Centre for Internet and Society

India Debates Misuse of Social Media

praskrishna — 2012-09-04T12:13:21Z

India has blocked more than 250 websites after provocative online content spread panic among people from the country's northeast, prompting some of them to flee Indian cities. The crackdown has sparked a debate about how the country will cope with misuse of social media.

Anjana Pasricha's article was originally published by Voice of America on August 21, 2012 and re-posted in the Chosunilbo on September 4, 2012. Sunil Abraham is quoted.

Officials say the websites that were blocked had posted edited images and videos of victims of earthquakes and claimed they were those of Muslim victims caught in recent ethnic strife in India's northeastern Assam state and Burma.

As the images went viral, rumors began about reprisal attacks against Hindu migrants from the northeast working in other parts of India. Hate text messages warning of violence circulated widely. Worried about their safety, thousands of the migrants fled Indian cities last week to return to Assam.

Taken aback by the mass exodus, the government says the "unity and integrity of the country is at stake."

Home Minister Sushil Kumar Shinde says that "elements" had used social networking sites to whip up communal sentiments. Shinde says a number of the sites had been uploaded from Pakistan. Shinde adds that the government has gathered a lot of evidence through the investigation, whether from Facebook communication or text messaging.

Officials have also blamed social networking sites such as Twitter, Yahoo and Facebook for not screening objectionable content.

Cyber specialists say the government needs to go beyond the blame game and learn how to manage misuse of social media on the massive scale witnessed last week. About 100 million people in India use the Internet, the third-largest number of net users in the world. About 700 million people have mobile phones.

Cyber law expert, lawyer Pawan Duggal says this is the first time the Internet and mobile-phone technology have been used to incite fear in a community.

"India has to wake up to the need of putting cyber security as the number-one priority for the nation," Duggal noted. "Unfortunately, India does not even have a cyber-security policy. The nation does not have any plan of action, should such an emergency happen again. India needs to have its own cyber army of cyber warriors."

The government has been involved in a dispute with web companies such as Google and Facebook for several months and has called for them to devise a voluntary framework to keep offensive material off the web. India routinely asks these companies to remove what it calls "objectionable content," which has led to fears India may be diluting web freedom.

Sunil Abraham heads the Center for Internet and Society in Bangalore, an advocacy group for net freedom. He says the government's recent crackdown on hundreds of websites is warranted, but says it needs to be more sophisticated and aggressive in handling threats and rumors emanating from the internet.

"Social media websites and other Internet intermediaries should have been asked by the government to run banner advertising or some other form of messaging that revealed the lack of truth in the rumors that were circulating," Abraham explained. "The best way to deal with misinformation is to produce more accurate and more credible information. By just blocking access to fraudulent information, you do not fully undermine the power of rumors because by the time the government had decided to act the photographs and videos had already gone viral. And even though the websites are blocked these images will continue to circulate."

The exodus of northeast migrants from Indian cities has slowed in recent days as India has moved to block multimedia and bulk text messaging, and panic has subsided after repeated assurances of safety by the government.

For more details visit https://cis-india.org/news/www-voanews-com-aug-21-2012-anjana-pasricha-india-debates-misuse-of-social-media

Officials Raise Questions over Indian Government’s Efforts

praskrishna — 2012-09-04T12:36:48Z

As per a recent report, it has been revealed that the Indian government despite making several efforts to resolve the issue of hate speech seems failing in the same.

This post by Bruce Totolos was published in the French Tribune on August 22, 2012. Sunil Abraham is quoted.

It is being said that no doubt the government has taken strict actions since the rumours came into picture from the last week. 245 Web pages have been blocked with effect from Friday along with limitations over text messages to five a day for 15 days. But, many websites are still containing some morphed images of violence.

As per some officials in New Delhi, it is a matter of huge concern still not being taken seriously by online companies like Google and Facebook. It is known to everyone that previous such images and SMSs led some northeastern India’s people to leave Chennai, Bangalore and Pune, they say.

However, the internet firms claim that they are making all possible endeavours. It was told that only reason for not answering certain request was it hampered users’ rights.

“The Internet intermediaries are responding slowly because now they have to trawl through their networks and identify hate speech. The government acted appropriately, but without sufficient sophistication”, said executive director Sunil Abraham from the Center for Internet and Society in Bangalore.

For more details visit https://cis-india.org/news/frenchtribune-com-bruce-totolos-aug-22-2012-officials-raise-questions-over-indian-governments-efforts

Political war on the web

praskrishna — 2012-09-05T05:27:24Z

Twitter is not only the ‘people’s voice’. It is also a forum for orchestrated propaganda.Kunal Majumder tracks the BJP-Congress online duel.

Kunal Majumder's article was published in Tehelka Magazine, Vol 9, Issue 36, Dated 08 Sept 2012. Pranesh Prakash is quoted.

New battlelines Digvijaya Singh (left) and Sushma Swaraj are active tweeples
Photos: Shailendra Pandey

ON 27 August, as the Congress and the BJP battled it out in Parliament and later through news conferences, the story on Twitter was a bit different. Congress supporters, who had been at the receiving end of the ‘Coalgate’ issue so far, finally started hitting back. Adopting a strategy they had so far been accusing right-wingers of, they launched into an all-out attack on anyone who supported the BJP. Every tweet was hashtagged with #RIPBJP. At the end of the day, #RIPBJP was trending, making it the most successful Congress campaign against the BJP — a first on Twitter.

“The social media battle against the BJP has just begun,” says a Congress supporter associated with the new project. “In the days to come, you will see our volunteers in a more combative mode.” However, he says it will not “replicate the negative campaign of the right-wing”.

The Congress’ social media strategy is spearheaded by its tech-savvy General Secretary Digvijaya Singh. On Twitter for nearly nine months, Singh has been readying to take on the BJP on its own turf and influence the ‘voice of people’. Though serious doubt remains about how much of this voice is real and how much is a result of political propaganda.

The push for the Congress to take the battle online comes from the recent ‘banning’ of Twitter handles of BJP sympathiser and senior journalist Kanchan Gupta. While the government insists that the handles were blocked due to security issues, Gupta claimed political martyrdom and launched a tirade against the Congress for imposing a second Emergency. Hashtags like #Emergency2012 and #GOIBlocks started trending, with BJP supporters turning their display pictures to black. "The fact remains none of the blockings were politically motivated,” says Pranesh Prakash, programme manager with Centre for Internet and Society. Prakash instead points to the UPA’s earlier request to IT companies like Google and Facebook to pull down certain pages, which displayed morphed photos and cartoons of Congress “functionaries” as clear example of politically motivated intervention.

Though no explanation was forthcoming from the government as to why specific handles were blocked temporarily through ISPs (Twitter has still not blocked them), the PMO issued a statement saying it has requested Twitter to take “appropriate action against six persons impersonating the PMO”. Certain handles like @PM0India (with a ‘zero’) were often accused of impersonating the actual @PMOIndia. But that’s another story.

#Emergency2012 and #GOIBlocks started trending, with various BJP supporters turning their display pictures to black	The day Gupta’s handle was ‘blocked’, former bureaucrat B Raman wrote a blog that gave an interesting insight into why the government might have targeted Gupta. Raman describes a meeting that took place in Ahmedabad in 2008 — just before the 2009 General Elections — attended by senior BJP leaders and sympathisers, including Gupta. Raman says the general feeling among BJP participants was that mainstream media was not giving enough opportunities to the BJP and other right-wing activists to air their views. Therefore, “it was suggested by some participants that the BJP could get over this handicap by making good use of the online media”. Raman goes on to point that supporters of Gujarat Chief Minister Narendra Modi and other right-wingers have since then used online media superbly with help of IT-savvy Hindutva supporters.

#Emergency2012 and #GOIBlocks started trending,
with various BJP supporters turning their display pictures to black

The day Gupta’s handle was ‘blocked’, former bureaucrat B Raman wrote a blog that gave an interesting insight into why the government might have targeted Gupta. Raman describes a meeting that took place in Ahmedabad in 2008 — just before the 2009 General Elections — attended by senior BJP leaders and sympathisers, including Gupta. Raman says the general feeling among BJP participants was that mainstream media was not giving enough opportunities to the BJP and other right-wing activists to air their views. Therefore, “it was suggested by some participants that the BJP could get over this handicap by making good use of the online media”. Raman goes on to point that supporters of Gujarat Chief Minister Narendra Modi and other right-wingers have since then used online media superbly with help of IT-savvy Hindutva supporters.

What Raman wrote in his blog is confirmed by the BJP’s IT Cell Convener, Arvind Gupta. The BJP was not only the first political party in India to have a website in 1999, its social media network has been way ahead of any other political group in the country. From posting updates to engaging users, it has a well-oiled social media machinery in place. Arvind calls this the “listen, engage and inform” model. This includes Internet TV, YouTube and messenger chats. In fact, the next big thing on the party’s social media agenda is the interaction with Narendra Modi on Google+ Hangout.

Poli-Tweeting

Poli-Faking

BUT IT is not political agenda that has left Digvijaya Singh singed. Speaking to TEHELKA, Singh points to abusive — and at times, factually incorrect — tweets posted by right-wing supporters. In many cases, the mere mention of anything against Modi or Baba Ramdev would have scores of right-wing supporters bombarding Twitter timelines with counter-criticism, and often, abuses. “Anything that incites hate is a problem,” he says.

Though what can be called ‘hate’ is a very subjective matter, Arvind Gupta feels social media reflects the mood of the young population. “People call themselves Internet Hindus. We, as a party, have nothing to do with this. People are so passionate about Modi that they take up his case (against anyone who posts anti-Modi tweets),” says Gupta. He also points towards a similar trend when it comes to people tweeting against Team Anna.

Many right-wing Twitter users are accused of posting sponsored tweets against specific people who they believe are anti-BJP. This accusation has not been proven so far, though many users claim to have tracked interaction between rightwing Twitter users on coordinated attacks on users with liberal or pro-Congress ideologies. “There is a belief — and let me tell you that it is wrong — that we hire people,” says Gupta. So can the high number of right-wing users be put down to an ideological stance alone? Gupta says it’s got to do with understanding politics better. “Our volunteers are generally more educated and understand the the Congress’ wrong policies. That category also forms a major part of the ecosystem in this new media,” he says.

Within minutes of talking to this correspondent, Gupta posts a new hashtag on Twitter — #MotaMaal — taking a cue from Sushma Swaraj’s accusation of corruption against the Congress in the coal scam. The next day, Twitter became all about #MotaMaal versus #RIPBJP. Handles like @BJP0fficials and @PMAdvani have been created to counter the right wing. Clearly, Congress supporters are hitting back even at the risk of adding to the cacophony of an already-chaotic medium.

Kunal Majumder is a Principal Correspondent with Tehelka.

For more details visit https://cis-india.org/news/www-tehelka-com-kunal-majumder-tehelka-magazine-vol-9-issue-36-sep-8-2012-political-war-on-the-web

Need a standard strategy to deal with Web issues: Chandrasekhar

praskrishna — 2012-09-05T08:37:09Z

The government has been facing allegations of Internet censorship for over a year now.

This article by Surabhi Agarwal was published in LiveMint on September 4, 2012. Pranesh Prakash's analysis is quoted.

The government said it needed to improve the way in which it dealt with issues such as Internet hate messages besides blog posts and SMSes that seek to create panic so that it’s not accused of trying to gag free speech.

"We all have agreed that we need some combination of self-regulation and government interventions. But we need to do it in a proper way,” said department of telecom secretary R. Chandrasekhar, while addressing a Federation of Indian Chambers of Commerce and Industry (Ficci) conference on the issue of “legitimate restrictions on freedom of online speech".

	The Union government has been facing allegations of censorship after it sought to contain messages that led to communal violence and a panicexodus by people from the north-eastern states in some cities. Last month, the government ordered the blocking of almost 310 web pages for content deemed to be attacking particular communities. According to a post by Pranesh Prakash of the Centre for Internet and Society, 33% of them were on Facebook, 28% on Google Inc.’s YouTube and around 10% on Twitter.

The Union government has been facing allegations of censorship after it sought to contain messages that led to communal violence and a panicexodus by people from the north-eastern states in some cities.

Last month, the government ordered the blocking of almost 310 web pages for content deemed to be attacking particular communities. According to a post by Pranesh Prakash of the Centre for Internet and Society, 33% of them were on Facebook, 28% on Google Inc.’s YouTube and around 10% on Twitter.

Defending the government move, Gulshan Rai, chief of the Computer Emergency Response Team (CERT-in), said it was the first time that the emergency provision of the Information Technology Act 2008 had been exercised. Even though the list was not drawn up by his agency, due scrutiny was carried out before issuing orders to block the sites.

This came after allegations that government may have also blocked bona fide posts as it sought to block content related to the North-East.

Twitter accounts of some journalists and other individuals associated with and sympathetic to right-wing causes were blocked, according to a list published earlier by The Economic Times.

"This is certainly not the last time we are seeing such a situation, so meaningful ways to respond to such complex situations will have to be devised," said Chandrasekhar.

He added that there was also a need to collaborate better with all stakeholders to devise not just defensive strategies during a crisis but also ways to contain its impact using the social media.

Ankhi Das, head of public policy at Facebook India, said that during the London riots of 2011, the UK government enlisted the support of social networking sites to dispel rumours.

"Social media can also be allies of the government at times like this," she said.

Raman Jit Singh Cheema, a senior policy analyst at Google India, cited a similar example of authorities in Japan using such methods to send out correct information following the tsunami that hit the country in 2011.

"We need to collaborate on a continuing basis, so that when you are faced with such a crisis, you are able to deal with it," said Chandrasekhar.

The government has been facing allegations of Internet censorship for over a year after minister for communication and information technology Kapil Sibal raised the issue of regulating social networking sites. They had allegedly not complied with the government’s demand that offensive content be removed.

Chandrasekhar said that processes should be clearer, more transparent and well-defined.

"These need to be brought out in the form of some kind of a standard operating procedure, so that they (stakeholders) are expected to know how to conduct themselves and how they can expect the government to deal if a contingency arises," he said.

For more details visit https://cis-india.org/news/www-livemint-com-surabhi-agarwal-sep-4-2012-need-a-strategy-to-deal-with-web-issues

You Have the Right to Remain Silent

nishant — 2013-07-22T06:59:53Z

Reflecting upon the state of freedom of speech and expression in India, in the wake of the shut-down of the political satire website narendramodiplans.com.

Nishant Shah's column was published in Down to Earth on July 17, 2013.

It took less than a day for narendramodiplans.com, a political satire website that had more than 60,000 hits in the 20 hours of its existence, to be taken down. A simple webpage that showed a smiling picture of Narendra Modi, the touted candidate for India’s next Prime Ministerial campaign, flashing his now trademark ‘V’ for ~~Vengeance~~ Victory sign. At the first glimpse it looked like another smart media campaign by the net-savvy minister who has already made use of the social web quite effectively, to connect with his constituencies and influence the younger voting population in the country. Below the image of Mr. Modi was a text that said, "For a detailed explanation of how Mr. Narendra Modi plans to run the nation if elected to the house as a Prime Minister and also for his view/perspective on 2002 riots please click the link below." The button, reminiscent of 'sale' signs on shops that offer permanent discounts, promised to reveal, for once and for all, the puppy plight of Mr. Modi's politics and his plans for the country that he seeks to lead.

