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The Legal Validity of Internet Bans: Part II
https://cis-india.org/internet-governance/blog/the-legal-validity-of-internet-bans-part-ii
<b>In recent months, there has been a spree of bans on access to Internet services in Indian states, for different reasons. The State governments have relied on Section 144, Code of Criminal Procedure 1973 to institute such bans. Despite a legal challenge, the Gujarat High Court found no infirmity in this exercise of power in a recent order. We argue that it is Section 69A of the Information Technology Act 2000, and the Website Blocking Rules, which set out the legal provision and procedure empowering the State to block access to the Internet (if at all it is necessary), and not Section 144, CrPC.</b>
<p style="text-align: justify; "><span>As we saw earlier, the Gujarat High Court held that Section 144, CrPC empowers the State apparatus to order blocking of access to data services. According to the Court, Section 69A, IT Act can be used to block certain websites, while under Section 144, CrPC, the District Magistrate can direct telecom companies like Vodafone and Airtel, who</span><i> </i><span>extend the facility of Internet access. In effect, the High Court agreed with the State government’s argument that the scope of Section 69A, IT Act covers only blocking of </span><i>certain </i><span>websites, while Section 144, CrPC grants a wider power.</span></p>
<p style="text-align: justify; ">This is what the Court said (para 9 of the <a href="http://indiankanoon.org/doc/29352399/">order</a>):</p>
<p style="text-align: justify; ">“<i>If the comparison of both the sections in the field of operations is made, barring certain minor overlapping more particularly for public order </i>[sic]<i>, one can say that the area of operation of Section 69A is not the same as that of Section 144 of the Code. <span>Section 69A may in a given case also be exercised for blocking certain websites</span>, whereas under <span>Section 144 of the Code, directions may be issued to certain persons who may be the source for extending the facility of internet access</span>. Under the circumstances, we do not find that the contention raised on behalf of the petitioner that the resort to only Section 69A was available and exercise of power under Section 144 of the Code was unavailable, can be accepted.</i>” (emphases ours)</p>
<p style="text-align: justify; ">We submit that the High Court’s reasoning failed to examine the scope of Section 69A, IT Act thoroughly. Section 69A does, in fact, empower the government to order blocking of access to data services, and it is a special law. Importantly, it sets forth a procedure that State governments, union territories and the Central Governments must follow to order blocks on websites or data services.</p>
<h3 style="text-align: justify; ">I. Special Law Prevails Over General Law</h3>
<p style="text-align: justify; ">The IT Act, 2000 is a special law dealing with matters relating to the Internet, including offences and security measures. The CrPC is a general law of criminal procedure.</p>
<p style="text-align: justify; ">When a special law and a general law cover the same subject, then the special law supersedes the general law. This is a settled legal principle. Several decisions of the Supreme Court attest to this fact. To take an example, in <a href="http://www.asianlii.org/in/cases/cen/INSC/2010/526.html"><i>Maya Mathew </i>v. <i>State of Kerala</i></a>, (2010) 3 SCR 16 (18 February 2010), when there was a contention between the Special Rules for Kerala State Homoeopathy Services and the general Rules governing state and subordinate services. The Supreme Court held that when a special law and a general law both govern a matter, the Court should try to interpret them harmoniously as far as possible. But if the intention of the legislature is that one law should prevail over another, and this intention is made clear expressly or impliedly, then the Court should give effect to this intention.</p>
<p style="text-align: justify; ">On the basis of this principle, let’s take a look at the IT Act, 2000. <a href="http://cybercrime.planetindia.net/ch13_2008.htm">Section 81, IT Act</a> expressly states that the provisions of the IT Act shall have overriding effect, notwithstanding anything inconsistent with any other law in force. Moreover, in the <a href="http://cybercrime.planetindia.net/statement-objects-foritaa-2006.htm">Statement of Objects and Reasons</a> of the IT (Amendment) Bill, 2006, the legislature clearly notes that amendments inserting offences and security measures into the IT Act are necessary given the proliferation of the Internet and e-transactions, and the rising number of offences. These indicate expressly the legislature’s intention for the IT Act to prevail over general laws like the CrPC in matters relating to the Internet.</p>
<p style="text-align: justify; ">Now, we will examine whether the IT Act empowers the Central and State governments to carry out complete blocks on access to the Internet or data services, in the event of emergencies. If the IT Act does cover such a situation, then the CrPC should not be used to block data services. Instead, the IT Act and its Rules should be invoked.</p>
<h3 style="text-align: justify; "><strong>II. Section 69A, IT Act Allows Blocks on Internet Access</strong></h3>
<p style="text-align: justify; ">Section 69A(1), IT Act says:</p>
<p style="text-align: justify; ">“Where the Central Government or any of its officer specially authorised by it in this behalf is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above, it may subject to the provisions of sub-section (2) for reasons to be recorded in writing, by order, direct any agency of the Government or intermediary to block for <span>access</span> by the public or cause to be blocked for access by the public any<span> information </span>generated, transmitted, received, stored or hosted in any <span>computer resource</span>.” (<i>emphasis ours</i>)</p>
<p style="text-align: justify; ">Essentially, Section 69A says that the government can block (or cause to be blocked) for access by the public, any information<i> </i>generated, transmitted, etc. in any computer resource, if the government is satisfied that such a measure is in the interests of public order.</p>
<p style="text-align: justify; "><span>Does this section allow the government to institute bans on Internet access in Gujarat? To determine this, we will examine each underlined term from above.</span></p>
<p style="padding-left: 90px; text-align: justify; "><strong><i>Access</i></strong>: <a href="http://indiankanoon.org/doc/1890726/">Section 2(1)(a)</a>, IT Act defines access as “...<i><span>gaining entry into</span></i>, instructing or communicating with… resources of a <i><span>computer</span></i>, <i><span>computer system</span></i> or <i><span>computer network</span></i>”.</p>
<p style="padding-left: 90px; text-align: justify; "><strong><i>Computer resource</i></strong>: <a href="http://indiankanoon.org/doc/1768009/">Section 2(1)(k)</a>, IT Act defines computer resource as “computer, computer system, computer network...”</p>
<p style="padding-left: 90px; text-align: justify; "><strong><i>Information</i></strong>: <a href="http://indiankanoon.org/doc/146402352/">Section 2(1)(v)</a>, IT Act defines information as “includes… data, message, text, images, sound, voice...”</p>
<p style="text-align: justify; ">So ‘blocking for access’ under Section 69A includes preventing gaining entry or communicating with the resources of a computer, computer system or computer network, and it includes blocking communication of data, message, text, images, sound, etc. Now two questions arise:</p>
<p style="text-align: justify; ">(1) Do 2G and 3G services, broadband and Wifi fall within the definition of ‘computer network’?</p>
<p style="padding-left: 90px; text-align: justify; "><strong><i>Computer network</i></strong>: <a href="http://indiankanoon.org/doc/29924/">Section 2(1)(j)</a>, IT Act defines computer network as “inter-connection of one or more computers or computer systems <i><span>or communication device</span></i>…” by “...use of satellite, microwave, <i><span>terrestrial line, wire, wireless or other communication media</span></i>”.</p>
<p style="text-align: justify; ">(2) Do mobile phones that can connect to the Internet (we say smartphones for simplicity) qualify as fall within the definition of ‘computer resource’?</p>
<p style="padding-left: 90px; text-align: justify; "><strong><i>Communication device</i></strong><span>: </span><a href="http://indiankanoon.org/doc/59759075/">Section 2(1)(ha)</a><span>, IT Act defines communication device as “</span><i>cell phones</i><span>, personal digital assistance or combination of both or any other device </span><i>used to communicate, send or transmit any text, video, audio or image</i><span>”.</span></p>
<p style="text-align: justify; ">So a cell phone is a communication device. A computer network is an inter-connection of communication devices by wire or wireless connections. A computer network is a computer resource also. Blocking of access under Section 69A, IT Act includes, therefore, gaining entry into or communicating with the resources of a computer network, which is an interconnection of communication devices, including smartphones. Add to this, the fact that <i>any information</i> (data, message, text, images, sound, voice) can be blocked, and the conclusion seems clear.</p>
<p style="text-align: justify; "><span>The power to block access to Internet services (including data services) can be found within Section 69A, IT Act itself, the special law enacted to cover matters relating to the Internet. Not only this, the IT Act envisages emergency situations when blocking powers may need to be invoked.</span></p>
<h3 style="text-align: justify; ">III. Section 69A Permits Blocking in Emergency Situations</h3>
<p style="text-align: justify; ">Section 69A, IT Act doesn’t act in isolation. The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (“<strong>Blocking Rules</strong>”) operate together with Section 69A(1).</p>
<p style="text-align: justify; ">Rule 9 of the Blocking Rules deals with blocking of information in cases of emergency. It says that in cases of emergency, when “<i>no delay is acceptable</i>”, the Designated Officer (DO) shall examine the request for blocking. If it is within the scope of Section 69A(1) (i.e., within the grounds of public order, etc.), then the DO can submit the request to the Secretary, Department of Electronics and Information Technology (DeitY). If the Secretary is satisfied of the need to block during the emergency, then he may issue a reasoned order for blocking, in writing as an interim measure. The intermediaries do not need to be heard in such a situation.</p>
<p style="text-align: justify; ">After a blocking order is issued during an urgent situation, the DO must bring the blocking request to the Committee for Examination of Request constituted under Rule 7, Blocking Rules. There is also a review process, by a Review Committee that meets every two months to evaluate whether blocking directions are in compliance with Section 69A(1) [Rule 14].</p>
<p style="text-align: justify; ">We submit, therefore, that the Gujarat High Court erred in holding that Section 144, CrPC is the correct legal provision to enable Internet bans. Not only does Section 69A, IT Act cover blocking of access to Internet services, but it also envisages blocking in emergency situations. As a special law for matters surrounding the Internet, Section 69A should prevail over the general law provision of Section 144, CrPC.</p>
<p style="text-align: justify; "> </p>
<p style="text-align: justify; "><strong>Acknowledgements</strong><span style="text-align: justify; ">: We would like to thank Pranesh Prakash, Japreet Grewal, Sahana Manjesh and Sindhu Manjesh for their invaluable inputs in clarifying arguments and niggling details for these two posts.</span></p>
<hr size="1" style="text-align: justify; " width="33%" />
<p style="text-align: justify; ">Geetha Hariharan is a Programme Officer with Centre for Internet & Society. Padmini Baruah is in her final year of law at the National Law School of India University, Bangalore (NLSIU) and is an intern at CIS.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/the-legal-validity-of-internet-bans-part-ii'>https://cis-india.org/internet-governance/blog/the-legal-validity-of-internet-bans-part-ii</a>
</p>
No publisherGeetha Hariharan and Padmini BaruahSocial MediaFreedom of Speech and ExpressionInternet Access69ASection 144Article 19(1)(a)Blocking2015-10-08T11:17:24ZBlog EntryThe Legal Validity of Internet Bans: Part I
https://cis-india.org/internet-governance/blog/the-legal-validity-of-bans-on-internet-part-i
<b>In recent months, there has been a spree of bans on access to Internet services in Indian states, for different reasons. The State governments have relied on Section 144, Code of Criminal Procedure 1973 to institute such bans. Despite a legal challenge, the Gujarat High Court found no infirmity in this exercise of power in a recent order. We argue that it is Section 69A of the Information Technology Act 2000, and the Website Blocking Rules, which set out the legal provision and procedure empowering the State to block access to the Internet (if at all it is necessary), and not Section 144, CrPC.</b>
<p> </p>
<p> </p>
<p dir="ltr" style="text-align: justify; "><span>In recent months, there has been a spree of bans on access to Internet services in India states, for different reasons. In Gujarat, the State government banned access to mobile Internet (data services) citing breach of peace during the </span><a href="http://www.ibtimes.co.in/gujarat-rioting-reported-several-parts-ahmedabad-patel-rally-event-turns-violent-644192">Hardik Patel agitation</a><span>. In Godhra in Gujarat, mobile Internet was banned as a precautionary measure </span><a href="http://indianexpress.com/article/india/gujarat/gujarat-internet-services-in-godhra-suspended-for-24-hours/">during Ganesh <i>visarjan</i></a><span>. In Kashmir, mobile Internet was banned for three days or more because the government feared that people would share pictures of </span><a href="http://indianexpress.com/article/india/india-news-india/jk-govt-plans-three-day-mobile-internet-ban-in-valley/">slaughter of animals during Eid</a><span> on social media, which would spark unrest across the state.</span></p>
<p style="text-align: justify; ">Can State or Central governments impose a ban on Internet access? If the State or its officials anticipate disorder or a disturbance of ‘public tranquility’, can Internet access through mobiles be banned? According to a <a href="http://indiankanoon.org/doc/29352399/">recent order of the Gujarat High Court</a>: Yes; <a href="http://indiankanoon.org/doc/930621/">Section 144 of the Code of Criminal Procedure, 1973</a> (<strong>“CrPC”</strong>) empowers the State government machinery to impose a temporary ban.</p>
