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Shreya Singhal and 66A
https://cis-india.org/internet-governance/blog/economic-and-political-weekly-sunil-abraham-april-11-2015-shreya-singhal-and-66a
<b>Most software code has dependencies. Simple and reproducible methods exist for mapping and understanding the impact of these dependencies. Legal code also has dependencies --across court orders and within a single court order. And since court orders are not produced using a structured mark-up language, experts are required to understand the precedential value of a court order.</b>
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<p>The article was published in the Economic and Political Weekly Vol-L No.15. Vidushi Marda, programme officer at the Centre for Internet and Society, was responsible for all the research that went into this article. <a href="https://cis-india.org/internet-governance/blog/shreya-singhal-judgment.pdf" class="external-link">PDF version here</a>.</p>
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<p style="text-align: justify; ">As a non–lawyer and engineer, I cannot authoritatively comment on the Supreme Court’s order in <i>Shreya Singhal vs Union of India </i>(2015) on sections of the Information Technology Act of 2000, so I have tried to summarise a variety of views of experts in this article. The <i>Shreya Singhal</i> order is said to be unprecedented at least for the last four decades and also precedent setting as its lucidity, some believe, will cause a ripple effect in opposition to a restrictive understanding of freedom of speech and expression, and an expansiveness around reasonable restrictions. Let us examine each of the three sections that the bench dealt with.</p>
<h3 style="text-align: justify; ">The Section in Question</h3>
<p>Section 66A of the IT Act was introduced in a hastily-passed amendment. Unfortunately, the language used in this section was a pastiche of outdated foreign laws such as the UK Communications Act of 2003, Malicious Communications Act of 1988 and the US Telecommunications Act, 1996.<sup>1</sup> Since the amendment, this section has been misused to make public examples out of innocent, yet uncomfortable speech, in order to socially engineer all Indian netizens into self-censorship.<sup>2</sup></p>
<p><b>Summary: </b> The Court struck down Section 66A of the IT Act in its entirety holding that it was not saved by Article 19(2) of the Constitution on account of the expressions used in the section, such as "annoying," "grossly offensive," "menacing,", "causing annoyance." The Court justified this by going through the reasonable restrictions that it considered relevant to the arguments and testing them against S66A. Apart from not falling within any of the categories for which speech may be restricted, S66A was struck down on the grounds of vagueness, over-breadth and chilling effect. The Court considered whether some parts of the section could be saved, and then concluded that no part of S66A was severable and declared the entire section unconstitutional. When it comes to regulating speech in the interest of public order, the Court distinguished between discussion, advocacy and incitement. It considered the first two to fall under the freedom of speech and expression granted under Article 19(1)(a), and held that it was only incitement that attracted Article 19(2).</p>
<p><b>Between Speech and Harm</b></p>
<p>Gautam Bhatia, a constitutional law expert, has an optimistic reading of the judgment that will have value for precipitating the ripple effect. According to him, there were two incompatible strands of jurisprudence which have been harmonised by collapsing tendency into imminence.<sup>3</sup> The first strand, exemplified by <i>Ramjilal Modi vs State of </i>UP<sup>4</sup> and <i>Kedar Nath Singh vs State of Bihar,</i><sup>5</sup> imported an older and weaker American standard, that is, the tendency test, between the speech and public order consequences. The second strand exemplified by<i>Ram Manohar Lohia vs State of </i>UP<i>,</i><sup>6</sup><i> S Rangarajan vs P Jagjivan Ram</i>,<sup>7</sup> and<i>Arup Bhuyan vs Union of India,</i><sup>8</sup> all require greater proximity between the speech and the disorder anticipated. In <i>Shreya Singhal, </i>the Supreme Court held that at the stage of incitement, the reasonable restrictions will step in to curb speech that has a tendency to cause disorder. Other experts are of the opinion that Justice Nariman was doing no such thing, and was only sequentially applying all the tests for free speech that have been developed within both these strands of precedent. In legal activist Lawrence Liang's analysis, "Ramjilal Modi was decided by a seven judge bench and Kedarnath by a constitutional bench. As is often the case in India, when subsequent benches of a lower strength want to distinguish themselves from older precedent but are unable to overrule them, they overcome this constraint through a doctrinal development by stealth. This is achieved by creative interpretations that chip away at archaic doctrinal standards without explicitly discarding them."<sup>9</sup></p>
<p><b>Compatibility with US Jurisprudence</b></p>
<p>United States (US) jurisprudence has been imported by the Indian Supreme Court in an inconsistent manner. Some judgments hold that the American first amendment harbours no exception and hence is incompatible with Indian jurisprudence, while other judgments have used American precedent when convenient. Indian courts have on occasion imported an additional restriction beyond the eight available in 19(2)-the ground of public interest, best exemplified by the cases of <i>K A Abbas</i><sup>10</sup><i> </i>and <i>Ranjit Udeshi.</i><sup>11</sup> The bench in its judgment-which has been characterised by Pranesh Prakash as a masterclass in free speech jurisprudence<sup>12</sup>-clarifies that while the American first amendment jurisprudence is applicable in India, the only area where a difference is made is in the "sub serving of general public interest" made under the US law. This eloquent judgment will hopefully instruct judges in the future on how they should import precedent from American free speech jurisprudence.</p>
<p><b>Article 14 Challenge</b></p>
<p>The Article 14 challenge brought forward by the petitioners contended that Section 66A violated their fundamental right to equality because it differentiated between offline and online speech in terms of the length of maximum sentence, and was hence unconstitutional. The Court held that an intelligible differentia, indeed, did exist. It found so on two grounds. First, the internet offered people a medium through which they can express views at negligible or no cost. Second, the Court likened the rate of dissemination of information on the internet to the speed of lightning and could potentially reach millions of people all over the world. Before <i>Shreya Singhal</i>, the Supreme Court had already accepted medium-specific regulation. For example in <i>K A Abbas</i>, the Court made a distinction between films and other media, stating that the impact of films on an average illiterate Indian viewer was more profound than other forms of communication. The pessimistic reading of <i>Shreya Singhal</i> is that Parliament can enact medium-specific law as long as there is an intelligible differentia which could even be a technical difference-speed of transmission. However, the optimistic interpretation is that medium-specific law can only be enacted if there are medium-specific harms, e g, phishing, which has no offline equivalent. If the executive adopts the pessimistic reading, then draconian sections like 66A will find their way back into the IT Act. Instead, if they choose the optimistic reading, they will introduce bills that fill the regulatory vacuum that has been created by the striking down of S66A, that is, spam and cyberbullying.</p>
<p><b>Section 79 </b></p>
<p>Section 79 was partially read down. This section, again introduced during the 2008 amendment, was supposed to give legal immunity to intermediaries for third party content by giving a quick redressal for those affected by providing a mechanism for takedown notices in the Intermediaries Guidelines Rules notified in April 2011. But the section and rules had enabled unchecked invisible censorship<sup>13</sup> in India and has had a demonstrated chilling effect on speech<sup>14</sup> because of the following reasons:</p>
<p>One, there are additional unconstitutional restrictions on speech and expression. Rule 3(2) required a standard "rules and regulation, terms and condition or user agreement" that would have to be incorporated by all intermediaries. Under these rules, users are prohibited from hosting, displaying, uploading, modifying, publishing, transmitting, updating or sharing any information that falls into different content categories, a majority of which are restrictions on speech which are completely out of the scope of Article 19(2). For example, there is an overly broad category which contains information that harms minors in any way. Information that "belongs to another person and to which the user does not have any right to" could be personal information or could be intellectual property. A much better intermediary liability provision was introduced into the Copyright Act with the 2013 amendment. Under the Copyright Act, content could be reinstated if the takedown notice was not followed up with a court order within 21 days.<sup>15</sup> A counter-proposal drafted by the Centre for Internet and Society for "Intermediary Due Diligence and Information Removal," has a further requirement for reinstatement that is not seen in the Copyright Act.<sup>16</sup></p>
<p>Two, a state-mandated private censorship regime is created. You could ban speech online without approaching the court or the government. Risk-aversive private intermediaries who do not have the legal resources to subjectively determine the legitimacy of a legal claim err on the side of caution and takedown content.</p>
<p>Three, the principles of natural justice are not observed by the rules of the new censorship regime. The creator of information is not required to be notified nor given a chance to be heard by the intermediary. There is no requirement for the intermediary to give a reasoned decision.</p>
<p>Four, different classes of intermediaries are all treated alike. Since the internet is not an uniform assemblage of homogeneous components, but rather a complex ecosystem of diverse entities, the different classes of intermediaries perform different functions and therefore contribute differently to the causal chain of harm to the affected person. If upstream intermediaries like registrars for domain names are treated exactly like a web-hosting service or social media service then there will be over-blocking of content.</p>
<p>Five, there are no safeguards to prevent abuse of takedown notices. Frivolous complaints could be used to suppress legitimate expressions without any fear of repercussions and given that it is not possible to expedite reinstatement of content, the harm to the creator of information may be irreversible if the information is perishable. Transparency requirements with sufficient amounts of detail are also necessary given that a human right was being circumscribed. There is no procedure to have the removed information reinstated by filing a counter notice or by appealing to a higher authority.</p>
<p>The judgment has solved half the problem by only making intermediaries lose immunity if they ignore government orders or court orders. Private takedown notices sent directly to the intermediary without accompanying government orders or courts order no longer have basis in law. The bench made note of the Additional Solicitor General's argument that user agreement requirements as in Rule 3(2) were common practice across the globe and then went ahead to read down Rule 3(4) from the perspective of private takedown notices. One way of reading this would be to say that the requirement for standardised "rules and regulation, terms and condition or user agreement" remains. The other more consistent way of reading this part of the order in conjunction with the striking down of 66A would be to say those parts of the user agreement that are in violation of Article 19(2) have also been read down.</p>
<p>This would have also been an excellent opportunity to raise the transparency requirements both for the State and for intermediaries: for (i) the person whose speech is being censored, (ii) the persons interested in consuming that speech, and (iii) the general public. It is completely unclear whether transparency in the case of India has reduced the state appetite for censorship. Transparency reports from Facebook, Google and Twitter claim that takedown notices from the Indian government are on the rise.<sup>17</sup> However, on the other hand, the Department of Electronics and Information Technology (DEITY) claims that government statistics for takedowns do not match the numbers in these transparency reports.<sup>18</sup> The best way to address this uncertainty would be to require each takedown notice and court order to be made available by the State, intermediary and also third-party monitors of free speech like the Chilling Effects Project.</p>
<p><b>Section 69A</b></p>
<p>The Court upheld S69A which deals with website blocking, and found that it was a narrowly-drawn provision with adequate safeguards, and, hence, not constitutionally infirm. In reality, unfortunately, website blocking usually by internet service providers (ISPs) is an opaque process in India. Blocking under S69A has been growing steadily over the years. In its latest response to an RTI (right to information)<sup>19</sup> query from the Software Freedom Law Centre, DEITY said that 708 URLs were blocked in 2012, 1,349 URLs in 2013, and 2,341 URLs in 2014. On 30 December 2014 alone, the centre blocked 32 websites to curb Islamic State of Iraq and Syria propaganda, among which were "pastebin" websites, code repository (Github) and generic video hosting sites (Vimeo and Daily Motion).<sup>20</sup> Analysis of leaked block lists and lists received as responses to RTI requests have revealed that the block orders are full of errors (some items do not exist, some items are not technically valid web addresses), in some cases counter speech which hopes to reverse the harm of illegal speech has also been included, web pages from mainstream media houses have also been blocked and some URLs are base URLs which would result in thousands of pages getting blocked when only a few pages might contain allegedly illegal content.<sup>21</sup></p>
<p><b>Pre-decisional Hearing</b></p>
<p>The central problem with the law as it stands today is that it allows for the originator of information to be isolated from the process of censorship. The Website Blocking Rules provide that all "reasonable efforts" must be made to identify the originator or the intermediary who hosted the content. However, Gautam Bhatia offers an optimistic reading of the judgment, he claims that the Court has read into this "or" and made it an "and"-thus requiring that the originator <i>must also</i> be notified of blocks when he or she can be identified.<sup>22</sup></p>
<p><b>Transparency</b></p>
<p>Usually, the reasons for blocking a website are unknown both to the originator of material as well as those trying to access the blocked URL. The general public also get no information about the nature and scale of censorship unlike offline censorship where the court orders banning books and movies are usually part of public discourse. In spite of the Court choosing to leave Section 69A intact, it stressed the importance of a written order for blocking, so that a writ may be filed before a high court under Article 226 of the Constitution. While citing this as an existing safeguard, the Court seems to have been under the impression that either the intermediary or the originator is normally informed, but according to Apar Gupta, a lawyer for the People's Union for Civil Liberties, "While the rules indicate that a hearing is given to the originator of the content, this safeguard is not evidenced in practice. Not even a single instance exists on record for such a hearing."<sup>23</sup> Even worse, block orders have been unevenly implemented by ISPs with variations across telecom circles, connectivity technologies, making it impossible for anyone to independently monitor and reach a conclusion whether an internet resource is inaccessible as a result of a S69A block order or due to a network anomaly.</p>
<p>Rule 16 under S69A requires confidentiality with respect to blocking requests and complaints, and actions taken in that regard. The Court notes that this was argued to be unconstitutional, but does not state their opinion on this question. Gautam Bhatia holds the opinion that this, by implication, requires that requests cannot be confidential. Chinmayi Arun, from the Centre for Communication Governance at National Law University Delhi, one of the academics supporting the petitioners, holds the opinion that it is optimism carried too far to claim that the Court noted the challenge to Rule 16 but just forgot about it in a lack of attention to detail that is belied by the rest of the judgment.</p>
<p>Free speech researchers and advocates have thus far used the RTI Act to understand the censorship under S69A. The Centre for Internet and Society has filed a number of RTI queries about websites blocked under S69A and has never been denied information on grounds of Rule 16.<sup>24</sup> However, there has been an uneven treatment of RTI queries by DEITY in this respect, with the Software Freedom Law Centre<sup>25</sup> being denied blocking orders on the basis of Rule 16. The Court could have protected free speech and expression by reading down Rule 16 except for a really narrow set of exceptions wherein only aggregate information would be made available to affected parties and members of the public.</p>
<p><b>Conclusions</b></p>
<p>In <i>Shreya Singhal</i>, the Court gave us great news: S66A has been struck down; good news: S79(3) and its rules have been read down; and bad news: S69A has been upheld. When it comes to each section, the impact of this judgment can either be read optimistically or pessimistically, and therefore we must wait for constitutional experts to weigh in on the ripple effect that this order will produce in other areas of free speech jurisprudence in India. But even as free speech activists celebrate <i>Shreya Singhal</i>,<i> </i>some are bemoaning the judgment as throwing the baby away with the bathwater, and wish to reintroduce another variant of S66A. Thus, we must remain vigilant.</p>
<p><b>Notes</b></p>
<p>1 G S Mudur (2012): "66A 'Cut and Paste Job,'" <i>The Telegraph, </i>3 December, visited on 3 April, 2015, <a href="http://www.telegraphindia.com/1121" title="http://www.telegraphindia.com/1121">http://www.telegraphindia.com/1121</a> 203/jsp/frontpage/story_16268138.jsp</p>
