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Donald Trump is attacking the social media giants; here’s what India should do differently
https://cis-india.org/internet-governance/blog/donald-trump-is-attacking-the-social-media-giants-here2019s-what-india-should-do-differently
<b>For a robust and rights-respecting public sphere, India needs to ensure that large social media platforms receive adequate protections, and are made more responsible to its users.</b>
<p>This piece was first published at <a class="external-link" href="https://scroll.in/article/965151/donald-trump-is-attacking-the-social-media-giants-heres-what-india-should-do-differently">Scroll</a>. The authors would like to thank Torsha Sarkar for reviewing and editing the piece, and to Divij Joshi for his feedback.</p>
<hr />
<div id="article-contents" class="article-body">
<p>In retaliation to Twitter <a class="link-external" href="https://www.nytimes.com/2020/05/26/technology/twitter-trump-mail-in-ballots.html" rel="nofollow noopener" target="_blank">labelling</a> one of US President Donald Trump’s tweets as being misleading, the White House signed an <a class="link-external" href="https://www.whitehouse.gov/presidential-actions/executive-order-preventing-online-censorship/" rel="nofollow noopener" target="_blank">executive order</a>
on May 28 that seeks to dilute protections that social media companies
in the US have with respect to third-party content on their platforms.</p>
<p>The
order argues that social media companies that engage in censorship stop
functioning as ‘passive bulletin boards’: they must consequently be
treated as ‘content creators’, and be held liable for content on their
platforms as such. The shockwaves of the decision soon reached India,
with news coverage of the event <a class="link-external" href="https://www.business-standard.com/article/companies/trump-twitter-spat-debate-rages-on-role-of-social-media-companies-120053100055_1.html" rel="nofollow noopener" target="_blank">starting</a> to <a class="link-external" href="https://economictimes.indiatimes.com/tech/internet/feud-between-donald-trump-and-jack-dorsey-can-have-long-lasting-effects-on-how-we-consume-media-in-india/articleshow/76111556.cms" rel="nofollow noopener" target="_blank">debate</a> the <a class="link-external" href="https://economictimes.indiatimes.com/tech/internet/trumps-move-against-social-media-cos-unlikely-to-change-indias-stand/articleshow/76094586.cms?from=mdr" rel="nofollow noopener" target="_blank">consequences</a> of Trump’s order on how India regulates internet services and social media companies.</p>
<p>The
debate on the responsibilities of online platforms is not new to India,
and recently took main stage in December 2018 when the Ministry of
Electronics and Information Technology, Meity, published a draft set of
guidelines that most online services – ‘intermediaries’ – must follow.
The draft rules, which haven’t been notified yet, propose to
significantly expand the obligations on intermediaries.</p>
<p>Trump’s
executive order, however, comes in the context of content moderation
practices by social media platforms, i.e. when platforms censor speech
of their volition, and not because of legal requirements. The legal
position of content moderation is relatively under-discussed, at least
in legal terms, when it comes to India.</p>
<p>In contrast to
commentators who have implicitly assumed that Indian law permits content
moderation by social media companies, we believe Indian law fails to
adequately account for content moderation and curation practices
performed by social media companies. There may be adverse consequences
for the exercise of freedom of expression in India if this lacuna is not
filled soon.</p>
<h3 class="cms-block cms-block-heading">India vs US<br /></h3>
<p>A
useful starting point for the analysis is to compare how the US and
India regulate liability for online services. In the US, Section 230 of
the Communications Decency Act provides online services with broad
immunity from liability for third party content that they host or
transmit.</p>
<p>There are two critical components to what is generally referred to as Section 230.</p>
<p>First,
providers of an ‘interactive computer service’, like your internet
service provider or a company like Facebook, will not be treated as
publishers or speakers of third-party content. This system has allowed
the internet speech and economy to <a class="link-external" href="https://law.emory.edu/elj/content/volume-63/issue-3/articles/how-law-made-silicon-valley.html" rel="nofollow noopener" target="_blank">flourish</a>
since it allows companies to focus on their service without a constant
paranoia for what users are transmitting through their service.</p>
<p>The
second part of Section 230 states that services are allowed to moderate
and remove, in ‘good faith’, such third-party content that they may
deem offensive or obscene. This allows for online services to instate
their own community guidelines or content policies.</p>
<p>In India,
section 79 of the Information Technology Act is the analogous provision:
it grants intermediaries conditional ‘safe harbour’. This means
intermediaries, again like Facebook or your internet provider, are
exempt from liability for third-party content – like messages or videos
posted by ordinary people – provided their functioning meets certain
requirements, and they comply with the allied rules, known as
Intermediary Guidelines.</p>
<p>The notable and stark difference between
Indian law and Section 230 is that India’s IT Act is largely silent on
content moderation practices. As Rahul Matthan <a class="link-external" href="https://www.livemint.com/opinion/columns/shield-online-platforms-for-content-moderation-to-work-11591116270685.html" rel="nofollow noopener" target="_blank">points out</a>,
there is no explicit allowance in Indian law for platforms to take down
content based on their own policies, even if such actions are done in
good faith.</p>
<h3 class="cms-block cms-block-heading">Safe harbour</h3>
<div> </div>
<p>One
may argue that the absence of an explicit permission does not
necessarily mean that any platform engaging in content moderation
practices will lose its safe harbour. However, the language of Section
79 and the allied rules may even create room for divesting social media
platforms of their safe harbour.</p>
<p>The first such indication is
that the conditions to qualify for safe harbour, intermediaries must not
modify said content, not select the recipients of particular content,
and take information down when it is brought to their notice by
governments or courts.</p>
<p>Most of the conditions are almost a
verbatim copy of a ‘mere conduit’ as defined by the EU Directive on
E-Commerce, 2000. This definition was meant to encapsulate the
functioning of services like infrastructure providers, which transmit
content without exerting any real control. Thus, by adopting this
definition for all intermediaries, Indian law mostly considers internet
services, even social media platforms, to be passive plumbing through
which information flows.</p>
<p>It is easy to see how this narrow conception of online services is severely <a class="link-external" href="https://georgetownlawtechreview.org/wp-content/uploads/2018/07/2.2-Gilespie-pp-198-216.pdf" rel="nofollow noopener" target="_blank">lacking</a>.</p>
<p>Most prominent social media platforms <a class="link-external" href="http://guidelines." rel="nofollow noopener" target="_blank">remove</a> or <a class="link-external" href="https://techcrunch.com/2019/12/16/instagram-fact-checking/" rel="nofollow noopener" target="_blank">hide</a> content, <a class="link-external" href="https://about.fb.com/news/2016/06/building-a-better-news-feed-for-you/" rel="nofollow noopener" target="_blank">algorithmically curate</a> news-feeds to make users keep coming back for more, and increasingly add <a class="link-external" href="https://blog.twitter.com/en_us/topics/product/2020/updating-our-approach-to-misleading-information.html" rel="nofollow noopener" target="_blank">labels</a>
to content. If the law is interpreted strictly, these practices may be
adjudged to run afoul of the aforementioned conditions that
intermediaries need to satisfy in order to qualify for safe harbour.</p>
<h3 class="cms-block cms-block-heading">Platforms or editors?<br /></h3>
<p>For
instance, it can be argued that social media platforms initiate
transmission in some form when they pick and ‘suggest’ relevant
third-party content to users. When it comes to newsfeeds, neither the
content creator nor the consumer have as much control over how their
content is disseminated or curated as much as the platform does. By
curating newsfeeds, social media platforms can be said to essentially
‘selecting the receiver’ of transmissions.</p>
<p>The Intermediary
Guidelines further complicate matters by specifically laying out what is
not to be construed as ‘editing’ under the law. Under rule 3(3), the
act of taking down content pursuant to orders under the Act will not be
considered as ‘editing’ of said content.</p>
<p>Since the term ‘editing’
has been left undefined beyond the negative qualification, several
social media intermediaries may well qualify as editors. They use
algorithms that curate content for their users; like traditional news
editors, these algorithms use certain <a class="link-external" href="https://www.researchgate.net/profile/Michael_Devito/publication/302979999_From_Editors_to_Algorithms_A_values-based_approach_to_understanding_story_selection_in_the_Facebook_news_feed/links/5a19cc3d4585155c26ac56d4/From-Editors-to-Algorithms-A-values-based-approach-to-understanding-story-selection-in-the-Facebook-news-feed.pdf" rel="nofollow noopener" target="_blank">‘values’</a>
to determine what is relevant to their audiences. In other words, one
can argue that it is difficult to draw a bright line between editorial
and algorithmic acts.</p>
<p>To retain their safe harbour, the
counter-argument that social media platforms can rely is the fact that
Rule 3(5) of the Intermediary Guidelines requires intermediaries to
inform users that intermediaries reserve the right to take down user
content that relates to a wide of variety of acts, including content
that threatens national security, or is “[...] grossly harmful,
harassing, blasphemous, [etc.]”.</p>
<p>In practice, however, the
content moderation practices of some social media companies may go
beyond these categories. Additionally, the rule does not address the
legal questions created by these platforms’ curation of news-feeds.</p>
<p>The
purpose of highlighting how Section 79 treats the practices of social
media platforms is not with the intention of arguing that these
platforms should be held liable for user-generated content. Online
spaces created by social media platforms have allowed for individuals to
express themselves and participate in political organisation and <a class="link-external" href="https://www.pewresearch.org/internet/2018/07/11/public-attitudes-toward-political-engagement-on-social-media/" rel="nofollow noopener" target="_blank">debate</a>.</p>
<p>A
level of protection of intermediaries from immunity is therefore
critical for the protection of several human rights, especially the
right to freedom of speech. This piece only serves to highlight that
section 79 is antiquated and unfit to deal with modern online services.
The interpretative dangers that exist in the provision create regulatory
uncertainty for organisations operating in India.</p>
<h3 class="cms-block cms-block-heading">Dangers to speech<br /></h3>
<p>These dangers may not just be theoretical.</p>
<p>Only last year, Twitter CEO Jack Dorsey was <a class="link-external" href="https://www.hindustantimes.com/india-news/twitter-ceo-jack-dorsey-summoned-by-parliamentary-panel-on-feb-25-panel-refuses-to-hear-other-officials/story-8x9OUbNBo36uvp92L5nOKI.html" rel="nofollow noopener" target="_blank">summoned</a>
by the Parliamentary Committee on Information Technology to answer
accusations of the platform having a bias against ‘right-wing’ accounts.