<p style="text-align: justify; ">But the Gujarat High Court’s order neglects the scope of Section 69A, IT Act, and wrongly finds that the State government can exercise blocking powers under Section 144, CrPC. In this post and the next, we argue that it is <a href="http://indiankanoon.org/doc/10190353/">Section 69A of the Information Technology Act, 2000</a> (“<strong>IT Act</strong>”) which is the legal provision empowering the State to block access to the Internet (including data services), and not Section 144, CrPC. Section 69A covers blocks to Internet access, and since it is a special law dealing with the Internet, it prevails over the general Code of Criminal Procedure.</p>
<p style="text-align: justify; ">Moreover, the blocking powers must stay within constitutional boundaries prescribed in, <i>inter alia</i>, Article 19 of the Constitution. Blocking powers are, therefore, subject to the widely-accepted tests of legality (foresight and non-arbitrariness), legitimacy of the grounds for restriction of fundamental rights and proportionality, calling for narrowly tailored restrictions causing minimum disruptions and/or damage.</p>
<p style="text-align: justify; "><span>In </span><strong>Section I </strong><span>of this post, we set out a brief record of the events that preceded the blocking of access to data services (mobile Internet) in several parts of Gujarat. Then in </span><strong>Section II</strong><span>, we summarise the order of the Gujarat High Court, dismissing the petition challenging the State government’s Internet-blocking notification under Section 144, CrPC. In the next post, </span><span>we examine the scope of Section 69A, IT Act to determine whether it empowers the State and Central government agencies to carry out blocks on Internet access through mobile phones (i.e., data services such as 2G, 3G and 4G) under certain circumstances. We submit that Section 69A does, and that Section 144, CrPC cannot be invoked for this purpose. </span></p>
<h2 style="text-align: justify; ">I. The Patidar Agitation in Gujarat:</h2>
<p style="text-align: justify; ">This question arose in the wake of agitation in Gujarat in the Patel community. The Patels or Patidars are <a href="http://indianexpress.com/article/explained/simply-put-who-are-gujarats-patidars-and-why-are-they-angry/">politically and economically influential</a> in Gujarat, with several members of the community holding top political, bureaucratic and industrial positions. In the last couple of months, the Patidars have been agitating, demanding to be granted status as Other Backward Classes (OBC). OBC status would make the community eligible for reservations and quotas in educational institutions and for government jobs.</p>
<p style="text-align: justify; ">Towards this demand, the Patidars organised <a href="http://indianexpress.com/article/cities/ahmedabad/demand-for-obc-status-patidars-stir-spreads-to-saurashtra/">multiple rallies</a> across Gujarat in August 2015. The largest rally, called the <i>Kranti Rally</i>, <a href="http://m.ibnlive.com/news/politics/turmoil-brewing-in-gujarat-as-patel-community-demands-obc-status-hardik-patel-begins-indefinite-hunger-strike-1051104.html">was held</a> in Ahmedabad, Gujarat’s capital city, on August 25, 2015. Hardik Patel, a leader of the agitation, reportedly went on hunger strike seeking that the Patidars’ demands be met by the government, and was arrested as he did not have permission to stay on the rally grounds after the rally. While media reports vary, it is certain that <a href="http://www.ibtimes.co.in/gujarat-rioting-reported-several-parts-ahmedabad-patel-rally-event-turns-violent-644192">violence and agitation broke out</a> after the rally. <a href="http://timesofindia.indiatimes.com/india/Patidar-agitation-Uneasy-calm-in-violence-hit-Gujarat-death-toll-rises-to-10/articleshow/48699151.cms">Many were injured</a>, some lost their lives, property was destroyed, businesses suffered; the army was deployed and curfew imposed for a few days across the State.</p>
<p style="text-align: justify; ">In addition to other security measures, the State government also imposed a ban on mobile Internet services across different parts of Gujarat. Reportedly, Hardik Patel had called for a state-wide <i>bandh </i>over Whatsapp. <a href="http://www.ndtv.com/india-news/after-clashes-over-hardik-patels-detention-no-whatsapp-in-gujarat-1211058?pfrom=home-lateststories">The police cited</a> “<i>concerns of rumour-mongering and crowd mobilisation through Whatsapp</i>” as a reason for the ban, which was instituted under <a href="http://indiankanoon.org/doc/930621/">Section 144, Code of Criminal Procedure, 1973</a> (<strong>“CrPC”</strong>). In most of Gujarat, the ban lasted six days, from August 25 to 31, 2015, <a href="http://www.ibtimes.co.in/gujarat-patel-agitation-ban-mobile-internet-whatsapp-lifted-ahmedabad-644924">while it continued</a> in Ahmedabad and Surat for longer.<span> </span></p>
<h2 style="text-align: justify; ">II. The Public Interest Litigation:</h2>
<p style="text-align: justify; ">A public interest petition was filed before the Gujarat High Court, challenging the mobile Internet ban. Though the petition was dismissed at the preliminary stage by Acting Chief Justice Jayant Patel and Justice Anjaria by an <a href="http://indiankanoon.org/doc/29352399/">oral order</a> delivered on September 15, 2015, the legal issues surrounding the ban are important and the order calls for some reflection.</p>
<p style="text-align: justify; ">In the PIL, the petitioner prayed that the Gujarat High Court declare that the notification under Section 144, CrPC, which blocked access to mobile Internet, is “void <i>ab initio</i>, <i>ultra vires </i>and unconstitutional” (para 1 of the <a href="http://indiankanoon.org/doc/29352399/">order</a>). The ban, argued the petitioner, violated Articles 14, 19 and 21 of the Constitution by being arbitrary and excessive, violating citizens’ right to free speech and causing businesses to suffer extensive economic damage. In any event, the power to block websites was specifically granted by Section 69A, IT Act, and so the government’s use of Section 144, CrPC to institute the mobile Internet block was legally impermissible. Not only this, but the government’s ban was excessive in that mobile Internet services were <i>completely blocked</i>; had the government’s concerns been about social media websites like Whatsapp or Facebook, the government could have suspended only those websites using Section 69A, IT Act. And so, the petitioner prayed that the Gujarat High Court issue a writ “<i>permanently restraining the State government from imposing a complete or partial ban on access to mobile Internet/broadband services</i>” in Gujarat.</p>
<p style="text-align: justify; ">The State Government saw things differently, of course. At the outset, the government argued that there was “<i>sufficient valid ground for exercise of power</i>” under Section 144, CrPC, to institute a mobile Internet block (para 4 of the <a href="http://indiankanoon.org/doc/29352399/">order</a>). Had the blocking notification not been issued, “<i>peace could not have been restored with the other efforts made by the State for the maintenance of law and order</i>”. The government stressed that Section 144, CrPC notifications were generally issued as a “last resort”, and in any case, the Internet had not been shut down in Gujarat; broadband and WiFi services continued to be active throughout. Since the government was the competent authority to evaluate law-and-order situations and appropriate actions, the Court ought to dismiss the petition, the State prayed.</p>
<p style="text-align: justify; ">The Court agreed with the State government, and dismissed the petition without issuing notice (para 9 of the <a href="http://indiankanoon.org/doc/29352399/">order</a>). The Court examined two issues in its order (very briefly):</p>
<ol style="text-align: justify; ">
<li>The scope and distinction between Section 144, CrPC and Section 69A, IT Act, and whether the invocation of Section 144, CrPC to block mobile Internet services constituted an arbitrary exercise of power;</li>
<li>The proportionality of the blocking notification (though the Court doesn’t use the term ‘proportionality’).</li>
</ol>
<p><span style="text-align: justify; ">We will examine the Court’s reading of Section 69A, IT Act and Section 144, CrPC, to see whether their fields of operation are in fact different.</span></p>
<p> </p>
<p><strong style="text-align: justify; ">Acknowledgements</strong><span style="text-align: justify; ">: We would like to thank Pranesh Prakash, Japreet Grewal, Sahana Manjesh and Sindhu Manjesh for their invaluable inputs in clarifying arguments and niggling details for these two posts.</span></p>
<hr size="1" style="text-align: justify; " width="33%" />
<p style="text-align: justify; "><span>Geetha Hariharan is a Programme Officer with Centre for Internet & Society. Padmini Baruah is in her final year of law at the National Law School of India University, Bangalore (NLSIU) and is an intern at CIS.</span></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/the-legal-validity-of-bans-on-internet-part-i'>https://cis-india.org/internet-governance/blog/the-legal-validity-of-bans-on-internet-part-i</a>
</p>
No publisherGeetha Hariharan and Padmini BaruahSocial MediaFreedom of Speech and ExpressionInternet Access69ASection 144Article 19(1)(a)Blocking2015-10-08T11:18:34ZBlog EntryThe Constitutionality of Indian Surveillance Law: Public Emergency as a Condition Precedent for Intercepting Communications
https://cis-india.org/internet-governance/blog/the-constitutionality-of-indian-surveillance-law
<b>Bedavyasa Mohanty analyses the nuances of interception of communications under the Indian Telegraph Act and the Indian Post Office Act. In this post he explores the historical bases of surveillance law in India and examines whether the administrative powers of intercepting communications are Constitutionally compatible.</b>
<h3>Introduction</h3>
<p style="text-align: justify; ">State authorised surveillance in India derives its basis from two colonial legislations; §26 of the Indian Post Office Act, 1898 and §5 of the Telegraph Act, 1885 (hereinafter the Act) provide for the interception of postal articles<a href="#_ftn1" name="_ftnref1">[1]</a> and messages transmitted via telegraph<a href="#_ftn2" name="_ftnref2">[2]</a> respectively. Both of these sections, which are analogous, provide that the powers laid down therein can only be invoked on the occurrence of a public emergency or in the interest of public safety. The task of issuing orders for interception of communications is vested in an officer authorised by the Central or the State government. This blog examines whether the preconditions set by the legislature for allowing interception act as adequate safeguards. The second part of the blog analyses the limits of discretionary power given to such authorised officers to intercept and detain communications.</p>
<p style="text-align: justify; ">Surveillance by law enforcement agencies constitutes a breach of a citizen’s Fundamental Rights of privacy and the Freedom of Speech and Expression. It must therefore be justified against compelling arguments against violations of civil rights. Right to privacy in India has long been considered too ‘broad and moralistic’<a href="#_ftn3" name="_ftnref3">[3]</a> to be defined judicially. The judiciary, though, has been careful enough to not assign an unbound interpretation to it. It has recognised that the breach of privacy has to be balanced against a compelling public interest <a href="#_ftn4" name="_ftnref4">[4]</a> and has to be decided on a careful examination of the facts of a certain case. In the same breath, Indian courts have also legitimised surveillance by the state as long as such surveillance is not illegal or unobtrusive and is within bounds <a href="#_ftn5" name="_ftnref5">[5]</a>. While determining what constitutes legal surveillance, courts have rejected “prior judicial scrutiny” as a mandatory requirement and have held that administrative safeguards are sufficient to legitimise an act of surveillance. <a href="#_ftn6" name="_ftnref6">[6]</a></p>
<h3>Conditions Precedent for Ordering Interception</h3>
<p style="text-align: justify; ">§§5(2) of the Telegraph Act and 26(2) of the Indian Post Office Act outline a two tiered test to be satisfied before the interception of telegraphs or postal articles. The first tier consists of sine qua nons in the form of an “occurrence of public emergency” or “in the interests of public safety.” The second set of requirements under the provisions is “the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence.” While vesting the power of interception in administrative officials, the sections contemplate a legal fiction where a public emergency exists and it is in the interest of sovereignty, integrity, security of the state or for the maintenance of public order/ friendly relations with foreign states. The term “public emergency,” however, has not been clearly defined by the legislature or by the courts. It thus vests arbitrary powers in a delegated official to order the interception of communication violating one’s Fundamental Rights.</p>
<h3>Tracing the History of the Expression “Public Emergency”</h3>
<p style="text-align: justify; ">The origins of the laws governing interception can be traced back to English laws of the late 19th Century; specifically one that imposed a penalty on a postal officer who delayed or intercepted a postal article.<a href="#_ftn7" name="_ftnref7">[7]</a> This law guided the drafting of the Indian Telegraph Act in 1885 that legitimised interception of communications by the state. The expression “public emergency” appeared in the original Telegraph Act of 1885 and has been adopted in that form in all subsequent renderings of provisions relating to interception. Despite the contentious and vague nature of the expression, no consensus regarding its interpretation seems to have been arrived at. One of the first post-independence analyses of this provision was undertaken by the Law Commission in 1968. The 38th Law Commission in its report on the Indian Post Office Act, raised concerns about the constitutionality of the expression. The Law Commission was of the opinion that the term not having been defined in the constitution cannot serve as a reasonable ground for suspension of Fundamental Rights.<a href="#_ftn8" name="_ftnref8">[8]</a> It further urged that a state of public emergency must be of such a nature that it is not secretive and is apparent to a reasonable man.<a href="#_ftn9" name="_ftnref9">[9]</a> It thus challenged the operation of the act in its then current form where the determination of public emergency is the discretion of a delegated administrative official. The Commission, in conclusion, implored the legislature to amend the laws relating to interception to bring them in line with the Constitution. This led to the Telegraph (Amendment) Act of 1981. Questions regarding the true meaning of the expression and its potential misuse were brought up in both houses of the Parliament during passing of the amendment. The Law Ministry, however, did not issue any additional clarifications regarding the terms used in the Act. Instead, the Government claimed that the expressions used in the Act are “exactly those that are used in the Constitution.” <a href="#_ftn10" name="_ftnref10">[10]</a> It may be of interest to note here that the Constitution of India, neither uses nor defines the term “public emergency.” Naturally, it is not contemplated as a ground for reasonably restricting Fundamental Rights provided under Article 19(1). <a href="#_ftn11" name="_ftnref11">[11]</a> Similarly, concerns regarding the potential misuse of the powers were defended with the logically incompatible and factually inaccurate position that the law had not been misused in the past.<a href="#_ftn12" name="_ftnref12">[12]</a></p>