<p>2 Sunil Abraham (2012): "The Five Monkeys and Ice Cold Water," Centre for Internet and Society, 26 September, visited on 3 April 2015, <a href="http://cis-india.org/internet-governance/www-deccan-chronicle-sep-16-2012-sunil-abraham-the-five-monkeys-and-ice-cold-water" title="http://cis-india.org/internet-governance/www-deccan-chronicle-sep-16-2012-sunil-abraham-the-five-monkeys-and-ice-cold-water"> http://cis-india.org/internet-governance/www-deccan-chronicle-sep-16-201... </a></p>
<p>3 Gautam Bhatia (2015): "The Striking Down of 66A: How Free Speech Jurisprudence in India Found Its Soul Again," Indian Constitutional Law and Philosophy, <i> </i>26 March, visited on 4 April 2015, <a href="https://indconlawphil.wordpress.com/2015/03/26/the-striking-down-of-section-66a-how-indian-free-speech-jurisprudence-found-its-soul-again/" title="https://indconlawphil.wordpress.com/2015/03/26/the-striking-down-of-section-66a-how-indian-free-speech-jurisprudence-found-its-soul-again/"> https://indconlawphil.wordpress.com/2015/03/26/the-striking-down-of-sect... </a></p>
<p>4 <i>Ramjilal Modi vs State of UP</i>, 1957, SCR 860.</p>
<p>5 <i>Kedar Nath Singh vs State of Bihar</i>, 1962, AIR 955.</p>
<p>6 <i>Ram Manohar Lohia vs State of UP</i>, AIR, 1968 All 100.</p>
<p>7 <i>S Rangarajan vs P Jagjivan Ram, </i>1989, SCC(2), 574.</p>
<p>8 <i>Arup Bhuyan vs Union of India, </i>(2011), 3 SCC 377.</p>
<p>9 Lawrence Liang, Alternative Law Forum, personal communication to author, 6 April 2015.</p>
<p>10 <i>K A Abbas vs Union of India, </i>1971 SCR (2), 446.</p>
<p>11 <i>Ranjit Udeshi vs State of Maharashtra,</i>1965 SCR (1) 65.</p>
<p>12 Pranesh Prakash (2015): "Three Reasons Why 66A Verdict Is Momentous"<i>/ Times of India</i>/(29 March). Visited on 6 April 2015, <a href="http://timesofindia.indiatimes.com/home/sunday-times/all-that-matters/Three-reasons-why-66A-verdict-is-momentous/articleshow/46731904.cms" title="http://timesofindia.indiatimes.com/home/sunday-times/all-that-matters/Three-reasons-why-66A-verdict-is-momentous/articleshow/46731904.cms"> http://timesofindia.indiatimes.com/home/sunday-times/all-that-matters/Th... </a></p>
<p>13 Pranesh Prakash (2011): "Invisble Censorship: How the Government Censors Without Being Seen," The Centre for Internet and Society, 14 December, visited on 6 April 2015, <a href="http://cis-india.org/internet-governance/blog/invisible-censorship" title="http://cis-india.org/internet-governance/blog/invisible-censorship"> http://cis-india.org/internet-governance/blog/invisible-censorship </a></p>
<p>14 Rishabh Dara (2012): "Intermediary Liability in India: Chilling Effects on Free Expression on the Internet," The Centre for Internet and Society, 27 April, visited on 6 April 2015, <a href="http://cis-india.org/internet-governance/chilling-effects-on-free-expression-on-internet" title="http://cis-india.org/internet-governance/chilling-effects-on-free-expression-on-internet"> http://cis-india.org/internet-governance/chilling-effects-on-free-expres... </a> .</p>
<p>15 Rule 75, Copyright Rules, 2013.</p>
<p>16 The Draft Counter Proposal is available at <a href="http://cis-india.org/internet-governance/counter-proposal-by-cis-draft-it-intermediary-due-diligence-and-information-removal-rules-2012.pdf/view" title="http://cis-india.org/internet-governance/counter-proposal-by-cis-draft-it-intermediary-due-diligence-and-information-removal-rules-2012.pdf/view"> http://cis-india.org/internet-governance/counter-proposal-by-cis-draft-i... </a></p>
<p>17 According to Facebook's transparency report, there were 4,599 requests in the first half of 2014, followed by 5,473 requests in the latter half. Available at <a href="https://govtrequests.facebook" title="https://govtrequests.facebook">https://govtrequests.facebook</a>. com/country/India/2014-H2/ also see Google's transparency report available at http: //www.google. com/transparencyreport/removals/government/IN/?hl=en and Twitter's report, available at https:// transparency.twitter.com/country/in</p>
<p>18 Surabhi Agarwal (2015): "Transparency Reports of Internet Companies are Skewed: Gulashan Rai," <i>Business Standard, </i>31 March, viewed on 5 April 2015, <a href="http://www.business-standard.com/article/current-affairs/transparency-reports-of-internet-companies-are-skewed-gulshan-rai-115033000808_1.html" title="http://www.business-standard.com/article/current-affairs/transparency-reports-of-internet-companies-are-skewed-gulshan-rai-115033000808_1.html"> http://www.business-standard.com/article/current-affairs/transparency-re... </a> .</p>
<p>19 <a href="http://sflc.in/deity-says-2341-urls-were-blocked-in-2014-refuses-to-reveal-more/" title="http://sflc.in/deity-says-2341-urls-were-blocked-in-2014-refuses-to-reveal-more/"> http://sflc.in/deity-says-2341-urls-were-blocked-in-2014-refuses-to-reve... </a></p>
<p>20 "32 Websites Go Blank<i>,</i>"<i> The Hindu, </i>1 January 2015, viewed on 6 April 2015, <a href="http://www.thehindu.com/news/national/now-modi-govt-blocks-32-websites/article6742372.ece" title="http://www.thehindu.com/news/national/now-modi-govt-blocks-32-websites/article6742372.ece"> http://www.thehindu.com/news/national/now-modi-govt-blocks-32-websites/a... </a></p>
<p>21 Pranesh Prakash (2012): "Analysing Latest List of Blocked Sites (Communalism and Rioting Edition)," 22 August, viewed on 6 April 2015, <a href="http://cis-india.org/internet-governance/blog/analysing-blocked-sites-riots-communalism" title="http://cis-india.org/internet-governance/blog/analysing-blocked-sites-riots-communalism"> http://cis-india.org/internet-governance/blog/analysing-blocked-sites-ri... </a> . Also, see Part II of the same series at <a href="http://cis-india.org/internet-governance/analyzing-the-latest-list-of-blocked-sites-communalism-and-rioting-edition-part-ii" title="http://cis-india.org/internet-governance/analyzing-the-latest-list-of-blocked-sites-communalism-and-rioting-edition-part-ii"> http://cis-india.org/internet-governance/analyzing-the-latest-list-of-bl... </a> and analysis of blocking in February 2013, at <a href="http://cis-india.org/internet-governance/blog/analyzing-latest-list-of-blocked-urls-by-dot" title="http://cis-india.org/internet-governance/blog/analyzing-latest-list-of-blocked-urls-by-dot"> http://cis-india.org/internet-governance/blog/analyzing-latest-list-of-b... </a></p>
<p>22 Gautam Bhatia (2015): "The Supreme Court's IT Act Judgment, and Secret Blocking," Indian Constitutional Law and Philosophy, 25 March, viewed on 6 April 2015, <a href="https://indconlawphil.wordpress.com/2015/03/25/the-supreme-courts-it-act-judgment-and-secret-blocking/" title="https://indconlawphil.wordpress.com/2015/03/25/the-supreme-courts-it-act-judgment-and-secret-blocking/"> https://indconlawphil.wordpress.com/2015/03/25/the-supreme-courts-it-act... </a></p>
<p>23 Apar Gupta (2015): "But What about Section 69A?," <i>Indian Express, 27 </i>March, viewed on 5 April 2015, <a href="http://indianexpress" title="http://indianexpress">http://indianexpress</a>. com/article/opinion/ columns/but-what-about-section-69a/</p>
<p>24 Pranesh Prakash (2011): DIT's Response to RTI on Website Blocking, The Centre for Internet and Society, 7 April, viewed on 6 April 2015, <a href="http://cis-india.org/internet-governance/blog/rti-response-dit-blocking" title="http://cis-india.org/internet-governance/blog/rti-response-dit-blocking"> http://cis-india.org/internet-governance/blog/rti-response-dit-blocking </a> ). Also see <a href="http://cis-india.org/internet-governance/blog/analysis-dit-response-2nd-rti-blocking" title="http://cis-india.org/internet-governance/blog/analysis-dit-response-2nd-rti-blocking"> http://cis-india.org/internet-governance/blog/analysis-dit-response-2nd-... </a> and <a href="http://cis-india.org/internet-governance/resources/reply-to-rti-application-on-blocking-of-website-and-rule-419a-of-indian-telegraph-rules-1951" title="http://cis-india.org/internet-governance/resources/reply-to-rti-application-on-blocking-of-website-and-rule-419a-of-indian-telegraph-rules-1951"> http://cis-india.org/internet-governance/resources/reply-to-rti-applicat... </a></p>
<p>25 <a href="http://sflc.in/wp-content/uploads/2015/04/RTI-blocking-final-reply-from-DEITY.pdf" title="http://sflc.in/wp-content/uploads/2015/04/RTI-blocking-final-reply-from-DEITY.pdf"> http://sflc.in/wp-content/uploads/2015/04/RTI-blocking-final-reply-from-... </a></p>
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For more details visit <a href='https://cis-india.org/internet-governance/blog/economic-and-political-weekly-sunil-abraham-april-11-2015-shreya-singhal-and-66a'>https://cis-india.org/internet-governance/blog/economic-and-political-weekly-sunil-abraham-april-11-2015-shreya-singhal-and-66a</a>
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No publishersunilIT ActCensorshipFreedom of Speech and ExpressionInternet GovernanceChilling Effect2015-04-19T08:09:42ZBlog EntryFOEX Live
https://cis-india.org/internet-governance/blog/foex-live
<b>Selections of news on online freedom of expression and digital technology from across India (and some parts of the world)</b>
<p><iframe frameborder="0" height="650" src="http://cdn.knightlab.com/libs/timeline/latest/embed/index.html?source=0Aq0BN7sFZRQFdGJqaHNnSC1YNTYzZEM0SThGd2ZGVFE&font=Bevan-PotanoSans&maptype=toner&lang=en&height=650" width="100%"></iframe></p>
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<p style="text-align: justify; "><span>For feedback, comments and any incidents of online free speech violation you are troubled or intrigued by, please email Geetha at </span><span>geetha[at]cis-india.org or on Twitter at @covertlight.</span></p>
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For more details visit <a href='https://cis-india.org/internet-governance/blog/foex-live'>https://cis-india.org/internet-governance/blog/foex-live</a>
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No publishergeethaSocial MediaFeedbackPress FreedomsCensorshipFOEX LiveHuman Rights OnlineChilling EffectSection 66AArticle 19(1)(a)2014-07-07T12:36:49ZBlog EntryFree Speech and Civil Defamation
https://cis-india.org/internet-governance/blog/free-speech-and-civil-defamation
<b>Does defamation become a tool in powerful hands to suppress criticism? Gautam Bhatia examines the strict and unrealistic demands of defamation law, and concludes that defamation suits are a weapon to silence dissent and bad press. </b>
<p style="text-align: justify; "><b> </b>Previously on this blog, we have discussed one of the under-analysed aspects of Article 19(2) – contempt of court. In the last post, we discussed the checking – or “watchdog” – function of the press. There is yet another under-analysed part of 19(2) that we now turn to – one which directly implicates the press, in its role as public watchdog. This is the issue of defamation.</p>
<p style="text-align: justify; ">Unlike contempt of court – which was a last-minute insertion by Ambedkar, before the second reading of the draft Constitution in the Assembly – defamation was present in the restrictions clause since the Fundamental Rights Sub-Committee’s first draft, in 1947. Originally, it accompanied libel and slander, before the other two were dropped for the simpler “reasonable restrictions… in the interests of… defamation.” Unlike the other restrictions, which provoked substantial controversy, defamation did not provoke extended scrutiny by the Constituent Assembly.</p>
<p style="text-align: justify; "><span>In hindsight, that was a lapse. In recent years, defamation lawsuits have emerged as a powerful weapon against the press, used primarily by individuals and corporations in positions of power and authority, and invariably as a means of silencing criticism. For example, Hamish MacDonald’s </span><i>The Polyester Prince</i><span>, a book about the Ambanis, </span><a href="http://www.rediff.com/money/2000/jul/26dalal.htm">was unavailable</a><span> in Indian bookshops, because of threats of defamation lawsuits. In January, Bloomsbury </span><a href="http://www.dnaindia.com/mumbai/report-praful-patel-descent-of-air-india-and-the-killing-of-a-critical-book-1951582">withdrew</a><span> </span><i>The Descent of Air India</i><span>, which was highly critical of ex-Aviation Minister Praful Patel, after the latter filed a defamation lawsuit. Around the same time, Sahara initiated a 200 crore lawsuit against Tamal Bandyopadhayay, a journalist with </span><i>The Mint</i><span>, for his forthcoming book, </span><i>Sahara: The Untold Story</i><span>. Sahara even managed to get a stay order from a Calcutta High Court judge, who </span><a href="http://www.indiankanoon.org/doc/136055468/">cited</a><span> one paragraph from the book, and ruled that “</span><i>Prima facie, the materials do seem to show the plaintiffs in poor light</i><span>.” The issue has since been settled out of Court. Yet there is no guarantee that Bandyopadhyay would have won on merits, even with the absurd amount claimed as damages, given that a Pune Court awarded damages of </span><i>Rs. 100 crores </i><span>to former Justice P.B. Sawant against the Times Group, for a fifteen-second clip by a TV channel that accidentally showed his photograph next to the name of a judge who was an accused in a scam. What utterly takes the cake, though, is Infosys </span><a href="http://www.thehindu.com/news/national/infosys-slaps-defamation-notice-on-three-newspapers/article6098717.ece">serving</a><span> legal notices to three journalistic outlets recently, asking for damages worth Rs. 200 crore for “</span><i>loss of reputation and goodwill due to circulation of defamatory articles</i><span>.”</span><span> </span></p>
<p style="text-align: justify; ">Something is very wrong here. The plaintiffs are invariably politicians or massive corporate houses, and the defendants are invariably journalists or newspapers. The subject is always critical reporting. The damages claimed (and occasionally, awarded) are astronomical – enough to cripple or destroy any business – and the actual harm is speculative. A combination of these factors, combined with a broken judicial system in which trials take an eternity to progress, leading to the prospect of a lawsuit hanging perpetually over one’s head, and financial ruin just around the corner, clearly has the potential to create a highly effective chilling effect upon newspapers, when it come to critical speech on matters of public interest.</p>
<p style="text-align: justify; "><span>One of the reasons that this happens, of course, is that extant defamation law </span><i>allows</i><span> it to happen. Under defamation law, as long as a statement is published, is defamatory (that is, tending to lower the reputation of the plaintiff in the minds of reasonable people) and refers to the plaintiff, a </span><i>prima facie </i><span>case of defamation is made out. The burden then shifts to the defendant to argue a justification, such as truth, or fair comment, or privileged communication. Notice that defamation, in this form, is a strict liability offence: that is, the publisher cannot save himself even if he has taken due care in researching and writing his story. Even an inadvertent factual error can result in liability. Furthermore, there are many things that straddle a very uncomfortable barrier between “fact” and “opinion” (“opinions” are generally not punishable for defamation): for example, if I call you “corrupt”, have I made a statement of fact, or one of opinion? Much of reporting – especially political reporting – falls within this slipstream.</span></p>
<p style="text-align: justify; ">The legal standard of defamation, therefore, puts almost all the burden upon the publisher, a burden that will often be impossible to discharge – as well as potentially penalising the smallest error. Given the difficulty in fact-checking just about everything, as well as the time pressures under which journalists operate, this is an unrealistic standard. What makes things even worse, however, is that there is no cap on damages, <i>and </i>that the plaintiff need not even demonstrate <i>actual</i> harm in making his claims. Judges have the discretion to award punitive damages, which are meant to serve both as an example and as a deterrent. When Infosys claims 2000 crores, therefore, it need not show that there has been a tangible drop in its sales, or that it has lost an important and lucrative contract – let alone showing that the loss was caused by the defamatory statement. All it needs to do is make abstract claims about loss of goodwill and reputation, which are inherently difficult to verify either way, and it stands a fair chance of winning.</p>
<p style="text-align: justify; ">A combination of onerous legal standards and crippling amounts in damages makes the defamation regime a very difficult one for journalists to operate freely in. We have discussed before the crucial role that journalists play in a system of free speech whose underlying foundation is the maintenance of democracy: a free press is essential to maintaining a check upon the actions of government and other powerful players, by subjecting them to scrutiny and critique, and ensuring that the public is aware of important facts that government might be keen to conceal. In chilling journalistic speech, therefore, defamation laws strike at the heart of Article 19(1)(a). When considering what the appropriate standards ought to be, a Court therefore must consider the simple fact that if defamation – as it stands today – is compromising the core of 19(1)(a) itself, then it is certainly not a “reasonable restriction” under 19(2) (some degree of proportionality is an important requirement for 19(2) reasonableness, as the Court has held many times).</p>
<p style="text-align: justify; ">This is not, however, a situation unique to India. In Singapore, <a href="http://news.bbc.co.uk/2/hi/asia-pacific/7632830.stm">for instance</a>, “[<i>political] leaders have won hundreds of thousands of dollars in damages in defamation cases against critics and foreign publications, which they have said are necessary to protect their reputations from unfounded attacks</i>” – the defamation lawsuit, indeed, was reportedly a legal strategy used by Lee Kuan Yew against political opponents.<span> </span></p>
<p style="text-align: justify; ">Particularly in the United States, the European Union and South Africa, however, this problem has been recognised, and acted upon. In the next post, we shall examine some of the legal techniques used in those jurisdictions, to counter the chilling effect that strict defamation laws can have on the press.</p>
