Centre for Internet and Society

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 He said recent, unpublished research conducted by the group showed that "such rules have a chilling effect on the freedom of expression on the Internet."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

Online gag:Existing rules give little freedom

praskrishna — 2011-12-12T05:42:05Z

Even as the controversy over Kapil Sibal's attempt to get internet giants such as Google and Facebook to prescreen user-generated content to weed out 'offensive' material rages, a yet-to-be-published study by Bangalore-based Centre for Internet and Society reveals that rules already in place can have "chilling effects on free expression on the internet".

The study set out to examine if the Information Technology (Intermediaries Guidelines) Rules 2011, notified in April 2011, could create a gagging effect on websites that provide a platform for user-generated content in the form of opinion and comments. Websites such as Facebook, Yahoo, YouTube and Twitter fall under this category. The study was commissioned by the Centre for Internet and Society, which was invited to comment on the department of information technology when it framed the seminal Information Technology Act 2000.

The study author set out to test the process of 'takedown' (requesting an internet entity to remove material that can be interpreted as 'hateful', 'disparaging', 'defamatory', etc) by notifying seven separate internet entities of content linked to their websites or hosted by them that could, in very loose terms, be deemed offensive. The entities are not named in the study.

This first-of-a-kind experiment included actions such as sending search engines a takedown notice alerting it to results on searching the keywords 'online gambling' and alerting a news website about comments on a news story related to the Telangana dispute.

In six of the seven cases, the intermediaries and hosts - technical terms for websites that host content - acted promptly to not only remove the 'offensive' content without due processes of investigation but in some cases went beyond their brief to remove all content connected with the one mentioned in the takedown notice.

For instance, a news website that was sent a takedown notice about a well-argued and non-abusive comment to an article on the Telangana issue took down not just that comment, but all 15 comments published below the article In the case of the results of a search for 'online gambling', despite the fact that intermediaries are exempted from being implicated in such cases, one search engine notified took down not just the three links mentioned in the notice but another 25 sub-domains as well, "presumably to avoid legal risk and to err on the side of caution," the CIS report says.

"Our criticism is of the policy and not of the websites and Internet entities that are forced to err on the side of caution when faced by such notices," says Sunil Abraham, executive director, Centre for Internet and Society. "We are aware that they do not always have the legal and manpower resources necessary to monitor the enormous volumes of content they host." These companies often overstep their brief in order to avoid legal hassles resulting from what Abraham calls "unconstitutional limits on free speech".

The original story was published by the Times of India on 9 December 2011. Sunil Abraham was quoted in it. Read the story on Times of India here

For more details visit https://cis-india.org/online-gag

Freedom of Expression on the Internet : Possibilities and Challenges

praskrishna — 2017-07-09T02:30:32Z

Sharat Chandra Ram was a speaker at an international seminar organized by Bolivar Technological University, Cartagena in Colombia on June 29, 2017. The theme of the seminar was ‘Freedom of Expression on the Internet : Possibilities and Challenges”.

For more info on the event, click here

For more details visit https://cis-india.org/internet-governance/news/freedom-of-expression-on-the-internet-possibilities-and-challenges

New rules leave social media users vulnerable: Experts

Krupa Joseph — 2021-06-14T11:27:53Z

They analyse the implications of the government vs Twitter controversy on individual privacy

The article by Krupa Joseph was published in the Deccan Herald on 10 June 2021. Torsha Sarkar has been quoted.

The government had notified the changes on February 25, and allowed social media companies three months to comply. Twitter and WhatsApp had then separately approached the Delhi High Court against the new regulations, fearing they could compromise user privacy.

On Monday, the court gave Twitter three weeks to file a response to the government’s charge that it had not appointed a grievance officer as claimed.

Vague rules

Karthik Srinivasan, communications consultant, who uses his blog Beast of Traal to comment on social media, says the new rules are “vague and open-ended”.

“Coupled with the fact that we still do not have a data protection law, the rules could be severely misused both by government and private entities,” he says.

Users are particularly vulnerable in a country where anything and everything offends a lot of people, he says.

