Centre for Internet and Society

Text of DIT's Response to Second RTI on Website Blocking

pranesh — 2011-10-28T14:37:34Z

CIS had filed a request under the Right to Information Act with the government, asking a number of questions relating to blocking of content under the IT Act. We have reproduced below the response we got from the government.

Government of India
Ministry of Communications & Information Technology
Department of Information Technology
Electronics Niketan, 6 CGO Complex,
New Delhi-110003

No: 14(12)/2011-ESD
10.6.2011

Shri Pranesh Prakash,
Centre for Internet and Society,
194, 2C Cross, Domlur Stage II,
Bangalore - 560071

Subject: Request for information under RTI Act, 2005.

Sir,
Reference your request dated 13 May 2011, which was received in this office on 18.5.2011 on the above subject.

The information as received from the custodian of information is attached herewith (Annexure-I, II and III).

Yours faithfully,
(A.K.Kaushik)
Additional Director & CPIO
Cyber Laws & E-Security Division
Tel: 011-24364803

Annexure I

Reply to Shri Pranesh Prakash

How many orders have been issued for blocking of computer resources prior to the coming into force of the Information Technology (Amendment) Act, 2008 (i.e., before October 27, 2009) under the Information Technology Act, 2000, or any other law for the time being in force.

Reply - Five orders were issued for blocking access to web content.

Please provide a list of all the websites for which the DIT has issued blocking orders and the dates on which each website was blocked.

Reply - The following websites have been blocked pursuant to court orders

Sl	Website	Date of issuing direction by designated officer
1.	www.zone-h.org	08.03.2010
2.	http://donotdiall00.webs.com (IP 216.52.115.50)	08.08.2010
3.	www.bloggernews.net/124029	15.11.2010
4.	http://www.google.co.in/#hl=en&source=hp&biw=-1276&bih=843&=dr+babasaheb+ambedkar+wallpaper&aq=4&aqi=gl0&aql=&oq=dr+babas& gs_ rfai=&fp=e791fe993fa412ba	20.12.2010
5.	http://www.cinemahd.net/desktopenhancements/wallpaper/23945-wallpapers-beautiful-girl-wallpaper.html	20.12.2010
6.	http://www.chakpak.com/find/images/kamasutra-hindi-movie	20.12.2010
7.	http://www.submitlink.khatana.net/2010/09/jennifer-stano-is-engaged-to.html	20.12.2010
8.	http://www.result.khatana.net/2010/11/im-no-panty-girl-yana-gupta-wardrobe.html	20.12.2010
9.	http://www.facebook.com/pages/I-Hate-Ambedkar/172025102828076	25.02.2011
10.	www.indybay.org	17.03.2011
11.	www.arizona.indymedia.org	17.03.2011

Please provide a list of all the persons to whom such orders were issued.

Reply - The directions were issued to Department of Telecommunications.
Please provide a list of all the requests for blocking of information that have been received by the Designated Officer under the Information Technology (Procedures and Safeguards for Blocking Access of Information by Public) Rules, 2009 ("Rules").
Please provide a list of all persons/authorities from whom the Designated Officer under the Rules has received requests for blocking of information and the dates these requests were received.

Reply 4 & 5 - The details are given in Annexure-II.
Please provide the files on all the complaints and requests that have been rejected, including file noting.
Please provide the files on all the complaints and requests that have been accepted, including file noting.
Please provide the files on all the complaints and requests that are still being processed (e.g. more information has been sought on the request), including file notings.

Reply 6,7 & 8 - Files are available in section and can be viewed.
Please provide us copies of the minutes of all meetings held by the Committee for Examination of Requests under Rule 8(4) of the Rules.
Please provide copies of all the recommendations of the Committee for Examination of requests under Rule 8(4) of the Rules.

Reply 9 & 10 - Copy of the minutes/recommendation of the meeting of the Committee is at Annexure III.
Please provide us the dates and copies of the minutes of all meetings held by the Review Committee under Rule 14 of the Rules to periodically review the blocked resources.
Please provide us copies of all the findings of the Review Committee.
If the Review Committee has not met, please provide us the reason for the meetings not happenings as per the requirement of Rule 14 of the Rules.

Reply 11, 12 & 13 - This meeting is coordinated by Department of Telecommunications and DIT is not in possession of details.
Does "intermediary" in Rule 13 include intermediaries not located in India?

Reply - Such type of information is not permitted under RTI Act as per DOPT OM No. 1/7/2009 - IR dated 1st June 2009.
Has any block ordered by the DIT ever been revoked by the DIT or any other governmental authority?

Reply - Such questions are not permitted under RTI Act as per DOPT OM No. 1 /7/2009 IR dated 1st June 2009.
On what basis does the DIT decide whether the appropriate intermediary is the person who has put up content, the web host, or the different Internet service providers in India?

Reply - Such type of information is not permitted under RTI Act as per DOPT OM No. 1/7/2009 - IR dated 1st June 2009.
Does Rule 16 of the Rules override the Right to Information Act?

Reply - Such type of information is not admissible under RTI Act as per DOPT OM No. 1/7/2009 - IR dated 1st June 2009.
If the answer to the previous question is yes, please provide any correspondence with any legal officer who provided the DIT advice that it could override the Right to Information Act through delegated legislation.

Reply - Such type of information is not admissible under RTI Act as per DOPT OM No. 1/7/2009 - IR dated 1st June 2009.

Annexure II

Request received by Designated Officer

Website	Date of receipt of request	Request by
www.tamil.net.in	29.03.2010	Secretary Public (Law & Order) Deptt. Secretariat, Chennai 600 009
www.betfair.com	28.06.2010	Sr. Inspector, Cyber Crime Cell, Mumbai
http://www.youtube.com/ch?watv=tHUNESaC0E4	05.07.2010	Jt. Commissioner of Police (Crime), Mumbai
http://ulaginazhagiyamuthalpenn.blogspot.com	21.07.2010	Principal Secretary, IT Department, Chennai–600 009
en.wikipedia.org/Wiki/Sukhbir Singh Badal	11.08.2010	Principal Secretary to Govt. of Punjab, Dept. of IT, Chandigarh
http://www.exbii.com http://www.topix.net	05.10.2010	Commissioner, Maharashtra State, Colaba, Mumbai–400 001
http://ashsyumul.blogspot.com/2009/12/penginaan-terhadap-islam.html	20.08.2010	Shri Haneef Ali, State President, Bharatiya Janata Minority Morcha, Andhra Pradesh
http://www.angelsofindia.com/ http://www.adult-gals.com/ http://www.indianangels.net/ http://www.arabexposed.com/ http://indiamafia.com/ http://www.indianasfuckers.com http://www.indianpronvideos.in/ http://www.peterporntube.com http://www.bollywood-sex.net/ http://www.indianworldsex.com/ http://indianhomevideo.com/ http://indian-pakistani-girls.com http://indianvidz.com http://indianparadise.net/ http://bollywoodscandals.net/ http://indiansexpics.net/ http://www.indian-hardcore-movies.com/ http://www.bollywoodnudesex.net/ http://www.bangmyindianwife.com/ http://www.indian-angel-teens.com/ http://south-indian-sex.com/ http://www.indianseduction.com/ http://www.indiansexuniversity.com http://www.indianpassion.com/ http://fuckmyindianass.com http://indiansexwebcams.com/ http://exoticpics4u.com/ http://www.indianfreesexmovies.com/ http://www.newsindiansexmovies.com/ http://www.peterporn.net/ http://www.3xindianmovies.com/ http://www.amateur-indian-girls.com/ http://www.bollywoodhardcore.net http://www. indiansexpost.com/ http://www.desi-amateurs.com/ http://www.3xasianmovies.com/ http://allindiansex.com/ http://www.indiapornmovies.com http://www.3xindiansex.com/ http://www.indianxclips.com/ http://indiansexvideos.org http://www.pureindianporn.com/ http://indian-porn-sex.com http://www.newsindianpornmovies.com http://juicyindiangirls.com http://www/hardcoreindiansex.net http://bollywoodboobs.com http://indianmovietgp.com/ http://www.365indian.com http://www.indian-sex-hoes.com/ http://www.indian-sex-photos.net/ http://www.indian-free-sex.com/ http://www.indian-sex-movies.org http://ww.tamil-sex-movies.net/ http://www.indianteens.org/ http://www.sexyindianbooty.com http://www.indianposing.com http://www.pornhub.com/ http://www.indianpornhub.com/ http://www.exvideos.com	25.11.2010	Jt.Commissioner of Police (Crime), Mumbai

Annexure III

Minutes of the meeting held on 24-08-2010 for the request for blocking of website www.betfair.com

A meeting of "Committee for examination of request" constituted under the provisions of Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 under section 69A of the Information Technology Act, 2000 was held on 24.08.2010 at Electronics Niketan. New Delhi to examine the Request sent by Government of Maharashtra to block the website www.betfair.com. The meeting was participated by the following members:

Dr. Gulshan Rai, Group Coordinator, Department of Information Technology
Shri Dharmendra Sharma, Joint Secretary, Ministry of Home Affairs
Shri Arvind Kumar, Joint Secretary, Ministry of Information & Broadcasting
Shri Ashok C. Prakash, Additional L.A., Department of Legal Affairs
Shri B.J. Srinath, Sr. Director, CERT-In

The Committee discussed the case and observed that Govt. of Maharashtra has requested for blocking of website www.betfair.com on the grounds of "public order". The Committee also noted the reply from Cyber Crime Cell, Mumbai that no case has been registered against www.betfair.com. Further, no details suggesting the "impact" of the said site on public order has been made available by the State Government.

Keeping in view the directions of the Hon'ble High Court to dispose the application strictly as per law, the Committee assessed that based on the data/facts/details provided by Government of Maharashtra and Cyber Crime Cell, Mumbai, violation of section 69A of the Information Technology Act, 2000 is not being established.

Download a scanned version of the letter received from the DIT office here [PDF, 1.74 MB]

For more details visit https://cis-india.org/internet-governance/dit-response-2nd-rti-blocking

The Humpty-Dumpty Censorship of Television in India

bhairav — 2015-11-29T08:37:53Z

The Modi government’s attack on Sathiyam TV is another manifestation of the Indian state’s paranoia of the medium of film and television, and consequently, the irrational controlling impulse of the law.

The article originally published in the Wire on September 8, 2015 was also mirrored on the website Free Speech/Privacy/Technology.

It is tempting to think of the Ministry of Information and Broadcasting’s (MIB) attack on Sathiyam TV solely as another authoritarian exhibition of Prime Minister Narendra Modi’s government’s intolerance of criticism and dissent. It certainly is. But it is also another manifestation of the Indian state’s paranoia of the medium of film and television, and consequently, the irrational controlling impulse of the law.

Sathiyam TV’s transgressions

Sathiyam’s transgressions began more than a year ago, on May 9, 2014, when it broadcast a preacher saying of an unnamed person: “Oh Lord! Remove this satanic person from the world!” The preacher also allegedly claimed this “dreadful person” was threatening Christianity. This, the MIB reticently claims, “appeared to be targeting a political leader”, referring presumably to Prime Minister Modi, to “potentially give rise to a communally sensitive situation and incite the public to violent tendencies.”

The MIB was also offended by a “senior journalist” who, on the same day, participated in a non-religious news discussion to allegedly claim Modi “engineered crowds at his rallies” and used “his oratorical skills to make people believe his false statements”. According to the MIB, this was defamatory and “appeared to malign and slander the Prime Minister which was repugnant to (his) esteemed office”.

For these two incidents, Sathiyam was served a show-cause notice on 16 December 2014 which it responded to the next day, denying the MIB’s claims. Sathiyam was heard in-person by a committee of bureaucrats on 6 February 2015. On 12 May 2015, the MIB handed Sathiyam an official an official “Warning” which appears to be unsupported by law. Sathiyam moved the Delhi High Court to challenge this.

As Sathiyam sought judicial protection, the MIB issued the channel a second warning August 26, 2016 citing three more objectionable news broadcasts of: a child being subjected to cruelty by a traditional healer in Assam; a gun murder inside a government hospital in Madhya Pradesh; and, a self-immolating man rushing the dais at a BJP rally in Telangana. All three news items were carried by other news channels and websites.

Governing communications

Most news providers use multiple media to transmit their content and suffer from complex and confusing regulation. Cable television is one such medium, so is the Internet; both media swiftly evolve to follow technological change. As the law struggles to keep up, governmental anxiety at the inability to perfectly control this vast field of speech and expression frequently expresses itself through acts of overreach and censorship.

In the newly-liberalised media landscape of the early 1990s, cable television sprang up in a legal vacuum. Doordarshan, the sole broadcaster, flourished in the Centre’s constitutionally-sanctioned monopoly of broadcasting which was only broken by the Supreme Court in 1995. The same year, Parliament enacted the Cable Television Networks (Regulation) Act, 1995 (“Cable TV Act”) to create a licence regime to control cable television channels. The Cable TV Act is supplemented by the Cable Television Network Rules, 1994 (“Cable Rules”).