<p style="text-align: justify; ">We discussed the use of civil defamation laws as weapons to stifle a free and critical press. One of the most notorious of such instances also birthed one of the most famous free speech cases in history: <a href="http://supreme.justia.com/cases/federal/us/376/254/case.html"><i>New York Times v. Sullivan</i></a>. This was at the peak of the civil rights movement in the American South, which was accompanied by widespread violence and repression of protesters and civil rights activists. A full-page advertisement was taken out in the New York Times, titled <i>Heed Their Rising Voices</i>, which detailed some particularly reprehensible acts by the police in Montgomery, Alabama. It also contained some factual errors. For example, the advertisement mentioned that Martin Luther King Jr. had been arrested seven times, whereas he had only been arrested four times. It also stated that the Montgomery police had padlocked students into the university dining hall, in order to starve them into submission. That had not actually happened. On this basis, Sullivan, the Montgomery police commissioner, sued for libel. The Alabama courts awarded 500,000 dollars in damages. Because five other people in a situation similar to Sullivan were also suing, the total amount at stake was three million dollars – enough to potentially boycott the New York Times, and certainly enough to stop it from publishing about the civil rights movement.</p>
<p style="text-align: justify; ">In his book about the <i>Sullivan </i>case, <i>Make No Law</i>, Anthony Lewis notes that the stakes in the case were frighteningly high. The civil rights movement depended, for its success, upon stirring public opinion in the North. The press was just the vehicle to do it, reporting as it did on excessive police brutality against students and peaceful protesters, practices of racism and apartheid, and so on. <i>Sullivan</i> was a legal strategy to silence the press, and its weapon of choice was defamation law.</p>
<p style="text-align: justify; ">In a 9 – 0 decision, the Supreme Court found for the New York Times, and changed the face of free speech law (and, according to Lewis, saved the civil rights movement). Writing for the majority, Justice Brennan made the crucial point that in order to survive, free speech needed “breathing space” – that is, the space to make errors. Under defamation law, as it stood, “<i>the pall of fear and timidity imposed upon those who would give voice to public criticism [is] an atmosphere in which the First Amendment freedoms cannot survive</i>.” And under the burden of proving truth, <i>“would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is, in fact, true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which "steer far wider of the unlawful zone." </i>For these reasons, Justice Brennan laid down an “actual malice” test for defamation – that is, insofar as the statement in question concerned the conduct of a public official, it was actionable for defamation only if the publisher either knew it was false, or published it with “reckless disregard” for its veracity. After <i>New York Times</i>, this standard has expanded, and the press has never lost a defamation case.</p>
<p style="text-align: justify; ">There are some who argue that in its zeal to protect the press against defamation lawsuits by the powerful, the <i>Sullivan </i>court swung the opposite way. In granting the press a near-unqualified immunity to say whatever it wanted, it subordinated the legitimate interests of people to their reputation and their dignity to an intolerable degree, and ushered in a regime of media unaccountability. This is evidently what the South African courts felt. In <a href="https://www.google.com/search?q=khulamo+vs+holomisa&oq=khulamo+vs+holomisa&aqs=chrome..69i57.6996j0j4&sourceid=chrome&es_sm=119&ie=UTF-8"><i>Khulamo v. Holomisa</i></a>, Justice O’Regan accepted that the common law of defamation would have to be altered so as to reflect the new South African Constitution’s guarantees of the freedom of speech. Much like Justice Brennan, she noted that <i>“</i><i>the media are important agents in ensuring that government is open, responsive and accountable to the people as the founding values of our Constitution require</i>”, as well as the chilling effect in requiring journalists to prove the truth of everything they said. Nonetheless, she was not willing to go as far as the American Supreme Court did. Instead, she cited a previous decision by the Supreme Court of Appeals, and incorporated a “resonableness standard” into defamation law. That is, “<i>if a publisher cannot establish the truth, or finds it disproportionately expensive or difficult to do so, the publisher may show that in all the circumstances the publication was reasonable. In determining whether publication was reasonable, a court will have regard to the individual’s interest in protecting his or her reputation in the context of the constitutional commitment to human dignity. It will also have regard to the individual’s interest in privacy. In that regard, there can be no doubt that persons in public office have a diminished right to privacy, though of course their right to dignity persists. It will also have regard to the crucial role played by the press in fostering a transparent and open democracy. The defence of reasonable publication avoids therefore a winner-takes-all result and establishes a proper balance between freedom of expression and the value of human dignity. Moreover, the defence of reasonable publication will encourage editors and journalists to act with due care and respect for the individual interest in human dignity prior to publishing defamatory material, without precluding them from publishing such material when it is reasonable to do so.”</i></p>
<p style="text-align: justify; ">The South African Constitutional Court thus adopts a middle path between the two opposite zero-sum games that are traditional defamation law, and American first amendment law. A similar effort was made in the United Kingdom – the birthplace of the common law of defamation – with the passage of the <a href="http://www.legislation.gov.uk/ukpga/2013/26/pdfs/ukpga_20130026_en.pdf">2013 Defamation Act.</a> Under English law, the plaintiff must now show that there is likely to be “<i>serious harm</i>” to his reputation, and there is also public interest exception.</p>
<p style="text-align: justify; ">While South Africa and the UK try to tackle the problem at the level of standards for defamation, the ECHR has taken another, equally interesting tack: by limiting the quantum of damages. In <a href="http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57947#%7B"><i>Tolstoy Milolasky v. United Kingdom</i></a>, it found a 1.5 million pound damage award “disproportionately large”, and held that there was a violation of the ECHR’s free speech guarantee that could not be justified as necessary in a democratic society.</p>
<p style="text-align: justify; ">Thus, constitutional courts the world over have noticed the adverse impact traditional defamation law has on free speech and a free press. They have devised a multiplicity of ways to deal with this, some more speech-protective than others: from America’s absolutist standards, to South Africa’s “reasonableness” and the UK’s “public interest” exceptions, to the ECHR’s limitation of damages. It is about time that the Indian Courts took this issue seriously: there is no dearth of international guidance.</p>
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<p style="text-align: justify; "><span><i>Gautam Bhatia — @gautambhatia88 on Twitter — is a graduate of the National Law School of India University (2011), and has just received an LLM from the Yale Law School. He blogs about the Indian Constitution at <a class="moz-txt-link-freetext" href="http://indconlawphil.wordpress.com/">http://indconlawphil.wordpress.com</a>. Here at CIS, he blogs on issues of online freedom of speech and expression.</i></span></p>
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For more details visit <a href='https://cis-india.org/internet-governance/blog/free-speech-and-civil-defamation'>https://cis-india.org/internet-governance/blog/free-speech-and-civil-defamation</a>
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No publishergautamCensorshipDefamationFreedom of Speech and ExpressionChilling EffectArticle 19(1)(a)2014-07-08T08:31:18ZBlog EntryFree Speech Policy in India: Community, Custom, Censorship, and the Future of Internet Regulation
https://cis-india.org/internet-governance/blog/policy-in-india-community-custom-censorship-and-future-of-internet-regulation
<b>This note summarises my panel contribution to the conference on Freedom of Expression in a Digital Age at New Delhi on 21 April 2015, which was organised by the Observer Research Foundation (ORF) and the Centre for Internet and Society (CIS) in collaboration with the Internet Policy Observatory of the Center for Global Communication Studies (CGCS) at the Annenberg School for Communication, University of Pennsylvania</b>
<p><a href="https://cis-india.org/internet-governance/blog/free-speech-policy-in-india.pdf" class="internal-link"><b>Download the Note here</b></a> (PDF, 103 Kb)</p>
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<h3>Preliminary</h3>
<p style="text-align: justify; ">There has been legitimate happiness among many in India at the Supreme Court’s recent decision in the Shreya Singhal case to strike down section 66A of the Information Technology Act, 2000 ("IT Act") for unconstitutionally fettering the right to free speech on the Internet. The judgment is indeed welcome, and reaffirms the Supreme Court’s proud record of defending the freedom of speech, although it declined to interfere with the government’s stringent powers of website blocking. As the dust settles there are reports the government is re-grouping to introduce fresh law, allegedly stronger to secure easier convictions, to compensate the government’s defeat.</p>
<h3 style="text-align: justify; ">Case Law and Government Policy</h3>
<p style="text-align: justify; ">India’s constitutional courts have a varied history of negotiating the freedom of speech that justifiably demands study. But, in my opinion, inadequate attention is directed to the government’s history of free speech policy. It is possible to discern from the government’s actions over the last two centuries a relatively consistent narrative of governance that seeks to bend the individual’s right to speech to its will. The defining characteristics of this narrative – the government’s free speech policy – emerge from a study of executive and legislative decisions chiefly in relation to the press, that continue to shape policy regarding the freedom of expression on the Internet.</p>
<p style="text-align: justify; ">India’s corpus of free speech case law is not uniform nor can it be since, for instance, the foundational issues that attend hate speech are quite different from those that inform contempt of court. So too, Indian free speech policy has been varied, captive to political compulsions and disparate views regarding the interests of the community, governance and nation-building. There has been consistent tension between the individual and the community, as well as the role of the government in enforcing the expectations of the community when thwarted by law.</p>
<h3 style="text-align: justify; ">Dichotomy between Modern and Native Law</h3>
<p style="text-align: justify; ">To understand free speech policy, it is useful to go back to the early colonial period in India, when Governor-General Warren Hastings established a system of courts in Bengal’s hinterland to begin the long process of displacing traditional law to create a modern legal system. By most accounts, pre-modern Indian law was not prescriptive, Austinian, and uniform. Instead, there were several legal systems and a variety of competing and complementary legal sources that supported different interpretations of law within most legal systems. J. Duncan M. Derrett notes that the colonial expropriation of Indian law was marked by a significant tension caused by the repeatedly-stated objective of preserving some fields of native law to create a dichotomous legal structure. These efforts were assisted by orientalist jurists such as Henry Thomas Colebrook whose interpretation of the dharmasastras heralded a new stage in the evolution of Hindu law.</p>
<p style="text-align: justify; ">In this background, it is not surprising that Elijah Impey, a close associate of Hastings, simultaneously served as the first Chief Justice of the Supreme Court at Fort William while overseeing the Sadr Diwani Adalat, a civil court applying Anglo-Hindu law for Hindus, and the Sadr Faujdari Adalat, a criminal court applying Anglo-Islamic law to all natives. By the mid-nineteenth century, this dual system came under strain in the face of increasing colonial pressure to rationalise the legal system to ensure more effective governance, and native protest at the perceived insensitivity of the colonial government to local customs.</p>
<h3 style="text-align: justify; ">Criminal Law and Free Speech in the Colony</h3>
<p style="text-align: justify; ">In 1837, Thomas Macaulay wrote the first draft of a new comprehensive criminal law to replace indigenous law and custom with statutory modern law. When it was enacted as the Indian Penal Code in 1860 ("IPC"), it represented the apogee of the new colonial effort to recreate the common law in India. The IPC’s enactment coincided with the growth and spread of both the press and popular protest in India. The statute contained the entire gamut of public-order and community-interest crimes to punish unlawful assembly, rioting, affray, wanton provocation, public nuisance, obscenity, defiling a place of worship, disturbing a religious assembly, wounding religious feelings, and so on. It also criminalised private offences such as causing insult, annoyance, and intimidation. These crimes continue to be invoked in India today to silence individual opinion and free speech, including on the Internet. Section 66A of the IT Act utilised a very similar vocabulary of censorship.</p>
<p style="text-align: justify; ">Interestingly, Macaulay’s IPC did not feature the common law offences of sedition and blasphemy or the peculiar Indian crime of promoting inter-community enmity; these were added later. Sedition was criminalised by section 124A at the insistence of Barnes Peacock and applied successfully against Indian nationalist leaders including Bal Gangadhar Tilak in 1897 and 1909, and Mohandas Gandhi in 1922. In 1898, the IPC was amended again to incorporate section 153A to criminalise the promotion of enmity between different communities by words or deeds. And, in 1927, a more controversial amendment inserted section 295A into the IPC to criminalise blasphemy. All three offences have been recently used in India against writers, bloggers, professors, and ordinary citizens.</p>
<h3 style="text-align: justify; ">Loss of the Right to Offend</h3>
<p style="text-align: justify; ">The two amendments of 1898 and 1927, which together proscribed the promotion of inter-community enmity and blasphemy, represent the dismantling of the right to offend in India. But, oddly, they were defended by the colonial government in the interests of native sensibilities. The proceedings of the Imperial Legislative Council reveal several members, including Indians, were enthusiastic about the amendments. For some, the amendments were a necessary corrective action to protect community honour from subversive speech. The 1920s were a period of foment in India as the freedom movement intensified and communal tension mounted. In this environment, it was easy to fuse the colonial interest in strong administration with a nationalist narrative that demanded the retrieval of Indian custom to protect native sensibilities from being offended by individual free speech, a right derived from modern European law. No authoritative jurist could be summoned to prove or refute the claim that native custom privileged community honour.</p>
<p style="text-align: justify; ">Sadly the specific incident which galvanised the amendment of 1927, which established the crime of blasphemy in India, would not appear unfamiliar to a contemporary observer. Mahashay Rajpal, an Arya Samaj activist, published an offensive pamphlet of the Prophet Muhammad titled Rangeela Rasool, for which he was arrested and tried but acquitted in the absence of specific blasphemy provisions. With his speech being found legal, Rajpal was released and given police protection but Ilam Din, a Muslim youth, stabbed him to death. Instead of supporting its criminal law and strengthening its police forces to implement the decisions of its courts, the colonial administration surrendered to the threat of public disorder and enacted section 295A of the IPC.</p>
<h3 style="text-align: justify; ">Protest and Community Honour</h3>
<p style="text-align: justify; ">The amendment of 1927 marks an important point of rupture in the history of Indian free speech. It demonstrated the government’s policy intention of overturning the courts to restrict the individual’s right to speech when faced with public protest. In this way, the combination of public disorder and the newly-created crimes of promoting inter-community enmity and blasphemy opened the way for the criminal justice system to be used as a tool by natives to settle their socio-cultural disputes. Both these crimes address group offence; they do not redress individual grievances. In so far as they are designed to endorse group honour, these crimes signify the community’s attempt to suborn modern law and individual rights.</p>
<p style="text-align: justify; ">Almost a century later, the Rangeela Rasool affair has become the depressing template for illegal censorship in India: fringe groups take offence at permissible speech, crowds are marshalled to articulate an imagined grievance, and the government capitulates to the threat of violence. This formula has become so entrenched that governance has grown reflexively suppressive, quick to silence speech even before the perpetrators of lumpen violence can receive affront. This is especially true of online speech, where censorship is driven by the additional anxiety brought by the difficulty of Internet regulation. In this race to be offended the government plays the parochial referee, acting to protect indigenous sensibilities from subversive but legal speech.</p>
<h3 style="text-align: justify; ">The Censorious Post-colony</h3>
<p style="text-align: justify; ">Independence marked an opportunity to remake Indian governance in a freer image. The Constituent Assembly had resolved not to curb the freedom of speech in Article 19(1)(a) of the Constitution on account of public order. In two cases from opposite ends of the country where right-wing and left-wing speech were punished by local governments on public order grounds, the Supreme Court acted on the Constituent Assembly’s vision and struck down the laws in question. Free speech, it appeared, would survive administrative concerns, thanks to the guarantee of a new constitution and an independent judiciary. Instead Prime Minister Jawaharlal Nehru and his cabinet responded with the First Amendment in 1951, merely a year after the Constitution was enacted, to create three new grounds of censorship, including public order. In 1963, a year before he demitted office, the Sixteenth Amendment added an additional restriction.</p>
