee or the ISPs have not followed any uniform system to notify that a particular URL or website in the leaked list is blocked according to DoT’s orders. The lack of transparency in the implementation of the block orders, have a chilling effect on free speech.

For instance, BSNL returns the following messages:

"This website/URL has been blocked until further notice either pursuant to Court orders or on the Directions issued by the Department of Telecommunications" or “This site has been blocked as per instructions from Department of Telecom (DOT).”

However, these messages are not uniform across all the URLs/websites in the leaked list. BSNL does not generate any response for the majority of the URLs in the leaked list. This results in ‘invisible censorship’ as the person who is trying to access the blocked URL does not have any means to know whether a particular URL is unavailable or certain sites are blocked by government orders.

Lack of notification does not only infringes upon the fundamental right to freedom of speech and expression but also violates the fundamental right to a constitutional remedy guaranteed under Article 32 of our Constitution. The person aggrieved by such block orders cannot approach the Court for a remedy because there is no means to figure out:

(a) Description of the content blocked?

(b) Who has issued the block order/request?

(d) Who has implemented the block order/request? and

(e) What was the reason for the block?

The intermediaries should provide with the above notification details while implementing a block order issued by the Government.

Intermediaries hosting third party content:

More than 100 out of the 309 blocks are Facebook (http and https) URLs. Facebook has not informed its users about the reasons behind unavailability of certain pages or content. This is another instance of invisible censorship. However, YouTube, a Google service, has maintained certain level of transparency, and informs the user that the content has been blocked as per ‘government removal request’. It is interesting to note that certain YouTube user accounts were terminated as well. It is unclear whether this was as a result of the block order. Furthermore, links associated with blogger.com, which is another service provided by Google, have been removed.

This was re-posted by Medianama on September 26, 2012.

For more details visit https://cis-india.org/internet-governance/analyzing-the-latest-list-of-blocked-sites-communalism-and-rioting-edition-part-ii

Analysing Latest List of Blocked Sites (Communalism & Rioting Edition)

pranesh — 2012-09-06T11:52:47Z

Pranesh Prakash does preliminary analysis on a leaked list of the websites blocked from August 18, 2012 till August 21, 2012 by the Indian government.

Note: This post will be updated as more analysis is done. Last update: 23:59 on August 22, 2012. This is being shared under a Creative Commons Attribution-NonCommercial licence.

How many items have been blocked?

There are a total of 309 specific items (those being URLs, Twitter accounts, img tags, blog posts, blogs, and a handful of websites) that have been blocked. This number is meaningless at one level, given that it doesn't differentiate between the blocking of an entire website (with dozens or hundreds of web pages) from the blocking of a single webpage. However, given that very few websites have been blocked at the domain-level, that number is still reasonably useful.

Please also note, we currently only have information related to what telecom companies and Internet Service Providers (ISPs) were asked to block till August 21, 2012. We do not have information on what individual web services have been asked to remove. That might take the total count much higher.

Why have these been blocked?

As far as I could determine, all of the blocked items have content (mostly videos and images have been targeted, but also some writings) that are related to communal issues and rioting. (Please note: I am not calling the content itself "communal" or "incitement to rioting", just that the content relates to communal issues and rioting.) This has been done in the context of the recent riots in Assam, Mumbai, UP, and the mass movement of people from Bangalore.

There were reports of parody Twitter accounts having been blocked. Preliminary analysis on the basis of available data show that parody Twitter accounts and satire sites have not been targetted solely for being satirical. For instance, very popular parody Twitter accounts, such as @DrYumYumSingh are not on any of the four orders circulated by the Department of Telecom. (I have no information on whether such parody accounts are being taken up directly with Twitter or not: just that they aren't being blocked at the ISP-level. Media reports indicate six accounts have been taken up with Twitter for being similar to the Prime Minister's Office's account.)

Are the blocks legitimate?

The goodness of the government's intentions seem, quite clearly in my estimation, to be unquestionable. Yet, even with the best intentions, there might be procedural illegalities and over-censorship.

There are circumstances in which freedom of speech and expression may legitimately be limited. The circumstances that existed in Bangalore could justifiably result in legitimate limitations on freedom of speech. For instance, I believe that temporary curbs — such as temporarily limiting SMSes & MMSes to a maximum of five each fifteen minutes for a period of two days — would have been helpful.

However it is unclear whether the government has exercised its powers responsibly in this circumstance. The blocking of many of the items on that list are legally questionable and morally indefensible, even while a some of the items ought, in my estimation, to be removed.

If the government has blocked these sites under s.69A of the Information Technology Act ("Power to Issue Directions for Blocking for Public Access of Any Information through any Computer Resource"), the persons and intermediaries hosting the content should have been notified provided 48 hours to respond (under Rule 8 of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules 2009). Even if the emergency provision (Rule 9) was used, the block issued on August 18, 2012, should have been introduced before the "Committee for Examination of Request" by August 20, 2012 (i.e., within 48 hours), and that committee should have notified the persons and intermediaries hosting the content.

Importantly, even though many of the items on that list are repugnant and do deserve (in my opinion) to be removed, ordering ISPs to block them is largely ineffectual. The people and companies hosting the material should have been asked to remove it, instead of ordering Internet service providers (ISPs) to block them. All larger sites have clear content removal policies, and encouraging communal tensions and hate speech generally wouldn't be tolerated. That this can be done without resort to the dreadful Intermediary Guidelines Rules (which were passed last year) shows that those Rules are unnecessary. It is our belief that those Rules are also unconstitutional.

Are there any egregious mistakes?

Yes, there are numerous such examples of egregious mistakes.

Most importantly, some even people and posts debunking rumours have been blocked.
Some of the Twitter accounts are of prominent people who write for the mainstream media, and who have written similar content offline. If their online content is being complained about, their offline content should be complained about too.
Quite a number of the links include articles published and reports broadcast in the mainstream media (including a Times Now report, a Telegraph picture gallery, etc.), and in print, making the blocks suspect. Only the online content seems to have been targeted for censorship.

There are numerous mistakes and inconsistencies that make blocking pointless and ineffectual.

Some of the items are not even web addresses (e.g., a few HTML img tags were included).
Some of the items they have tried to block do not even exist (e.g., one of the Wikipedia URLs).
An entire domain was blocked on Sunday, and a single post on that domain was blocked on Monday.
For some Facebook pages, the secure version (https://facebook.com/...) is listed, for others the non-secure version (http://facebook.com/...) is listed.
For some YouTube videos, the 'base' URL of YouTube videos is blocked, but for other the URL with various parameters (like the "&related=" parameter) is blocked. That means that even nominally 'blocked' videos will be freely accessible.

All in all, it is clear that the list was not compiled with sufficient care.

Despite a clear warning by the DIT that "above URLs only" should be blocked, and not "the main websites like www.facebook.com, www.youtube.com, www.twitter.com, etc.", it has been seen that some ISPs (like Airtel) have gone overboard in their blocking.

Why haven't you put up the whole list?

Given the sensitivity of the issue, we felt it would be premature to share the whole list. However, we strongly believe that transparency should be an integral part of all censorship. Hence, this analysis is an attempt to provide some much-needed transparency. We intend to make the entire list public soon, though. (Given how porous such information is, it is likely that someone else will procure the list, and release it sooner than us.)

Why can I still access many items that are supposed to be blocked?

One must keep in mind that fresh orders have been issued on a day-by-day basis, that there are numerous mistakes in the list making it difficult to apply (some of these mistakes have been mentioned above), and the fact that that this order has to be implemented by hundreds of ISPs.