More recently, BJP politician Vinit Goenka <a class="link-external" href="https://www.medianama.com/2020/06/223-vinit-goenka-twitter-khalistan/" rel="nofollow noopener" target="_blank">encouraged people to file cases against Twitter</a> for promoting separatist content.</p>
<p>Recent <a class="link-external" href="https://sflc.in/sites/default/files/reports/Intermediary_Liability_2_0_-_A_Shifting_Paradigm.pdf" rel="nofollow noopener" target="_blank">interventions</a>
from the Supreme Court have imposed proactive filtration and blocking
requirements on intermediaries, but these have been limited to
reasonable restrictions that may be imposed on free speech under Article
19 of India’s Constitution. Content moderation policies of
intermediaries like Twitter and Facebook go well beyond the scope of
Article 19 restrictions, and the apex court has not yet addressed this.</p>
<p>The
Delhi High Court, in Christian Louboutin v. Nakul Bajaj, has already
highlighted criteria for when e-commerce intermediaries can stake claim
to Section 79 safe harbour protections based on the active (or passive)
nature of their services. While the order came in the context of
intellectual property violations, nothing keeps a court from similarly
finding that Facebook and Twitter play an ‘active’ role when it comes to
content moderation and curation.</p>
<p>These companies may one day
find the ‘safe harbour’ rug pulled from under their feet if a court
reads section 79 more strictly. In fact, judicial intervention may not
even be required. The threat of such an interpretation may simply be
exploited by the government, and used as leverage to get social media
platforms to toe the government line.</p>
<h3 class="cms-block cms-block-heading">Protection and responsibility<br /></h3>
<p>Unfortunately,
the amendments to the intermediary guidelines proposed in 2018 do not
address the legal position of content moderation either. More recent
developments <a class="link-external" href="https://www.medianama.com/2020/04/223-meity-information-technology-act-amendments/" rel="nofollow noopener" target="_blank">suggest</a>
that the Meity may be contemplating amending the IT Act. This presents
an opportunity for a more comprehensive reworking of the Indian
intermediary liability regime than what is possible through delegated
legislation like the intermediary rules.</p>
<p>Intermediaries, rather
than being treated uniformly, should be classified based on their
function and the level of control they exercise over the content they
process. For instance, network infrastructure should continue to be
treated as ‘mere conduits’ and enjoy broad immunity from liability for
user-generated content.</p>
<p>More complex services like search engines
and online social media platforms can have differentiated
responsibilities based on the extent they can contextualise and change
content. The law should carve out an explicit permission to platforms to
moderate content in good faith. Such an allowance should be accompanied
by outlining best practices that these platforms can follow to ensure <a class="link-external" href="https://santaclaraprinciples.org/" rel="nofollow noopener" target="_blank">transparency and accountability</a> to their users.</p>
<p>For
a robust and rights-respecting public sphere, India needs to ensure
that large social media platforms receive adequate protections, and are
made more responsible to its users.</p>
<p><em>Anna Liz Thomas is a law
graduate and a policy researcher, currently working with the Centre for
Internet and Society. Gurshabad Grover manages research in the freedom
of expression and internet governance team at CIS</em>.</p>
</div>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/donald-trump-is-attacking-the-social-media-giants-here2019s-what-india-should-do-differently'>https://cis-india.org/internet-governance/blog/donald-trump-is-attacking-the-social-media-giants-here2019s-what-india-should-do-differently</a>
</p>
No publisherAnna Liz Thomas and Gurshabad GroverContent takedownFreedom of Speech and ExpressionIntermediary Liability2020-06-25T09:07:52ZBlog EntryICANN takes one step forward in its human rights and accountability commitments
https://cis-india.org/internet-governance/blog/article-19-akriti-bopanna-and-ephraim-percy-kenyanito-december-16-2019-icann-takes-one-step-forward-in-its-human-rights-and-accountability-commitments
<b>Akriti Bopanna and Ephraim Percy Kenyanito take a look at ICANN's Implementation Assessment Report for the Workstream 2 recommendations and break down the key human rights considerations in it. Akriti chairs the Cross Community Working Party on Human Rights at ICANN and Ephraim works on Human Rights and Business for Article 19, leading their ICANN engagement.</b>
<p style="text-align: justify;">The article was first<a class="external-link" href="https://www.article19.org/resources/blog-icann-takes-one-step-forward-in-its-human-rights-and-accountability-commitments/"> published on Article 19</a> on December 16, 2019</p>
<hr style="text-align: justify;" />
<p style="text-align: justify;">ICANN is the international non-profit organization that brings together various stakeholders to create policies aimed at coordinating the Domain Name System. Some of these stakeholders include representatives from government, civil society, academia, the private sector, and the technical community.</p>
<p style="text-align: justify;">During the recently concluded 66th International Meeting of the Internet Corporation for Assigned Names and Numbers (ICANN) in Montreal (Canada); the ICANN board adopted by consensus the recommendations contained within the Work Stream 2 (WS2) Final Report. This report was generated as part of steps towards accountability after the September 30th 2016 U.S. government handing over of its unilateral control over ICANN, through its previous stewardship role of the Internet Assigned Names and Numbers Authority (IANA).</p>
<p style="text-align: justify;">The Workstream 2 Recommendations on Accountability are seen as a big step ahead in the incorporation of human rights in ICANN’s various processes, with over 100 recommendations on aspects ranging from diversity to transparency. An Implementation Team has been constituted which comprises the Co-chairs and the rapporteurs from the WS2 subgroups. They will primarily help the ICANN organization in interpreting recommendations of the groups where further clarification is needed on how to implement the same. As the next step, an Implementation Assessment Report has recently been published which looks at the various resources and steps needed. The steps are categorized into actions meant for one of the 3; the ICANN Board, Community and the ICANN organization itself. These will be funded by ICANN’s General Operating Fund, the Board and the org.</p>
<p style="text-align: justify;">The report is divided into the following 8 issues: 1) Diversity, 2) Guidelines for Good Faith, 3) Recommendations for a Framework of Interpretation for Human Rights, 4) Jurisdiction of Settlement of Dispute Issues, 5) Recommendations for Improving the ICANN Office of the Ombudsman, 6) Recommendations to increase SO/ AC Accountability, 7) Recommendations to increase Staff Accountability and 8) Recommendations to improve ICANN Transparency.</p>
<p style="text-align: justify;">This blog will take a look at the essential human rights related considerations of the report and how the digital rights community can get involved with the effectuation of the recommendations.</p>
<p style="text-align: justify;"><strong>Diversity</strong></p>
<p style="text-align: justify;">The core issues concerning the issue of diversity revolve around the need for a uniform definition of the parameters of diversity and a community discussion on the ones already identified; geographic representation, language, gender, age, physical disability, diverse skills and stakeholder constituency. An agreed upon definition of all of these is necessary before its Board approval and application consistently through the various parts of ICANN. In addition, it is also required to formulate a standard template for diversity data collection and report generation. This sub group’s recommendations are estimated to be implemented in 6-18 months. Many of the recommendations need to be analyzed for compliance with the General Data Protection Regulation (GDPR) such as collecting of information relating to disability. For now, the GDPR is only referenced with no further details on how steps considered will either comply or contrast the law.</p>
<p style="text-align: justify;"><strong>Good faith Guidelines</strong></p>
<p style="text-align: justify;">The Empowered Community (EC) which includes all the Supporting Organizations, At-Large-Advisory-Committee and Government Advisory Council, are called upon to conceptualize guidelines to be followed when individuals from the EC are participating in Board Removal Processes. Subsequent to this, the implementation will take 6-12 months.</p>
<p style="text-align: justify;"><strong>Framework of Interpretation for Human Rights</strong></p>
<p style="text-align: justify;">Central to the human rights conversation and finally approved, is the Human Rights Framework of Interpretation. However the report does not give a specific timeline for its implementation, only mentioning that this process will take more than 12 months. The task within this is to establish practices of how the core value of respecting human rights will be balanced with other core values while developing ICANN policies and execution of its operations. All policy development processes, reviews, Cross Community Working Group recommendations will need a framework to consider and incorporate human rights, in tandem with the Framework of Interpretation. It will also have to be shown that policies and recommendations sent to the Board have factored in the FOI.</p>
<p style="text-align: justify;"><strong>Transparency</strong></p>
<p style="text-align: justify;">The recommendations focus on the following four key areas as listed below:<br />1. Improving ICANN’s Documentary Information Disclosure Policy (DIDP).<br />2. Documenting and Reporting on ICANN’s Interactions with Governments.<br />3. Improving Transparency of Board Deliberations.<br />4. Improving ICANN’s Anonymous Hotline (Whistleblower Protection).</p>
<p style="text-align: justify;">The bulk of the burden for implementation is put on ICANN org with the community providing oversight and ensuring ICANN lives up to its commitments under various policies and laws. Subsequent to this, the implementation will take 6-12 months.</p>
<p style="text-align: justify;"><strong>How the ICANN community can contribute to this work</strong></p>
<p style="text-align: justify;">This is a defining moment on the future of ICANN and there are great opportunities for the ICANN multistakeholder community to continue shaping the future of the Internet. Some of the envisioned actions by the community include:</p>
<ul style="text-align: justify;">
<li>monitoring and assessing the performance of the various ICANN bodies, and acting on the recommendations that emerge from those accountability processes. This will only be done through collaborative formulation of processes and procedures for PDPS, CCWGs etc to incorporate HR considerations and subsequently implementation of the best practices suggested for improving SO/ACs accountability and transparency;</li>
<li>conducting diversity assessments to inform objectives and strategies for diversity criteria;</li>
<li>supporting contracted parties through legal advice for change in their agreements when it comes to choice of law and venue recommendations;</li>
<li style="text-align: justify;">contributing to conversations where the Ombudsman can expand his/her involvement that go beyond current jurisdiction and authority</li></ul>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/article-19-akriti-bopanna-and-ephraim-percy-kenyanito-december-16-2019-icann-takes-one-step-forward-in-its-human-rights-and-accountability-commitments'>https://cis-india.org/internet-governance/blog/article-19-akriti-bopanna-and-ephraim-percy-kenyanito-december-16-2019-icann-takes-one-step-forward-in-its-human-rights-and-accountability-commitments</a>
</p>
No publisherAkriti Bopanna and Ephraim Percy KenyanitoFreedom of Speech and ExpressionICANNIANAInternet Governance2019-12-19T11:35:16ZBlog EntryIndia’s record on internet shutdown gets bleaker; now blocked in 2 NE states
https://cis-india.org/internet-governance/news/hindustan-times-december-11-2019-indias-record-on-internet-shutdown-gets-bleaker
<b>India reported over 100 internet shutdown in 2018, according to an annual study of Freedom House, a US-based non-profit research organization.</b>
<p style="text-align: justify; ">The article was published in the <a class="external-link" href="https://www.hindustantimes.com/india-news/amid-anti-citizenship-bill-protests-internet-shutdown-in-tripura-arunachal/story-jqR4jxiJexKbKIivV6XZBP.html">Hindustan Times</a> on December 11, 2019. Pranesh Prakash was quoted.</p>
<hr style="text-align: justify; " />
<p style="text-align: justify; ">The internet shutdown on Tuesday in Arunachal Pradesh and Tripura amid spiraling protests against the <a href="https://www.hindustantimes.com/editorials/why-north-east-shouldn-t-be-wary-of-citizen-amendment-bill-opinion/story-JPYTnQROIi9cdXACK3k7KO.html" title="Citizenship (Amendment) Bill in the Northeast">Citizenship (Amendment) Bill in the Northeast</a> is the latest in a series of such shutdowns across India, which topped the list of countries that resorted to such measures in 2018.</p>
<p style="text-align: justify; ">India reported over 100 internet shutdown in 2018, according to an annual study of Freedom House, a US-based non-profit research organization. The study on the internet and digital media freedom was conducted in over 65 countries, which cover 87% of the world’s internet users</p>
<p style="text-align: justify; ">Police and administrative authorities have cited protests and other security reasons to routinely snap the internet in India.</p>
<p style="text-align: justify; ">The Centre promulgated the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, under the Indian Telegraph Act, 1885, in August 2017 for legal sanction to the shutdowns.</p>
<p style="text-align: justify; ">As per the rules, Union home ministry secretary or secretaries of state home departments can order temporary suspension of the internet. An internet suspension order has to be taken up for review within five days.</p>
<p style="text-align: justify; ">Prior to 2017, authorities could shut down the internet under Section 144 of the Code of Criminal Procedure (CrPC), which empowers an executive magistrate to prohibit an assembly of over four people.</p>
