Centre for Internet and Society

Breaking Down Section 66A of the IT Act

pranesh — 2012-12-14T09:51:17Z

Section 66A of the Information Technology Act, which prescribes 'punishment for sending offensive messages through communication service, etc.' is widely held by lawyers and legal academics to be unconstitutional. In this post Pranesh Prakash explores why that section is unconstitutional, how it came to be, the state of the law elsewhere, and how we can move forward.

Back in February 2009 (after the IT Amendment Act, 2008 was hurriedly passed on December 22, 2008 by the Lok Sabha, and a day after by the Rajya Sabha[1] but before it was notified on October 27, 2009) I had written that s.66A is "patently in violation of Art. 19(1)(a) of the Constitution of India":

Section 66A which punishes persons for sending offensive messages is overly broad, and is patently in violation of Art. 19(1)(a) of our Constitution. The fact that some information is "grossly offensive" (s.66A(a)) or that it causes "annoyance" or "inconvenience" while being known to be false (s.66A(c)) cannot be a reason for curbing the freedom of speech unless it is directly related to decency or morality, public order, or defamation (or any of the four other grounds listed in Art. 19(2)). It must be stated here that many argue that John Stuart Mill's harm principle provides a better framework for freedom of expression than Joel Feinberg's offence principle. The latter part of s.66A(c), which talks of deception, is sufficient to combat spam and phishing, and hence the first half, talking of annoyance or inconvenience is not required. Additionally, it would be beneficial if an explanation could be added to s.66A(c) to make clear what "origin" means in that section. Because depending on the construction of that word s.66A(c) can, for instance, unintentionally prevent organisations from using proxy servers, and may prevent a person from using a sender envelope different from the "from" address in an e-mail (a feature that many e-mail providers like Gmail implement to allow people to send mails from their work account while being logged in to their personal account). Furthermore, it may also prevent remailers, tunnelling, and other forms of ensuring anonymity online. This doesn't seem to be what is intended by the legislature, but the section might end up having that effect. This should hence be clarified.

I stand by that analysis. But given that it is quite sparse, in this post I will examine s.66A in detail.

Here's what s. 66A of the IT (Amendment) Act, 2008 states:

66A. Punishment for sending offensive messages through communication service, etc.,
Any person who sends, by means of a computer resource or a communication device,—
(a) any information that is grossly offensive or has menacing character;
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently by making use of such computer resource or a communication device,
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages

shall be punishable with imprisonment for a term which may extend to three years and with fine.

Explanation: For the purposes of this section, terms "electronic mail" and "electronic mail message" means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message.[2]

A large part of s.66A can be traced back to s.10(2) of the UK's Post Office (Amendment) Act, 1935:

If any person —
(a) sends any message by telephone which is grossly offensive or of an indecent, obscene, or menacing character; or
(b) sends any message by telephone, or any telegram, which he knows to be false, for the purpose of causing annoyance, inconvenience, or needless anxiety to any other person; or
(c) persistently makes telephone calls without reasonable cause and for any such purposes as aforesaid;
he shall be liable upon summary conviction to a fine not exceeding ten pounds, or to imprisonment for a term not exceeding one month, or to both such fine and imprisonment.

Section 66A bears a striking resemblance to the three parts of this law from 1935, with clauses (b) and (c) being merged in the Indian law into a single clause (b) of s.66A, with a whole bunch of new "purposes" added. Interestingly, the Indian Post Office Act, 1898, was never amended to add this provision.

The differences between the two are worth exploring.

Term of Punishment

The first major difference is that the maximum term of imprisonment in the 1935 Act is only one month, compared to three years in s.66A of the IT Act. It seems the Indian government decided to subject the prison term to hyper-inflation to cover for the time. If this had happened for the punishment for, say, criminal defamation, then that would have a jail term of up to 72 years! The current equivalent laws in the UK are the Communications Act, 2003 (s. 127) and the Malicious Communications Act 1988 (s.1) for both of which the penalty is up to 6 months' imprisonment or to a maximum fine of £5000 or both. What's surprising is that in the Information Technology (Amendment) Bill of 2006, the penalty for section 66A was up to 2 years, and it was changed on December 16, 2008 through an amendment moved by Mr. A. Raja (the erstwhile Minister of Communications and IT) to 3 years. Given that parts of s.66A(c) resemble nuisance, it is instructive to note the term of punishment in the Indian Penal Code (IPC) for criminal nuisance: a fine of Rs. 200 with no prison term.

"Sending" vs. "Publishing"

J. Sai Deepak, a lawyer, has made an interesting point that the IT Act uses "send" as part of its wording, and not "publish". Given that, only messages specifically directed at another would be included. While this is an interesting proposition, it cannot be accepted because: (1) even blog posts are "sent", albeit to the blog servers — s.66A doesn't say who it has to be sent to; (2) in the UK the Communications Act 2003 uses similar language and that, unlike the Malicious Communication Act 1988 which says "sends to another person", has been applied to public posts to Twitter, etc.; (3) The explanation to s.66A(c) explicitly uses the word "transmitted", which is far broader than "send", and it would be difficult to reconcile them unless "send" can encompass sending to the publishing intermediary like Twitter.

Part of the narrowing down of s.66A should definitely focus on making it applicable only to directed communication (as is the case with telephones, and with the UK's Malicious Communication Act), and not be applicable to publishing.

Section 66A(c)

Section 66A(c) was also inserted through an amendment moved by Mr. Raja on December 16, 2008, which was passed by the Lok Sabha on December 22, 2008, and a day after by the Rajya Sabha. (The version introduced in Parliament in 2006 had only 66A(a) and (b).) This was done in response to the observation by the Standing Committee on Information Technology that there was no provision for spam. Hence it is clear that this is meant as an anti-spam provision. However, the careless phrasing makes it anything but an anti-spam provision. If instead of "for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages" it was "for the purpose of causing annoyance and inconvenience and to deceive and to mislead the addressee or recipient about the origin of such messages", it would have been slightly closer to an anti-spam provision, but even then doesn't have the two core characteristics of spam: that it be unsolicited and that it be sent in bulk. (Whether only commercial messages should be regarded as spam is an open question.) That it arise from a duplicitous origin is not a requirement of spam (and in the UK, for instance, that is only an aggravating factor for what is already a fine-able activity).

Curiously, the definitional problems do not stop there, but extend to the definitions of "electronic mail" and "electronic mail message" in the 'explanation' as well. Those are so vast that more or less anything communicated electronically is counted as an e-mail, including forms of communication that aren't aimed at particular recipients the way e-mail is.

Hence, the anti-spam provision does not cover spam, but covers everything else. This provision is certainly unconstitutional.

Section 66A(b)

Section 66A(b) has three main elements: (1) that the communication be known to be false; (2) that it be for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will; (3) that it be communicated persistently. The main problem here is, of course, (2). "Annoyance" and "inconvenience", "insult", "ill will" and "hatred" are very different from "injury", "danger", and "criminal intimidation". That a lawmaker could feel that punishment for purposes this disparate belonged together in a single clause is quite astounding and without parallel (except in the rest of the IT Act). That's akin to having a single provision providing equal punishment for calling someone a moron ("insult") and threatening to kill someone ("criminal intimidation"). While persistent false communications for the purpose of annoying, insulting, inconveniencing, or causing ill will should not be criminalised (if need be, having it as a civil offence would more than suffice), doing so for the purpose of causing danger or criminal intimidation should. However, the question arises whether you need a separate provision in the IT Act for that. Criminal intimidation is already covered by ss. 503 and 506 of the IPC. Similarly, different kinds of causing danger are taken care of in ss.188, 268, 283, 285, 289, and other provisions. Similarly with the other "purposes" listed there, if, for instance, a provision is needed to penalise hoax bomb threats, then the provision clearly should not be mentioning words like "annoyance", and should not be made "persistent". (At any rate, s. 505(1) of the IPC suffices for hoax bomb threats, so you don't need a separate provision in the IT Act).

I would argue that in its current form this provision is unconstitutional, since there is no countervailing interest in criminalising false and persistent "insults", etc., that will allow those parts of this provision to survive the test of 'reasonableness' under Art.19(2). Furthermore, even bits that survive are largely redundant. While this unconstitutionality could be cured by better, narrower wording, even then one would need to ensure that there is no redundancy due to other provisions in other laws.