Your ISP probably has not have got around to enforcing the blocks yet. At the time of this writing, most ISPs don't seem to be blocking yet. This analysis is based on the orders sent around to ISPs, and not on the basis of actual testing of how many of these have actually been blocked by Airtel, BSNL, Tata, etc.

Additionally, if you are using Twitter through a client (on your desktop, mobile, etc.) instead of the web interface, you will not notice any of the Twitter-related blocks.

So you are fine with censorship?

No. I believe that in some cases, the government has the legal authority to censor. Yet, exercising that legal authority is usually not productive, and in fact there are other, better ways of limiting the harms caused by speech and information than censorship. Limiting speech might even prove harmful in situations like these, if it ends up restricting people's ability to debunk false rumours. In a separate blog post (to be put up soon), I am examining how all of the government's responses have been flawed both legally and from the perspective of achieving the desired end.

So what should the government have done?

Given that the majority of the information it is targeting is on Facebook, Youtube, and Twitter, the government could have chosen to fight alongside those services to get content removed expeditiously, rather than fight against them. (There are some indications that the government might be working with these services, but it certainly isn't doing enough.)

For instance, it could have asked all of them to expedite their complaints mechanism for a few days, by ensuring that the complaints mechanism is run 24x7 and that they respond quickly to any complaint submitted about communal incitement, spreading of panic, etc. This does not need the passing of an order under any law, but requires good public relations skills and a desire not to treat internet services as enemies. The government could have encouraged regular users to flag false rumours and hate speech on these sites. On such occasions, social networking sites should step up and provide all lawful assistance that the government may require. They should also be more communicative in terms of the help they are providing to the government to curtail panic-inducing rumours and hate speech. (Such measures should largely be reactive, not proactive, to ensure legitimate speech doesn't get curtailed.)

The best antidote for the rumours that spread far and wide and caused a mass movement of people from Bangalore to the North-Eastern states would have been clear debunking of those rumours. Mass outreach to people in the North-East (very often the worried parents) and in Bangalore using SMSes and social media, debunking the very specific allegations and rumours that were floating around, would have been welcome. However, almost no government officials actually used social media platforms to reach out to people to debunk false information and reassure them. Even a Canadian interning in our organization got a reassuring SMS from the Canadian government.

It is indeed a pity that the government notified a social media engagement policy today, when the need for it was so very apparent all of the past week.

And what of all this talk of cybersecurity failure and cyber-wars?

Cybersecurity is indeed a cause of concern for India, but only charlatans and the ignorant would make any connection between India's cybersecurity and recent events. The role of Pakistan deserves a few words. Not many Pakistani websites / webpages have been blocked by the Indian government. Two of the Pakistani webpages that have been blocked are actually pages that debunk the fake images that have been doing the rounds in Pakistan for at least the past month. Even Indian websites like Kafila have noted these fake images long ago, and Ayesha Siddiqa wrote about this on August 5, 2012, and Yousuf Saeed wrote about it on August 13, 2012. Even while material that may have been uploaded from Pakistan, it seems highly unlikely they were targeted at an Indian audience, rather than a Pakistani or global one.

Domain	Total Number of Entries	Tuesday, August 21, 2012	Monday, August 20, 2012	Sunday, August 19, 2012	Saturday, August 18, 2012
ABC.net.au	1				1
AlJazeera.com	4		4
AllVoices.com	1				1
WN.com	1				1
AtjehCyber.net	1				1
BDCBurma.org	1	1
Bhaskar.com	1			1
Blogspot.com	4			3	1
Blogspot.in	7	1	3		3
Catholic.org	1			1
CentreRight.in	2	2
ColumnPK.com	1			1
Defence.pk	4		2	1	1
EthioMuslimsMedia.com	1				1
Facebook.com (HTTP)	75	36	7	18	14
Facebook.com (HTTPS)	27		3	23	1
Farazahmed.com	5	1			4
Firstpost.com	2		1	1
HaindavaKerelam.com	1			1
HiddenHarmonies.org	1		1
HinduJagruti.org	2		1	1
Hotklix.com	1			1
HumanRights-Iran.ir	2				2
Intichat.com	1	1
Irrawady.org	1			1
IslamabadTimesOnline.com	1				1
Issuu.com	1				1
JafriaNews.com	1				1
JihadWatch.org	2		2
KavkazCenter	1			1
MwmJawan.com	1				1
My.Opera.com	1	1
Njuice.com	1		1
OnIslam.net	1				1
PakAlertPress.com	1	1
Plus.Google.com	4				4
Reddit.com	1		1
Rina.in	1				1
SandeepWeb.com	1		1
SEAYouthSaySo.com	1				1
Sheikyermami.com	1				1
StormFront.org	1				1
Telegraph.co.uk	1				1
TheDailyNewsEgypt.com	1				1
TheFaultLines.com	1				1
ThePetitionSite.com	1	1
TheUnity.org	1				1
TimesofIndia.Indiatimes.com	1		1
TimesOfUmmah.com	1				1
Tribune.com.pk	1	1
Twitter.com (HTTP)	1			1
Twitter.com (HTTPS)	11			1	10
Twitter account	18		16	2
TwoCircles.net	2			2
Typepad.com	1		1
Vidiov.info	1		1
Wikipedia.org	3			3
Wordpress.com	8	1	3	2	2
YouTube.com	85	18	39	14	14
YouTu.be	1			1
Totals	309	65	88	80	75

The analysis has been cross-posted/quoted in the following places:

LiveMint (September 4, 2012)
The Hindu (August 26, 2012)
Wall Street Journal (August 25, 2012)
tech 2 (August 25, 2012)
China Post (August 25, 2012)
The Hindu (August 24, 2012)
LiveMint (August 24, 2012)
Global Voices (August 24, 2012)
Reuters (August 24, 2012)
Outlook (August 23, 2012)
FirstPost.India (August 23, 2012)
IBN Live (August 23, 2012)
News Click (August 23, 2012)
Medianama (August 23, 2012)
KAFILA (August 23, 2012)
CIOL (August 23, 2012)

For more details visit https://cis-india.org/internet-governance/blog/analysing-blocked-sites-riots-communalism

An Evidence based Intermediary Liability Policy Framework: Workshop at IGF

jyoti — 2014-07-04T06:41:10Z

CIS is organising a workshop at the Internet Governance Forum 2014. The workshop will be an opportunity to present and discuss ongoing research on the changing definition of intermediaries and their responsibilities across jurisdictions and technologies and contribute to a comprehensible framework for liability that is consistent with the capacity of the intermediary and with international human-rights standards.

The Centre for Internet and Society, India and Centre for Internet and Society, Stanford Law School, USA, will be organising a workshop to analyse the role of intermediary platforms in relation to freedom of expression, freedom of information and freedom of association at the Internet Governance Forum 2014. The aim of the workshop is to highlight the increasing importance of digital rights and broad legal protections of stakeholders in an increasingly knowledge-based economy. The workshop will discuss public policy issues associated with Internet intermediaries, in particular their roles, legal responsibilities and related liability limitations in context of the evolving nature and role of intermediaries in the Internet ecosystem. distinct

Online Intermediaries: Setting the context

The Internet has facilitated unprecedented access to information and amplified avenues for expression and engagement by removing the limits of geographic boundaries and enabling diverse sources of information and online communities to coexist. Against the backdrop of a broadening base of users, the role of intermediaries that enable economic, social and political interactions between users in a global networked communication is ubiquitous. Intermediaries are essential to the functioning of the Internet as many producers and consumers of content on the internet rely on the action of some third party–the so called intermediary. Such intermediation ranges from the mere provision of connectivity, to more advanced services such as providing online storage spaces for data, acting as platforms for storage and sharing of user generated content (UGC), or platforms that provides links to other internet content.