The state’s disquiet with communications technology is a recurring motif in modern Indian history. When the first telegraph line was laid in India, the colonial state was quick to recognize its potential for transmitting subversive speech and responded with strict controls. The fourth iteration of the telegraph law represents the colonial government’s perfection of the architecture of control. This law is the Indian Telegraph Act, 1885, which continues to dominate communications governance in India today including, following a directive in 2004, broadcasting.

Vague and arbitrary law

The Cable TV Act requires cable news channels such as Sathiyam to obey a list of restrictions on content that is contained in the Cable Rules (“Programme Code“). Failure to conform to the Programme Code can result in seizure of equipment and imprisonment; but, more importantly, creates the momentum necessary to invoke the broad powers of censorship to ban a programme, channel, or even the cable operator. But the Programme Code is littered with vague phrases and undefined terms that can mean anything the government wants them to mean.

By its first warning of May 12, 2015, the MIB claimed Sathiyam violated four rules in the Programme Code. These include rule 6(1)(c) which bans visuals or words “which promote communal attitudes”; rule 6(1)(d) which bans “deliberate, false and suggestive innuendos and half-truths”; rule 6(1)(e) which bans anything “which promotes anti-national attitudes”; and, rule 6(1)(i) which bans anything that “criticises, maligns or slanders any…person or…groups, segments of social, public and moral life of the country” (sic).

The rest of the Programme Code is no less imprecise. It proscribes content that “offends against good taste” and “reflects a slandering, ironical and snobbish attitude” against communities. On the face of it, several provisions of the Programme Code travel beyond the permissible restrictions on free speech listed in Article 19(2) of the Constitution to question their validity. The fiasco of implementing the vague provisions of the erstwhile section 66A of the Information Technology Act, 2000 is a recent reminder of the dangers presented by poorly-drafted censorship law – which is why it was struck down by the Supreme Court for infringing the right to free speech. The Programme Code is an older creation, it has simply evaded scrutiny for two decades.

The arbitrariness of the Programme Code is amplified manifold by the authorities responsible for interpreting and implementing it. An Inter-Ministerial Committee (IMC) of bureaucrats, supposedly a recommendatory body, interprets the Programme Code before the MIB takes action against channels. This is an executive power of censorship that must survive legal and constitutional scrutiny, but has never been subjected to it. Curiously, the courts have shied away from a proper analysis of the Programme Code and the IMC.

Judicial challenges

In 2011, a single judge of the Delhi High Court in the Star India case (2011) was asked to examine the legitimacy of the IMC as well as four separate clauses of the Programme Code including rule 6(1)(i), which has been invoked against Sathiyam. But the judge neatly sidestepped the issues. This feat of judicial adroitness was made possible by the crass indecency of the content in question, which could be reasonably restricted. Since the show clearly attracted at least one ground of legitimate censorship, the judge saw no cause to examine the other provisions of the Programme Code or even the composition of the IMC.

This judicial restraint has proved detrimental. In May 2013, another single judge of the Delhi High Court, who was asked by Comedy Central to adjudge the validity of the IMC’s decision-making process, relied on Star India (2011) to uphold the MIB’s action against the channel. The channel’s appeal to the Supreme Court is currently pending. If the Supreme Court decides to examine the validity of the IMC, the Delhi High Court may put aside Sathiyam’s petition to wait for legal clarity.

As it happens, in the Shreya Singhal case (2015) that struck down section 66A of the IT Act, the Supreme Court has an excellent precedent to follow to demand clarity and precision from the Programme Code, perhaps even strike it down, as well as due process from the MIB. On the accusation of defaming the Prime Minister, probably the only clearly stated objection by the MIB, the Supreme Court’s past law is clear: public servants cannot, for non-personal acts, claim defamation.

Censorship by blunt force

Beyond the IMC’s advisories and warnings, the Cable TV Act contains two broad powers of censorship. The first empowerment in section 19 enables a government official to ban any programme or channel if it fails to comply with the Programme Code or, “if it is likely to promote, on grounds of religion, race, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, linguistic or regional groups or castes or communities or which is likely to disturb the public tranquility.”

The second empowerment is much wider. Section 20 of the Cable TV Act permits the Central Government to ban an entire cable television operator, as opposed to a single channel or programmes within channels, if it “thinks it necessary or expedient so to do in public interest”. No reasons need be given and no grounds need be considered. Such a blunt use of force creates an overwhelming power of censorship. It is not a coincidence that section 20 resembles some provisions of nineteenth-century telegraph laws, which were designed to enable the colonial state to control the flow of information to its native subjects.

A manual for television bans

Film and television have always attracted political attention and state censorship. In 1970, Justice Hidayatullah of the Supreme Court explained why: “It has been almost universally recognised that the treatment of motion pictures must be different from that of other forms of art and expression. This arises from the instant appeal of the motion picture… The motion picture is able to stir up emotions more deeply than any other product of art.”

Within this historical narrative of censorship, television regulation is relatively new. Past governments have also been quick to threaten censorship for attacking an incumbent Prime Minister. There seems to be a pan-governmental consensus that senior political leaders ought to be beyond reproach, irrespective of their words and deeds.

But on what grounds could the state justify these bans? Lord Atkins’ celebrated war-time dissent in Liversidge (1941) offers an unlikely answer:

“When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean – neither more nor less.’”

For more details visit https://cis-india.org/internet-governance/blog/the-wire-bhairav-acharya-humpty-dumpty-censorship-of-tv-in-india

'Anonymous' hackers to protest Indian Internet laws

praskrishna — 2012-06-18T04:55:51Z

Global hacking movement Anonymous has called for protesters to take to the streets in 16 cities around India on Saturday over what it considers growing government censorship of the Internet, writes Pratap Chakravarty.

This was published in AFP on June 8, 2012

The call for demonstrations by the Indian arm of the group follows a March 29 court order issued in the southern city of Chennai demanding 15 Indian Internet providers block access to file-sharing websites such as Pirate Bay.

The order has resulted in access being denied to a host of websites that carry pirated films and music among other legal content, including www.isohunt.com and www.pastebin.com.

On Wednesday, the Anonymous forum fired an opening shot by attacking the website of state-run telecom provider MTNL, pasting the logo of the group -- the mask of 17th century revolutionary Guy Fawkes -- on www.mtnl.net.in.

In an open letter the same day, the group accused the government of trying to create a "Great Indian Firewall" to establish control on the web and issuing a "declaration of war from yourself... to us."

Internet users and supporters have been asked to join peaceful rallies in cities including the capital New Delhi and the tech hub of Bangalore, with detailed instructions issued online to participants.

Tech website www.pluggd.in reported the demonstrators have been asked to wear Guy Fawkes' masks, download a recorded message to play to police, and are to chant "United as one! Divided as zero! We are Anonymous! We are legion!"

Concerns about Internet freedom in India go beyond the court order in Chennai, however, and stem from an update to India's Information Technology Act that was given by the IT and communications ministry in April last year.

The new rules regulating Internet companies -- providers, websites and search engines -- instruct them that they must remove "disparaging" or "blasphemous" content within 36 hours if they receive a complaint by an "affected person".

Groups such as the Center for Internet and Society, a Bangalore-based research and advocacy group, have waged a year-long campaign for amendments to the rules, which were quietly released in April.

Industry groups have also objected, saying they are unclear on the changes which are in any case impossible to implement when it comes to acting on individual complaints about specific content.

"A lot of education is required in this field," secretary of the Internet Service Providers Association of India S.P. Jairath told AFP.

The government has also become embroiled in a row with social networks after Telecoms Minister Kapil Sibal held a series of meetings with IT giants Google, Yahoo! and Facebook last year to discuss the pre-screening of content.

The minister was said to have shown Internet executives examples of obscene images found online that risked offending Muslims or defamed politicians, including his boss, the head of the ruling Congress party, Sonia Gandhi.

Since these meetings, 19 Internet firms including Google, Yahoo! and Facebook have been targeted in criminal and civil cases lodged in lower courts, holding them responsible for content posted by users of their platforms.

Anonymous is a secretive "hacker-activist" network and is thought to be a loosely knit collective with no clearly defined leadership structure.

It has claimed dozens of online attacks on sites ranging from the Vatican to Los Angeles Police Canine Association, but is increasingly the target of law enforcement agencies who have arrested dozens of members.

The above was published in the following places as well:

NDTV, June 9, 2012
Jagran Post, June 9, 2012
The Times of India, June 9, 2012
LiveMint, June 9, 2012
Economic Times, June 9, 2012

For more details visit https://cis-india.org/news/anonymous-hackers-to-protest-indian-internet-laws

Online Pre-Censorship is Harmful and Impractical

pranesh — 2011-12-12T17:00:50Z

The Union Minister for Communications and Information Technology, Mr. Kapil Sibal wants Internet intermediaries to pre-censor content uploaded by their users. Pranesh Prakash takes issue with this and explains why this is a problem, even if the government's heart is in the right place. Further, he points out that now is the time to take action on the draconian IT Rules which are before the Parliament.

Mr. Sibal is a knowledgeable lawyer, and according to a senior lawyer friend of his with whom I spoke yesterday, greatly committed to ideals of freedom of speech. He would not lightly propose regulations that contravene Article 19(1)(a) [freedom of speech and expression] of our Constitution. Yet his recent proposals regarding controlling online speech seem unreasonable. My conclusion is that the minister has not properly grasped the way the Web works, is frustrated because of the arrogance of companies like Facebook, Google, Yahoo and Microsoft. And while he has his heart in the right place, his lack of knowledge of the Internet is leading him astray. The more important concern is the IT Rules that have been in force since April 2011.

Background

The New York Times scooped a story on Monday revealing that Mr. Sibal and the MCIT had been in touch with Facebook, Google, Yahoo, and Microsoft, asking them to set up a system whereby they would manually filter user-generated content before it is published, to ensure that objectionable speech does not get published. Specifically, he mentioned content that hurt people's religious sentiments and content that Member of Parliament Shashi Tharoor described as 'vile' and capable of inciting riots as being problems. Lastly, Mr. Sibal defended this as not being "censorship" by the government, but "supervision" of user-generated content by the companies themselves.

Concerns

One need not give lectures on the benefits of free speech, and Mr. Sibal is clear that he does not wish to impinge upon it. So one need not point out that freedom of speech means nothing if not the freedom to offend (as long as no harm is caused). There can, of course, be reasonable limitations on freedom of speech as provided in Article 19 of the ICCPR and in Article 19(2) of our Constitution. My problem lies elsewhere.

Secrecy

It is unfortunate that the New York Times has to be given credit for Mr. Sibal addressing a press conference on this issue (and he admitted as much). What he is proposing is not enforcement of existing rules and regulations, but of a new restriction on online speech. This should have, in a democracy, been put out for wide-ranging public consultations first.

Making intermediaries responsible

The more fundamental disagreement is that over how the question of what should not be published should be decided, and how that decision should be and how that should be carried out, and who can be held liable for unlawful speech. I believe that "to make the intermediary liable for the user violating that code would, I think, not serve the larger interests of the market." Mr. Sibal said that in May this year in an interview with the Wall Street Journal. The intermediaries (that is, all persons and companies who transmit or host content on behalf of a third party), are but messengers just like a post office and do not exercise editorial control, unlike a newspaper. (By all means prosecute Facebook, Google, Yahoo, and Microsoft whenever they have created unlawful content, have exercised editorial control over unlawful content, have incited and encouraged unlawful activities, or know after a court order or the like that they are hosting illegal content and still do not remove it.) Newspapers have editors who can take responsibility for content published in the newspaper. They can afford to, because the number of articles in a newspaper is limited. YouTube, which has 48 hours of videos uploaded every minutes, cannot. One wag suggested that Mr. Sibal was not suggesting a means of censorship, but of employment generation and social welfare for censors and editors. To try and extend editorial duties to these 'intermediaries' by executive order or through 'forceful suggestions' to these companies cannot happen without amending s.79 of the Information Technology Act which ensures they are not to be held liable for their user's content: the users are. Internet speech has, to my knowledge, and to date, has never caused a riot in India. It is when it is translated into inflammatory speeches on the ground with megaphones that offensive speech, whether in books or on the Internet, actually become harmful, and those should be targeted instead. And the same laws that apply to offline speech already apply online. If such speech is inciting violence then the police can be contacted and a magistrate can take action. Indeed, Internet companies like Facebook, Google, etc., exercise self-regulation already (excessively and wrongly, I feel sometimes). Any person can flag any content on YouTube or Facebook as violating the site's terms of use. Indeed, even images of breast-feeding mothers have been removed from Facebook on the basis of such complaints. So it is mistaken to think that there is no self-regulation. In two recent cases, the High Courts of Bombay (Janhit Manch v. Union of India) and Madras (R. Karthikeyan v. Union of India) refused to direct the government and intermediaries to police online content, saying that places an excessive burden on freedom of speech.