Section 66A(a)

In s.66A(a), the question immediately arises whether the information that is "grossly offensive" or "menacing" need to be addressed at someone specific and be seen as "grossly offensive" or "menacing" by that person, or be seen by a 'reasonable man' test.

Additionally, the term "grossly offensive" will have to be read in such a heightened manner as to not include merely causing offence. The one other place where this phrase is used in Indian law is in s.20(b) of the Indian Post Office Act (prohibiting the sending by post of materials of an indecent, obscene, seditious, scurrilous, threatening, or grossly offensive character). The big difference between s.20(b) of the IPO Act and s.66A of the IT Act is that the former is clearly restricted to one-to-one communication (the way the UK's Malicious Communication Act 1988 is). Reducing the scope of s.66A to direct communications would make it less prone to challenge.

Additionally, in order to ensure constitutionality, courts will have to ensure that "grossly offensive" does not simply end up meaning "offensive", and that the maximum punishment is not disproportionately high as it currently is. Even laws specifically aimed at online bullying, such as the UK's Protection from Harassment Act 1997, can have unintended effects. As George Monbiot notes, the "first three people to be prosecuted under [the Protection from Harassment Act] were all peaceful protesters".

Constitutional Arguments in Importing Laws from the UK

The plain fact is that the Indian Constitution is stronger on free speech grounds than the (unwritten) UK Constitution, and the judiciary has wide powers of judicial review of statutes (i.e., the ability of a court to strike down a law passed by Parliament as 'unconstitutional'). Judicial review of statutes does not exist in the UK (with review under its EU obligations being the exception) as they believe that Parliament is supreme, unlike India. Putting those two aspects together, a law that is valid in the UK might well be unconstitutional in India for failing to fall within the eight octagonal walls of the reasonable restrictions allowed under Art.19(2). That raises the question of how they deal with such broad wording in the UK.

Genealogy of UK Law on Sending 'Indecent', 'Menacing', 'Grossly Offensive' Messages

Quoting from the case of DPP v. Collins [2006] UKHL 40 [6]:

The genealogy of [s. 127(1) of the Communication Act] may be traced back to s.10(2)(a) of the Post Office (Amendment) Act, 1935, which made it an offence to send any message by telephone which is grossly offensive or of an indecent, obscene or menacing character. That subsection was reproduced with no change save of punctuation in s.66(a) of the Post Office Act 1953. It was again reproduced in s.78 of the Post Office Act 1969, save that "by means of a public telecommunication service" was substituted for "by telephone" and "any message" was changed to "a message or other matter". Section 78 was elaborated but substantially repeated in s.49(1)(a) of the British Telecommunications Act 1981 and was re-enacted (save for the substitution of "system" for "service") in s.43(1)(a) of the Telecommunications Act 1984. Section 43(1)(a) was in the same terms as s.127(1)(a) of the 2003 Act, save that it referred to "a public telecommunication system" and not (as in s.127(1)(a)) to a "public electronic communications network". Sections 11(1)(b) of the Post Office Act 1953 and 85(3) of the Postal Services Act 2000 made it an offence to send certain proscribed articles by post.

While the above quotation talks about s.127(1) it is equally true about s.127(2) as well. In addition to that, in 1988, the Malicious Communications Act (s.1) was passed to prohibit one-to-one harassment along similar lines.

The UK's Post Office Act was eclipsed by the Telecommunications Act in 1984, which in turn was replaced in 2003 by the Communications Act. (By contrast, we still stick on to the colonial Indian Post Office Act, 1898.) Provisions from the 1935 Post Office Act were carried forward into the Telecommunications Act (s.43 on the "improper use of public telecommunication system"), and subsequently into s.127 of the Communications Act ("improper use of public electronic communications network"). Section 127 of the Communications Act states:

127. Improper use of public electronic communications network
(1) A person is guilty of an offence if he —
(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b) causes any such message or matter to be so sent.
(2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he —
(a) sends by means of a public electronic communications network, a message that he knows to be false,
(b) causes such a message to be sent; or
(c) persistently makes use of a public electronic communications network.
(3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.
(4) Subsections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c. 42)).

Currently in the UK there are calls for repeal of s.127. In a separate blog post I will look at how the UK courts have 'read down' the provisions of s.127 and other similar laws in order to be compliant with the European Convention on Human Rights.

Comparison between S. 66A and Other Statutes

Section 144, IPC, 1860

Power to issue order in urgent cases of nuisance or apprehended danger

...obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity

Babulal Parate v. State of Maharastra and Ors. [1961 AIR SC 884] (Magistrates order under s. 144 of the Cr. PC, 1973 was in violation of Art.19(1)(a) of the Constitution).

A special thanks is due to Snehashish Ghosh for compiling the below table.

Section	Term(s)/phrase(s) used in 66A	Term(s)/ phrase(s) used in similar sections
Section 66A (heading)	Punishment for sending offensive messages through communication service, etc	Section 127, CA, 2003, "Improper use of public electronic communications network"
Section 66A(a)	Any person who sends, by means of a computer resource or a communication device	Section 1(1), MCA 1988, "Any person who sends to another person..."
Section 66A(a)	Grossly offensive	Section 1(1)(a)(i), MCA 1988; Section 127(1)(a),CA, 2003; Section 10(2)(a), Post Office (Amendment) Act, 1935; Section 43(1)(a), Telecommunications Act 1984; Section 20, India Post Act 1898
Section 66A(a)	Menacing character	Section127(1)(a),CA, 2003
Section 66A(b)	Any information which he knows to be false	Section 1(1)(a)(iii), MCA 1988 "information which is false and known or believed to be false by the sender"; Section 127(2)(a), CA, 2003, "a message that he knows to be false"
Section 66A(b) “purpose of...”	Causing annoyance	Section127(2), CA, 2003
	Inconvenience	Section 127 (2), CA, 2003
	Danger
	Insult	Section 504, IPC, 1860
	Injury	Section 44 IPC, 1860, "The word 'injury' denotes any harm whatever illegally caused to any person, in body, mind, reputation or property."
	Criminal intimidation	Sections 503 and 505 (2), IPC, 1860
	Enmity, hatred or ill-will	Section 153A(1)(a), IPC, 1860
	Persistently by making use of such computer resource or a communication device	Section 127(2)(c), CA, 2003, "persistently makes use of a public electronic communications network."
Section 66A(c)	Deceive or to mislead	-

Notes
MCA 1988: Malicious Communications Act (s.1)
CA: Communications Act 2003 (s.127)
*Replaced by Communications Act 2003

[1]. The Information Technology (Amendment) Bill, 2008, was one amongst the eight bills that were passed in fifteen minutes on December 16, 2008.
[2]. Inserted vide Information Technology Amendment Act, 2008.

This was re-posted in Outlook (November 28, 2012)

For more details visit https://cis-india.org/internet-governance/blog/breaking-down-section-66-a-of-the-it-act

How to Steer Clear of India’s Strict Internet Laws

praskrishna — 2012-11-30T10:13:53Z

The arrest of two women in Mumbai for a Facebook post is the latest heavy-handed move by India’s government to curb what Indian citizens say on the Internet.

The article by Sangeeta Rajesh and Heather Timmons was published in the New York Times on November 20, 2012. Sunil Abraham and Pranesh Prakash are quoted.

The two women were arrested Sunday under a section of the Indian Penal Code that outlaws spreading “statements creating or promoting enmity, hatred or ill- will between classes” after one complained about the citywide strike sparked by the death of the Shiv Sena leader Bal Thackeray and the second woman “liked” her statement.

But the incident was just the latest in a string of recent arrests, detentions and account suspensions in India over online comments. If you live in India and have an opinion someone might not like, but you don’t want to become a target of the law, there’s one easy rule you need to follow, experts say: stay off social media.

Right now, “there’s nothing one can do but to close up your social media accounts” and stop voicing your opinion on the Internet entirely, if you want to guarantee you won’t be arrested in India, said Sunil Abraham, executive director at the Center for Internet and Society in Bangalore. (To be sure, that’s not what most free speech advocates recommend that you do. India Ink will soon have more on a social media activist who is fighting India’s strict Internet controls.)