Online intermediaries enhance economic activity by reducing costs, inducing competition by lowering the barriers for participation in the knowledge economy and fuelling innovation through their contribution to the wider ICT sector as well as through their key role in operating and maintaining Internet infrastructure to meet the network capacity demands of new applications and of an expanding base of users.

Intermediary platforms also provide social benefits, by empowering users and improving choice through social and participative networks, or web services that enable creativity and collaboration amongst individuals. By enabling platforms for self-expression and cooperation, intermediaries also play a critical role in establishing digital trust, protection of human rights such as freedom of speech and expression, privacy and upholding fundamental values such as freedom and democracy.

However, the economic and social benefits of online intermediaries are conditional to a framework for protection of intermediaries against legal liability for the communication and distribution of content which they enable.

Intermediary Liability

Over the last decade, right holders, service providers and Internet users have been locked in a debate on the potential liability of online intermediaries. The debate has raised global concerns on issues such as, the extent to which Internet intermediaries should be held responsible for content produced by third parties using their Internet infrastructure and how the resultant liability would affect online innovation and the free flow of knowledge in the information economy?

Given the impact of their services on communications, intermediaries find themselves as either directly liable for their actions, or indirectly (or “secondarily”) liable for the actions of their users. Requiring intermediaries to monitor the legality of the online content poses an insurmountable task. Even if monitoring the legality of content by intermediaries against all applicable legislations were possible, the costs of doing so would be prohibitively high. Therefore, placing liability on intermediaries can deter their willingness and ability to provide services, hindering the development of the internet itself.

Economics of intermediaries are dependent on scale and evaluating the legality of an individual post exceeds the profit from hosting the speech, and in the absence of judicial oversight can lead to a private censorship regime. Intermediaries that are liable for content or face legal exposure, have powerful incentives, to police content and limit user activity to protect themselves. The result is curtailing of legitimate expression especially where obligations related to and definition of illegal content is vague. Content policing mandates impose significant compliance costs limiting the innovation and competiveness of such platforms.

More importantly, placing liability on intermediaries has a chilling effect on freedom of expression online. Gate keeping obligations by service providers threaten democratic participation and expression of views online, limiting the potential of individuals and restricting freedoms. Imposing liability can also indirectly lead to the death of anonymity and pseudonymity, pervasive surveillance of users' activities, extensive collection of users' data and ultimately would undermine the digital trust between stakeholders.

Thus effectively, imposing liability for intermediaries creates a chilling effect on Internet activity and speech, create new barriers to innovation and stifles the Internet's potential to promote broader economic and social gains. To avoid these issues, legislators have defined 'safe harbours', limiting the liability of intermediaries under specific circumstances.

Online intermediaries do not have direct control of what information is or information are exchanged via their platform and might not be aware of illegal content per se. A key framework for online intermediaries, such limited liability regimes provide exceptions for third party intermediaries from liability rules to address this asymmetry of information that exists between content producers and intermediaries.

However, it is important to note, that significant differences exist concerning the subjects of these limitations, their scope of provisions and procedures and modes of operation. The 'notice and takedown' procedures are at the heart of the safe harbour model and can be subdivided into two approaches:

a. Vertical approach where liability regime applies to specific types of content exemplified in the US Digital Copyright Millennium Act

b. Horizontal approach based on the E-Commerce Directive (ECD) where different levels of immunity are granted depending on the type of activity at issue

Current framework

Globally, three broad but distinct models of liability for intermediaries have emerged within the Internet ecosystem:

1. Strict liability model under which intermediaries are liable for third party content used in countries such as China and Thailand

2. Safe harbour model granting intermediaries immunity, provided their compliance on certain requirements

3. Broad immunity model that grants intermediaries broad or conditional immunity from liability for third party content and exempts them from any general requirement to monitor content.

While the models described above can provide useful guidance for the drafting or the improvement of the current legislation, they are limited in their scope and application as they fail to account for the different roles and functions of intermediaries. Legislators and courts are facing increasing difficulties, in interpreting these regulations and adapting them to a new economic and technical landscape that involves unprecedented levels user generated content and new kinds of and online intermediaries.

The nature and role of intermediaries change considerably across jurisdictions, and in relation to the social, economic and technical contexts. In addition to the dynamic nature of intermediaries the different categories of Internet intermediaries‘ are frequently not clear-cut, with actors often playing more than one intermediation role. Several of these intermediaries offer a variety of products and services and may have number of roles, and conversely, several of these intermediaries perform the same function. For example , blogs, video services and social media platforms are considered to be 'hosts'. Search engine providers have been treated as 'hosts' and 'technical providers'.

This limitations of existing models in recognising that different types of intermediaries perform different functions or roles and therefore should have different liability, poses an interesting area for research and global deliberation. Establishing classification of intermediaries, will also help analyse existing patterns of influence in relation to content for example when the removal of content by upstream intermediaries results in undue over-blocking.

Distinguishing intermediaries on the basis of their roles and functions in the Internet ecosystem is critical to ensuring a balanced system of liability and addressing concerns for freedom of expression. Rather than the highly abstracted view of intermediaries as providing a single unified service of connecting third parties, the definition of intermediaries must expand to include the specific role and function they have in relation to users' rights. A successful intermediary liability regime must balance the needs of producers, consumers, affected parties and law enforcement, address the risk of abuses for political or commercial purposes, safeguard human rights and contribute to the evolution of uniform principles and safeguards.

Towards an evidence based intermediary liability policy framework

This workshop aims to bring together leading representatives from a broad spectrum of stakeholder groups to discuss liability related issues and ways to enhance Internet users’ trust.

Questions to address at the panel include:

1. What are the varying definitions of intermediaries across jurisdictions?

2. What are the specific roles and functions that allow for classification of intermediaries?

3. How can we ensure the legal framework keeps pace with technological advances and the changing roles of intermediaries?

4. What are the gaps in existing models in balancing innovation, economic growth and human rights?

5. What could be the respective role of law and industry self-regulation in enhancing trust?

6. How can we enhance multi-stakeholder cooperation in this space?

Confirmed Panel:

Technical Community: Malcolm Hutty: Internet Service Providers Association (ISPA)
Civil Society: Gabrielle Guillemin: Article19
Academic: Nicolo Zingales: Assistant Professor of Law at Tilburg University
Intergovernmental: Rebecca Mackinnon: Consent of the Networked, UNESCO project
Civil Society: Anriette Esterhuysen: Association for Progressive Communication (APC)
Civil Society: Francisco Vera: Advocacy Director: Derechos Digitale
Private Sector: Titi Akinsanmi: Policy and Government Relations Manager, Google Sub-Saharan Africa
Legal: Martin Husovec: MaxPlanck Institute

Moderator(s): Giancarlo Frosio, Centre for Internet and Society (CIS) and Jeremy Malcolm, Electronic Frontier Foundation

Remote Moderator: Anubha Sinha, New Delhi

For more details visit https://cis-india.org/internet-governance/blog/igf-workshop-an-evidence-based-intermediary-liability-policy-framework

A Technological Solution to the Challenges of Online Defamation

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

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

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

Consider this scenario:

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

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

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

Who is liable?

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

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

What kind of liability might an intermediary carry?

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

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

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

How are victims compensated?

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

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

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

Solving the problem with technology

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

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

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

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

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

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

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

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

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

A Megacorp’s Basic Instinct

praskrishna — 2016-02-04T13:53:05Z

Bolstered by academia and civil society, TRAI stands its ground against FB’s Free Basics publicity blitz.

The article by Arindam Mukherjee was published in Outlook on February 8, 2016. Sunil Abraham was quoted.