IT Rules, 2011

In this regard, the IT Rules published in April 2011 are great offenders. While speech that is 'disparaging' (while not being defamatory) is not prohibited by any statute, yet intermediaries are required not to carry 'disparaging' speech, or speech to which the user has no right (how is this to be judged? do you have rights to the last joke that you forwarded?), or speech that promotes gambling (as the government of Sikkim does through the PlayWin lottery), and a myriad other kinds of speech that are not prohibited in print or on TV. Who is to judge whether something is 'disparaging'? The intermediary itself, on pain of being liable for prosecution if it is found have made the wrong decision. And any person may send a notice to an intermediary to 'disable' content, which has to be done within 36 hours if the intermediary doesn't want to be held liable. Worst of all, there is no requirement to inform the user whose content it is, nor to inform the public that the content is being removed. It just disappears, into a memory hole. It does not require a paranoid conspiracy theorist to see this as a grave threat to freedom of speech. Many human rights activists and lawyers have made a very strong case that the IT Rules on Intermediary Due Diligence are unconstitutional. Parliament still has an opportunity to reject these rules until the end of the 2012 budget session. Parliamentarians must act now to uphold their oaths to the Constitution.

For more details visit https://cis-india.org/internet-governance/online-pre-censorship-harmful-impractical

Internet Freedom At Home: Governments, Companies Need Accountability, Speakers Say

praskrishna — 2012-06-28T05:27:43Z

The freedom to access the internet does not translate into freedom of expression in many countries of the world, including in western economies, according to speakers at a peer forum organised yesterday by the United States mission to the United Nations in Geneva.

Catherine Saez wrote this for Intellectual Property Watch on June 22, 2012

Both governments and companies, prime providers of internet surveillance technologies in particular in the developed countries, need to be held accountable for the destination and use of those technologies, some of which run counter to human rights.

The peer forum on internet freedom and human rights was held on 21 June and gathered technology experts, and human right activists, with the participation of the mission’s Internet Freedom Fellows programme, organised since 2011 in parallel with the UN Human Rights Council.

Freedom to connect exists in most countries where internet surveillance runs counter to human rights but not freedom from fear, Rebecca MacKinnon, former CNN journalist and co-founder of Global Voices Online said.

“Internet freedom does not mean just free networks, it means free people,” MacKinnon said. “Accomplishing that and constraining the abuse of power across digital networks is a tough problem.”

Strong Global Standard Needed, Democracies also Concerned

In the Internet Age, it is technically trivial both for corporations and governments to gain access to people’s private communications, she said. The issue is that without strong global standards the empowering potential of the internet is going to be diminished, she said. This is true not only for interconnection but also public transparency and accountability in how surveillance technologies are developed, deployed. And it applies to how information is shared between governments and between companies and governments.

Even in democracies, “we are really struggling” with the issue of how to make sure that in the legitimate fight against crime, terrorism, cyber attacks, which all are real problems, the mechanisms put in place are not abused, she said. How can it ensured that those who hold power through those mechanisms will be accountable when they use that power for purposes that were not intended, she asked. She cited a recent report from the American Civil Liberties Union http://www.aclu.org/spy-files on widespread surveillance by US law enforcement agencies across the US.

Surveillance technologies “are being sold very obviously to governments who clearly are going to abuse that technology,” she said. She mentioned what has been nicknamed the “Wiretappers’ Ball” to describe trade fairs run by a company which invites law enforcement and security agencies from around the world to meet with companies that built those technologies.

The last one of those fairs was held “not too far from Washington, DC” and 35 US federal agencies were present, along with representatives of 43 different countries, she said, with ” no questions asked.”

A lot of these technologies are being built or developed primarily by western companies with western governments as prime customers, but are being sold blatantly to countries like Azerbaijan (which has been reported recently for its crackdown on free expression) and others, she said.

As a major customer, the United States needs to demand transparency on the part of these companies about where those technologies are being sold and used, MacKinnon said, adding, “Internet freedom starts at home.”

There is a need to demand that governments be accountable and transparent on what surveillance technologies exist and how they are being deployed and used, and not only at the domestic level, but globally.

As an example of transparency, she cited the Google transparency report, which lists the number of requests from governments around the world both for user information and takedown requests. MacKinnon said the top requesters were democratic governments.

All companies should be requested to provide similar transparency reports, she said, and governments should also issue transparency reports about the number of requests they are making. “There should be ways to do this without compromising active investigation,” she said.

MacKinnon recently published a book entitled, “Consent of the Networked.”

Internet: Shopping Mall or Public Square
A panel discussion addressed the protection of human rights in a world of global networks in which two visions of the internet were described. One is§ the internet as a shopping mall, mainly owned by private interests, the other one as a public square.

Robert Whelan from the International Committee of the Red Cross raised the concept of informed consent in the context of victims of armed conflicts. The victims of violation of human rights law have the right to know what information is going to be used about their experience, or their story, he said. They should know where this information will go, who is going to see it, have access to it, where that information is going to be replicated or reproduced and when will that information will be deleted, he added.

The challenge is to put the civilian victims at the centre, and in control of the information about their experience. This is at odds with the concept of free exchange of information, he said, citing as examples the “re-tweeting” and reproducing of articles, photographs and names on the internet.

Nicolas Seidler from the Internet Society said the internet is not “the wild west” but just the digital version of the real world, and as such is subject to the same human rights instruments. The challenge is that no new rights are needed; rather the need is to implement and reinforce human rights standards on the internet, he said. Governments’ management of the internet is but a reflection of their overall management, he said.

For Brett Solomon, executive director of Accessnow.org, a US-based nongovernmental organisation pushing for digital freedom, several issues are laid out in the “Silicon Valley Standard” [pdf]. The standard was developed after the Silicon Valley human rights conference held in San Francisco in 2011.

The effort to protect rights holders and copyrights by the copyright industry, which he qualified as “voracious,” is putting internet intermediaries at risk of liability, he said.

Effective internet security is essential, he said, as “there is no freedom of speech unless people feel safe and secure.” He called for the right to encryption of web activity. “Technology companies must provide a basic level of security … to their users by default and resist bans and curtailments of the use of encryption,” the standard says.

David Sullivan, policy and communications director for the Global Network Initiative (GNI) presented the initiative, which gathers information and communication technology stakeholders and provides a framework for companies based on international standards. Companies that commit to GNI standards also commit to being assessed independently, he said, on how they implement principles, if they have policies and procedures in place to meet standards and accountability commitments.

Sullivan cited the Stop Online Piracy Act (SOPA), the failed US legislation, as a policy effort aimed at solving one problem around copyright infringing material that is was “going to have deeply worrisome repercussions around the world as other countries look at that example in ways that could have deeply problematic consequences in terms of censorship.”

This year, the human right activists participating in the Internet Freedom Fellows programme are: Dishad Othman from Syria, Pranesh Prakash from India, Koundjoro Gabriel Kambou from Burkina Faso, Sopheap Chak from Cambodia, Andreas Azpurua from Venezuela and Emin Milli from Azerbaijan. Short biographies are here.

Emin Milli, a writer who was imprisoned for expressing his opinion in Azerbajian, said he looked at internet as a public square and not a shopping mall but the situations vastly differ from one country to the other, he added, as contexts are very different. The Eurovision song contest, which was held in the country this year, was a great opportunity for civil society, with the help of international media to draw attention to the situation of Azerbaijan.

Dishad Othman, a Syrian activist and IT engineer, characterised himself as a security activist as he is helping people to use tools to hide themselves on the internet. Sharing experiences from different countries is very important, he said, calling for a larger group of international activists who could help people but also technology companies to provide a safer environment and to promote freedom on the internet so that “all people can benefit from it.”

Pranesh Prakash, programme manager at the Centre for Internet and Society in Bangalore, said people have tools to protect themselves from surveillance that they do not use. In particular, he said, many journalists do not know how to use those tools, especially in the context of journalists’ computers and files that are seized, endangering their sources.

For more details visit https://cis-india.org/news/internet-freedom-at-home

Two women arrested over Facebook gripe on Mumbai shutdown

praskrishna — 2013-01-15T09:26:33Z

A woman who complained about the Indian city of Mumbai shutting down for the funeral of divisive Hindu nationalist politician Balasaheb Thackeray was arrested for "hurting religious sentiments," local police told reporters amid public anger over the case.

This article by Emily Alpert appeared in Los Angeles Times on November 19, 2012. Pranesh Prakash is quoted.

Indian media identified the woman as Shaheen Dhada, 21, who reportedly wrote, "People like Thackeray are born and die daily and one should not observe a bandh [shutdown] for that.”

Police also arrested a friend of hers who "liked" the comment.

The Facebook remark spurred angry backers of Thackeray, a controversial figure who once openly called for attacks on Muslims, to assault a clinic owned by Dhada' uncle. Analysts told the Associated Press that the arrests appeared to be a move by police to head off any further violence from Thackeray supporters.

Free-speech groups were outraged by the ransacking and arrests. In a blistering letter to the chief minister of Maharashtra state, a former Supreme Court justice who now heads the Press Council of India called the charges absurd and unlawful and demanded that the police officers involved be prosecuted.

"We are living in a democracy, not a fascist dictatorship," Markandey Katju wrote.

The Maharashtra director-general of police ordered a probe into the arrests Monday, Indian television station IBN reported. The two women were reportedly released on bail during the day.

The Shiv Sena political party that Thackeray founded has polarized Mumbai over the years with campaigns against Muslims and migrants. His death put the city on high alert over the weekend amid fears of violence. As shops were shuttered and taxis sat idle, some Mumbai residents grew frustrated.

"When tens of thousands were making similar comments ... how did the police single out Shaheen Dhada and her friend for arrest?” wrote Pranesh Prakash of the Center for Internet and Society. He added, "This should not be written off as a harmless case of the police goofing up."

For more details visit https://cis-india.org/news/la-times-nov-19-2012-emily-alpert-two-women-arrested-over-facebook-gripe-on-mumbai-shutdown

Free Speech Policy in India: Community, Custom, Censorship, and the Future of Internet Regulation

bhairav — 2015-08-23T10:12:16Z

This note summarises my panel contribution to the conference on Freedom of Expression in a Digital Age at New Delhi on 21 April 2015, which was organised by the Observer Research Foundation (ORF) and the Centre for Internet and Society (CIS) in collaboration with the Internet Policy Observatory of the Center for Global Communication Studies (CGCS) at the Annenberg School for Communication, University of Pennsylvania

Download the Note here (PDF, 103 Kb)

Preliminary

There has been legitimate happiness among many in India at the Supreme Court’s recent decision in the Shreya Singhal case to strike down section 66A of the Information Technology Act, 2000 ("IT Act") for unconstitutionally fettering the right to free speech on the Internet. The judgment is indeed welcome, and reaffirms the Supreme Court’s proud record of defending the freedom of speech, although it declined to interfere with the government’s stringent powers of website blocking. As the dust settles there are reports the government is re-grouping to introduce fresh law, allegedly stronger to secure easier convictions, to compensate the government’s defeat.

Case Law and Government Policy

India’s constitutional courts have a varied history of negotiating the freedom of speech that justifiably demands study. But, in my opinion, inadequate attention is directed to the government’s history of free speech policy. It is possible to discern from the government’s actions over the last two centuries a relatively consistent narrative of governance that seeks to bend the individual’s right to speech to its will. The defining characteristics of this narrative – the government’s free speech policy – emerge from a study of executive and legislative decisions chiefly in relation to the press, that continue to shape policy regarding the freedom of expression on the Internet.

India’s corpus of free speech case law is not uniform nor can it be since, for instance, the foundational issues that attend hate speech are quite different from those that inform contempt of court. So too, Indian free speech policy has been varied, captive to political compulsions and disparate views regarding the interests of the community, governance and nation-building. There has been consistent tension between the individual and the community, as well as the role of the government in enforcing the expectations of the community when thwarted by law.

Dichotomy between Modern and Native Law

To understand free speech policy, it is useful to go back to the early colonial period in India, when Governor-General Warren Hastings established a system of courts in Bengal’s hinterland to begin the long process of displacing traditional law to create a modern legal system. By most accounts, pre-modern Indian law was not prescriptive, Austinian, and uniform. Instead, there were several legal systems and a variety of competing and complementary legal sources that supported different interpretations of law within most legal systems. J. Duncan M. Derrett notes that the colonial expropriation of Indian law was marked by a significant tension caused by the repeatedly-stated objective of preserving some fields of native law to create a dichotomous legal structure. These efforts were assisted by orientalist jurists such as Henry Thomas Colebrook whose interpretation of the dharmasastras heralded a new stage in the evolution of Hindu law.

In this background, it is not surprising that Elijah Impey, a close associate of Hastings, simultaneously served as the first Chief Justice of the Supreme Court at Fort William while overseeing the Sadr Diwani Adalat, a civil court applying Anglo-Hindu law for Hindus, and the Sadr Faujdari Adalat, a criminal court applying Anglo-Islamic law to all natives. By the mid-nineteenth century, this dual system came under strain in the face of increasing colonial pressure to rationalise the legal system to ensure more effective governance, and native protest at the perceived insensitivity of the colonial government to local customs.

Criminal Law and Free Speech in the Colony

In 1837, Thomas Macaulay wrote the first draft of a new comprehensive criminal law to replace indigenous law and custom with statutory modern law. When it was enacted as the Indian Penal Code in 1860 ("IPC"), it represented the apogee of the new colonial effort to recreate the common law in India. The IPC’s enactment coincided with the growth and spread of both the press and popular protest in India. The statute contained the entire gamut of public-order and community-interest crimes to punish unlawful assembly, rioting, affray, wanton provocation, public nuisance, obscenity, defiling a place of worship, disturbing a religious assembly, wounding religious feelings, and so on. It also criminalised private offences such as causing insult, annoyance, and intimidation. These crimes continue to be invoked in India today to silence individual opinion and free speech, including on the Internet. Section 66A of the IT Act utilised a very similar vocabulary of censorship.