Mr. Abraham advises extreme caution because India’s free speech rules have been historically weak (read more about India’s long history of censorship here), a relatively new Internet law is extremely broadly defined and police and lawmakers themselves are sometimes confused about what the actual rules themselves say.

A screenshot of Ravi Srinivasan’s twitter page. Mr. Srinivasan was arrested for a tweet he posted.

Late last month, Ravi Srinivasan, a Puducherry businessman and an India Against Corruption volunteer, was arrested for his Twitter post that alleged Karti Chidambaram, the son of Finance Minister P. Chidambaram, had amassed a large amount of wealth. Mr. Srinivasan was arrested Oct. 30 but was later released on bail.

Earlier in October, an associate professor of the National Institute for Fashion Technology in Chennai was arrested after what the Tamil Nadu singer Chinmayi said was a long period of harassment on the Internet, including negative Twitter messages. In August, the Indian government demanded Internet service providers suspend hundreds of Web pages to curb ethnic tension and asked Twitter to suspend accounts parodying government officials. Last year, the central government asked social media companies to prescreen content about India for objectionable remarks.

The key culprits here are revisions to India’s Information Technology Act made in 2008 and 2011, experts say, that leave nearly everything that is transmitted via the Internet open to interpretation by nearly everyone who reads it on the Internet. Things that are considered “annoying” and “offensive” can, under the law, land their sender in jail for up to three years.

While some of India’s nearly 50 million Facebook users and millions of Twitter users are up in arms about the recent arrests in Mumbai and are sharing the woman’s original post, under the theory that the police can’t arrest everyone, conservative advocates don’t recommend that sort of action on the Internet.

V. Vijaya Baskar, an advocate with Madras High Court practicing civil, criminal and family law for over 10 years, said that there are basic guidelines of free speech behavior that should be followed, even by Internet users. The most important, he said, is to avoid the use of obscene language and pictures, which are considered a direct threat. He also advised against getting into confrontations with people you don’t know or recognize on social media.

“If you have a true and verifiable source or documented evidence, then making a public statement is not defamation, but making passing comments of any person, particularly people in public life, will amount to defaming the person and is punishable,” he said.

While India’s government and law officials sometimes come across as not very tech-savvy, Pranesh Prakash, policy director at the Center for Internet and Society, said that lawmakers in many countries with a much higher Internet penetration are just as challenged by the Internet. And in India, while the laws are strict, people seldom land in jail for Internet-related offenses, he said.

“The detention law in India, sensibly, defaults to ‘bail, not jail,’ ” he said.

Mr. Prakash said he could not offer any global guidelines to avoid being arrested, and concluded that “each forum has its own rules of etiquette, which cannot be codified or enforced by legislation.” Online speech can be disagreed upon and opinions should be made known, since it is only the “natural tendency for people with extreme views to be more vocal online.”

Not surprisingly, the authorities in India who have been involved in arrests insist they are just doing their job, and doing it well. The Tamil Nadu police, for example, said they acted appropriately in Mr. Srinivasan’s arrest.

R. S. Krishna, inspector general for law and order, told the media that the Puducherry police could not be faulted for filing a First Investigation Report, the precursor to filing charges, against Mr. Srinivasan.

“I am very clear that we have acted purely on the basis of the merit of the complaint, in accordance with the rule of law,” he said. “We are right on our part.”

For more details visit https://cis-india.org/news/india-blogs-nytimes-november-20-2012-how-to-steer-clear-of-indias-strict-internet-laws

Online Censorship: How Government should Approach Regulation of Speech

sunil — 2012-12-05T07:06:52Z

Why is there a constant brouhaha in India about online censorship? What must be done to address this?

Sunil Abraham's article was published in the Economic Times on December 2, 2012.

Of course, we must get the basics right â€” bad law has to be amended, read down by courts or repealed, and bad implementation of law should be addressed via reform and capacity building for the police. But most importantly those in power must understand how to approach the regulation of speech.

To begin with, speech is regulated across the world. Even in the US â€” contrary to popular impression in India â€” speech is regulated both online and offline.

However, law is not the basis of most of this regulation. Speech is largely regulated by social norms. Different corners of our online and offline society have quite complex forms of self-regulation.

The harm caused by speech is often proportionate to the power of the person speaking â€” it maybe unacceptable for a politician or a filmstar to make an inflammatory remark but that very same utterance from an ordinary citizen may be totally fine.

To complicate matters, the very same speech by the very same person could be harmful or harmless based on context. A newspaper editor may share obscene jokes with friends in a bar, but may not take similar liberties in an editorial.

The legal scholar Alan Dershowitz tells us, "The best answer to bad speech is good speech." More recently the quote has been amended, with "more speech" replacing "good speech".

Censorship by the state has to be reserved for the rarest of rare circumstances. This is because censorship usually results in unintended consequences.

The "Streisand Effect", named after the singer-actor Barbra Streisand, is one of these consequences wherein attempts to hide or censor information only result in wider circulation and greater publicity.

The Maharashtra police's attempt to censor the voices of two women has resulted in their speech being broadcast across the nation on social and mainstream media. If the state had instead focused on producing good speech and more speech, nobody would have even heard of these women.

Circumventing Censorship

Peer-to-peer technologies on the internet mimic the topology of human networks and can also precipitate unintended consequences when subject to regulation. John Gilmore, a respected free software developer, puts it succinctly: "The Net interprets censorship as damage and routes around it."

Most of the internet censorship in the US is due to IPR-enforcement activities. This is why Christopher Soghoian, a leading privacy activist, attributes the massive adoption of privacy-enhancing technologies such as proxies and VPNs (virtual private networks) by American consumers to the crackdown on online piracy.

In India, and even when the government has had legitimate reasons to regulate speech, there have been unintended consequences.

During the exodus of people from the North-east, the five SMS per day restriction imposed by the government resulted in another exodus from SMS to alternative messaging platforms such as BlackBerry Messenger (BBM), WhatsApp and Twitter.

In both cases the circumvention of censorship by the users has resulted in a worsening situation for law-enforcement organisations â€” VPNs and applications like WhatsApp are much more difficult to monitor and regulate.

Mixed Memes

Regulation of speech also cannot be confused with cyber war or security. Speech can occasionally have security implications but that cannot be the basis for enlightened regulation.

A cyber war expert may be tempted to think of censored content as weapons, but unlike weapons that usually remain lethal, content that can cause harm today may become completely harmless tomorrow. This is unlike a computer virus or malware. For example, during the exodus, the online edition of ET featured the complete list of 309 URLs that were in the four block orders issued by the government to ISPs.

However, this did not result in fresh harm, demonstrating the fallacy of cyber war analogies. A cyber security expert, on the other hand, may be tempted to implement a 360Â° blanket surveillance to regulate speech, but as Gilmore again puts it, "If you're watching everybody, you're watching nobody."

In short, if your answer to bad speech is more censorship, more surveillance and more regulation, then as the internet meme goes, "You're Doing It Wrong".

For more details visit https://cis-india.org/internet-governance/blog/economic-times-december-2-2012-sunil-abraham-online-censorship

Google Policy Fellowship Programme: Call for Applications

praskrishna — 2013-05-17T01:01:47Z

The Centre for Internet & Society (CIS) is inviting applications for the Google Policy Fellowship programme. Google is providing a USD 7,500 stipend to the India Fellow, who will be selected by July 1, 2013.

The Google Policy Fellowship offers successful candidates an opportunity to develop research and debate on the fellowship focus areas, which include Access to Knowledge, Openness in India, Freedom of Expression, Privacy, and Telecom, for a period of about ten weeks starting from July 7, 2013 upto October 1, 2013. CIS will select the India Fellow. Send in your applications for the position by June 15, 2013.

To apply, please send to google.fellowship@cis-india.org the following materials:

Statement of Purpose: A brief write-up outlining about your interest and qualifications for the programme including the relevant academic, professional and extracurricular experiences. As part of the write-up, also explain on what you hope to gain from participation in the programme and what research work concerning free expression online you would like to further through this programme. (About 1200 words max).
Resume
Three references

Fellowship Focus Areas

Access to Knowledge: Studies looking at access to knowledge issues in India in light of copyright law, consumers law, parallel imports and the interplay between pervasive technologies and intellectual property rights, targeted at policymakers, Members of Parliament, publishers, photographers, filmmakers, etc.