However, when one tried to click on the button, hoping, at least for a manifesto that combined the powers of Machiavelli with the sinister beauty of Kafka, it proved to be an impossible task. The button wiggled, and jiggled, and slithered all over the page, running away from the mouse following it. Referencing the layers of evasive answers, the engineered Public Relations campaigns that try to obfuscate the history to some of the most pointed questions that have been posited to the Modi government through judicial and public forums, the button never stayed still enough to actually reveal the promised answers. For people who are familiar with the history of such political satire and protest online would immediately recognise that this wasn’t the most original of ideas. In fact, it was borrowed from another website - http://www.thepmlnvision.com/ that levelled similar accusations of lack of transparency and accountability on the part of Nawaz Sharif of Pakistan. Another instance, which is now also shut down, had a similar deployment where the webpage claimed to give a comprehensive view into Rahul Gandhi’s achievements, to question his proclaimed intentions of being the next prime-minister. In short, this is an internet meme, where a simple web page and a java script allowed for a critical commentary on the future of the next elections and the strengthening battle between #feku and #pappu that has already taken epic proportions on Twitter.

The early demise of these two websites (please do note, when you click on the links that the Nawaz Sharif website is still working) warns us of the tightening noose around freedom of speech and expression that politicos are responsible for in India. It has been a dreary last couple of years already, with the passing of the Intermediaries Liabilities Rules as an amendment to the IT Act of India, Dr. Sibal proposing to pre-censor the social web in a quest to save the face of erring political figures, teenagers being arrested for voicing political dissent, and artists being prosecuted for exercising their rights to question the state of governance in our country. Despite battles to keep the web an open space that embodies the democratic potentials and the constitutional rights of freedom of speech and expression in the country, it has been a losing fight to keep up with the ad hoc and dictatorial mandates that seem to govern the web.


Above is a screen shot from narendramodiplans.com website

We have no indication of why this latest piece of satirical expression, which should be granted immunity as a work of art, if not as an individual’s right to free speech, was suddenly taken down. The website now has a message that says, “I quit. In a country with freedom of speech, I assumed that I was allowed to make decent satire on any politician more particularly if it is constructive. Clearly, I was wrong.” The web is already abuzz with conspiracy theories, each sounding scarier than the other because they seem so plausible and possible in a country that has easily sacrificed our right to free speech and expression at the altar of political egos. And whether you subscribe to any of the theories or not, whether your sympathies lie with the BJP or with the UPA, whether or not you approve of the political directions that the country seems to be headed in, there is no doubt that you should be as agitated as I am, about the fact that we are in a fast-car to blanket censorship, and we are going there in style.

What happens online is not just about this one website or the one person or the one political party – it is a reflection on the rising surveillance and bully state that presumes that making voices (and sometimes people) invisible, is enough to resolve the problems that they create. And what happens on the web is soon going to also affect the ways in which we live our everyday lives. So the next time, you call some friends over for dinner, and then sit arguing about the state of politics in the country, make sure your windows are all shut, you are wearing tin-foil hats and if possible, direct all conversations to the task of finally finding Mamta Kulkarni. Because anything else that you say might either be censored or land you in a soup, and the only recourse you might have would be a website that shows the glorious political figures of the country, with a sign that says “To defend your right to free speech and expression, please click here”. And you know that you are never going to be able to click on that sign. Ever.

For more details visit https://cis-india.org/internet-governance/blog/down-to-earth-july-17-2013-nishant-shah-you-have-the-right-to-remain-silent

Consultation on "Understanding the Freedom of Expression Online and Offline"

praskrishna — 2016-01-03T10:27:08Z

The event organized by Digital Empowerment Foundation and Association for Progressive Communications was held at YMCA, New Delhi on December 10, 2015. Jyoti Panday attended the event as a speaker. She covered imposition of legitimate expression specifically in the context of intermediary liability practices in India.

The sessions were divided as under:

Welcome & Overview of the consultation by Digital Empowerment Foundation
Launch of the Country Research Report & Keynote Address
Introducing the Country Research Report titled “Limited Access and Restricting Expression by Osama Manzar, Founder and Director, Digital Empowerment Foundation
Working Session I: Understanding the “Freedom of Expression Online and Offline” in conversation with experts
Working Session II: “Unboxing the Freedom of Expression Online & Offline”
Sub-Group Presentations
Concluding Remarks

Download the Agenda here

For more details visit https://cis-india.org/internet-governance/news/consultation-on-understanding-the-freedom-of-expression-online-and-offline

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

praskrishna — 2016-01-07T02:26:16Z

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

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

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

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

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

Watch our video

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

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

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

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

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

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

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

Check out Pranesh's tweets below

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

Check out his tweets below

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

Facebook Free Basics: Gatekeeping Powers Extend to Manipulating Public Discourse

vidushi — 2016-01-09T13:43:56Z

15 million people have come online through Free Basics, Facebook's zero rated walled garden, in the past year. "If we accept that everyone deserves access to the internet, then we must surely support free basic internet services. Who could possibly be against this?" asks Facebook founder Mark Zuckerberg, in a recent op-ed defending Free Basics.

The article was published in Catchnews on January 6, 2015. For more info click here.

This rhetorical question however, has elicited a plethora of answers. The network neutrality debate has accelerated over the past few weeks with the Telecom Regulatory Authority of India (TRAI) releasing a consultation paper on differential pricing.

While notifications to "Save Free Basics in India" prompt you on Facebook, an enormous backlash against this zero rated service has erupted in India.

The policy objectives that must guide regulating net neutrality are consumer choice, competition, access and openness. Facebook claims that Free Basics is a transition to the full internet and digital equality. However, by acting as a gatekeeper, Facebook gives itself the distinct advantage of deciding what services people can access for free by virtue of them being "basic", thereby violating net neutrality.

Amidst this debate, it's important to think of the impact Facebook can have on manipulating public discourse. In the past, Facebook has used it's powerful News Feed algorithm to significantly shape our consumption of information online.

In July 2014, Facebook researchers revealed that for a week in January 2012, it had altered the news feeds of 689,003 randomly selected Facebook users to control how many positive and negative posts they saw. This was done without their consent as part of a study to test how social media could be used to spread emotions online.

Their research showed that emotions were in fact easily manipulated. Users tended to write posts that were aligned with the mood of their timeline.

Another worrying indication of Facebook's ability to alter discourse was during the ALS Ice Bucket Challenge in July and August, 2014. Users' News Feeds were flooded with videos of individuals pouring a bucket of ice over their head to raise awareness for charitable cause, but not entirely on its merit.

The challenge was Facebook's method of boosting its native video feature which was launched at around the same time. Its News Feed was mostly devoid of any news surrounding riots in Ferguson, Missouri at the same time, which happened to be a trending topic on Twitter.

Each day, the news feed algorithm has to choose roughly 300 posts out of a possible 1500 for each user, which involves much more than just a random selection. The posts you view when you log into Facebook are carefully curated keeping thousands of factors in mind. Each like and comment is a signal to the algorithm about your preferences and interests.

The amount of time you spend on each post is logged and then used to determine which post you are most likely to stop to read. Facebook even keeps into account text that is typed but not posted and makes algorithmic decisions based on them.

It also differentiates between likes - if you like a post before reading it, the news feed automatically assumes that your interest is much fainter as compared to liking a post after spending 10 minutes reading it.

Facebook believes that this is in the best interest of the user, and these factors help users see what he/she will most likely want to engage with. However, this keeps us at the mercy of a gatekeeper who impacts the diversity of information we consume, more often than not without explicit consent. Transparency is key.

(Vidushi Marda is a programme officer at the Centre for Internet and Society)

For more details visit https://cis-india.org/internet-governance/blog/catchnews-january-6-2016-vidushi-marda-facebook-free-basics-gatekeeping-powers-extend-to-manipulating-public-discourse

Freedom of Expression in a Digital Age

Geetha Hariharan and Jyoti Panday — 2015-07-15T14:42:23Z

The Centre for Internet & Society, the Observer Research Foundation, the Internet Policy Observatory, the Centre for Global Communication Studies and the Annenberg School for Communication, University of Pennsylvania organized this conference on April 21, 2015 in New Delhi.

This report was edited by Elonnai Hickok

Effective research, policy formulation, and the development of regulatory frameworks in South Asia

Inside this Report

BACKGROUND TO THE CONFERENCE

THE ORGANIZERS

CONFERENCE PROGRAMME

WELCOME ADDRESS

SESSION 1: LEARNINGS FROM THE PAST

Vibodh Parthasarathi, Associate Professor, Centre for Culture, Media and Governance (CCMG), Jamia Millia Islamia University

Smarika Kumar, Alternative Law Forum

Bhairav Acharya, Advocate, Supreme Court and Delhi High Court & Consultant, CIS

Ambikesh Mahapatra, Professor of Chemistry, Jadavpur University

Questions & Comments

SESSION 2: CURRENT REALITIES

Cherian George, Associate Professor, Hong Kong Baptist University

Zakir Khan, Article 19, Bangladesh

Chinmayi Arun, Research Director, Centre for Communication Governance (CCG), National Law University (Delhi)

Raman Jit Singh Chima, Asia Consultant, Access Now

Questions & Comments

SESSION 3: LOOKING AHEAD

Sutirtho Patranobis, Assistant Editor, Hindustan Times

Karuna Nundy, Advocate, Supreme Court of India

Geeta Seshu, The Hoot

Pranesh Prakash, Policy Director, Centre for Internet & Society

Questions & Comments

Conclusion

Background to the Conference

As the Internet expands and provides greater access and enables critical rights such as freedom of expression and privacy, it also places censorship and surveillance capabilities in the hands of states and corporations. It is therefore crucial that there exist strong protections for the right to freedom of expression that balance state powers and citizen rights. While the Internet has thrown up its own set of challenges such as extremist/hate speech, the verbal online abuse of women, and the use of the Internet to spread rumours of violence, the regulation of cont ent is a question that is far from being settled and needs urgent attention. These are compounded by contextual challenges. What role can and should the law play? When is it justified for the government to intervene? What can be expected from intermediaries, such as social networks and Internet Service Providers (ISPs)? And what can users do to protect the right to free speech - their own and that of others?

Balancing freedom of expression with other rights is further complicated by the challenges of fast paced and changing technologies and the need for adaptable and evolving regulatory frameworks. By highlighting these challenges and questioning the application of existing frameworks we aim to contribute to further promoting and strengthening the right to freedom of expression across South Asia.

The Organizers

Centre for Internet & Society

Established in 2008, the Centre for Internet and Society (CIS) is a non-profit research organization that works on policy issues relating to freedom of expression, privacy, accessibility for persons with disabilities, access to knowledge and intellectual property rights, and openness (including open standards and open government data). CIS also engages in scholarly research on the budding disciplines of digital natives and digital humanities. CIS has offices in Bangalore and New Delhi.

Observer Research Foundation

ORF, established in 1990, is India's premier independent public policy think tank and is engaged in developing and discussing policy alternatives on a wide range of issues of national and international significance. The fundamental objective of ORF is to influence the formulation of policies for building a strong and prosperous India in a globalised world. It hosts India's largest annual cyber conference - CyFy: the India Conference on Cyber Security and Internet Governance

The Annenberg School for Communication, The Centre for Global Communication Studies & the Internet Policy Observatory (U. Penn.)

The Annenberg School of Communication (ASC) at the University of Pennsylvania produces research that advances the understanding of public and private communications. The Center for Global Communication Studies (CGCS) is a focused academic center at ASC and a leader in international education and training in comparative media law and policy. It affords students, academics, lawyers, regulators, civil society representatives and others the opportunity to evaluate and discuss international communications issues. The Internet Policy Observatory (IPO) was started by CGCS to research the dynamic technological and political contexts in which Internet governance debates take place. The IPO serves as a platform for informing relevant communities of activists, academics, and policy makers, displaying collected data and analysis.

Conference Programme

'Freedom of Expression in a Digital Age' Effective Research, Policy Formation & the Development of Regulatory Frameworks in South Asia
April 21^st, 2015 - 11 a.m. to 6 p.m.

The Observer Research Foundation

20, Rouse Avenue Institutional Area

New Delhi - 110 002, INDIA

About the Conference

The conference will be a discussion highlighting the challenges in promoting and strengthening online freedom of expression and evaluating the application of existing regulatory frameworks in South Asia

Agenda

Learnings from the past		Current Realities		Looking ahead
11:00 - 1:00	1:00 - 2:00	2:00 - 4:00	4:00- 4:15	4:15 - 6:00
Overview of online FoEx policy and regulatory models across South Asia		Enabling FOEX in South Asia		Challenges associated with formulating regulation for online FoEx
Definitions of FoEx across South Asia		Ways in which FoEx is, or may be, curtailed online		Ways forward to bridge existing gaps between policy formation and policy implementation with respect to FOEX online
Impact of technology and markets on FoEx across South Asia		Balancing FoEx and other digital rights		Exploring emerging regulatory questions for FoEx online
Challenges to FoEx online across South Asia		The impact of jurisdiction, multi-national platforms, and domestic regulation on FoEx online		Impacting and influencing the development and implementation of Internet regulation through research
Effective research techniques and online FoEx		Role and responsibility of intermediaries in regulating online speech across South Asia		Exploration of the future role and interplay of technology and policy in enabling FOEX online

Ms. Mahima Kaul, Head (Cyber & Media Initiative), Observer Research Foundation (ORF), introduced the conference and its context and format, as well as the organisers. In three sessions, the Conference aimed to explore historical lessons, current realities and future strategies with regard to freedom of expression on the Internet in India and South Asia.

Mr. Manoj Joshi, Distinguished Fellow, ORF, provided the welcome address. Mr. Joshi highlighted the complexities and distinctions between print and electronic media, drawing on examples from history. He stated that freedom of expression is most often conceived as a positive right in the context of print media, as restrictions to the right are strictly within the bounds of the Constitution. For instance, during the riots in Punjab in the 1980s, when hate speech was prevalent, constitutionally protected restrictions were placed on the print media. When efforts were made to crack down on journalists with the introduction of the Defamation Bill in the 1980s, journalists were lucky that the Bill also included proprietors as those liable for defamation. This created solidarity between journalists and proprietors of newspapers to fight the Bill, and it was shelved.

Freedom of expression is necessary in a democratic society, Mr. Joshi stated, but it is necessary that this freedom be balanced with other rights such as privacy of individuals and the protection against hate speech. In the absence of such balance, speech becomes one-sided, leaving no recourse to those affected by violative speech.

In the digital age, however, things become complex, Mr. Joshi said. The freedom available to speech is enhanced, but so is the misuse of that freedom. The digital space has been used to foment riots, commit cybercrime, etc. Online, in India the restrictions placed on freedom of speech have become draconian. Section 66A and the incidents of arrests under it are an example of this. It is, therefore, important to consider the kind of restrictions that should be placed on free speech online. There is also the question of self-regulation by online content-creators, but this is rendered complex by the fact that no one owns the Internet. This conference, Mr. Joshi said, will help develop an understanding of what works and what frameworks we will need going forward.