<p style="text-align: justify; ">Section 5 (2) of the Telegraph Act, 1855, allowed the government to prevent transmission of any telegraphic message during a public emergency or in the interest of public safety.</p>
<p style="text-align: justify; ">The Kashmir Valley has remained under an internet shutdown since August 4. The shutdown was imposed hours ahead of the nullification of the Constitution’s Article 370 that gave Jammu and Kashmir special status.</p>
<p style="text-align: justify; ">Internet and phone lines were snapped ahead of Republic Day celebrations in 2010 in one of the first reported shutdowns in the Valley. Kashmir also holds the record for the longest shutdown when the internet was snapped for 133 days after the killing of Hizbul Mujahideen militant Burhan Wani in July 2016. The current shutdown, with 122 days and counting, is the second-longest.</p>
<p style="text-align: justify; ">The 100-day blackout in Darjeeling during the Gorkha agitation in 2016 is the third-longest internet shutdown in India.</p>
<p style="text-align: justify; ">Ahead of the verdict in the Ram Janmabhoomi-Babri Masjid title suit last month, the internet was shut down in parts of Maharashtra, Rajasthan, Haryana and Uttar Pradesh. The internet was shut down for three days in Gujarat during the agitation for a quota in jobs and educational institutes for the Patidar community in 2015.</p>
<p style="text-align: justify; ">As per the Software Freedom Law Centre, which provides free legal services to protect Free and Open Source Software, the total number of shutdowns in Indian since 2012 is more than 359. As per the tracker -- internetshutdowns.in -- which records such instances from newspaper clippings -- there have been 89 internet shutdowns in 2019, 134 in 2018, and 79 in 2017.</p>
<p style="text-align: justify; ">“As a part of this project, we track incidents of Internet shutdowns across India in an attempt to draw attention to the troubling trend of disconnecting access to Internet services, for reasons ranging from curbing unrest to preventing cheating in an examination,” it states as part of its purpose.</p>
<p style="text-align: justify; ">In September this year, the Kerala High Court held that access to the internet is a fundamental right. <span>According to Pranesh Prakash of the Centre for Internet Society, the shutdowns are largely unlawful.</span></p>
<p style="text-align: justify; ">“David Kaye, the UN special rapporteur on the right to freedom of opinion and expression, has condemned the shutdowns and noted that the principles of proportionality and necessity should be adhered to in case of shutdowns. Yet, there have been several instances where lives have been lost in Kashmir due to the lockdown,” he said.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/news/hindustan-times-december-11-2019-indias-record-on-internet-shutdown-gets-bleaker'>https://cis-india.org/internet-governance/news/hindustan-times-december-11-2019-indias-record-on-internet-shutdown-gets-bleaker</a>
</p>
No publisherAdminFreedom of Speech and ExpressionInternet Governance2019-12-15T05:51:20ZNews ItemIn Twitter India’s Arbitrary Suspensions, a Question of What Constitutes a Public Space
https://cis-india.org/internet-governance/blog/the-wire-torsha-sarkar-december-7-2019-twitter-arbitrary-suspension-public-space
<b>A discussion is underway about the way social media platforms may have to operate within the tenets of constitutional protections of free speech.</b>
<p style="text-align: justify; ">The article by Torsha Sarkar was <a class="external-link" href="https://thewire.in/tech/twitter-arbitrary-suspension-public-space">published in the Wire</a> on December 7, 2019.</p>
<hr />
<p style="text-align: justify; ">On October, 26 2019, Twitter suspended the account of senior advocate Sanjay Hegde. The reason? He had previously put up the famous photo of August Landmesser refusing to do the Nazi salute in a sea of crowd in the Blohm Voss shipyard.</p>
<p style="text-align: justify; ">According to the social media platform, the image violated Twitter’s ‘hateful imagery’ guidelines, despite the photo being around for decades and usually being recognised as a sign of resistance against blind authoritarianism.</p>
<p style="text-align: justify; "><img src="https://cis-india.org/home-images/AugustLandmesser.png/@@images/bf841f6d-fd25-4bd8-b421-8e55d81c021b.png" alt="August Landmasser" class="image-inline" title="August Landmasser" /></p>
<p style="text-align: justify; "><i>August Landmesser. Photo: Public Domain</i></p>
<p style="text-align: justify; ">Twitter briefly revoked the suspension on October 27, but promptly suspended Hegde’s account again. This time, the action was prompted by Hegde quote-tweeting parts of a poem by Gorakh Pandey, titled ‘Hang him’, which was written in protest of the first death penalties given to two peasant revolutionaries in an independent India. This time, Hegde was informed that his account would not be restored.</p>
<p style="text-align: justify; ">Spurred by what he believed was Twitter’s arbitrary exercise of power, he proceeded to file a legal notice with Twitter, and <a href="https://www.livelaw.in/news-updates/sr-adv-sanjay-hegde-serves-legal-notice-on-twitter-for-restoration-of-account-149579">asked</a> the Ministry of Electronics and Information Technology (MeitY) to intervene in the matter. It is the subject matter of this ask that becomes of interest.</p>
<p style="text-align: justify; ">In his complaint, Hegde first outlines how the content shared by him did not violate any of Twitter’s community guidelines. He then goes on to highlight how his fundamental right of dissemination and receipt of information under Article 19(1)(a) were obstructed by the action of Twitter. Here, he places reliance to several key decisions of the Indian and the US Supreme court on media freedom, which provided thrust to his argument that a citizen’s right to free speech is meaningless if control was concentrated in the hands of a few private parties.</p>
<h3 style="text-align: justify; ">Vertical or horizontal?</h3>
<p style="text-align: justify; ">One of the first things we learn about fundamental rights is that they are enforceable against the government, and that they allow the individual to have a remedy against the excesses of the all-powerful state. This understanding of fundamental rights is usually called the ‘vertical’ approach – where the state, or the allied public authority is at the top and the individual, a non-public entity is at the bottom.</p>
<p style="text-align: justify; ">However, there is another, albeit underdeveloped, thread of constitutional jurisprudence that argues that in certain circumstances these rights can be claimed against another private entity. This is called the ‘horizontal’ application of fundamental rights.</p>
<p style="text-align: justify; ">In that note, Hegde’s contention essentially becomes this – claiming an enforceable remedy against the private entity for supposedly violating his fundamental right. This is clearly an ask for the Centre to consider a horizontal application of Article 19(1)(a) against large social media companies.</p>
<h3 style="text-align: justify; ">What could this mean?</h3>
<p style="text-align: justify; ">Lawyer Gautam Bhatia has <a href="https://indconlawphil.wordpress.com/2015/05/24/horizontality-under-the-indian-constitution-a-schema/">argued</a> that there are several ways in which a fundamental right can be enforced against another private entity. It must be noted that he derives this classification on the touchstone of existing judicial decisions, which is different from seeking an executive intervention. Nevertheless, it is interesting to consider the logic of his arguments as a thought exercise. Bhatia points out that one of the ways in which fundamental rights can be applied to a private entity is by assimilating the concerned entity as a ‘state’ as per Article 12.</p>
<p style="text-align: justify; ">There is a considerable amount of jurisprudence on the nature of the test to determine whether the assailed entity is state. In 2002, the Supreme Court <a href="https://indiankanoon.org/doc/471272/">held</a> that for an entity to be deemed state, it must be ‘functionally, financially and administratively dominated by or under the control of the Government’. If we go by this test, then a social media platform would most probably not come within the ambit of Article 12.</p>
<p style="text-align: justify; ">However, there is a thread of recent developments that might be interesting to consider. Earlier this year, a federal court of appeals in the US <a href="https://int.nyt.com/data/documenthelper/1365-trump-twitter-second-circuit-r/c0f4e0701b087dab9b43/optimized/full.pdf#page=1">ruled</a> that the First Amendment prohibits President Donald Trump, who used his Twitter for government purposes, from blocking his critics. The court further held that when a public official uses their account for official purposes, then the account ceases to be a mere private account. This judgment has a sharp bearing in the current discussion, and the way social media platforms may have to operate within the tenets of constitutional protections of free speech.</p>
<p style="text-align: justify; ">Although the opinion of the federal court clearly noted that they did not concern themselves with the application of the First Amendment rights to the social media platforms, one cannot help but wonder – if the court rules that certain spaces in a social media account are ‘public’ by default, and that politicians cannot exclude critiques from those spaces, then <a href="https://www.forbes.com/sites/kalevleetaru/2017/08/01/is-social-media-really-a-public-space/#2ca9795b2b80">can</a> the company itself block or impede certain messages? If the company does it, can an enforceable remedy then be made against them?</p>
<p style="text-align: justify; "><img src="https://cis-india.org/home-images/Trump.png/@@images/9bd98eba-124f-4be0-b60c-13482b76ae80.png" alt="Trump" class="image-inline" title="Trump" /></p>
<p style="text-align: justify; "><span style="text-align: center; "><i>A US court ruled that Donald Trump cannot block people on his Twitter account. Photo: Reuters</i></span></p>
<h3 style="text-align: justify; ">What can be done?</h3>
<p style="text-align: justify; ">Of course, there is no straight answer to this question. On one hand, social media platforms, owing to the enormous concentration of power and opaque moderating policies, have become gatekeepers of online speech to a large extent. If such power is left unchecked, then, as Hegde’s request demonstrates, a citizen’s free speech rights are meaningless.</p>
<p class="_yeti_done" style="text-align: justify; ">On the other hand, if we definitively agree that in certain circumstances, citizens should be allowed to claim remedies against these companies’ arbitrary exercise of power, then are we setting ourselves for a slippery slope? Would we make exceptions to the nature of spaces in the social media based on who is using it? If we do, then what would be the extent to which we would limit the company’s power of regulating speech in such space? How would such limitation work in consonance with the company’s need to protect public officials from targeted harassment?</p>
<p style="text-align: justify; ">At this juncture, given the novelty of the situation, our decisions should also be measured. One way of addressing this obvious paradigm shift is by considering the idea of oversight structures more seriously.</p>
<p style="text-align: justify; ">I have previously <a href="https://cyberbrics.info/rethinking-the-intermediary-liability-regime-in-india/">written</a> about the possibility of having an independent regulator as a compromise between overtly stern government regulation and allowing social media companies to have free reign over the things that go on their platforms. In light of the recent events, this might be a useful alternative to consider.</p>
<p style="text-align: justify; ">Hegde had also asked the MeitY to issue guidelines to ensure that any censorship of speech in these social media platforms is to be done in accordance with the principles of Article 19.</p>
<p style="text-align: justify; ">If we presume that certain social media platforms are large and powerful enough to be treated akin to public spaces, then having an oversight authority to arbitrate and ensure the enforcement of constitutional principles for future disputes may just be the first step towards more evidence-based policymaking.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/the-wire-torsha-sarkar-december-7-2019-twitter-arbitrary-suspension-public-space'>https://cis-india.org/internet-governance/blog/the-wire-torsha-sarkar-december-7-2019-twitter-arbitrary-suspension-public-space</a>
</p>
No publishertorshaFreedom of Speech and ExpressionInternet Governance2019-12-12T16:54:05ZBlog EntryA Deep Dive into Content Takedown Timeframes
https://cis-india.org/internet-governance/blog/torsha-sarkar-november-30-2019-a-deep-dive-into-content-takedown-timeframes
<b>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.</b>
<p style="text-align: justify;">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:</p>
<ol>
<li style="text-align: justify;">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. </li>
<li style="text-align: justify;">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.</li>
<li style="text-align: justify;">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.</li></ol>
<div style="text-align: justify;"> </div>
<div style="text-align: justify;"><strong>Corrigendum: </strong>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. </div>
<div style="text-align: justify;"> </div>
<div style="text-align: justify;"><strong>Disclosure</strong>: CIS is a recipient of research grants from Facebook India. </div>
<div style="text-align: justify;"> </div>
<hr />
<p style="text-align: justify;"><a class="external-link" href="http://cis-india.org/internet-governance/files/a-deep-dive-into-content-takedown-frames">Click to download the research paper</a> 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)</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/torsha-sarkar-november-30-2019-a-deep-dive-into-content-takedown-timeframes'>https://cis-india.org/internet-governance/blog/torsha-sarkar-november-30-2019-a-deep-dive-into-content-takedown-timeframes</a>
</p>
No publishertorshaFreedom of Speech and ExpressionInternet GovernanceIntermediary Liability2020-06-26T11:59:06ZBlog EntryShould online political advertising be regulated?