Openness in India: Studies with policy recommendations on open access to scholarly literature, free access to law, open content, open standards, free and open source software, aimed at policymakers, policy researchers, academics and the general public.

Freedom of Expression: Studies on policy, regulatory and legislative issues concerning censorship and freedom of speech and expression online, aimed at bloggers, journalists, authors and the general public.

Privacy: Studies on privacy issues like data protection and the right to information, limits to privacy in light of the provisions of the constitution, media norms and privacy, banking and financial privacy, workplace privacy, privacy and wire-tapping, e-governance and privacy, medical privacy, consumer privacy, etc., aimed at policymakers and the public.

Telecom: Building awareness and capacity on telecommunication policy in India for researchers and academicians, policymakers and regulators, consumer and civil society organisations, education and library institutions and lay persons through the creation of a dedicated web based resource focusing on knowledge dissemination.

Frequently Asked Questions

What is the Google Policy Fellowship program?

The Google Policy Fellowship program offers students interested in Internet and technology related policy issues with an opportunity to spend their summer working on these issues at the Centre for Internet and Society at Bangalore. Students will work for a period of ten weeks starting from June 1, 2013. The research agenda for the program is based on legal and policy frameworks in the region connected to the ground-level perceptions of the fellowship focus areas mentioned above.

I am an International student can I apply and participate in the program? Are there any age restrictions on participating?

Yes. You must be 18 years of age or older by January 1, 2013 to be eligible to participate in Google Policy Fellowship program in 2013.

Are there citizenship requirements for the Fellowship?

For the time being, we are only accepting students eligible to work in India (e.g. Indian citizens, permanent residents of India, and individuals presently holding an Indian student visa. Google cannot provide guidance or assistance on obtaining the necessary documentation to meet the criteria.

Who is eligible to participate as a student in Google Policy Fellowship program?

In order to participate in the program, you must be a student. Google defines a student as an individual enrolled in or accepted into an accredited institution including (but not necessarily limited to) colleges, universities, masters programs, PhD programs and undergraduate programs. Eligibility is based on enrollment in an accredited university by January 1, 2013.

I am an International student can I apply and participate in the program?

In order to participate in the program, you must be a student (see Google's definition of a student above). You must also be eligible to work in India (see section on citizen requirements for fellowship above). Google cannot provide guidance or assistance on obtaining the necessary documentation to meet this criterion.
I have been accepted into an accredited post-secondary school program, but have not yet begun attending. Can I still take part in the program?

As long as you are enrolled in a college or university program as of January 1, 2013, you are eligible to participate in the program.
I graduate in the middle of the program. Can I still participate?

As long as you are enrolled in a college or university program as of January 1, 2013, you are eligible to participate in the program.

Payments, Forms, and Other Administrative Stuff

How do payments work?

Google will provide a stipend of USD 7,500 equivalent to each Fellow for the summer.

Accepted students in good standing with their host organization will receive a USD 2,500 stipend payable shortly after they begin the Fellowship in June 2013.
Students who receive passing mid-term evaluations by their host organization will receive a USD 1,500 stipend shortly after the mid-term evaluation in July 2013.
Students who receive passing final evaluations by their host organization and who have submitted their final program evaluations will receive a USD 3,500 stipend shortly after final evaluations in August 2013.

Please note: Payments will be made by electronic bank transfer, and are contingent upon satisfactory evaluations by the host organization, completion of all required enrollment and other forms. Fellows are responsible for payment of any taxes associated with their receipt of the Fellowship stipend.

*While the three step payment structure given here corresponds to the one in the United States, disbursement of the amount may be altered as felt necessary.

What documentation is required from students?

Students should be prepared, upon request, to provide Google or the host organization with transcripts from their accredited institution as proof of enrollment or admission status. Transcripts do not need to be official (photo copy of original will be sufficient).

I would like to use the work I did for my Google Policy Fellowship to obtain course credit from my university. Is this acceptable?

Yes. If you need documentation from Google to provide to your school for course credit, you can contact Google. We will not provide documentation until we have received a final evaluation from your mentoring organization.

Host Organizations

What is Google's relationship with the Centre for Internet and Society?

Google provides the funding and administrative support for individual fellows directly. Google and the Centre for Internet and Society are not partners or affiliates. The Centre for Internet and Society does not represent the views or opinions of Google and cannot bind Google legally.

Important Dates

What is the program timeline?

June 15, 2013	Student Application Deadline. Applications must be received by midnight.
July 1, 2013	Student applicants are notified of the status of their applications.
July 2013	Students begin their fellowship with the host organization (start date to be determined by students and the host organization); Google issues initial student stipends.
August 2013	Mid-term evaluations; Google issues mid-term stipends.
October 2013	Final evaluations; Google issues final stipends.

For more details visit https://cis-india.org/internet-governance/blog/google-policy-fellowship-call-for-applications-2013

Facebook, Google deny spying access

praskrishna — 2013-07-02T10:18:48Z

The CEOs of Facebook and Google on Saturday categorically denied that the US National Security Agency had "direct access" to their company servers for snooping on Gmail and Facebook users. But both acknowledged that the companies complied with the 'lawful' requests made by the US government and shared user data with sleuths.

The article by Javed Anwer was published in the Times of India on June 9, 2013. Pranesh Prakash is quoted.

In a post titled "What the ...?" Google's official blog, CEO Larry Page wrote, "We have not joined any program that would give the US governmentâ€”or any other governmentâ€”direct access to our servers. We had not heard of a program called PRISM until yesterday."

A few hours later, Facebook CEO Mark Zuckerberg responded. "Facebook is not and has never been part of any program to give the US or any other government direct access to our servers... We hadn't even heard of PRISM before yesterday," he wrote on his page at the social media site.

According to a few PowerPoint slides allegedly leaked by an NSA official, nine technology companies - Google, AOL, Apple, Yahoo, Microsoft, Skype, Facebook, YouTube and PalTalk - are providing the US government easy access to user data. While all companies have denied being part anything called PRISM, Facebook and Google have been most vocal about it.

A few hours after Facebook and Google statements, the New York Times said in a report that technology companies had "opened discussions with national security officials about developing technical methods to more efficiently and securely share the personal data of foreign users".

"In some cases, they (companies) changed their computer systems to do so," noted the NYT report.

The statements by the CEOs have done little to allay privacy fears. "The denials from the companies look highly coordinated, including similar phrases in all their responses. I don't think they are lying outright, though the NYT report suggests that they are telling a half-truth. They may not provide the US government 'direct access' to all their servers, but may be providing indirect access, or may just be responding to very broad FISA orders," said Pranesh Prakash, a policy director with Centre for Internet and Society in India.

On Friday US president Barack Obama had tacitly acknowledged NSA surveillance programmes aimed at non-US citizens. "You can't have a hundred per cent security and also then have a hundred per cent privacy and zero inconvenience. You know, we're going to have to make some choices as a society," he told reporters in the US.

Page and Zuckerberg also called on the governments to be more open about surveillance programmes. "The level of secrecy around the current legal procedures undermines the freedoms we all cherish," wrote Page.

Added Zuckerberg, "We strongly encourage all governments to be much more transparent about all programs aimed at keeping the public safe. It's the only way to protect everyone's civil liberties and create the safe and free society we all want over the long term."

For more details visit https://cis-india.org/news/times-of-india-javed-anwer-june-9-2013-facebook-google-deny-spying-access

Report on CIS' Workshop at the IGF:'An Evidence Based Framework for Intermediary Liability'

jyoti — 2014-09-24T10:47:30Z

An evidence based framework for intermediary liability' was organised to present evidence and discuss ongoing research on the changing definition, function and responsibilities of intermediaries across jurisdictions.

The discussion from the workshop will contribute to a comprehensible framework for liability, consistent with the capacity of the intermediary and with international human-rights standards.

Electronic Frontier Foundation (USA), Article 19 (UK) and Centre for Internet and Society (India) have come together towards the development of best practices and principles related to the regulation of online content through intermediaries. The nine principles are: Transparency, Consistency, Clarity, Mindful Community Policy Making, Necessity and Proportionality in Content Restrictions, Privacy, Access to Remedy, Accountability, and Due Process in both Legal and Private Enforcement. The workshop discussion will contribute to a comprehensible framework for liability that is consistent with the capacity of the intermediary and with international human-rights standards. The session was hosted by Centre for Internet and Society (India) and Centre for Internet and Society, Stanford (USA) and attended by 7 speakers and 40 participants.