<p style="text-align: justify; ">Nehru did not stop at amending the Constitution, he followed shortly after with a concerted attempt to stage-manage the press by de-legitimising certain kinds of permissible speech.</p>
<p style="text-align: justify; ">Under Justice G. S. Rajadhyaksha, the government constituted the First Press Commission which attacked yellow journalism, seemingly a sincere concern, but included permissible albeit condemnable speech that was directed at communities, indecent or vulgar, and biased. Significantly, the Commission expected the press to only publish speech that conformed to the developmental and social objectives of the government. In other words, Nehru wanted the press to support his vision of India and used the imperative of nation-building to achieve this goal. So, the individual right to offend communities was taken away by law and policy, and speech that dissented from the government’s socio-economic and political agenda was discouraged by policy. Coupled with the new constitutional ground of censorship on account of public order, the career of free speech in independent India began uncertainly.</p>
<h3 style="text-align: justify; ">How to regulate permissible speech?</h3>
<p style="text-align: justify; ">Despite the many restrictions imposed by law on free speech, Indian free speech policy has long been engaged with the question of how to regulate the permissible speech that survives constitutional scrutiny. This was significantly easier in colonial India. In 1799, Governor-General Richard Wellesley, the brother of the famous Duke of Wellington who defeated Napoleon at Waterloo, instituted a pre-censorship system to create what Rajeev Dhavan calls a “press by permission” marked by licensed publications, prior restraint, subsequent censorship, and harsh penalties. A new colonial regime for strict control over the publication of free speech was enacted in the form of the Press and Registration of Books Act, 1867, the preamble of which recognises that “the literature of a country is…an index of…the condition of [its] people”. The 1867 Act was diluted after independence but still remains alive in the form of the Registrar of Newspapers.</p>
<p style="text-align: justify; ">After surviving Indira Gandhi’s demand for a committed press and the depredations of her regime during the Emergency, India’s press underwent the examination of the Second Press Commission. This was appointed in 1978 under the chairmanship of Justice P. K. Goswami, a year after the Janata government released the famous White Paper on Misuse of Mass Media. When Gandhi returned to power, Justice Goswami resigned and the Commission was reconstituted under Justice K. K. Mathew. In 1982, the Commission’s report endorsed the earlier First Press Commission’s call for conformist speech, but went further by proposing the appointment of a press regulator invested with inspection powers; criminalising attacks on the government; re-interpreting defamation law to encompass democratic criticism of public servants; retaining stringent official secrecy law; and more. It was quickly acted upon by Rajiv Gandhi through his infamous Defamation Bill.</p>
<h3 style="text-align: justify; ">The contours of future Internet regulation</h3>
<p style="text-align: justify; ">The juggernaut of Indian free speech policy has received temporary setbacks, mostly inflicted by the Supreme Court. Past experience shows us that governments with strong majorities – whether Jawaharlal Nehru’s following independence or Indira Gandhi’s in the 1970s – act on their administrative impulses to impede free speech by government policy. The Internet is a recent and uncontrollable medium of speech that attracts disproportionately heavy regulatory attention. Section 66A of the IT Act may be dead but several other provisions remain to harass and punish online free speech. Far from relaxing its grip on divergent opinions, the government appears poised for more incisive invasions of personal freedoms.</p>
<p style="text-align: justify; ">I do not believe the contours of future speech regulation on the Internet need to be guessed at, they can be derived from the last two centuries of India’s free speech policy. When section 66A is replaced – and it will be, whether overtly by fresh statutory provisions or stealthily by policy and non-justiciable committees and commissions – it will be through a regime that obeys the mandate of the First Press Commission to discourage dissenting and divergent speech while adopting the regulatory structures of the Second Press Commission to permit a limited inspector raj and forbid attacks on personalities. The interests of the community, howsoever improperly articulated, will seek precedence over individual freedoms and the accompanying threat of violence will give new meaning to Bhimrao Ambedkar’s warning of the “grammar of anarchy”.<br /><br /></p>
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For more details visit <a href='https://cis-india.org/internet-governance/blog/policy-in-india-community-custom-censorship-and-future-of-internet-regulation'>https://cis-india.org/internet-governance/blog/policy-in-india-community-custom-censorship-and-future-of-internet-regulation</a>
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No publisherbhairavIT ActCensorshipFreedom of Speech and ExpressionInternet GovernanceChilling Effect2015-08-23T10:12:16ZBlog EntryFacebook and its Aversion to Anonymous and Pseudonymous Speech
https://cis-india.org/internet-governance/blog/facebook-and-its-aversion-to-anonymous-and-pseudonymous-speech
<b>Jessamine Mathew explores Facebook's "real name" policy and its implications for the right to free speech. </b>
<p style="text-align: justify; ">The power to be unidentifiable on the internet has been a major reason for its sheer number of users. Most of the internet can now be freely used by anybody under a pseudonym without the fear of being recognised by anybody else. These conditions allow for the furtherance of free expression and protection of privacy on the internet, which is particularly important for those who use the internet as a medium to communicate political dissent or engage in any other activity which would be deemed controversial in a society yet not illegal. For example, an internet forum for homosexuals in India, discussing various issues which surround homosexuality may prove far more fruitful if contributors are given the option of being undetectable, considering the stigma that surrounds homosexuality in India, and the recent setting-aside of the Delhi High Court decision reading down Section 377 of the Indian Penal Code. The possibility of being anonymous or pseudonymous exists on many internet fora but on Facebook, the world’s greatest internet space for building connections and free expression, there is no sanction given to pseudonymous accounts as Facebook follows a real name policy. And as the <a href="http://www.nytimes.com/2014/06/27/technology/facebook-battles-manhattan-da-over-warrants-for-user-data.html?_r=0">recent decision</a> of a New York judge, disallowing Facebook from contesting warrants on private information of over 300 of its users, shows, there are clear threats to freedom of expression and privacy.</p>
<p style="text-align: justify; ">On the subject of using real names, Facebook’s Community Standards states, “Facebook is a community where people use their real identities. We require everyone to provide their real names, so you always know who you're connecting with. This helps keep our community safe.” Facebook’s Marketing Director, Randi Zuckerberg, <a href="http://www.dailymail.co.uk/news/article-2019544/Facebook-director-Randi-Zuckerberg-calls-end-internet-anonymity.html">bluntly dismissed</a> the idea of online anonymity as one that “has to go away” and that people would “behave much better” if they are made to use their real names. Apart from being a narrow-minded statement, she fails to realise that there are many different kinds of expression on the internet, from stories of sexual abuse victims to the views of political commentators, or indeed, whistleblowers, many of whom may prefer to use the platform without being identified. It has been decided in many cases that humans have a right to anonymity as it provides for the furtherance of free speech without the fear of retaliation or humiliation (<i>see </i>Talley v. California).<i> </i></p>
<p style="text-align: justify; ">While Facebook’s rationale behind wanting users to register for accounts with their own names is based on the goal of maintaining the security of other users, it is still a serious infraction on users’ freedom of expression, particularly when anonymous speech has been protected by various countries. Facebook has evolved from a private space for college students to connect with each other to a very public platform where not just social connections but also discussions take place, often with a heavily political theme. Facebook has been described as <a href="http://www.thenational.ae/news/uae-news/facebook-and-twitter-key-to-arab-spring-uprisings-report">instrumental</a> in the facilitation of communication during the Arab Spring, providing a space for citizens to effectively communicate with each other and organise movements. Connections on Facebook are no longer of a purely social nature but have extended to political and legal as well, with it being used to promote movements all through the country. Even in India, Facebook was the <a href="http://timesofindia.indiatimes.com/home/news/Facebook-Twitter-Google-change-face-of-Indian-elections/articleshow/34721829.cms">most widely adopted medium</a>, along with Twitter and Facebook, for discourse on the political future of the country during, before and after the 2014 elections. Earlier in 2011, Facebook was <a href="https://cis-india.org/news/web2.0-responds-to-hazare">used intensively</a> during the India Against Corruption movement. There were pages created, pictures and videos uploaded, comments posted by an approximate of 1.5 million people in India. In 2012, Facebook was also used to <a href="http://timesofindia.indiatimes.com/tech/social-media/Delhi-gang-rape-case-FacebookTwitter-fuels-rally-at-India-Gate/articleshow/17741529.cms">protest against the Delhi gang rape</a> with many coming forward with their own stories of sexual assault, providing support to the victim, organising rallies and marches and protesting about the poor level of safety of women in Delhi.</p>
<p style="text-align: justify; ">Much like its content policy, Facebook exhibits a number of discrepancies in the implementation of the anonymity ban. Salman Rushdie found that his Facebook account had been <a href="http://www.nytimes.com/2011/11/15/technology/hiding-or-using-your-name-online-and-who-decides.html?pagewanted=all&_r=0">suspended</a> and when it was reinstated after he sent them proof of identity, Facebook changed his name to the name on his passport, Ahmed Rushdie instead of the name he popularly goes by. Through a series of tweets, he criticised this move by Facebook, forcing him to display his birth name. Eventually Facebook changed his name back to Salman Rushdie but not before serious questions were raised regarding Facebook’s policies. The Moroccan activist Najat Kessler’s account was also <a href="https://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=5&cad=rja&uact=8&ved=0CD8QFjAE&url=http%3A%2F%2Fjilliancyork.com%2F2010%2F04%2F08%2Fon-facebook-deactivations%2F&ei=O1KxU-fwH8meugSZ74HgAg&usg=AFQjCNE7oUt2dyrSjpTskK7Oz3Q1OYXudg&sig2=bsOu46nmABTUhArhdjDCVw&bvm=bv.69837884,d.c2E">suspended</a> as it was suspected that she was using a fake name. Facebook has also not just stopped at suspending individual user accounts but has also removed pages and groups because the creators used pseudonyms to create and operate the pages in question. This was seen in the case of Wael Ghonim who created a group which helped in mobilizing citizens in Egypt in 2011. Ghonim was a Google executive who did not want his online activism to affect his professional life and hence operated under a pseudonym. Facebook temporarily <a href="http://www.newsweek.com/how-wael-ghonim-sparked-egypts-uprising-68727">removed</a> the group due to his pseudonymity but later reinstated it.</p>
<p style="text-align: justify; ">While Facebook performs its due diligence when it comes to some accounts, it has still done nothing about the overwhelmingly large number of obviously fake accounts, ranging from Santa Claus to Jack the Ripper. On my own Facebook friend list, there are people who have entered names of fictional characters as their own, clearly violating the real name policy. I once reported a pseudonymous account that used the real name of another person. Facebook thanked me for reporting the account but also said that I will “probably not hear back” from them. The account still exists with the same name. The redundancy of the requirement lies in the fact that Facebook does not request users to upload some form identification when they register with the site but only when they suspect them to be using a pseudonym. Since Facebook also implements its policies largely only on the basis of complaints by other users or the government, the real name policy makes many political dissidents and social activists the target of abuse on the internet.</p>
<p style="text-align: justify; ">Further, Articles 21 and 22 of the ICCPR grant all humans the right to free and peaceful assembly. As governments increasingly crack down on physical assemblies of people fighting for democracy or against legislation or conditions in a country, the internet has proved to be an extremely useful tool for facilitating this assembly without forcing people to endure the wrath of governmental authorities. A large factor which has promoted the popularity of internet gatherings is the way in which powerful opinions can be voice without the fear of immediate detection. Facebook has become the coveted online space for this kind of assembly but their policies and more particularly, faulty implementation of the policies, lead to reduced flows of communication on the site.</p>
<p style="text-align: justify; ">Of course, Facebook’s fears of cyberbullying and harassment are likely to materialise if there is absolutely no check on the identity of users. A possible solution to the conflict between requiring real names to keep the community safe and still allowing individuals to be present on the network without the fear of identification by anybody would be to ask users to register with their own names but still allowing them to create a fictional name which would be the name that other Facebook users can see. Under this model, Facebook can also deal with the issue of safety through their system of reporting against other users. If a pseudonymous user has been reported by a substantial number of people for harassment or any other cause, then Facebook may either suspend the account or remove the content that is offensive. If the victim of harassment chooses to approach a judicial body, then Facebook may reveal the real name of the user so that due process may be followed. At the same time, users who utilise the website to present their views and participate in the online process of protest or contribute to free expression in any other way can do so without the fear of being detected or targeted. Safety on the site can be maintained even without forcing users to reveal their real names to the world. The system that Facebook follows currently does not help curb the presence of fake accounts and neither does it promote completely free expression on the site.</p>
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For more details visit <a href='https://cis-india.org/internet-governance/blog/facebook-and-its-aversion-to-anonymous-and-pseudonymous-speech'>https://cis-india.org/internet-governance/blog/facebook-and-its-aversion-to-anonymous-and-pseudonymous-speech</a>
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No publisherJessamine MathewSocial MediaPrivacyFreedom of Speech and ExpressionFacebookChilling EffectAnonymityPseudonimityArticle 19(1)(a)2014-07-04T07:53:07ZBlog EntryFree Speech and Source Protection for Journalists
https://cis-india.org/internet-governance/blog/free-speech-and-source-protection-for-journalists
<b>Gautam Bhatia explores journalistic source protection from the perspective of the right to freedom of speech & expression. In this post, he articulates clearly the centrality of source protection to press freedoms, and surveys the differing legal standards in the US, Europe and India.</b>
<p style="text-align: justify; "><strong> </strong>In the <a href="https://cis-india.org/internet-governance/blog/free-speech-and-contempt-of-courts-2013-ii-article-19-1-a-and-indian-law" class="external-link">previous post</a>, we discussed Vincent Blasi’s pathological perspective on free speech. The argument forms part of a broader conception that Blasi calls the “checking value of the First Amendment”. Blasi argues that the most important role of free speech is to “check” government abuses and reveal to the public information that government wants to keep secret from them. Naturally, in this model – which is a specific application of the democracy-centred theory of free speech – the press and the media become the most important organs of a system of free expression.</p>
<p style="text-align: justify; ">In addition to the checking value of free speech, there is another consideration that is now acknowledged by Courts in most jurisdictions, including our Supreme Court. When we speak about the “right” to free speech, we do not just mean – as might seem at first glance – the right of <i>speakers</i> to speak unhindered. We also mean the rights of listeners and hearers to <i>receive </i>information. A classic example is the Indian Supreme Court’s opinion in <a href="http://www.indiankanoon.org/doc/304068/"><i>LIC v. Manubhai D. Shah</i></a>, which used Article 19(1)(a) to vest a right-of-reply in a person who had been criticised in a newspaper editorial, on the ground of providing a balanced account to readers. Furthermore, instruments like the ICCPR and the ECHR make this clear in the text of the free speech right as well. For instance, Article 19 of the ICCPR states that<i> “</i><i>everyone shall have the right to freedom of expression; this right shall include freedom to <span>seek, receive</span> and impart information and ideas of all kinds.”</i></p>