Hours before the January 31 deadline for telecom regulator TRAI to give its opinion on Facebook’s controversial and expensive Free Basics pitch—which seeks to give India’s poor “free” access to certain partner websites—the consensus seems to be building up against the social media giant. “If there is cannibalising of the internet through services like Free Basics, the internet will be split; it will parcel out and slice the internet. Its future is at stake,” says a senior government official on condition of anonymity.

In a climate where the tech-savvy Modi government is seen to be close to the online trinity of Facebook, Google and Twitter, TRAI’s defiant stance in favour of net neutrality stands out. There’s a lot at stake. India’s position becomes crucial as few countries in the world have clearly defined laws on net neutrality or have taken a stand on it. For Facebook, there’s a lot more at stake. India is its second-largest user base after the US (it is banned in China), so it is leaving no stone unturned. The massive Rs 300-crore electronic and print media campaign is an indication of that.

TRAI sources say they are ready for any adverse onslaught and they are under no pressure from the PMO. The view gaining ground in government is that FB is trying to create a walled garden where it controls what people see and surf and what they can access online. While this will be offered to consumers for free—the technical term is differential pricing—the websites part of Free Basics will have to pay for being on the platform. Outlook’s queries to FB remained unanswered at the time of going to press.

At an ‘open house’ meeting to discuss TRAI’s consultation paper on differential pricing last week, regulator Ram Sevak Sharma stood firm against the barrage of pro-Free Basics opinions that flowed from FB, telecom operators and some members of the public. TRAI’s message was clear: FB’s tactics of moulding public opinion by stealth will not be acceptable in India. In the past few weeks, there have been bitter exchanges between TRAI and FB over the latter’s responses to a consultation paper on differential pricing.

TRAI’s defiant stand draws from an unprecedented show of strength by civil society against Free Basics and FB’s intentions. Says former Aadhar man Nandan Nilekani, “Free Basics is certainly against net neutrality. How can a solution be neutral, if it disproportionately benefits a particular website or business on the internet? Today, 400 million Indians are online. They came online because of the inherent value the internet offers. How can a walled garden of 100-odd websites provide the same value?”

What does Free Basics mean for PM Modi’s Digital India campaign? Being a walled garden, thousands of start-ups without adequate budgets to pay for such dedicated service will be forced to stay out of it. Similar questions are being raised about government services that are increasingly coming online. The concern is that all government traffic will have to pass through FB servers. The senior government official quoted above agrees, “In such a scenario, the government will have to approach FB to make its websites accessible on the free service which is neither desirable nor safe.”

The other fear is what happens to public data if it goes through a service like Free Basics. There is fear that a lot of government and public data will be put through Free Basics once government services start coming online. If Free Basics is for the poor who are also beneficiaries of government services, FB too can access this data. Says Prabir Purkayastha, chairman, Knowledge Commons, “FB says public service will be available through Free Basics but can public service be given through a private initiative? Public data is valuable and can’t be handed over to a private company.”

Few again are convinced by FB’s claim that Free Basics aims to make the internet accessible to the poor, with the many services offered through it. “The claim that the poor will get access to the internet is false,” warns Sunil Abraham, executive director, Centre for Internet and Society, Bangalore. “Free Basics gives access to less than 100 of the one billion plus websites on the world wide web. Those in the walled garden will be treated quite differently.”

What gives TRAI a shot in the arm is that, for the first time, academia has put its weight behind Free Basics opponents. In a signed statement, several IIT and IISc Bangalore professors have said that Free Basics won’t serve the purpose FB is proposing and is not good for the country. “The problem is the internet being provided (via Free Basics) is a shrunken and sanitised version of the real thing. Free Basics is not a good proposal for the long-term development of a healthy and democratic internet setup in India,” says Amitabha Bagchi, IIT Delhi professor and one of the signatories to the memo.

Of course, many of the experts Outlook spoke to say that the government, and not FB, should be responsible for providing free internet to the people. Says Parminder Jeet Singh, executive director, IT for Change, “The government is sitting on Rs 40,000 crore of USO funds. It can surely utilise that to provide a free basic data package to people in India. Basic government services and emergency services should essentially be free.” Nilekani is also in favour of the government providing free internet to people. “The internet is a powerful poverty alleviation tool.... Government can do a direct benefit transfer for data, a more market-neutral way of achieving the goal of getting everyone on the internet,” he told Outlook.

Legally, though, there may be issues in stopping FB from introducing its Free Basics platform in India. Says Singh, “Technically, the Indian government may not be able to stop FB from introducing Free Basics in India as it is just a platform. What the government has to do is to stop telcos from collaborating with it for free internet because Indian telcos, not FB, mediate access to the internet.”

The demand for the government and TRAI to come clean on net neutrality has reached fever pitch. Experts like Nilekani feel that net neutrality, which does not allow zero rating and differential pricing based on telcos looking at the contents of the subscriber’s data packets, should be enshrined in law through an act of Parliament, the way countries like the US have done. TRAI has also proposed two models where the internet is provided free initially and charged at a later stage and another where content providers and websites reimburse the cost of browsing directly to consumers. Both these proposals have not found favour with experts who say that these are unworkable and only the government should disburse free internet.

In any case, all this is a matter of detail—important, no doubt. The key question is, what happens to Free Basics if TRAI rules in favour of net neutrality and goes against FB? “This is going to be a long-drawn-out battle as FB will certainly challenge this in court,” says the government official. After spending Rs 300 crore on publicity, there is no way it will roll over and die.

For more details visit https://cis-india.org/internet-governance/news/outlook-february-8-2016-arindam-mukherjee-a-megacorps-basic-instinct

A look at two problematic provisions of the draft Anti-trafficking bill

swaraj — 2018-08-18T09:21:55Z

This post examines two badly drafted provisions of the new Anti-Trafficking bill that have the potential to severely impinge upon the Freedom of Expression, including through a misunderstanding of intermediary liability.

On 28 Feb 2018, the Union Cabinet approved ‘The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018’ (‘the bill’) for introduction to the Parliament. This comes after a series of consultations on an earlier 2016 draft bill, that had faced its fair share of criticism. As per the Press Information Bureau announcement, the Ministry of Women and Child Development met with various stakeholders including 60 NGOs and have incorporated many of the suggestions put forth. They’ve also stated that ‘the new law will make India a leader among South Asian countries to combat trafficking.’

However, at first glance, there appear to be several issues with overbroad or vague language used in the drafting of the bill, that stretch it into potentially problematic areas. This current post will focus on two such provisions that could lead to a deleterious effect on the Freedom of Expression. As the bill is currently not publicly available, a stakeholder’s copy of the draft is being used to source these provisions. The relevant sections have been reproduced below for convenience. (Emphasis in bold is as provided by the author).

Section 39: Buying or Selling of any person

39. (l) Whoever buys or sells any person for a consideration, shall be punished with rigorous imprisonment for a term which shall not be less than seven years but may extend to ten years, and shall also be liable to fine which shall not be less than one lakh rupees.

(2) Whoever solicits or publicises electronically, taking or distributing obscene photographs or videos or providing materials or soliciting or guiding tourists or using agents or any other form which may lead to the trafficking of a person shall be punished with rigorous imprisonment for a term which shall not be less than five years but may extend to ten years, and shall also be liable to fine which shall not be less than fifty thousand rupees but which may extend to one lakh rupees.

The grammatical acrobatics of section 39(2) aside, this anti-solicitation provision is severely problematic in that it mandates punishment even for a vaguely defined action or actions that may not actually be connected to the trafficking of a person. In other words, the provision doesn’t require any of the actions to be connected to trafficking in their intent or even outcome, but only in potential connection to the outcome. At the same time, it says these ‘shall’ be punished!