Jeremy Malcolm, Senior Global Policy Analyst EFF kicked off the workshop highlighting the need to develop a liability framework for intermediaries that is derived out of an understanding of their different functions, their role within the economy and their impact on human rights. He went on to structure the discussion which would follow to focus on ongoing projects and examples that highlight central issues related to gathering and presenting evidence to inform the policy space.

Martin Husovec from the International Max Planck Research School for Competition and Innovation, began his presentation, tracking the development of safe harbour frameworks within social contract theory. Opining that safe harbour was created as a balancing mechanism between a return of investments of the right holders and public interest for Internet as a public space, he introduced emerging claims that technological advancement have altered this equilibrium. Citing injunctions and private lawsuits as instruments, often used against law abiding intermediaries, he pointed to the problem within existing liability frameoworks, where even intermediaries, who diligently deal with illegitimate content on their services, can be still subject to a forced cooperation to the benefit of right holders. He added that for liability frameworks to be effective, they must keep pace with advances in technology and are fair to right holders and the public interest.

He also pointed that in any liability framework because the ‘law’ that prescribes an interference, must be always sufficiently clear and foreseeable, as to both the meaning and nature of the applicable measures, so it sufficiently outlines the scope and manner of exercise of the power of interference in the exercise of the rights guaranteed. He illustrated this with the example of the German Federal Supreme Court attempts with Wi-Fi policy-making in 2010. He also raised issues of costs of uncertainty in seeking courts as the only means to balance rights as they often, do not have the necessary information. Similarly, society also does not benefit from open ended accountability of intermediaries and called for a balanced approach to regulation.

The need for consistency in liability regimes across jurisdictions, was raised by Giancarlo Frosio, Intermediary Liability Fellow at Stanford's Centre for Internet and Society. He introduced the World Intermediary Liability Map, a project mapping legislation and case law across 70 countries towards creating a repository of information that informs policymaking and helps create accountability. Highlighting key takeaways from his research, he stressed the necessity of having clear definitions in the field of intermediary liability and the need to develop taxonomy of issues to deepen our understanding of the issues at stake towards an understanding of type of liability appropriate for a particular jurisdiction.

Nicolo Zingales, Assistant Professor of Law at Tilburg University highlighted the need for due process and safeguards for human rights and called for more user involvement in systems that are in place in different countries to respond to requests of takedown. Presenting his research findings, he pointed to the imbalance in the way notice and takedown regimes are structured, where content is taken down presumptively, but the possibility of restoring user content is provided only at a subsequent stage or not at all in many cases. He cited several examples of enhancing user participation in liability mechanisms including notice and notice, strict litigation sanction inferring the knowledge that the content might have been legal and shifting the presumption in favor of the users and the reverse notice and takedown procedure. He also raised the important question, if multistakeholder cooperation is sufficient or adequate to enable the users to have a say and enter as part of the social construct in this space? Reminding the participants of the failure of the multistakeholder agreement process regarding the cost for the filters in the UK, that would be imposed according to judicial procedure, he called for strengthening our efforts to enable users to get more involved in protecting their rights online.

Gabrielle Guillemin from Article 19 presented her research on the types of intermediaries and models of liability in place across jurisdictions. Pointing to the problems associated with intermediaries having to monitor content and determine legality of content, she called for procedural safeguards and stressed the need to place the dispute back in the hands of users and content owners and the person who has written the content rather than the intermediary. She goes on to provide some useful and practically-grounded solutions to strengthen existing takedown mechanisms including, adding details to the notices, introducing fees in order to extend the number of claims that are made and defining procedure regards criminal content.

Elonnai Hickok introduced CIS' research to the UNESCO report Fostering Freedom Online: the Role of Internet Intermediaries, comparing a range of liability models in different stages of development and provisions across jurisdictions. She argued for a liability framework that tackles procedural and regulatory uncertainty, lack of due process, lack of remedy and varying content criteria.

Francisco Vera, Advocacy Director, Derechos Digitales from Chile raised issues related to mindful community policy-making expounding on Chile's implementation of intermediary liability obligation with the USA, the introduction of judicial oversight under Chilean legislation which led to US objection to Chile on grounds of not fulfilling their standards in terms of Internet property protection. He highlighted the tensions that arise in balancing the needs of the multiple communities and interests engaged over common resources and stressed the need for evidence in policy-making to balance the needs of rights holders and public interest. He stressed the need for evidence to inform policy-making and ensure it keeps pace with technological developments citing the example of the ongoing Transpacific Partnership Agreement negotiations that call for exporting provisions DMCA provisions to 11 countries even though there is no evidence of the success of the system for public interest. He concluded by cautioning against the development of frameworks that are or have the potential to be used as anti-competitive mechanisms that curtail innovation and therby do not serve public interest.

Malcolm Hutty associated with the European Internet Service Providers Association, Chair of the Intermediary Reliability Committee and London Internet Exchange brought in the intermediaries' perspective into the discussion. He argued for challenging the link between liability and forced cooperation, understated the problems arising from distinction without a difference and incentives built in within existing regimes. He raised issues arising from the expectancy on the part of those engaged in pre-emptive regulation of unwanted or undesirable content for intermediaries to automate content. Pointing to the increasing impact of intermediaries in our lives he underscored how exposing vast areas of people's lives to regulatory enforce, which enhances power of the state to implement public policy in the public interest and expect it to be executed, can have both positive and negative implications on issues such as privacy and freedom of expression.

He called out practices in regulatory regimes that focus on one size fits all solutions such as seeking automating filters on a massive scale and instead called for context and content specific solutions, that factor the commercial imperatives of intermediaries. He also addressed the economic consequences of liability frameworks to the industry including cost effectiveness of balancing rights, barriers to investments that arise in heavily regulated or new types of online services that are likely to be the targeted for specific enforcement measures and the long term costs of adapting old enforcement mechanisms that apply, while networks need to be updated to extend services to users.

The workshop presented evidence of a variety of approaches and the issues that arise in applying those approaches to impose liability on intermediaries. Two choices emerged towards developing frameworks for enforcing responsibility on intermediaries. We could either rely on a traditional approach, essentially court-based and off-line mechanisms for regulating behaviour and disputes. The downside of this is it will be slow and costly to the public purse. In particular, we will lose a great deal of the opportunity to extend regulation much more deeply into people's lives so as to implement the public interest.

Alternatively, we could rely on intermediaries to develop and automate systems to control our online behaviour. While this approach does not suffer from efficiency problems of the earlier approach it does lack, both in terms of hindering the developments of the Information Society, and potentially yielding up many of the traditionally expected protections under a free and liberal society. The right approach lies somewhere in the middle and development of International Principles for Intermediary Liability, announced at the end of the workshop, is a step closer to the developing a balanced framework for liability.

See the transcript on IGF website.

For more details visit https://cis-india.org/internet-governance/report-on-cis-workshop-at-igf

Comment by CIS at ACE on Presentation on French Charter on the Fight against Cyber-Counterfeiting

pranesh — 2011-12-01T11:59:45Z

The seventh session of the World Intellectual Property Organization's Advisory Committee on Enforcement is being held in Geneva on November 30 and December 1, 2011. Pranesh Prakash responded to a presentation by Prof. Pierre Sirinelli of the École de droit de la Sorbonne, Université Paris 1 on 'The French Charter on the Fight against Cyber-Counterfeiting of December 16, 2009' with this comment.

Thank you, Chair. I speak on behalf of the Centre for Internet and Society. First, I would like to congratulate you on your re-election.

And I would like to congratulate Prof. Sirenelli on his excellent presentation.

I would like to flag a few points, though:

One of the benefits of normal laws, as opposed to the soft/plastic laws, which he champions, is that normal laws are bound by procedures established by law, due process requirements, and principles of natural justice. Unfortunately, the soft/plastic laws, which in essence are private agreements, are not.
The report of the UN Special Rapporteur on the Freedom of Expression and Opinion made it clear in his report to the UN Human Rights Council that the Internet is now an intergral part of citizens exercising their right of freedom of speech under national constitutions and under the Universal Declaration of Human Rights. That report highlights that many initiatives on copyright infringement, including that of the French government with HADOPI and the UK, actually contravene the Universal Declaration of Human Rights
The right of privacy is also flagged by many as something that will have to be compromised if such private enforcement of copyright is encouraged.