<p style="text-align: justify; ">In addition to the individual <i>right</i> to receive information and ideas, free speech need not be understood exclusively in the language of a right at all. Free speech also serves as a <i>public good</i> – that is to say, a society with a thriving system of free expression is, all things considered, better off than a society without it. The unique value that free speech serves, as a public good, is in creating an atmosphere of accountability and openness that goes to the heart of the constitutive ideals of modern liberal democracies. As Justice Hugo Black <a href="http://supreme.justia.com/cases/federal/us/326/1/case.html">noted</a>, a good system of free speech <i>“</i><i>rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.” </i>Unsurprisingly, he went on to add immediately after, that “<i>a free press is a condition of a free society</i>.”</p>
<p style="text-align: justify; ">If free speech is about the right to receive information, and about the public good of a society in which information circulates freely and widely, then the vehicles of information occupy a central position in any theory or doctrine about the scope of the constitutional right. In our societies, the press is perhaps the most important of those vehicles.<span> </span></p>
<p style="text-align: justify; ">Establishing the crucial role of the free press in free speech theory is important to understand a crucial issue that has largely gone unaddressed in Indian constitutional and statutory law: that of source-protection laws for journalists. A source-protection law exempts journalists from having to compulsorily reveal their sources when ordered to do so by government or by courts. Such exemptions form part of ordinary Indian statutory law: under the Indian Evidence Act, for example, communications between spouses are “privileged” – that is, inadmissible as evidence in Court.</p>
<p style="text-align: justify; ">The question came up before the US Supreme Court in <i>Branzburg v. Hayes</i>. In a 5-4 split, the majority ruled against an <span>unqualified</span> reporters’ privilege, that could be invoked in all circumstances. However, all the justices understood the importance of the issue. Justice White, writing for the majority, held that government must <i>“</i><i>convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest.” </i>Justice Powell’s concurring opinion emphasised that the balance must be struck on a case-to-case basis. Since <i>Branzburg</i>, there has been no federal legislation dealing with source protection. A number of states have, however, passed “shield laws”, albeit with broad national security exceptions.</p>
<p style="text-align: justify; ">Perhaps the reason for the American Supreme Court’s reticence lies in its reluctance – notwithstanding Justice Black’s ringing oratory – to place journalists on any kind of special pedestal above the rest of the public. The European Court of Human Rights, however, has felt no such compunctions. In <a href="http://www.5rb.com/case/goodwin-v-united-kingdom/"><i>Goodwin v. UK</i></a>, the ECHR made it clear that the press serves a crucial function as a “public watchdog” (a consistent theme in the ECHR’s jurisprudence). Compelled disclosure of sources would definitely have a chilling effect on the functioning of the press, since sources would be hesitant to speak – and journalists would be reluctant to jeopardise their sources – if it was easy to get a court order requiring disclosure. Consequently, the ECHR – which is normally hesitant to intervene in domestic matters, and accords a wide margin of appreciation to states, found the UK to be in violation of the Convention. Journalists could only be compelled to reveal their sources if there was an “<i>overriding requirement in the public interest</i>.”</p>
<p style="text-align: justify; ">Where both the United States and Europe have recognised the importance of source-protection, and the simple fact that <i>some</i> degree of source protection is essential if the press is to perform its checking – or watchdog – function effectively, Indian jurisprudence on the issue is negligible. The Law Commission has twice proposed some manner of a shield law, but no concrete action has been taken upon its recommendations.</p>
<p style="text-align: justify; ">In the absence of any law, Article 19(1)(a) could play a direct role in the matter. As argued at the beginning of this post, the Supreme Court has accepted the democracy-based justification for free speech, as well as the individual right to receive information. Both these arguments necessarily make the role of the press crucial, and the role of the press is dependant on maintaining the confidentiality of sources. Thus, there ought to be an Article 19(1)(a) right that journalists can invoke against compelled disclosure. If this is so, then any disclosure can only be required through law; and the law, in turn, must be a reasonable restriction in the interests of public order, which – in turn, has normally been given a narrow interpretation by the Supreme Court in cases such as <a href="http://indiankanoon.org/doc/1386353/"><i>Ram Manohar Lohia</i></a>.</p>
<p style="text-align: justify; ">It is unclear, however, whether the Courts will be sympathetic. As <a href="http://timesofindia.indiatimes.com/india/No-legal-cover-for-journalists-refusing-to-divulge-source/articleshow/12499518.cms">this</a> article points out, while the Supreme Court has yet to rule on this issue, various High Courts have ordered disclosure, seemingly without much concern for the free speech implications. One thing is evident though: <i>either </i>a strong shield law, <i>or</i> a definitive Supreme Court ruling, is required to fill the current vacuum that exists.</p>
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<p style="text-align: justify; "><span><i>Gautam Bhatia — @gautambhatia88 on Twitter — is a graduate of the National Law School of India University (2011), and has just received an LLM from the Yale Law School. He blogs about the Indian Constitution at <a class="moz-txt-link-freetext" href="http://indconlawphil.wordpress.com/">http://indconlawphil.wordpress.com</a>. Here at CIS, he blogs on issues of online freedom of speech and expression.</i></span></p>
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For more details visit <a href='https://cis-india.org/internet-governance/blog/free-speech-and-source-protection-for-journalists'>https://cis-india.org/internet-governance/blog/free-speech-and-source-protection-for-journalists</a>
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No publisherGautam BhatiaChecking ValueFreedom of Speech and ExpressionPress FreedomsJournalistic PrivilegeSource ProtectionChilling EffectArticle 19(1)(a)Journalistic Sources2014-06-19T20:10:28ZBlog EntryPastebin, Dailymotion, Github blocked after DoT order: Report
https://cis-india.org/internet-governance/news/times-of-india-anupam-saxena-december-31-2014-pastein-dailymotion-github-blocked-after-dot-order
<b>A number of Indian users are reporting they're not able to access websites such as Pastebin, DailyMotion and Github while accessing the internet through providers such as BSNL and Vodafone.</b>
<p style="text-align: justify; ">The article by Anupam Saxena was <a class="external-link" href="http://timesofindia.indiatimes.com/tech/tech-news/Pastebin-Dailymotion-Github-blocked-after-DoT-order-Report/articleshow/45701713.cms">published in the Times of India</a> on December 31, 2014. Pranesh Prakash is quoted.</p>
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<p style="text-align: justify; ">The block was first reported by Pastebin, a website where you can store text online for a set period of time, through its social media accounts on December 19. In a follow-up post on December 26, the site posted that it was still blocked in India on the directions of the Indian government.A number of users also posted about the blocks on Reddit threads confirming that the sites have been blocked by Vodafone, BSNL and Hathway, among others.It now appears that the blocks are being carried out on the instructions of DoT (Department of Telecom). The telecom body reportedly issued a notification regarding the same on December 17. A screenshot of the circular has been posted on Twitter by Pranesh Prakash.</p>
<p style="text-align: justify; ">The notification mentions that 32 URLs including Pastebin, video sharing sites Vimeo and DailyMotion, Internet archive site archive.org and Github.com( a web-based software code repository), have been blocked under Section 69A of the Information Technology Act, 2000. DoT has also asked ISPs to submit compliance reports. However, we have not been able to verify the authenticity of the circular.</p>
<p style="text-align: justify; ">At the time of writing this story, we could not access Pastebin, DailyMotion and Github on Vodafone 3G and our office network that has access via dedicated lines. Vodafone is not displaying any errors and is simply blocking access. However, a number of users report that they're getting an error that says 'the site is blocked as per the instructions of Competent Authority.' However, we were able to access all the websites on Airtel 3G.</p>
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For more details visit <a href='https://cis-india.org/internet-governance/news/times-of-india-anupam-saxena-december-31-2014-pastein-dailymotion-github-blocked-after-dot-order'>https://cis-india.org/internet-governance/news/times-of-india-anupam-saxena-december-31-2014-pastein-dailymotion-github-blocked-after-dot-order</a>
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No publisherpraskrishnaSocial MediaInternet GovernanceChilling EffectCensorship2015-01-03T04:17:48ZNews ItemNo more 66A!
https://cis-india.org/internet-governance/blog/no-more-66a
<b>In a landmark decision, the Supreme Court has struck down Section 66A. Today was a great day for freedom of speech on the Internet! When Section 66A was in operation, if you made a statement that led to offence, you could be prosecuted. We are an offence-friendly nation, judging by media reports in the last year. It was a year of book-bans, website blocking and takedown requests. Facebook’s Transparency Report showed that next to the US, India made the most requests for information about user accounts. A complaint under Section 66A would be a ground for such requests.</b>
<p style="text-align: justify; ">Section 66A hung like a sword in the middle: Shaheen Dhada was arrested in Maharashtra for observing that Bal Thackeray’s funeral shut down the city, Devu Chodankar in Goa and Syed Waqar in Karnataka were arrested for making posts about Narendra Modi, and a Puducherry man was arrested for criticizing P. Chidambaram’s son. The law was vague and so widely worded that it was prone to misuse, and was in fact being misused.</p>
<p style="text-align: justify; ">Today, the Supreme Court struck down Section 66A in its judgment on a <a class="external-link" href="http://cis-india.org/internet-governance/blog/overview-constitutional-challenges-on-itact">set of petitions</a> heard together last year and earlier this year. Stating that the law is vague, the bench comprising Chelameshwar and Nariman, JJ. held that while restrictions on free speech are constitutional insofar as they are in line with Article 19(2) of the Constitution. Section 66A, they held, does not meet this test: The central protection of free speech is the freedom to make statements that “offend, shock or disturb”, and Section 66A is an unconstitutional curtailment of these freedoms. To cross the threshold of constitutional limitation, the impugned speech must be of such a nature that it incites violence or is an exhortation to violence. Section 66A, by being extremely vague and broad, does not meet this threshold. These are, of course, drawn from news reports of the judgment; the judgment is not available yet.</p>
<p style="text-align: justify; ">Reports also say that Section 79(3)(b) has been read down. Previously, any private individual or entity, and the government and its departments could request intermediaries to take down a website, without a court order. If the intermediaries did not comply, they would lose immunity under Section 79. The Supreme Court judgment states that both in Rule 3(4) of the Intermediaries Guidelines and in Section 79(3)(b), the "actual knowledge of the court order or government notification" is necessary before website takedowns can be effected. In effect, this mean that intermediaries <i>need not</i> act upon private notices under Section 79, while they can act upon them if they choose. This stops intermediaries from standing judge over what constitutes an unlawful act. If they choose not to take down content after receiving a private notice, they will not lose immunity under Section 79.</p>
<p style="text-align: justify; ">Section 69A, the website blocking procedure, has been left intact by the Court, despite infirmities such as a lack of judicial review and non-transparent operation. More updates when the judgment is made available.</p>
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For more details visit <a href='https://cis-india.org/internet-governance/blog/no-more-66a'>https://cis-india.org/internet-governance/blog/no-more-66a</a>
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No publishergeethaCensorshipFreedom of Speech and ExpressionHomepageIntermediary LiabilityFeaturedChilling EffectSection 66AArticle 19(1)(a)Blocking2015-03-26T02:01:31ZBlog Entry‘A safe Internet and a free Internet can co-exist’
https://cis-india.org/internet-governance/news/the-hindu-march-25-2015-a-safe-internet-and-a-free-internet-can-co-exist
<b>Striking down of 66A kicked off celebrations in the IT capital.</b>
<p class="body" style="text-align: justify; ">The article was <a class="external-link" href="http://www.thehindu.com/news/national/karnataka/a-safe-internet-and-a-free-internet-can-coexist/article7031117.ece">published in the Hindu</a> on March 25, 2015. Sunil Abraham is quoted.</p>
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<p class="body" style="text-align: justify; ">Social media was celebrating on Tuesday. “Such a party going on on Twitter today #66A!” said one exuberant user, while another put a rap on it: “Made an FB post and didn’t go to jail. I <i>gotta</i> say today was a good day.” Another group was quick to point though: “Enjoy the freedom “responsibly!"</p>
<p class="body" style="text-align: justify; ">The day the Supreme Court struck down Section 66A of the Information Technology (IT) Act, those who had consistently termed it a “tyrannical” and “draconian” legal provision did a victory lap, calling it a “triumph for free speech in India”. Bengaluru, often called the information technology capital of the country, can stake claim for some of the legwork, with many from the city having either campaigned for the cause or took part in the PIL.</p>
<p class="body" style="text-align: justify; ">MP Rajeev Chandrasekhar, one of the litigants, said, “A free and fair Internet is crucial for innovation, connection and economic growth. By repealing section 66A, India is now ready for a technological leap. A safe Internet and a free Internet can co-exist, and the government should now draft carefully worded amendments that enable this co-existence.”</p>
<p class="body" style="text-align: justify; ">Stating that the Section was more your foe than a friend, cyber law expert Pavan Duggal said, “Section 66A symbolised the tyranny of ambiguous vague terms over the purity of legitimate free speech. It represented a tool for suppressing bonafide free speech, which was extensively misused. Freedom of speech and expression on the Internet is sacrosanct and only subject to reasonable restrictions given under Article 19(2) of the Constitution of India.”</p>
<h3 style="text-align: justify; ">Intermediaries</h3>
<p class="body" style="text-align: justify; ">Sunil Abraham, Executive Director of the Centre for Internet and Society (CIS), said there were other positives in the landmark judgement.<br /><br />“For the first time since the 1960s, the SC has struck down a section of law deeming it unconstitutional. Section 79 gave an adjudicatory position to intermediaries (such as Facebook, Twitter or bloggers). They were liable if they took the wrong decision or if they did not act on ‘take down’ requests within 36 hours. Now they are immune either way,” he explained. He said small-time bloggers, newspapers, and open source encyclopaedia, such as Wikipedia, will now be protected.</p>
<h3 class="body" style="text-align: justify; ">‘Retain spirit of Section 66A(b)’</h3>
<p style="text-align: justify; "><i>K.V. Aditya Bharadwaj</i></p>
<p style="text-align: justify; "><b>Bengaluru:</b> While even cops handling cyber crimes have welcomed scrapping sub-sections (a) and (c) of Section 66A of IT Act, 2000, they make a case for retaining the spirit of sub-section (b) in an amended law expected to be brought in shortly.</p>
<p style="text-align: justify; ">Section 66A(b) deals with a person sending out messages using electronic medium, which he knows to be false. It was under this provision that cops booked rumour-mongers who spread hatred messages through WhatsApp and other social media, which was scrapped.</p>
<p style="text-align: justify; ">A classic case was the one were two men were arrested for sending out provocative WhatsApp messages in July 2012, leading to an exodus of North-East Indians from the city. “Similar baseless WhatsApp messages led to chaos after the December 2014 Church Street blast and D.K. Ravi’s death. Even twitter was abuzz with parody profiles and fake claims made by people after the bomb blast. Rumour mongering and sending provocative messages have turned out to be a major area of concern in urban centres,” said a senior official.</p>
<p style="text-align: justify; ">An official said that in the absence of Section 66A(b), such rumour-mongers could only be booked under the Karnataka Police Act, which carries a very light punishment.</p>
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For more details visit <a href='https://cis-india.org/internet-governance/news/the-hindu-march-25-2015-a-safe-internet-and-a-free-internet-can-co-exist'>https://cis-india.org/internet-governance/news/the-hindu-march-25-2015-a-safe-internet-and-a-free-internet-can-co-exist</a>
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No publisherpraskrishnaFreedom of Speech and ExpressionInternet GovernanceChilling EffectCensorship2015-03-25T15:58:02ZNews ItemIndian Supreme Court Overturns Law Barring ‘Offensive Messages’ Online
https://cis-india.org/internet-governance/news/wall-street-journal-niharika-mandhana-march-24-2015-indian-supreme-court-overturns-law-barring-hate-speech-online
<b>India’s Supreme Court on Tuesday struck down legislation barring “offensive messages” online, saying it violated constitutional guarantees of free expression.</b>