Mr. Pranesh Prakash, Policy Director, Centre for Internet & Society (CIS), introduced the speakers for the first session. Mr. Vibodh Parthasarathi, Associate Professor, Centre for Culture, Media and Governance, Jamia Millia Islamia University, would first share his views and experience regarding the various ways of curtailing freedom of expression by the State, markets and civil society. Ms. Smarika Kumar of theAlternative Law Forum (ALF) would then expand on structural violations of freedom of expression. Mr. Bhairav Acharya, Advocate with the Delhi Bar and Consultant for CIS, would throw light on the development of free speech jurisprudence and policy in India from the colonial era, while Prof. Ambikesh Mahapatra, Professor of Chemistry, Jadavpur University, was to speak about his arrest and charges under Section 66A of the Information Technology Act, 2000 (am. 2008), providing insight into the way Section 66A was misused by police and the West Bengal government.

Vibodh Parthasarathi, Associate Professor, Centre for Culture, Media and Governance (CCMG), Jamia Millia Islamia University

Mr. Parthasarathi began his talk with an anecdote, narrating an incident when he received a call from a print journalist, who said "TV people can get away with anything, but we can't, and we need to do something about it." The notion of news institutions getting away with non-kosher actions is not new - and has been a perception since the 19^th century. He stressed that there have always been tensions between Freedom of Expression, access, and other rights. Curtailment happens not just by the state, but by private parties as well - market and civil society. Indeed, a large number of non-state actors are involved in curtailing FoE. Subsequently a tension between individual FoE and commercial speech freedom is emerging. This is not a new phenomenon. Jurisprudence relating to free speech makes a distinction between the persons in whom the right inheres: individuals on the one hand (including journalists and bloggers), and proprietors and commercial entities on the other.

In India, freedom of speech cases - from 1947 - relate primarily to the rights of proprietors. These cases form the legal and constitutional basis for issues of access, transmission and distribution, but are not necessarily favourable to the rights of individual journalists or newsreaders. At the individual level, the freedom to receive information is equally important, and needs to be explored further. For entities, it is crucial to consider the impact of curtailment of speech (or threats of curtailment) on entities of different sizes and kinds.

Mr. Parthasarathi further explained that online, freedom of expression depends on similar structural conditions and stressed that scholarship must study these as well. For example, intermediaries in the TV industry and online intermediaries will soon come together to provide services, but scholarship does not link them yet. The law is similarly disjointed. For instance, 'broadcasting' falls in the Union List under Schedule VII of the Constitution, and is centrally regulated. However, distribution is geographically bounded, and States regulate distribution. In order to have a cohesive broadcast regulation, he raised the point that the placement of 'broadcasting' in the Union List may need to be re-thought.

According to Mr. Parthasarathi, the underlying conceptual basis - for the interlinked scholarship and regulation of intermediaries (online and broadcast), of commercial speech and individual access to information, and censorship (State and private, direct and structural) - lies in Article 19(1)(a). He noted that there is a need to rethink the nature of this freedom. For whom do we protect freedom of speech? For individuals alone, or also for all private entities? From what are we protecting this freedom? For Mr. Parthasarathi, freedom of speech needs to be protected from the State, the market, civil society and those with entrenched political interests. Additionally, Mr. Parthasarathi raised the question of whether or not in the online context freedom of the enterprise becomes antithetical to universal access

Mr. Parthasarathi also highlighted that it is important to remember that freedom of expression is not an end in itself; it is a facilitator - the 'road'- to achieve crucial goals such as diversity of speech. But if diversity is what freedom of expression should enable, it is important to ask whether institutional exercise of freedom has led to enhanced diversity of speech. Do media freedom and media diversity go together? For Mr. Parthasarathi, media freedom and media diversity do not always go together. The most vivid example of this is the broadcast environment in India, following the deregulation of broadcast media beginning from the mid 1990s - much of which was done through executive orders on an ad hoc basis.

This led to infrastructural censorship, in addition to the ex-post curtailment of content. Increasingly the conditions on which content is produced are mediated i.e. which entities are eligible to obtain licenses, what type of capital is encouraged or discouraged, how is market dominance measured, accumulation of interests across content and carriage, or various carriage platforms? Mediating the conditions of producing speech, or infra censorship, is primarily operationalised through regulatory silences, as illustrated in the absence of any coherent or systematic anti-competitive measures.

Indian courts are champions in protecting the freedom of expression of 'outlets' - of proprietors and entities. But this has not led to diversity of speech and media. Perhaps there is a need to rethink and reformulate ideas of freedom. He pointed out that it is not enough merely to look at ex post curtailment of speech (i.e., the traditional idea of censorship). Instead the conditions in which speech is made and censored need to be explored; only then can our understanding expand. Mr Parthasarathi ended his talk by stressing that a proactive understanding of freedom of expression can highlight architectural curtailment of speech through the grant of licenses, competition and antitrust laws, media ownership and concentration across carriage and content, etc. This is essential in a digital age, where intermediaries play a crucial, growing role in facilitating freedom of speech.

Smarika Kumar, Alternative Law Forum
Beginning where Mr. Parthasarathi left off, the focus of Ms. Kumar's presentation was the curtailment of speech and the conditions under which speech is produced. At the outset, she sought from the audience a sense of the persons for whom freedom of speech is protected: for government-controlled media, the markets and commercial entities, or for civil society and citizens? Ms. Kumar aimed to derive ideas and conceptual bases to understand freedom of speech in the digital space by studying judicial interpretations of Article 19(1)(a) and its limitations. Towards this end, she highlighted some Indian cases that clarify the above issues.

Ms. Kumar began with Sakal Papers v. Union of India [AIR 1962 SC 305]. In Sakal Papers, the issue concerned the State's regulation of speech by regulation of the number of permitted pages in a newspaper. This regulation was challenged as being in violation of Article 19(1)(a) of the Constitution. The rationale for such regulation, the State argued, was that newsprint, being imported, was a scarce commodity, and therefore needed to be equitably distributed amongst different newspapers - big or small. Further, the State defended the regulation citing its necessity for ensuring equal diversity and freedom of expression amongst all newspapers. The petitioners in the case argued that such a regulation would negatively impact the newspapers' right to circulation by reducing the space for advertisements, and thus forcing the newspaper to increase selling prices. Readers of the newspaper additionally argued that such increase in prices would affect their right to access newspapers by making them less affordable, and hence such regulation was against the readers' interests. Ultimately, the Supreme Court struck down the regulation. The Constitution Bench noted that if the number of pages of a newspaper were to be limited and regulated, the space available for advertisements would reduce. Were advertisements to reduce, the cost of newspapers would increase, affecting affordability and access to information for the citizens. Ultimately, newspaper circulation would suffer; i.e., the State's regulation affected the newspapers' right of circulation which would amount to a violation of freedom of expression as the right extends to the matter of speech as well as the ability to circulate such speech.

Apart from the number of pages, the Indian government has sought to regulate newsprint in the past. In Bennett Coleman and Co. & Ors. v. Union of India [AIR 1973 SC 106], a Constitution Bench of the Supreme Court considered whether regulation of the number of pages permitted in a newspaper constituted an unreasonable restriction on freedom of expression. Towards this, the Government of India set forth a Newsprint Policy in 1972, under the terms of which the number of pages of all papers were to be limited to ten; where there were small newspapers that did not achieve the ten-page limit, a 20% increase was permitted; and finally, new newspapers could not be started by common ownership units. The Newsprint Order aimed to regulate a scarce resource (newsprint), while the Newsprint Policy sought to promote small newspapers, encourage equal diversity among newspapers and prevent monopolies. The Supreme Court upheld the Newsprint Order, stating that newsprint was indeed a scarce resource, and that the matter of import and distribution of newsprint was a matter of government policy. The Court would not interfere unless there was evidence of mala fides. However, the Court struck down the Newsprint Policy for reasons similar to Sakal Papers ; that the rights afforded to newspapers under Article 19(1)(a) - including circulation - could not be abridged for reasons of protecting against monopolies.

In his dissenting opinion, Justice Mathew stated that in conceiving freedom of expression, it is important to also consider the hearer (the reader). For Justice Mathew, Meiklejohn's view the "what is essential is not that everyone shall speak, but that everything worth saying shall be said" cannot be affected if, because of concentration of media ownership, media are not available for most speakers. In such a situation, " the hearers [cannot] be reached effectively". However, the imperative is to maximise diversity of speech. For this, we need to balance the rights of citizens against those of the press; i.e., the rights of the reader against those of the speaker.

Ms. Kumar pointed out that this was the first case to consider the right of readers to access a diversity of speech. Justice Mathew distinguished curtailment of speech by the state, and by the market - and that this is crucial in the digital age, where information is predominantly accessible through and because of intermediaries. Ms. Kumar further stressed that especially in an age where 'walled gardens' are a real possibility (in the absence of net neutrality regulation, for instance), Justice Mathew's insistence on the rights of readers and listeners to a diversity of speech is extremely important.

Ms. Kumar went on to explain that though judges in the Supreme Court recognised the rights of readers/listeners (us, the citizens) for the purposes of news and print media, a similar right is denied to us in the case of TV. In Secretary, Ministry of Broadcasting v. Cricket Association of Bengal [AIR 1995 SC 1236], the issue surrounded private operators' right to use airwaves to broadcast. The Supreme Court considered whether government agencies and Doordarshan, the government broadcaster, " have a monopoly of creating terrestrial signals and of telecasting them or refusing to telecast them", and whether Doordarshan could claim to be the single host broadcaster for all events, including those produced or organised by the company or by anybody else in the country or abroad. The Supreme Court held that the TV viewer has a right to a diversity of views and information under Article 19(1)(a), and also that the viewer must be protected against the market. The Court reasoned that " airwaves being public property, it is the duty of the state to see that airwaves are so utilised as to advance the free speech right of the citizens, which is served by ensuring plurality and diversity of views, opinions and ideas ".

If every citizen were afforded the right to use airwaves at his own choosing, "powerful economic, commercial and political interests" would dominate the media. Therefore, instead of affirming a distinct right of listeners, the Court conflated the interests of government-controlled media with those of the listeners, on the ground that government media fall under public and parliamentary scrutiny. According to Ms. Kumar this is a regressive position that formulates State interest as citizen interest. Ms. Kumar argued that in order to ensure freedom of speech there is a need to frame citizens' interests as distinct from those of the market and the government.

Bhairav Acharya, Advocate, Supreme Court and Delhi High Court & Consultant, CIS
Mr. Acharya's presentation focused on the divergence between the jurisprudence and policy surrounding freedom of expression in India. According to him, the policies of successive governments in India - from the colonial period and thereafter - have developed at odds with case-law relating to freedom of expression. Indeed, it is possible to discern from the government's actions over the last two centuries a relatively consistent narrative of governance which 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. Thus, 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.

Today, free speech scholarship (including digital speech) fails to take into account this consistent divergence between jurisprudence and policy. Mr. Acharya pointed out that we think of digital speech issues as new, whereas there is an immense amount of insight to gain by studying the history of free speech and policy in India.

Towards this, Mr. Acharya highlighted that to understand dichotomy between modern and native law and 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. 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. 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.

Mr. Acharya explained that this myopia in Indian policy research is similar social censorship (i.e., social custom as creating limits to free speech). Law and society scholars have long studied the social censorship phenomenon, but policy research rejects this as a purely academic pursuit. But the truth is that free speech has been regulated by a dual policy of law and social custom in India since colonial times. The then-Chief Justice of the Calcutta High Court Elijah Impey required officers to respect local customs, and this extended to free speech as well. But as colonial courts did not interpret Hindu law correctly; interpretations of freedom of speech suffered as well. Mr. Acharya noted that the restrictions on freedom of speech introduced by the British continue to affect individuals in India today. Prior to British amendments, India had drawn laws from multiple sources - indeed customs and laws were tailored for communities and contexts, and not all were blessed with the consistency and precedent so familiar to common law. Since the British were unable to make sense of India's law and customs, they codified the principles of English customary law.

The Indian Penal Code (IPC) saw the codification of English criminal law (the public offences of riots, affray, unlawful assembly, etc., and private offences such as criminal intimidation). In Macaulay's initial drafts, the IPC did not contain sedition and offences of hurting religious sentiments, etc. Sections 124A ("Sedition") and 295A (" Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs") were added to the IPC in 1860, and changes were made to the Code of Criminal Procedure as well. Today, these sections are used to restrict and criminalise digital speech.

The Right to Offend :

Mr. Acharya then considered the history of the "right to offend", in light of the controversies surrounding Section 66A, IT Act. Before the insertion and strengthening of Section 295A, citizens in India had a right to offend others within the bounds of free speech. He clarified that in 1925 a pamphlet " Rangila Rasool" was published by Lahore-based Mahashe Rajpal (the name(s) of the author(s) were never revealed). The pamphlet concerned the marriages and sex life of the Prophet Mohammed, and created a public outcry. Though the publisher was acquitted of all charges and the pamphlet was upheld, the publisher was ambushed and stabbed when he walked out of jail. Under pressure from the Muslim community, the British enacted Section 295A, IPC. The government was seeking to placate and be sensitive to public feeling, entrenching the idea that the government may sacrifice free speech in the face of riots, etc. The death of India's "right to offend" begins here, said Mr. Acharya.

A prior restraint regime was created and strengthened in 1835, then in 1838, etc. At this time, the press in India was largely British. Following the growth of Indian press after the 1860s, the British made their first statutory attempt at censorship in 1867: a prior sanction was required for publication, and contravention attracted heavy penalties such as deportation and exile. Forfeiture of property, search and seizures and press-inspections were also permitted by the government under these draconian laws. Mr. Acharya noted that it is interesting that many leaders of India's national movement were jailed under the press laws.

Independence and After :

Mr. Acharya further explained that the framers of the Constitution deliberately omitted "freedom of the press" from the text of Article 19(1)(a) and that Jawaharlal Nehru did not think the press ought to be afforded such a right. This is despite a report of the Law Commission of India, which recommended that corporations be provided an Article 19 right. But why distrust the press, though citizens are granted the freedom of speech and expression under Article 19(1)(a)? In Mr. Acharya's opinion, this is evidence of the government's divergent approach towards free speech policy; and today, we experience this as a mistrust of the press, publications, and of online speech.

Mr. Acharya also explained that statutory restrictions on free speech grew at odds with judicial interpretation in the 1950s. Taking the examples ofRomesh Thapar v. the State of Madras [AIR 1950 SC 124] and Brij Bhushan v. the State of Delhi [(1950) Supp. SCR 245], Mr. Acharya showed how the judiciary interpreted Article 19 favourably. Despite the government's arguments about a public order danger, the Supreme Court refused to strike down left wing or right wing speech ( Romesh Thapar concerned a left wing publication; Brij Bhushan concerned right wing views), as "public order" was not a ground for restricting speech in the Constitution. The government reacted to the Supreme Court's judgement by enacting the First Amendment to the Constitution: Article 19(2) was amended to insert "public order" as a ground to restrict free speech. Thus, it is possible to see the divergence between free speech jurisprudence and policy in India from the time of Independence. Nehru and Sardar Vallabhbhai Patel had supported the amendment, while B.R. Ambedkar supported Romesh Thapar and Brij Bhushan. On the other hand, then-President Rajendra Prasad sought Constitutional protection for the press.

Why Study Free Speech History?

Mr. Acharya noted how the changes in free speech policy continue to affect us, including in the case of content restrictions online. In the 1950s, then-Prime Minister Nehru appointed the First Press Commission, and the newspaper National Herald was established to promote certain (left wing) developmental and social goals. Chalapati Rao was the editor of the National Herald, and a member of the First Press Commission.