I'd like to know Prof. Sirinelli's views on these three issues: due process, right of freedom of speech, and the right to privacy.

For more details visit https://cis-india.org/a2k/blogs/ace-7-french-charter-cis-comment

Panel discussion on 'How to Avoid Digital ID Systems That Put People at Risk: Lessons from Afghanistan' at Freedom Online Conference

praskrishna — 2021-12-03T14:52:35Z

Amber Sinha participated as a panelist in a panel discussion on How to Avoid Digital ID Systems That Put People at Risk: Lessons from Afghanistan at the Freedom Online Conference yesterday.

The Freedom Online Coalition (FOC) was established in 2011 in response to the growing recognition of the importance of the Internet for the enjoyment of human rights. Periodically, the FOC holds a multistakeholder Conference that aims to deepen the discussion on how online freedoms are helping to promote social, cultural and economic development. The ownership of the Conference program and outputs lies with the host country, most often the Chair of the Coalition during that year.

The aim of the panel was to use the lessons learned from the Afghanistan case to take a critical and realistic look at the implementation of digital identification programs around the world. A video of the panel can be accessed here.

For more details visit https://cis-india.org/internet-governance/news/panel-discussion-how-to-avoid-digital-id-systems-that-put-people-at-risk

Debate: Online content row-1

praskrishna — 2011-12-07T11:06:19Z

In a debate moderated by TIMES NOW's Editor-in-Chief Arnab Goswami, panelists Chandan Mitra, Editor-in-Chief, 'The Pioneer' & MP, BJP; Sabeer Bhatia, Co-founder, Hotmail; Sunil Abraham, Executive Director, Centre for Internet and Society; Ankit Fadia, Ethical Hacker; Suhel Seth, Managing Partner Counselage; Pradeep Gupta, Chairman, Cyber Media and Rajesh Charia, President, Internet Service Providers Association of India discuss the issue if the Government should make clear definition of what is objectionable to internet/social media companies and draw a clear distinction between communally incitable material and political censorship.

Telecom Minister Kapil Sibal today (Dec 6) vowed to stop offensive and defamatory content on internet sites as a controversy raged over government's move to monitor content in cyber space. Maintaining that the government does not want to interfere with the freedom of the press, he said if the social networking sites are not willing to cooperate with the government on stopping incendiary material "then it is the duty of the government to think of steps that we need." Sibal's hurriedly-called press conference came against backdrop of government's meetings with the officials from Google, Microsoft, Facebook and Yahoo over last few weeks after offensive material particularly against Congress leader Sonia Gandhi and Prime Minister Manmohan Singh was put on the net. He said his request for cooperation from them fell on "deaf ears" and "we will not allow intermediaries to say that the throw up our hands and we cannot do anything about it."

Facebook in its reaction said it will cooperate in removing any content that violates its terms which are designed to keep material that is hateful, threatening, incites violence or contains nudity off the service. Google said it will abide by local law and take any material if it violates its policies but asserted that it will not remove any content just because it is controversial. Google said that when content is illegal it abides by local law and removes it. And even where the content is legal but violates "our terms and conditions, we take that down too, once we have been notified." However, it says, when content is legal and does not violate its policies, it will not remove just because it is controversial.

Even as Sibal defended the government's move, criticism poured in the cyber space that India should not emulate countries like China in attempting to gag freedom of expression. However, the Minister got support from Shashi Tharoor, Congress MP, who is popular in cyber world. "Have to say I support Kapil Sibal on the examples he gave me: deeply offensive material about religions & communities that could incite riots," Tharoor tweeted. But his political rivals and MPs Varun Gandhi and Jayant Choudhary differed. Gandhi said Internet is the only truly democratic medium free of "vested interests, media owners & paid-off journos. Can see why Sibal wants to gag it," he said. Chaudhary said "Censorship of the internet - Forget the desirability issue for a minute, IS IT EVEN POSSIBLE??!!!"

Sunil Abraham was on Times Now from 9.05 p.m. to 9.45 p.m. on December 6, 2011 speaking about freedom of expression in India.

See the debate on Times Now

VIDEO

For more details visit https://cis-india.org/news/online-content-row

Govt wants to scrub the Internet clean

praskrishna — 2011-12-07T04:07:03Z

Web advocacy groups, experts say govt’s move to evolve content guidelines amounts to censorship. This article by Surabhi Agarwal & Leslie D’monte was published in Livemint on 7 December 2011. Sunil Abraham has been quoted in this article.

India, the world’s largest democracy, may force companies such as Google Inc., Microsoft Corp., Yahoo Inc. and Facebook Inc. to take down online content that it deems offensive because they haven’t been able to come up with an effective self-censorship mechanism governing millions of users.

The Congress-led United Progressive Alliance government had no option but to "evolve guidelines" to ensure that "blasphemous content on the Internet or television is not allowed", with Internet and social networking sites such as those above "failing to respond to and cooperate with" the government’s request to keep "objectionable" content out of their websites, Kapil Sibal, minister of communications and information technology (IT), said in New Delhi on Tuesday.

His comments unleashed a firestorm of criticism by Internet advocacy groups and experts, who said the move amounted to censorship and was anti-democratic, impractical and unwarranted since existing laws were comprehensive enough to remove "objectionable" content. The move, they argued, would also stem the growth of user-generated content sites, and thus the Internet itself.

The government has been battling a series of corruption scandals and criticism of its inability to move forward on policy reforms. A campaign against corruption fuelled by online support has also challenged the government’s authority to legislate, forcing its own version of an anti-graft legislation onto the agenda.

The latest move by the government follows the introduction of new rules to the Information Technology Act, 2008, that were published earlier this year, also heavily criticized, that called on Internet service providers (ISPs) along with other entities to police online postings, including blogs.

Sibal referred to what he considered objectionable content as a "matter of grave concern", which affects the "sensibility of our people and is against our cultural ethos".

Once the new policy framework is implemented, companies “will be duty-bound to share information about those who post content, even if it (the content) is posted outside India”. He didn’t say by when the policy would be put in place.

Discussions with executives from the firms mentioned above had begun in September, Sibal said. They had been asked to come up with solutions to address the perceived problem in a month’s time and had failed to do so, he said.

According to local media reports, the move follows posts about some senior Congress leaders, including party president Sonia Gandhi. The minister, who is also one of India’s top lawyers, did not refer to any specific "objectionable" material during his press briefing, but rued that “the content has still not been removed".

Google India defended the right of free speech, while saying that it didn’t condone illegality.

"Even where content is legal but breaks our own terms and conditions, we take that down too, once we’ve been notified about it," Google India said in a release. "But it also means that when content is legal but controversial, we don’t remove it because people’s differing views should be respected, so long as they are legal."

Facebook India also said that it would remove any content that crossed the line.

It "has policies and onsite features in place that enable people to report abusive content", the company said. "We will remove any content that violates our terms, which are designed to keep material that is hateful, threatening, incites violence or contains nudity off the service."

While Yahoo India declined to comment, Microsoft did not respond to an email till press time.

Internet censorship is a rising trend, with approximately 40 countries filtering the Web in varying degrees, including democratic and non-democratic governments. Governments are using increasingly sophisticated censorship and surveillance techniques, including blocking social networks, to restrict a variety of types of content, says the 2010 Global Network Initiative (GNI) report. GNI seeks to protect freedom of speech online.

This August, for instance, the Centre had written to the department of telecommunications, asking it to "ensure effective monitoring of Twitter and Facebook", which minister of state for communications and IT Milind Deora acknowledged a few days later in a written reply to a question in the Rajya Sabha. He mentioned access to “encrypted data” on social networking sites, but did not elaborate on the subject.

Currently, the Indian Telegraph Act and the IT Act, 2008, (amendments were introduced in IT Act, 2000) give the government the power to monitor, intercept and even block online conversations and websites. The Centre for Internet and Society (CIS) has put up a list of 11 such websites blocked by a government order. The data was received from the department of information technology (DIT).