Law overreach

Torsha Sarkar, researcher with the Centre for Internet and Society, says the rules introduce additional obligations for social media platforms and classify intermediaries.

“Intermediaries with over five million users would have obligations to introduce traceability, instal automated filtering, provide detailed grievance redressal mechanisms, and publish compliance reports detailing action taken on takedown orders,” she says.

While some of these obligations are similar to those laid down internationally, some alterations are causing concern. The traceability requirement, for example, is highly contentious as it would erode user privacy.

“It is also concerning that the user threshold, for a country like India, with such vast Internet usage, is set at a very low level. This means that even smaller social media platforms might becompelled to carry out economically crippling obligations,” she explains.

The legislative overreach is seen in how the initial draft , which only covered entities like Twitter and Facebook, now seeks to cover digital news media and content curators like Netfl ixand Hulu, she says.

Stretching the scope of the legislation this way is undemocratic since it was not subject to any public consultation, she notes.

Case in High Court

Mishi Choudhary, technology lawyer and founder of SFLC.in, a legal services organisation specialising in law, technology and policy, says the IT rules notified by the government are unconstitutional. “In the garb of addressing misinformation and regulating technology companies, the government has been exceeding the powers granted through subordinate legislation and using it for political purposes,” she says. It is on these grounds that the Free and Open Source Software community has challenged the new rules in the Kerala High Court. “Technology companies need regulation but not at the expense of user rights,” she says.

Congress ‘toolkit’ row

A few weeks after social media platforms were asked to take down posts critical of thegovernment’s management of India’s Covid-19 crisis, Twitter once again found itself at thereceiving end. Last week, Twitter labelled a tweet by BJP leader Sambit Patra, accusing theCongress of working with a ‘toolkit, as ‘manipulated media’. Twitter says it gives the label totweets that include media (videos, audio, and images) that are “deceptively altered orfabricated”. The Delhi police then sent a notice to Twitter in connection and asked the micro-blogging site to explain the reasons for assigning the tag. The police also conducted raids onTwitter offices in India. Things escalated when Twitter said the government was intimidating it. The government hit back saying law-making was its privileges, and Twitter, being a social media platform, should not dictate legal policy framework.

New rules

Under the new IT rules, social media companies like Facebook, WhatsApp and Twitter will be responsible for identifying the originator of a flagged message within 36 hours. They also have to appoint a chief compliance officer, a nodal contact person and a resident grievance officer. Failing to comply with these rules would cause the platforms to lose their status as intermediaries, and make them liable for whatever is posted on their platforms.

For more details visit https://cis-india.org/internet-governance/news/deccan-herald-krupa-joseph-june-10-2021-new-rules-leave-social-media-users-vulnerable

The Legal Validity of Internet Bans: Part II

Geetha Hariharan and Padmini Baruah — 2015-10-08T11:17:24Z

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.

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 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 certain websites, while Section 144, CrPC grants a wider power.

This is what the Court said (para 9 of the order):

“If the comparison of both the sections in the field of operations is made, barring certain minor overlapping more particularly for public order [sic], one can say that the area of operation of Section 69A is not the same as that of Section 144 of the Code. Section 69A may in a given case also be exercised for blocking certain websites, whereas under Section 144 of the Code, directions may be issued to certain persons who may be the source for extending the facility of internet access. 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.” (emphases ours)

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.

I. Special Law Prevails Over General Law

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.

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 Maya Mathew v. State of Kerala, (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.

On the basis of this principle, let’s take a look at the IT Act, 2000. Section 81, IT Act 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 Statement of Objects and Reasons 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.

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.

II. Section 69A, IT Act Allows Blocks on Internet Access

Section 69A(1), IT Act says:

“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 access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource.” (emphasis ours)

Essentially, Section 69A says that the government can block (or cause to be blocked) for access by the public, any information generated, transmitted, etc. in any computer resource, if the government is satisfied that such a measure is in the interests of public order.

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.

Access: Section 2(1)(a), IT Act defines access as “...gaining entry into, instructing or communicating with… resources of a computer, computer system or computer network”.

Computer resource: Section 2(1)(k), IT Act defines computer resource as “computer, computer system, computer network...”