At that time, the Commission rejected vertical monopolies of the press. However, today, horizontal monopolies characterize India's press. The First Press Commission also opposed 'yellow journalism' (i.e., sensational journalism and the tabloid press), but this continues today. Decades later, Prime Minister Indira Gandhi called for a "committed bureaucracy, judiciary and press", taking decisive steps to ensure the first two. For instance, Justice Mathew (one of the judges in the Bennett Coleman case) was an admirer of Indira Gandhi. As Kerala's Advocate General, he wanted the Press Registrar to have investigative powers similar to those given in colonial times; he also wanted the attacks on government personalities to be criminalized. The latter move was also supported by M.V. Gadgil, who introduced a Bill in Parliament that sought to criminalise attacks on public figures on the grounds of privacy. Mr. Acharya noted that though Indira Gandhi's moves and motives with regard to a "committed press" are unclear, the fact remains that India's regional and vernacular press was more active in criticizing the Emergency than national press.

Demonstrating the importance of understanding a contexts history - both social and legislative, following the striking down of 66A in Shreya Singhal & Ors. v. Union of India (Supreme Court, March 24, 2015), elements in the government have stated their wish to introduce and enact a new Section 66A. Mr. Acharya explained that such moves from elements in the government shows that despite the striking down of 66A, it is still possible for the repressive and mistrustful history of press policy to carry forward in India. This possibility is supported by colonial and post-Independence press history and policy that has been developed by the government. When looking at how research can impact policy, greater awareness of history and context may allow for civil society, academia, and the public at large to predict and prepare for press policy changes.

Ambikesh Mahapatra, Professor of Chemistry, Jadavpur University

Prof. Mahapatra introduced himself as a victim of the West Bengal administration and ruling party. He stated that though India's citizens have been granted the protection of fundamental rights after Independence, these rights are not fully protected; his experience with the West Bengal ruling party and its abuse of powers under the Information Technology Act, 2000 (am. 2008) ("IT Act") highlights this.

On March 23, 2012, Prof. Mahapatra had forwarded a cartoon to his friends by email. The cartoon poked fun at West Bengal Chief Minister Mamata Banerjee and her ruling party. On the night of April 12, 2012, individuals not residing in the Professor's housing colony confronted him, dragging him to the colony building and assaulting him. These individuals forced Prof. Mahapatra to write a confession about his forwarding of the cartoon and his political affiliations. Though the police arrived at the scene, they did not interfere with the hooligans. Moreover, when the leader of the hooligans brought the Professor to the police and asked that he be arrested, they did so even though they did not have an arrest warrant. At the police station, the hooligans filed a complaint against him. The Professor was asked to sign a memo mentioning the charges against him (Sections 114 and 500, Indian Penal Code, 1860 & Section 66A, IT Act). Prof. Mahapatra noted that the police complaint had been filed by an individual who was neither the receiver nor the sender of the email, but was a local committee member with the Trinamool Congress (the West Bengal ruling party).

The arrest sparked a series of indignant responses across the country. The West Bengal Human Rights Commission took suo motu cognizance of the arrest, and recommended action against the high-handedness of the police. Fifty six intellectuals appealed to the Prime Minister of India to withdraw the arrest; the former Supreme Court judge Markandey Katju was among those who appealed. Thirty cartoonists' organisations from across the world also appealed to the President and the Prime Minister to withdraw the case.

The West Bengal government paid no heed to the protests, and Chief Minister Mamata Banerjee publicly supported the actions of the police - making public statements against Justice Katju and A.K. Ganguly, former judge of the Supreme Court and head of the West Bengal Human Rights Commission respectively. A charge sheet was framed against Prof. Mahapatra and others, with Section 66A as one of the charges.

The case has been going on for over two years. Recently, on March 10, 2015, the Calcutta High Court upheld the recommendations of the West Bengal Human Rights Commission, and directed the government to implement them. The West Bengal government has preferred an appeal before a division bench, and the case will continue. This is despite the fact that Section 66A has been struck down (by the Supreme Court in Shreya Singhal & Ors. v. Union of India).

Though noting that he was not an expert, Prof. Mahapatra put forward that it seemed that the freedom of expression of the common man depends on the whims of the ruling parties and the State/Central governments. It is of utmost importance, according to him, to protect the common man's freedom of speech, for his recourse against the government and powerful entities is pitifully limited.

Questions & Comments

Q. A participant stated that the core trouble appears to lie in the power struggle of political parties. Political parties wish to retain power and gather support for their views. Despite progressive laws, it is the Executive that implements the laws. So perhaps what is truly required is police and procedural reforms rather than legislative changes.

A. Members of the panel agreed that there is a need for more sensitivity and awareness amongst the law enforcement agencies and this might be long overdue and much needed step in protecting the rights of citizens.

Q. A participant was interested in understanding how it might be possible to correct the dichotomy between FoE policy and doctrine? The participant also wanted the panel to comment on progressive policy making if any.

A. Members of the panel stated that there is no easy way of correcting this dichotomy between custom and law. Scholars have also argued that the relationship between custom and pernicious social censorship is ambiguous. Towards this, more studies are required to come to a conclusion.

Q. A participant requested clarity on what rights can be created to ensure and support a robust right to freedom of expression, and how this might affect the debates surrounding net neutrality?

A. Members of the panel noted that the Internet allows citizens and corporations to regulate speech on their own (private censorship), and this is problematic. Members of the panel also responded that the existing free speech right does not enable diversity of speech. Social and local customs permit social censorship, and this network effect is clearly visible online; individuals experience a chilling effect. Finally, in the context of net neutrality, the interests of content-producers (OTTs, for instance) are different from those of users. They may benefit economically from walled gardens or from non-interference with traffic-routing, but users may not. Therefore, there is a need for greater clarity before coming to a conclusion about potential net neutrality regulation.

Session 2: Current Realities

Dr. Cherian George, Associate Professor, Hong Kong Baptist University
Dr. George began his talk by highlighting how there is no issue as contentious as offensive speech and how it should be dealt with. The debate around free speech is often framed as a battle between those who support democracy and those who oppose it. Yet, this is also a tension within democracy. Citizens should not be unjustly excluded from participating in democracy (companion rights in Article 19 and 20, ICCPR). Relevant UN institutions and Article 19 have come up with reports and ideals that should be universally adopted - norms that apply to many areas including speech. These norms are different from traditional approaches. For example:

Human Rights Norms	Traditional Approach
Regulate incitement of violence (discrimination, hate, etc.)	Law protects people's feelings from speech that offends
Protect minorities as they are more vulnerable to exploitation and uprooting of their values	Law sides with the majority, to protect mainstream values over minority values
Allow robust criticism of ideas, religions, and beliefs	Law protects religion, beliefs, and ideas from criticism
Strive for balance between liberty and equality	Aims for order and maintenance of status quo
Promote harmony through the media	Enforces harmony by the state

Commenting on the traditional approach, Dr. George noted that if the state protects feelings of offence against speech, it allows groups to use such protection as a political weapon: "hate spin", which is the giving or taking of offence as a political strategy. Hate spin is normally framed as a "visceral, spontaneous reaction" to a video, writing, or speech, etc. Yet, the spontaneous reaction of indignation to speech or content can consistently be revealed to result from conscious manipulation by middlemen for political purposes.

South Asia is similar to West Asia - as the legal frameworks provide immunity for dangerous speech. In practice, this allows for the incitement of discrimination, hostility, and violence. At the same time, the legal frameworks allow for excessive sympathy for wounded feelings, and often the taking of offence turns into a political strategy. Power enters the equation here. The law allows the powerful to take offence and use hate speech against those not in powerful positions.

Dr. George highlighted a number of legal quandaries surrounding freedom of expression including:

Enforcement gaps: There is a lack of enforcement of existing laws against incitement.
Non-regulated zones: Socio-political research demonstrates that many problems cannot be regulated, and yet the law can only deal with what can be regulated. Hate speech is one of these as hate speech is not in the speech itself, but in the meaning that is produced in the mind of those saying/listening.
Verdict-proof opportunities: Political entrepreneurs can use legislative and judicial processes to mainstream hateful views, regardless of how legislature and courts ultimately act. The religious right, for instance, can always pit themselves morally against "secular" decisions of apex authorities (SC, etc.). For example, in the context of the US and Islamophobia - the State legislature in Alabama introduced an anti-Shariah law. Yet, the law is against a non-existent threat and appears to be a ploy to normalize anti-Muslim sentiments, including in political rhetoric. While focusing on winning battles in courts or legislature, the intolerant groups do not need to win a legal court case to introduce and entrench language of intolerance in public discourse and discussion. This demonstrates that there is a need to begin moving away from a purely legal analysis (interpretation or development) of the laws, and a need to begin studying these issues through a sociological lens.

Zakir Khan, Article 19, Bangladesh
Mr. Khan introduced Article 19 and its work in Bangladesh and the rest of South Asia. He noted that Article 19 is involved in documenting and analysing laws and regulations affecting freedom of expression, including in Bangladesh. Article 19 also campaigns for changes in law and policy, and responds from a policy perspective to particular instances of government overreach.

Mr. Khan explained that India has the Information Technology Act, 2000 (am. 2008) ("IT Act"), and in Bangladesh, the equivalent legislation is the Information and Communication Technology Act, 2006 ("ICT Act"). The ICT Act was enacted to bring Bangladeshi law in conformity with international law; i.e. in accordance with the UNCITRAL model law on e-commerce and online transactions. The ICT Act deals with hacking, crimes committed with the use of a computer system, breach of data, breach of computer system, and hardware.

Like the IT Act in India, Bangladesh's ICT Act also criminalizes speech and expression online. For instance, Section 57, ICT Act, criminalizes the publication of "fake, obscene or defaming information in electronic form". Similarly, bringing damage to "the state's image" online is criminalized. In 2013, the Bangladesh Ministry of Law amended the ICT Act to increase penalties for online offences, and allow for the detention of suspected offenders, warrantless arrests and indefinite detention without bail. Bloggers and activists have been protesting these changes, and have been targeted for the same.

Mr. Khan noted that Article 19 has developed a tool to report violations online. Individuals who have experienced violations of their rights online can post this information onto a forum, wherein Article 19 tracks and reports on them, as well as creating awareness about the violation. Any blogger or online activist can come and voice concerns and report their stories. Mr. Khan also highlighted that given the ICT Act and the current environment, online activists and bloggers are particularly threatened. Article 19 seeks to create a safe space for online bloggers and activists by creating anonymity tools, and by creating awareness about the distinctions between political agenda and personal ideology.

Chinmayi Arun, Research Director, Centre for Communication Governance (CCG), National Law University (Delhi)
Ms. Arun began by noting that usually conversations around freedom of expression look at the overlap between FoE and content i.e. the focus is on the speaker and the content. Yet, when one targets the mediator - it shifts the focus as it would be approaching the issue from the intermediary's perspective. When structural violation of free speech happens, it either places the middleman in the position of carrying through the violation, or creates a structure through which speech violations are incentivized.

An example of this is the Bazee.com case. At the time of the case the law was structured in such a way that not only perpetrators of unlawful content were punished, but so were the bodies/persons that circulated illegal content. In regulatory terms this is known as "gatekeeper liability". In the Bazee.com case, a private party put obscene content up for sale and Bazee.com could and did not verify all of the content that was for sale. In the case, the Delhi HC held Avnish Bajaj, the CEO of Bazee.com, liable on the precedent of strict liability for circulation of obscene content. The standard of strict liability was established under Ranjit Udeshi case. The standard of strict liability is still the norm for non-online content, but after Bazee.com, a Parliament Standing Committee created a safe harbour for online intermediaries under Section 79 of the IT Act. As per the provision, if content has been published online, but an intermediary has not edited or directly created the content, it is possible for them to seek immunity from liability for the content. The Parliament Standing Committee then stated that intermediaries ought to exercise due diligence. Thus, the Indian legal regime provides online intermediaries with immunity only if content has not been published or edited by an intermediary and due diligence has been exercised as defined by Rules under the Act. While developing India's legal regime for intermediary liability the Parliamentary Standing Committee did not focus on the impact of such regulation on online speech.

To a large extent, present research and analysis of Freedom of Expression is focused on the autonomy of the speaker/individual. An alternative formulation and way of understanding the right, and one that has been offered by Robert Post through his theory of democratic self governance, is that Freedom of Expression is more about the value of the speech rather than the autonomy of the speaker. In such a theory the object of Freedom of Expression is to ensure diversity of speech in the public sphere. The question to ask then is: "Is curtailment affecting democratic dialogue?" The Supreme Court of India has recognized that people have a right to know/listen/receive information in a variety of cases. Ms. Arun explained that if one accepts this theory of speech, the liability of online intermediaries will be seen differently.

Ms. Arun further explained that in Shreya Singhal, the notice-and-takedown regime under section 79 of the IT Act has been amended, but the blocking regime under section 69A has not. Thus, the government can still use intermediaries as proxies to take down legitimate content, and not provide individuals with the opportunity to to challenge blocking orders. This is because as per the Act, blocking orders must be confidential. Though the blocking regime has not been amended, the Supreme Court has created an additional safeguard by including the requirement that the generator of content has to be contacted (to the extent possible) before the government can pass and act upon a blocking order. Mr. Arun noted that hopefully, when implemented, this will provide a means of recourse for individuals and counter, to some extent, the mandated secrecy of content blocking orders.

Raman Jit Singh Chima, Asia Consultant, Access Now
Mr. Chima began his presentation by noting that the Internet is plagued by a few founding myths. Tim Goldsmith and Jack Wu (in Who Controls the Internet: Illusions of a Borderless World) name one: that no laws apply to the Internet; that, because of the borderless nature of the Internet - data flows through cables without regard for State borders - and thus countries' laws do not affect the Internet. These cyber-anarchists, amongst whom John Perry Barlow of the Electronic Frontier Foundation (EFF) is inspiring, also argue that regulation has no role for the Internet.

Mr. Chima countered these 'myths', arguing that the law affects the Internet in many ways. The US military and Science departments funded the invention of the Internet. So the government was instrumental in the founding of the Internet, and the US Department of Commerce has agreements with ICANN (Internet Corporation for Assigned Names and Numbers) to govern the Domain Names System. So the law, contracts and regulation already apply to the Internet.

Mr. Chima further explained that today organisations like EFF and civil society in India argue for, and seek to influence, the creation of regulation for the protection of journalists against unfair and wrongful targeting by the government. This includes moves to protect whistleblowers, to ensure the openness of the Internet and its protection from illegitimate and violative acts against freedom of expression, access and other rights. Some governments, like India, also place conditions in the licenses granted to Internet Service Providers (ISPs) to ensure that they bring access to the rural, unconnected areas. Such law and regulation are not only common, but they are also good; they help the population against virtual wrongdoing.

Mr. Chima pointed out that when States contemplate policy-making for the Internet, they look to a variety of sources. Governments draw upon existing laws and standards (like India with the virtual obscenity offence provision Section, 67 and 67A, IT Act, which is drawn from the real-world penal provision Section 292, IPC) and executive action (regulation, by-laws, changes to procedural law) to create law for the Internet. Additionally, if a government repeats a set of government actions consistently over time, such actions may take on the force of law. Mr. Chima also spoke of web-developers and standards-developers (the technical community), who operate by rules that have the force of law, such as the 'rough consensus and running code' of the IETF (Internet Engineering Task Force). Governments also prescribe conditions ("terms of use") that companies must maintain, permitting or proscribing certain kinds of content on websites and platforms.