https://cis-india.org/internet-governance/news/hindu-pj-george-november-8-2019-should-online-political-advertising-be-regulated
<b>Micro-targeting could have potentially damaging results in the context of political advertising.</b>
<p>The article by P.J. George was <a class="external-link" href="https://www.thehindu.com/opinion/op-ed/should-online-political-advertising-be-regulated/article29912107.ece">published in the Hindu</a> on November 8, 2019. Pranesh Prakash was interviewed.</p>
<hr />
<p style="text-align: justify; "><em>On October 31, Twitter announced that it will no longer carry political advertisements as the power of Internet advertising “brings significant risks to politics, where it can be used to influence votes”. On the other hand, Facebook has said it will not fact-check political advertisements as it does not want to stifle free speech. In a conversation moderated by P.J. George, Pranesh Prakash (board member, The Centre for Internet and Society) and Kiran Chandra (General Secretary, Free Software Movement of India) discuss how platforms and constitutional authorities can deal with the challenges posed by online political advertising to democracies. </em>Edited excerpts:</p>
<h2 style="text-align: justify; ">We have always had political advertising. What is it that makes online political advertisements different or maybe even problematic?</h2>
<p style="text-align: justify; ">Pranesh Prakash: There are two things that make online political advertising different. One is targeting. Online advertising allows, especially on social networks, for a kind of targeting that wasn’t possible at the same level before. Earlier, if you wanted to target a particular segment of people for your political messaging, you could find out what kind of magazines they subscribe to and put fliers in those magazines. But you couldn’t engage in personalised targeting based on multiple attributes that is possible through platforms like Facebook and Twitter. The second is the invisibility of this kind of advertising. If there’s a billboard in the real world, everyone gets to see it. However, if there’s targeted advertising on a social media platform, not everyone gets to know of it.</p>
<p style="text-align: justify; ">Kiran Chandra: App-based organisations have designed advertisement models to specifically allow targeting. Facebook, for instance, allowed you to choose a person from a particular caste and also from a particular class in the same caste. If somebody wants to look at an advertisement for an Audi, they can go to one class of newspapers or look at billboards in some localities; the very existence of the product is not opaque to society. But targeted advertising makes it possible for two people connected to the Internet from the same source, using the same equipment, studying in the same school or college, working in the same workplace, and living in the same habitat to get two different advertisements. And micro-targeting has got potentially damaging results in the context of political advertising, particularly for elections. These platforms make it possible to go from manufacturing consent to manipulating consent. A person is continuously fed with information to vote for a particular party.</p>
<h2 style="text-align: justify; ">Twitter said it will no longer carry political advertisements, considering the repercussions seen in the U.S. in the past elections. On the contrary, Facebook says political advertisements are necessary and that people should see if their politicians are lying. How culpable is a platform in the case of a problematic online political advertisement?</h2>
<p style="text-align: justify; ">KC: Platforms, particularly Facebook, have been washing their hands of the issue saying they are only intermediaries providing space; that the content is being generated by the people to be consumed by the people, and they have no role to play. But this is false. If you look at the complete business model of Facebook, Google, or any of the platforms, they clearly provide micro-targeting, or allow people to be manipulated for a particular purpose. So, these platforms can’t just wash their hands of the issue. In the Maharashtra election, you saw a lot of advertisements coming out which are untraceable. How can this happen without the platform itself allowing for such a possibility? The Election Commission (EC) needs to step in on all these issues. These corporations need to be very transparent in the context of elections. They need to bring out all the ways in which advertisements are displayed and also the money associated with it.</p>
<p style="text-align: justify; ">When somebody publishes it [an ad] on a Facebook wall, it is as good as publishing it in a newspaper. So, all the legislation that apply now for reasonable restrictions and freedom of speech and the freedom of press also apply to these platforms. These platforms are culpable when the very intent of their business model allows such subversion of the democratic process. They need to be brought in line to ensure that Indian democracy is safe.</p>
<p style="text-align: justify; ">PP: I completely disagree with Kiran on a number of points. For instance, those who are running a platform shouldn’t automatically be liable for what people are seeing on those platforms. The people who are actually saying things should be liable, not necessarily those who are carrying it without knowing what they’re carrying most of the time. Kiran also mentioned manipulation. The job of all advertising is to manipulate. The job of newspapers is to manipulate public opinion. And there’s always money associated with this. Newspapers carry advertisements as well. You don’t necessarily know who has paid for each ad in the newspaper. What online platforms are able to provide is actually greater transparency in this regard, at least based on what Facebook is attempting to do with its ad library. Calling this manipulation doesn’t quite work. Because then you have to specify why certain categories of things you think of as manipulating, while other categories you think of as influencing.</p>
<p style="text-align: justify; ">Second, as far as I know, Facebook does not ask for your caste. Nor does it actually allow advertisers to use caste as a category for advertising. To address the larger question of whether to carry political advertisements or not, I don’t think there are simple answers. For instance, in different jurisdictions there are different rules as to whether different kinds of media are allowed to carry political advertisements or not. In the U.S., all broadcasters are required by law not to censor on the basis of the content of political advertising. Which means that broadcasters in the U.S. cannot say to a candidate, ‘this advertisement that you’ve sent to us contains a lie and we’re not going to associate ourselves with the lie and we’re not going to carry it’. Now, when a platform like Facebook says that it will voluntarily adopt a similar standard as applies to broadcast organisations by law, all hell breaks loose. And again, there might be good reasons for it. But to say that political advertising should not contain lies, and hence should be censored, is not a viable opinion across the board.</p>
<p style="text-align: justify; ">KC: I would like to clarify one thing here. There is a clear distinction between Facebook asking your caste and Facebook allowing you to micro-target people based on their caste and class. In 2016, I created an advertisement with a tag called Brahmin bags and it allowed inclusion and exclusion based on caste and economic status. And now, after this had been made an issue for the last three years, Facebook says that advertisers can select topics that are specific to a particular caste. For instance, Dalit topics, Iyengar topics, etc. So Facebook, in its design, allows such kind of sensitivities to be used for micro-targeting. And one should not confuse general advertising with political advertising. If the advertisement is just about manipulating for buying a particular product, that has something to do with the business houses; even if one agrees with it or not. But when you speak about political advertising, when people come to participate and engage in a democratic process, the EC and The Representation of the People Act (RPA) mandate that people should be allowed to take a very clear stand, to look at what has happened in the last five years, and decide how to vote, freely and fairly. That is why the RPA clearly lists a certain set of things for free and fair elections, where even the use of money and manipulation should not be allowed to happen. Yes, the U.S. has a different context. American democracy is different from Indian democracy. We have got our own statute. This methodology in which these platforms have got their business models and are engaging deeply in subverting the Indian democratic process is a serious cause of concern. The EC should come up with new methodologies, if the existing ones are not sufficient.</p>
<h2 style="text-align: justify; ">Can you elaborate on how the EC can play a role in this?</h2>
<p style="text-align: justify; ">KC: We brought these issues to the notice of the EC prior to the 2019 general election. The EC said it does not have enough manpower to deal with this situation for now. The EC does not have power over the police or the administration; but once the elections are on, it has the capability to take in different departments and ensure that such subversion of the democratic process does not happen. A fundamental problem with the EC’s method is that it said it was in discussion with the digital platforms to make more people vote in the election. And that itself is problematic. How is it going to be done? The EC should make public the way in which this advertising is being conducted, the money associated with it, and the people who are being reached with it. For instance, if we look at TV channels for ads during primetime, there is a mechanism, like TRP ratings, which allows them to understand and evaluate the target sections. If you look at the Maharashtra election, the advertiser itself is not known. Have people been sent communal messages? Have people been targeted based on caste, which can disqualify the contestant? The EC should reach out to the Government of India and look at the departments that are capable of handling this. If they don’t exist, it should start creating infrastructure that will be able to look into all these aspects. Also, concrete guidelines should be given to these digital platforms. And whatever comes in contradiction, or comes in the way of implementing the RPA, the EC should stop the platforms from doing it.</p>
<p style="text-align: justify; ">PP: For me, it’s not clear to what extent I would draw a distinction between advertising and other things which the EC has not been able to curtail, such as paid news and political ownership of media, which allow for very skewed viewpoints to be expressed. But insofar as what can be done about online platforms — and again, only online platforms which deal in advertising — the biggest source of online political messaging in India is WhatsApp. So, excluding the elephant in the room from this discussion, what the EC could do is bring the largest platforms together to get transparency commitments from them. Then this information needs to be made publicly available, so that the invisibility which happens with targeting gets countered. The second thing... Given that elections are geographical in nature in India, if you want to engage in advertising, you have to do it on the basis of geography, not on the basis of specific kinds of attributes of a person. And let’s also be aware that most of these attributes or guesses about people that these platforms are making are based on what people post on social media platforms, what they click. So, the one thing that can be done on a global level is transparency and restrictions on various targeting but anything else such as limitations on, say, lying in political advertising, I don't think that can or should be sold on a global level. It’s dependent far too much on each country and their models and how they interpret freedom of expression.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/news/hindu-pj-george-november-8-2019-should-online-political-advertising-be-regulated'>https://cis-india.org/internet-governance/news/hindu-pj-george-november-8-2019-should-online-political-advertising-be-regulated</a>
</p>
No publisherP.J. GeorgeFreedom of Speech and ExpressionInternet Governance2019-11-13T15:12:46ZNews Item CIS’ Comments to the Christchurch Call
https://cis-india.org/internet-governance/blog/tanaya-rajwade-elonnai-hickok-and-raouf-kundil-peedikayil-october-31-2019-comments-to-christchurch-call
<b>In the wake of the Christchurch terror attacks, the Prime Minister of New Zealand, Jacinda Ardern, and the President of France, Emmanuel Macron co-chaired the Christchurch Call to Action in May 2018 to “bring together countries and tech companies in an attempt to bring to an end the ability to use social media to organise and promote terrorism and violent extremism.”</b>
<p style="text-align: justify; ">Fifty one supporters, including India, and eight tech companies have jointly agreed to a set of non-binding commitments and ongoing collaboration to eliminate violent and extremist content online. Facebook, Microsoft, Twitter, Google, and Amazon are all among the online service provider signatories that released a joint statement welcoming the call and committing to a nine-point action plan.</p>
<p style="text-align: justify; ">The Call has been hailed by many as a step in the right direction, as it represents the first collaboration between governments and the private sector companies to combat the problem of extremist content online at this scale. However, the vagueness of the commitments outlined in the Call and some of the proposed mechanisms have raised concerns about the potential abuse of human rights by both governments and tech companies.</p>