Information: Section 2(1)(v), IT Act defines information as “includes… data, message, text, images, sound, voice...”

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:

(1) Do 2G and 3G services, broadband and Wifi fall within the definition of ‘computer network’?

Computer network: Section 2(1)(j), IT Act defines computer network as “inter-connection of one or more computers or computer systems or communication device…” by “...use of satellite, microwave, terrestrial line, wire, wireless or other communication media”.

(2) Do mobile phones that can connect to the Internet (we say smartphones for simplicity) qualify as fall within the definition of ‘computer resource’?

Communication device: Section 2(1)(ha), IT Act defines communication device as “cell phones, personal digital assistance or combination of both or any other device used to communicate, send or transmit any text, video, audio or image”.

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 any information (data, message, text, images, sound, voice) can be blocked, and the conclusion seems clear.

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.

III. Section 69A Permits Blocking in Emergency Situations

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 (“Blocking Rules”) operate together with Section 69A(1).

Rule 9 of the Blocking Rules deals with blocking of information in cases of emergency. It says that in cases of emergency, when “no delay is acceptable”, 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.

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].

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.

Acknowledgements: 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.

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.

For more details visit https://cis-india.org/internet-governance/blog/the-legal-validity-of-internet-bans-part-ii

Mobilising support for freedom on the Web

praskrishna — 2012-04-25T11:02:58Z

A motion in the Rajya Sabha has sought annulment of the IT intermediary guidelines, writes Deepa Kurup in this article published in the Hindu on April 22, 2012.

A research, or a sting operation, conducted by researchers at the Centre for Internet and Society in October 2011 — a few months after the Information Technology (Intermediary Guidelines) Rules were notified — revealed some inherent flaws in the guidelines laid down by the Indian government. The results of the study made news, particularly after Union Minister for IT, Kapil Sibal, asked Internet companies and Web service providers to screen content.

The study revealed that companies were only too eager to comply with take-down notices or requests, in order to avoid further hassles, particularly legal ones.

Rishab Dara, a researcher who was part of this ‘sting', pointed out that unless the content was commercial, or had potential commercial interest, companies preferred to err on the side of caution.

Addressing an audience at a panel discussion, titled ‘Resisting Internet censorship: strategies for furthering freedom of expression in India', held at the Bangalore International Centre, Mr. Dara pointed out that search engines did not invest enough resources to check how valid the claims were, before taking down over 2,000 URLs related to a random complaint or take-down notice sent by them. His study underlined the need for debate and discussion on the intermediary guidelines, locating this in the larger context of freedom on the Web.

The discussion, organised by the Centre for Internet and Society, was moderated by the former journalist and academic, Paranjoy Guha Thakurta. The audience and the panel comprised a diverse lot: from students, netizens and academics to those who were directly involved in the business of publishing content or hosting Web content. While a substantial part of the discussion dealt with the legal aspects of the notified rules, and how it may contradict the constitutional rights of citizens, a section of the debate also delved into whether the Web as a medium needed to be policed at all.

If panellist Mahesh Murthy, Chief Executive Officer of Pinstorm, argued vociferously for unfettered freedom on the Web and accused the government of being threatened by movements such as the anti-corruption campaign led by Anna Hazare (which he said was largely mobilised on the Web), another panellist Na. Vijayshankar, Cyber Law College, who claimed he was among those instrumental in bringing down the pornographic cartoon portal Savitabhabhi.com, argued that though these rules need to be withdrawn, there are “boundaries” to what can be posted and said on the Web.

Another section of the audience brought up the issues of hate speech on the Web, and pointed out that in some cases there was a need to pin liability on those who generate content that incites hatred.

Sudhir Krishnaswamy, Centre for Law and Policy Research, pointed out that currently the way the issue was being played out in court, the discourse was more about companies.

“The debate is not about users today. Companies are trying to duck liabilities, rather than deal with substantive issues of free speech,” he said, pointing to the complexities in locating liability for content.

Speaking from the publisher's perspective, B.G. Mahesh, OneIndia.in, an online news and entertainment portal, spoke of specific cases where his portal had been targeted by the Chennai Cybercrime cell for hosting a news story (syndicated from a news agency) that was declared defamatory. “We took it down, but there was no answer from them when we asked for an explanation,” he said, adding that in such cases there is tremendous pressure and harassment from authorities, leaving publishers with no choice but to comply.