Finally, Mr. Chima highlighted international legal and policy standards that play a role in determining the Internet's law and regulation. ICANN, the administrator of the Internet Assigned Numbers Authority (IANA) functions and governing body for the Domain Names System, functions by a set of rules that operate as law, and in the creation of which, the international legal community (governments, companies, civil society and non-commercial users, and the technical community) play a role. The ITU (International Telecommunications Union) and organisations like INTERPOL also play a role.

Mr. Chima explained that when one wants to focus on issues concerning freedom of expression, multiple laws also apply. Different States set different standards. For instance, in the US, the main standards for the Internet came from issues relating to access to certain types of online content. In Reno v. ACLU (1997), the US Supreme Court considered what standards should be created to access obscene and indecent content on the Internet. The judges held that the Internet, as a medium of unprecedented dynamism, deserved the higher protection from governmental overreach.

In Asia, the main legal standards for the Internet came from Internet commerce: the UNCITRAL model law, which prescribed provisions best suited to the smoother commercial utilization of a fast and growing medium, became the foundation for Internet-related law in Asian states. Predictably, this did not offer the strongest rights protections, but rather, focused on putting in place the most effective penalties. But when Asian states drew from the European UNCITRAL law, many forgot that European states are already bound by the European Convention for Human Rights, the interpretation of which has granted robust protections to Internet-related rights.

Mr. Chima provided the example of Pakistan's new Cybercrime Bill. The Bill has troubling provisions for freedom of expression, and minimal to no due process protections. While drafting the law, Pakistan has drawn largely from model cybercrime laws from the Council of Europe, which are based on the Budapest Convention. In Europe and the US, States have strong parallel protections for rights, but States in Asia and Africa do not.

Mr. Chima concluded that when one talks of freedom of expression online, it is important to also remember the roles of intermediaries and companies. The ISPs can be made liable for content that flows through their wires, through legal mechanisms such as license provisions. ISPs can also be made to take further control over the networks, or to make some websites harder to access (like the Internet Watch Foundation's blacklist). When policy organisations consider this, it is critical that they ask whether industry bodies should be permitted to do this without public discussion, on the basis of government pressure.

Questions & Comments

Q. Participants asked for panel members to talk about the context in which bloggers find themselves in danger in Bangladesh.

A. Panel members stated that the courts are not fair to bloggers as often they side with government. It was added that courts have labelled bloggers as atheist, and subsequently all bloggers are being associated with the label. Further, it was added that most people who are outraged, do not even know what blogging is, and people associate blogging with blasphemy and as opposing religious beliefs. It was also noted that in Bangladesh, while you see violations of FoE from the State, you see more violations of blogger rights from non-state actors.

Q. Participants asked if there is anything specific about the Internet that alters how we should consider hate speech online and their affective/visceral impact.

A. Pa nel members noted that they are still grappling with the question of what difference the Internet makes, but noted that it has indeed complicated an already complex issue as there is always the question about political entrepreneurs using convenient content to foment fires.

Q. Participants questioned panel members about how the right to offend is protected in jurisdictions across Asia where there is still tension between classical liberalism and communitarian ideologies, and where the individuated nature of rights is not clearly established or entrenched.

A. Panel members responded by stating that when one compares the US, Indonesia and India, the US seems to be able to strike a balance between free speech and other competing interests as they are committed to free speech and committed to religious tolerance and plurality of competing interests. Panel members also added that the fabric of civil society also has an impact. For example, Indonesian civil society is simultaneously religious and secular and pro-democracy. In India, there seems to be a tension between secular and religious groups. In Indonesia, people are moving to religion for comfort, while still seeking a world that is religious and secular.

Q. Participants asked for clarification on ways to approach regulation of hate speech given that hate speech is not just about a particular kind of threatening speech, but encompasses rumours and innuendos.

A . Panel members acknowledged that more research needs to be done in this area and added that applying the socio-cultural lens on such issues would be beneficial.

Q. Participants asked if panel members had a framework for a regulating the content practices of private actors, who are sometimes more powerful than the state and also enforcing censorship.

A. Panel members responded that private censorship is an important issue that needs to be reflected upon in some depth, though a framework is far from being developed even as research is ongoing in the space.

Session 3: Looking Ahead

The third and final session of the conference aimed to find principles and methods to achieve beneficial and effective regulation of the Internet. One of the core aims was the search for the right balance between the dangers of the Internet (and its unprecedented powers of dissemination) and the citizens' interest in a robust right to freedom of expression. Mr. Sutirtho Patranobis, Assistant Editor with the Hindustan Times (Sri Lanka desk, previously China correspondent), shared his experience with governmental regulation of online free speech in China and Sri Lanka. Ms. Karuna Nandy,Advocate, Supreme Court of India, analysed the Indian Supreme Court's decision in Shreya Singhal v. Union of India (March 24, 2015), and sought to draw lessons for the current debate on net neutrality in India. Ms. Geeta Seshu, founder and editor of the online magazine The Hoot, offered an expanded definition of freedom of speech, focusing on universal access as the imperative. Finally, Mr. Pranesh Prakash, Policy Director, Centre for Internet & Society, offered his views on net neutrality and the issue of zero-rating, as well as arguing for an increased, cooperative role of civil society in creating awareness on issues relating to the Internet.

Sutirtho Patranobis, Assistant Editor, Hindustan Times
During his career, Mr. Patranobis was the China correspondent for the Hindustan Times. Mr. Patranobis began his presentation by sharing his experiences in China. In China, multiple online platforms have become sources of news for citizens. Chinese citizens, especially the urban young, spend increasing amounts of time on their mobile phones and the Internet, as these are the major sources of news and entertainment in the country.

The Chinese government's attitude towards freedom of expression has been characterized by increasing control over these online platforms. The includes control over global companies like Google and Facebook, which have negotiated with the Chinese government to find mutually acceptable operating rules (acceptable to the government and the company, but in most cases unfavourable to the citizens) or have faced being blocked or filtered from the country. Mr. Patranobis noted that free speech regulation in China has evolved into a sophisticated mechanism for control and oppression, and the suppression of dissent. Not only China, but Sri Lanka has also adopted similar approaches to dealing with freedom of expression.

In China, free speech regulations have evolved with an aim to curtail collective action and dissent. China's censorship programmes work towards silencing expression that can represent, reinforce or spur social mobilisation. Mr. Patranobis explained that these programmes aim to put an end to all collective activities (current or future) that may be at odds with government policies. Therefore, any online activity that exposes government action as repressive, corrupted or draconian is meted out harsh treatment. Indeed it is possible to see that there are sharp increases in online censorship and crackdowns when the government implements controversial policies offline.

Mr. Patranobis went on to discuss the nature of objectionable content, and the manner in which different jurisdictions deal with the same. Social and cultural context, governmental ideologies, and political choices dictate the nature of objectionable content in States such as China and Sri Lanka. On the flipside, media literacy, which plays a big role in ensuring an informed and aware public, is extremely low in Sri Lanka, as well as in many other States in South Asia.

Mr. Patranobis raised the question of how the Internet can be regulated while retaining freedom of expression - noting that the way forward is uncertain. In Sri Lanka, for instance, research by UNESCO shows that the conflicting policy objectives are unresolved; these first need to be balanced before robust freedom of expression can be sustained. The Internet is a tool, after all; a tool that can connect people, that can facilitate the spread of knowledge and information, to lift people from the darkness of poverty. The Internet can also be a tool to spread hate and to divide societies and peoples. Finding the right balance, contextualised according to the needs of the citizens and the State, is key to good regulation.

Karuna Nundy, Advocate, Supreme Court of India
Ms. Nandy focused her presentation on two issues currently raging in India's free speech debates: the Supreme Court's reasoning on Sections 66A and 69A, IT Act, in Shreya Singhal & Ors. v. Union of India (Supreme Court, March 24, 2015), and issues of access and innovation in the call for a net neutrality regulation. She stated that the doctrine of the "marketplace of ideas" endorsed by Justices Nariman and Chelameswar in Shreya Singhal speaks to the net neutrality debate.

Ms. Nandy held that a law can be challenged as unconstitutional if it prohibits acts that are legitimate and constitutional. Such an argument refers to the impugned law's "overbroad impact". For instance, the Supreme Court struck down Section 66A, IT Act, on the ground (among others) that the impugned section leads to the prohibition and criminalisation of legitimate and protected speech. Cases such asChintaman Rao v. State of Madhya Pradesh [(1950) SCR 759] and Kameshwar Prasad v. State of Bihar [1962 Supp. (3) SCR 369] speak to this principle. They expand the principle of overbreadth to include the notion of "chilling effect" - i.e., situations where overbroad blocking leads to the prohibition of legitimate constitutional speech. In such situations, citizens are unsure what constitutes protected speech and what does not, leading to a chilling effect and self-censorship for fear of reprisals.

In Shreya Singhal, the Supreme Court also considered the "reasonable person" doctrine that has been developed under the law of obscenity. India had initially adopted the Hicklin test, under which the test to determine what is obscene depended on whether prurient minds (minds that have a tendency to be corrupted) would find the impugned material lascivious and corrupting. This test, laid down in Ranjit Udeshi v. State of Maharashtra [AIR 1965 SC 881] and altered/refined by decades of jurisprudence, was put to rest in Aveek Sarkar v. State of West Bengal [AIR 2014 SC 1495]. In Aveek Sarkar, the Supreme Court adopted the "community standards" test to determine obscene content. According to Ms. Nandy, the "community standards" test rests on the doctrine of reasonable persons. Ms. Nandy noted that in effect there is a need for more police officers to protect those who produce legitimate content from hecklers.

Quoting from the U.S. decision of Whitney v. California [71 L. Ed. 1095], Ms. Nandy submitted that:

" It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. "

On the issue of website blocking and the Supreme Court's reasoning on Section 69A, IT Act, in Shreya Singhal, Ms. Nandy explained that the Additional Solicitor General had conceded a number of points during the oral arguments. She further explained that website blocking can be applied when the Central Government is satisfied that there is a necessity for it. However, reasons must be recorded in writing. Also, according to the Supreme Court's interpretation of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (" Blocking Rules"), both the intermediary and the originator of the communication (the content-creator) have to be given a chance to be heard.

Rule 16 of the Blocking Rules, which mandates confidentiality of all blocking requests and orders, was also discussed in Shreya Singhal. Though some confusion has arisen about the Rule's interpretation, Ms. Nandy submitted that Rule 16 has been read down. There is no longer a strict, all-encompassing requirement of confidentiality. While the identity of the complainant and the exact nature of the complaint must be kept confidential, the blocking order and the reasoning behind the order are no longer bound by Rule 16. This is because in §109 of the judgment, the Supreme Court accepts that writ petitions can lie on the basis of blocking orders. In order for writs to lie, affected parties must first be aware of the existence and content of the blocking order. Therefore, Ms. Nandy explained, the effect of the Supreme Court's reasoning is that the confidentiality requirement in Rule 16 has been read down.

On net neutrality, Ms. Nandy argued that zero-rating is an efficient solution to providing universal access to the Internet. Services like Internet.org are not strictly market-driven. This is because there is not a large demand for Facebook or specific over-the-top (OTT) service providers. In speaking about the marketplace for ideas in Shreya Singhal, the Supreme Court did not indirectly outlaw services seeking to balance access with diversity of speech. Ms. Nandy held that price discrimination in the provision of telecom, broadband and mobile Internet services already exists. In light of this, the focus should the provision of these services on the basis of consumer choice.

Geeta Seshu, The Hoot
Ms. Seshu began her presentation by noting that one's perspective on online censorship cannot be the same as that on traditional censorship. Traditional censorship cuts off an individual's access to the censored material, but on the Internet, material that is censored in traditional media finds free and wide distribution. One's conceptualisation of freedom of expression and curtailment of this right must include access to the medium as a crucial part. To this end, it is important to not forget that access to the Internet is controlled by a limited number of Internet service and content providers. Thus, a large section of the population in India cannot exercise their right to free speech because they do not have access to the Internet.

In this context, it is important to understand the way in which the digital rollout is happening in India. Ms. Seshu explained that the rollout process lacks transparency, and noted the example of the 4G/LTE rollout plan in India. There is, of course, a diversity of content: those that have access to the Internet have the ability to exercise their right to free speech in diverse ways. However, introducing access into the free speech universe highlights many inequalities that exist in the right; for instance, Dalit groups in India have limited access to the Internet, and some kinds of content receive limited airtime.

Importantly, Ms. Seshu argued that the government and other entities use technology to regulate content availability. Policymakers exploit the technology and architecture of the networks to monitor, surveil and censor content. For instance, one may see the UID scheme as an adaptation of technology to facilitate not only service-provision, but also as a move towards a Big Brother state. Civil society and citizens need to study and respond to the ways in which technology has been used against them. Unfortunately, the debates surrounding regulation do not afford space for Internet users to be part of the discussion. In order to turn this around, it is important that citizens' and users' rights are developed and introduced into the regulatory equation.

Pranesh Prakash, Policy Director, Centre for Internet & Society
Taking up where Ms. Seshu left off, Mr. Prakash wished to explore whether the Internet was merely an enabler of discussion - allowing, for instance, a ruckus to be raised around the consultation paper of the Telecom Regulatory Authority in India (TRAI) on Over-The-Top (OTT) services and net neutrality - or whether the Internet positively adds value. The Internet is, of course, a great enabler. The discussions surrounding OTTs and net neutrality are an example: in response to the TRAI consultation, a campaign titled "Save the Internet" resulted in over 9.5 lakh comments being submitted to the TRAI. It is inconceivable that such a widespread public discussion on so complex a topic (net neutrality) could take place without the Internet's facilitation.

But, Mr. Prakash held, it is important to remember that the Internet is the tool, the platform, for such mobilisation. Campaigns and conversations such as those on net neutrality could not take place without the organisations and people involved in it. Civil society organisations have played prominent roles in this regard, creating awareness and well-informed discussions. For Mr. Prakash, civil society organisations play their role best when they create such public awareness, and it is important, to play to a stakeholders strengths. Some organisations are effective campaigners, while others (such as CIS) are competent at research, analysis and dissemination.

According to Mr. Prakash, it is equally important to remember that successful discussions, campaigns or debates (such as the ongoing one on net neutrality) do not occur solely because of one organisation's strengths, or indeed because of civil society alone. Networks are especially critical in successful campaigns and policy changes. As researchers, we may not always know where our work is read, but sometimes they reach unexpected venues. For instance, one of Mr. Prakash's papers was used by the hacker collective Anonymous for a local campaign, and he was made aware of it only accidentally. Mr. Prakash noted that civil society has to also accept its failures, pointing to the controversy surrounding the Goondas Act in Karnataka. Where there are strong counter-stakeholders (such as the film lobby in south Indian states), civil society's efforts alone may not lead to success.

On net neutrality, Mr. Prakash noted the example of a strategy employed by the Times of India newspaper, when it undercut its competitors by slashing its own prices. Such moves are not unknown in the market, and they have their benefits. Consumers benefit from the lowered prices. For instance, were a Whatsapp or Facebook pack to be introduced by a telecom operator, the consumers may choose to buy this cheap, limited data pack. This is beneficial for consumers, and also works to expand access to the Internet. At the same time, diversity of speech and consumer choice is severely restricted, as these companies and telecom operators can create 'walled gardens' of information and services. Mr. Prakash put forth that if we can facilitate competitive zero-rating, and ensure that anti-competitive cross-subsidization does not occur, then perhaps zero-rated products can achieve access without forcing a trade off between diversity and choice.