<p style="text-align: justify; ">The article by Niharika Mandhana <a class="external-link" href="http://www.wsj.com/articles/indian-supreme-court-overturns-law-barring-hate-speech-online-1427174675">published by Wall Street Journal</a> on March 24, 2015 quotes Sunil Abraham.</p>
<hr />
<p style="text-align: justify; ">A two-judge panel voided a part of India’s Information Technology Act that made it a crime to share information through computers or other communications devices that could cause “annoyance, inconvenience” and “enmity, hatred or ill will.”</p>
<p style="text-align: justify; ">Announcing the ruling in a crowded courtroom in the Indian capital, Justice Rohinton Nariman said the law’s provisions were too vague and didn’t provide “clearly defined lines” for law-enforcement officials. “What is offensive to one person may not be offensive to another,” he said.</p>
<p style="text-align: justify; ">The court also ruled that Internet companies, such as Facebook and Google, could be required to remove or block access to online content only if ordered to do so by a court or by a notification from the government. Previously, they were expected to act when they had “actual knowledge” of allegedly illegal materials.</p>
<p style="text-align: justify; ">Free-speech activists had long argued against the broad language in the law, which was enacted in part as an effort to prevent the incitement of violence among different religious and ethnic groups in the world’s second-most-populous nation.</p>
<p style="text-align: justify; ">On Tuesday they applauded the decision.</p>
<p style="text-align: justify; ">“This provision was hugely problematic for anyone using the Internet in India and that is gone,” said Sunil Abraham, head of the Bangalore-based Center for Internet and Society. “The court has removed the additional, unconstitutional limits to free speech.”</p>
<p style="text-align: justify; ">India’s Information Technology minister, Ravi Shankar Prasad, said in a televised interview after the ruling that the government “supports free social media.”</p>
<p style="text-align: justify; ">“If the security establishment needs a response in cases of terrorism, extremism, communal violence, the government will take a view after wider consultations,” Mr. Prasad said. “But only with adequate safeguards.”</p>
<p style="text-align: justify; ">Enforcement of the law has sparked controversy for years. In 2012, a 21-year-old was detained after complaining on Facebook about the effective shutdown of Mumbai for the funeral of a right-wing Hindu leader. Another person was also detained for “liking” her comment.</p>
<p style="text-align: justify; ">That year, political cartoonist Aseem Trivedi was also charged under this law for his work lampooning Parliament. Mr. Trivedi said Tuesday that the court’s decision would “put a stop to years of misuse of the law by the government and politicians.”</p>
<p style="text-align: justify; ">“It sends a strong message that Indian law is with free speech,” Mr. Trivedi said.</p>
<p style="text-align: justify; ">According to a recent report by Facebook, the U.S. social media company blocked 5,832 pieces of content in the second half of 2014 on requests from Indian law-enforcement agencies and the government.</p>
<p style="text-align: justify; ">That was up from 4,960 pieces blocked from January to June last year. Facebook said it restricted access in India to a lot of “anti-religious content” and “hate speech that Indian officials reported could cause unrest and disharmony.”</p>
<p style="text-align: justify; ">J. Sai Deepak, a New Delhi-based lawyer involved in the case, said Tuesday’s decision was a significant victory for Internet companies in India. He said the law’s implementation—which earlier was “subject to the vagaries of the political winds of the state,” he said—would now be guided only by the free-speech rules laid down in the Indian constitution.</p>
<p style="text-align: justify; ">The order, however, rejected an argument by free-speech advocates that information shared on the Internet must be treated the same way as other kinds of speech, such as a live address or printed material. The court said lawmakers could create a separate law to deal with online speech because such content, unlike others, “travels like lightning and can reach millions of persons all over the world.”</p>
<p style="text-align: justify; ">But the current law, the court said, was too vague and included terms which “take into the net a very large amount of protected and innocent speech.” The law “is cast so widely that virtually any opinion on any subject would be covered by it,” the order said.</p>
<p style="text-align: justify; ">—Newley Purnell contributed to this article.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/news/wall-street-journal-niharika-mandhana-march-24-2015-indian-supreme-court-overturns-law-barring-hate-speech-online'>https://cis-india.org/internet-governance/news/wall-street-journal-niharika-mandhana-march-24-2015-indian-supreme-court-overturns-law-barring-hate-speech-online</a>
</p>
No publisherpraskrishnaFreedom of Speech and ExpressionInternet GovernanceChilling EffectCensorship2015-03-25T16:18:29ZNews ItemInternet censorship will continue in opaque fashion
https://cis-india.org/internet-governance/blog/the-times-of-india-march-25-2015-sunil-abraham-internet-censorship-will-continue-in-opaque-fashion
<b>A division bench of the Supreme Court has ruled on three sections of the Information Technology Act 2000 - Section 66A, Section 79 and Section 69A. The draconian Section 66A was originally meant to tackle spam and cyber-stalking but was used by the powerful elite to crack down on online dissent and criticism.</b>
<p style="text-align: justify; ">The article by Sunil Abraham was published in the <a class="external-link" href="http://timesofindia.indiatimes.com/city/bengaluru/Internet-censorship-will-continue-in-opaque-fashion/articleshow/46681490.cms">Times of India</a> on March 25, 2015.</p>
<hr />
<p style="text-align: justify; ">Section 79 was meant to give immunity to internet intermediaries for liability emerging from third-party speech, but it had a chilling effect on free speech because intermediaries erred on the side of caution when it came to deciding whether the content was legal or illegal.</p>
<p style="text-align: justify; ">And Section 69A was the web blocking or internet censorship provision, but the procedure prescribed did not adhere to the principles of natural justice and transparency. For instance, when books are banned by courts, the public is informed of such bans but when websites are banned in India, there's no clear message from the Internet Service Provider.</p>
<p style="text-align: justify; ">The Supreme Court upheld 69A, so web blocking and internet censorship in India will continue to happen in an opaque fashion which is worrying. But on 66A and 79, the landmark judgment protects the right to free speech and expression. It struck down 66A in entirety, saying the vague and imprecise language made the provision unconstitutional and it interfered with "the right of the people to know - the market place of ideas - which the internet provides to persons of all kinds". However, it only read down Section 79 saying "unlawful acts beyond what is laid down" as reasonable restrictions to the right to free speech in the Constitution "obviously cannot form any part" of the section. In short, the court has eliminated any additional restrictions for speech online even though it admitted that the internet is "intelligibly different" from traditional media and might require additional laws to be passed by the Indian Parliament."</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/the-times-of-india-march-25-2015-sunil-abraham-internet-censorship-will-continue-in-opaque-fashion'>https://cis-india.org/internet-governance/blog/the-times-of-india-march-25-2015-sunil-abraham-internet-censorship-will-continue-in-opaque-fashion</a>
</p>
No publishersunilIT ActCensorshipFreedom of Speech and ExpressionInternet GovernanceChilling Effect2015-03-26T02:07:28ZBlog EntryLive Chat: Win for Free Speech
https://cis-india.org/internet-governance/news/the-hindu-march-24-2015-live-chat-win-for-free-speech
<b>Join us for a live chat at 5.30 pm on SC striking down the Section 66A of the IT Act which had permitted the arrest of people for posting "offensive content" on the internet. </b>
<p style="text-align: justify; ">The <a class="external-link" href="http://www.thehindu.com/news/national/live-chat-hope-for-free-speech/article7028037.ece">live chat transcript</a> was published in the Hindu on March 24, 2015. Geetha Hariharan participated in the live chat.</p>
<hr style="text-align: justify; " />
<p class="body" style="text-align: justify; ">In a victory for proponents of free speech, the Supreme Court today struck down Section 66 A of the IT Act, which had permitted the arrest of people for posting “offensive content” on the internet. However, the Court upheld Section 69A, which allows the government to block websites based on a set of rules.</p>
<p class="body" style="text-align: justify; ">What are your views on this ruling? Join us for a live chat today at 5.30 pm with:</p>
<p class="body" style="text-align: justify; ">Gautam Bhatia, a practicing lawyer and author of "Offend, shock or disturb: Free Speech under the constitution" forthcoming in OUP.</p>
<p class="body" style="text-align: justify; ">Geetha Hariharan, a Programme Officer at Centre for Internet and Society, focusing on Internet governance and freedom of expression.</p>
<p class="body" style="text-align: justify; ">Lawrence Liang, Lawyer and researcher at Alternative Law Forum working on free speech.</p>
<p class="body" style="text-align: justify; ">and G Ananth Krishnan, Coordinating Editor with The Hindu</p>
<p class="body" style="text-align: justify; ">The Hindu: Hi all, welcome to the live chat on the Supreme Court's much-celebrated decision to strike down Section 66 A of the IT Act. There are caveats of course: For instance, the Court has upheld Section 69A, which allows the government to block websites based on a set of rules.</p>
<p class="body" style="text-align: justify; ">5:30</p>
<p class="body" style="text-align: justify; ">The Hindu: Welcome to Gautam Bhatia, a practicing lawyer and author of "Offend, shock or disturb: Free Speech under the constitution" forthcoming in OUP.</p>
<p class="body" style="text-align: justify; ">5:31</p>
<p class="body" style="text-align: justify; ">The Hindu: Geetha Hariharan, a Programme Officer at Centre for Internet and Society, focusing on Internet governance and freedom of expression.</p>
<p class="body" style="text-align: justify; ">5:31</p>
<p class="body" style="text-align: justify; ">The Hindu: Lawrence Liang, Lawyer and researcher at Alternative Law Forum working on free speech.</p>
<p class="body" style="text-align: justify; ">and</p>
<p class="body" style="text-align: justify; ">G Ananth Krishnan, Coordinating Editor with The Hindu</p>
<p class="body" style="text-align: justify; ">5:33</p>
<p class="body" style="text-align: justify; ">Comment From shraddha</p>
<p class="body" style="text-align: justify; ">This is landmark judgement,though.</p>
<p class="body" style="text-align: justify; ">5:34</p>
<p class="body" style="text-align: justify; ">Comment From Mystiquethinker</p>
<p class="body" style="text-align: justify; ">I would like to ask you one thing was that necessary to abolish Sec66 A completely.</p>
<p class="body" style="text-align: justify; "> </p>
<p class="body" style="text-align: justify; ">Gautam Bhatia: Yes, in my opinion it was. The terms of S. 66A - such as "grossly offensive" - went beyond what is constitutionally permitted by Article 19(2). It was impossible to "sever" these terms from the rest of the section. In such cases, the Court has no alternative but to strike down the section in its entirety.</p>
<p class="body" style="text-align: justify; ">5:34</p>
<p class="body" style="text-align: justify; ">Comment From Rohan</p>
<p class="body" style="text-align: justify; ">I'm particularly interested in the relevance of Sec 66 A in West Bengal. Over the last few years the TMC government has massively curbed freedom of speech. Do you think this will deter the ruling party?</p>
<p class="body" style="text-align: justify; ">5:35</p>
<p class="body" style="text-align: justify; ">The Hindu: Gautam, Geetha and Lawrence would you like to respond?</p>
<p class="body" style="text-align: justify; ">5:35</p>
<p class="body" style="text-align: justify; ">Lawrence Liang: typing</p>
<p class="body" style="text-align: justify; ">5:37</p>
<p class="body" style="text-align: justify; ">Comment From kc</p>
<p class="body" style="text-align: justify; ">so does this mean its okay for anyone to say anything over the internet? Does the internet need separate rules? Anything that cant be said over a microphone or using any media shouldn't be said over the internet either.</p>
<p class="body" style="text-align: justify; "> </p>
<p class="body" style="text-align: justify; ">Gautam Bhatia: No, the standard penal laws - against defamation, hate speech (S. 153A), religious incitement (S. 295A) continue to apply. Yes, the argument that the internet needs separate rules when it comes to the *content* of speech was precisely what was rejected by the Court.</p>
<p class="body" style="text-align: justify; ">5:38</p>
<p class="body" style="text-align: justify; ">Comment From Jai</p>
<p class="body" style="text-align: justify; ">I would like to ask what when people cross the boundary of decency when they post comments on social network?</p>
<p class="body" style="text-align: justify; ">5:38</p>
<p class="body" style="text-align: justify; ">Lawrence Liang: So the court goes into this question of whether 66A needed to go in its entirely or could it be saved. The ASG suggested that it could be read down by the courts, and offered a range of ways it coudl have been done. But the court responded to say that the restrictions in 19(2) are clear, and if the impugned law does not fall within it, then to ask for a reading that incorporates other principles only in order to save it would be to do violence to the language of Sec. 66A</p>
<p class="body" style="text-align: justify; "> </p>
<p class="body" style="text-align: justify; ">In para 49 they say</p>
<p class="body" style="text-align: justify; "> </p>
<p class="body" style="text-align: justify; ">What the learned Additional Solicitor General is asking us to do is not to read down Section 66A – he is asking for a wholesale substitution of the provision which is obviously not possible.</p>
<p class="body" style="text-align: justify; ">5:38</p>
<p class="body" style="text-align: justify; ">Geetha Hariharan: @Mystiquethinker: Section 66A makes it a criminal offense to make any post on the Internet, that might “grossly offend” or be “menacing”. If you happen to post false information (like a spoof), with the purpose of annoying, inconveniencing, criminally intimidating or causing hatred, you can be criminalized for that, too. However, the terms "annoyance, inconvenience, hatred, ill-will", etc. are vague. Section 66A does not define them. Applying the law to misuse it becomes extremely easy then - and this has happened.</p>
<p class="body" style="text-align: justify; ">5:38</p>
<p class="body" style="text-align: justify; ">Comment From Guest</p>
<p class="body" style="text-align: justify; ">The Supreme Court has struck a delicate balance</p>
<p class="body" style="text-align: justify; ">5:39</p>
<p class="body" style="text-align: justify; ">Comment From neerulal</p>
<p class="body" style="text-align: justify; ">It's a great step on part of judiciary. Infact it's the judicial activism that washed much of the waste created by legislature. Hope it was as experienced and sensible as judiciary..</p>
<p class="body" style="text-align: justify; ">5:39</p>
<p class="body" style="text-align: justify; ">Comment From shraddha</p>
<p class="body" style="text-align: justify; ">according to me it's imp to important to amend it completely... coz it directly infringes the article19(a) right to freedom of speech and expression.</p>
<p class="body" style="text-align: justify; ">5:40</p>
<p class="body" style="text-align: justify; ">Comment From Danish Sheikh</p>
<p class="body" style="text-align: justify; ">why do you think the Court is so sparse in its analysis of the website blocking rules as opposed to 66A?</p>
<p class="body" style="text-align: justify; ">5:40</p>
<p class="body" style="text-align: justify; ">Gautam Bhatia: @ Jai - The boundaries of decency will be determined by our existing penal laws - Sections 295A, 153A and the rest.</p>
<p class="body" style="text-align: justify; ">5:40</p>
<p class="body" style="text-align: justify; ">The Hindu: @gananth would you like to respond to the last one?</p>
<p class="body" style="text-align: justify; ">5:41</p>
<p class="body" style="text-align: justify; ">The Hindu: on 69A</p>
<p class="body" style="text-align: justify; ">Comment From Guest</p>
<p class="body" style="text-align: justify; ">Despite striking down Section 66A, Article 19(2) provides sufficient grounds for the government to protect public peace. It is comprehensive and is applicable to all media. Therefore, in a way, Section 66A was not required at all.</p>
<p class="body" style="text-align: justify; ">5:42</p>
<p class="body" style="text-align: justify; ">Lawrence Liang: Danish, you are right. One wishes that the court had paid as much attention to the Blocking orders as they did 66A. I feel they have gone on a technical reading of the procedures established to conclude that it is at least not as arbitrary as 66A, but fail to acknowledge that the ways the orders have been operationalised completely lack transparency and are hence arbitrary</p>
<p class="body" style="text-align: justify; ">5:42</p>
<p class="body" style="text-align: justify; ">Comment From Eric</p>
<p class="body" style="text-align: justify; ">I would say yes. The best and most practical control of social media comes from the maturity of its users. We can make a useful presumption that useless content will simply not be shared substantially. Instead of making laws, we need to make mature citizens and users of social media.</p>
<p class="body" style="text-align: justify; ">5:42</p>
<p class="body" style="text-align: justify; ">Comment From saurav</p>
<p class="body" style="text-align: justify; ">what are the others instruments available with govt. to curb cyber crimes ???</p>
<p class="body" style="text-align: justify; ">5:42</p>
<p class="body" style="text-align: justify; ">Gautam Bhatia: @ Guest - True, but you still need a *law* that would authorise the police and other agencies to implement the restrictions under Article 19(2) in specific situations. That is why we have speech regulating provisions in the Indian Penal Code.</p>
<p class="body" style="text-align: justify; ">5:43</p>