This vagary that ignores actual or even probabilistic causation flies in the face of standard criminal law which requires mens rea along with actus rea. The excessively wide scope of this badly drafted provision leaves it prone to abuse. For example, currently the provision allows the following interpretation to be included: ‘Whoever publicizes electronically, by providing materials in any form, which may lead to trafficking of a person shall be punished…’. Even the electronic publicizing of an academic study on trafficking could fall under the provision as it currently reads, if it is argued that publishing studies that show the prevalence of trafficking ‘may lead to the trafficking of a person’! It is not hard to imagine that an academic study that shows trafficking numbers at embarrassingly high rates could be threatened with this provision. Similarly, any of our vast number of self-appointed moral guardians could also pull within this provision any artistic work that they may personally find offensive or ‘obscene’. Simply put, without any burden of showing a causal connect, it could be argued that anything ‘may lead’ to the trafficking of a person. Needless to say, this paves the way for a severe chilling effect on free speech, especially on critical speech around trafficking issues.

Section 41: Offences related to media

41. (l) Whoever commits trafficking of a person with the aid of media, including, but not limited to print, internet, digital or electronic media, shall be punished with rigorous imprisonment for a term which shall not be less than seven years but may extend to ten years and shall also be liable to fine which shall not be less than one lakh rupees.

(2) Whoever distributes, or sells or stores, in any form in any electronic or printed form showing incidence of sexual exploitation, sexual assault, or rape for the purpose of exploitation or for coercion of the victim or his family members, or for unlawful gain shall be punished with rigorous imprisonment for a term which shall not be less than three years but may extend to seven years and shall also be liable to fine which shall not be less than one lakh rupees.

The drafters of this bill have perhaps overlooked the fact that unlike the physical world, the infrastructure of the electronic / digital world requires 3rd party intermediaries to handle information during most forms of electronic activities, whether it is transmission, storage or display. As it is not feasible, desirable or even practically possible for intermediaries to verify the legality of every bit of data that gets transferred or stored by the intermediary, ‘safe harbours’ are provided in law for intermediaries, protecting them from liability of the information being transmitted through them. These ensure that entities that act as architectural requirements and intermediary platforms are able to operate smoothly and without fear. If intermediaries are not granted this protection, it puts them in the unenviable position of having to monitor un-monitorable amounts of data, and face legal action for the slip-ups that are bound to happen regularly. Furthermore, there are several levels of free speech and privacy issues associated with having multiple gatekeepers on the expression of speech online. A charitable reading of the intent of a provision which does not recognise safe harbours for 3rd party intermediaries, would be that the drafters of the bill have simply not realised that users who upload and initiate transfer of information online, are not the same parties who do the actual transmission of the information.

Distribution, selling or storing of information online would require the transmission of information over intermediaries, as well as the temporary storage of such information on intermediary platforms. In India, intermediaries engaging with transmission or temporary storage of information are provided safe harbour[1] by Section 79 of the Information Technology Act, 2000 (‘IT Act’), so long as they:

(i) act as a mere ‘conduit’ and do not initiate the transmission, select the receiver of the transmission, or select or modify the information contained in the transmission.

(ii) exercise due diligence while discharging duties under this Act, and observes other guidelines that the Central Government may prescribe.

The Information Technology (Intermediary Guidelines) Rules, 2011, list out the nature of the due diligence to be followed by intermediaries to claim exemption under Section 79 of the IT Act.

Intermediaries will not be granted safe harbour if they have conspired, abetted, aided or induced commission of the unlawful act, or if they do not remove or disable access to information upon receiving actual knowledge, or notice from the Government, of the information that is transmitted or stored by the intermediary being used for unlawful purposes.

Thus it can be seen that the IT Act already provides an in-depth regime for intermediary liability, and given its non-obstante clause which states that Section 79 of the IT Act would apply “Notwithstanding anything contained in any law for the time being in force” , as well as the reiteration of the IT Act’s overriding effect via Section 81, which states that the provisions of the Act ‘shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force’ (barring the exercise of copyright or patent rights), it is generally considered the appropriate legal framework for this issue. However, it appears that the drafters of the 2018 Anti-trafficking bill have not considered this aspect at all, since they have not referenced the IT Act in this context in the bill, and have additionally added their own non-obstante clause in Section 59 of the bill:

59. The provisions of this Act, shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency.

So the regime as prescribed by the IT Act allows for safe harbours, whereas the regime as prescribed by the Anti-Trafficking bill does not allow for safe harbours, and both say that they would an overriding effect for any conflicting law. This legislative bumble could potentially be solved by using the settled principle that a special Act prevails over a general legislation. This is still a little tricky as they are technically both special Acts. It could be argued that given the context of the Anti-trafficking bill as focusing on trafficking, and the context of the IT Act focusing on the interface of law and technology, that for the purposes of Section 41(2) of the Anti-trafficking bill, the IT Act is the special legislation. And thus Section 79 of the IT Act should make redundant the relevant portion of Section 41(2) of the Anti-trafficking bill. This reading would require the bill to be modified so as to remove the redundancy and the conflicting portion of Section 41(2).

[1] In 2016, a division bench of the Delhi High Court held in the case of Myspace Inc vs Super Cassettes Industries Ltd that a safe harbour immunity for intermediaries was necessary as it was not technically feasible to pre-screen content from third parties, and that tasking intermediaries with this responsibility could have a chilling effect on free speech, It held that their responsibility was limited to the extent of acting upon receiving ‘actual knowledge’. Earlier, in determining what ‘actual knowledge’ refers to, in 2015 the Supreme Court of India in the landmark case of Shreya Singhal vs Union of India, required this to be in the form of a notice via a court or government order. Thus under our current law, intermediaries are granted a safe harbour from liability so long as they act upon court or government orders which notify them of content that is required to be taken down.

Clarification (18th August, 2018): A letter sent to the Ministry of Women and Child Development mentioned the Centre for Internet & Society as instituionally endorsing a critique of the The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018. We seek to clarify that the Centre for Internet & Society did not endorse the letter to the Ministry.

For more details visit https://cis-india.org/internet-governance/blog/a-look-at-two-problematic-provisions-of-the-draft-anti-trafficking-bill

A Deep Dive into Content Takedown Timeframes

torsha — 2020-06-26T11:59:06Z

Since the 1990s, internet usage has seen a massive growth, facilitated in part, by growing importance of intermediaries, that act as gateways to the internet. Intermediaries such as Internet Service Providers (ISPs), web-hosting providers, social-media platforms and search engines provide key services which propel social, economic and political development. However, these developments are also offset by instances of users engaging with the platforms in an unlawful manner. The scale and openness of the internet makes regulating such behaviour challenging, and in turn pose several interrelated policy questions.

In this report, we will consider one such question by examining the appropriate time frame for an intermediary to respond to a government content removal request. The way legislations around the world choose to frame this answer has wider ramifications on issues of free speech and ease of carrying out operations for intermediaries. Through the course of our research, we found, for instance:

An one-size-fits-all model for illegal content may not be productive. The issue of regulating liability online contain several nuances, which must be considered for more holistic law-making. If regulation is made with only the tech incumbents in mind, then the ramifications of the same would become incredibly burdensome for the smaller companies in the market.
Determining an appropriate turnaround time for an intermediary must also consider the nature and impact of the content in question. For instance, the Impact Assessment on the Proposal for a Regulation of the European Parliament and of the Council on preventing the dissemination of terrorist content online cites research that shows that one-third of all links to Daesh propaganda were disseminated within the first one-hour of its appearance, and three-fourths of these links were shared within four hours of their release. This was the basic rationale for the subsequent enactment of the EU Terrorism Regulation, which proposed an one-hour time-frame for intermediaries to remove terrorist content.
Understanding the impact of specific turnaround times on intermediaries requires the law to introduce in-built transparency reporting mechanisms. Such an exercise, performed periodically, generates useful feedback, which can be, in turn used to improve the system.