Interestingly, Macaulay’s IPC did not feature the common law offences of sedition and blasphemy or the peculiar Indian crime of promoting inter-community enmity; these were added later. Sedition was criminalised by section 124A at the insistence of Barnes Peacock and applied successfully against Indian nationalist leaders including Bal Gangadhar Tilak in 1897 and 1909, and Mohandas Gandhi in 1922. In 1898, the IPC was amended again to incorporate section 153A to criminalise the promotion of enmity between different communities by words or deeds. And, in 1927, a more controversial amendment inserted section 295A into the IPC to criminalise blasphemy. All three offences have been recently used in India against writers, bloggers, professors, and ordinary citizens.

Loss of the Right to Offend

The two amendments of 1898 and 1927, which together proscribed the promotion of inter-community enmity and blasphemy, represent the dismantling of the right to offend in India. But, oddly, they were defended by the colonial government in the interests of native sensibilities. The proceedings of the Imperial Legislative Council reveal several members, including Indians, were enthusiastic about the amendments. For some, the amendments were a necessary corrective action to protect community honour from subversive speech. The 1920s were a period of foment in India as the freedom movement intensified and communal tension mounted. In this environment, it was easy to fuse the colonial interest in strong administration with a nationalist narrative that demanded the retrieval of Indian custom to protect native sensibilities from being offended by individual free speech, a right derived from modern European law. No authoritative jurist could be summoned to prove or refute the claim that native custom privileged community honour.

Sadly the specific incident which galvanised the amendment of 1927, which established the crime of blasphemy in India, would not appear unfamiliar to a contemporary observer. Mahashay Rajpal, an Arya Samaj activist, published an offensive pamphlet of the Prophet Muhammad titled Rangeela Rasool, for which he was arrested and tried but acquitted in the absence of specific blasphemy provisions. With his speech being found legal, Rajpal was released and given police protection but Ilam Din, a Muslim youth, stabbed him to death. Instead of supporting its criminal law and strengthening its police forces to implement the decisions of its courts, the colonial administration surrendered to the threat of public disorder and enacted section 295A of the IPC.

Protest and Community Honour

The amendment of 1927 marks an important point of rupture in the history of Indian free speech. It demonstrated the government’s policy intention of overturning the courts to restrict the individual’s right to speech when faced with public protest. In this way, the combination of public disorder and the newly-created crimes of promoting inter-community enmity and blasphemy opened the way for the criminal justice system to be used as a tool by natives to settle their socio-cultural disputes. Both these crimes address group offence; they do not redress individual grievances. In so far as they are designed to endorse group honour, these crimes signify the community’s attempt to suborn modern law and individual rights.

Almost a century later, the Rangeela Rasool affair has become the depressing template for illegal censorship in India: fringe groups take offence at permissible speech, crowds are marshalled to articulate an imagined grievance, and the government capitulates to the threat of violence. This formula has become so entrenched that governance has grown reflexively suppressive, quick to silence speech even before the perpetrators of lumpen violence can receive affront. This is especially true of online speech, where censorship is driven by the additional anxiety brought by the difficulty of Internet regulation. In this race to be offended the government plays the parochial referee, acting to protect indigenous sensibilities from subversive but legal speech.

The Censorious Post-colony

Independence marked an opportunity to remake Indian governance in a freer image. The Constituent Assembly had resolved not to curb the freedom of speech in Article 19(1)(a) of the Constitution on account of public order. In two cases from opposite ends of the country where right-wing and left-wing speech were punished by local governments on public order grounds, the Supreme Court acted on the Constituent Assembly’s vision and struck down the laws in question. Free speech, it appeared, would survive administrative concerns, thanks to the guarantee of a new constitution and an independent judiciary. Instead Prime Minister Jawaharlal Nehru and his cabinet responded with the First Amendment in 1951, merely a year after the Constitution was enacted, to create three new grounds of censorship, including public order. In 1963, a year before he demitted office, the Sixteenth Amendment added an additional restriction.

Nehru did not stop at amending the Constitution, he followed shortly after with a concerted attempt to stage-manage the press by de-legitimising certain kinds of permissible speech.

Under Justice G. S. Rajadhyaksha, the government constituted the First Press Commission which attacked yellow journalism, seemingly a sincere concern, but included permissible albeit condemnable speech that was directed at communities, indecent or vulgar, and biased. Significantly, the Commission expected the press to only publish speech that conformed to the developmental and social objectives of the government. In other words, Nehru wanted the press to support his vision of India and used the imperative of nation-building to achieve this goal. So, the individual right to offend communities was taken away by law and policy, and speech that dissented from the government’s socio-economic and political agenda was discouraged by policy. Coupled with the new constitutional ground of censorship on account of public order, the career of free speech in independent India began uncertainly.

How to regulate permissible speech?

Despite the many restrictions imposed by law on free speech, Indian free speech policy has long been engaged with the question of how to regulate the permissible speech that survives constitutional scrutiny. This was significantly easier in colonial India. In 1799, Governor-General Richard Wellesley, the brother of the famous Duke of Wellington who defeated Napoleon at Waterloo, instituted a pre-censorship system to create what Rajeev Dhavan calls a “press by permission” marked by licensed publications, prior restraint, subsequent censorship, and harsh penalties. A new colonial regime for strict control over the publication of free speech was enacted in the form of the Press and Registration of Books Act, 1867, the preamble of which recognises that “the literature of a country is…an index of…the condition of [its] people”. The 1867 Act was diluted after independence but still remains alive in the form of the Registrar of Newspapers.

After surviving Indira Gandhi’s demand for a committed press and the depredations of her regime during the Emergency, India’s press underwent the examination of the Second Press Commission. This was appointed in 1978 under the chairmanship of Justice P. K. Goswami, a year after the Janata government released the famous White Paper on Misuse of Mass Media. When Gandhi returned to power, Justice Goswami resigned and the Commission was reconstituted under Justice K. K. Mathew. In 1982, the Commission’s report endorsed the earlier First Press Commission’s call for conformist speech, but went further by proposing the appointment of a press regulator invested with inspection powers; criminalising attacks on the government; re-interpreting defamation law to encompass democratic criticism of public servants; retaining stringent official secrecy law; and more. It was quickly acted upon by Rajiv Gandhi through his infamous Defamation Bill.

The contours of future Internet regulation

The juggernaut of Indian free speech policy has received temporary setbacks, mostly inflicted by the Supreme Court. Past experience shows us that governments with strong majorities – whether Jawaharlal Nehru’s following independence or Indira Gandhi’s in the 1970s – act on their administrative impulses to impede free speech by government policy. The Internet is a recent and uncontrollable medium of speech that attracts disproportionately heavy regulatory attention. Section 66A of the IT Act may be dead but several other provisions remain to harass and punish online free speech. Far from relaxing its grip on divergent opinions, the government appears poised for more incisive invasions of personal freedoms.

I do not believe the contours of future speech regulation on the Internet need to be guessed at, they can be derived from the last two centuries of India’s free speech policy. When section 66A is replaced – and it will be, whether overtly by fresh statutory provisions or stealthily by policy and non-justiciable committees and commissions – it will be through a regime that obeys the mandate of the First Press Commission to discourage dissenting and divergent speech while adopting the regulatory structures of the Second Press Commission to permit a limited inspector raj and forbid attacks on personalities. The interests of the community, howsoever improperly articulated, will seek precedence over individual freedoms and the accompanying threat of violence will give new meaning to Bhimrao Ambedkar’s warning of the “grammar of anarchy”.

For more details visit https://cis-india.org/internet-governance/blog/policy-in-india-community-custom-censorship-and-future-of-internet-regulation

Hacktivists deface BSNL website

praskrishna — 2012-12-14T05:20:56Z

The Bharat Sanchar Nigam Limited (BSNL) website, www.bsnl.co.in, was hacked and defaced on Thursday afternoon.

The article by Kim Arora was published in the Times of India on December 13, 2012. Sunil Abraham is quoted.

A message on the home page said the attack was carried out by the hacktivist group, Anonymous India, as a protest against section 66 A of the IT Act and in support of cartoonist Aseem Trivedi, on an indefinite hunger strike at Jantar Mantar since Dec 8 for the same. The website was restored around 7 pm.

Trivedi said he had received a call from Anonymous around 1.30 in the afternoon informing him that the website has been defaced. On being asked if such a form of protest was valid, Trivedi said, "When the government doesn't pay heed to people's protests against its laws and arrests innocent people for Facebook posts, then such a protest is absolutely valid."

For most of the afternoon and early evening, the BSNL website wasn't available directly. A cached version of the BSNL home page showed an image of cartoonist Trivedi with text that read "Hacked by Anonymous India. support Aseem trivedi (cartoonist) and alok dixit on the hunger strike. remove IT Act 66a databases of all 250 bsnl site has been d Hacked by Anonymous India (sic)". While this message was repeated over and over on the page, it ended with the line "Proof are (sic) here" followed by a link to a page containing the passwords to BSNL databases. BSNL officials were unaware of the attack until Thursday evening.

Late in the evening, Anonymous India tweeted from their account @opindia_revenge: "BSNL Websites hacked, passwords and database leaked... Anonymous India demands withdrawal of Sec 66A of IT Act."

In an open letter to the Government of India posted on alternate media website Kafila in June this year, Anonymous had explained they only carried out Distributed Denial of Service (DDoS) attacks on Indian government websites, which is different from the act of hacking per se.

Contrary views too exist. Sunil Abraham, executive director, Centre for Internet and Society, says the attack was unwarranted. "Speech regulation in India is not a lost cause, the Minister is holding consultations, MPs are raising the issue in Parliament, courts have been approached and there is massive public outcry on social media. Therefore I would request Anonymous India to desist from defacing websites," said Abraham. A group of MPs, including Baijayant Jay Panda from Odisha, are scheduled to present a motion in Parliament on Friday morning for the amendment of section 66A of the IT Act.

Last month, two young girls were arrested in Palghar, Maharashtra, for criticizing on Facebook the bandh that followed the death of Shiv Sena supremo Balasaheb Thackeray. Before that, Karti Chidambaram, son of finance minister P Chidambaram, took a man to court for commenting on his financial assets on Twitter. In both cases, the complainant 'used' section 66 A of the IT Act. The section and the Act have since come in for wide debate regarding freedom of speech.

For more details visit https://cis-india.org/news/times-of-india-india-times-december-13-2012-kim-arora-hacktivists-deface-bsnl-website

Content Removal on Facebook — A Case of Privatised Censorship?

jessie — 2014-06-16T05:23:09Z

Any activity on Facebook, be it creating an account, posting a picture or status update or creating a group or page, is bound by Facebook’s Terms of Service and Community Guidelines. These contain a list of content that is prohibited from being published on Facebook which ranges from hate speech to pornography to violation of privacy.

Facebook removes content largely on the basis of requests either by the government or by other users. The Help section of Facebook deals with warnings and blocking of content. It says that Facebook only removes content that violates Community Guidelines and not everything that has been reported.

I conducted an experiment to primarily look at Facebook’s process of content removal and also to analyse what kind of content they actually remove.

I put up a status which contained personal information of a person on my Friend List (the information was false). I then asked several people (including the person about whom the status was made) to report the status — that of being harassed or for violation of privacy rights. Seven people reported the status. Within half an hour of the reports being made, I received the following notification:
"Someone reported your post for containing harassment and 1 other reason."

The notification also contained the option to delete my post and said that Facebook would look into whether it violated their Community Guidelines.

A day later, all those who had reported the status received notifications stating the following:

"We reviewed the post you reported for harassment and found it doesn't violate our Community Standards."

I received a similar notification as well.
I, along with around thirteen others, reported a Facebook page which contained pictures of my friend and a few other women with lewd captions in various regional languages. We reported the group for harassment and bullying and also for humiliating someone we knew. The report was made on 24 March, 2014. On 30 April, 2014, I received a notification stating the following:

"We reviewed the page you reported for harassment and found it doesn't violate our Community Standards.

Note: If you have an issue with something on the Page, make sure you report the content (e.g. a photo), not the entire Page. That way, your report will be more accurately reviewed."

I then reported each picture on the page for harassment and received a series of notifications on 5 May, 2014 which stated the following:

"We reviewed the photo you reported for harassment and found it doesn't violate our Community Standards."

These incidents are in stark contrast with repeated attempts by Facebook to remove content which it finds objectionable. In 2013, a homosexual man’s picture protesting against the Supreme Court judgment in December was taken down. In 2012, Facebook removed artwork by a French artist which featured a nude woman. In the same year, Facebook removed photographs of a child who was born with defect and banned the mother from accessing Facebook completely. Facebook also removed a picture of a breast cancer survivor who posted a picture of a tattoo that she had following her mastectomy. Following this, however, Facebook issued an apology and stated that mastectomy photographs are not in violation of their Content Guidelines. Even in the sphere of political discourse and dissent, Facebook has cowered under government pressure and removed pages and content, as evidenced by the ban on the progressive Pakistani band Laal’s Facebook page and other anti-Taliban pages. Following much social media outrage, Facebook soon revoked this ban. These are just a few examples of how harmless content has been taken down by Facebook, in a biased exercise of its powers.