<p style="text-align: justify; ">This response is divided into two parts - Part One examines the call through the lens of human rights, and Part Two thinks through the ways in which India can adhere to the commitments in the Call, and compares the current legal framework in India with the commitments outlined in the Call.</p>
<hr />
<p style="text-align: justify; ">Click to read the <a class="external-link" href="http://cis-india.org/internet-governance/files/cis2019-comments-to-the-christchurch-call">comments here</a>. The comments were prepared by Tanaya Rajwade, Elonnai Hickok, and Raouf Kundil Peedikayil and edited by Gurshabad Grover and Amber Sinha.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/tanaya-rajwade-elonnai-hickok-and-raouf-kundil-peedikayil-october-31-2019-comments-to-christchurch-call'>https://cis-india.org/internet-governance/blog/tanaya-rajwade-elonnai-hickok-and-raouf-kundil-peedikayil-october-31-2019-comments-to-christchurch-call</a>
</p>
No publisherTanaya Rajwade, Elonnai Hickok, and Raouf Kundil PeedikayilFreedom of Speech and ExpressionSocial MediaInternet Governance2019-11-04T14:13:13ZBlog EntryThrough the looking glass: Analysing transparency reports
https://cis-india.org/internet-governance/blog/torsha-sarkar-suhan-s-and-gurshabad-grover-october-30-2019-through-the-looking-glass
<b>An analysis of companies' transparency reports for government requests for user data and content removal</b>
<p style="text-align: justify;">Over the past decade, a few private online intermediaries, by rapid innovation and integration, have turned into regulators of a substantial amount of online speech. Such concentrated power calls for a high level of responsibility on them to ensure that the rights of the users online, including their rights to free speech and privacy, are maintained. Such responsibility may include appealing or refusing to entertain government requests that are technically or legally flawed, or resisting gag orders on requests. For the purposes of measuring a company’s practices regarding refusing flawed requests and standing up for user rights, transparency reporting becomes useful and relevant.Making information regarding the same public also ensures that researchers can build upon such data and recommend ways to improve accountability and enables the user to understand information about when and how governments are restricting their rights.</p>
<p style="text-align: justify;">For some time in the last decade, Google and Twitter were the only major online platforms that published half-yearly transparency reports documenting the number of content take down and user information requests they received from law enforcement agencies. In 2013 however, that changed, when the Snowden leaks revealed, amongst other things, that these companies were often excessively compliant with requests from US’ intelligence operations, and allowed them backdoor surveillance access to user information. Subsequently, all the major Silicon Valley internet companies have been attempting to publish a variance or other of transparency reports, in hopes of re-building their damaged goodwill, and displaying a measure of accountability to its users.</p>
<p style="text-align: justify;">The number of government requests for user data and content removal has also seen a steady rise. In 2014, for instance Google noted that in the US alone, they observed a 19% rise for the second half of the year, and an overall 250% jump in numbers since Google began providing this information. As per a study done by Comparitech, India sent the maximum number of government requests for content removal and user data in the period of 2009 - 2018.8 This highlights the increasing importance of accessible transparency reporting.</p>
<p style="text-align: justify;">Initiatives analysing the transparency reporting practices of online platforms, like The Electronic Frontier Foundation (EFF)’s Who Has Your Back? reports, for instance, have developed a considerable body of work tracing these reporting practices, but have largely focused at them in the context of the United States (US). In our research, we found that the existing methodology and metrics to assess the transparency reports of online platforms developed by organisations like the EFF are not adequate in the Indian context. We identify two reasons for developing a new methodology:</p>
<ol>
<li style="text-align: justify;">Online platforms make available vastly different information for US and India. For instance, Facebook breaks up the legal requests it receives for US into eight different classes (search warrants, subpoenas, etc.). Such a classification is not present for India. These differences are summarised in Annexure </li>
<li style="text-align: justify;">The legal regimes and procedural safeguards under which states can compel platforms to share information or take content down also differ. For instance, in India, an order for content takedown can be issued either under section 79 and its allied rules or under section 69A and its rules, each having their own procedures and relevant authorities. A summary of such provisions for Indian agencies is given in Annexure 3.</li></ol>
<p style="text-align: justify;">These differences may merit differences in the methodology for research into understanding the reporting practices of these platforms, depending on each jurisdiction’s legal context.</p>
<p style="text-align: justify;">In this report, we would be analyzing the transparency reports of online platforms with a large Indian user-base, specifically focusing on data they publish about user information and takedown requests received from Indian governments’ and courts.</p>
<p style="text-align: justify;">First, we detail our methodology for this report, including how we selected platforms whose transparency reports we analyse, and then specific metrics relating to information available in those reports. For the latter, we collate relevant metrics from existing frameworks, and propose a standard that can be applicable for our research.</p>
<p style="text-align: justify;">In the second part, we present company-specific reports. We identify general trends in the data published by the company, and then compare the available data to the best practices of transparency reporting that we proposed.</p>
<hr />
<p style="text-align: justify;"><a class="external-link" href="http://cis-india.org/internet-governance/files/A%20collation%20and%20analysis%20of%20government%20requests%20for%20user%20data%20%20and%20content%20removal%20from%20non-Indian%20intermediaries%20.pdf">Download the full report</a>. The report was edited by Elonnai Hickok. Research assistance by Keying Geng and Anjanaa Aravindan.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/torsha-sarkar-suhan-s-and-gurshabad-grover-october-30-2019-through-the-looking-glass'>https://cis-india.org/internet-governance/blog/torsha-sarkar-suhan-s-and-gurshabad-grover-october-30-2019-through-the-looking-glass</a>
</p>
No publisherTorsha Sarkar, Suhan S and Gurshabad GroverFreedom of Speech and ExpressionInternet GovernancePrivacy2019-11-02T05:48:59ZBlog EntryDepartment of Labour Interaction Program: Online Business Platforms
https://cis-india.org/internet-governance/blog/department-of-labour-interaction-program-online-business-platforms
<b>The Department of Labour convened an interaction program of sorts at Vikas Soudha in Bangalore on 21st October, 2019 to hear the issues plaguing the emergent gig economy.</b>
<p>The blog post was edited by Ambika Tandon.</p>
<hr />
<p style="text-align: justify; ">The meeting was called to hear and address the grievances of gig workers, (employed by online business platforms) in the presence of their employers. The meeting was presided by the esteemed Labour Minister, Shri. Suresh Kumar, and the Secretary to the Labour Department, Shri Manivannan. The Minister began by disclosing that union members and delivery partners employed by online delivery companies (Swiggy, Zomato, Ola, Flipkart, etc.) had approached his office, with several complaints pertaining to the legal treatment or lack thereof, of gig workers across the nation. They also further identified the day-to-day concerns that they had to face (i.e. health & pay-related issues) as a consequence of their non-recognition under the labour law frameworks in the country.</p>
<p style="text-align: justify; ">"<i>The majority of the delivery boys that aggregators (e.g. Swiggy, Ola, Uber, etc.) employ are full-time workers who depend solely on these companies for their income</i>." That was the refrain of most of the spokespeople supporting the cause of gig workers. These were some of the representatives who spoke on behalf of the gig workers employed by online aggregators:</p>
<ol>
<li>Mr. G. S. Kumar (Food Delivery Partners Association)</li>
<li>Mr. Tanveer Pasha (Ola driver)</li>
<li>Mr. M. Manjunath (Auto Chalaka Okkuta) </li>
<li>Mr. Amit Gupta (Brand Strategist) </li>
<li>Ms. Kaveri (Researcher) </li>
<li>Mr. Basavaraj (Food Delivery Association)</li>
</ol>
<p><strong><i>"The delivery partners employed by online aggregators should be treated as full-time employees"</i></strong></p>
<p style="text-align: justify; ">Mr. G.S Kumar, an office-bearer at the Food Delivery Partners Samithi set the context for the conversation, by identifying at the very outset that the term "delivery partners" is a misnomer and that they are largely full-time employees. They are further straddled with family commitments, health concerns, and dwindling pay structures. As such, he proclaimed that they are deserving of the protections statutorily available to employees (in the traditional sense of the term) under the extant labour legislations. It was also specifically highlighted by Mr. K.S. Kumar, that in status quo, delivery boys cannot avail of ESI, or PF benefits.</p>
<p style="text-align: justify; ">Furthermore, the protections the companies make available are also quite abysmal, for instance a Rs. 2 lakh accidental cover that's rarely ever paid. The practical exigencies of their itinerant lifestyles inhibit them from maintaining strict compliance with the protocols that are unfortunately condition precedents to obtaining the benefits they so desperately require. The language of these policies in the fine print often contains conditions that are quite hard to satisfy, and as such, the benefits remain inaccessible to the vast majority of drivers employed by these online business platforms. Adding value to this criticism of Mr. K.S. Kumar, Mr. Basavaraj later clarified that conditions such as requiring 24 hours of admittance for the processing of insurance claims, makes it nigh impossible for drivers plying the roads to ever materially avail of health or accidental insurance.</p>
<p><strong><i>"Ola/Uber drivers face serious health risks, as they ply the roads of Bangalore, and require functional insurance"</i></strong></p>
<p style="text-align: justify; ">Tanveer Pasha, a member of the Ola/Uber Drivers Association, discussed the lived experiences of these delivery boys who ply the road, travelling nearly fifteen to twenty kilometres for each trip in peak Bangalore traffic. He narrated stories of trauma and violence faced by drivers, such as instances of heart attacks and accidents, which made the conversation a little heated. The minister then deftly interjected, by requesting them to be solution-centric, while discussing their grievances, as this aids the government's ability to balance the competing interests of both the aggregators and the gig workers.</p>
<p><strong><i>"A Government ombudsman is required to address the grievances of gig workers"</i></strong></p>
<p style="text-align: justify; ">To that effect, M. Manjunath from the Auto and Taxi Association asserted that insurance is a basic right that should be provided to the employees. Amit Gupta, Brand Strategist, spoke on behalf of his sister, previously employed at Swiggy, and stated that an ombudsman empowered to take complaints, even from gig workers, should be created. He believed this was imperative given that aggregators are de facto free to violate the terms and conditions prescribed in the employment order, as they have the resources to see the case through in court, whereas employees don't have much recourse, outside of trade unions. He concluded that for these delivery partners devoid of the right to collectivize, it becomes crucially important to maintain at the very least, a Government ombudsman.</p>
<p><strong><i>"Aggregators should not profit off of the positive network effects gained through delivery partners, and simultaneously deny their right to protest unfair business practices"</i></strong></p>
<p style="text-align: justify; ">Ms. Kaveri, a researcher on the conditions of gig workers, brought to light some of the more egregious problems that are faced by these workers. For instance, they are removed from employment, at a moment's notice if they attempt to protest, and to that effect, she stated that Zomato had fired an employee that very day because he was supposed to participate in the meeting and make his case. She further specified that it was patently unfair to allow these aggregators to profit off of the positive network effects gained solely because of the delivery partners, and subsequently engage in cost-cutting practices like reducing the incentives that they receive.</p>
<p style="text-align: justify; ">In response to these claims, the Labour Minister invited representatives of online platforms to shed some clarity on the concerns raised by the gig workers they employ.</p>
<p>These were some of the representatives who spoke on behalf of the online aggregators:</p>
<ol>
<li>Mr. Manjunath (Flipkart) </li>
<li>Mr. Panduranga (Legal Team, Swiggy) </li>
<li>Mr. Ashok Kumar (Zomato) </li>
</ol>
<p><strong><i>"Flipkart does provide significant benefits to its fixed-term contractors"</i></strong></p>