<h3>Locating “Public Emergency” within a Proclamation of Emergency under the Constitution (?)</h3>
<p style="text-align: justify; ">Public emergency in not equivalent to a proclamation of emergency under Article 352 of the Constitution simply because it was first used in legislations over six decades before the drafting of the Indian Constitution began. Besides, orders for interception of communications have also been passed when the state was not under a proclamation of emergency. Moreover, public emergency is not the only prerequisite prescribed under the Act. §5(2) states that an order for interception can be passed either on the occurrence of public emergency or in the interest of public safety. Therefore, the thresholds for the satisfaction of both have to be similar or comparable. If the threshold for the satisfaction of public emergency is understood to be as high as a proclamation of emergency then any order for interception can be passed easily under the guise of public safety. The public emergency condition will then be rendered redundant. Public emergency is therefore a condition that is separate from a proclamation of emergency.</p>
<p style="text-align: justify; ">In a similar vein the Supreme Court has also clarified<a href="#_ftn13" name="_ftnref13">[13]</a> that terms like “public emergency” and “any emergency,” when used as statutory prerequisites, refer to the occurrence of different kinds of events. These terms cannot be equated with one another merely on the basis of the commonality of one word.</p>
<p style="text-align: justify; ">The Supreme Court in Hukam Chand v. Union of India,<a href="#_ftn14" name="_ftnref14">[14]</a> correctly stated that the terms public emergency and public safety must “take colour from each other.” However, the court erred in defining public emergency as a situation that “raises problems concerning the interest of the public safety, the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or the prevention of incitement to the commission of an offence.” This cyclic definition does not lend any clarity to the interpretive murk surrounding the term. The Act envisages public emergency as a sine qua non that must exist prior to a determination that there is a threat to public order and sovereignty and integrity of the state. The court’s interpretation on the other hand would suggest that a state of public emergency can be said to exist only when public order, sovereignty and integrity of the state are already threatened. Therefore, while conditions precedent exist for the exercise of powers under §5(2) of the Act, there are no objective standards against which they are to be tested.</p>
<h3>Interpretation of Threshold Requirements</h3>
<p style="text-align: justify; ">A similar question arose before the House of Lords in Liversidge v. Anderson.<a href="#_ftn15" name="_ftnref15">[15]</a> The case examined the vires of an Act that vested an administrative authority with the conditional power to detain a person if there was reasonable cause to believe that the person was of hostile origin. Therein, Lord Atkin dissenting with the majority opinion stated in no unclear terms that power vested in the secretary of state was conditional and not absolute. When a conditional authority is vested in an administrative official but there aren’t any prescriptive guidelines for the determination of the preconditions, then the statute has the effect of vesting an absolute power in a delegated official. This view was also upheld by the Supreme Court in State of Madhya Pradesh v. Baldeo Prasad.<a href="#_ftn16" name="_ftnref16">[16]</a> The court was of the opinion that a statute must not only provide adequate safeguards for the protection of innocent citizens but also require the administrative authority to be satisfied as to the existence of the conditions precedent laid down in the statute before making an order. If the statute failed to do so in respect of any condition precedent then the law suffered from an infirmity and was liable to be struck down as invalid.<a href="#_ftn17" name="_ftnref17">[17]</a> The question of the existence of public emergency, therefore being left to the sole determination of an administrative official is an absolute and arbitrary power and is ultra vires the Constitution</p>
<p style="text-align: justify; ">Interestingly, in its original unamended form, §5 contained a provisio stating that a determination of public emergency was the sole authority of the secretary of state and such a finding could not be challenged before a court of law. It is this provision that the government repealed through the Telegraph (Amendment) Act of 1981 to bring it in line with Constitutional principles. The preceding discussion shows that the amendment did not have the effect of rectifying the law’s constitutional infirmities. Nonetheless, the original Telegraph Act and its subsequent amendment are vital for understanding the compatibility of surveillance standards with the Constitutional principles. The draconian provisio in the original act vesting absolute powers in an administrative official illustrates that the legislative intent behind the drafting of a 130 year law cannot be relied on in today’s context. Vague terms like public emergency that have been thoughtlessly adopted from a draconian law find no place in a state that seeks to guarantee to its citizens rights of free speech and expression.</p>
<h3>Conclusion</h3>
<p style="text-align: justify; ">Interception of communications under the Telegraph Act and the Indian Post office act violate not only one’s privacy but also one’s freedom of speech and expression. Besides, orders for the tapping of telephones violate not only the privacy of the individual in question but also that of the person he/she is communicating with. Considering the serious nature of this breach it is absolutely necessary that the powers enabling such interception are not only constitutionally authorised but also adequately safeguarded. The Fundamental Rights declared by Article 19(1) cannot be curtailed on any ground outside the relevant provisions of Cls. 2-6.<a href="#_ftn18" name="_ftnref18">[18]</a> The restrictive clauses in Cls. (2)-(6) of Article 19 are exhaustive and are to be strictly construed.<a href="#_ftn19" name="_ftnref19">[19]</a> Public emergency is not one of the conditions enumerated under Article 19 for curtailing fundamental freedoms. Moreover, it lacks adequate safeguards by vesting absolute discretionary power in a non-judicial administrative authority. Even if one were to ignore the massive potential for misuse of these powers, it is difficult to conceive that the interception provisions would stand a scrutiny of constitutionality.</p>
<p style="text-align: justify; ">Over the course of the last few years, India has been dangerously toeing the line that keeps it from turning into a totalitarian surveillance state. <a href="#_ftn20" name="_ftnref20">[20]</a> In 2011, India was the third most intrusive state<a href="#_ftn21" name="_ftnref21">[21]</a> with 1,699 requests for removal made to Google; in 2012 that number increased to 2529<a href="#_ftn22" name="_ftnref22">[22]</a>. The media is abuzz with reports about the Intelligence Bureau wanting Internet Service Providers to log all customer details <a href="#_ftn23" name="_ftnref23">[23]</a> and random citizens being videotaped by the Delhi Police for “looking suspicious.” It becomes essential under these circumstances to question where the state’s power ends and a citizens’ privacy begins. Most of the information regarding projects like the CMS and the CCTNS is murky and unconfirmed. But under the pretext of national security, government officials have refused to divulge any information regarding the kind of information included within these systems and whether any accountability measures exist. For instance, there have been conflicting opinions from various ministers regarding whether the internet would also be under the supervision of the CMS <a href="#_ftn24" name="_ftnref24">[24]</a>. Even more importantly, citizens are unaware of what rights and remedies are available to them in instances of violation of their privacy.</p>
<p style="text-align: justify; ">The intelligence agencies that have been tasked with handling information collected under these systems have not been created under any legislation and therefore not subject to any parliamentary oversight. Attempts like the Intelligence Services (Powers and Regulation) Bill, 2011 have been shelved and not revisited since their introduction. The intelligence agencies that have been created through executive orders enjoy vast and unbridled powers that make them accountable to no one<a href="#_ftn25" name="_ftnref25">[25]</a>. Before, vesting the Indian law enforcement agencies with sensitive information that can be so readily misused it is essential to ensure that a mechanism to check the use and misuse of that power exists. A three judge bench of the Supreme Court has recently decided to entertain a Public Interest Litigation aimed at subjecting the intelligence agencies to auditing by the Comptroller and Auditor General of India. But the PIL even if successful will still only manage to scratch the surface of all the wide and unbridled powers enjoyed by the Indian intelligence agencies. The question of the constitutionality of interception powers, however, has not been subjected to as much scrutiny as is necessary. Especially at a time when the government has been rumoured to have already obtained the capability for mass dragnet surveillance such a determination by the Indian courts cannot come soon enough.</p>
<div>
<hr />
<div id="ftn1">
<p style="text-align: justify; "><a href="#_ftnref1" name="_ftn1">[1]</a> Indian Post Office Act, 1898, § 26</p>
</div>
<div id="ftn2">
<p><a href="#_ftnref2" name="_ftn2">[2]</a> Indian Telegraph Act, 1885 § 5(2)</p>
</div>
<div id="ftn3">
<p><a href="#_ftnref3" name="_ftn3">[3]</a> PUCL v. Union of India, AIR 1997 SC 568</p>
</div>
<div id="ftn4">
<p><a href="#_ftnref4" name="_ftn4">[4]</a> Govind vs. State of Madhya Pradesh, (1975) 2 SCC 148</p>
</div>
<div id="ftn5">
<p><a href="#_ftnref5" name="_ftn5">[5]</a> Malak Singh vs. State Of Punjab & Haryana, AIR 1981 SC 760</p>
</div>
<div id="ftn6">
<p><a href="#_ftnref6" name="_ftn6">[6]</a> <i>Supra</i> note 3</p>
</div>
<div id="ftn7">
<p><a href="#_ftnref7" name="_ftn7">[7]</a> Law Commission, Indian Post Office Act, 1898 (38<sup>th</sup> Law Commission Report) para 84</p>
</div>
<div id="ftn8">
<p><a href="#_ftnref8" name="_ftn8">[8]</a> ibid</p>
</div>
<div id="ftn9">
<p><a href="#_ftnref9" name="_ftn9">[9]</a> id</p>
</div>
<div id="ftn10">
<p><a href="#_ftnref10" name="_ftn10">[10]</a> <i>Lok Sabha Debates</i> , Minister of Communications, Shri H.N. Bahuguna, August 9, 1972</p>
</div>
<div id="ftn11">
<p><a href="#_ftnref11" name="_ftn11">[11]</a> The Constitution of India, Article 358- Suspension of provisions of Article 19 during emergencies</p>
</div>
<div id="ftn12">
<p><a href="#_ftnref12" name="_ftn12">[12]</a> <i>Lok Sabha Debates</i> , Minister of Communications, Shri H.N. Bahuguna, August 9, 1972</p>
</div>
<div id="ftn13">
<p><a href="#_ftnref13" name="_ftn13">[13]</a> Hukam Chand v. Union of India, AIR 1976 SC 789</p>
</div>
<div id="ftn14">
<p><a href="#_ftnref14" name="_ftn14">[14]</a> ibid</p>
</div>
<div id="ftn15">
<p><a href="#_ftnref15" name="_ftn15">[15]</a> Liversidge v. Anderson [1942] A.C. 206</p>
</div>
<div id="ftn16">
<p><a href="#_ftnref16" name="_ftn16">[16]</a> State of M.P. v. Baldeo Prasad, AIR 1961 (SC) 293 (296)</p>
</div>
<div id="ftn17">
<p><a href="#_ftnref17" name="_ftn17">[17]</a> ibid</p>
</div>
<div id="ftn18">
<p><a href="#_ftnref18" name="_ftn18">[18]</a> Ghosh O.K. v. Joseph E.X. Air 1963 SC 812; 1963 Supp. (1) SCR 789</p>
</div>
<div id="ftn19">
<p><a href="#_ftnref19" name="_ftn19">[19]</a> Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305 (315); 1962 (3) SCR 842</p>
</div>
<div id="ftn20">
<p style="text-align: justify; "><a href="#_ftnref20" name="_ftn20">[20]</a> <i>See</i> Notable Observations- July to December 2012, Google Transparency Report, available at <a href="http://www.google.com/transparencyreport/removals/government/">http://www.google.com/transparencyreport/removals/government/</a> (last visited on July 2, 2014) (a 90% increase in Content removal requests by the Indian Government in the last year)</p>
</div>
<div id="ftn21">
<p style="text-align: justify; "><a href="#_ftnref21" name="_ftn21">[21]</a> Willis Wee, <i>Google Transparency Report: India Ranks as Third ‘Snoopiest’ Country</i>, July 6, 2011 available at <a href="http://www.techinasia.com/google-transparency-report-india/">http://www.techinasia.com/google-transparency-report-india/</a> (last visited on July 2, 2014)</p>
</div>
<div id="ftn22">
<p style="text-align: justify; "><a href="#_ftnref22" name="_ftn22">[22]</a> <i>See</i> Notable Observations- July to December 2012, Google Transparency Report, available at <a href="http://www.google.com/transparencyreport/removals/government/">http://www.google.com/transparencyreport/removals/government/</a> (last visited on July 2, 2014) (a 90% increase in Content removal requests by the Indian Government in the last year)</p>
</div>
<div id="ftn23">
<p style="text-align: justify; "><a href="#_ftnref23" name="_ftn23">[23]</a> Joji Thomas Philip, <i>Intelligence Bureau wants ISPs to log all customer details, </i>December 30, 2010 <a href="http://articles.economictimes.indiatimes.com/2010-12-30/news/27621627_1_online-privacy-internet-protocol-isps"> http://articles.economictimes.indiatimes.com/2010-12-30/news/27621627_1_online-privacy-internet-protocol-isps </a> (last visited on July 2, 2014)</p>
</div>
<div id="ftn24">
<p style="text-align: justify; "><a href="#_ftnref24" name="_ftn24">[24]</a> Deepa Kurup, <i>In the dark about ‘India’s Prism’</i> June 16, 2013 available at <a href="http://www.thehindu.com/sci-tech/technology/in-the-dark-about-indias-prism/article4817903.ece"> http://www.thehindu.com/sci-tech/technology/in-the-dark-about-indias-prism/article4817903.ece </a></p>
</div>
<div id="ftn25">
<p style="text-align: justify; "><a href="#_ftnref25" name="_ftn25">[25]</a> Saikat Dutta, We, The Eavesdropped May 3, 2010 available at <a href="http://www.outlookindia.com/article.aspx?265191">http://www.outlookindia.com/article.aspx?265191</a> (last visited on July 2, 2014)</p>