Corrigendum: Please note that in the section concerning 'Regulation on Preventing the Dissemination of Terrorist Content Online', the report mentions that the Regulation has been 'passed in 2019'. At the time of writing the report, the Regulation had only been passed in the European Parliament, and as of May 2020, is currently in the process of a trilogue.

Disclosure: CIS is a recipient of research grants from Facebook India.

Click to download the research paper by Torsha Sarkar (with research assistance from Keying Geng and Merrin Muhammed Ashraf; edited by Elonnai Hickok, Akriti Bopanna, and Gurshabad Grover; inputs from Tanaya Rajwade)

For more details visit https://cis-india.org/internet-governance/blog/torsha-sarkar-november-30-2019-a-deep-dive-into-content-takedown-timeframes

हेट स्पीच

Yash Mittal — 2018-09-07T06:25:37Z

रोहित शर्मा द्वारा संपादित

समाजीकरण और मनोरंजन से गृह-कार्य तक, आज के युग में इंटरनेट युवाओं के लिए जीवन का एक अनिवार्य हिस्सा बन चुका है। यह लोगों को एक दूसरे से जोड़ने और उनसे सीखने के लिए बड़े अवसर प्रदान करता है। परंतु, इसकेबावजूद इंटरनेट में समाज में कई नकारात्मक प्रभाव बनाने की क्षमता है ।इंटरनेट घृणित व हिंसक प्रचार करने के लिए चरमपंथियों को शक्तिशाली उपकरण भी प्रदान करता है, जो वैश्विक स्तर पर कट्टरपंथी समुदायों के सृजन एवं कट्टरपंथीकरण को बढ़ावा देता है।

हेट स्पीच अभिव्यक्ति तथा व्यक्तिगत, समूह और अल्पसंख्यकों के अधिकारों की आज़ादी के साथ एक जटिल गठबंधन में निहित है। इसके साथ साथ हेट स्पीच गरिमा, स्वतंत्रता और समानता की अवधारणाओं का भी समावेश है । इसकी परिभाषा अक्सर विवादास्पद रही है। राष्ट्रीय और अंतरराष्ट्रीय कानून में, घृणास्पद भाषण उन अभिव्यक्तियों को संदर्भित करता है जो उत्तेजना से नुकसान पहुंचाने के (विशेष रूप से, भेदभाव, शत्रुता या हिंसा) हिमायती रहे है। इस बदलाव का प्रयोजन एक निश्चित सामाजिक या जनसांख्यिकीय समूह के साथ पहचाना जा रहा है। वह भाषण इसमें शामिल हो सकते हैं, जो हिंसक कृत्यों की वकालत करते हैं, धमकाते हैं, या प्रोत्साहित करते हैं। कुछ समूहों के लिए, हालांकि, इसकी संकल्पना उन अभिव्यक्तियों तक भी फैली हुई है जो पक्षपात और असहिष्णुता के माहौल को बढ़ावा देती है और भेदभाव, शत्रुता और हिंसक हमलों को बढ़ावा दे सकता है।

आम तौर पर, हेट स्पीच की परिभाषा विस्तृत है, कभी-कभी उन शब्दों को शामिल करके इसकी परिभाषा का विस्तार किया जाता है, जो अधिकतर उच्च पदों पर बैठे व्यक्तियों के लिए अपमान-जनक सिद्ध होते हैं। , घृणास्पद भाषण की संकल्पना के साथ छेड़छाड़ की संभावना विशेष रूप से महत्वपूर्ण समय पर, जैसे कि चुनाव के दौरान होती है। यहाँ तक की आरोप यह भी लगता है कि हेट स्पीच का उपयोग राजनैतिक विरोधी व सत्ता में बैठे लोगों द्वारा एक दूसरे के प्रति असीमित अंसतोष व आलोचना को जन्म देने के लिए भी किया जाता है।

ऑनलाइन हेट स्पीच का प्रसार एक नूतन और तेज़ी से विकसित घटना है और इसकी महत्वता,

प्रभाव और परिणामों को समझने के लिए सामूहिक प्रयासों की आवश्यकता है।

हेट स्पीच के प्रचार-प्रसार में सोशल मीडिया की भूमिका:

गौरतलब है पिछले कुछ समय में हेट स्पीच के प्रचार प्रसार में [WU1] सोशल मीडिया मुख्यतः एक नए औज़ार के रूप में उभरा हैI यह भयप्रद औजार प्रमुखता से धर्म के आधार पर नफरत फैलाने का काम कर रहा है। इसका उपयोग उपद्रवी तत्वों द्वारा प्रचार-प्रसार के घिनौनें तरकीबों से समाज की एकता और शांति में विघ्न उत्पन्न करने के लिए होता है।समाज की शांति को भंग कुछ इस प्रकार किया जाता है, जिससे इसके स्रोत व उपयोगकर्ता की जानकारी सुनिश्चित करना नामुमकिन सा साबित होता है।

इंटरनेट पर वार्तालाप, विशेषतःसोशल मीडिया पर, अक्सर उन बातचीत की प्रतिबिंब होती है जो बातें ऑफ़-लाइन होती है। हालांकि, ऑनलाइन बातचीत का एक लाभ यह होता है की यह आपके आस-पास मौजूद लोगों के एक छोटे समूह तक सीमित नहीं होती। भूगोल और समय की बाधाएं ऑनलाइन बातचीत में मौजूद नहीं हैं, क्योंकि कोई भी व्यक्ति, किसी भी समय ऑनलाइन बातचीत में शामिल हो सकता है और इस चर्चा में अपने विचारों का योगदान कर सकता है ।

वर्ल्ड बैंक रिपोर्ट 2016 के अनुसार ,भारत में हेट स्पीच के प्रचार-प्रसार में सोशल मीडिया का बहुत ही अहम योगदान है, जिसका कारण भारत की दुनिया की इंटरनेट सेवा की उपयोगिता में 30% हिस्सेदारी है। ) द नेक्स्ट वेब रिपोर्ट 2017 के अनुसार विश्व की अग्रणी सोशल नेटवर्किंग वेबसाइट, फेसबुक का उपभोक्ता आधार भारत में 24 करोड़ के आंकड़े को पार कर चुका है। )।

इसके अतिरिक्त यरल रिपोर्ट 2016 के अनुसार, 13.6 करोड़ भारतीय सोशल मीडिया प्लैटफ़ार्म पर अपनी सक्रियता दर्ज करवा रहे हैI

अगर सोशल मीडिया प्लेटफार्म की बात की जाए, तो व्हाट्सअप के महत्व को कम आंकना मुनासिब नहीं होगा I इसका मतलब यह है की वर्त्तमान में युवाओं की कार्यशैली में व्हाट्सएप के उपयोगिता को अन-देखा नहीं कर सकते हैं, जो मैशबल संस्था, 2017 के अनुसार भारत में 20 करोड़ से अधिक उपयोगकर्ताओं तक पहुंच गया है। इसका मतलब है कि भारत में 20 करोड़ उपभोक्ता व्हाट्सएप में दैनिक आधार पर संदेशों का आदान-प्रदान कर रहे हैं। इस प्रकार, संचार के सबसे लोकप्रिय चैनलों के रूप में से एक, सोशल मीडिया हेट स्पीच से लड़ने के साथ साथ बढावा देने में महत्वपूर्ण भूमिका निभा रहा है। वास्तव में, यह एक शक्तिशाली उपकरण है जो टेलीविजन के रूप में अपने ऑडियो-विजुअल के फायदों के साथ निहित है।