Though the IT intermediary rules were notified in April 2011, the issue made headlines when Union Minister for Information and Communication Technology Kapil Sibal asked private companies or Web service providers to pre-screen content, a statement which he later withdrew.

Also discussed in detail were the complexities posed by a medium like the World Wide Web, and what were the reasonable restrictions to free speech on the Web. Does one need a separate legal dispensation to deal with this medium, Mr. Thakurta asked. While emphasising that the solution does not lie in “knee-jerk reactions”, such as the rules that have been proposed, he pointed out that the bid to control flow of information was a simple manifestation of the utter helplessness and inability of the government — and governments worldwide — to control the Web. Be it in West Bengal, where a professor is held for sharing a cartoon, or with the Union government that beckons corporates to pre-screen the Web, these acts are a manifestation of a “combination of arrogance and stupidity”, he said.

Subsequently, in February, Rajya Sabha member from Kerala, P. Rajeeve, moved a statutory motion in the Rajya Sabha seeking that these guidelines be annulled on the grounds that it allowed intermediaries protection from legal liability in return for trading away freedom of expression of users.

In the Parliamentary session that will start next week, this is likely to come up for discussion, and across the country, rights activists are mobilising support and lobbying with legislators to garner support for this annulment.

Read the original here

For more details visit https://cis-india.org/news/mobilising-support-for-freedom-on-web

Expect anti-net censorship echo in house

praskrishna — 2012-04-25T11:07:43Z

For the anti-Internet censorship movement in the country, hope is now in sight. Their fight against the intermediary provisions (section 79) of the IT laws, according to which, an intermediary (website, domain owner) would have to take off content that a third party (or complainant) finds ‘objectionable,’ without any room for appeal, has now garnered the attention of the government itself. What is at stake is our fundamental rights, warns CPM Member of Parliament P Rajeeve, who was perhaps the first at the government level to realise that there was a gaping hole in the provision, and took up the matter in the Rajya Sabha.

This blog post by Arpan Daniel Varghese was published in IBN Live on April 25, 2012

“A discussion on the annulment of the IT Act 2011 itself is likely to figure in the budget session of the Parliament on April 24. I am trying to mobilise other MPs. We have decided to convene a meeting of organizations, representatives of political parties and MPs to discuss this issue in detail,” says MP Rajeeve.

Noted Twitteratti and former Minister of State for External Affairs Shashi Tharoor too is concerned, particularly about the onus this places on Internet Service Providers.

“If a newspaper publishes something, you go after the newspaper, not the delivery boy. Yes, you can ask the delivery boy to stop delivering the newspaper, but that is such an extreme step that few democracies would contemplate. But what we are trying to do seems to go unacceptably far in this direction and needs further reconsideration,” Tharoor says, adding that he too is planning to raise the issue in the Lok Sabha.

Both Alok Dixit from ‘Save Your Voice’ and Sunil Abraham, the executive director of the Centre for Internet And Society (CIS), say they are speaking to MPs and others in the government and trying to initiate an motion in the Rajya Sabha against the intermediary provisions. And support has been pouring in from all quarters, be it cyber space or through the pan-India protests, including the recent one at the Marina Beach in Chennai that ‘Save Your Voice’ has been holding.

Alok, Sunil and scores of activists across the country are now pinning their hopes on the annulment motion introduced by MP Rajeeve, which is likely to be taken up during the second half of the Parliament session on Tuesday.
The main hassle, however, is ignorance. “People don’t even know about the laws. They are not aware of their rights. So, the kind of support we are getting is quite less,” says Alok.

The legal fraternity and the administration too face the same roadblock, agrees Kerala High Court advocate Jacob. “This is a new area and people are just learning the theoretical side of it. There are not many cases. Trained professionals are not there to train the legal fraternity itself,” he rues.

The fundamental question is, according to Sunil, “why should freedom of speech and expression be any different on the Internet?”
“Remember, this is the same Internet which brought out Kolaveri and structured the Anna movement. So, it affects you,” Alok signs off.