</div>
</div>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/the-constitutionality-of-indian-surveillance-law'>https://cis-india.org/internet-governance/blog/the-constitutionality-of-indian-surveillance-law</a>
</p>
No publisherbedaavyasaPrivacyInternet GovernanceSurveillancesurveillance technologiesSecurityArticle 19(1)(a)2014-08-04T04:52:42ZBlog EntryPerumal Murugan and the Law on Obscenity
https://cis-india.org/internet-governance/perumal-murugan-and-the-law-on-obscenity
<b></b>
<p style="text-align: justify; ">On July 5, 2016, the Madras High Court saved Perumal Murugan’s novel, <i>Mathorubhagan</i> from oblivion when it dismissed the claims against Murugan on the grounds of obscenity, spreading disharmony between communities, blasphemy, and defamation and upheld his freedom of expression in <i>S. Tamilselvan & Perumal Murugan versus Government of Tamil Nadu</i>. This judgment has received wide appreciation for its support for freedom of expression. What made it applause-worthy? Do we have reservations with the view of the High Court?</p>
<p style="text-align: justify; "><span>Murugan’s book is about a married couple, Kali and Ponna, who fail to have a child despite decades of their marriage. They succumb to social and familial pressures to allow Ponna (the wife) to participate in a sexual orgy (unrestrained sexual encounter involving many people) at a religious festival (the Vaikasi Car Festival) that takes place in Arthanareeswarar Temple, for begetting a child. The local community claimed that in the book, Murugan denigrated the Arthanareeswarar Temple, the deity, Lord Arthanareeswarar, festivities relating to Vaikasi Car Festival and the women of the Kongu Vellala Gounder community. Some sections of the community believed that the facts in the story were not true and found that the sexual mores associated with the community in the book were offensive.</span></p>
<p style="text-align: justify; "><span>The Court was required to evaluate, whether the novel was obscene (</span><i>Section 292 of Indian Penal Code, 1860 (IPC)</i><span>), offensive to the community (</span><i>Section 153A of IPC</i><span>) and the religion (</span><i>Section 295 of IPC</i><span>); and whether the State had the responsibility to protect the writer from mob violence on account of his controversial book. The Court held that the book was neither offensive nor did it hurt community or religious sentiments. The Court also held that the State had a positive obligation to protect Murugan against the mob. It would be useful to look at the analysis of the Court in drawing these conclusions and see if we completely agree with it.</span></p>
<ol style="text-align: justify; ">
<li>The Court relied on the standard for determining obscenity in <a href="https://indiankanoon.org/doc/195958005/"><i>Aveek Sarkar v. State of West Bengal</i></a> wherein, it was held that what is lascivious/appealing to the prurient interest/depraved or corrupt has to be tested using the contemporary ‘community standards. The Court was of the view that the novel was not offensive by the current mores (<i>para 150 and 151</i>). <span>The Court further relied on </span><a href="https://indiankanoon.org/doc/1191397/"><i>MF Hussain v. Rajkumar Pandey</i></a><span>, (</span><i>also decided by Justice Sanjay Kishan Kaul</i><span>) wherein it was held, that while evaluating obscenity in a work, “</span><i>the judge has to place himself in the position of the author in order to appreciate what the author really wishes to convey and thereafter, placing himself in the position of the reader in every age group in whose hand the book is likely to fall, arrive at a dispassionate conclusion</i><span>.”It is necessary to mention here that the community standards test has been criticised by scholars, worldwide, as it is difficult to divorce subjective morality of an individual and ascertain what those standards are. This indeterminacy interferes with the ability of judges to apply these standards. There is established scholarship that says that judges cannot divorce themselves from their subjectivities while evaluating obscenity in work of art or literature and may often reinforce the moral norms of the majority in the society thus crushing the moral standards of the minority. In India, we have a mixed bag of judgments that address the issue of obscenity. Seeing the difficulty in application of the community standards test, it is noteworthy that the ultimate fate of a book, painting or a film is dependent on the morality of an individual judge. In fact, the Court had asked a pertinent question in the judgment, “</span><i>Would it be desirable for the Courts to intervene or should it be left to the readers to learn for themselves what they think and feel of the issue in question?</i><span>” (</span><i>para 136</i><span>) However, it eventually reinforced these standards by applying the existing precedents on obscenity. </span><span>The Court added thatunder Section 292, it was required to first prove whether the novel was obscene at all and only if it was found to be obscene it should be tested within the parameters of exceptionsit would fall under. The Court found that the novel was not obscene. There was no need to evaluate its social character to save it from a ban. While drawing this conclusion, the Court stated that, “</span><i>sex, per se, was not treated as undesirable, but was an integral part right from the existence of civilization</i><span>” (</span><i>para 149</i><span>) and that “</span><i>in our society, we seem to be more bogged down by conservative Victorian philosophy rather than draw inspiration from our own literature and scriptures.</i><span>”The Court also said, “</span><i>there are different kinds of books available on the shelves of book stores to be read by different age groups from different strata. If you do not like a book, simply close it.</i><span>”</span><i>(para 148</i><span>) While this reflects a progressive view of the judges on sexual morality, we have reservations on court’s reliance on ancient literature to justify why sex and its depiction in art or literature is not obscene.</span></li>
<li><span>We appreciate the observations that the Court has made while determining whether the novel hurt community or religious sentiments. The Court has acknowledged the declining tolerance level of the society (</span><i>para 154</i><span>) and stated that “</span><i>any contra view or social thinking is met at times with threats or violent behaviour</i><span>” (</span><i>para 142</i><span>).</span></li>
<li>The Court addressed the issue of harassment of writers and artists at the hands of a mob and held that there should “<i>be a presumption in favour of free speech and expression as envisaged under Article 19(1)(a) of the Constitution of India</i>” and emphasized the need for the State to protect those who suffer from hostility of several sections of a society as a consequence of holding a different view (<i>para 175</i>).Citing <i>MF Hussain v. Rajkumar Pandey</i>, the Court said “<i>freedom of speech has no meaning if there is no freedom after speech.</i>”The Court has identified the problematic sphere of mob violence and how it affects freedom of expression. However, we do not agree with what the Court held subsequently. </li>
</ol>
<p style="padding-left: 30px; text-align: justify; "><span style="text-align: justify; ">Reproducing an extract of the judgment here, </span><span style="text-align: justify; ">“</span><i style="text-align: justify; ">There is bound to be a presumption in favour of free speech and expression as envisaged under Article 19(1)(a) of the Constitution of India unless a court of law finds it otherwise as falling within the domain of a reasonable restriction under Article 19(2) of the Constitution of India.” </i><span style="text-align: justify; ">(</span><i style="text-align: justify; ">para 184</i><span style="text-align: justify; ">) </span><span style="text-align: justify; ">The words, “</span><i style="text-align: justify; ">unless a court of law finds it otherwise as falling within the domain of a reasonable restriction under Article 19(2) of the Constitution of India.</i><span style="text-align: justify; ">” indicate that the judiciary has the power to determine whether a certain type of speech could be restricted under Article 19 (2) of the Constitution of India. This understanding is incorrect. </span><span style="text-align: justify; ">The language of Article 19 (2) makes it clear that speech could only be restricted by ‘law’ and judiciary cannot assume the authority to restrict speech. It has the authority to decide the applicability and the constitutionality of the law that restricts speech. The relevant part of Article 19 (2) is reproduced below for reference. </span><i style="text-align: justify; ">“</i><i style="text-align: justify; ">(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right….</i><span style="text-align: justify; ">” </span><span style="text-align: justify; ">The Court further acknowledged that </span><i style="text-align: justify; ">“the State and the police authorities would not be the best ones to judge such literary and cultural issues, which are best left to the wisdom of the specialists in the field and thereafter, if need be, the Courts”</i><span style="text-align: justify; "> (</span><i style="text-align: justify; ">para 181</i><span style="text-align: justify; ">). The Court thus issued directions to the Government </span><i style="text-align: justify; ">to constitute an expert body to deal with situations arising from such conflicts of views so that an independent opinion is forthcoming, keeping in mind the law evolved by the judiciary</i><span style="text-align: justify; ">(</span><i style="text-align: justify; ">para 181</i><span style="text-align: justify; ">)</span><i style="text-align: justify; ">. </i><span style="text-align: justify; ">There are concerns with this mandate of the Court; firstly, constituting an expert body to resolve conflict of views will not serve any purpose unless there are guidelines to evaluate work. It is difficult to dissociate subjectivity and ascertain objective standards for evaluating offensiveness of literary or artistic work. Secondly, reliance on expert opinion and then courts completely disregards existing law. Under Section 95 of the Code of Criminal Procedure,1973, the Government has the power to declare forfeiture of works which, it considers in violation of section 153A or section 153B or section 292 or section 293 or section 295A of the Indian Penal Code, 1860. The power to evaluate a piece of writing or other work has already been given to the government. The Court has created a parallel mechanism for evaluation by giving directions to constitute an expert panel. In the event this mechanism fails to resolve the conflict, it is suggested that courts would then be approached to address the matter. This is in complete disregard of the powers of the Government under Section 95.</span></p>
<p style="text-align: justify; "><span>In the Murugan judgment, the Court has attempted to provide a narrow interpretation of what is considered obscene, emphasized the need for the society to be more tolerant and for State to protect those members of the society who, on account of their views, suffer at the hands of an intolerant society. It is for these reasons, the judgment is, undoubtedly a sound precedent for protection of speech in India. However, it is concerning to see that in drawing these conclusions, the Court has reinforced vague legal standards of obscenity and in that regard, it remains yet another addition to the mixed bag of judgments.</span></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/perumal-murugan-and-the-law-on-obscenity'>https://cis-india.org/internet-governance/perumal-murugan-and-the-law-on-obscenity</a>
</p>
No publisherJapreet GrewalFreedom of Speech and ExpressionHate SpeechArticle 19(1)(a)Internet Governance2016-08-09T13:01:03ZBlog EntryOverview of the Constitutional Challenges to the IT Act
https://cis-india.org/internet-governance/blog/overview-constitutional-challenges-on-itact
<b>There are currently ten cases before the Supreme Court challenging various provisions of the Information Technology Act, the rules made under that, and other laws, that are being heard jointly. Advocate Gopal Sankaranarayanan who's arguing Anoop M.K. v. Union of India has put together this chart that helps you track what's being challenged in each case.</b>
<br />
<br />
<br />
<table class="tg" style="undefined;table-layout: fixed; border=">
<tr>
<th class="tg-s6z2">PENDING MATTERS</th>
<th class="tg-s6z2">CASE NUMBER</th>
<th class="tg-0ord">PROVISIONS CHALLENGED</th>
</tr>
<tr>
<td class="tg-4eph">Shreya Singhal v. Union of India</td>
<td class="tg-spn1">W.P.(CRL.) NO. 167/2012</td>
<td class="tg-zapm">66A</td>
</tr>
<tr>
<td class="tg-031e">Common Cause & Anr. v. Union of India</td>
<td class="tg-s6z2">W.P.(C) NO. 21/2013</td>
<td class="tg-0ord">66A, 69A & 80</td>
</tr>
<tr>
<td class="tg-4eph">Rajeev Chandrasekhar v. Union of India & Anr.</td>
<td class="tg-spn1">W.P.(C) NO. 23/2013</td>
<td class="tg-zapm">66A & Rules 3(2), 3(3), 3(4) & 3(7) of the Intermediaries Rules 2011</td>
</tr>
<tr>
<td class="tg-031e">Dilip Kumar Tulsidas Shah v. Union of India & Anr.</td>
<td class="tg-s6z2">W.P.(C) NO. 97/2013</td>
<td class="tg-0ord">66A</td>
</tr>
<tr>
<td class="tg-4eph">Peoples Union for Civil Liberties v. Union of India & Ors.</td>
<td class="tg-spn1">W.P.(CRL.) NO. 199/2013</td>
<td class="tg-zapm">66A, 69A, Intermediaries Rules 2011 (s.79(2) Rules) & Blocking of Access of Information by Public Rules 2009 (s.69A Rules)</td>
</tr>
<tr>
<td class="tg-031e">Mouthshut.Com (India) Pvt. Ltd. & Anr. v. Union of India & Ors.</td>
<td class="tg-s6z2">W.P.(C) NO. 217/2013</td>
<td class="tg-0ord">66A & Intermediaries Rules 2011</td>
</tr>
<tr>
<td class="tg-4eph">Taslima Nasrin v. State of U.P & Ors.</td>
<td class="tg-spn1">W.P.(CRL.) NO. 222/2013</td>
<td class="tg-zapm">66A</td>
</tr>
<tr>
<td class="tg-031e">Manoj Oswal v. Union of India & Anr.</td>
<td class="tg-s6z2">W.P.(CRL.) NO. 225/2013</td>
<td class="tg-0ord">66A & 499/500 Indian Penal Code</td>
</tr>
<tr>
<td class="tg-4eph">Internet and Mobile Ass'n of India & Anr. v. Union of India & Anr.</td>
<td class="tg-spn1">W.P.(C) NO. 758/2014</td>
<td class="tg-zapm">79(3) & Intermediaries Rules 2011</td>
</tr>
<tr>
<td class="tg-031e">Anoop M.K. v. Union of India & Ors.</td>
<td class="tg-s6z2">W.P.(CRL.) NO. 196/2014</td>
<td class="tg-0ord">66A, 69A, 80 & S.118(d) of the Kerala Police Act, 2011</td>
</tr>
</table>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/overview-constitutional-challenges-on-itact'>https://cis-india.org/internet-governance/blog/overview-constitutional-challenges-on-itact</a>
</p>
No publisherpraneshIT ActCourt CaseFreedom of Speech and ExpressionIntermediary LiabilityConstitutional LawCensorshipSection 66AArticle 19(1)(a)Blocking2014-12-19T09:01:50ZBlog EntryNo more 66A!