वर्ष 2015 में पिउ रिसर्च सेंटर की रिपोर्ट के अनुसार भारत सामाजिक शत्रुता सूचकांक में चौथे स्थान पर आता है(10 में से 8.7 सूचकांक मूल्य)I इस मूल्यांकन के अनुसार भारत से ख़राब मात्र 3 देश क्रमशः सीरिया, नाइजीरिया और इराक़ हैं । यह भारत में धर्म उन्मुख मुद्दों पर चिन्तनीय स्थिति को दर्शाता है । ।

हालांकि यह प्रवृत्ति भारत तक सीमित नहीं है। यह धार्मिक कट्टरपंथवाद विश्व के कई अन्य देशों में भी दिखाई देता है। पाकिस्तान और बांग्लादेश जैसे दक्षिण एशियाई देशों ने भी, न सिर्फ राज्य बल्कि कट्टरवादी समूहों द्वारा अभिव्यक्ति की आज़ादी को अन-देखा किया है, जो देश, धर्म या समुदायों की रक्षा करने का दावा करते हैं।

भारत में पत्रकारों को उनकी रिपोर्टिंग पर अक्सर मौत की धमकी मिलना व उनके खिलाफ एक नफरत भरा अभियान चला कर उन्हें प्रताड़ित करने की क्रियाएँ आम है, जिसका सीधा साधा प्रतिफल भारत को प्रेस स्वतंत्रता सूचकांक2018 में 180 देशों में 138 वा स्थान मिलना है । लोकतंत्र का चौथा स्तम्भ प्रेस की स्वतंत्रता की बात करता है, जो प्रदर्शित करता है कि प्रेस की स्वतंत्रता के साथ कोई समझौता नहीं होना चाहिए I अगर प्रेस पर सरकारों का नियंत्रण होगा तो वह जनता तक वही समाचार और ख़बरें पहुंचाएगी जो सरकार के हितों की वकालत करते हैं या सरकार को मसीहा के रूप में प्रदर्शित करते हैं। प्रेस से छेड़खानी अप्रत्‍यक्ष रूप से जनता के अधिकारों का उल्लंघन है क्यूंकि स्वतंत्र पत्रकारिता का काम है जनता तक बिना किसी डर या दबाव के सही व सटीक समाचार पहुंचाना जो एक लोकतांत्रिक देश के मूल्यों को दर्शाता है।

हाल ही में हेट स्पीच का तुलनात्मक रूप से उदाहरण लिया जाए तो प्रसिद्ध फ्रीलैनसर पत्रकार राणा अय्युब को 2002 के गुजरात-दंगे पर लिखी किताब ‘गुजरात फाइल्स’ को प्रकाशित करने के बाद से हेट स्पीच का सामना करना पड़ा जिसमें उनके खिलाफ एक स्पष्ट रूप से संघटित सोशल मीडिया अभियान द्वारा उन्हें टारगेट किया गयाI इस अभियान के तहत उनके खिलाफ आरोप लगाया की वह चाइल्ड रेपिस्ट को समर्थन करती हैI

इस के अलावा उनके खिलाफ अस्वीकृत व्यव्हार एवं फूहड़ भाषा का प्रयोग करके उनके साथ बलात्कार करने तक की धमकी दी गयी। राणा अय्युब के अनुसार यह अभियान सीधे सीधे उनके विगतकाल में किये गए स्टिंग ऑपरेशन का प्रभाव है। उन्होंने गुप्त रूप से दर्ज साक्षात्कारों का इस्तेमाल किया था, जो 2002 के गुजरात दंगों को बढ़ाने में नौकरशाहों और राजनेताओं के मेल-जोल के बारे में बताते थेI

इस श्रृंखला में दूसरा उदाहरण एनडीटीवी के वरिष्ठ पत्रकार रवीश कुमार का है, जो अपने बेबाक विश्लेषण के लिए जाने जाते हैंI वह भी पिछले कुछ दिनों से ऑनलाइन ट्रोलिंग का शिकार हो रहे हैं जिसमें उन्हें एक वीडियो मैसेज द्वारा जान से मारने तक की धमकी तक दी गयी जिसे रवीश बताते है कि “यह सब अच्छी तरह से संगठित प्रयास है जिसे राजनीतिक मंजूरी प्रदान है”। हेट स्पीच का उल्लेख ख़ाली पत्रकारों के खिलाफ ही नहीं अपितु बॉलीवुड कलाकारों के खिलाफ भी है I हाल ही में कई दुर्भाग्यपूर्ण प्रदर्शनों मेंदीपिका पादुकोण, रणवीर सिंह और संजय लीला भंसाली को फिल्म पद्मावती पर अत्यधिक नफरत और धमकी भरे संदेश प्राप्त हुए हैं क्योंकि लोगों के एक समूह ने बिना फिल्म देखे यह आंकलन कर लिया कि यह फिल्म उनकी भावनाओं को चोट पहुंचाती है।

ये घटनाएँ पुष्टि करती हैं कि सोशल मीडिया हेट स्पीच बनाने और फैलाने में महत्वपूर्ण भूमिका निभाता हैI और इसका इस्तेमाल हिंसा को उकसानें के स्पष्ट एजेंडे के साथ- साथ सांप्रदायिक और धार्मिक हेट स्पीच को बढ़ावा देने के लिए किया गया है।

ऑनलाइन घृणास्पद भाषण की घटनाओं को वास्तव में रोकने के लिए, एक बड़े अभियान की आवश्यकता है जो लोगों को संवेदनशील बनाकर उनमें बोलने की आज़ादी और नफरत भरे भाषणों के बीच अंतर स्पष्ट करने में मददगार साबित हो सके। इस अभियान के प्रति भागीदारी आपकी और मेरी ही नहीं अपितु प्रत्येक व्यक्ति की ज़िम्मेदारी है कि इंटरनेट पर उपलब्ध सामग्री का उत्पादन व उपभोग आँखों पर पट्टी बाँधकर एक मंद-उपभोक्ता की तरह नहीं अपितु समझदारी एवं बुद्धिमत्ता के साथ करना चाहिए।

ऑनलाइन हेट स्पीच से निपटने के लिए प्रभावी कानून की आवश्यकता:

ऊपर दिए गए दृष्टांत एवं तर्क इस और इशारा करती हैं कि बोलने और अभिव्यक्ति की स्वतंत्रता के लिए हेट स्पीच एक जटिल चुनौती है। भारत के उच्चतम न्यायालय ने भी इस बात को तब महसूस किया जब उन्होंने विधि आयोग की राय-मशविरा मांगी कि किन क़ानूनों से चुनाव आयोग को हेट स्पीच से प्रभावी ढंग से निपटने के लिए सशक्त किया जाए।

ऑनलाइन "हेट स्पीच" के लिए एक अलग कानून तैयार करने की दिशा में गृह मंत्रालय ने विधि आयोग को एक कानूनी मसौदा तैयार करने के लिए लिखा है। इसमें निर्धारित प्रावधान, सोशल मीडिया और ऑनलाइन मैसेजिंग अनु-प्रयोगों के माध्यम से भेजे गए संवेदनशील व भड़काऊ संदेशों से निपटने में उपयोगी होंगे जो सामाजिक विकार को नियंत्रित करेगा।

यह निर्णय तब लिया गया जब पूर्व लोकसभा महासचिव टी के विश्वनाथन की अध्यक्षता में घटित समिति ने ऑनलाइन हेट स्पीच के प्रचार-प्रसार को नियंत्रण में रखने के लिए कड़े कानूनों की सिफ़ारिश की। यह पैनल सूचना प्रोद्योगिकी अधिनियम, 2000 की धारा 66ए के सुप्रीम कोर्ट द्वारा वर्ष 2015 में निरस्त होने के बाद गठन किया गया था ।