After incidents of content removal have been made public through news reports and complaints, Facebook often apologises for removing content and issues statements that the removal was an “error.” In some cases, they edit their policies to address specific kinds of content after a takedown (like the reversal of the breastfeeding ban).

On the other hand, however, Facebook is notorious for refusing to take down content that is actually objectionable, partially evidenced by my own experiences listed above. There have been complaints about Facebook’s refusal to remove misogynistic content which glorifies rape and domestic violence through a series of violent images and jokes. One such page was removed finally, not because of the content but because the administrators had used fake profiles. When asked, a spokesperson said that censorship “was not the solution to bad online behaviour or offensive beliefs.” While this may be true, the question that needs answering is why Facebook decides to draw these lines only when it comes to certain kinds of ‘objectionable’ content and not others.

All of these examples represent a certain kind of arbitrariness on the part of Facebook’s censorship policies. It seems that Facebook is far more concerned with removing content that will cause supposed public or governmental outrage or defy some internal morality code, rather than protecting the rights of those who may be harmed due to such content, as their Statement of Policies so clearly spells out.

There are many aspects of the review and takedown process that are hazy, like who exactly reviews the content that is reported and what standards they are made to employ. In 2012, it was revealed that Facebook outsourced its content reviews to oDesk and provided the reviewers with a 17-page manual which listed what kind of content was appropriate and what was not. A bare reading of the leaked document gives one a sense of Facebook’s aversion to sex and nudity and its neglect of other harm-inducing content like harassment through misuse of content that is posted and what is categorised as hate speech.

In the process of monitoring the acceptability of content, Facebook takes upon itself the role of a private censor with absolutely no accountability or transparency in its working. A Reporting Guide was published to increase transparency in its content review procedures. The Guide reveals that Facebook provides for an option where the reportee can appeal the decision to remove content in “some cases.” However, the lack of clarity on what these cases are or what the appeal process is frustrates the existence of this provision as it can be misused. Additionally, Facebook reserves the right to remove content with or without notice depending upon the severity of the violation. There is no mention of how severe is severe enough to warrant uninformed content removal. In most of the above cases, the user was not notified that their content was found offensive and would be liable for takedown. Although Facebook publishes a transparency report, it only contains a record of takedowns following government requests and not those by private users of Facebook. The unbridled nature of the power that Facebook has over our personal content, despite clearly stating that all content posted is the user’s alone, threatens the freedom of expression on the site. A proper implementation of the policies that Facebook claims to employ is required along with a systematic record of the procedure that is used to remove content that is in consonance with natural justice.

For more details visit https://cis-india.org/internet-governance/blog/content-removal-on-facebook

Summary Report Internet Governance Forum 2015

jyoti — 2015-11-30T10:47:13Z

Centre for Internet and Society (CIS), India participated in the Internet Governance Forum (IGF) held at Poeta Ronaldo Cunha Lima Conference Center, Joao Pessoa in Brazil from 10 November 2015 to 13 November 2015. The theme of IGF 2015 was ‘Evolution of Internet Governance: Empowering Sustainable Development’. Sunil Abraham, Pranesh Prakash & Jyoti Panday from CIS actively engaged and made substantive contributions to several key issues affecting internet governance at the IGF 2015. The issue-wise detail of their engagement is set out below.

INTERNET GOVERNANCE

I. The Multi-stakeholder Advisory Group to the IGF organised a discussion on Sustainable Development Goals (SDGs) and Internet Economy at the Main Meeting Hall from 9:00 am to 12:30 pm on 11 November, 2015. The discussions at this session focused on the importance of Internet Economy enabling policies and eco-system for the fulfilment of different SDGs. Several concerns relating to internet entrepreneurship, effective ICT capacity building, protection of intellectual property within and across borders were availability of local applications and content were addressed. The panel also discussed the need to identify SDGs where internet based technologies could make the most effective contribution. Sunil Abraham contributed to the panel discussions by addressing the issue of development and promotion of local content and applications. List of speakers included:

Lenni Montiel, Assistant-Secretary-General for Development, United Nations
Helani Galpaya, CEO LIRNEasia
Sergio Quiroga da Cunha, Head of Latin America, Ericsson
Raúl L. Katz, Adjunct Professor, Division of Finance and Economics, Columbia Institute of Tele-information
Jimson Olufuye, Chairman, Africa ICT Alliance (AfICTA)
Lydia Brito, Director of the Office in Montevideo, UNESCO
H.E. Rudiantara, Minister of Communication & Information Technology, Indonesia
Daniel Sepulveda, Deputy Assistant Secretary, U.S. Coordinator for International and Communications Policy at the U.S. Department of State
Deputy Minister Department of Telecommunications and Postal Services for the republic of South Africa
Sunil Abraham, Executive Director, Centre for Internet and Society, India
H.E. Junaid Ahmed Palak, Information and Communication Technology Minister of Bangladesh
Jari Arkko, Chairman, IETF
Silvia Rabello, President, Rio Film Trade Association
Gary Fowlie, Head of Member State Relations & Intergovernmental Organizations, ITU

Detailed description of the workshop is available here http ://www .intgovforum .org /cms /igf 2015-main -sessions

Transcript of the workshop is available here http://www.intgovforum.org/cms/187-igf-2015/transcripts-igf-2015/2327-2015-11-11-internet-economy-and-sustainable-development-main-meeting-room

Video link Internet economy and Sustainable Development here https://www.youtube.com/watch?v=D6obkLehVE8

II. Public Knowledge organised a workshop on The Benefits and Challenges of the Free Flow of Data at Workshop Room 5 from 11:00 am to 12:00 pm on 12 November, 2015. The discussions in the workshop focused on the benefits and challenges of the free flow of data and also the concerns relating to data flow restrictions including ways to address them. Sunil Abraham contributed to the panel discussions by addressing the issue of jurisdiction of data on the internet. The panel for the workshop included the following.

Vint Cerf, Google
Lawrence Strickling, U.S. Department of Commerce, NTIA
Richard Leaning, European Cyber Crime Centre (EC3), Europol
Marietje Schaake, European Parliament
Nasser Kettani, Microsoft
Sunil Abraham, CIS India

Detailed description of the workshop is available here http ://www .intgovforum .org /cms /workshops /list -of -published -workshop -proposals

Transcript of the workshop is available here http://www.intgovforum.org/cms/187-igf-2015/transcripts-igf-2015/2467-2015-11-12-ws65-the-benefits-and-challenges-of-the-free-flow-of-data-workshop-room-5

Video link https://www.youtube.com/watch?v=KtjnHkOn7EQ

III. Article 19 and Privacy International organised a workshop on Encryption and Anonymity: Rights and Risks at Workshop Room 1 from 11:00 am to 12:30 pm on 12 November, 2015. The workshop fostered a discussion about the latest challenges to protection of anonymity and encryption and ways in which law enforcement demands could be met while ensuring that individuals still enjoyed strong encryption and unfettered access to anonymity tools. Pranesh Prakash contributed to the panel discussions by addressing concerns about existing south Asian regulatory framework on encryption and anonymity and emphasizing the need for pervasive encryption. The panel for this workshop included the following.

David Kaye, UN Special Rapporteur on Freedom of Expression
Juan Diego Castañeda, Fundación Karisma, Colombia
Edison Lanza, Organisation of American States Special Rapporteur
Pranesh Prakash, CIS India
Ted Hardie, Google
Elvana Thaci, Council of Europe
Professor Chris Marsden, Oxford Internet Institute
Alexandrine Pirlot de Corbion, Privacy International

Detailed description of the workshop is available here http ://www .intgovforum .org /cms /worksh o ps /list -of -published -workshop -proposals

Transcript of the workshop is available here http://www.intgovforum.org/cms/187-igf-2015/transcripts-igf-2015/2407-2015-11-12-ws-155-encryption-and-anonymity-rights-and-risks-workshop-room-1

Video link available here https://www.youtube.com/watch?v=hUrBP4PsfJo

IV. Chalmers & Associates organised a session on A Dialogue on Zero Rating and Network Neutrality at the Main Meeting Hall from 2:00 pm to 4:00 pm on 12 November, 2015. The Dialogue provided access to expert insight on zero-rating and a full spectrum of diverse views on this issue. The Dialogue also explored alternative approaches to zero rating such as use of community networks. Pranesh Prakash provided a detailed explanation of harms and benefits related to different approaches to zero-rating. The panellists for this session were the following.

Jochai Ben-Avie, Senior Global Policy Manager, Mozilla, USA
Igor Vilas Boas de Freitas, Commissioner, ANATEL, Brazil
Dušan Caf, Chairman, Electronic Communications Council, Republic of Slovenia
Silvia Elaluf-Calderwood, Research Fellow, London School of Economics, UK/Peru
Belinda Exelby, Director, Institutional Relations, GSMA, UK
Helani Galpaya, CEO, LIRNEasia, Sri Lanka
Anka Kovacs, Director, Internet Democracy Project, India
Kevin Martin, VP, Mobile and Global Access Policy, Facebook, USA
Pranesh Prakash, Policy Director, CIS India
Steve Song, Founder, Village Telco, South Africa/Canada
Dhanaraj Thakur, Research Manager, Alliance for Affordable Internet, USA/West Indies
Christopher Yoo, Professor of Law, Communication, and Computer & Information Science, University of Pennsylvania, USA

Detailed description of the workshop is available here http://www.intgovforum.org/cms/igf2015-main-sessions

Transcript of the workshop is available here http://www.intgovforum.org/cms/187-igf-2015/transcripts-igf-2015/2457-2015-11-12-a-dialogue-on-zero-rating-and-network-neutrality-main-meeting-hall-2

V. The Internet & Jurisdiction Project organised a workshop on Transnational Due Process: A Case Study in MS Cooperation at Workshop Room 4 from 11:00 am to 12:00 pm on 13 November, 2015. The workshop discussion focused on the challenges in developing an enforcement framework for the internet that guarantees transnational due process and legal interoperability. The discussion also focused on innovative approaches to multi-stakeholder cooperation such as issue-based networks, inter-sessional work methods and transnational policy standards. The panellists for this discussion were the following.

Anne Carblanc Head of Division, Directorate for Science, Technology and Industry, OECD
Eileen Donahoe Director Global Affairs, Human Rights Watch
Byron Holland President and CEO, CIRA (Canadian ccTLD)
Christopher Painter Coordinator for Cyber Issues, US Department of State
Sunil Abraham Executive Director, CIS India
Alice Munyua Lead dotAfrica Initiative and GAC representative, African Union Commission
Will Hudsen Senior Advisor for International Policy, Google
Dunja Mijatovic Representative on Freedom of the Media, OSCE
Thomas Fitschen Director for the United Nations, for International Cooperation against Terrorism and for Cyber Foreign Policy, German Federal Foreign Office
Hartmut Glaser Executive Secretary, Brazilian Internet Steering Committee
Matt Perault, Head of Policy Development Facebook

Detailed description of the workshop is available here http://www.intgovforum.org/cms/workshops/list-of-published-workshop-proposals

Transcript of the workshop is available here http://www.intgovforum.org/cms/187-igf-2015/transcripts-igf-2015/2475-2015-11-13-ws-132-transnational-due-process-a-case-study-in-ms-cooperation-workshop-room-4

Video link Transnational Due Process: A Case Study in MS Cooperation available here https://www.youtube.com/watch?v=M9jVovhQhd0

VI. The Internet Governance Project organised a meeting of the Dynamic Coalition on Accountability of Internet Governance Venues at Workshop Room 2 from 14:00 – 15:30 on 12 November, 2015. The coalition brought together panelists to highlight the challenges in developing an accountability framework for internet governance venues that include setting up standards and developing a set of concrete criteria. Jyoti Panday provided the perspective of civil society on why acountability is necessary in internet governance processes and organizations. The panelists for this workshop included the following.