https://cis-india.org/internet-governance/blog/no-more-66a
<b>In a landmark decision, the Supreme Court has struck down Section 66A. Today was a great day for freedom of speech on the Internet! When Section 66A was in operation, if you made a statement that led to offence, you could be prosecuted. We are an offence-friendly nation, judging by media reports in the last year. It was a year of book-bans, website blocking and takedown requests. Facebook’s Transparency Report showed that next to the US, India made the most requests for information about user accounts. A complaint under Section 66A would be a ground for such requests.</b>
<p style="text-align: justify; ">Section 66A hung like a sword in the middle: Shaheen Dhada was arrested in Maharashtra for observing that Bal Thackeray’s funeral shut down the city, Devu Chodankar in Goa and Syed Waqar in Karnataka were arrested for making posts about Narendra Modi, and a Puducherry man was arrested for criticizing P. Chidambaram’s son. The law was vague and so widely worded that it was prone to misuse, and was in fact being misused.</p>
<p style="text-align: justify; ">Today, the Supreme Court struck down Section 66A in its judgment on a <a class="external-link" href="http://cis-india.org/internet-governance/blog/overview-constitutional-challenges-on-itact">set of petitions</a> heard together last year and earlier this year. Stating that the law is vague, the bench comprising Chelameshwar and Nariman, JJ. held that while restrictions on free speech are constitutional insofar as they are in line with Article 19(2) of the Constitution. Section 66A, they held, does not meet this test: The central protection of free speech is the freedom to make statements that “offend, shock or disturb”, and Section 66A is an unconstitutional curtailment of these freedoms. To cross the threshold of constitutional limitation, the impugned speech must be of such a nature that it incites violence or is an exhortation to violence. Section 66A, by being extremely vague and broad, does not meet this threshold. These are, of course, drawn from news reports of the judgment; the judgment is not available yet.</p>
<p style="text-align: justify; ">Reports also say that Section 79(3)(b) has been read down. Previously, any private individual or entity, and the government and its departments could request intermediaries to take down a website, without a court order. If the intermediaries did not comply, they would lose immunity under Section 79. The Supreme Court judgment states that both in Rule 3(4) of the Intermediaries Guidelines and in Section 79(3)(b), the "actual knowledge of the court order or government notification" is necessary before website takedowns can be effected. In effect, this mean that intermediaries <i>need not</i> act upon private notices under Section 79, while they can act upon them if they choose. This stops intermediaries from standing judge over what constitutes an unlawful act. If they choose not to take down content after receiving a private notice, they will not lose immunity under Section 79.</p>
<p style="text-align: justify; ">Section 69A, the website blocking procedure, has been left intact by the Court, despite infirmities such as a lack of judicial review and non-transparent operation. More updates when the judgment is made available.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/no-more-66a'>https://cis-india.org/internet-governance/blog/no-more-66a</a>
</p>
No publishergeethaCensorshipFreedom of Speech and ExpressionHomepageIntermediary LiabilityFeaturedChilling EffectSection 66AArticle 19(1)(a)Blocking2015-03-26T02:01:31ZBlog EntryFree Speech and Surveillance
https://cis-india.org/internet-governance/blog/free-speech-and-surveillance
<b>Gautam Bhatia examines the constitutionality of surveillance by the Indian state. </b>
<p style="text-align: justify; ">The Indian surveillance regime has been the subject of <a href="http://india.blogs.nytimes.com/2013/07/10/how-surveillance-works-in-india/?_php=true&_type=blogs&_r=0">discussion</a> for quite some time now. Its nature and scope is controversial. The Central Monitoring System, through which the government can obtain direct access to call records, appears to have the potential to be used for bulk surveillance, although official claims emphasise that it will only be implemented in a targeted manner. The <a href="http://timesofindia.indiatimes.com/tech/tech-news/Govt-to-launch-internet-spy-system-Netra-soon/articleshow/28456222.cms">Netra system</a>, on the other hand, is certainly about dragnet collection, since it detects the communication, via electronic media, of certain “keywords” (such as “attack”, “bomb”, “blast” and “kill”), no matter what context they are used in, and no matter who is using them.<span> </span></p>
<p style="text-align: justify; ">Surveillance is quintessentially thought to raise concerns about <i>privacy</i>. Over a <a href="http://indiankanoon.org/doc/845196/">series</a> of <a href="http://news.rediff.com/report/2010/apr/26/phone-tapping-what-1997-supreme-court-verdict-says.htm">decisions</a>, the Indian Supreme Court has read in the right to privacy into Article 21’s guarantee of the right to life and personal liberty. Under the Supreme Court’s (somewhat cloudy) precedents, privacy may only be infringed if there is a compelling State interest, and if the restrictive law is narrowly tailored – that is, it does not infringe upon rights to an extent greater than it needs to, in order to fulfill its goal. It is questionable whether bulk surveillance meets these standards.<span> </span></p>
<p style="text-align: justify; ">Surveillance, however, does not only involve privacy rights. It also implicated Article 19 – in particular, the Article 19(1)(a) guarantee of the freedom of expression, and the 19(1)(c) guarantee of the freedom of association.</p>
<p style="text-align: justify; "><span>Previously on this blog, we have discussed the “chilling effect” in relation to free speech. The chilling effect evolved in the context of defamation cases, where a combination of exacting standards of proof, and prohibitive damages, contributed to create a culture of self-censorship, where people would refrain from voicing even legitimate criticism for fear of ruinous defamation lawsuits. The chilling effect, however, is not restricted merely to defamation, but arises in free speech cases more generally, where vague and over-broad statutes often leave the border of the permitted and the prohibited unclear.</span></p>
<p style="text-align: justify; "><span>Indeed, a few years before it decided </span><i>New York Times v. Sullivan</i><span>, which brought in the chilling effect doctrine into defamation and free speech law, the American Supreme Court applies a very similar principle in a surveillance case. In </span><a href="http://supreme.justia.com/cases/federal/us/357/449/case.html"><i>NAACP v. Alabama</i></a><span>, the National Association for the Advancement of Coloured People (NAACP), which was heavily engaged in the civil rights movement in the American deep South, was ordered by the State of Alabama to disclose its membership list. NAACP challenged this, and the Court held in its favour. It specifically connected freedom of speech, freedom of association, and the impact of surveillance upon both:</span></p>
<p style="text-align: justify; "><i> “Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the “liberty” assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the</i><i> </i><i>effect of curtailing the freedom to associate is subject to the closest scrutiny… it is hardly a novel perception that <span>compelled disclosure</span> of affiliation with groups engaged in advocacy may constitute</i> [an]<i> effective a restraint on freedom of association… this Court has recognized the vital relationship between freedom to associate and privacy in one’s associations. <span>Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs</span>.”</i></p>
<p style="text-align: justify; "><i> </i></p>
<p style="text-align: justify; "><i> </i>In other words, if persons are not assured of privacy in their association with each other, they will tend to self-censor both who they associate with, and what they say to each other, especially when unpopular groups, who have been historically subject to governmental or social persecution, are involved. Indeed, this was precisely the <a href="https://www.aclu.org/national-security/aclu-v-clapper-challenge-nsa-mass-phone-call-tracking">argument</a> that the American Civil Liberties Union (ACLU) made in its constitutional challenge to PRISM, the American bulk surveillance program. In addition to advancing a Fourth Amendment argument from privacy, the ACLU also made a First Amendment freedom of speech and association claim, arguing that the knowledge of bulk surveillance had made – or at least, was likely to have made – politically unpopular groups wary of contacting it for professional purposes (the difficulty, of course, is that any chilling effect argument effectively requires proving a negative).<span> </span></p>
<p style="text-align: justify; ">If this argument holds, then it is clear that Articles 19(1)(a) and 19(1)(c) are <i>prima facie</i> infringed in cases of bulk – or even other forms of – surveillance. Two conclusions follow: <i>first</i>, that any surveillance regime needs statutory backing. Under <a href="http://indiankanoon.org/doc/493243/">Article 19(2),</a> reasonable restrictions upon fundamental rights can only be imposed by <i>law</i>, and not be executive fiat (the same argument applies to Article 21 as well).</p>
<p style="text-align: justify; ">Assuming that a statutory framework <i>is</i> brought into force, the crucial issue then becomes whether the restriction is a reasonable one, in service of one of the stated 19(2) interests. The relevant part of Article 19(2) permits reasonable restrictions upon the freedom of speech and expression “in the interests of… the security of the State [and] public order.” The Constitution does not, however, provide a test for determining when a restriction can be legitimately justified as being “in the interests of” the security of the State, and of public order. There is not much relevant precedent with respect to the first sub-clause, but there happens to be an extensive – although conflicted – jurisprudence dealing with the public order exception.</p>
<p style="text-align: justify; ">One line of cases – characterised by <a href="http://indiankanoon.org/doc/553290/"><i>Ramji Lal Modi v. State of UP</i></a><i> </i>and <a href="http://indiankanoon.org/doc/1475436/"><i>Virendra v. State of Punjab</i></a> – has held that the phrase “for the interests of” is of very wide ambit, and that the government has virtually limitless scope to make laws ostensibly for securing public order (this extends to prior restraint as well, something that Blackstone, writing in the 18<sup>th</sup> century, found to be illegal!). The other line of cases, such as <a href="http://indiankanoon.org/doc/1386353/"><i>Superintendent v. Ram Manohar Lohia</i></a> and <a href="http://www.indiankanoon.org/doc/341773/"><i>S. Rangarajan v. P. Jagjivan Ram</i></a>, have required the government to satisfy a stringent burden of proof. In <i>Lohia</i>, for instance, Ram Manohar Lohia’s conviction for encouraging people to break a tax law was reversed, the Court holding that the relationship between restricting free speech and a public order justification must be “proximate”. In <i>Rangarajan</i>, the Court used the euphemistic image of a “spark in a powder keg”, to characterise the degree of proximity required. It is evident that under the broad test of <i>Ramji Lal Modi</i>, a bulk surveillance system is likely to be upheld, whereas under the narrow test of <i>Lohia</i>, it is almost certain not to be.</p>
<p style="text-align: justify; ">Thus, if the constitutionality of surveillance comes to Court, three issues will need to be decided: <i>first</i>, whether Articles 19(1)(a) and 19(1)(c) have been violated. <i>Secondly</i> – and if so – whether the “security of the State” exception is subject to the same standards as the “public order” exception (there is no reason why it should not be). And <i>thirdly</i>, which of the two lines of precedent represent the correct understanding of Article 19(2)?</p>
<hr style="text-align: justify; " />
<p style="text-align: justify; "><span><i>Gautam Bhatia — @gautambhatia88 on Twitter — is a graduate of the National Law School of India University (2011), and has just received an LLM from the Yale Law School. He blogs about the Indian Constitution at <a class="moz-txt-link-freetext" href="http://indconlawphil.wordpress.com/">http://indconlawphil.wordpress.com</a>. Here at CIS, he blogs on issues of online freedom of speech and expression.</i></span></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/free-speech-and-surveillance'>https://cis-india.org/internet-governance/blog/free-speech-and-surveillance</a>
</p>
No publisherGautam BhatiaNetraPrivacyFreedom of Speech and ExpressionSurveillanceCensorshipCentral Monitoring SystemArticle 19(1)(a)2014-07-07T04:59:59ZBlog EntryFree Speech and Source Protection for Journalists
https://cis-india.org/internet-governance/blog/free-speech-and-source-protection-for-journalists
<b>Gautam Bhatia explores journalistic source protection from the perspective of the right to freedom of speech & expression. In this post, he articulates clearly the centrality of source protection to press freedoms, and surveys the differing legal standards in the US, Europe and India.</b>
<p style="text-align: justify; "><strong> </strong>In the <a href="https://cis-india.org/internet-governance/blog/free-speech-and-contempt-of-courts-2013-ii-article-19-1-a-and-indian-law" class="external-link">previous post</a>, we discussed Vincent Blasi’s pathological perspective on free speech. The argument forms part of a broader conception that Blasi calls the “checking value of the First Amendment”. Blasi argues that the most important role of free speech is to “check” government abuses and reveal to the public information that government wants to keep secret from them. Naturally, in this model – which is a specific application of the democracy-centred theory of free speech – the press and the media become the most important organs of a system of free expression.</p>