<p class="body" style="text-align: justify; ">Comment From shashi</p>
<p class="body" style="text-align: justify; ">I think sec 66A should be amended and specific definition of "offence" must be brought in, because there needs to reasonable restrictions under article 19(2). But having such vague clauses shows how it can be misused by people in power.</p>
<p class="body" style="text-align: justify; ">5:44</p>
<p class="body" style="text-align: justify; ">Geetha Hariharan: @saurav: As Gautam said, the IPC's provisions such as Sections 153A and 295A are available to the government as limitations on speech. In addition, there are other offences in the IT Act (Sections 66B to 67B).</p>
<p class="body" style="text-align: justify; ">5:44</p>
<p class="body" style="text-align: justify; ">Comment From Mystiquethinker</p>
<p class="body" style="text-align: justify; ">In my point of view there should be few limitation . You cannot say anything to anybody. I am afraid what will be its result in future.</p>
<p class="body" style="text-align: justify; ">5:45</p>
<p class="body" style="text-align: justify; ">Gautam Bhatia: @ Shashi The Supreme Court has held before - in S. Rangarajan's case - that causing offence doe not fall within Article 19(2). In fact, quoting the European Court of Human Rights, the Supreme Court said that the freedom of speech is nothing without the freedom to "offend, shock or disturb." That's actually why 19(2) is so specifically worded, and restricts itself to "public order", "decency or morality", "incitement to an offence", "defamation" etc.</p>
<p class="body" style="text-align: justify; ">5:45</p>
<p class="body" style="text-align: justify; ">Lawrence Liang: @Mystiquethinker To add to the previous point, the court also did consider whether they could apply the doctrine of severability but concluded that because "The present is a case where, as has been held above, Section 66A does not fall within any of the subject matters contained in Article 19(2) and the possibility of its being applied for purposes outside those subject matters is clear. We therefore hold that no part of Section 66A is severable and the provision as a whole must be declared unconstitutional."</p>
<p class="body" style="text-align: justify; ">5:47</p>
<p class="body" style="text-align: justify; ">Comment From Ashish</p>
<p class="body" style="text-align: justify; ">is it means??Now morphed girls photo posting ,revealing individual secret to harm him/her physcologicaly is allowed publicly.</p>
<p class="body" style="text-align: justify; "> </p>
<p class="body" style="text-align: justify; ">Lawrence Liang: Not at all. There are still other laws including obscenity laws and privacy laws under the IT act that deal with this</p>
<p class="body" style="text-align: justify; ">5:47</p>
<p class="body" style="text-align: justify; ">The Hindu: What happens to all the cases already booked? Is the verdict retrospective?</p>
<p class="body" style="text-align: justify; ">5:48</p>
<p class="body" style="text-align: justify; ">Gautam Bhatia: @ Ashish No. There is the Indecent Representation of Women Act, which prohibits that. There are also laws against blackmail and criminal intimidation under the IPC.</p>
<p class="body" style="text-align: justify; ">5:48</p>
<p class="body" style="text-align: justify; ">Comment From Cherry</p>
<p class="body" style="text-align: justify; ">A remarkable judgement to free their speeches n voices</p>
<p class="body" style="text-align: justify; "> </p>
<p class="body" style="text-align: justify; ">Lawrence Liang: absolutely, an important first step towards a free jurisprudence of the 21st century</p>
<p class="body" style="text-align: justify; ">Comment From Sarpanch</p>
<p class="body" style="text-align: justify; ">66A declared unconstitutional - good. But, a religious hate-filled reaction will it still attract 295 IPC.</p>
<p class="body" style="text-align: justify; "> </p>
<p class="body" style="text-align: justify; ">Lawrence Liang: yes and 153A of the IPC amongst others</p>
<p class="body" style="text-align: justify; ">Comment From Geek</p>
<p class="body" style="text-align: justify; ">If this is all about facebook, remove it and everyhing is fine!</p>
<p class="body" style="text-align: justify; "> </p>
<p class="body" style="text-align: justify; ">Lawrence Liang: sorry, but thats no longer an option after this judgment :)</p>
<p class="body" style="text-align: justify; ">5:49</p>
<p class="body" style="text-align: justify; ">Gautam Bhatia: @ TheHindu: to the best of my knowledge, no. A judgment is not ordinarily retrospective. Subject to correction.</p>
<p class="body" style="text-align: justify; ">5:49</p>
<p class="body" style="text-align: justify; ">Comment From Neel</p>
<p class="body" style="text-align: justify; ">Doesn't the line of reasoning adopted by the SC throw open the possibility of other restrictive laws being questioned too?</p>
<p class="body" style="text-align: justify; ">Comment From Eric</p>
<p class="body" style="text-align: justify; ">There is plenty of scope for an independent regulator including representatives of social media and internet users to regulate the restrictions under Art 19(2). Giving the police or any other governmental agency the power to prosecute potential offenders involves the unnecessary risk of political bias which underlies the SC's judgment. Clearly, severing the provision would have been messy. Moreover, the judgment is an unapologetic thrust in the direction of protecting fundamental rights.</p>
<p class="body" style="text-align: justify; "> </p>
<p class="body" style="text-align: justify; ">Comment From shashi</p>
<p class="body" style="text-align: justify; ">@Gautam one must not forget how social media can be used to incite violence against a perticular community and force exodus (as happened in Bangalore few years back). So, there has to be reasonable restrictions. Else the government would look helpless in such incidents</p>
<p class="body" style="text-align: justify; ">5:50</p>
<p class="body" style="text-align: justify; ">Comment From Cherry</p>
<p class="body" style="text-align: justify; ">i agree with the comment of mystiquethinker</p>
<p class="body" style="text-align: justify; ">5:50</p>
<p class="body" style="text-align: justify; ">Comment From Panky</p>
<p class="body" style="text-align: justify; ">Excellent decision from Court!!!!</p>
<p class="body" style="text-align: justify; ">5:51</p>
<p class="body" style="text-align: justify; ">The Hindu: Gautam, a question for you from Shashi</p>
<p class="body" style="text-align: justify; ">5:51</p>
<p class="body" style="text-align: justify; ">Gautam Bhatia: @ Neel Yes, it does. For instance, crucial to the Supreme Court's reasoning is a distinction between incitement and advocacy, and a need for proximity between speech and the 19(2) restrictions. Now if you look at the cases where the Supreme Court upheld 295A (1957) and sedition (1962), it did so on the specific understanding that there was no need for proximity - a mere "tendency" was enough. But in this case, the Supreme Court specifically says that the tendency must be to *imminent public disorder*. Now that severely undermines the foundation of 295A and especially sedition, because it's really hard to argue that spreading disaffection against the government has an imminent relationship with public disorder. So yes - I think it might just be time to try and have some of those old judgments reviewed!</p>
<p class="body" style="text-align: justify; ">5:51</p>
<p class="body" style="text-align: justify; ">Comment From Shanmukh</p>
<p class="body" style="text-align: justify; ">@ Eric. Social censorship works in a society where everybody is educated and mature. India isn't quite there yet. But this 66A was abused and it's good that it is going away.</p>
<p class="body" style="text-align: justify; "> </p>
<p class="body" style="text-align: justify; ">Lawrence Liang: We perhaos need to be careful about the argument of whether India is ready. That was the same logic that colonial authorities use to introduce a number of speech regulating laws. Worth having a look at Lala Lajpat Rai's reply to the Indian Cinematograph Committee</p>
<p class="body" style="text-align: justify; ">5:52</p>
<p class="body" style="text-align: justify; ">Gautam Bhatia: @ Shashi Yes, I agree. But 66A went far beyond those reasonable restrictions. The Constitution allows for reasonable restrictions in the interests of public order, and we have a long series of cases interpreting what that means. I think that would speak to your concern.</p>
<p class="body" style="text-align: justify; ">5:53</p>
<p class="body" style="text-align: justify; ">Gautam Bhatia: @ Shanmukh: See also the arguments that Raja Rammohun Roy made as fas back as 1823 about the freedom of the press, when the colonial authorities were using the same argument about Indians not being ready.</p>
<p class="body" style="text-align: justify; ">5:53</p>
<p class="body" style="text-align: justify; ">Comment From Guest</p>
<p class="body" style="text-align: justify; ">The government has Section 69A to prevent mass exodus type situations. Am I right?</p>
<p class="body" style="text-align: justify; "> </p>
<p class="body" style="text-align: justify; ">Lawrence Liang: Yes, and that is an important concern but you must note that even during the NE exodus, the government exceeded its brief and even blocked websites that were trying to quell rumous</p>
<p class="body" style="text-align: justify; ">Comment From Sam</p>
<p class="body" style="text-align: justify; ">Yesterday's column from readers editor had some suggestions on stopping rumors being spread via SM. I think, those kind of methods will go a long way in stopping falsehoods being spread than banning content and sections like 66A</p>
<p class="body" style="text-align: justify; ">5:54</p>
<p class="body" style="text-align: justify; ">Comment From Eric</p>
<p class="body" style="text-align: justify; ">@Lawrence Liang. Precisely. One has to be cautious of underestimating or belittling the input from regular users of the subject. Giving more deliberative platforms can only encourage participation and education of its users.</p>
<p class="body" style="text-align: justify; ">5:54</p>
<p class="body" style="text-align: justify; ">Comment From Guest</p>
<p class="body" style="text-align: justify; ">A case will be governed by the law applicable on the date the offence was committed, unless otherwise stated. Therefore, I think the ruling will be prospective only</p>
<p class="body" style="text-align: justify; ">5:55</p>
<p class="body" style="text-align: justify; ">Comment From Neel</p>
<p class="body" style="text-align: justify; ">What is the weight that precedent has in our legal system? For instance what will it take for a judge to say the previous judgements on sedition are too restrictive?</p>
<p class="body" style="text-align: justify; "> </p>
<p class="body" style="text-align: justify; ">Lawrence Liang: We are totally a precedent based system, but preedents can be enabling and restrictive, so the way it develops is through slow processes of comparing and distinguishing</p>
<p class="body" style="text-align: justify; ">5:55</p>
<p class="body" style="text-align: justify; ">Comment From Neel</p>
<p class="body" style="text-align: justify; ">What is the weight that precedent has in our legal system? For instance what will it take for a judge to say the previous judgements on sedition are too restrictive?</p>
<p class="body" style="text-align: justify; ">5:55</p>
<p class="body" style="text-align: justify; ">Gautam Bhatia: @ Guest Yes, I think that's correct.</p>
<p class="body" style="text-align: justify; ">5:55</p>
<p class="body" style="text-align: justify; ">Comment From Shiva</p>
<p class="body" style="text-align: justify; ">What does the judgement imply for posting adult/sexually explicit/pornographic content online?</p>
<p class="body" style="text-align: justify; "> </p>
<p class="body" style="text-align: justify; ">Lawrence Liang: It does not affect that: We have obscenity laws under the IPC as well as special obscenity provisions within the IT act that deal with it</p>
<p class="body" style="text-align: justify; ">5:56</p>
<p class="body" style="text-align: justify; ">Comment From Utkarsh</p>
<p class="body" style="text-align: justify; ">SC proves how powerful our democracy is. It is good that citizens are free to post anything they want now, but shouldn't we try to teach the people their responsibilty with this freedom?</p>
<p class="body" style="text-align: justify; ">5:56</p>
<p class="body" style="text-align: justify; ">The Hindu: Geetha your thoughts on that?</p>
<p class="body" style="text-align: justify; ">5:56</p>
<p class="body" style="text-align: justify; ">Comment From Vikas</p>
<p class="body" style="text-align: justify; ">Rather debating we should demand action on such people who in real sense do the offending act via speech and social media, arresting some body who has just shared some views is not right.....</p>
<p class="body" style="text-align: justify; ">5:56</p>
<p class="body" style="text-align: justify; ">Gautam Bhatia: @Neel It's a hard question. I don't think a Supreme Court bench will be able to directly overrule the sedition case. That was decided by a five-judge bench, and so you;d need a seven-judge bench to actually overturn it. I think what we can try and argue is that in the 50 years since the Court upheld sedition, the foundations of that decision have been so greatly undermined by succeeding cases, that at least in 2015, sedition is unconstitutional. It's a hard argument to pull off, but I think it's worth a shot.</p>
<p class="body" style="text-align: justify; ">5:57</p>
<p class="body" style="text-align: justify; ">Comment From Guest</p>
<p class="body" style="text-align: justify; ">The population has moral responsibility to not spread rumours over SM & the citizens need to be mature enough to not take everything too personally. You have the choice of ignoring what you deem offensive. If any of the above fail, it is because the society has failed, not the legal system.</p>
<p class="body" style="text-align: justify; ">Comment From zenmist</p>
<p class="body" style="text-align: justify; ">what if i get cyber bullied ! Do I have any recourse now ?</p>
<p class="body" style="text-align: justify; ">5:59</p>
<p class="body" style="text-align: justify; ">Comment From kkamal</p>
<p class="body" style="text-align: justify; ">implementation still a matter of concern</p>
<p class="body" style="text-align: justify; "> </p>
<p class="body" style="text-align: justify; ">Lawrence Liang: Certainly, and esp for the intermediary guidelines. Often when a court reads down a provision, rather than striking it down, there is a gap between the law and enforcement</p>
<p class="body" style="text-align: justify; ">Gautam Bhatia: @ Zeminist yes - for instance, under criminal intimidation provisions in the IPC.</p>
<p class="body" style="text-align: justify; ">6:00</p>
<p class="body" style="text-align: justify; ">Comment From Guest</p>
<p class="body" style="text-align: justify; ">Can we not issue guidelines for social sites like facebook twitter and others to filters such content from being posted(I think it'll show some pop-up in general.?)</p>
<p class="body" style="text-align: justify; ">6:00</p>
<p class="body" style="text-align: justify; ">Geetha Hariharan: @Utkarsh: Perhaps. However, the freedoms enshrined in out Constitution say our freedom of speech and expression can be restricted by the government only under specific circumstances: see http://indiankanoon.org/doc.... The _government's_ restrictions on speech must abide by these - whether they teach citizens what is (morally) right to speak or not is different from what we have a right to say. As Gautam has mentioned before, Article 19(1)(a) gives us the right to "offend, shock or disturb".</p>
<p class="body" style="text-align: justify; ">6:00</p>
<p class="body" style="text-align: justify; ">Gautam Bhatia: @ Guest - the problem with filters are that they are *invariably* over-inclusive.</p>
<p class="body" style="text-align: justify; ">6:01</p>
<p class="body" style="text-align: justify; ">Comment From Vibhu</p>
<p class="body" style="text-align: justify; ">This decision once again upheld citizen's belief in the constitution and the Supreme Court. But this power also comes with an added responsibility to the citizens to be sensitive towards the emotions of communities and other sections of the country.</p>
<p class="body" style="text-align: justify; ">Gautam Bhatia: @Vibhu Absolutely. This is why it's important to make a distinction between two important ideas - the fact that it is your *right* to do or speak in a certain manner doesn't always mean that you *ought* to speak in that manner.</p>
<p class="body" style="text-align: justify; ">6:02</p>
<p class="body" style="text-align: justify; ">Comment From Negi Gaurav</p>
<p class="body" style="text-align: justify; ">Striking down 66A is good for democratic values and citizenry expression. It will enhance the power of common mass and will affect political procedure. Free speech is fundamental right of Indian citizen , However judicious use of right is necessary to check hate crime.</p>
<p class="body" style="text-align: justify; ">6:03</p>
<p class="body" style="text-align: justify; ">Comment From Guest</p>
<p class="body" style="text-align: justify; ">We appreciate the verdict... It was much needed but there still is a question still unanswered, why do we need judicial activism to strike all those laws that are pushing us back by several decades. If such laws are always have to be decided by Supreme court, what do we have legislature for?</p>
<p class="body" style="text-align: justify; ">6:03</p>
<p class="body" style="text-align: justify; ">Comment From Pankaj</p>
<p class="body" style="text-align: justify; ">A welcome judgement by SC today. Section 66(A) was indeed an uncontitutional provision which accounted for few arrests considering the arbitrary and vague terminologies. But, certainly regulation of speech over internet should be regulated in a more robust and comprehensive manner</p>
<p class="body" style="text-align: justify; ">6:04</p>
<p class="body" style="text-align: justify; ">Gautam Bhatia: @ Guest To be fair to our parliaments, legislatures all over the world restrict speech, and it falls to the Court to correct them. Legislatures are composed of human beings like us, and often, because of the position they are in, they tend to overestimate the dangers of free speech, and underestimate its importance. But that's why we have a constitutional court. :)</p>
<p class="body" style="text-align: justify; ">The Hindu: If taken to its logical extreme, does the SC verdict mean that anything goes on the internet?</p>
<p class="body" style="text-align: justify; ">6:07</p>
<p class="body" style="text-align: justify; ">Comment From Serendipity</p>