Moreover, under section 79 of the IT Intermediary (Rules and Guidelines), 2011, intermediaries (comprising telcos, ISPs, network services providers, search engines, cyber cafes, Web-hosting companies, online auction portals and online payment sites) are mandated to exercise "due diligence" and advise users not to share/distribute information violative of the law or a person’s privacy and rights. Intermediaries are expected to act on a complaint within 36 hours of receiving it, and remove such content when warranted.

In case the intermediary doesn’t find the content objectionable, the matter will have to be contested in a court of law.

"Currently, you need a court of law to direct a company in case something has to be removed. That takes a lot of time. So there has to be a mechanism that is faster in dealing with such content as (it) can be very damaging," said a DIT official, who did not want to be named.

"The Indian government can, and should, monitor conversations and websites if it believes the content can harm the security, defence, sovereignty and integrity of the country," said Pavan Duggal, a Supreme Court lawyer and cyber law expert. However, he wondered how the government would go about implementing the task of monitoring each and every conversation on an unstructured Internet.

Bangalore-based CIS, an Internet advocacy group, said "this pre-emptive manual screening of content, if implemented, would sound the death knell of freedom of expression in India".

"This screening is worrisome. Companies will err on the side of caution in a bid to please the government, and the courts will not be involved," said Sunil Abraham, executive director of CIS. “This is not only unconstitutional, but technically impossible too. Speech and words have nuances. Can humans decipher these with accuracy?"

The move will undermine key principles on which the Internet was built, said Nikhil Pahwa, editor and publisher of digital industry news and analysis blog MediaNama.

"It is completely impossible to enforce this. There is no way that content can be prescreened before it is placed online," he said. “It also kills the concept of immediate communication, which the Internet stands for."

Cyber law expert NA Vijayashankar, who runs cyber law information portal Naavi, said: "The government has valid reason to control anti-national activities on the Internet. But there are existing laws for it. The current proposition is impractical since pre-scrutiny of content on the Internet is not possible. It will affect the growth of user-generated content, which is helping Internet penetration grow in India."

Internet censorship happens frequently in countries such as Myanmar, Cuba, China (which had blocked keyword searches of the word "Egypt" on the Internet as well as on Weibo, the Chinese equivalent of Twitter), Iran, Egypt and Saudi Arabia. On the very day the Egyptian government set out to block Internet services in the country (in January), US Republican senator Susan Collins floated the COICA Bill, popularly called the "kill switch" Bill, which, if approved, would give the US president similar powers.

Read the original published in Livemint here

For more details visit https://cis-india.org/news/scrub-the-internet-clean

Facebook, Google tell India they won’t screen for derogatory content

praskrishna — 2011-12-07T05:25:52Z

In the world’s largest democracy, the government wants Internet sites like Facebook, YouTube, Twitter and Google to screen and remove offensive content about religious figures and political leaders as soon as they learn about it. But those companies now say they can’t help.

India’s minister of communications Kapil Sibal began discussions with the online companies in September. On Tuesday, he told reporters the government will have to create new guidelines to disable such content from the Internet sites on its own.

"We will not allow intermediaries to say that ‘we throw up our hands, we can’t do anything about it,’" Sibal said.

Sibal had shown company executives derogatory images of the Prophet Mohammed and morphed pictures of Indian Prime Minister Manmohan Singh and Congress Party chief Sonia Gandhi that appeared on their platforms. Sibal said these images would offend "any reasonable person" and also hurt religious sentiments of Indians.

But on Monday, according to Sibal, the company executives said they cannot do anything.

Soon after Sibal’s news conference, Facebook said in a statement: “We will remove any content that violates our terms, which are designed to keep material that is hateful, threatening, incites violence or contains nudity off the service.” Those parameters are unlikely to include all the images the government of India wants screened out.

Sibal’s move did not come as a surprise for some observers in India, which has the third-largest Internet-user community in the world--more than 100 million people. Earlier this year, India introduced new rules that called on Web sites, service providers and search engines to not host information that could be regarded as “harmful, “blasphemous” or “disparaging.” The rules also called on Web sites to remove offensive material within 36 hours of a complaint.

"I can’t believe a democracy is doing this," said Sunil Abraham, executive director of India’s Center for Internet and Society. He said recent, unpublished research conducted by the group showed that "such rules have a chilling effect on the freedom of expression on the Internet." Researchers sent mock take-down notices to seven sites, complaining about their content. Abraham said six sites immediately deleted content. "They did not even verify the validity of our flawed complaint. They over-complied," he said.

Sibal’s announcement also sparked a debate on Twitter, where Member of Parliament Shashi Tharoor and Chief Minister of Jammu and Kashmir Omar Abdullah weighed in:

The Streisand effect is an online phenomenon in which an attempt to censor a piece of information has the unintended consequence of publicizing the information further. (It is named after Barbara Streisand, who attempted in 2003 to hide pictures of her giant home; that only created more interest.)
But a blogger who calls himself the “Pragmatic Desi” argued that India had its own constraints:

But Member of Parliament Varun Gandi said that’s precisely why the Internet shouldn’t be censored:

The article written by Rama Lakshmi was originally published in the Washington Post on 6 December 2011. Sunil Abraham has been quoted in this. Read it here

For more details visit https://cis-india.org/facebook-google-tell-india-they-won2019t-screen-for-derogatory-content

Press Coverage of Online Censorship Row

pranesh — 2011-12-08T11:31:30Z

We are maintaining a rolling blog with press references to the row created by the proposal by the Union Minister for Communications and Information Technology to pre-screen user-generated Internet content.

Monday, December 5, 2011

India Asks Google, Facebook to Screen Content | Heather Timmons (New York Times, India Ink)

Tuesday, December 6, 2011

Sibal warns social websites over objectionable content | Sandeep Joshi (The Hindu)

Hate speech must be blocked, says Sibal | Praveen Swami & Sujay Mehdudia (The Hindu)

Won't remove material just because it's controversial: Google | (Press Trust of India)

Any Normal Human Being Would Be Offended | Heather Timmons (New York Times, India Ink)

After Sibal, Omar too feels some online content inflammatory | (Press Trust of India)

Online uproar as India seeks social media screening | Devidutta Tripathy and Anurag Kotoky (Reuters)

Kapil Sibal for content screening: Facebook, Twitter full of posts against censorship | (IANS)

India May Overstep Its Own Laws in Demanding Content Filtering | John Ribeiro (IDG)

Kapil Sibal warns websites: Mixed response from MPs | (Press Trust of India)

Websites must clean up content, says Sibal | (NewsX)

Kapil Sibal warns websites; Google says won't remove material just because it's controversial | Press Trust of India

Censorship By Any Other Name... | Yamini Lohia (Mint)

Kapil Sibal: We have to take care of sensibility of our people | Associated Press

Kapil Sibal gets backing of Digvijaya Singh over social media screening | Press Trust of India

Sibal Gets What He Set Out To Censor | (Hindustan Times, Agencies)

Objectionable Matter Will Be Removed, Censorship Not in Picture Yet: Kapil Sibal | Amar Kapadia (News Tonight)

Wednesday, December 7, 2011

Kapil Sibal Doesn't Understand the Internet | Shivam Vij (India Today)

'Chilling' Impact of India's April Internet Rules | Heather Timmons (New York Times, India Ink)

Screening, not censorship, says Sibal | (Business Standard)

Chandni Chowk to China | Salil Tripathi (Mint)

Kapil Sibal vs the internet | Sandipan Deb (Mint)

No Need for Censorship of the Internet: Cyber Law Experts | (Times News Network)

Protest with flowers for Sibal | (The Hindu)

Kapil Sibal cannot screen this report | Team DNA, Blessy Chettiar & Renuka Rao (Daily News and Analysis)

Kapil Sibal warns websites, but experts say prescreening of user content not practical | (Reuters)

Sibal's Remarks Brought Disgust | Hitesh Mehta (News Tonight)

BJP backs mechanism to curb objectionable content on websites | (The Hindu)

Move to regulate networking sites should be discussed in Parliament: BJP | (Press Trust of India)

Sibal under attack in cyberspace | (Press Trust of India)

Kapil Sibal's web censorship: Indian govt wanted 358 items removed, says Google | (Press Trust of India)

Kapil Sibal gets BJP support but with rider | (Indo-Asian News Service)

Sibal's way of regulating web not okay, says BJP | (Indo-Asian News Service)

Censorship in Blasphemy's Clothings | Gautam Chikermane (Hindustan Times, Just Faith)