<p>Mr. Manjunath clarified his position on these issues, with regards to Flipkart, by stating that there is a tripartite classification amongst people who work there:</p>
<p>a) Full-time employees</p>
<p>b) Fixed Term Contractors (e.g. 8 or 10-month contract)</p>
<p>c) Interns</p>
<p style="text-align: justify; ">He further affirmed that even for fixed term contractors, Flipkart offers ESI, and PF benefits. He also specified that they don't hire more employees or fixed-term contractors during peak season, but rather hire only interns to meet demand, as it offers the inexperienced interns a chance to gain industry exposure as well.</p>
<p><strong><i>"Swiggy empowers the agency of its delivery partners, and provides necessary benefits" </i></strong></p>
<p style="text-align: justify; ">Mr. Panduranga, from the legal department at Swiggy, in direct response to the concerns about Swiggy, stated that the gig economy is emergent and that Swiggy and other such aggregators are merely technology platforms, facilitating end-to-end services (between different stakeholders, e.g. customer-driver-restaurant). In that sense, he clarified that the delivery partners they employ have the right to accept or deny deliveries and that there is no compulsion to commit to the work. Moreover, he specified that merely logging off the app frees up a delivery partner of his or her time. He opined that they have the freedom to work for multiple companies, and the process of joining and leaving is highly flexible. In that sense, he stated that a large number of students and after-office hours employees are the ones employing these apps as a means to generating quick cash flows (and as such, should not be treated as full-time employees). He also mentioned that there is up to 1 lakh for medical expenses, (which are currently being disbursed), and Rs. 5 lakhs for accidental death coverage as well. Mr. Ashok Kumar from Zomato also reaffirmed the statements of Mr. Panduranga.</p>
<p><strong><i>"Incentive and disincentive structures coercively compel gig workers to work hours akin to full-time employees"</i></strong></p>
<p style="text-align: justify; ">Mr. Basavaraj from the Food delivery Association/Samithi, along with all the other representatives clarified that it is extremely unlikely that the majority of gig workers are part-time and only in it for generating quick money. Instead, the majority of gig workers work 9-12-hour workdays, and in that sense, are really no different from traditional employees. Basavaraj stated that an examination of the travel logs of delivery partners will make it clear whether the majority of workers are part-time or full time. He also pointed out that incentive and disincentive structures coercively compel drivers to work long hours with poor working conditions. For example, drivers who don't operate during peak hours do not receive the incentives they are promised. Further, the manner of advertisement of these jobs is itself insidious, as the salary offering is inclusive of the money one would receive if they also met their incentive-targets. Basavaraj specified that the deceptive advertising of these companies is what leads to massive hordes of gig workers working, in essence, full-time jobs, and as such, they must require the protection of their rights enshrined under labour legislations.</p>
<p style="text-align: justify; ">There was also collective agreement from the spokespeople making a case on behalf of the gig workers, that the benefits provided on paper (health insurance for accident cases) are rarely ever provided, and that the process of acquiring the same is rife with hassles. However, this was met with fervent opposition from the spokespeople representing the online aggregators, who contended that these insurance payments were being sanctioned freely without inconvenience.</p>
<p><strong><i>Concluding Observations of the Labour Minister</i></strong></p>
<p style="text-align: justify; ">The Labour Minister, Shri. Suresh Kumar, identified that this is an emergent issue; one that requires serious consideration, as the gig economy is here to stay. He reaffirmed the social responsibility of the Government to inspect this matter and set up a legal framework, as it concerns the deprivation of agency for lakhs of people working as gig workers in the state, and across the country. He also affirmed that he is cognizant of the business interests at play. To that effect, he declared that the Deputy Labour Commissioner, Shri. Balakrishnan would examine the relevant data at hand, hold necessary meetings with both parties, and submit a report on the creation of a prospective framework to regulate gig economies within one month. He stated that the Government will set up a framework with governing rules and regulations, based on the report submitted. He concluded by emphasizing the necessity for both parties to be trusting of one another and not render the working dynamic adversarial, however oppositional their competing interests maybe, as trust is a constitutive component of conflict resolution.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/department-of-labour-interaction-program-online-business-platforms'>https://cis-india.org/internet-governance/blog/department-of-labour-interaction-program-online-business-platforms</a>
</p>
No publisherBharath GururagavendranFreedom of Speech and ExpressionInternet Governance2019-10-29T06:05:56ZBlog EntryTrending Hate Against Muslims: Is Twitter Complicit?
https://cis-india.org/internet-governance/news/news-central-october-21-2019-puja-bhattacharjee-trending-hate-against-muslims
<b>Twitter claimed that it had ‘prevented’ the Hashtag while it had not.</b>
<p style="text-align: justify; ">The blog post by Puja Bhattacharjee was <a class="external-link" href="https://newscentral24x7.com/kamlesh-tiwari-murder-hate-muslims-yogi-adityanath-bjp-rss-twitter-trends/">published in News Central</a> on October 21, 2019. Pranesh Prakash was quoted in it.</p>
<hr />
<p style="text-align: justify; "><a href="https://www.news24.com/Columnists/AlistairFairweather/In-darkies-Africa-20091106" rel="noopener" target="_blank">In 2009, Twitter took down a trending hashtag. The hashtag in question started in South Africa and had the word “darkie” in it. </a>That word is not a slur in South Africa, but it was used as a slur against the African Americans community in the USA. On receiving complaints, Twitter immediately removed that from trending topics though it was a clash of meanings between two different places.</p>
<p style="text-align: justify; ">On Sunday evening, a hashtag of more insidious nature was trending in India. The hashtag <a href="https://twitter.com/search?q=%23%E0%A4%AE%E0%A5%81%E0%A4%B8%E0%A5%8D%E0%A4%B2%E0%A4%BF%E0%A4%AE%E0%A5%8B_%E0%A4%95%E0%A4%BE_%E0%A4%B8%E0%A4%82%E0%A4%AA%E0%A5%82%E0%A4%B0%E0%A5%8D%E0%A4%A3_%E0%A4%AC%E0%A4%B9%E0%A4%BF%E0%A4%B7%E0%A5%8D%E0%A4%95%E0%A4%BE%E0%A4%B0">#मुस्लिमो_का_संपूर्ण_बहिष्कार</a>, translated literally means “Total boycott of Muslims”. The incident is ominous given <a href="https://www.newyorker.com/news/on-religion/the-violent-toll-of-hindu-nationalism-in-india" rel="noopener" target="_blank">rising apprehension across the world</a> that India is now in the grip of a violent form of Hindu Nationalism. The tweets in support of the hashtags were mostly from right-wing accounts, some of which not only called for the boycott of Muslims but also celebrated the persecution of Uighurs in China.</p>
<p style="text-align: justify; ">Speaking to <em>NewsCentral24x7.com</em>, a Twitter spokesperson claimed that it had ‘prevented’ the hashtag from trending: “There are Rules for trends and we have prevented this hashtag from trending as it is in violation of the Twitter Rules”. (<em>Full statement at the end of the story)</em></p>
<p style="text-align: justify; ">However this was patently false since many users pointed out that the hashtag <a href="https://twitter.com/atti_cus/status/1186261563105132545" rel="noopener" target="_blank">continued to trend</a> even after Twitter’s statement. In Delhi, the hashtag continues to trend at number one. More disturbingly, as reported by <em><a href="https://thewire.in/communalism/ministers-hate-accounts-twitter-follow-boycott-muslims" rel="noopener" target="_blank">The Wire</a> </em>some of the accounts tweeting in support of the hashtags are followed by the Prime Minister and several cabinet ministers.</p>
<p style="text-align: justify; ">Also Read: <a class="post-title post-url" href="https://newscentral24x7.com/hate-crimes-muslims-madhya-pradesh-officer-change-name-communal-modi-government/" rel="noopener" target="_blank"> Need To Change Name To Save Myself From Sword Of Hate: Muslim Bureaucrat From M.P. On The Atmosphere Of Hate In Modi II</a></p>
<p style="text-align: justify; ">Pranesh Prakash, co-founder of Centre for Internet and Society, says that Twitter usually does not ban a hashtag. “They can remove it from trending and if people use it offensively, then they can ban that person or that tweet…. Twitter should put out a statement apologizing for and condemning this given they condemn white nationalists in the US.” he says.</p>
<p style="text-align: justify; ">The hashtag was started ostensibly in retaliation of the murder Kamlesh Tiwari, 45, the president of the Hindu Samaj Party. Over the weekend, the police arrested five people in connection to the murder.</p>
<p style="text-align: justify; ">However, Kamlesh Tiwari in his last<a href="https://scroll.in/video/941132/kamlesh-tiwari-murder-his-last-facebook-live-video-and-his-mothers-statement-blame-bjp" rel="noopener" target="_blank"> Facebook Live video</a> before his murder protested the removal of his security by the Yogi Adityanath government and trying to hatch a conspiracy to kill him. His mother echoed his sentiments and has come out to say that there is no communal angle to his murder.</p>
<p style="text-align: justify; ">The matter once again raises questions about the responsibility Big-Tech platforms like Twitter need to discharge in monitoring and combating hate speech. Many organizations in the USA, UK and Australia such as the Anti-Defamation League (ADL), the Women, Action and the Media (WAM!), Online Hate Prevention Institute and Sentinel Groups for Genocide Prevention have become increasingly invested in combating hate speech online by targeting Internet intermediaries and asking them to take greater responsibility in moderating content, in addition to raising awareness among users.</p>
<p style="text-align: justify; ">An interactive map showing the trends of the hashtag from October 20 evening till October 21 morning in the sub-continent.</p>
<p style="text-align: justify; ">However, in India, the government’s proposed changes to Section 79 of the IT Act for restricting hate speech has led to fears of widespread censorship. The Internet Freedom Foundation published a <a href="https://internetfreedom.in/india-must-resist-the-lure-of-the-chinese-model-of-surveillance-and-censorship-intermediaryrules-righttomeme-saveourprivacy/" rel="noopener" target="_blank">comprehensive blog</a> on why such an amendment is undesirable.</p>
<p style="text-align: justify; ">In a report released in 2017, the Law Commission of India recommended broadening the existing provisions of hate speech to include other criteria that are based on their gender and sexuality.</p>
<p style="text-align: justify; ">“It does not look at underlying reforms. Like understanding the link to violence and whether it should only be a provision which should apply to members of a minority community -linguistic, caste, religion,” says Apar Gupta, executive director, Internet Freedom Foundation</p>
<p style="text-align: justify; ">He says if lawmakers are unwilling to substantively tinker with definitions in a very real and substantial way, they should come up with procedural safeguards instead.</p>
<p style="text-align: justify; ">Twitter or any social media company has two levels of obligation – its own obligations towards its users which is under the terms of service contract under which it can proactively take down a speech if there is a violation of those standards. “They have a degree of discretion to do it as well. This is where most of the content takedowns happen which also results in a certain amount of criticism because they lack the consistency desired by people,” says Gupta.</p>
<p style="text-align: justify; ">The second level of compliance is when a legal notice is sent by a judicial or executive authority. If they do not comply, their online immunity from liability for the content posted by the user can be removed and they can be prosecuted as an accessory or abettor to the content published on their platform. “Twitter can block the hashtag but what we are looking for is a much more credible law enforcement response based on the content of each tweet,” Gupta adds.</p>
<p style="text-align: justify; ">In her book,<em> HATE: Why We Should Resist it With Free Speech, Not Censorship by Nadine Strossen</em>, the author <a href="https://www.cato.org/blog/counter-speech-offers-effective-remedy-hate-speech">argues that</a> that censorial measures are ineffective and do not promote equality. Instead, Strossen, recommends forceful counter-speech and activism.</p>
<p style="text-align: justify; ">“In 2016, a report was issued about counterspeech on Twitter, coauthored by a group of scholars from the United States and Canada. The report, which included the first review of the “small body” of existing research about online counterspeech, concluded that hateful and other “extremist” speech was most effectively “undermined” by counterspeech rather than by removing it,” she writes.</p>