<p class="body" style="text-align: justify; ">@The Hindu: Free Speech is not absolute. There are always restrictions. It depends on how the law is drafted.</p>
<p class="body" style="text-align: justify; "> </p>
<p class="body" style="text-align: justify; ">Comment From Vibhu</p>
<p class="body" style="text-align: justify; ">@Hindu. No not anything goes on the internet. All elements like pornography, abuse, etc which are illegal in general sense also applies to the internet.</p>
<p class="body" style="text-align: justify; ">6:08</p>
<p class="body" style="text-align: justify; ">Gautam Bhatia: @TheHindu No. The SC expressly says that speech which bears a proximate relationship to any of the 19(2) categories may legitimately be restricted. Many of the speech-regulating provisions of the IPC do just that. These provisions are agnostic towards the medium - for instance, defamation will be punishable whether it happens offline, or over the internet.</p>
<p class="body" style="text-align: justify; ">6:08</p>
<p class="body" style="text-align: justify; ">Comment From charan malhotra</p>
<p class="body" style="text-align: justify; ">our Sc lifted great barricade in the freedom of speech.. but even if any one explicit n posts the images of others n morphing ? then what could be the next step to take an action on those convicts?</p>
<p class="body" style="text-align: justify; "> </p>
<p class="body" style="text-align: justify; ">Geetha Hariharan: @charan: Other provisions are still in operation under the IT Act and IPC that can be used. For example: Section 66D (cheating by personation), 66E , etc. I would urge you to look at Section 67, 67A and 67B of IT Act as well.</p>
<p class="body" style="text-align: justify; ">Comment From manoharan</p>
<p class="body" style="text-align: justify; ">right to experss includes right to go online in thought</p>
<p class="body" style="text-align: justify; ">6:11</p>
<p class="body" style="text-align: justify; ">Geetha Hariharan: @TheHindu: No. Restrictions placed under one or more of the conditions under Article 19(2) of the Constitution are legitimate (online and offline). Also, offences under the IPC (Sections 153A, 295A, 292) continue to apply. As also the offences under the IT Act, which target online speech (Sections 66E, 67, 67A and 67B, for instance).</p>
<p class="body" style="text-align: justify; ">6:11</p>
<p class="body" style="text-align: justify; ">Gautam Bhatia: By the way, as an aside, I'd like to add - this judgment is extremely lucid and accessible, and really eloquent at times. Do read it. 123 pages sounds like a lot, but it's easy reading - shouldn't take more than an hour.</p>
<p class="body" style="text-align: justify; "> </p>
<p class="body" style="text-align: justify; ">6:09</p>
<p class="body" style="text-align: justify; ">Lawrence Liang: @The Hindu Not at all, we still have all of the good old speech restrictive laws including in the IPC, it is important to remember that even in the past 66A cases, they have rarely been filed in islation, and are usually accompanied by 124A, 153A or 295A of the IPC</p>
<p class="body" style="text-align: justify; ">6:09</p>
<p class="body" style="text-align: justify; ">Comment From Dhruv</p>
<p class="body" style="text-align: justify; ">A Great Decision to uphold Free Speech. We do not want to be Police State like CHINA but our Indian legislators are slowly taking the country far from Democracy and denying civil rights to civilians. Great decision from Supreme Court. This is a lesson for the indian politicians who think they can play with our fundamental rights and impose their narrow mindset on us.</p>
<p class="body" style="text-align: justify; ">The Hindu: Thank you all so much for joining the chat.</p>
<p class="body" style="text-align: justify; ">6:14</p>
<p class="body" style="text-align: justify; ">The Hindu: The panellists and readers!</p>
<p class="body" style="text-align: justify; ">6:15</p>
<p class="body" style="text-align: justify; ">Geetha Hariharan: Thanks!</p>
<p class="body" style="text-align: justify; ">6:15</p>
<p class="body" style="text-align: justify; ">Gautam Bhatia: Thank you!</p>
<p class="body" style="text-align: justify; ">6:15</p>
<p class="body" style="text-align: justify; ">The Hindu: And for making this a lively and informative debate. Watch this space for more live chats on emerging issues.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/news/the-hindu-march-24-2015-live-chat-win-for-free-speech'>https://cis-india.org/internet-governance/news/the-hindu-march-24-2015-live-chat-win-for-free-speech</a>
</p>
No publisherpraskrishnaIT ActCensorshipFreedom of Speech and ExpressionInternet GovernanceChilling Effect2015-03-26T16:07:06ZNews ItemI dare you, I double dare you: Social media celebrates Sec 66A verdict
https://cis-india.org/internet-governance/news/hindustan-times-march-25-2015-vishakha-saxena-i-dare-you-i-double-dare-you
<b>Users across social media platforms on Tuesday welcomed the Supreme Court's scrapping of the controversial Section 66A of the Information Technology Act, hailing it as a measure that will strengthen freedom of expression online.</b>
<p style="text-align: justify; ">The article by Vishakha Saxena published in the <a class="external-link" href="http://www.hindustantimes.com/india-news/i-dare-you-i-double-dare-you-social-media-celebrates-sec-66a-verdict/article1-1330012.aspx">Hindustan Times</a> on March 25, 2015 quotes Pranesh Prakash.</p>
<hr />
<p style="text-align: justify; ">"This is the first SC judgment since the 60s to plainly strike down a law for free expression violation! #66A," tweeted Pranesh Prakash, policy director at the Centre for Internet and Society in Bengaluru.</p>
<p style="text-align: justify; ">Prakash, who tweeted "I AM ECSTATIC!!" minutes after the judgement, was one of the most vocal critics of Section 66A - which made offensive comments online punishable with jail terms - and played a key role in creating awareness about freedom of expression.</p>
<p style="text-align: justify; ">Apar Gupta, a representative of the People's Union for Civil Liberties (one of the parties that petitioned the Supreme Court against section 66A), also took to Twitter to jubilantly declare victory.</p>
<p style="text-align: justify; ">"My TL is a little crazy right now…This decision means a lot to me. Thank you. I am smiling." he posted.</p>
<p style="text-align: justify; ">Supreme Court advocate Karuna Nundy, who too represents PUCL, expressed her happiness on Facebook.</p>
<p>The top court struck down the provision, described as draconian by many internet rights activists, describing it as "unconstitutional" and a "restriction on free speech".</p>
<p>Section 66A, incorporated through an amendment of the IT Act in 2009, prohibited the sending of information of a "grossly offensive" or "menacing" nature through communication devices. It was used by several states to arrest people over posts on social media that officials claimed were "seditious" or "communally sensitive".</p>
<p>Discussions on social media against the provision had gained pace hours ahead of the court's ruling. Twitter, in fact, was abuzz as thousands used the hashtag #No66A to voice their opinions.</p>
<p>Reddit, known for being unabashed with opinion and language, wasn’t far behind. The first post announcing the verdict was upvoted 96% and garnered 460 points within four hours.</p>
<p>"Supreme Court zindabad! Now can we abuse Azam Khan without any fear?" commented user Apunebolatumerilaila.</p>
<p>Another user, Indian_galileo, wrote, "FINALLY, SOME SENSE HAS PREVAILED PRAISE THE OVERLORDS AT SC THANK YOU SC THANK YOU VERY VERY MUCH."</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/news/hindustan-times-march-25-2015-vishakha-saxena-i-dare-you-i-double-dare-you'>https://cis-india.org/internet-governance/news/hindustan-times-march-25-2015-vishakha-saxena-i-dare-you-i-double-dare-you</a>
</p>
No publisherpraskrishnaIT ActCensorshipFreedom of Speech and ExpressionInternet GovernanceChilling Effect2015-03-26T16:33:55ZNews ItemRuling in India shields Web posts
https://cis-india.org/internet-governance/news/boston-globe-march-25-2015-annie-gowen-ruling-in-india-shields-web-posts
<b>The Supreme Court in India struck down a section of its country’s information technology act Tuesday that had made it illegal for anyone to spread ‘‘offensive messages’’ on electronic devices and resulted in arrests over posts on Facebook and other social media.</b>
<p style="text-align: justify; ">This is the modified version of the article originally published by <a class="external-link" href="http://www.washingtonpost.com/world/indias-supreme-court-strikes-down-law-that-led-to-facebook-arrests/2015/03/24/9ca54e3c-608f-46d7-a32a-57918fdd9c35_story.html">Washington Post</a> and mirrored in <a class="external-link" href="http://www.bostonglobe.com/news/world/2015/03/24/india-supreme-court-strikes-down-law-that-led-facebook-arrests/ssYxzhVXjSEkYgS8W4qwDN/story.html">Boston Globe</a>. Sunil Abraham is quoted. <i>Picture by Manjunath Kiran, AFP.</i></p>
<hr style="text-align: justify; " />
<p style="text-align: justify; ">The Supreme Court in India struck down a section of its country’s information technology act Tuesday that had made it illegal for anyone to spread ‘‘offensive messages’’ on electronic devices and resulted in arrests over posts on Facebook and other social media.</p>
<p style="text-align: justify; ">Supreme Court Judge Rohinton Fali Nariman wrote in the ruling that the section of the law, known as 66A, was unconstitutional, saying the vaguely worded legislation had wrongly swept up innocent people and had a ‘‘chilling’’ effect on free speech in the world’s most populous democracy.</p>
<p style="text-align: justify; ">‘‘Section 66A is cast so widely that virtually any opinion on any subject would be covered by it,’’ the judge wrote. ‘‘If it is to withstand the test of constitutionality, the chilling effect on free speech would be total.’’</p>
<p style="text-align: justify; ">India had first passed its Information Technology Act in 2000, but stricter provisions were added in 2008 and ratified in 2009 that gave police sweeping authority to arrest citizens for their personal posts on social media, a crime punishable for up to three years in jail and a fine.</p>
<p style="text-align: justify; ">Sunil Abraham, the executive director of the Center for Internet and Society in Bangalore, said that the section was originally intended to protect citizens from electronic spam, but it did not turn out that way.</p>
<p style="text-align: justify; ">‘‘Politicians who didn’t like what people were saying about them used it to crack down on online criticism,’’ he said.</p>
<p style="text-align: justify; ">In the end, there were more than 20 high-profile arrests, including a professor who posted an unflattering cartoon of a state political leader and an artist who drew a set of cartoons lampooning the government and Parliament.</p>
<p style="text-align: justify; ">The most well-known was the case of two young women arrested in the western town of Palghar after one of them posted a comment on Facebook that argued that the city of Mumbai should not have been shut down for the funeral of a famous conservative leader. A friend, who merely ‘‘liked’’ the post, was also arrested. After much outcry, the two were released on bail and the charges eventually dropped.</p>
<p style="text-align: justify; ">The case of the ‘‘Palghar Girls’’ inspired a young law student, Shreya Singhal, to take on the government’s law. Singhal became the chief petitioner for the case, along with other free speech advocates and an Indian information technology firm.</p>
<p style="text-align: justify; ">‘‘It’s a big victory,’’ Singhal said after the ruling. ‘‘The Internet is so far-reaching and so many people use it now, it’s very important for us to protect this right.’’</p>
<p style="text-align: justify; ">Singhal and other petitioners had also argued that another section of India’s technology act that allowed the government to block websites containing questionable material were also unconstitutional, but the court disagreed, saying there was a sufficient review process in place to avoid misuse.</p>
<p style="text-align: justify; ">Free speech in India is enshrined in the country’s constitution but has its limits. Books and movies are often banned or censored out of consideration for religious and minority groups.</p>
<p style="text-align: justify; ">In 2014, a conservative Hindu group persuaded Penguin India to withdraw a book on Hinduism by Wendy Doniger, a professor of religion at the University of Chicago, from the Indian market. And more recently, the government of India blocked a planned television debut of a documentary film on a 2012 gang rape case, ‘‘India’s Daughter.’’</p>
<p style="text-align: justify; ">Along with India, other nations have sharply increased monitoring and crackdowns on perceived insulting Web posts in recent years.</p>
<p style="text-align: justify; ">Across the Gulf Arab states, dozens of activists have been arrested for social media posts considered insulting to the country’s rulers or tarnishing the national image.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/news/boston-globe-march-25-2015-annie-gowen-ruling-in-india-shields-web-posts'>https://cis-india.org/internet-governance/news/boston-globe-march-25-2015-annie-gowen-ruling-in-india-shields-web-posts</a>
</p>
No publisherpraskrishnaIT ActCensorshipFreedom of Speech and ExpressionInternet GovernanceChilling Effect2015-03-27T00:38:34ZNews ItemIndia's Online Freedom Advocates Hail Court Ruling on Free Speech
https://cis-india.org/internet-governance/news/voice-of-america-march-24-2015-anjana-pascricha-indias-online-freedom-advocates-hail-court-ruling-on-free-speech
<b>Online freedom advocates in India are hailing a court ruling that struck down a controversial law seen as infringing free speech on the Internet. But in a country expected to have the world’s largest number of web users by 2018, some concerns about net censorship remain.</b>
<p style="text-align: justify; ">The blog post by Anjana Pasricha was published by <a class="external-link" href="http://www.voanews.com/content/online-freedom-advocates-in-india-welcome-court-ruling-on-free-speech/2693941.html">Voice of America</a> on March 24, 2015. Sunil Abraham is quoted.</p>
<hr />
<p style="text-align: justify; ">The 24-year old law student, Shreya Singhal, who spearheaded the legal battle for overturning the harsh law, said it was the arrest of two young women in 2012 for a seemingly innocuous Facebook post that prompted her to petition the Supreme Court. One woman had criticized a shutdown in Mumbai after the death of a Hindu nationalist leader Bal Thackeray, the other “liked” her post.</p>
<p style="text-align: justify; ">Like millions of others, Singhal was alarmed at their detention because she says she could have been the one to post the innocuous comment.</p>
<p style="text-align: justify; ">“It [the law] was punishing people for expressing their views on the Internet, whereas if they did it or they did it on TV or they did nit in newspapers, they would not get arrested for the same views,” she said.</p>
<p style="text-align: justify; ">Scrapping the law on Tuesday, India's Supreme Court said the Information Technology Act was vaguely worded, and did not explain what could be “inconvenient" or “grossly offensive.” The judgment said the law was liable to have a chilling effect on free speech as it strikes at the root of liberty and freedom of expression.</p>
<p style="text-align: justify; ">The law had raised alarm bells after several people were arrested in recent years for posting “objectionable content.” In the latest instance, a 16-year-old boy in Uttar Pradesh state was arrested and released on bail for posting an “insulting” remark about regional party leader, Azam Khan. Among others who were picked up under the law were a professor in Kolkata and a cartoonist in Mumbai.</p>
<p style="text-align: justify; ">The previous government, which passed the law, said it was necessary to combat abuse and defamation on the Internet, but critics said it was used by political parties to suppress dissent and criticism.</p>
<p style="text-align: justify; ">The Supreme Court ruling also made it tougher for the government to order Internet companies to remove online content.</p>
<p style="text-align: justify; ">Sunil Abraham of Bangalore-based Center for Internet and Society says local and foreign Internet companies have faced growing pressure for putting up content deemed offensive in India.</p>
<p style="text-align: justify; ">“According to Facebook's latest transparency report, takedown requests and information requests from the Indian government continue to grow, and that is worrying. But that part of the law has been read down. Now when the government sends the takedown notice, it has to be accompany the takedown notice with a court order,” said Abraham.</p>
<p style="text-align: justify; ">But free speech campaigners say concerns about online censorship have not completely gone away. The Supreme Court has upheld a law that allows the government to block websites, saying there are sufficient safeguards.</p>
<p style="text-align: justify; ">Campaigners like Sunil Abraham think otherwise. “Lack of transparency makes it impossible for anybody to tell whether the government is censoring the Internet in a proportionate manner, whether it is working to truly address the real harms that emerge from bad content online. When the court in India bans books or movies, the judgments of these courts are made available to the public."</p>
<p style="text-align: justify; ">"But if when it comes to website blocking, this transparency requirement is missing. In fact, the law has secrecy provisions, which prevents ISP’s that receive these block orders from making them available in the public domain,” said Abraham.</p>
<p style="text-align: justify; ">The young student, Singhal, who led the legal battle, said she was “overwhelmed” at the victory for online freedom.</p>
<p style="text-align: justify; ">“We are such a diverse society in India with so many diverse and different opinions. It is inherent in us, it is part of us, this democracy, this debate we have,” she said.</p>
<p style="text-align: justify; ">Her views were echoed on Twitter and Facebook by people in India, a country of 1.2 billion people where Internet access is growing rapidly.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/news/voice-of-america-march-24-2015-anjana-pascricha-indias-online-freedom-advocates-hail-court-ruling-on-free-speech'>https://cis-india.org/internet-governance/news/voice-of-america-march-24-2015-anjana-pascricha-indias-online-freedom-advocates-hail-court-ruling-on-free-speech</a>
</p>
No publisherpraskrishnaIT ActCensorshipFreedom of Speech and ExpressionInternet GovernanceChilling Effect2015-03-27T01:43:22ZNews Item