Robin Gross, IP Justice
Jeanette Hofmann, Director Alexander von Humboldt Institute for Internet and Society
Farzaneh Badiei, Internet Governance Project
Erika Mann, Managing Director Public PolicyPolicy Facebook and Board of Directors ICANN
Paul Wilson, APNIC
Izumi Okutani, Japan Network Information Center (JPNIC)
Keith Drazek , Verisign
Jyoti Panday, CIS
Jorge Cancio, GAC representative

Detailed description of the workshop is available here http://igf2015.sched.org/event/4c23/dynamic-coalition-on-accountability-of-internet-governance-venues?iframe=no&w=&sidebar=yes&bg=no

Video link https://www.youtube.com/watch?v=UIxyGhnch7w

VII. Digital Infrastructure Netherlands Foundation organized an open forum at Workshop Room 3 from 11:00 – 12:00 on 10 November, 2015. The open forum discussed the increase in government engagement with “the internet” to protect their citizens against crime and abuse and to protect economic interests and critical infrastructures. It brought together panelists topresent ideas about an agenda for the international protection of ‘the public core of the internet’ and to collect and discuss ideas for the formulation of norms and principles and for the identification of practical steps towards that goal. Pranesh Prakash participated in the e open forum. Other speakers included

Bastiaan Goslings AMS-IX, NL
Pranesh Prakash CIS, India
Marilia Maciel (FGV, Brasil
Dennis Broeders (NL Scientific Council for Government Policy)

Detailed description of the open forum is available here http://schd.ws/hosted_files/igf2015/3d/DINL_IGF_Open%20Forum_The_public_core_of_the_internet.pdf

Video link available here https://www.youtube.com/watch?v=joPQaMQasDQ

VIII. UNESCO, Council of Europe, Oxford University, Office of the High Commissioner on Human Rights, Google, Internet Society organised a workshop on hate speech and youth radicalisation at Room 9 on Thursday, November 12. UNESCO shared the initial outcome from its commissioned research on online hate speech including practical recommendations on combating against online hate speech through understanding the challenges, mobilizing civil society, lobbying private sectors and intermediaries and educating individuals with media and information literacy. The workshop also discussed how to help empower youth to address online radicalization and extremism, and realize their aspirations to contribute to a more peaceful and sustainable world. Sunil Abraham provided his inputs. Other speakers include

1. Chaired by Ms Lidia Brito, Director for UNESCO Office in Montevideo

2.Frank La Rue, Former Special Rapporteur on Freedom of Expression

3. Lillian Nalwoga, President ISOC Uganda and rep CIPESA, Technical community

4. Bridget O’Loughlin, CoE, IGO

5. Gabrielle Guillemin, Article 19

6. Iyad Kallas, Radio Souriali

7. Sunil Abraham executive director of Center for Internet and Society, Bangalore, India

8. Eve Salomon, global Chairman of the Regulatory Board of RICS

9. Javier Lesaca Esquiroz, University of Navarra

10. Representative GNI

11. Remote Moderator: Xianhong Hu, UNESCO

12. Rapporteur: Guilherme Canela De Souza Godoi, UNESCO

Detailed description of the workshop is available here http://igf2015.sched.org/event/4c1X/ws-128-mitigate-online-hate-speech-and-youth-radicalisation?iframe=no&w=&sidebar=yes&bg=no

Video link to the panel is available here https://www.youtube.com/watch?v=eIO1z4EjRG0

INTERMEDIARY LIABILITY

IX. Electronic Frontier Foundation, Centre for Internet Society India, Open Net Korea and Article 19 collaborated to organize a workshop on the Manila Principles on Intermediary Liability at Workshop Room 9 from 11:00 am to 12:00 pm on 13 November 2015. The workshop elaborated on the Manila Principles, a high level principle framework of best practices and safeguards for content restriction practices and addressing liability for intermediaries for third party content. The workshop saw particpants engaged in over lapping projects considering restriction practices coming togetehr to give feedback and highlight recent developments across liability regimes. Jyoti Panday laid down the key details of the Manila Principles framework in this session. The panelists for this workshop included the following.

Kelly Kim Open Net Korea,
Jyoti Panday, CIS India,
Gabrielle Guillemin, Article 19,
Rebecca McKinnon on behalf of UNESCO
Giancarlo Frosio, Center for Internet and Society, Stanford Law School
Nicolo Zingales, Tilburg University
Will Hudson, Google

Detailed description of the workshop is available here http://www.intgovforum.org/cms/workshops/list-of-published-workshop-proposals

Transcript of the workshop is available here http://www.intgovforum.org/cms/187-igf-2015/transcripts-igf-2015/2423-2015-11-13-ws-242-the-manila-principles-on-intermediary-liability-workshop-room-9

Video link available here https://www.youtube.com/watch?v=kFLmzxXodjs

ACCESSIBILITY

X. Dynamic Coalition on Accessibility and Disability and Global Initiative for Inclusive ICTs organised a workshop on Empowering the Next Billion by Improving Accessibility at Workshop Room 6 from 9:00 am to 10:30 am on 13 November, 2015. The discussion focused on the need and ways to remove accessibility barriers which prevent over one billion potential users to benefit from the Internet, including for essential services. Sunil Abraham specifically spoke about the lack of compliance of existing ICT infrastructure with well established accessibility standards specifically relating to accessibility barriers in the disaster management process. He discussed the barriers faced by persons with physical or psychosocial disabilities. The panelists for this discussion were the following.

Francesca Cesa Bianchi, G3ICT
Cid Torquato, Government of Brazil
Carlos Lauria, Microsoft Brazil
Sunil Abraham, CIS India
Derrick L. Cogburn, Institute on Disability and Public Policy (IDPP) for the ASEAN(Association of Southeast Asian Nations) Region
Fernando H. F. Botelho, F123 Consulting
Gunela Astbrink, GSA InfoComm

Detailed description of the workshop is available here http://www.intgovforum.org/cms/workshops/list-of-published-workshop-proposals

Transcript of the workshop is available here http://www.intgovforum.org/cms/187-igf-2015/transcripts-igf-2015/2438-2015-11-13-ws-253-empowering-the-next-billion-by-improving-accessibility-workshop-room-3

Video Link Empowering the next billion by improving accessibility https://www.youtube.com/watch?v=7RZlWvJAXxs

OPENNESS

XI. A workshop on FOSS & a Free, Open Internet: Synergies for Development was organized at Workshop Room 7 from 2:00 pm to 3:30 pm on 13 November, 2015. The discussion was focused on the increasing risk to openness of the internet and the ability of present & future generations to use technology to improve their lives. The panel shred different perspectives about the future co-development of FOSS and a free, open Internet; the threats that are emerging; and ways for communities to surmount these. Sunil Abraham emphasised the importance of free software, open standards, open access and access to knowledge and the lack of this mandate in the draft outcome document for upcoming WSIS+10 review and called for inclusion of the same. Pranesh Prakash further contributed to the discussion by emphasizing the need for free open source software with end‑to‑end encryption and traffic level encryption based on open standards which are decentralized and work through federated networks. The panellists for this discussion were the following.

Satish Babu, Technical Community, Chair, ISOC-TRV, Kerala, India
Judy Okite, Civil Society, FOSS Foundation for Africa
Mishi Choudhary, Private Sector, Software Freedom Law Centre, New York
Fernando Botelho, Private Sector, heads F123 Systems, Brazil
Sunil Abraham, CIS India
Pranesh Prakash, CIS India
Nnenna Nwakanma- WWW.Foundation
Yves MIEZAN EZO, Open Source strategy consultant
Corinto Meffe, Advisor to the President and Directors, SERPRO, Brazil
Frank Coelho de Alcantara, Professor, Universidade Positivo, Brazil
Caroline Burle, Institutional and International Relations, W3C Brazil Office and Center of Studies on Web Technologies

Detailed description of the workshop is available here http://www.intgovforum.org/cms/workshops/list-of-published-workshop-proposals

Transcript of the workshop is available here http://www.intgovforum.org/cms/187-igf-2015/transcripts-igf-2015/2468-2015-11-13-ws10-foss-and-a-free-open-internet-synergies-for-development-workshop-room-7

Video link available here https://www.youtube.com/watch?v=lwUq0LTLnDs

For more details visit https://cis-india.org/internet-governance/blog/summary-report-internet-governance-forum-2015

Governing Speech on the Internet: From the Free Marketplace Policy to a Controlled 'Public Sphere'

Smarika Kumar — 2015-08-28T05:57:55Z

This post by Smarika Kumar is part of the 'Studying Internets in India' series. Smarika is a consultant with Alternative Law Forum, Bangalore. She is interested in issues concerning law and technology. In this essay, Smarika explores how through the use of policy and regulation, the private marketplace of the internet is sought to be reined in and reconciled to the public sphere, which is mostly represented through legislations governing the internet.

Introduction

The internet is widely thought to be unprecedented and radically different from the media which preceded it. Interestingly, the internet has been unlike other media, in that it does not have a history of being monopolised by governments. True, certain States have tried to regulate the internet in a manner which allows them to exercise an increased control over it, some others have a greater control over the internet root given the history of development of the internet, but nevertheless no one State can be said to “own” the internet in any jurisdiction, in the manner of telephone or broadcast monopolies. Internet as it stands now, at its essence, is a largely private of networks connecting privately-owned, and occasionally publicly-funded platforms.

This feature of the internet poses an interesting problem when one tries to think about speech. In law and policymaking, an important question remains: Should internet be treated as the marketplace of privately managed avenues for speech, or should speech on the internet be treated within the bigger concept of the public sphere? Moreover, how are law and policy in India currently disposed towards speech on the internet? In the present essay, I hope to discuss some of these issues by looking at the judgement in Shreya Singhal v. Union of India [1], which was pronounced by the Supreme Court of India in March 2015. The judgement is most widely recognised as a culmination of several challenges to Section 66A of the Information Technology Act, 2000 which criminalised a wide range of speech on the internet on the grounds of very broad terms like “grossly offensive”, “causing annoyance” and “inconvenience, danger, and obstruction.” Section 66A was challenged along with Sections 69A and 79 of the Act, which lay down the rules for blocking of content on the internet, and for intermediary liability and responsibility to take down internet content, respectively. This challenge was made on grounds of being in violation of the Right to Freedom of Speech and Expression and Right to Equality guaranteed by the Constitution of India among others. However, while the judgement struck down Section 66A as unconstitutional, it upheld the constitutionality of the State-directed Internet blocking Rules as well as Intermediary Liability Guidelines. This may pose a paradox if one accounts for the fact that at the heart of it, all—Section 66A, Section 69A and Section 79, were actually legislations regulating speech. Then why strike one down and uphold others? To seek an answer in the present essay, I broadly look at the philosophical origins of regulation of speech on the internet. Two theories in philosophy—John Stuart Mill’s The Marketplace of Ideas and Jurgen Habermas’ Public Sphere have been very influential in liberal democratic traditions and jurisdictions in thinking about the governance of speech. Scholarly work concerning media law in other jurisdictions has also elaborated on how each of these theories can be implicitly used differently in judicial interpretations to serve different ends [2]. In this, the Marketplace of Ideas approach tends to treat speech and platforms for speech as part of the competition within a market context, whereby different kinds of ideas or speech compete with each other to find an avenue for expression. The Public Sphere approach on the other hand, treats different kinds of speech as part of a larger democratic concept of discussion and speech, whereby the aspiration is for representation of diverse kinds and sources of speech, rather than competition between them.

With the utilisation of these different underlying philosophical assumptions, legal implications can be so vastly different. And when that happens, it becomes essential to trace the process of how these philosophical approaches themselves work in legal argumentation. For these reasons, it becomes critical to probe the thinking in Shreya Singhal judgement to understand which philosophical attitude to speech it actually inheres: the Marketplace of Ideas conception, or the Public Sphere approach? I argue in this essay that while traces of both the Marketplace of Ideas and the Public Sphere approach are present in Shreya Singhal, neither of these philosophies actually govern the rationale of the judgement. An analysis of Shreya Singhal along with the judgement in Cricket Association of Bengal (1995) [3] which it refers to, shows that it is in fact, a third philosophy, rooted in the impulse of colonial control, which gives Shreya Singhal its philosophical consistency.

The Marketplace of Ideas in Shreya Singhal

The judgement in Shreya Singhal actually employs the idea of the marketplace in its approach to discuss the implications of Section 66A. It begins by referring to the 2010 Supreme Court judgement of S. Khushboo v. Kanniamal and Anr [4] which had spoken about the concept of the marketplace of ideas, and how employing it is essential to safeguard “unpopular speech” under the Right to Freedom of Speech and Expression in the Article 19(1)(a) of the Constitution of India. The Court marks out this reference to the marketplace of ideas, tracing this concept back to the 1919 American judgement of Abrams v. United States [5]. The Supreme Court states, talking about the Khushboo case:

This last judgement is important in that it refers to the “market place of ideas” concept that has permeated American Law. This was put in the felicitous words of Justice Holmes in his famous dissent in Abrams v. United States, 250 US 616 (1919), thus: “But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.” (para 11)

The Supreme Court judgement goes onto trace the history of Marketplace of Ideas in American jurisprudence, and understand its place within the Indian Constitution. The Court holds:

This leads us to a discussion of what is the content of the expression “freedom of speech and expression”. There are three concepts which are fundamental in understanding the reach of this most basic of human rights. The first is discussion, the second is advocacy, and the third is incitement. Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. (para 13)

The Marketplace of Ideas then becomes the philosophical tenet which pivots the judgement around its unique jurisprudential concept: the distinction between discussion, advocacy and incitement. This conception of the marketplace holds that State interference in speech on the internet has to be kept off as long as the condition of such speech being incitement is not fulfilled. In a way, this is a hands-off approach to the governance of speech which is solidified in the Court’s declaration of the unconstitutionality of Section 66A. The Court refers to the American judgement of Reno, Attorney General of United States v. American Civil Liberties Union [6] to bring this logic to speech on the internet as well. Citing the district court judgement in this case, it holds:

[I]t is no exaggeration to conclude that the Internet has achieved, and continues to achieve, the most participatory marketplace of mass speech that this country – and indeed the world – as yet seen. The plaintiffs in these actions correctly describe the ‘democratizing’ effects of Internet communication: individual citizens of limited means can speak to a worldwide audience on issues of concern to them. Federalists and Anti-federalists may debate the structure of their government nightly, but these debates occur in newsgroups or chat rooms rather than in pamphlets. Modern-day Luthers still post their theses, but to electronic bulletins boards rather than the door of the Wittenberg Schlosskirche. More mundane (but from a constitutional perspective, equally important) dialogue occurs between aspiring artists, or French cooks, or dog lovers, or fly fishermen. 929 F. Supp. At 881. (at page 425) (para 60)

Shreya Singhal’s striking down of 66A then becomes founded in the idea that the State need not interfere in what kind of speech is made in the marketplace of the internet, as long as such speech does not amount to incitement. In a particular sphere of speech which is “not incitement” then, the logic of the Marketplace of Ideas approach seems to work in the Shreya Singhal judgement.