Read the original here

For more details visit https://cis-india.org/news/anti-net-censorship-echo-in-house

Campaign against curbs on websites gathers steam

praskrishna — 2012-04-25T11:19:29Z

For political cartoonist Aseem Trivedi and his blogger-cum-journalist friend Alok Dixit, who both ran a website against corruption, a tryst with the blind side of law triggered their mission against “gagging” of the new-age Indian Internet user.

The blog post by Arpan Daniel Varghese was published by IBN Live on April 23, 2012.

It all started when they were in Mumbai, taking part in the first public protest seeking a strong Lokpal led by social activist Anna Hazare. “During the course of the protest, we got word that our website had been taken off,” recalls Alok.

The Mumbai Police had banned the website without any prior notice, apparently after a complaint was filed by a Congress leader that some content on the site, CartoonsAgainstCorruption, was objectionable, he says.

“We then contacted Bigrocks, the domain provider, but they did not divulge the exact procedure to restore our website,” he adds.

Kerala High Court lawyer P Jacob, who has a masters in cyber law and is a researcher in the field, clarifies. “Let’s say that you are a website, blog or domain owner... As per the intermediary rules incorporated into the IT laws, introduced through an amendment in 2011, if a third person sends a complaint, be it a frivolous one, to you (the intermediary ) about some objectionable content, you will have to take off the said content within 36 hours.”

This could happen to any one and could be quite dangerous, points out Sunil Abraham, the executive director of The Centre for Internet and Society (CIS-India).� “If a company wants to target your organization’s social media network, they can keep sending fraudulent emails to you and you will have to keep deleting it unless you are ready to face litigation or government action. And then there is no penalty for abusing the provision. There is no transparency, the people who comment will not be told,” says Sunil.

It was this realization that drove Alok, who then quit his job as a reporter, and Aseem Trivedi to start a movement against such blind curbs. ‘Save Your Voice’ was thus born.

A research conducted by the CIS gave further credence to their fears that it was very “easy to ban any website in India.”

“We call it a policy sting operation,” details Sunil. “We sent out fraudulent take- down notices (or complaints) to seven of the largest intermediaries in India. They gladly over-complied and promptly took off the material in question. You can try this. You could look at a legitimate comment and complain that this is blasphemous, offensive or plain annoying. And without questioning your locus standi, the intermediary sites will have to take it off.”

For more details visit https://cis-india.org/news/campaign-against-curbs-on-websites

Indian Porn Ban is Partially Lifted But Sites Remain Blocked

pranesh — 2015-09-13T09:00:03Z

The Indian government made a quick about-face on its order to block hundreds of pornography websites on Tuesday, partially lifting the ban after political backlash against the moral policing.

The article was published in Wall Street Journal on August 5, 2015. Pranesh Prakash gave his inputs.

But the websites remained blocked because Internet service providers were afraid of legal trouble.

The new order from the Department of Telecommunications said that Internet service providers could unblock any of the 857 websites, so long as they don’t contain child pornography. However, the websites remain blocked because service providers say they have no way of knowing whether they contain child porn, and no control over whether they will in the future.

Ravi Shankar Prasad, the IT minister, said Tuesday night that the government would trim down the list of banned sites, to focus only on those that contain child porn.

“A new notification will be issued shortly. The ban will be partially withdrawn. Sites that do not promote child porn will be unbanned,” said Mr. Prasad on the TV news channel India Today.

The wording of the new order created confusion, because it appears to put the responsibility for policing the Internet for child pornography on service providers.

“How can we go ahead? What if something comes up tomorrow [on one of these sites], which has child porn, or something else?,” said an executive at an Indian service provider who asked not to be named.

“The onus cannot be put on the service providers. What the government is doing is inherently unfair, it is not what the law requires,” said Pranesh Prakash, policy director at the Centre for Internet and Society, a Bangalore-based civil liberties advocacy group. It is the government’s job to determine what violates the law, not private companies, Mr. Prakash said.