<p style="text-align: justify; ">In addition to the checking value of free speech, there is another consideration that is now acknowledged by Courts in most jurisdictions, including our Supreme Court. When we speak about the “right” to free speech, we do not just mean – as might seem at first glance – the right of <i>speakers</i> to speak unhindered. We also mean the rights of listeners and hearers to <i>receive </i>information. A classic example is the Indian Supreme Court’s opinion in <a href="http://www.indiankanoon.org/doc/304068/"><i>LIC v. Manubhai D. Shah</i></a>, which used Article 19(1)(a) to vest a right-of-reply in a person who had been criticised in a newspaper editorial, on the ground of providing a balanced account to readers. Furthermore, instruments like the ICCPR and the ECHR make this clear in the text of the free speech right as well. For instance, Article 19 of the ICCPR states that<i> “</i><i>everyone shall have the right to freedom of expression; this right shall include freedom to <span>seek, receive</span> and impart information and ideas of all kinds.”</i></p>
<p style="text-align: justify; ">In addition to the individual <i>right</i> to receive information and ideas, free speech need not be understood exclusively in the language of a right at all. Free speech also serves as a <i>public good</i> – that is to say, a society with a thriving system of free expression is, all things considered, better off than a society without it. The unique value that free speech serves, as a public good, is in creating an atmosphere of accountability and openness that goes to the heart of the constitutive ideals of modern liberal democracies. As Justice Hugo Black <a href="http://supreme.justia.com/cases/federal/us/326/1/case.html">noted</a>, a good system of free speech <i>“</i><i>rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.” </i>Unsurprisingly, he went on to add immediately after, that “<i>a free press is a condition of a free society</i>.”</p>
<p style="text-align: justify; ">If free speech is about the right to receive information, and about the public good of a society in which information circulates freely and widely, then the vehicles of information occupy a central position in any theory or doctrine about the scope of the constitutional right. In our societies, the press is perhaps the most important of those vehicles.<span> </span></p>
<p style="text-align: justify; ">Establishing the crucial role of the free press in free speech theory is important to understand a crucial issue that has largely gone unaddressed in Indian constitutional and statutory law: that of source-protection laws for journalists. A source-protection law exempts journalists from having to compulsorily reveal their sources when ordered to do so by government or by courts. Such exemptions form part of ordinary Indian statutory law: under the Indian Evidence Act, for example, communications between spouses are “privileged” – that is, inadmissible as evidence in Court.</p>
<p style="text-align: justify; ">The question came up before the US Supreme Court in <i>Branzburg v. Hayes</i>. In a 5-4 split, the majority ruled against an <span>unqualified</span> reporters’ privilege, that could be invoked in all circumstances. However, all the justices understood the importance of the issue. Justice White, writing for the majority, held that government must <i>“</i><i>convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest.” </i>Justice Powell’s concurring opinion emphasised that the balance must be struck on a case-to-case basis. Since <i>Branzburg</i>, there has been no federal legislation dealing with source protection. A number of states have, however, passed “shield laws”, albeit with broad national security exceptions.</p>
<p style="text-align: justify; ">Perhaps the reason for the American Supreme Court’s reticence lies in its reluctance – notwithstanding Justice Black’s ringing oratory – to place journalists on any kind of special pedestal above the rest of the public. The European Court of Human Rights, however, has felt no such compunctions. In <a href="http://www.5rb.com/case/goodwin-v-united-kingdom/"><i>Goodwin v. UK</i></a>, the ECHR made it clear that the press serves a crucial function as a “public watchdog” (a consistent theme in the ECHR’s jurisprudence). Compelled disclosure of sources would definitely have a chilling effect on the functioning of the press, since sources would be hesitant to speak – and journalists would be reluctant to jeopardise their sources – if it was easy to get a court order requiring disclosure. Consequently, the ECHR – which is normally hesitant to intervene in domestic matters, and accords a wide margin of appreciation to states, found the UK to be in violation of the Convention. Journalists could only be compelled to reveal their sources if there was an “<i>overriding requirement in the public interest</i>.”</p>
<p style="text-align: justify; ">Where both the United States and Europe have recognised the importance of source-protection, and the simple fact that <i>some</i> degree of source protection is essential if the press is to perform its checking – or watchdog – function effectively, Indian jurisprudence on the issue is negligible. The Law Commission has twice proposed some manner of a shield law, but no concrete action has been taken upon its recommendations.</p>
<p style="text-align: justify; ">In the absence of any law, Article 19(1)(a) could play a direct role in the matter. As argued at the beginning of this post, the Supreme Court has accepted the democracy-based justification for free speech, as well as the individual right to receive information. Both these arguments necessarily make the role of the press crucial, and the role of the press is dependant on maintaining the confidentiality of sources. Thus, there ought to be an Article 19(1)(a) right that journalists can invoke against compelled disclosure. If this is so, then any disclosure can only be required through law; and the law, in turn, must be a reasonable restriction in the interests of public order, which – in turn, has normally been given a narrow interpretation by the Supreme Court in cases such as <a href="http://indiankanoon.org/doc/1386353/"><i>Ram Manohar Lohia</i></a>.</p>
<p style="text-align: justify; ">It is unclear, however, whether the Courts will be sympathetic. As <a href="http://timesofindia.indiatimes.com/india/No-legal-cover-for-journalists-refusing-to-divulge-source/articleshow/12499518.cms">this</a> article points out, while the Supreme Court has yet to rule on this issue, various High Courts have ordered disclosure, seemingly without much concern for the free speech implications. One thing is evident though: <i>either </i>a strong shield law, <i>or</i> a definitive Supreme Court ruling, is required to fill the current vacuum that exists.</p>
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<p style="text-align: justify; "><span><i>Gautam Bhatia — @gautambhatia88 on Twitter — is a graduate of the National Law School of India University (2011), and has just received an LLM from the Yale Law School. He blogs about the Indian Constitution at <a class="moz-txt-link-freetext" href="http://indconlawphil.wordpress.com/">http://indconlawphil.wordpress.com</a>. Here at CIS, he blogs on issues of online freedom of speech and expression.</i></span></p>
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No publisherGautam BhatiaChecking ValueFreedom of Speech and ExpressionPress FreedomsJournalistic PrivilegeSource ProtectionChilling EffectArticle 19(1)(a)Journalistic Sources2014-06-19T20:10:28ZBlog EntryFree Speech and Civil Defamation
https://cis-india.org/internet-governance/blog/free-speech-and-civil-defamation
<b>Does defamation become a tool in powerful hands to suppress criticism? Gautam Bhatia examines the strict and unrealistic demands of defamation law, and concludes that defamation suits are a weapon to silence dissent and bad press. </b>
<p style="text-align: justify; "><b> </b>Previously on this blog, we have discussed one of the under-analysed aspects of Article 19(2) – contempt of court. In the last post, we discussed the checking – or “watchdog” – function of the press. There is yet another under-analysed part of 19(2) that we now turn to – one which directly implicates the press, in its role as public watchdog. This is the issue of defamation.</p>
<p style="text-align: justify; ">Unlike contempt of court – which was a last-minute insertion by Ambedkar, before the second reading of the draft Constitution in the Assembly – defamation was present in the restrictions clause since the Fundamental Rights Sub-Committee’s first draft, in 1947. Originally, it accompanied libel and slander, before the other two were dropped for the simpler “reasonable restrictions… in the interests of… defamation.” Unlike the other restrictions, which provoked substantial controversy, defamation did not provoke extended scrutiny by the Constituent Assembly.</p>
<p style="text-align: justify; "><span>In hindsight, that was a lapse. In recent years, defamation lawsuits have emerged as a powerful weapon against the press, used primarily by individuals and corporations in positions of power and authority, and invariably as a means of silencing criticism. For example, Hamish MacDonald’s </span><i>The Polyester Prince</i><span>, a book about the Ambanis, </span><a href="http://www.rediff.com/money/2000/jul/26dalal.htm">was unavailable</a><span> in Indian bookshops, because of threats of defamation lawsuits. In January, Bloomsbury </span><a href="http://www.dnaindia.com/mumbai/report-praful-patel-descent-of-air-india-and-the-killing-of-a-critical-book-1951582">withdrew</a><span> </span><i>The Descent of Air India</i><span>, which was highly critical of ex-Aviation Minister Praful Patel, after the latter filed a defamation lawsuit. Around the same time, Sahara initiated a 200 crore lawsuit against Tamal Bandyopadhayay, a journalist with </span><i>The Mint</i><span>, for his forthcoming book, </span><i>Sahara: The Untold Story</i><span>. Sahara even managed to get a stay order from a Calcutta High Court judge, who </span><a href="http://www.indiankanoon.org/doc/136055468/">cited</a><span> one paragraph from the book, and ruled that “</span><i>Prima facie, the materials do seem to show the plaintiffs in poor light</i><span>.” The issue has since been settled out of Court. Yet there is no guarantee that Bandyopadhyay would have won on merits, even with the absurd amount claimed as damages, given that a Pune Court awarded damages of </span><i>Rs. 100 crores </i><span>to former Justice P.B. Sawant against the Times Group, for a fifteen-second clip by a TV channel that accidentally showed his photograph next to the name of a judge who was an accused in a scam. What utterly takes the cake, though, is Infosys </span><a href="http://www.thehindu.com/news/national/infosys-slaps-defamation-notice-on-three-newspapers/article6098717.ece">serving</a><span> legal notices to three journalistic outlets recently, asking for damages worth Rs. 200 crore for “</span><i>loss of reputation and goodwill due to circulation of defamatory articles</i><span>.”</span><span> </span></p>
<p style="text-align: justify; ">Something is very wrong here. The plaintiffs are invariably politicians or massive corporate houses, and the defendants are invariably journalists or newspapers. The subject is always critical reporting. The damages claimed (and occasionally, awarded) are astronomical – enough to cripple or destroy any business – and the actual harm is speculative. A combination of these factors, combined with a broken judicial system in which trials take an eternity to progress, leading to the prospect of a lawsuit hanging perpetually over one’s head, and financial ruin just around the corner, clearly has the potential to create a highly effective chilling effect upon newspapers, when it come to critical speech on matters of public interest.</p>
<p style="text-align: justify; "><span>One of the reasons that this happens, of course, is that extant defamation law </span><i>allows</i><span> it to happen. Under defamation law, as long as a statement is published, is defamatory (that is, tending to lower the reputation of the plaintiff in the minds of reasonable people) and refers to the plaintiff, a </span><i>prima facie </i><span>case of defamation is made out. The burden then shifts to the defendant to argue a justification, such as truth, or fair comment, or privileged communication. Notice that defamation, in this form, is a strict liability offence: that is, the publisher cannot save himself even if he has taken due care in researching and writing his story. Even an inadvertent factual error can result in liability. Furthermore, there are many things that straddle a very uncomfortable barrier between “fact” and “opinion” (“opinions” are generally not punishable for defamation): for example, if I call you “corrupt”, have I made a statement of fact, or one of opinion? Much of reporting – especially political reporting – falls within this slipstream.</span></p>
<p style="text-align: justify; ">The legal standard of defamation, therefore, puts almost all the burden upon the publisher, a burden that will often be impossible to discharge – as well as potentially penalising the smallest error. Given the difficulty in fact-checking just about everything, as well as the time pressures under which journalists operate, this is an unrealistic standard. What makes things even worse, however, is that there is no cap on damages, <i>and </i>that the plaintiff need not even demonstrate <i>actual</i> harm in making his claims. Judges have the discretion to award punitive damages, which are meant to serve both as an example and as a deterrent. When Infosys claims 2000 crores, therefore, it need not show that there has been a tangible drop in its sales, or that it has lost an important and lucrative contract – let alone showing that the loss was caused by the defamatory statement. All it needs to do is make abstract claims about loss of goodwill and reputation, which are inherently difficult to verify either way, and it stands a fair chance of winning.</p>
<p style="text-align: justify; ">A combination of onerous legal standards and crippling amounts in damages makes the defamation regime a very difficult one for journalists to operate freely in. We have discussed before the crucial role that journalists play in a system of free speech whose underlying foundation is the maintenance of democracy: a free press is essential to maintaining a check upon the actions of government and other powerful players, by subjecting them to scrutiny and critique, and ensuring that the public is aware of important facts that government might be keen to conceal. In chilling journalistic speech, therefore, defamation laws strike at the heart of Article 19(1)(a). When considering what the appropriate standards ought to be, a Court therefore must consider the simple fact that if defamation – as it stands today – is compromising the core of 19(1)(a) itself, then it is certainly not a “reasonable restriction” under 19(2) (some degree of proportionality is an important requirement for 19(2) reasonableness, as the Court has held many times).</p>