Recognition of the Limitations of the Marketplace of Ideas and a Move towards Public Sphere

One would then surmise that the use of the Marketplace of Ideas approach is what makes Shreya Singhal such a pro-freedom of speech pronouncement. But interestingly, the judgement also cites the matter of The Secretary, Ministry of Information & Broadcasting v. Cricket Association of Bengal and Anr [3] which has been remarkable for outlining the limitations of the marketplace in the governance and production of a diversity of opinions and sources in speech. The Cricket Association of Bengal case was brought forth before the Supreme Court in 1995, after the liberalisation regime in media, to challenge the constitutionality of preventing a private broadcaster to use Indian airwaves in order to exclusively broadcast a cricket match.

The Court, while holding that there was no such exclusive right inhering in a private broadcaster since airwaves had to be allocated and used in public interest, also held that the limitations on a private broadcaster’s right to broadcast also could not extend beyond Article 19(2). In doing so, the Court recognises that the marketplace in a free and competitive system may not always be sufficient enough to make use of the media to generate and represent speech which is in the democratic public interest of discussion and advocacy. Shreya Singhal cites this portion of the judgement in support of its own rationale of striking down Section 66A. It holds:

The right to use the airwaves and the content of the programmes, therefore, needs regulation for balancing it and as well as to prevent monopoly of information and views relayed, which is a potential danger flowing from the concentration of the right to broadcast/telecast in the hands either of a central agency or of few private affluent broadcasters. That is why the need to have a central agency representative of all sections of the society free from control both of the Government and the dominant influential sections of the society. This is not disputed. But to contend that on that account the restrictions to be imposed on the right under Article 19(1)(a) should be in addition to those permissible under Article 19(2) and dictated by the use of public resources in the best interests of the society at large, is to misconceive both the content of the freedom of speech and expression and the problems posed by the element of public property in, and the alleged scarcity of, the frequencies as well as by the wider reach of the media. (para 29)

The recognition in Shreya Singhal that unregulated, the marketplace can lead to “a monopoly of information and views relayed” flowing from the hands of “either a central agency or a few private affluent broadcasters” points to the limitation of the Marketplace of Ideas approach itself. Such recognition culminated into a more participation-focused idea of what it means to live in a democracy: the idea of a Public Sphere where regulation and governance of media is done in order to expand participation of different kinds of ideas and people within public speech. The Court again cites Cricket Association of Bengal in this regard to state:

When, however, there are surplus or unlimited resources and the public interests so demand or in any case do not prevent telecasting, the validity of the argument based on limitation of resources disappears. It is true that to own a frequency for the purposes of broadcasting is a costly affair and even when there are surplus or unlimited frequencies, only the affluent few will own them and will be in a position to use it to subserve their own interest by manipulating news and views. That also poses a danger to the freedom of speech and expression of the have-nots by denying them the truthful information on all sides of an issue which is so necessary to form a sound view on any subject. (para 29)

In background of this, it could be said that the Marketplace of Ideas, while it forms an important part of the backbone in the striking down of Section 66A, it is not all there is to it. The idea of participation in a Public Sphere is recognised as well, and to an extent it is the barrier to participation in this Public Sphere, which enables the declaration of Section 66A as unconstitutional.

Public Sphere or the Marketplace? : (N)either, but a Dynamics of Control

Much of the discourse around Shreya Singhal’s discussion on Sections 69A and 79, has seen it as divorced from the discussion around Section 66A. The discussion on Section 69A and 79 in the judegment has been seen as regressive, or ambiguous, while the portion of the judgement dealing with Section 66A has been largely been pronounced progressive and liberal. It has also been argued that the discussion on Section 66A in Shreya Singhal departs from a myriad previous judgements and their approach towards the governance of free speech [7]. I would like to argue on the contrary, that there is in fact, a deep continuity in the judgement on various provisions, as well as with prior judgements on speech, as far as the approach which is taken towards the governance of speech generally, and speech on the internet, specifically, is concerned.

To understand this continuity, it is of critical importance to note how the approaches of Public Sphere and the Marketplace of Ideas are contrasted in Cricket Association of Bengal, and by reference in Shreya Singhal as well—while the former is used to justify regulation for participation of a larger public in reception of information from the media, and the latter to keep off excessive interference by the Government. Moreover, the judgement also seems to conflate the Marketplace of Ideas and the Public Sphere conceptions of speech governance when it states:

It is clear, therefore, that the petitioners are correct in saying that the public’s right to know is directly affected by Section 66A. Information of all kinds is roped in – such information may have scientific, literary or artistic value, it may refer to current events, it may be obscene or seditious. That such information may cause annoyance or inconvenience to some is how the offence is made out. It is clear that the right of the people to know – the market place of ideas – which the internet provides to persons of all kinds is what attracts Section 66A. (para 20)

One notes in the abovementioned extract that the right to know is seen to emerge from the Marketplace of Ideas rather than through participation in the Public Sphere. In light of these observations, one can then ask the question: What is really at the philosophical heart of Shreya Singhal judgement when it can employ both these approaches? One can argue that the focus of the judgement is to balance these two approaches for the governance of speech. But what is the aim of such an attempt to “balance”? Where is it really leading to? The answer may lie in analysing the rest of Shreya Singhal, including its pronouncements on Executive Rules under Section 69A and Section 79, both of which while being regressive, were upheld as constitutional.

The issue under Section 69A concerned the constitutional validity of the Blocking Rules of the internet, while that under Section 79 concerned the liability of intermediaries on the internet. What is interesting is that the Court in its analysis of Rules under both these sections does not go into the grounds which have been prescribed for the blocking of websites, or for pinning intermediary liability. Commenting on the Rules under Section 69A, the judgement holds:

Merely because certain additional safeguards such as those found in Section 95 and 96 CrPC are not available does not make the Rules constitutionally infirm. We are of the view that the Rules are not constitutionally infirm in any manner. (para 111)

Additionally it places emphasis on the premise the satisfaction of the Central Government that it is necessary to block a website, is a valuable assumption to proceed with the blocking of such website within the tenet of Article 19(2). It holds:

It will be noticed that Section 69A unlike Section 66A is a narrowly drawn provision with several safeguards. First and foremost, blocking can only be resorted to where the Central Government is satisfied that it is necessary so to do. (para 109)

Similarly, for the Rules under Section 79, the Court strikes down the premise that private censorship of internet content based on the judgement of intermediaries is constitutionally permissible. (see para 117) However, it upholds constitutionality of removal of content by an intermediary upon knowledge of a court order to this effect, as well as knowledge of notification by the appropriate government. It states:

Section 79(3)(b) has to be read down to mean that the intermediary upon receiving actual knowledge that a court order has been passed asking it to expeditiously remove or disable access to certain material must then fail to expeditiously remove or disable access to that material. This is for the reason that otherwise it would be very difficult for intermediaries like Google, Facebook etc. to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not. We have been informed that in other countries worldwide this view has gained acceptance, Argentina being in the forefront. Also, the Court order and/or the notification by the appropriate Government or its agency must strictly conform to the subject matters laid down in Article 19(2). (para 117)

In this manner while the power of speech regulation is taken away from private intermediaries existing in the Marketplace of Ideas, it is restored within the organs of the State—the Judiciary and the Executive. This may not necessarily be repressive, as long as these powers of regulations are used to actually expand the Public Sphere, rather than limiting or controlling it. But the architecture of the regulations under both Sections 69A, and 79 suggest that they have been designed for control, rather than promoting discussion in the Public Sphere, as is evident from the strong censorship models they employ.

Such type of speech regulation aimed at creating a State-controlled “Public Sphere” has a long history: It has been additionally opined that the First Amendment to the Constitution which expanded the grounds under Article 19(2) embodies this colonial continuity within the Constitution framework itself [8]. Eminent lawyer, Rajeev Dhavan has analysed the colonial history of laws governing speech in India to observe continuity from the administration then, to the post-independence orientation of speech laws, to point out that an inherent distrust of the media has always existed in the legal structure, be it before or after the Indian Constitution. He traces such form of legal structure to a desire to control, rather than enable the “public” rooted in the context of colonial rather than democratic pressures [9].

This trend also links back to what happens in the case of Cricket Association of Bengal which is cited in support of the striking down of Section 66A in Shreya Singhal. In Cricket Association of Bengal, while there is a recognition of the limitations of Marketplace of Ideas in how it can concentrate participation in democratic discussions only to the hands of those with adequate purchasing power,9 it also fails to amend this through a process of greater participation and representation of diverse public on media. What it broadly does instead is conflate the public to the State, holding that it is only through State-administered public broadcasting that greater participation and representation of diverse public on media can happen. Accordingly, Justice B.P. Jeevan Reddy in his judgement states:

Public good lies in ensuring plurality of opinions, views and ideas and that would scarcely be served by private broadcasters, who would be and who are bound to be actuated by profit motive. There is a far greater likelihood of these private broadcasters indulging in misinformation, disinformation and manipulation of news and views than the government-controlled media, which is at least subject to public and parliamentary scrutiny. (para 181, emphasis added)

Such architecture of Government regulation in the governance of speech, visible both in Cricket Association of Bengal, and by extension in the 66A discussion in Shreya Singhal, but also in the Sections 69A and 79 discussion in the latter judgement, aspires not at expanding and creating a Habermasian Public Sphere of unlimited lively discussion, but rather, a pre-defined, controlled sphere of the “public” which behaves in congruence with the interests of the State. While on the surface it may seem to recognise the limits of the Marketplace of Ideas approach in speech governance and aim for reform of the same, in the bigger scheme of things, the criticism of the marketplace is really directed towards putting more control of public speech in the hands of the State machinery [9].

In such a background of the control trend, even a judgement like Shreya Singhal with such a progressive outcome, appears like a flash in the pan. It might allow for some seemingly liberal advancements in free speech, but it does so only within the larger structure of control mechanisms created for speech ingrained within a pre-independence, undemocratic form of governance which was disrespectful of an independent Public Sphere. The question which then needs to be asked is this: While judgements like Shreya Singhal strike down the really repressive, do they actually bring about a structural change in legal assumptions about public speech? Or is the same colonial desire of control which is permeating the most progressive pronouncements of our jurisdiction? Is it moving towards a participatory, diverse and independent Public Sphere, or something which appears close enough to free discussion, but really is carefully monitored to produced “socially relevant” content, whereby what is relevant is defined through a complicated State apparatus? As our speech laws move to the Internet Age, these are some questions we must ask if the hope for the law is to enable involved, democratic citizenry, rather than a colonial-flavoured Internet public.

References

[1] Judgement accessed from http://supremecourtofindia.nic.in/FileServer/2015-03-24_1427183283.pdf.

[2] Stein, Laura. 2006. Speech rights in America: The First Amendment, Democracy, and the Media. Chicago: University of Chicago Press.

[3] Judgement accessed from http://indiankanoon.org/doc/539407/.

[4] Judgement accessed from http://indiankanoon.org/doc/1327342/.

[5] 250 US 616 (1919).

[6] 521 U.S. 844 (1997).

[7] Bhatia, Gautam. 2015. At the Heart of the Landmark 66A Ruling: The Crucial Distinction between Advocacy and Incitement. Scroll. March 25. Accessed from http://scroll.in/article/716034/at-the-heart-of-the-landmark-66a-ruling-the-crucial-distinction-between-advocacy-and-incitement.

[8] See: Liang, Lawrence. 2011. Reasonable Restrictions and Unreasonable Speech. InfoChange. Accessed from http://infochangeindia.org/agenda/freedom-of-expression/reasonable-restrictions-and-unreasonable-speech.html. Also see: Acharya, Bhairav. 2015. Free Speech Policy in India: Community, Custom, Censorship, and the Future of Internet Regulation. May 06. Accessed from http://notacoda.net/2015/05/06/free-speech-policy-in-india-community-custom-censorship-and-the-future-of-internet-regulation/.

[9] Dhavan, Rajeev. 2009. Moral Consensus in a Law and Order Society. In Aravind Rajagopal (ed.), The Indian Public Sphere. Oxford University Press. Pp. 92-93.

[10] See the discussion in the previous section of this essay.

The post is published under Creative Commons Attribution 4.0 International license, and copyright is retained by the author.

For more details visit https://cis-india.org/raw/blog_governing-speech-on-the-internet

How India Makes E-books Easier to Ban than Books (And How We Can Change That)

pranesh — 2012-02-21T11:50:56Z

Without getting into questions of what should and should not be unlawful speech, Pranesh Prakash chooses to take a look at how Indian law promotes arbitrary removal and blocking of websites, website content, and online services, and how it makes it much easier than getting offline printed speech removed.