<p style="text-align: justify; "><em>Editors Note: </em>The hashtag discussed above is absolutely horrifying and historically widespread calls for ‘boycott’ have preceded genocide. While on one hand we cannot allow hate speech to become an excuse for governments to curb non-harmful, legal speech, the censor or counter debate cannot be allowed to become a veil for big-tech to wash its hands off the matter. There is now significant reportage which shows that hate speech essentially benefits social media platforms and therefore they are unwilling to curb it. In this specific case the double standards twitter has displayed in being prompt in one country while unresponsive in other is also a very disturbing aspect.</p>
<p style="text-align: justify; ">Full statement by Twitter:</p>
<p style="text-align: justify; "><em>“At Twitter our singular goal is to<a href="https://twitter.com/jack/status/969234275420655616" rel="noopener" target="_blank"> improve the health of the public conversation</a>, including ensuring the safety of people who use our service. As outlined in our<a href="https://help.twitter.com/en/rules-and-policies/hateful-conduct-policy" rel="noopener" target="_blank"> Hateful Conduct Policy</a>, we do not tolerate the abuse or harassment of people on the basis of religion. As <a href="https://help.twitter.com/en/using-twitter/twitter-trending-faqs" rel="noopener" target="_blank">per our Help Center</a>, there are Rules for trends and we have prevented this hashtag from trending as it is in violation of the Twitter Rules. If people on Twitter see something that violates the Twitter Rules, the most important thing they can do is<a href="https://help.twitter.com/en/safety-and-security/report-a-tweet" rel="noopener" target="_blank"> report it</a>, by clicking the drop down arrow at the top of the Tweet and selecting “Report Tweet.”</em></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/news/news-central-october-21-2019-puja-bhattacharjee-trending-hate-against-muslims'>https://cis-india.org/internet-governance/news/news-central-october-21-2019-puja-bhattacharjee-trending-hate-against-muslims</a>
</p>
No publisherPuja BhattacharjeeFreedom of Speech and ExpressionInternet Governance2019-10-23T00:54:41ZNews ItemRoundtable Discussion on Intermediary Liability
https://cis-india.org/internet-governance/news/roundtable-discussion-on-intermediary-liability
<b>Tanaya Rajwade participated in a roundtable discussion on intermediary liability organised by SFLC and the Dialogue in New Delhi on October 17, 2019.</b>
<p>Click to view the <a class="external-link" href="http://cis-india.org/internet-governance/files/internet-liability">agenda</a>.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/news/roundtable-discussion-on-intermediary-liability'>https://cis-india.org/internet-governance/news/roundtable-discussion-on-intermediary-liability</a>
</p>
No publisherAdminFreedom of Speech and ExpressionInternet GovernanceIntermediary Liability2019-10-20T07:08:11ZNews ItemDystopia vs development: The Kashmir paradox
https://cis-india.org/internet-governance/news/livemint-asmita-bakshi-october-18-2019-dystopia-vs-development
<b>On 26 July, Azmat Ali Mir, 26, landed in her hometown, Srinagar. A day later, uncertainty and panic gripped the Kashmir valley—the Amarnath yatris (pilgrims) and other tourists were being evacuated, there was heavy military deployment and news reports claimed that there could be a threat to the border.</b>
<p>The article by Asmita Bakshi was <a class="external-link" href="https://www.livemint.com/mint-lounge/features/dystopia-vs-development-the-kashmir-paradox-11571377960811.html">published by Livemint</a> on October 19, 2019. Ambika Tandon was quoted.</p>
<hr />
<p style="text-align: justify; ">But Mir had a lot of work to do—she had events planned as part of her startup Manzar Experience Curators, which promotes Kashmiri art, culture and fashion made and produced locally for audiences outside the state, particularly Bengaluru, where she now lives. “We are so used to things like this, we were like, ‘these things will keep happening, curfew <em>laga denge</em> (they will impose a curfew), that means you need to have ration in your home. But until then, you have to do your work’," Mir tells me over the phone from Bengaluru. “I had very little time, my tickets were already booked for 5 August, there was so much work, I had no time to think. I was going around, signing contracts, getting things done."</p>
<p style="text-align: justify; ">But soon, it became clear that things would be different this time. By August 1, fear and tension had escalated. Rumours of war grew louder, and additional troops were flown in. “The guy who heads the agency that was to help with online promotions for my event said things don’t seem okay and we should wait and see how this goes," says Mir. “Our lives, both personal and professional, are governed around the political calendar of Kashmir."</p>
<p style="text-align: justify; ">Across town, on 26 July, Sheikh Samiullah, 28, from downtown Srinagar was at a café called ZeroBridge Fine Dine along with his team and representatives from the state administration, including deputy commissioner Shahid Choudhary, to launch the Android app for his company FastBeetle. The logistics startup, launched last year by Samiullah and co-founder Abid Rashid Lone, is often called “Kashmir’s Dunzo", and provides door-to-door delivery services for businesses ranging from online grocers and retail commerce to pharmacies and individuals.</p>
<p style="text-align: justify; ">The launch of their iOS app was scheduled for 13 August, the day after Eid. But this had to be cancelled a few days later due to the prevailing situation in the valley. Today, FastBeetle’s operations—which run on the internet—have ceased. “I invested all my savings in this company. For me, it’s not possible to run this again. It is like starting from the beginning. I have a massive liability on my head," Samiullah tells me in Delhi, where he has gone from running a profitable business to being unemployed and now searching for work.</p>
<p style="text-align: justify; ">Over the same period, Qazi Zaid, 30, who runs and edits the news platform Free Press Kashmir, was in overdrive. “As journalists living in Kashmir, we aren’t just reporting the conflict, we are also living the conflict. We are members of the same society," he says. “One of the last stories we did was on the panic—how panic is being manufactured and the standard response of people who are scared and entering panic mode. That’s what happened with us as well." Free Press Kashmir, which is primarily an online news portal, has not published for close to three months. And now Zaid is in the Capital, exploring ways to save his news portal from complete closure and prevent the 15 young journalists he employs from being rendered jobless.</p>
<p style="text-align: justify; ">These young Kashmiris and their organizations have been driven into a state of near-obscurity since 5 August, when the Union government abrogated Article 370 of the Constitution, which granted the state of Jammu and Kashmir its special status, and subsequently sent the valley into a communication blackout. Two and a half months later, only landlines and post-paid mobile services (excluding SMS) have been restored. Internet and data services remain closed.</p>
<p style="text-align: justify; ">With thousands of arrests, instances of violence from both militants and the Armed Forces reported in the international press, the impact of this shutdown has been immense. But it has also inflicted a huge monetary cost. A report in the BBC, published on 8 October, stated that “the Kashmir Chamber of Commerce and Industry estimates the shutdown has already cost the region more than $1.4bn (around ₹9,800 crore), and thousands of jobs have been lost".</p>
<p><strong>Shutting down of startups</strong></p>
<p style="text-align: justify; ">In a region ridden with decades of armed conflict and the presence of the Indian armed forces in large numbers, entrepreneurship is no easy feat. Kashmiris have typically chosen public sector jobs, but the valley’s entrepreneurs agree that over the last decade or so, young and resilient men and women from the valley had been working to change this with online and offline ventures.</p>
<p style="text-align: justify; ">In fact, the startup ecosystem in Kashmir seemed to have been poised for growth. Notably, in September last year, the Jammu and Kashmir Entrepreneurship Development Institute (JKEDI), established by the state government, released the J&K Startup Policy 2018, which aimed to boost the startup ecosystem by granting founders a monthly allowance of up to ₹12,000 for a period of one year during incubation. Recognized startups would be provided with one-time assistance of up to ₹12 Lakh for product research and development, marketing and publicity.</p>
<p style="text-align: justify; ">It was around this time that Samiullah started FastBeetle. He had noticed that though logistics companies existed, they catered largely to big organizations like Amazon. FastBeetle tied up with smaller businesses, including close to 200 women in the valley who were making and selling apparel and other wares on Instagram. “They would have trouble going out every day on multiple deliveries since it is a conservative society," he says. FastBeetle had over 30 merchants within its first month of operations. Over the first five months, they had grown to making 100 deliveries per day, employed a team of six, got an office space and two bikes. In a year, they had generated a positive cash flow despite numerous internet shutdowns imposed in the valley.</p>
<p style="text-align: justify; ">Since August 5, the company has been plunged into what Samiullah believes is an interminable downturn. He estimates monetary losses at approximately ₹15 lakh, not considering the ₹4 lakh he invested in the Android app and another ₹3 lakh on the iOS app that never took off. In the unlikely event that restrictions are lifted immediately and business as usual resumes in the valley, it will cost him another ₹10 lakhs to restart the company.</p>
<p style="text-align: justify; ">Financial losses aside, he says, it is the time and passion he had invested in the business that won’t come back. And his young employees face an uncertain future as well. One of his delivery boys, Arsalan Shabir Bhat, 21, doesn’t know what the future holds both for him or the valley. “The salary of ₹10,000 for me was good, I was satisfied. “<em>Aage ka nahi pata par haalaat bohot kharab hai. Filhaal toh baithe hi hai ghar pe</em> (I don’t know about the future but the current situation is grim. For now, I am sitting at home)," he says.</p>
<p style="text-align: justify; ">Through all this, the state administration and Union government are trying to push the narrative of development. In late September, minister of state for finance and corporate affairs Anurag Thakur, told news outlets: “Our government has taken a historic decision to abrogate Article 370. Now, J&K will witness massive development." Yet, the 33 startups registered with the JKEDI and 70 with the Startup India portal in J&K, among others that run on private funding and bootstrapping models, have been struggling since this decision was taken. Earlier this week, militants attacked two non-local apple traders in the valley, casting doubt on the claim that Kashmir is safe for business.</p>
<p style="text-align: justify; ">It was to assess conflicting claims such as these, by providing an insight into the lives of people in the valley, that Zaid restarted Free Press Kashmir in 2017 (it was previously shut down in 2014), using investments from his family business. “It’s all the more important now. Because authentic voices from Kashmir are not coming out," says Zaid. He says that while the international media focuses on Kashmir from a breaking news perspective and some of the Indian press takes a nationalistic line, human perspectives from the valley largely remained unheard.</p>
<p style="text-align: justify; ">“There was a gap of a human narrative coming out of Kashmir, which we saw and filled," he says. “If we were to relaunch right now, I don’t think there would be a lot of positive stories. There would be stories of struggle, survival, trauma, pain, hardship. That’s what we would be reporting right now."</p>
<p>With a civil curfew reportedly in place in the valley as a means of protest, even businesses that could have provided financial assistance to these startups are not in operation.</p>
<p style="text-align: justify; ">“The economy is so badly hit and it will take another year or two years or more—no idea how long—to recover. Because right now advertisers will take some time to recover as well," says Zaid. “I don’t think we can sustain that long. Our business was at 50% of sustenance and now it’s down to 0. Traffic is down to 0 form 350,000-500,000 hits."</p>
<p style="text-align: justify; ">Some investors like Asmat Ashai, who runs the US-based non-profit organization Funkar International, would provide financial assistance to young Kashmiri artists, nevertheless maintain that the difficult situation will not deter them from providing support. “I will continue to help anyone who asks me for help because we cannot give up and we will not be broken. We will stay the course and save whatever we have in spite of the abrogation of all the articles. That is paperwork. Kashmiris will not be broken."</p>
<p><strong>Lost hope</strong></p>
<p style="text-align: justify; ">According to the Software Freedom Law Foundation, a legal services organization working to protect digital freedom, Kashmir has had the maximum number of internet shutdowns in the country—55, of varying durations and extents, in 2019 alone, and a total of 180 since 2015. This time however, the shutdown was far more severe—all media and communication platforms, including landlines, internet, news publications and certain television services were suspended. “A large majority of businesses today rely on the internet for some part if not all of their function," says Ambika Tandon, policy officer, Centre for Internet and Society (CIS), Bengaluru.</p>