<p style="text-align: justify; ">This is not, however, a situation unique to India. In Singapore, <a href="http://news.bbc.co.uk/2/hi/asia-pacific/7632830.stm">for instance</a>, “[<i>political] leaders have won hundreds of thousands of dollars in damages in defamation cases against critics and foreign publications, which they have said are necessary to protect their reputations from unfounded attacks</i>” – the defamation lawsuit, indeed, was reportedly a legal strategy used by Lee Kuan Yew against political opponents.<span> </span></p>
<p style="text-align: justify; ">Particularly in the United States, the European Union and South Africa, however, this problem has been recognised, and acted upon. In the next post, we shall examine some of the legal techniques used in those jurisdictions, to counter the chilling effect that strict defamation laws can have on the press.</p>
<p style="text-align: justify; ">We discussed the use of civil defamation laws as weapons to stifle a free and critical press. One of the most notorious of such instances also birthed one of the most famous free speech cases in history: <a href="http://supreme.justia.com/cases/federal/us/376/254/case.html"><i>New York Times v. Sullivan</i></a>. This was at the peak of the civil rights movement in the American South, which was accompanied by widespread violence and repression of protesters and civil rights activists. A full-page advertisement was taken out in the New York Times, titled <i>Heed Their Rising Voices</i>, which detailed some particularly reprehensible acts by the police in Montgomery, Alabama. It also contained some factual errors. For example, the advertisement mentioned that Martin Luther King Jr. had been arrested seven times, whereas he had only been arrested four times. It also stated that the Montgomery police had padlocked students into the university dining hall, in order to starve them into submission. That had not actually happened. On this basis, Sullivan, the Montgomery police commissioner, sued for libel. The Alabama courts awarded 500,000 dollars in damages. Because five other people in a situation similar to Sullivan were also suing, the total amount at stake was three million dollars – enough to potentially boycott the New York Times, and certainly enough to stop it from publishing about the civil rights movement.</p>
<p style="text-align: justify; ">In his book about the <i>Sullivan </i>case, <i>Make No Law</i>, Anthony Lewis notes that the stakes in the case were frighteningly high. The civil rights movement depended, for its success, upon stirring public opinion in the North. The press was just the vehicle to do it, reporting as it did on excessive police brutality against students and peaceful protesters, practices of racism and apartheid, and so on. <i>Sullivan</i> was a legal strategy to silence the press, and its weapon of choice was defamation law.</p>
<p style="text-align: justify; ">In a 9 – 0 decision, the Supreme Court found for the New York Times, and changed the face of free speech law (and, according to Lewis, saved the civil rights movement). Writing for the majority, Justice Brennan made the crucial point that in order to survive, free speech needed “breathing space” – that is, the space to make errors. Under defamation law, as it stood, “<i>the pall of fear and timidity imposed upon those who would give voice to public criticism [is] an atmosphere in which the First Amendment freedoms cannot survive</i>.” And under the burden of proving truth, <i>“would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is, in fact, true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which "steer far wider of the unlawful zone." </i>For these reasons, Justice Brennan laid down an “actual malice” test for defamation – that is, insofar as the statement in question concerned the conduct of a public official, it was actionable for defamation only if the publisher either knew it was false, or published it with “reckless disregard” for its veracity. After <i>New York Times</i>, this standard has expanded, and the press has never lost a defamation case.</p>
<p style="text-align: justify; ">There are some who argue that in its zeal to protect the press against defamation lawsuits by the powerful, the <i>Sullivan </i>court swung the opposite way. In granting the press a near-unqualified immunity to say whatever it wanted, it subordinated the legitimate interests of people to their reputation and their dignity to an intolerable degree, and ushered in a regime of media unaccountability. This is evidently what the South African courts felt. In <a href="https://www.google.com/search?q=khulamo+vs+holomisa&oq=khulamo+vs+holomisa&aqs=chrome..69i57.6996j0j4&sourceid=chrome&es_sm=119&ie=UTF-8"><i>Khulamo v. Holomisa</i></a>, Justice O’Regan accepted that the common law of defamation would have to be altered so as to reflect the new South African Constitution’s guarantees of the freedom of speech. Much like Justice Brennan, she noted that <i>“</i><i>the media are important agents in ensuring that government is open, responsive and accountable to the people as the founding values of our Constitution require</i>”, as well as the chilling effect in requiring journalists to prove the truth of everything they said. Nonetheless, she was not willing to go as far as the American Supreme Court did. Instead, she cited a previous decision by the Supreme Court of Appeals, and incorporated a “resonableness standard” into defamation law. That is, “<i>if a publisher cannot establish the truth, or finds it disproportionately expensive or difficult to do so, the publisher may show that in all the circumstances the publication was reasonable. In determining whether publication was reasonable, a court will have regard to the individual’s interest in protecting his or her reputation in the context of the constitutional commitment to human dignity. It will also have regard to the individual’s interest in privacy. In that regard, there can be no doubt that persons in public office have a diminished right to privacy, though of course their right to dignity persists. It will also have regard to the crucial role played by the press in fostering a transparent and open democracy. The defence of reasonable publication avoids therefore a winner-takes-all result and establishes a proper balance between freedom of expression and the value of human dignity. Moreover, the defence of reasonable publication will encourage editors and journalists to act with due care and respect for the individual interest in human dignity prior to publishing defamatory material, without precluding them from publishing such material when it is reasonable to do so.”</i></p>
<p style="text-align: justify; ">The South African Constitutional Court thus adopts a middle path between the two opposite zero-sum games that are traditional defamation law, and American first amendment law. A similar effort was made in the United Kingdom – the birthplace of the common law of defamation – with the passage of the <a href="http://www.legislation.gov.uk/ukpga/2013/26/pdfs/ukpga_20130026_en.pdf">2013 Defamation Act.</a> Under English law, the plaintiff must now show that there is likely to be “<i>serious harm</i>” to his reputation, and there is also public interest exception.</p>
<p style="text-align: justify; ">While South Africa and the UK try to tackle the problem at the level of standards for defamation, the ECHR has taken another, equally interesting tack: by limiting the quantum of damages. In <a href="http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57947#%7B"><i>Tolstoy Milolasky v. United Kingdom</i></a>, it found a 1.5 million pound damage award “disproportionately large”, and held that there was a violation of the ECHR’s free speech guarantee that could not be justified as necessary in a democratic society.</p>
<p style="text-align: justify; ">Thus, constitutional courts the world over have noticed the adverse impact traditional defamation law has on free speech and a free press. They have devised a multiplicity of ways to deal with this, some more speech-protective than others: from America’s absolutist standards, to South Africa’s “reasonableness” and the UK’s “public interest” exceptions, to the ECHR’s limitation of damages. It is about time that the Indian Courts took this issue seriously: there is no dearth of international guidance.</p>
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<p style="text-align: justify; "><span><i>Gautam Bhatia — @gautambhatia88 on Twitter — is a graduate of the National Law School of India University (2011), and has just received an LLM from the Yale Law School. He blogs about the Indian Constitution at <a class="moz-txt-link-freetext" href="http://indconlawphil.wordpress.com/">http://indconlawphil.wordpress.com</a>. Here at CIS, he blogs on issues of online freedom of speech and expression.</i></span></p>
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For more details visit <a href='https://cis-india.org/internet-governance/blog/free-speech-and-civil-defamation'>https://cis-india.org/internet-governance/blog/free-speech-and-civil-defamation</a>
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No publishergautamCensorshipDefamationFreedom of Speech and ExpressionChilling EffectArticle 19(1)(a)2014-07-08T08:31:18ZBlog EntryFOEX Live: June 16-23, 2014
https://cis-india.org/internet-governance/blog/foex-live-june-16-23-2014
<b>A weekly selection of news on online freedom of expression and digital technology from across India (and some parts of the world). </b>
<p style="text-align: justify; "><span>A quick and non-exhaustive perusal of this week’s content shows that many people are worried about the state of India’s free speech following police action on account of posts derogatory to or critical of the Prime Minister. Lawyers, journalists, former civil servants and other experts have joined in expressing this worry.</span></p>
<p style="text-align: justify; ">While a crackdown on freedom of expression would indeed be catastrophic and possibly unconstitutional, fears are so far based on police action in only 4 recent cases: Syed Waqar in Karnataka, Devu Chodankar in Goa and two cases in Kerala where college students and principals were arrested for derogatory references to Modi. Violence in Pune, such as the murder of a young Muslim man on his way home from prayer, or the creation of a Social Peace Force of citizens to police offensive Facebook content, are all related, but perhaps ought to be more carefully and deeply explored.</p>
<h3 style="text-align: justify; ">Kerala:</h3>
<p style="text-align: justify; ">In the Assembly, State Home Minister Ramesh Chennithala <a href="http://www.telegraphindia.com/1140618/jsp/nation/story_18524231.jsp#.U6kh1Y2SxDs">said that the State government did not approve</a> of the registration of cases against students on grounds of anti-Modi publications. The Minister denunciation of political opponents through cartoons and write-ups was common practice in Kerala, and “<i>booking the authors for this was not the state government’s policy</i>”.<span> </span></p>
<h3 style="text-align: justify; ">Maharashtra:</h3>
<p style="text-align: justify; ">Nearly 20,000 people have <a href="http://www.iol.co.za/scitech/technology/internet/peace-force-takes-aim-at-facebook-1.1705842#.U6khAI2SxDs">joined</a> the Social Peace Force, a Facebook group that aims to police offensive content on the social networking site. The group owner’s stated aim is to target religious posts that may provoke riots, not political ones. Subjective determinations of what qualifies as ‘offensive content’ remain a troubling issue.</p>
<h3><span>Tamil Nadu:</span></h3>
<p style="text-align: justify; ">In Chennai, 101 people, including filmmakers, writers, civil servants and activists, have <a href="http://timesofindia.indiatimes.com/City/Chennai/Intelligentsia-ask-CM-to-ensure-screening-of-Lankan-movie/articleshow/37107317.cms">signed a petition</a> requesting Chief Minister J. Jayalalithaa to permit safe screening of the Indo-Sri Lankan film “<i>With You, Without You</i>”. The petition comes after theatres cancelled shows of the film following threatening calls from some Tamil groups.</p>
<h3 style="text-align: justify; ">Telangana:</h3>
<p style="text-align: justify; ">The K. Chandrasekhar Rao government <a href="http://www.newslaundry.com/2014/06/23/channels-on-the-telangana-block/">has blocked</a> two Telugu news channels for airing content that was “<i>derogatory, highly objectionable and in bad taste</i>”.</p>
<p style="text-align: justify; ">The Telagana government’s decision to block news channels has its supporters. Padmaja Shaw <a href="http://www.thehoot.org/web/When-media-threatens-democracy/7593-1-1-14-true.html">considers</a> the mainstream Andhra media contemptuous and disrespectful of “<i>all things Telangana</i>”, while Madabushi Sridhar <a href="http://www.thehoot.org/web/Abusive-media-vs-angry-legislature/7591-1-1-2-true.html">concludes</a> that Telugu channel TV9’s coverage violates the dignity of the legislature.</p>
<h3><span>West Bengal:</span></h3>
<p style="text-align: justify; ">Seemingly anti-Modi arrests <a href="http://www.telegraphindia.com/1140617/jsp/nation/story_18520612.jsp#.U6kh142SxDs">have led to worry</a> among citizens about speaking freely on the Internet. Section 66A poses a particular threat.</p>
<h3><span>News & Opinion:</span></h3>
<p style="text-align: justify; ">The Department of Telecom is preparing a draft of the National Telecom Policy, in which it <a class="external-link" href="http://articles.economictimes.indiatimes.com/2014-06-19/news/50710986_1_national-broadband-policy-broadband-penetration-175-million-broadband-connections">plans to treat broadband Internet as a basic right</a>. The Policy, which will include deliberations on affordable broadband access for end users, will be finalised in 100 days.</p>
<p style="text-align: justify; "><span>While addressing a CII CEO’s Roundtable on Media and Industry, Information and Broadcasting Minister </span><a href="http://www.indiantelevision.com/regulators/i-and-b-ministry/government-committed-to-communicating-with-people-across-media-platforms-javadekar-140619">Prakash Javadekar promised</a><span> a transparent and stable policy regime, operating on a time-bound basis. He promised that efforts would be streamlined to ensure speedy and transparent clearances.</span></p>