Finally, on the issue of website blocking and takedowns under Sections 69A and 79, IT Act, Mr. Prakash noted that the Shreya Singhal judgment does nothing to restrict the judiciary's powers to block websites. According to Mr. Prakash, at the moment, the Shreya Singhal judgment relieves intermediaries of the responsibility to take down content if they receive private complaints about content. After the judgment, intermediaries will lose their immunity under Section 79, IT Act, only if they refuse to comply with takedown requests from government agencies or judicial orders.

But, as Mr. Prakash explained, the judiciary is itself a rogue website-blocker. In the past few years, the judiciary has periodically ordered the blocking of hundreds of websites. Such orders have resulted in the blocking of a large number of legitimate websites (including, at one point, Google Drive and Github). To ensure that our freedom of expression online is effectively protected, Mr. Prakash argued that ways to stop the judiciary from going on such a rampage must be devised.

Questions & Comments

A. Participants and panel members commented that researchers and commentators err by making analogies between the Internet and other media like newspapers, couriers, TV, satellite, cable, etc. The architecture of the Internet is very different even from cable. On the Internet, traffic flows both ways, whereas cable is not bi-directional. Moreover, pricing models for newspapers have nothing in common with those on the Internet. The comparisons in net neutrality debates stand the danger of incorrectness, and we must guard against that. Zero-rating and net neutrality issues in high-access countries are very different from the issues in low-access countries like India.

B. Participants and panel members commented that access and availability must play a predominant role in thinking about freedom of expression. In India, we are technologically far behind other states, though we have potential. The real end-goal of this is the convergence of services and information, with the user at the centre of the ecosystem. Our technological capabilities include satellite and spectrum; the best spectrum bands are lying vacant and can be re-framed. For this, the government must be educated.

C. Participants and panel members commented that in high-access states, the net neutrality issues surround competition and innovation (since there is no or very little ISP competition and switching costs are not low), while in India and France, where there is already competition amongst providers, access plays a crucial role. On the Internet, the networking or engineering aspects can disrupt the content carried over the network, so that is also a concern.

D. Participants and panel members commented that zero-rating is both a blessing and a curse. Zero-rating would not be detrimental in a market with perfect information and competition. But the reality is information asymmetry and imperfect competition. If today, we were to allow zero-rating, diversity would suffer and we would be left with 'walled gardens'.

Conclusion

The conference addressed a range of issues characteristic of debates surrounding freedom of expression in India and South Asia. Beginning with the conceptual understanding of freedom of expression, panellists advocated an expanded definition, where the right to free speech is teleological. The panellists considered freedom of speech as a tool to ensure diversity of speech, both horizontally and vertically. Towards this end, panellists gave several suggestions:

First , policymakers and scholars must understand freedom of speech as a right of both the speaker and the listener/reader, and carve out a separate listeners' right. Panellists expanded upon this to show the implications for the debate on net neutrality, cross-media ownership and website-blocking, for instance.

Second , there is a need for scholars to examine the historical dichotomy between the policy and jurisprudence of free speech in India and other contexts across South Asia. Such an approach to scholarship and policy research would help predict future government policy (such as in the case of the Indian government's stance towards Section 66A following the Supreme Court's decision in Shreya Singhal v. Union of India) and strategize for the same.

Third , particularly with regard to the Internet, there is a need for policy advocates and policy makers to "bust" the founding myths of the Internet, and look to various domestic and international sources of law and regulation. Studies of regulation of freedom of speech on the Internet in different jurisdictions (Bangladesh, China, Sri Lanka) indicate differing government approaches, and provide examples to learn from. The interpretation and consequences of Shreya Singhal on website-blocking and intermediary liability in India provide another learning platform.

Fourth , panellists discussed the possibilities of cooperation and strategies among civil society and policy organisations in India. Taking the example of the Save the Internet campaign surrounding net neutrality in India, panellists speculated on the feasibility of using the Internet itself as a tool to campaign for governance and policy reform. Together with the audience, the panellists identified several areas that are ripe for research and advocacy, such as net neutrality and zero-rating, and citizens' free speech right as being separate from governmental and corporate interests.

For more details visit https://cis-india.org/internet-governance/blog/freedom-of-expression-in-a-digital-age

India blocks access to 857 porn sites

pranesh — 2015-08-05T01:31:32Z

India has blocked free access to 857 porn sites in what it says is a move to prevent children from accessing them.

The story was published by BBC on August 3, 2015. Pranesh Prakash gave his inputs.

Adults will still be able to access the sites using virtual private networks (VPNs) or proxy servers. In July, the Supreme Court expressed its unhappiness over the government's inability to block sites, especially those featuring child pornography.

Telecom companies have said they will not be able to enforce the "ban" immediately.

"We have to block each site one by one and it will take a few days for all service providers to block all the sites," an unnamed telecom company executive told The Times of India newspaper.

A senior official, who preferred to remained unnamed, told the BBC Hindi that India's department of telecommunications had "advised" telecom operators and Internet service providers to "control free and open access" to 857 porn sites.

"There is no total ban. This was done in the backdrop of Supreme Court's observation on children having free access to porn sites. The idea is also to protect India's cultural fabric. This will not prevent adults from visiting porn sites," the official said.

In July, the top court had observed that it was not for the court to order a ban on porn sites.

"It is an issue for the government to deal with. Can we pass an interim order directing blocking of all adult websites? And let us keep in mind the possible contention of a person who could ask what crime have I committed by browsing adult websites in private within the four walls of my house. Could he not argue about his right to freedom to do something within the four walls of his house without violating any law?," the court said.

According to statistics released by adult site Pornhub, India was its fourth largest source of traffic in 2014, behind the US, UK and Canada. Pranesh Prakash of the Bangalore based Centre for Internet and Society said the directive to block the 857 sites was "the largest single order of its kind" in India.

"The government's reasoning that it is not a ban because adults can still access the porn sites is ridiculous," he told the BBC. The move has caused a great deal of comment on Indian social media networks, with many prominent personalities coming forward to condemn it.

Popular author Chetan Bhagat, writer and commentator Nilanjana Roy, politician Milind Deora and director Ram Gopal Varma have all added their voices to the debate.

For more details visit https://cis-india.org/internet-governance/news/bbc-news-august-3-2015-india-blocks-access-to-857-porn-sites

Porn ban: People will soon learn to circumvent ISPs and govt orders, expert says

pranesh — 2015-08-05T01:47:52Z

The article by Karthikeyan Hemalatha was published in the Times of India on August 2. Pranesh Prakash gave inputs.

The government used other sections of the Act to circumvent this provision. Sources in the Department of Telecommunication, which comes under the ministry of communications and information technology, said a notification had been issued under Section 79 (b) of IT Act under which internet service providers could be penalized for not following government orders. "Though the section protects an internet service provider (ISP) from legal action for the content it may allow, it can be penalized for not following government orders to ban them," said Prakash.

Last month, the Supreme Court declined to pass an interim order to block websites which have pornographic content. "Such interim orders cannot be passed by this court. Somebody may come to the court and say 'look I am above 18 and how can you stop me from watching it within the four walls of my room?' It is a violation of Article 21 [right to personal liberty]," said Chief Justice H L Dattu.

The judge was reacting to a public interest litigation filed by advocate Kamlesh Vashwani who was seeking to block porn websites in the country. "The issue is definitely serious and some steps need to be taken. The Centre is expected to take a stand. Let us see what stand the Centre will take," the Chief Justice said and directed the Centre to reply within four weeks. Over the weekend, the stance became clear.

Sources also say that Section 19 (2) of the Constitution was used for the ban. The section allows the government to impose "reasonable restrictions in the interest of sovereignty and integrity of India, security of the state, decency or morality or in relation to contempt of court."

For netizens, the government could actually be providing crash courses on proxy sites. "This is the best way to teach people on how to circumvent ISPs and government orders," said Prakash, adding that real abusive porn sites might still be available.

"There is no dynamic mechanism to block all sites with pornographic content. The government has to individually pick URLs (uniform resource locator) to ban websites. Right now, only popular websites have been banned and the little known abusive sites like those that propagate revenge porn or child porn," said Prakash. "No ban can be comprehensive," he added.

For more details visit https://cis-india.org/internet-governance/news/the-times-of-india-august-2-2015-karthikeyan-hemalatha-porn-ban

Porn block in India sparks outrage

pranesh — 2015-08-05T02:10:46Z

India’s government has triggered a storm of protest after blocking 857 alleged pornography websites, with privacy and internet freedom campaigners, as well as consumers, condemning the move as arbitrary and unlawful.

The article by Amanda Hodge was published in the Australian on August 5, 2015. Pranesh Prakash gave his inputs.

The order, enforced since Sunday by the country’s main internet service providers, comes amid debate about the influence of pornography on sex crime in India, and as the Supreme Court considers a petition by lawyer Kamlesh Vaswani to ban pornographic websites that harm children.

The government has been forced to defend the move, saying it was taken in response to Supreme Court criticism at inaction against child pornography websites, although the Supreme Court itself has refused to impose any interim ban while it considers the petition. The websites — a fraction of the world’s millions of internet pornography sites — will remain blocked until the government figures out how to restrict access, a spokesman said.

Critics have slammed the measure as unconstitutional and pointed out the list includes adult humour sites that contain no pornographic content. Others have suggested it is another intrusion into the private lives of ordinary Indians by an administration intent on pushing a puritanical Hindu agenda, citing the recent ban on beef in several states and an alleged “Hindu-isation” of school textbooks.

That prompted outrage from Telecom Minister Ravi Shankar Prasad. “I reject with contempt the charge that it is a Talibani government. Our government supports free media, respects communication on social media and has respected freedom of communication always,” he said.

While India has no law preventing citizens accessing internet pornography, regulations do restrict the publishing of “obscene information in electronic form”. Centre for Internet and Society policy director Pranesh Prakash told The Australian yesterday that some elements of that act were welcome — such as prohibition of child pornography and the uploading of a person’s private parts without consent — but “the provisions relating to ‘sexually explicit materials’ are far too broad, with no exceptions made for art, architecture, education or literature”.

Mr Prakash said the pornography ban amounted to an “abdication of the government’s duty”, given the list of sites blocked was provided on request to the government by one of the Vaswani petitioners. “The additional solicitor-general essentially asked one of the petitioners to provide a list of websites, which she passed on to the Department of Information Technology, which in turn passed to Department of Telecommunications asking for them to be blocked or disabled.

“That is not acceptable in a democracy where it is not the government which has actually found any of these websites to be unlawful.” Mr Prakash also criticised the secrecy surrounding the order, which he said contravened Indian law requiring a public declaration of any intended ban so that it might be challenged. The bans were made under “Rule 12” of India’s IT Act, which empowers the government to force ISPs to block sites when it is “necessary or expedient”.

For more details visit https://cis-india.org/internet-governance/news/the-australian-news-august-5-2015-amanda-hodge-porn-block-in-india-sparks-outrage

Criminal defamation remains and so does the debate

Japreet Grewal — 2016-05-23T06:05:17Z

The judgment on the plea to de-criminalise defamation is out and despite its verbosity and rich vocabulary is an embarrassment to our recent judicial milestone of constitutional challenges. In the case of Subramanian Swamy vs. Union of India, a two judge bench headed by Justice Dipak Misra, has upheld the constitutionality of Section 499 and Section 500 of Indian Penal Code, 1860 (IPC) and Section199 of Code of Criminal Procedure, 1973 (CrPC) that criminalise defamation.

The judgment has not satisfactorily answered several pertinent questions. Various significant issues relating to the existing regime of defamation have been touched upon in the judgment but the bench has skipped the part where it is required to analyse and give its own reasoning for upholding or reading down the law. This post points out what should have been looked at.

A. Whether defamation is a public or a private wrong? What is the State’s interest in protecting the reputation of an individual against other private individuals? Is criminal penalty for defamatory statements an appropriate, adequate or disproportionate remedy for loss of reputation?

At the core of the debate to decriminalise defamation lies the question, whether defamation is a public or a private wrong. The question was raised in the Subramanian Swamy case and the court held that defamation is a public wrong. Our problem with the court’s decision lies in its failure to provide a sound and comprehensive analysis of the issue. In order to understand whether defamation is a public or a private wrong, it is necessary that we look at what reputation means, what happens when reputation is harmed and whose interests are affected by such harm.

Reputation is not defined in law, however the Supreme Court has held that reputation is a right to enjoy the good opinion of others and the good name, the credit, honour or character which is derived from such favourable public opinion. The definition reflects several elements that constitute reputation which when harmed have different bearing on the reputation of an individual. Academic Robert C Post in his paper, The Social Foundations on Defamation Law: Reputation and Constitution, says that reputation can be understood as a form of intangible property akin to goodwill or as dignity (the respect including self-respect that arises from observance of rules of the society). While reputation when seen as property can be estimated in money and thus adequately compensated through a civil action for damages, loss of dignity is not a materially quantifiable loss, and thus, monetary compensation appears irrelevant. The purpose of the defamation law could either be to ensure that reputation is not wrongfully deprived of its proper market value or the respect/acceptance of the society. Explanation 4 to Section 499 of the IPC accommodates both such situations and provides that reputation is harmed if it directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.

Post adds that an individual’s reputation is a product of his interaction with the society by following the norms of conduct (which he calls rules of civility) created by the society, thus the society has an interest in enforcing its rules of civility through defamation law by policing breaches of these rules. Criminal defamation acknowledges that loss of reputation is a wrong to the societal interests; however these interests have not been deliberated upon by the courts in India.

The Subramanian Swamy case was an occasion where, it was imperative that the court took up this exercise and explained what interest the society had in protecting the reputation of an individual for it to be classified as a public wrong. The court stated, “the law relating to defamation protects the reputation of each individual in the perception of the public at large. It matters to an individual in the eyes of the society. There is a link and connect between individual rights and the society; and this connection gives rise to community interest at large. Therefore, when harm is caused to an individual, the society as a whole is affected and the danger is perceived” With this reasoning it can be inferred that the society has an interest in all private wrongs. Where would that inference land us? This reasoning is ambiguous and inadequate.

On the other hand, criminal penalty for perfectly private wrongs such as copyright infringement and dishonour of cheques urges us to ask if there is a problem with the rigid distinction of public and private wrongs. Should we be asking the question differently?

The judgment has provided extremely inadequate answers to this question and has left matters ambiguous.

B. Can the right to reputation under Article 21 be enforced against another individual’s freedom of expression and are safeguards already built in law so as not to unreasonably restrict and stifle free expression in this regard?

Defamation finds a place in the list of constitutionally allowed restrictions on freedom of speech under Article 19 (2). Defamation protects the right to reputation of an individual thus free expression by this reason is subject to the right to reputation of an individual. The court had repeatedly observed that right to reputation is a part of the right to life under Article 21 of the Constitution. The question of enforceability of right to reputation under Article 21 against freedom of expression under Article 19 (1) (a) came into question in the instant case; it was contended that a fundamental right is enforceable against the State but cannot be invoked to serve a private interest of an individual. Thus, the right to reputation as manifested in defamation being a wrong committed against a private person by another person is unconnected and falls outside the scope of Article 19 (2). It is pertinent to note that Article 21 (which includes right to reputation) is enforceable not only against the state but also against private individuals. What is relevant here is an understanding of horizontal enforceability of fundamental rights (certain fundamental rights can be enforced against private individuals and non-state actors). This would help explain the dilemma in enforcing the right to reputation of an individual against free speech of another individual. It is vaguely mentioned in the judgment (see para 88) but has not been deliberated upon.