<p style="text-align: justify; ">CIS published a digital book titled <em>Internet Shutdown Stories</em> in May 2018 which tracked how internet blockades impact lives and livelihoods in India. “We collected stories from Internet Service Providers (ISPs) and digital marketing firms in Kashmir that were on the brink of closing down due to the frequency of shutdowns in the valley. The reporters spoke to musicians who used YouTube as a means to earn a livelihood and popularity, and were doubly upset with the effect on their income and their freedom of expression. Given the absence of any public notice before shutdowns, or information regarding the extent and duration of shutdowns, the government definitely has the minimal responsibility of compensating direct losses incurred by those who cannot afford it," says Tandon.</p>
<p style="text-align: justify; ">Take the example of Furqan Qureshi, who set up KartFood, popularly called “Kashmir’s Zomato", when he was still pursuing a commerce degree from Islamia College, Srinagar. He started in 2017 and would take orders on call. Once the response grew, Qureshi had a website and application built. But for two months thereafter, in May and June 2017, there was a clampdown on the internet. “I suffered a loss of close to ₹1.5 lakh and that time I had no investment, but I had employed people and was responsible for them, so I persevered and started again from July. It’s always about working from scratch in Kashmir. Whenever there is a shutdown, you start from zero," he says on the phone from Bengaluru.</p>
<p>Qureshi says they always fought the odds and remained in business through internet shutdowns during which the team, which stood at 25-30 as on 5 August, would call customers and coordinate deliveries on the phone.</p>
<p>This dedication is what eventually resulted in his first round of investment in February 2018, from a local Kashmiri businessman. “I upgraded the app, included more restaurants, added delivery tracking features and was creating jobs."</p>
<p style="text-align: justify; ">Since 5 August, however, not only have communication channels been hit, initially there was complete restriction on movement within the valley. “I had to leave Kashmir around six or seven days after the clampdown, since I live in an area where there was stone-pelting every day and the police was entering homes and picking up boys. My parents were scared and said it was better to go to Bengaluru and stay here," he says, now hoping he can set up a small restaurant in the city, using whatever he has managed to save.</p>
<p>As young entrepreneurs leave, the JKEDI remains hopeful that the startup ecosystem will bounce back once normalcy returns. “I think as soon as the internet starts working again we will push the things here as well, with the policy we are trying to give some incentive to these people, so that we can get these startups back and they can inspire other people to start their own," says Irtif Lone, in-charge, Centre for Innovation Incubation and Business Modelling, JKEDI.</p>
<p style="text-align: justify; ">“It is difficult for people to choose to pursue a startup and these situations make it even tougher. We will be pushing all the startups that have made a mark and are now suffering due to the financial constraints. They will be given an incentive as soon as possible so that none of them are starved for finances."</p>
<p style="text-align: justify; ">But there are doubts about whether such promises can be fulfilled. In any case, it may already be too late. Shayan Nabi, 29, who ran a digital marketing company and had invested in other ventures of his own such as KashmirCalling (to coordinate private carpooling), has given up hope. As he waits for his employees to receive the emails he has sent asking them to look for alternative opportunities, he himself is facing professional uncertainty in Delhi. “I have been very vocal about providing internet freedom in Kashmir. It’s a basic human right. But it always falls on deaf ears." He adds: “I had ideas about making Kashmir digital. But I am sorry, not any more. Not after all the humiliation we have been through."</p>
<p style="text-align: justify; ">The road to recovery from here is paved with crippling debt, unemployment and loss of morale. What was once seen as an act of resilience amidst conflict, has today crumbled due to a State diktat, paradoxically executed with promises of peace and prosperity.</p>
<p style="text-align: justify; ">When Mir finally landed in Bengaluru on the morning of 5 August, she broke down when she finally heard the news. Today, with payments stuck with vendors and Mir’s inability to reach her artisans and wazas (Kashmiri cooks) in the valley, the Manzar website reads, “All verticals of Manzar Experience Curators... are currently unoperational due to the unprecedented lockdown in Kashmir". She fears that her venture, which set out to create conversations about Kashmir around the country, has lost all meaning and purpose. “I am not someone who set out with hate, I set out with love and passion and this idea of changing things," she says.</p>
<p style="text-align: justify; ">“Do you think with the kind of environment that this country has created for a Kashmiri today, I can go out and do what I do? Is it safe for someone like me to take a place somewhere in Bengaluru to open a place that serves authentic Kashmiri food? I am scared it could be burnt down the next day."</p>
<p>The question she now asks herself transcends the uncertainty of business in the valley, and straddles a precariousness both political and personal: “Where do I go from here?"</p>
<p> </p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/news/livemint-asmita-bakshi-october-18-2019-dystopia-vs-development'>https://cis-india.org/internet-governance/news/livemint-asmita-bakshi-october-18-2019-dystopia-vs-development</a>
</p>
No publisherAsmita BakshiFreedom of Speech and ExpressionInternet Governance2019-10-20T06:31:00ZNews ItemDesigning a Human Rights Impact Assessment for ICANN’s Policy Development Processes
https://cis-india.org/internet-governance/blog/designing-a-human-rights-impact-assessment-for-icann2019s-policy-development-processes
<b>As co-chairs of Cross Community Working Party on Human Rights (CCWP-HR) at International Corporation of Names and Numbers (ICANN), Akriti Bopanna and Collin Kurre executed a Human Rights Impact Assessment for ICANN's processes. It was the first time such an experiment was conducted, and unique because of being a multi-stakeholder attempt. </b>
<p style="text-align: justify; ">This report outlines the iterative research-and-design process carried out between November 2017 and July 2019, focusing on successes and lessons learned in anticipation of the ICANN Board’s long-awaited approval of the Work Stream 2 recommendations on Accountability. The process, findings, and recommendations will be presented by Akriti and Austin at CCWP-HR’s joint session with the Government Advisory Council at ICANN66 in Montreal during 2nd-8th November.</p>
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<p style="text-align: justify; ">Click to download the <a class="external-link" href="http://cis-india.org/internet-governance/files/designing-a-human-rights-impact-assessment-for-icann2019s-policy-development-processes">full research paper here</a>.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/designing-a-human-rights-impact-assessment-for-icann2019s-policy-development-processes'>https://cis-india.org/internet-governance/blog/designing-a-human-rights-impact-assessment-for-icann2019s-policy-development-processes</a>
</p>
No publisherCollin Kure, Akriti Bopanna and Austin RuckstuhlFreedom of Speech and ExpressionInternet Governance2019-10-03T14:43:28ZBlog EntryComparison of the Manila Principles to Draft of The Information Technology [Intermediary Guidelines(Amendment) Rules], 2018
https://cis-india.org/internet-governance/blog/akriti-bopanna-and-gayathri-puthran-comparison-of-manila-principles-to-draft-it-intermediary-guidelines-rules
<b>This paper looks at the Manila Principles intermediary liability framework in comparison to the amended draft Information Technology [Intermediaries Guidelines (Amendment)] Rules, 2018 introduced by the Ministry of Electronics and Information Technology (MeitY) in December, 2018. </b>
<h3>Introduction</h3>
<p style="text-align: justify;">In December 2018, the Ministry of Electronics and Information Technology (MeitY) introduced amendments to the draft Information Technology [Intermediaries Guidelines (Amendment)] Rules, 2018 [“the 2018 Rules”]. The proposed changes ranged from asking intermediaries to proactively filter content using automated technology to prohibiting promotion of substances such as cigarettes and alcohol. In <a class="external-link" href="https://cis-india.org/internet-governance/resources/Intermediary Liability Rules 2018.pdf">CIS's submission</a> to the Government, we highlighted our various concerns with the proposed rules. Building on the same, this paper aims to assess how the new draft rules measure up to the best practices on Intermediary Liability as prescribed in the Manila Principles. These principles were formulated in 2015 by a coalition of civil society groups and experts, including CIS, in order to establish best practice to guide policies pertaining to intermediary liability.</p>
<p style="text-align: justify;">Depending on their function, intermediaries have a varying hand in hosting activism and discourse that are integral to a citizen’s right to freedom of speech and expression. The Manila Principles are an attempt at articulating best practices that lead to the development of intermediary liability regimes which respect human rights.</p>
<p style="text-align: justify;">Consequently, the paper examines the draft rules to assess their compatibility with the Manila Principles. It provides recommendations such that, where needed, the rules are aligned with the aforementioned principles. The assessment is done based on the insight into the rationale of the Manila Principles provided in its Background Paper.</p>
<p style="text-align: justify;"><strong>Disclosure</strong>: CIS is a recipient of research grants from Facebook India. </p>
<hr />
<p style="text-align: justify;">Click to <a class="external-link" href="https://cis-india.org/internet-governance/files/draft-rules-and-manila-principles-1">download</a> the research paper which was edited by Elonnai Hickok and reviewed by Torsha Sarkar.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/akriti-bopanna-and-gayathri-puthran-comparison-of-manila-principles-to-draft-it-intermediary-guidelines-rules'>https://cis-india.org/internet-governance/blog/akriti-bopanna-and-gayathri-puthran-comparison-of-manila-principles-to-draft-it-intermediary-guidelines-rules</a>
</p>
No publisherAkriti Bopanna and Gayatri PuthranFreedom of Speech and ExpressionInternet Governance2020-06-01T07:48:17ZBlog EntryExamining the Constitutionality of the Ban on Broadcast of News by Private FM and Community Radio Stations
https://cis-india.org/internet-governance/blog/nlud-journal-of-legal-studies-september-27-2019-gurshabad-grover-torsha-sarkar-rajashri-seal-neil-trivedi-examining-the-constitutionality-of-ban-on-broadcast-of-news-by-private-fm-and-community-radio-stations
<b>Gurshabad Grover and Torsha Sarkar along with Rajashri Seal and Neil Trivedi co-authored a paper that examined the constitutionality of the government prohibition on the broadcast of news against private and community FM channels.</b>
<p style="text-align: justify; ">In the article, the authors also mapped chronologically the history of the development of community and private radio channels in India. As part of the legal analysis, the authors examined the prohibition on the touchstones of existing Indian jurisprudence on media freedom and speech rights. Finally, they also utilized some key points made by the Additional Solicitor General in the Shreya Singhal case, to propose an alternative regulatory framework that would address both the interests of the radio channels and the government.</p>
<p style="text-align: justify; ">In 1995, the Supreme Court declared airwaves to be public property in the seminal case of The Secretary, Ministry of Information and Broadcasting v Cricket Association of Bengal, and created the stepping stones for liberalization of broadcasting media from government monopoly. Despite this, community radio and private FM channels, in their nearly two decades of existence, have been unable to broadcast their own news content because of the Government’s persisting prohibition on the same.In this paper, we document the historical developments surrounding the issue, and analyse the constitutional validity of this prohibition on the touchstone of the existing jurisprudence on free speech and media freedom. Additionally, we also propose an alternative regulatory framework which would assuage the government’s apprehensions regarding radicalisation through radio spaces, as well as ensure that the autonomy of these stations is not curtailed.</p>
<hr />
<p style="text-align: justify; ">Click to download the full paper by NLUD Journal of Legal Studies <a class="external-link" href="http://cis-india.org/internet-governance/files/ban-of-news-on-radio.pdf">here</a>.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/nlud-journal-of-legal-studies-september-27-2019-gurshabad-grover-torsha-sarkar-rajashri-seal-neil-trivedi-examining-the-constitutionality-of-ban-on-broadcast-of-news-by-private-fm-and-community-radio-stations'>https://cis-india.org/internet-governance/blog/nlud-journal-of-legal-studies-september-27-2019-gurshabad-grover-torsha-sarkar-rajashri-seal-neil-trivedi-examining-the-constitutionality-of-ban-on-broadcast-of-news-by-private-fm-and-community-radio-stations</a>
</p>
No publisherGurshabad Grover, Torsha Sarkar, Rajashri Seal and Neil TrivediFreedom of Speech and ExpressionInternet Governance2019-09-27T16:36:46ZBlog Entry