India wants Google, Facebook to screen content | Sharon Gaudin (Computer World)

Should we be taming social media? | Swati Prasad (ZDNet, Inside India)

Kapil Sibal gets lampooned for views on Web control | (Daily News and Analysis)

'We don't need no limitation' | Asha Prakash (Times of India)

Five reasons why India can't censor the internet | Prasanto K. Roy (Indo-Asian News Service)

We Are the Web | (Indian Express)

Thursday, December 8, 2011

Kapil Sibal under attack in cyberspace, (Press Trust of India)

Speak Up for Freedom | Pranesh Prakash (Indian Express)

Newswallah: Censorship | Neha Thirani (New York Times, India Ink)

No Question of Censoring the Internet, Says Sachin Pilot | (NDTV)

Mind Your Netiquette, or We'll Mind it for You | A.A.K. (The Economist)

Take Parliament's view to regulate social networking sites, BJP tells govt | (Times News Network)

India wanted 358 items removed | Priscilla Jebaraj (The Hindu)

Indian Government v Social Networking sites: Expert Views | (Bar & Bench News Network)

Can Government Muzzle Websites? | Priyanka Joshi & Piyali Mandal (Business Standard)

US concerned over internet curbs, sidesteps India move | (Indo-Asian News Service)

Why Internet Companies Are Upset with Kapil Sibal | (Rediff)

Why Censor Facebook When You Don't Censor Sunny Leone? | (Indo-Asian News Service)

Online content issue: Talks with India on, says U.S. | (Press Trust of India)

US calls for Internet freedom amid India plan | Agence France-Presse

For more details visit https://cis-india.org/internet-governance/blog/press-coverage-online-censorship

India entering the Minority Report age?

praskrishna — 2011-12-10T06:40:57Z

Indian government efforts to block offensive material from the Internet have prompted a storm of online ridicule along with warnings of the risk to India's image as a bastion of free speech.

Communications Minister Kapil Sibal pledged a crackdown on “unacceptable” online content, saying Internet giants such as Google, Yahoo! and Facebook had ignored India's demands to screen images and data before they are uploaded.

“We will evolve guidelines and mechanisms to deal with the issue,” Sibal told reporters this week, without detailing what steps might be taken.

His comments provoked anger and derision among Indian Internet users, while experts raised doubts about the practicalities of enforcing any directive and others questioned the government's motives.

Sunil Abraham, executive director at the Centre for Internet and Society in Bangalore, said it would be “impractical on the level of scale and on the level of the objective test”.

“What's offensive for someone might be completely banal to somebody else,” he told AFP.

Any ham-fisted government crackdown would “have a high impact on our credibility as a democracy” and risk alienating India's growing online community, Abraham said.

“We should be doing almost everything to promote the take-up of the Internet. It's almost tragic that we're pushing in the opposite direction,” he added.

India, the world's largest democracy, has more than 110 million Internet users out of a population of 1.2 billion, with predictions that 600 million people will be online in the next five years.

#KapilSibal has this week become one of the most trending topics among Indian users of the micro-blogging site Twitter, with many resorting to humour to mock the minister.

Some likened his comments to attempts by Pakistan's telecoms regulator last month to ban text messages containing nearly 1,700 words it deemed “obscene”, which was shelved after outrage from users and campaigners.

The satirical Indian web site fakingnews.com compared Sibal's plans to the futuristic Hollywood film “Minority Report”, in which criminals are arrested before committing their crimes.

It also carried a spoof news article headlined: “All Facebook posts to have 'Kapil Sibal likes this' by default”.

The mainstream media has been generally critical of Sibal as well, warning the government that it could not be seen to over-step the boundaries protecting India's treasured democratic values.

“Pre-screening of content amounts to unacceptable censorship,” the Business Standard said in an editorial.

There was even a mild expression of concern from Washington where US State Department spokesman Mark Toner was asked about the Indian government's stance.

“We are concerned about any effort to curtail freedom of expression on the Internet,” Toner said, while carefully avoiding any direct criticism of Sibal's proposals.

Sibal rejected any suggestion of an assault on free speech, saying the government had pleaded for self-regulation by companies such as Google to filter out deeply “insulting” material.

He highlighted examples of faked pictures of naked politicians, including Congress Party head Sonia Gandhi, and other images and social network pages that he said could inflame religious tensions.

India has in the past moved to block the publication of books and other material seen as disrespectful to Gandhi, or other members of the Nehru-Gandhi dynasty that has dominated India's political life since independence.

Vijay Mukhi, a Mumbai-based freelance consultant who writes on Internet security, said Sibal had shown a fundamental lack of understanding about technology and was badly-advised.

He also saw in the reaction to the proposals a sign of how the Internet is undermining traditional unquestioning respect and deference towards elders and authority figures.

“Most of us in India are very sensitive about what people say. The problem also is that whilst the Internet is there, you have to have a thick hide,” said Mukhi.

“Politicians have got to create a second, third or fourth skin to be immune to the criticism that they get.”

New Delhi has been accused before of censorship after demanding that BlackBerry makers Research In Motion give Indian security services access to encrypted messaging and email services.

Analysts agreed that under certain circumstances, particularly national security, pre- or post-censorship was acceptable, as India was the frequent target of extremists.

Abraham, though, said any ban on data and images on decency grounds without a prior complaint was doomed to fail and likely to be contrary to the constitutional right of freedom of expression if challenged in court. - Sapa-AFP

The blog post by Phil Hazlewood was published in ioL scitech. Sunil Abraham was quoted in this. Read the original here

For more details visit https://cis-india.org/minority-report-age

Perumal Murugan and the Law on Obscenity

Japreet Grewal — 2016-08-09T13:01:03Z

On July 5, 2016, the Madras High Court saved Perumal Murugan’s novel, Mathorubhagan 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 S. Tamilselvan & Perumal Murugan versus Government of Tamil Nadu. 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?

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.

The Court was required to evaluate, whether the novel was obscene (Section 292 of Indian Penal Code, 1860 (IPC)), offensive to the community (Section 153A of IPC) and the religion (Section 295 of IPC); 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.

The Court relied on the standard for determining obscenity in Aveek Sarkar v. State of West Bengal 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 (para 150 and 151). The Court further relied on MF Hussain v. Rajkumar Pandey, (also decided by Justice Sanjay Kishan Kaul) wherein it was held, that while evaluating obscenity in a work, “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.”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, “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?” (para 136) However, it eventually reinforced these standards by applying the existing precedents on obscenity. 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, “sex, per se, was not treated as undesirable, but was an integral part right from the existence of civilization” (para 149) and that “in our society, we seem to be more bogged down by conservative Victorian philosophy rather than draw inspiration from our own literature and scriptures.”The Court also said, “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.”(para 148) 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.
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 (para 154) and stated that “any contra view or social thinking is met at times with threats or violent behaviour” (para 142).
The Court addressed the issue of harassment of writers and artists at the hands of a mob and held that there should “be a presumption in favour of free speech and expression as envisaged under Article 19(1)(a) of the Constitution of India” 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 (para 175).Citing MF Hussain v. Rajkumar Pandey, the Court said “freedom of speech has no meaning if there is no freedom after speech.”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.

Reproducing an extract of the judgment here, “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.” (para 184) The words, “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.” 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. 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. “(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….” The Court further acknowledged that “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” (para 181). The Court thus issued directions to the Government 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(para 181). 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.

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.

For more details visit https://cis-india.org/internet-governance/perumal-murugan-and-the-law-on-obscenity

Consilience 2019

Admin — 2019-06-05T07:25:08Z

The Law and Technology Society at the National Law School of India University, Bangalore organised Consilience on May 25, 2019.

Gurshabad Grover was a panelist on the discussion on 'Online Content Regulation: Global Perspectives and Solutions'. The other panelists were Jyoti Panday (Telecom Centre of Excellence) and Alok Prasanna Kumar (Vidhi Centre for Legal Policy). The session was moderated by Divij Joshi. Gurshabad's contributions centered around the interplay of content moderation, regulation and competition issues. He also discussed the disharmony between the recommendations of the UN Special Rapporteur on FoE and developing legal norms of regulation. Akriti Bopanna gave her inputs to Gurshabad Grover.

For more details visit https://cis-india.org/internet-governance/news/consilience-2019