What follows from the discussion of enforceability of right to reputation, is the discussion on how reasonably it restricts speech. The Supreme Court has previously held that while determining reasonableness, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. We briefly analyse the critical aspects of the regime of criminal defamation on these parameters.

Underlying purpose

At the heart of the defamation law is the need to find the most suitable remedy for loss of reputation of an individual. How does one restore reputation of an individual in the society and whether criminal penalty an appropriate remedy?

Extent of restriction

The extent to which defamation law restricts free speech could be analysed by looking at various aspects such as what kind of speech is considered defamatory, what procedure is followed to bring action against the alleged wrong doer and scope of abuse of the law. Explanation 1 to Section 499 of IPC provides that a statement or imputation is defamatory if it is not made in public good. It is not sufficient to prove that such statement or imputation is in fact true. The idea of public good is at best vague without any means to evaluate it. Further, under Section 199 of CrPC allows multiple complaints to be filed in different jurisdictions for a single offensive publication. Besides, usage of terms like “some person aggrieved” leaves room for parties other than the person in respect of whom defamatory material is published to bring action and the provision also allows the privilege of two sets of procedures for prosecution (in official capacity and in private capacity) to public servants without satisfactory reasoning provided for such discrimination. These provisions have the potential to be used to file frivolous complaints and could be a handy tool for harassment of journalists or activists among others.

Proportionality

Does the publication or imputation of defamatory material warrant payment of fine and imprisonment? Earlier in the post, we brought up the question of relevance of such measures to the act of defamation. Assuming that it is relevant, do we think it is harsh or commensurate to the wrongful act. It is necessary to look at the process of prosecution before we determine the proportionality of the restriction. Criminal law assumes that the accused is innocent until he is proven guilty. Therefore until the judiciary determines that the act of defamation was committed, how does the process help the accused in maintaining status quo. It is also pertinent to look at the threshold for civil defamation. Under the civil wrong of defamation, truth works as a complete defence while under criminal defamation, a statement despite being true could invite penalty if it is not published in public good. Thus a lower threshold for criminal liability would upset the balance of proportionality. These aspects are critical to determine the reasonableness of criminal defamation and it is unfortunate that the judgment that runs into hundreds of pages has not evaluated them.

Conclusion

The convoluted debate on criminal defamation remains intact post the pronouncement of this judgment. Questions of competing interests of society and individuals or individuals per se, and ambiguous rationale behind imposition of liability, arbitrariness of procedure for prosecution have not been examined. Further, the hardship in compartmentalising free speech, the right to reputation and the right to privacy remains unanswered.

For more details visit https://cis-india.org/internet-governance/blog/criminal-defamation-remains-and-so-does-the-debate

CIS's Comments on the Draft Geospatial Information Regulation Bill, 2016

pranesh — 2016-06-05T15:06:09Z

The Centre for Internet and Society is alarmed by the Draft Geospatial Information Regulation Bill, 2016, and has recommended that the proposed law be withdrawn in its entirety. It offered the following detailed comments as its submission.

Comments on the Draft Geospatial Information Regulation Bill, 2016

by the Centre for Internet and Society

1. Preliminary

1.1. This submission presents comments and recommendations by the Centre for Internet and Society (“CIS”) on the draft Geospatial Information Regulation Bill, 2016 (“the draft bill” / “the proposed bill” / “the bill”).

2. Centre for Internet and Society

2.1. The Centre for Internet and Society is a non-profit organisation that undertakes interdisciplinary research on internet and digital technologies from the perspectives of policy and academic research. The areas of focus include accessibility for persons with disabilities, access to knowledge, intellectual property rights, openness (including open data, free and open source software, open standards, open access, open educational resources, and open video), internet governance, telecommunication reform, digital privacy, and cyber-security. The academic research at CIS seeks to understand the reconfiguration of social processes and structures through the internet and digital media technologies, and vice versa.

2.2. This submission is consistent with CIS’ commitment to safeguarding the public interest, and particularly the representing the interests of ordinary citizens and consumers. The comments in this submission aim to further the principles of people’s right to information regarding their own country, openness-by-default in governmental activities, freedom of speech and expression, and the various forms of public good that can emerge from greater availability of open (geospatial) data created by both public and private agencies, and the innovations made possible as a result.

3. Comments

3.1. General Remarks

3.1.1. While CIS welcomes the intentions of the government to prevent use of geospatial information to undermine national security, the proposed bill completely fails to do so, infringes upon Constitutional rights, harms innovation, undermines the national initiatives of Digital India and Startup India, is completely impractical and unworkable, and it will lead to a range of substantial harms if the government actually seeks to enforce it.

3.1.2. There are already laws in place that prevent the use of geospatial information to undermine national security. For instance, the Official Secrets Act, 1923 (“OSA”) already contains provisions — sections 3(2)(a), (b), and (c) — all of which would prevent a person from creating maps that undermine national security and would penalise their doing so. Section 5 of the OSA contains multiple provisions that penalise the possession and communication of maps that undermine “national security.” The penalties under the OSA range from imprisonment of up to 3 years all the way to imprisonment up to 14 years. Given this, there is absolutely no need to create yet another law to deal with maps that undermine “national security.” Indeed, it is the government’s stated policy to reduce the number of laws in India, whereas the proposed bill introduces a redundant new law that adds multiple layers of bureaucracy.

3.1.3. The National Mapping Policy, 2005, already puts in place restrictions on wrongful depictions of India’s international boundaries, and as we explain below in section 3.4 of this document, even the National Mapping Policy is over-broad. Even if the government wishes to provide statutory backing to the policy, it should be a very different law that is far more limited in scope, and restricts itself to criminalising those who misrepresent India’s international boundary with an intention to mislead people into thinking that that is the official boundary of India as recognised by the Survey of India. CIS would support a law of such limited scope and mandate, provided it has an appropriate penalty.

3.1.4. There would be much utility in a law that creates a duty on the Survey of India to make available, in the form of an open standard, an official electronic version of the maps that it creates, and expressly allows and encourages citizens and startups to reuse such official maps, however the Ministry of Home Affairs would not be the nodal ministry for such a law.

3.1.5. We recommend that the proposed law be scrapped in its entirety.

3.1.6. We additionally provide an alternative manner of reducing the harms caused by this bill, in our comments below. By no means should these further comments be seen as a repudiation of our above position, since we do not feel the proposed bill, even with the inclusion of all of our recommendations, would truly further its stated aims. All our below recommendations would do is to reduce the bill’s harmful, and often unintended, consequences.

3.2. Definition of “Geospatial Information” is over-broad, all- encompassing

3.2.1. The second part of the definition of “geospatial information” refers to all “graphic or digital data depicting natural or man-made physical features, phenomenon or boundaries of the earth or any information related thereto” that are “referenced to a co-ordinate system and having attributes.” (Section 2(1)(e)) As per the definition, this will include all geo-referenced information, and data, that is produced by everyday users as an integral part of various everyday uses of digital technologies. This will also include geo-referenced tweets and messages, location of public and private vehicles shared in the real-time with agencies tracking their location (from public transport authorities, to insurance agencies, etc.), location data of mobile phones collected and used by telecommunication service providers, location of mobile phones shared by the user with various kinds of service providers (from taxi companies to delivery agencies), etc.

3.2.2. We recommend that instead of regulating all kinds of geospatial information, and giving rise to a range of possible harms, the draft bill be revised to specifically address “sensitive geospatial information,” defined as geospatial information related to the “Prohibited Places” as defined in the Official Secrets Act 1923 (section 2(8)) which will allow the bill to effectively respond to its key stated concerns of ensuring “security, sovereignty and integrity of India.” Since the National Map Policy defines “Vulnerable Points” and “Vulnerable Areas” (para 3(b)) as the two main types of geospatial units associated with “Prohibited Places”, these terms should also be referred to in the revised version of the draft bill.

3.3. Unreasonable regulation of acquiring and end-use of geospatial information

3.3.1. Section 3 of the draft bill states that “[s]ave as otherwise provided in this Act, rules or regulations made thereunder, or with the general or special permission of the Security Vetting Authority, no person shall acquire geospatial imagery or data including value addition” and “[e]very person who has already acquired any geospatial imagery or data ... including value addition prior to coming of this Act into effect, shall within one year from the commencement of this Act, make an application alongwith requisite fees to the Security Vetting Authority.” This effectively makes it illegal to acquire and maintain ownership of geospatial information that has not been subjected to security vetting.

3.3.2. This draft bill doesn’t apply just to geospatial information that may undermine national security but covers all manners of geospatial information and modern geospatial technologies embedded in everyday digital devices and intimately connected to various electronic products and services, from cars to mobile phones, result in the creation and acquiring of various kinds of geo-referenced information, ranging from the geo-referenced photographs to locations shared with friends. Even ordinary users who are unknowingly looking at maps that contain sensitive geospatial information, which are illegal under the Official Secrets Act, are committing an illegal act under the draft bill, because the users temporarily acquires such sensitive geospatial information in her/his digital device, as part of the very act of browsing the map concerned. This clearly cannot be the intention of the bill. Thus we recommend deletion of the word “acquire.”

3.3.3. Further, the insertion of the phrase “including value addition” in both Section 3(1) and 3(2) appears to suggest that all users who have created derivative products using geospatial information that includes sensitive data (that is data related to Prohibited Places) may be held liable under this draft bill, even if these users have not themselves collected or created such sensitive geospatial information, which was part of the original geospatial information published by the source map agency. This too cannot be the intention of the bill. Thus, we recommend deletion of the phrase “including value addition.”

3.3.4. In the definition of the “Security Vetting of Geospatial Information” itself, it is mentioned that the process will include “screening of the credentials of the end-users and end-use applications, with the sole objective of protecting national security, sovereignty, safety and integrity.” (Section 2(1)(o)) This appears to indicate that all end-users of all electronic and analog services and products using geospatial information will have to be individually vetted before such services and products are used, which would cover a large proportion of the Indian population. This imposes an enormous and impractical burden on the Indian digital economy in particular, and the entire national economy in general, without improving national security. This too cannot be the intention of the draft bill. Thus, we recommend deletion of this phrase, and ensure that end users are not covered by the law.

3.3.5. Given these specific characteristics of how modern geospatial technologies work, and how they provide a basis for various kinds of everyday use of electronic products and services, we would like to submit that the regulatory focus should be on large-scale and/or commercial dissemination, publication, or distribution of geospatial information, and not on the acts of acquiring, possessing, sharing, and using geospatial information. Further, the regulation in general should be aimed at the party owning the geospatial information in question, and not at the parties involved in its dissemination (say, Internet Service Providers) or in its generation or use (say, end-users).

3.4. Removal of journalistic, political, artistic, creative, and speculative depictions of India from the scope of Section 6

3.4.1. Section 6 of the draft bill states that “[n]o person shall depict, disseminate, publish or distribute any wrong or false topographic information of India including international boundaries through internet platforms or online services or in any electronic or physical form.” Section 15 imposes a penalty for such wrong depiction of maps of India.

3.4.2. Depictions of India, which do not purport to accurately represent the international boundaries as recognised by the Indian government should not be penalised. For instance, a map published in a newspaper article about India’s border disputes that shows the incorrect claims that the Chinese government has made over Indian territory would also be penalised as “wrong or false topographic information of India”, since there is a clear intention to depict the boundary as claimed by China. Criminalising such journalism cannot be the legitimate intent of such a provision.

3.4.3. There are numerous instances which have been willfully depicting inaccurate and inauthentic maps of India with international borders for political ends. For instance, there are often depictions of India which show territories within present day Pakistan, Bangladesh, Bhutan, Nepal and Sri Lanka as part of an “Akhand Bharat.” Depictions of this sort should not be penalised. In doing so, would contradict the freedom of expression guaranteed under Article 19(1)(a) without being a reasonable restriction under Article 19(2).

3.4.4. Even depictions of India for purposes of speculative fiction would be penalised under this proposed bill unless they depict the official borders. This is clearly undesirable and would not be allowed as a reasonable restriction under Article 19(2).

*3.4.5.* Even geography students in schools and colleges who mis-draw the official map of India would be liable to penalties under the draft bill. This plainly, cannot be the intention of the drafters of this bill. The creator of a rough and inaccurate tourist map of an Indian city can also be identified as committing a criminal act under the proposed bill as she would be depicting “… wrong or false topographic information of India …”

3.4.6. In brief: Merely depicting, disseminating, publishing or distributing any “wrong or false topographic information of India” should not be penalised. unless a person publishes and widely circulates an incorrect map of India while claiming that that represents the official international boundaries of India, such should not be penalised.

3.4.7. CIS recommends that the bill should instead state: “No person shall depict, disseminate, publish, or distribute any topographic information purporting to accurately depict the international boundaries of India as recognised by the Survey of India unless he is authorised to do so by the Surveyor General of India; provided that usage by any person of the international boundaries as is electronically and in print made available by the Survey of India shall deemed to be usage that is authorised by the Surveyor General of India.”

3.5. Absence of Publicly Available and Openly Reusable Standardised National Boundary of India

3.5.1. Given the lack of an reusable versions of maps of India, including of India’s official boundary as recognised by the Survey of India, it becomes impossible for people to accurately depict the boundary of India. We recommend that the bill requires the Survey of India to publish all “Open Series Maps,”as defined in the National Mapping Policy, 2005, including maps depicting the official international and subnational political and administrative boundaries of India, using open geospatial standards and under an open licence allowing such geospatial data to be used by citizens and all companies.

3.6. Remove Requirement for Prior License for Acquire, Dissemination, Publication, or Distribution of Geospatial Information

3.6.1. Section 9 of the draft bill refers to “any person who wants to acquire, disseminate, publish, or distribute any geospatial information of India” (emphasis added), which can be interpreted as the need for a prior license before any person decides to acquire (including creation, collection, generation, and buying) geospatial information. This creates at least two problems:

modern digital geospatial technologies have enabled everyday digital devices (like smartphones) to instantaneously acquire, disseminate, publish, and distribute geospatial information all the time when the person holding that device is looking at online digital maps, say Google Maps, or sharing location with their friends, online platforms and services and service providers (both local and foreign); and
the requirement of prior license involves payment of a “requisite fees” to the Security Vetting Authority, which may act as an arbitrary (since the fee might be based upon the volume of geospatial information to be acquired that one may not know fully determine before acquiring) and effective barrier to acquiring, dissemination, publication, or distribution of geospatial information even if it does not violate the concerns of “security, sovereignty, and integrity” in any manner. This requirement also impedes competition in the market, because new entrants to the geospatial industry may not have enough upfront capital to procure licenses.

3.6.2. Further, the requirement of necessary prior license for acquiring geospatial information does not seem to be a crucial component of the security vetting process, since the geospatial information, once acquired by the agency concerned, is in any case directed to be shared with the Security Vetting Authority for undertaking necessary expunging of sensitive or incorrect information.