<p style="text-align: justify; ">A perceived increase in police action against anti-Modi publications or statements <a href="http://www.dw.de/indias-anti-modi-netizens-fear-possible-crackdown/a-17725267">has many people worried</a>. But the Prime Minister himself was once a fierce proponent of dissent; in protest against the then-UPA government’s blocking of webpages, Modi changed his display pic to black.</p>
<p style="text-align: justify; "><i><a href="http://www.medianama.com/2014/06/223-social-media-helpline-mumbai/">Medianama wonders</a></i> whether the Mumbai police’s Cyber Lab and helpline to monitor offensive content on the Internet is actually a good idea.</p>
<p style="text-align: justify; "><a href="http://www.livemint.com/Opinion/vGkg6ig9qJqzm2eL3SxkUK/Time-for-Modi-critics-to-just-shut-up.html">G. Sampath wonders</a> why critics of the Prime Minister Narendra Modi can’t voluntarily refrain from exercising their freedom of speech, and allow India to be an all-agreeable development haven. Readers may find his sarcasm subtle and hard to catch.</p>
<p style="text-align: justify; ">Experts in India <a href="http://www.business-standard.com/article/current-affairs/does-eu-s-right-to-be-forgotten-put-barrier-on-the-net-114062400073_1.html">mull over</a> whether Section 79 of the Information Technology Act, 2000, carries a loophole enabling users to exercise a ‘right to be forgotten’. Some say Section 79 does not prohibit user requests to be forgotten, while others find it unsettling to provide private intermediaries such powers of censorship.</p>
<h3><span>Some parts of the world:</span></h3>
<p style="text-align: justify; ">Sri Lanka <a href="http://www.canindia.com/2014/06/sri-lanka-bans-meetings-that-can-incite-religious-hatred/">has banned</a> public meetings or rallies intended to promote religious hatred.</p>
<p style="text-align: justify; ">In Pakistan, Twitter <a href="http://www.outlookindia.com/news/article/Twitter-Restores-Access-to-Blasphemous-Material-in-Pak/845254">has restored</a> accounts and tweets that were taken down last month on allegations of being blasphemous or ‘unethical’.</p>
<p style="text-align: justify; ">In Myanmar, an anti-hate speech network <a href="http://www.mmtimes.com/index.php/national-news/10785-anti-hate-speech-network-proposed.html">has been proposed</a> throughout the country to raise awareness and opposition to hate speech and violence.</p>
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<p style="text-align: justify; "><span>For feedback, comments and any incidents of online free speech violation you are troubled or intrigued by, please email Geetha at </span><span>geetha[at]cis-india.org or on Twitter at @covertlight.</span></p>
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For more details visit <a href='https://cis-india.org/internet-governance/blog/foex-live-june-16-23-2014'>https://cis-india.org/internet-governance/blog/foex-live-june-16-23-2014</a>
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No publishergeethaSocial MediaFreedom of Speech and ExpressionFOEX LiveCensorshipSection 66AArticle 19(1)(a)2014-06-24T10:23:18ZBlog EntryFOEX Live
https://cis-india.org/internet-governance/blog/foex-live
<b>Selections of news on online freedom of expression and digital technology from across India (and some parts of the world)</b>
<p><iframe frameborder="0" height="650" src="http://cdn.knightlab.com/libs/timeline/latest/embed/index.html?source=0Aq0BN7sFZRQFdGJqaHNnSC1YNTYzZEM0SThGd2ZGVFE&font=Bevan-PotanoSans&maptype=toner&lang=en&height=650" width="100%"></iframe></p>
<hr style="text-align: justify; " />
<p style="text-align: justify; "><span>For feedback, comments and any incidents of online free speech violation you are troubled or intrigued by, please email Geetha at </span><span>geetha[at]cis-india.org or on Twitter at @covertlight.</span></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/foex-live'>https://cis-india.org/internet-governance/blog/foex-live</a>
</p>
No publishergeethaSocial MediaFeedbackPress FreedomsCensorshipFOEX LiveHuman Rights OnlineChilling EffectSection 66AArticle 19(1)(a)2014-07-07T12:36:49ZBlog EntryFacebook and its Aversion to Anonymous and Pseudonymous Speech
https://cis-india.org/internet-governance/blog/facebook-and-its-aversion-to-anonymous-and-pseudonymous-speech
<b>Jessamine Mathew explores Facebook's "real name" policy and its implications for the right to free speech. </b>
<p style="text-align: justify; ">The power to be unidentifiable on the internet has been a major reason for its sheer number of users. Most of the internet can now be freely used by anybody under a pseudonym without the fear of being recognised by anybody else. These conditions allow for the furtherance of free expression and protection of privacy on the internet, which is particularly important for those who use the internet as a medium to communicate political dissent or engage in any other activity which would be deemed controversial in a society yet not illegal. For example, an internet forum for homosexuals in India, discussing various issues which surround homosexuality may prove far more fruitful if contributors are given the option of being undetectable, considering the stigma that surrounds homosexuality in India, and the recent setting-aside of the Delhi High Court decision reading down Section 377 of the Indian Penal Code. The possibility of being anonymous or pseudonymous exists on many internet fora but on Facebook, the world’s greatest internet space for building connections and free expression, there is no sanction given to pseudonymous accounts as Facebook follows a real name policy. And as the <a href="http://www.nytimes.com/2014/06/27/technology/facebook-battles-manhattan-da-over-warrants-for-user-data.html?_r=0">recent decision</a> of a New York judge, disallowing Facebook from contesting warrants on private information of over 300 of its users, shows, there are clear threats to freedom of expression and privacy.</p>
<p style="text-align: justify; ">On the subject of using real names, Facebook’s Community Standards states, “Facebook is a community where people use their real identities. We require everyone to provide their real names, so you always know who you're connecting with. This helps keep our community safe.” Facebook’s Marketing Director, Randi Zuckerberg, <a href="http://www.dailymail.co.uk/news/article-2019544/Facebook-director-Randi-Zuckerberg-calls-end-internet-anonymity.html">bluntly dismissed</a> the idea of online anonymity as one that “has to go away” and that people would “behave much better” if they are made to use their real names. Apart from being a narrow-minded statement, she fails to realise that there are many different kinds of expression on the internet, from stories of sexual abuse victims to the views of political commentators, or indeed, whistleblowers, many of whom may prefer to use the platform without being identified. It has been decided in many cases that humans have a right to anonymity as it provides for the furtherance of free speech without the fear of retaliation or humiliation (<i>see </i>Talley v. California).<i> </i></p>
<p style="text-align: justify; ">While Facebook’s rationale behind wanting users to register for accounts with their own names is based on the goal of maintaining the security of other users, it is still a serious infraction on users’ freedom of expression, particularly when anonymous speech has been protected by various countries. Facebook has evolved from a private space for college students to connect with each other to a very public platform where not just social connections but also discussions take place, often with a heavily political theme. Facebook has been described as <a href="http://www.thenational.ae/news/uae-news/facebook-and-twitter-key-to-arab-spring-uprisings-report">instrumental</a> in the facilitation of communication during the Arab Spring, providing a space for citizens to effectively communicate with each other and organise movements. Connections on Facebook are no longer of a purely social nature but have extended to political and legal as well, with it being used to promote movements all through the country. Even in India, Facebook was the <a href="http://timesofindia.indiatimes.com/home/news/Facebook-Twitter-Google-change-face-of-Indian-elections/articleshow/34721829.cms">most widely adopted medium</a>, along with Twitter and Facebook, for discourse on the political future of the country during, before and after the 2014 elections. Earlier in 2011, Facebook was <a href="https://cis-india.org/news/web2.0-responds-to-hazare">used intensively</a> during the India Against Corruption movement. There were pages created, pictures and videos uploaded, comments posted by an approximate of 1.5 million people in India. In 2012, Facebook was also used to <a href="http://timesofindia.indiatimes.com/tech/social-media/Delhi-gang-rape-case-FacebookTwitter-fuels-rally-at-India-Gate/articleshow/17741529.cms">protest against the Delhi gang rape</a> with many coming forward with their own stories of sexual assault, providing support to the victim, organising rallies and marches and protesting about the poor level of safety of women in Delhi.</p>
<p style="text-align: justify; ">Much like its content policy, Facebook exhibits a number of discrepancies in the implementation of the anonymity ban. Salman Rushdie found that his Facebook account had been <a href="http://www.nytimes.com/2011/11/15/technology/hiding-or-using-your-name-online-and-who-decides.html?pagewanted=all&_r=0">suspended</a> and when it was reinstated after he sent them proof of identity, Facebook changed his name to the name on his passport, Ahmed Rushdie instead of the name he popularly goes by. Through a series of tweets, he criticised this move by Facebook, forcing him to display his birth name. Eventually Facebook changed his name back to Salman Rushdie but not before serious questions were raised regarding Facebook’s policies. The Moroccan activist Najat Kessler’s account was also <a href="https://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=5&cad=rja&uact=8&ved=0CD8QFjAE&url=http%3A%2F%2Fjilliancyork.com%2F2010%2F04%2F08%2Fon-facebook-deactivations%2F&ei=O1KxU-fwH8meugSZ74HgAg&usg=AFQjCNE7oUt2dyrSjpTskK7Oz3Q1OYXudg&sig2=bsOu46nmABTUhArhdjDCVw&bvm=bv.69837884,d.c2E">suspended</a> as it was suspected that she was using a fake name. Facebook has also not just stopped at suspending individual user accounts but has also removed pages and groups because the creators used pseudonyms to create and operate the pages in question. This was seen in the case of Wael Ghonim who created a group which helped in mobilizing citizens in Egypt in 2011. Ghonim was a Google executive who did not want his online activism to affect his professional life and hence operated under a pseudonym. Facebook temporarily <a href="http://www.newsweek.com/how-wael-ghonim-sparked-egypts-uprising-68727">removed</a> the group due to his pseudonymity but later reinstated it.</p>
<p style="text-align: justify; ">While Facebook performs its due diligence when it comes to some accounts, it has still done nothing about the overwhelmingly large number of obviously fake accounts, ranging from Santa Claus to Jack the Ripper. On my own Facebook friend list, there are people who have entered names of fictional characters as their own, clearly violating the real name policy. I once reported a pseudonymous account that used the real name of another person. Facebook thanked me for reporting the account but also said that I will “probably not hear back” from them. The account still exists with the same name. The redundancy of the requirement lies in the fact that Facebook does not request users to upload some form identification when they register with the site but only when they suspect them to be using a pseudonym. Since Facebook also implements its policies largely only on the basis of complaints by other users or the government, the real name policy makes many political dissidents and social activists the target of abuse on the internet.</p>
<p style="text-align: justify; ">Further, Articles 21 and 22 of the ICCPR grant all humans the right to free and peaceful assembly. As governments increasingly crack down on physical assemblies of people fighting for democracy or against legislation or conditions in a country, the internet has proved to be an extremely useful tool for facilitating this assembly without forcing people to endure the wrath of governmental authorities. A large factor which has promoted the popularity of internet gatherings is the way in which powerful opinions can be voice without the fear of immediate detection. Facebook has become the coveted online space for this kind of assembly but their policies and more particularly, faulty implementation of the policies, lead to reduced flows of communication on the site.</p>
<p style="text-align: justify; ">Of course, Facebook’s fears of cyberbullying and harassment are likely to materialise if there is absolutely no check on the identity of users. A possible solution to the conflict between requiring real names to keep the community safe and still allowing individuals to be present on the network without the fear of identification by anybody would be to ask users to register with their own names but still allowing them to create a fictional name which would be the name that other Facebook users can see. Under this model, Facebook can also deal with the issue of safety through their system of reporting against other users. If a pseudonymous user has been reported by a substantial number of people for harassment or any other cause, then Facebook may either suspend the account or remove the content that is offensive. If the victim of harassment chooses to approach a judicial body, then Facebook may reveal the real name of the user so that due process may be followed. At the same time, users who utilise the website to present their views and participate in the online process of protest or contribute to free expression in any other way can do so without the fear of being detected or targeted. Safety on the site can be maintained even without forcing users to reveal their real names to the world. The system that Facebook follows currently does not help curb the presence of fake accounts and neither does it promote completely free expression on the site.</p>
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For more details visit <a href='https://cis-india.org/internet-governance/blog/facebook-and-its-aversion-to-anonymous-and-pseudonymous-speech'>https://cis-india.org/internet-governance/blog/facebook-and-its-aversion-to-anonymous-and-pseudonymous-speech</a>
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No publisherJessamine MathewSocial MediaPrivacyFreedom of Speech and ExpressionFacebookChilling EffectAnonymityPseudonimityArticle 19(1)(a)2014-07-04T07:53:07ZBlog Entry