For more details visit https://cis-india.org/internet-governance/news/the-wall-street-journal-august-5-2015-sean-mclain-indian-porn-ban-is-partially-lifted-but-sites-remain-blocked

India partially lifts Porn Ban?

praskrishna — 2015-09-20T06:30:34Z

India is said to have partially removed the porn ban. But many internet service providers have refused to restore access, due to a 'vague' government order.

The blog post by Nazhat Khan was published in DESI blitz on August 7, 2015.

India has partially lifted the ban of online pornography, just days after blocking user access to 857 adult websites.

The Indian government enforced the ban on July 30, 2015, only to reverse its decision on August 4, 2015. Ravi Shankar Prasad, the Communications and IT Minister, clarifies the ban only targets websites promoting child pornography.

He says: “A new notification will be issued shortly. The ban will be partially withdrawn. Sites that do not promote child porn will be unbanned.” Under the new order, internet service providers (ISPs) in India are allowed to unblock these 857 websites – except for those that contain child pornography.

This has caused another outrage. ISPs complain it is not within their capability and responsibility to do so. Internet Service Providers Association of India (ISPAI) explains: “ISPs have no way or mechanism to filter out child pornography from URLs, and the further unlimited sub-links.

“Hence, we request your good self to advise us immediately on the future course of action in this regard.

“Till your further directive, the ISPs are keeping the said 857 URLs disabled.”

An executive at an Indian ISP tells the Wall Street Journal: “How can we go ahead? What if something comes up tomorrow [on one of these sites], which has child porn, or something else?”

Pranesh Prakash, policy director at the Centre for Internet and Society, points out it is not right for the government to pass the ball over to private companies.

He says: “The onus cannot be put on the service providers. What the government is doing is inherently unfair, it is not what the law requires.” In effect, porn sites in India are still blocked. The Supreme Court and senior officials are yet to provide clearer directives for ISPs.

For more details visit https://cis-india.org/internet-governance/news/desi-blitz-august-7-2015-nazhat-khan-india-partially-lifts-porn-ban

Indian net service providers too play censorship tricks

praskrishna — 2013-02-13T04:20:53Z

The study by a Canadian university has found that some major Indian ISPs have deployed web-censorship and filtering technology.

The article by T Ramachandran was published in the Hindu on February 9, 2013. Sunil Abraham is quoted.

Your internet service provider (ISP) could be blocking some content. A study conducted by a Canadian university has found that some major Indian ISPs have deployed web-censorship and filtering technology widely used in China and some West Asian countries.

The findings, published on January 15, were the result of a search for censorship software and hardware on public networks like those operated by ISPs.

A research team at Citizen Lab, an interdisciplinary laboratory based at the Munk School of Global Affairs, University of Toronto, found a software-hardware combo package called PacketShaper being used in many parts of the world, including India.

The study identified the presence of four PacketShaper installations on the networks of three major ISPs in India during the period of study in late 2012. These ISPs had been earlier “implicated in filtering to some degree,” the report said.

The deployment of such traffic management technologies by ISPs could threaten privacy, freedom of expression and competition, said Sunil Abraham, Executive Director of the Bangalore-based NGO, Centre for Internet and Society.

He said tools like PacketShaper could be used by ISPs for two types of censorship —“to block entire websites or choke traffic on certain services or destinations in a highly granular fashion.”

The U.S.-based producers of the technology, Blue Coat Systems, are quite open about the product features on the company’s website. They say it could be used to control and weed out undesirable content. It could also be used to slow down or speed up the operation of programmes and content flow to achieve the goals set by the operators of the networks.

Transparency is the key

Technology experts said such products could be used to exercise legitimate control over the internet traffic and prioritise the use of bandwidth and resources, if used ethically.

“If done in a transparent manner that does not discriminate against different actors within a class it does benefit the collective interest of the ISP’s clients. However, it could also be used to engage in hidden censorship against legitimate speech and also for anti-competitive behaviour,” said Mr. Abraham.

The study focussed on countries where concerns exist over “compliance with international human rights law, legal due process, freedom of speech, surveillance, and censorship.”

For more details visit https://cis-india.org/news/the-hindu-feb-9-2013-t-ramachandran-indian-net-service-providers-too-play-censorship-tricks