3.6.3. We recommend revision of this section so that no prior license and/or permission is required for collection, acquiring, distribution, and/or use of geospatial information; instead, a framework may be established for monitoring of published geospatial information for purposes of ensuring geospatial information pertaining to “Prohibited Places,” as defined under the Official Secrets Act, is not made available to the general public by any person or entity under Indian jurisdiction, including, for instance, Indian subsidiaries and branches of foreign corporations.. Such a framework must not address the end-user of such geospatial information, but its publishers.

3.7. Unenforceable jurisdictional scope

3.7.1. Section 5 of the draft bill states “[s]ave as otherwise provided in any international convention, treaty or agreement of which India is signatory or as provided in this Act, rules or regulations made thereunder, or with the general or special permission of the Security Vetting Authority, no person shall, in any manner, make use of, disseminate, publish or distribute any geospatial information of India, outside India, without prior permission from the Security Vetting Authority.”

3.7.2. In compliance with this section, domestic and foreign companies and platforms will be required to obtain permission from the Security Vetting Authority of India prior to publishing, distributing etc. geospatial information. Similarly in the preliminary, the draft bill holds in person who commits an offence beyond India under the scope of the bill. The bill is thus proposing extraterritorial applicability of its provisions, yet the extent and method of enforcement of the same on other jurisdictions are kept unclear.

3.8. Negative implications for rights of citizens

3.8.1. There are a number of sections in the draft bill which have negative implications for the rights of all users and potentially impinge on the constitutional rights of Indian citizens. These include:

a. Section 18(2) which empowers the Enforcement Authority to conduct a search without a judicial search order;

b. Section 17(3) which empowers the Enforcement Authority to conduct undefined surveillance and monitoring to enforce the Act;

c. Chapter (V) which penalises individuals with Rs. 1-100 Crores and/or seven years in prison for an offence under the act;

d. Section 22 which allows the government to take ownership of a person’s land if a financial penalty has not been paid;

e. Section 30(1) which holds, in the case of the offense being committed by a company, every person in charge of and responsible for the conduct of business of the company, guilty and liable.

3.9. Overly broad powers and responsibilities of the Apex Committee and Enforcement Authority, and lack of adequate oversight

3.9.1. Section 7(2) states that “[t]he Apex Committee shall do all such acts and deeds that may be necessary or otherwise desirable to achieve the objectives of the Act, including the following functions:...” The wording in this section is broad and open ended, and allows for the responsibilities of the Apex Committee to be expanded without clear oversight of such expansion.

3.9.2. Similarly, section 17 established an “Enforcement Authority” for the purpose of carrying out surveillance and monitoring for enforcement of the draft bill. The Authority has been given a number of powers including the power of inquiry, the power to adjudicate, and the power to give directions. These powers have direct implications on the rights of individuals, yet the Authority is not subject to oversight or accountability requirements.

3.9.3. We recommend that the powers and responsibilities of the Apex Committee and Enforcement Authority are narrowly defined in the draft bill itself, limited by the principle of necessity, and subject to independent oversight and accountability requirements.

3.10. Remove the Security Vetting Authority’s power of delegation

3.10.1. Section 8(3) allows the Security Vetting Authority to delegate to any constituent member of the Authority, other subordinate committee, or officer powers and functions as it may deem necessary except the power to grant a licence. In practice, this will allow security vetting to be done by another institution and risks potential involvement of private agencies and/or quasi-governmental bodies.

3.10.2. We recommend that the power of delegation should not be granted to the Security Vetting Authority.

3.11. Negative implications for innovation and India’s digital economy

3.11.1. Section 3 of the draft bill states “[s]ave as otherwise provided in this Act, rules or regulations made thereunder, or with the general or special permission of the Security Vetting Authority, no person shall acquire geospatial imagery or data including value addition of any part of India either through any space or aerial platforms such as satellite, aircrafts, airships, balloons, unmanned aerial vehicles or terrestrial vehicles, or any other means whatsoever”. This effectively ensures that each and every user of geospatial data, products, services, and solutions — since all of these either include or are derivatives of geospatial information — would require prior permission from the Security Vetting Authority. This will substantially affect the existing and emerging digital economy in particular, and the entire economy in general.

3.11.2. Further, Section 9 of the draft bill mandates that any person submitting an application for geospatial information to be vetted must pay a fee. As the provisions of the bill mandate that users approach the Security Vetting Authority for license to use geospatial information, this will impose an immense burden on all users of digital devices in and outside of India. CIS submits that imposition of this fee for security vetting be removed.

3.12. Disproportionate penalty for acquisition of geospatial information

3.12.1. Section 12 states that “[p]enalty for illegal acquisition of geospatial information of India.- Whoever acquires any geospatial information of India in contravention of section 3, shall be punished with a fine ranging from Rupees one crore to Rupees one hundred crore and/or imprisonment for a period upto seven years.” Seven years in prison is disproportionate to the offense of acquiring geospatial information without vetting by the authority concerned. This is particularly true given the broad and all-encompassing definition of “geospatial information” in the draft bill, and the fact that the bill applies to individuals and companies both within and outside of India.

3.13. Improper and inconsistent usage of terms in the draft bill

3.13.1. Section 4 of the draft bill regulates the visualization, publication, dissemination and distribution of geospatial information of India, while section 5 regulates use, dissemination, publication, and distribution of geospatial information outside of India. The definition of “visualization” remains unclear, and the act is only regulated in section 4. The section 6 of the draft bill uses the term ‘depict’, which is undefined as well. We submit that in this context terms are interchangeable, and the draft bill should either define them expressly to avoid ambiguity in interpretations, or consistently use only one throughout the draft bill.

3.13.2. Section 11 (3) of the draft bill requires licensees to “[d]isplay the insignia of the clearance of the Security Vetting Authority on the security-vetted geospatial information by appropriate means such as water-marking or licence as relevant, while disseminating or distributing of such geospatial information.” We observe that geospatial information includes graphical representation, location coordinates, inter alia. While the former may be represented visually on an “as is” basis after the completion of the vetting, the latter may be used to perform other complex functions at the “back-end” (i.e., vendor-facing side) in various technologies. Water-marking and/or displaying of insignia would place undue burden on the licensee, depending on the kind of platform, service, or individual.

3.14. Lack of reference to technical implementation guidance

3.14.1. The regulation, harmonisation, and standardisation of the collection, generation, dissemination etc. of geospatial information is a complex process that goes beyond a process of security vetting and that will require extensive technical implementation guidance from the government. At a minimum this could include quality assurance considerations and standard operating procedures, yet the draft bill makes no reference to the need for technical standards or guidance.

Comments prepared by Sumandro Chattapadhyay, Adya Garg, Pranesh Prakash, Anubha Sinha, and Elonnai Hickok. Submitted by the Centre for Internet and Society, on June 3, 2016.

For more details visit https://cis-india.org/internet-governance/blog/comments-draft-geospatial-information-regulation-bill-2016

UN Special Rapporteur Report on Freedom of Expression and the Private Sector: A Significant Step Forward

vidushi — 2016-06-08T17:27:22Z

On 6 June 2016, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, David Kaye, released a report on the Information and Communications Technology (“ICT”) sector and freedom of expression in the digital age. Vidushi Marda and Pranesh Prakash highlight the most important aspects of the report.

Background

Today, the private sector is more closely linked to the freedom of expression than it has ever been before. The ability to speak to a mass audience was at one time a privilege restricted to those who had access to mass media. However, with digital technologies, that privilege is available to far more people than was ever possible in the pre-digital era. As private content created on these digital networks is becoming increasingly subject to state regulation, it is crucial to examine the role of the private sector in respect of the freedom of speech and expression.

The first foray by the Special Rapporteur into this broad area has resulted in a sweeping report, that covers almost every aspect of freedom of expression within the ICT sector, except competition which we will elaborate on later in this post.

Introduction

The report aims to “provide guidance on how private actors should protect and promote freedom of expression in a digital age”. It identifies the relevant international legal framework as Article 19 of the International Covenant on Civil and Political Rights, and Article 19 of the Universal Declaration of Human Rights. The UN “Protect, Respect and Remedy” Framework and Guiding Principles, also known as the Ruggie Principles provide the framework for private sector responsibilities on business and human rights.

The report categorises different roles of the private sector in organising, accessing, regulating and populating the internet. This is important because the manner in which the ICT sector affects the freedom of expression is far more complicated than traditional communication industries. The report identifies the distinct impact of internet service providers, hardware and software companies, domain name registries and registrars, search engines, platforms, web hosting services, platforms, data brokers and e-commerce facilities on the freedom of expression.

Legal and Policy Issues

The Special Rapporteur discusses four distinct legal and policy issues that find relevance in respect of this problem statement: Content Regulation, Surveillance and Digital Security, Transparency and Remedies.

Content Regulation

The report identifies two main channels through which content regulation takes place: the state, and internal processes.

Noting that digital content made on private networks is increasingly subject to State regulation, the report highlights the competing interests of intermediaries who manage platforms and States which demand for regulation of this content on grounds of defamation, blasphemy, protection of national security etc. This tension is demonstrated through vague laws that compel individuals and private corporations to over-comply and err on the side of caution “in order to avoid onerous penalties, filtering content of uncertain legal status and engaging in other modes of censorship and self-censorship.” Excessive intermediary liability forces intermediaries to over-comply with requests in order to ensure that local access to their platforms are not blocked. States attempt at regulating content outside the law through extra legal restrictions, and push private actors to take down content on their own initiative. Filtering content is another method, wherein States block and filter content through the private sector. Government blacklists, illegal content and suspended accounts are methods employed, and these have sometimes raised concerns of necessity and proportionality. Network or service shutdowns are classified as a “particularly pernicious” method of content regulation. Non neutral networks also are a method of content regulation with the possibilities of internet service providers throttling traffic. Zero rating is a potential issue, although the report acknowledges that “it remains a subject of debate whether they may be permissible in areas genuinely lacking Internet access”.

The other node of content regulation has been identified as internal policies and practices of the private sector. Terms of service restrictions are often tailored to the jurisdiction’s laws and policies and don’t always address the needs and interests of vulnerable groups. Further, the report notes, design and engineering choices of how private players choose to curate content are algorithmically determined and increasingly control the information that we consume.

Transparency

The report notes that transparency enables those entities subject to internet regulation to take informed decisions about their responsibilities and liabilities in a digital sphere and points out, that there is a severe lack of transparency about government requests to restrict or remove content. Some states even prohibit the publication of such information, with India being one example. In respect of the private sector, content hosting platforms sometimes at least reveal the circumstances under which content is removed due to a government request, although this is rather erratic. The report recognises the need to balance transparency with competing concerns like security and trade secrecy, and this is a matter of continued debate.

Surveillance and Digital Security

Freedom of expression concerns arise as data transmitted on private networks is gradually being subjected to surveillance and interference from the State and private actors. The report finds that several internet companies have reported an increase in government requests for customer data and user information. According to the Special Rapporteur, effective resistance strategies include inclusion of human rights guarantees, restrictively interpreting government requests negotiations. Private players also make surveillance and censorship equipment that enable States to intercept communications. Covert surveillance has been previously reported, with States tapping into communications as and when necessary. When private entities become aware of interception and covert surveillance, their human rights responsibilities arise. As private entities work towards enhancing encryption, anonymity and user security, states respond by compelling companies to create loopholes for them to circumvent such privacy and security enhancing technology.

Remedies

Unlawful content removal, opaque suspensions, data security breaches are commonplace occurrences in the digital sphere. The ICCPR guarantees that all people whose rights have been violated must have an effective remedy, and similarly, the Ruggie principles require that remedial and grievance mechanisms must be provided by corporations. There is some ambiguity on how these complaint or appeal mechanisms should be designed and implemented, and the nature and structure of these mechanisms is also unclear. The report states that it is necessary to investigate the role of the state in supplementing/regulating corporate mechanisms, its role in ensuring that there is a mechanism for remedies, and its responsibility to make sure that more easily and financially accessible alternatives exist for remedial measures.

Special Rapporteur’s priorities for future work and thematic developments

Investigating laws, policies and extralegal measures that equip governments to impose restrictions on the provision of telecommunications and internet services. Examining the responsibility of companies to respond in a way that respects human rights, mitigates harm, and provides avenues for redress.
Evaluating content restrictions under terms of service and community standards. Private actors face substantial pressure from governments and individuals to restrict expression, and a priority is to evaluate the interplay of private and state actions on freedom of expression in light of human rights obligations and responsibilities.
Focusing on the legitimacy of rationales for intermediary liability for content hosting, restrictions, conditions for removing third party content.
Exploring censorship and surveillance within the human rights framework, and encouraging greater scrutiny before using these technologies for purposes that undermine the freedom of expression.
Identifying ways to balance an increasing scope of freedom of expression with the need to address governmental interests in national security and public order.
Internet access - Future work will explore issues around access and private sector engagement and investment in ensuring affordability and accessibility, particularly considering marginalized groups.
Internet governance - Internet governance frameworks and reform efforts are sensitive to the needs of women, sexual minorities and other vulnerable communities. Throughout this future work, the Special Rapporteur will pay particular attention to legal developments (legislative, regulatory, and judicial) at national and regional levels.

Conclusions and Recommendations

States: The report recommends that states should not pressurise the private sector to interfere with the freedom of speech and expression in a manner that does not meet the condition of necessary and proportionate principles. Any request to take down content or access customer information must be based on validly enacted law, subject to oversight, and demonstrate necessary and proportionate means of achieving the aims laid down in Article 19(3) of the ICCPR.
Private Actors: The Special Rapporteur recommends that private actors develop and implement transparent human rights assessment procedures, and develop policies keeping in mind their human rights impact. Apart from this, private entities should integrate commitments to the freedom of expression into internal processes and ensure the “greatest possible transparency”.
International Organisations: The report recommends that organisations make resources and educational material on internet governance publicly accessible. The Special Rapporteur also recommends encouraging meaningful civil society participation in multi-stakeholder policy making and standard setting processes, with an increased focus on sensitivity to human rights.

CIS Comments

CIS strongly agrees with the expansion of the Special Rapporteur’s scope that this report represents. He is no longer looking solely at states but at the private sector too.
CIS also notes that competition is an important aspect of the freedom of expression, but has not been discussed in this report. Viable alternatives to platforms, networks, internet service providers etc., will ensure a healthy, competitive marketplace, and will have a positive impact in resolving the issues identified above.
Our work has called for maintaining a balanced approach to liability of intermediaries for their users’ actions, since excessive liability or strict liability would lead to over-caution and removal of legitimate speech, while having no liability at all would make it difficult to act effectively against harmful speech, e.g., revenge porn.
CIS’ work on network neutrality has highlighted the importance of neutrality for freedom of speech, and has advocated for an evidence-based approach that ensures there is neither under-regulation, nor over-regulation. The Special Rapporteur suggests that ‘Zero-Rating’ practices always violate Net Neutrality, but the majority of the definitions of Net Neutrality proposed by academics and followed by regulators across the world often do not include Zero-Rating. Similarly, he suggests that the main exception for Zero-Rating is for areas genuinely lacking access to the Internet, whereas the potential for some forms of Zero-Rating to further freedom of expression, especially of minorities, even in areas with access to the Internet, provides sufficient reason for the issue to merit greater debate.

(Pranesh Prakash was invited by the Special Rapporteur to provide his views and took part in a meeting that contributed to this report)

For more details visit https://cis-india.org/internet-governance/un-special-rapporteur-report-on-freedom-of-expression-and-the-private-sector-a-significant-step-forward