मार्च 2017, में विधि आयोग द्वारा सुप्रीम कोर्ट के पूर्व जस्टिस बी एस चौहान की अध्यक्षता में दो नए प्रावधानों को आईपीसी में सम्मालित होने की सिफ़ारिश की गयी जो की प्रवासी भलाई संगठन बनाम यूनियन ऑफ इंडिया 2014 में सुप्रीम कोर्ट द्वारा दिए गए आदेश पर कार्य कर रहा था। इसमे कोर्ट ने स्पष्ट रूप से कहा की हेट स्पीच को समानता के अधिकार के शीशे से देखा जाना चाइए, और बताया की हेट स्पीच को केवल एक व्यक्ति के खिलाफ अपमानजनक स्पीच के रूप में नहीं देखा जाना चाहिए बल्कि यह कुछ समूहों के भीतर शामिल व्यक्तियों को भी भेदभाव या हिंसा के लिए उत्तेजित करता है जो उस समूह की प्रतिष्ठा पर सवालिया निशान खड़ा करता है।

आयोग द्वारा सुझाए गए आपराधिक कानून (संशोधन) विधेयक, 2017 के अनुसार आईपीसी में धारा 153 सी और धारा 505 ए को सम्मलित करने और आपराधिक प्रक्रिया संहिता में आवश्यक परिवर्तन करने का प्रस्ताव है।

प्रस्तावित धारा 153 सी (बी) आईपीसी- नफरत को प्रोत्साहित करने पर 'सिफ़ारिश करती है कि अपराध करने पर दो साल की कारावास और ₹ 5,000 जुर्माना या दोनों ही दंडनीय होंगे।

प्रस्तावित कानून कहता है, "जो भी धर्म, जाति, या समुदाय, लिंग, लिंग पहचान, यौन अभिविन्यास, जन्म स्थान, निवास, भाषा, विकलांगता या जनजाति के आधार पर संचार के किसी भी साधन का उपयोग करता है - (ए) गंभीर चोट या चेतावनी का डर पैदा करने के इरादे से किसी भी व्यक्ति या व्यक्तियों के समूह को धमकाने के लिए; या (बी) वकालत करता है किसी भी व्यक्ति या व्यक्तियों के समूह की ओर घृणा पैदा करने की या जो अपराध करने के लिए उत्तेजना का कारण बनता है।"

दूसरा जोड़ा जाने वाला प्रस्तावित प्रावधान धारा 505 आईपीसी कहता है, "जो कोई भी जानबूझकर सार्वजनिक रूप से उन शब्दों का उपयोग करता है, या किसी भी लेखन, चिन्ह, या अन्य दृश्य-मान को प्रदर्शित करता है जो गंभीर रूप से खतरनाक, या अपमान-जनक है; (i) किसी व्यक्ति की सुनवाई या दृष्टि के भीतर, भय या चेतावनी, या; (ii) गैर-कानूनी हिंसा के उपयोग को उत्तेजित करने के इरादे से, उस व्यक्ति या किसी अन्य के खिलाफ, उसके लिए एक वर्ष की कारावास या रु 5000 जुर्माना और दोनों लगाया जा सकता है।“

ऑनलाइन हेट स्पीच के प्रचार-प्रसार को रोकने के लिए अन्य कुछ कदम:

1) जर्मनी का कानून एक विनियनमक मॉडल के रूप में स्वीकार किया जा सकता है:

वर्ष 2017 में जर्मनी में नया कानून पारित किया गया जिसके अंतर्गत कंपनियों को 24 घंटो के भीतर हेट स्पीच से संबंधित सभी सामग्री हटाने का दायित्व है। इस कानून के जवाब में इसके मात्र सोशल नेटवर्किंग साइट फ़ेसबुक ने ही 1,200 लोगों की भर्तियाँ की ताकि जर्मन नागरिकों द्वारा इसके दुरुपयोग का प्रभावी ढंग से पता लगाया जा सके और इसे हटाया जा सके। अगर कंपनी अपने कार्य में असफल होती है, तो नियामक संस्था उस कंपनी पर $79 मिलियन(करीब 545 अरब) का जुर्माना लगा सकता है।

2) आर्टिफ़िश्यल इंटेलिजेंस का उपयोग:

एन्टीसेमिटिजम साइबर निगरानी प्रणाली एक ऐसा उपकरण है जो सोशल मीडिया पर एन्टीसेमिटिजम (यहूदी विरोधी भावना) की जांच करता है, यह इजरायली डायस्पोरा अफेयर्स मिनिस्टरी द्वारा निर्मित है और यह मार्च 2018 में सम्पन्न हुई ग्लोबल फोरम फॉर कोम्बाटिंग एन्टीसेमिटिजम की बैठक में प्रमोचित किया जा चुका है।

यह उपकरण मूल-पाठ के विश्लेषण के लिए उपयोग किया जाता है जो शब्दों, वाक्यांशों और प्रतीकों के लिए सोशल मीडिया साइटों को खोज कर काम करता है जिन्हें संभावित एंटीसेमेटिक सामग्री के संकेत के रूप में पहचाना गया है। उपकरण फिर सामग्री की समीक्षा करता है और इंटरेक्टिव ग्राफ़ उत्पन्न करता है।

निष्कर्ष:

ऑनलाइन दुष्प्रचार समाज की शांति व एकता को खंडित करने के लिए एक नए शत्रु के रूप में जन्मा है, पिछले 10 वर्षो में भारतीयों की इंटरनेट पर सक्रियता व सोशल मीडिया नेटवर्किंग साइट से जुड़ाव इस बात का संकेत है कि भविष्य में संपूर्ण विश्व में इंटरनेट क्रांति भारत से ही प्रज्ज्वलित होगी। यूं तो समाज में दुष्प्रचार व घृणा फैलाने के लिए तमाम तरकीब है, पर ऑनलाइन तकनीक का सहारा लेकर कुछ असामाजिक तत्व अपने कट्टरपंथी सिद्धांतों को न छोड़कर समाज को बांटने का काम करते हैंIयह आम तौर पर चुनावों के दौरान एक धर्म को दूसरे धर्म से लड़वाने का काम करते हैं जिससे चुनावों में वोटों का ध्रुवीकरण हो सके और इनकी मनचाही राजनैतिक पार्टी को इसका फायदा मिल सके। सबसे बड़े खेद की बात ये है कि इस हेट स्पीच में सभी राजनैतिक दल कहीं न कहीं लिप्त है। और अंत में इस पूरे प्रकरण में सबसे बड़ा नुकसान भारत की जनता वहन करती है।

दुनियाभर में एक दूसरे को संयोजित रखने में इंटरनेट अपनी बड़ी भूमिका अदा कर रहा है, पर समाज में शांति, स्थिरता व एकता को संजोये रखने में यह एक चुनौती भी खड़ी कर रहा है। इसका मुख्य कारण यह है इंटरनेट वह माध्यम है जो चंद पलों में अफ़वाहों के बाज़ार को गर्म कर सकता हैI और यही गर्मी आग का भयावह रूप लेकर समाज को भड़काने के लिए काफी होती है जिसके उपरांत समाज कई गुटों में टूटकर खोखला हो जाता है। यह भयावह स्थिति अधिकांश घटनाओं में मनुष्य के नियंत्रण के बाहर होती है। इसलिए हमे इंटरनेट का उपयोग समाज के उत्थान के लिए करना चाहिए ना कि उसके वित्थान के लिए।

For more details visit https://cis-india.org/internet-governance/93994791f-93894d92a94091a

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