E-Books Are Easier To Ban Than Books, And Safer

Contrary to what Mr. Sibal's recent hand-wringing at objectionable online material might suggest, under Indian laws currently in force it is far easier to remove material from the Web, by many degrees of magnitude, than it is to ever get them removed from a bookstore or an art gallery. To get something from a bookstore or an art gallery one needs to collect a mob, organize collective outrage and threats of violence, and finally convince either the government or a magistrate that the material is illegal, thereby allowing the police to seize the books or stop the painting from being displayed. The fact of removal of the material will be noted in various records, whether in government records, court records, police records or in newspapers of record. By contrast, to remove something from the Web, one needs to send an e-mail complaining about it to any of the string of 'intermediaries' that handle the content: the site itself, the web host for the site, the telecom companies that deliver the site to your computer/mobile, the web address (domain name) provider, the service used to share the link, etc. Under the 'Intermediary Guidelines Rules' that have been in operation since 11th April 2011, all such companies are required to 'disable access' to the complained-about content within thirty-six hours of the complaint. It is really that simple.

"That's ridiculous," you think, "surely he must be exaggerating." Think again. A researcher working with us at the Centre for Internet and Society tried it out, several times, with many different intermediaries and always with frivolous and flawed complaints, and was successful six out of seven times . Thus it is easier to prevent Flipkart or Amazon from selling Rushdie's Midnight's Children than it is to prevent a physical bookstore from doing so: today Indira Gandhi wouldn't need to win a lawsuit in London against the publishers to remove a single line as she did then; she would merely have to send a complaint to online booksellers and get the book removed. It is easier to block Vinay Rai's Akbari.in (just as CartoonsAgainstCorruption.com was recently blocked) than it is to prevent its print publication. Best of all for complainants: there is no penalty for frivolous complaints such as those sent by us, nor are any records kept of who's removed what. Such great powers of censorship without any penalties for their abuse are a sure-fire way of ensuring a race towards greater intolerance, with the Internet — that republic of opinions and expressions — being a casualty.

E-Book Bans Cannot Be Challenged

In response to some of the objections raised, the Cyberlaw Division of the Department of Information Technology, ever the dutiful guardian of free speech, noted that if you have a problem with access to your content being 'disabled', you could always approach a court and get that ban reversed. Unfortunately, the Cyberlaw Division of the Department of Information Technology forgot to take into account that you can't contest a ban/block/removal if you don't know about it. While they require all intermediaries to disable access to the content within thirty-six hours, they forgot to mandate the intermediary to tell you that the content is being removed. Whoops. They forgot to require the intermediary to give public notice that content has been removed following a complaint from person ABC or corporation XYZ on such-and-such grounds. Whoops, again.

So while records are kept, along with reasons, of book bans, there are no such records required to be kept of e-book bans.

E-Book Censors Are Faceless

Vinay Rai is a brave man. He is being attacked by fellow journalists who believe he's disgracing the professional upholders of free-speech, and being courted by television channels who believe that he should be encouraged to discuss matters that are sub judice. He is viewed by some as a man who's playing politics in courts on behalf of unnamed politicians and bureaucrats, while others view him as being bereft of common-sense for believing that companies should be legally liable for not having been clairvoyant and removing material he found objectionable, though he has never complained to them about it, and has only provided that material to the court in a sealed envelope. I choose, instead, to view him as a scrupulous and brave man. He has a face, and a name, and is willing to openly fight for what he believes in. However, there are possibly thousands of unscrupulous Vinay Rais out there, who know the law better than he does, and who make use not of the court system but of the Intermediary Guidelines Rules, firmly assured by those Rules that their censorship activities will never be known, will never be challenged by Facebook and Google lawyers, and will never be traced back to them.

Challenging Invisible Censorship

Dear reader, you may have noticed that this is a bit like a trial involving Free Speech in which Free Speech is presumed guilty upon complaint, is not even told what the charges against it are, has not been given a chance to prove its innocence, and has no right to meet its accusers nor to question them. Yet, the Cyberlaw Division of the Department of Information Technology continues to issue press releases defending these Rules as fair and just, instead of being simultaneously Orwellian and Kafkaesque. These Rules are delegated legislation passed by the Department of Information Technology under s.79 of the Information Technology Act. The Rules were laid before Parliament during the 2011 Monsoon session. We at CIS believe that these Rules are *ultra vires* the IT Act as well as the Constitution of India, not only with respect to what is now (newly) proscribed online (which in itself is enough to make it unconstitutional), but how that which is purportedly unlawful is to be removed. We have prepared an alternative that we believe is far more just and in accordance with our constitutional principles, taking on best practices from Canada, the EU, Chile, and Brazil, while still allowing for expeditious removal of unlawful material. We hope that the DIT will consider adopting some of the ideas embodied in our draft proposal.

As Parliament passed the IT Act in the midst of din, without any debate, it is easy to be skeptical and wonder whether Rules made under the IT Act will be debated. However, I remain hopeful that Parliament will not only exercise its power wisely, but will perform its solemn duty — borne out of each MP's oath to uphold our Constitution — by rejecting these Rules.

Photo credit: Lynn Gardner, under CC-BY-NC-SA 2.0 licence*

This was reproduced in Outlook Magazine on 27 January 2012

For more details visit https://cis-india.org/internet-governance/blog/india-ebooks-easier-to-ban-than-books

Censoring the Internet: A brief manual

sunil — 2012-08-24T09:39:03Z

Blocking websites on the Internet should be proportionate to harm they intend. However, the government of India's approach is against the principles of natural justice.

Published in Tehelka on August 23, 2012.

When: Speech should be regulated when there is harm, or when there is clear and imminent harm. The extent of regulation must be in proportion to the harm.

The mass exodus of people from the Northeast, from certain Indian-cities is clear indication of a ‘public order’ crisis. The government of India, for the very first time, has legitimate reasons for cracking down on intermediaries such as Google and Facebook and their users, unlike in the past when only the egos of politicians, bureaucrats and others in public office or public life were at stake. In most cases temporary restrictions on speech are sufficient to mitigate harm. When potential for harm has dissipated the restrictions should be lifted. Whilst videos and images related to the violations of the human-rights to the Rohingya community might be sensitive material today, there is no reason why such content should be blocked forever, unlike, for example, in the case of child pornography.

How: Does this mean that the Internet rules that were notified in April last year were future-looking policies justified in retrospect? No. When a block is implemented, or a takedown is complied with, three types of notices are required — either immediately or after the imminent harm has been prevented. First, the censored individuals/groups should be informed, so that they can seek redressal and reinstatement; second, those trying to consume the censored material must be warned; and third, the general public has a right to know either immediately or in due course.

Even in authoritarian states like Saudi Arabia, visitors to blocked websites are given clear reasons why the website was blocked along with contact details to seek redressal. There are, also, safe harbour provisions for intermediaries, meaning that they absolve themselves of liability in exchange for acting upon takedown orders sent by non-state actors. Suitable safeguards are required to prevent over-compliance by intermediaries, and the resulting chilling effect on free speech as demonstrated by CIS's research. The intermediary liability rules under the Indian IT Act 2008 have no such safeguards and therefore does not comply with principles of natural justice.

Who: Block and takedown orders need to be very specific. The advisory note issued to Internet intermediaries by the Department of Electronics and Information Technology, Ministry of Communications & Information Technology on the 17 August did not mention details such as URLs, user accounts, group names and content identifiers. Most of the censored material at first glance, appears to be communal in nature. Unfortunately, there are several URLs from mainstream media publications, a few Wikipedia pages and also at least two blog entries debunking rumours in the list, perhaps because of oversight. Images of unrelated human rights violations featuring people with similar racial features are being used to fuel the current rumours. However, blocking all websites featuring such images will not stop such rumour mongering. Censorship must be targeted and proportionate to the potential harm.

Why: Speaking aloud just once in the analog world could either result in harm or good. Imagine shouting “bomb” in a crowded airport. The network effect of technologies such as SMS, social media and micro-blogging amplifies the impact of speech. Article 19(2) of the Constitution of India lists eight reasons for which reasonable restrictions may be applied to the right to free speech. This applies to both analog and speech mediated via networked technologies. Some of these restrictions such as 'public order' and 'incitement to discrimination, hostility or violence' are part of international treaties such as the International Covenant on Civil and Political Rights. Fringe phenomenon and exceptional circumstances should not be the basis for formulating policy. For example — knives used as murder weapons does not necessitate regulations on cutlery. Similarly, criminalising rumour mongering will not prevent false information from going viral, online, and disrupting public order. Videos and photos are doctored and manipulated for a wide variety of legitimate reasons. The existing law regulating speech in the interests of public order are sufficient to deal with the circulation of falsehoods on social media.

Sunil Abraham is the Executive Director of Bangalore based research organisation, the Centre for Internet and Society.

For more details visit https://cis-india.org/internet-governance/www-tehelka-com-sunil-abraham-august-23-2012-censoring-the-internet

India’s ethnic clashes intensify within social-media maelstrom

praskrishna — 2012-08-24T12:25:47Z

It began in mid-July: First came a series of retaliatory killings between ethnic communities in the state of Assam in mid-July. Soon nearly 500,000 people had fled their homes for grim refugee camps. The central government belatedly sent in troops to assist, although that has barely quieted matters. But in the meantime, the violence in remote Assam triggered a bizarre series of knock-on events that has affected the entire country.

Published in the Globe and Mail. Sunil Abraham is quoted.

First a Mumbai demonstration in support of Muslims in Assam turned violent, leaving two people dead. Then tens of thousands of people from the northeast who lived and worked in big cities in the south of India packed up and fled back home – terrorized by Facebook, Twitter and text messages threatening them with violence in “retaliation” for what was happening in the north. The Indian government accused Pakistani agents of producing the threatening material to destabilize India. Then India went on a web crackdown, ostensibly trying to shut off the social media causing the panic – but setting off a fierce debate about censorship in the process.

Violence in the northeast

The seven states in the Indian northeast are connected to the rest of the country by only a tiny strip of land and often seem to exist in a whole other country. Several states have ongoing ethnic conflicts, and are covered by a law giving the Indian armed forces central powers, sharply criticized by human rights organizations. But the rest of the country knows little and, it often seems, cares less about these disputes.

So it was, initially, with the violence in Assam: in mid-July, killings began in the west of the state that has seen historic conflict between people in the Bodo ethnic group, which makes up about 35 per cent of the state population, and Bengali-speaking Muslims who migrated to the region, in some cases generations ago, from farther south – they are about 29 per cent of people in the state. The fight, said Sanjoy Hazarika, who directs the Centre for North East Studies at Jamia Millia University in Delhi, is over access to resources, and land. Simply put, the Bodo, who hold political power in the state, won’t share the resources they receive from New Delhi, which angers other groups, while the Bodo, who fear their status as the dominant group is ebbing, are desperate to hold on to power. Over the course of two weeks, some 79 people were killed, often gruesomely; at least 14,000 homes were burnt and people from both sides of the fight fled to refugee camps in one of the largest movements of people in the region since partition in 1947.

Mr. Hazarika noted that the dispute had existed as warm embers to a long-running demand for a separate Bodo state: “When governments don’t get at the core of issues and when [they] leave things half-baked and unresolved these things fester.” Some 190,000 people were still living in camps left over from riots in the 1990s, he said. “Governments come and go and are incapable of sending people home in safety.”

Right-wing Hindu organizations in the country including the Bharatiya Janata Party (BJP), the official opposition, blamed the trouble on illegal immigrants from Bangladesh. Mr. Hazarika rejected the idea. “Of course there are Bangladeshis coming in but nothing on the scale they are propagating – it’s a mantra to divert attention from the real core issues of natural resources, political power and just economic distribution of central funds.” Because the central government has failed to respond except by sending troops, he added, there is real danger these sporadic clashes could become a wider armed conflict.

Repercussions in the south

The first sign that this episode of violence in the northeast was going to have an impact outside the region came when a demonstration in Mumbai on Aug. 11, organized in support of Muslim victims of alleged atrocities, became violent. Two people were killed and at least 14 were seriously injured. Some protesters said they had been shown images taken from the Internet of Muslim victims in the northeast, which inflamed the crowd.

Days later, the exodus began: thousands of people of northeastern origin who had migrated for work to the more prosperous big cities of the south, such as Bangalore and Pune, suddenly began to flood into train stations, desperate to flee. They said they had received text messages warning them to go or face violent reprisal for what had been done to Muslims in Assam. But it wasn’t just Assamese who were fleeing: people from Manipur and the other five states went too, because Indians from the rest of the country rarely distinguish between the northeast states and they all felt afraid.

In vain, the Prime Minister and other major political figures pleaded with them to stay put and stay in their jobs. Nitin Pai, an expert on social media with a think tank called the Takshashila Institution, said it was the first time India saw what it means to be what he calls a “radically networked” country – more than three-quarters of Indians have cellphones and can receive text messages. Far fewer have Internet access – but one person who sees a Facebook page or Twitter post can quickly text 50 others, he noted. “When people are connected in such a fashion it’s very easy to mobilize them quickly, and mobilization is much faster than counter-mobilization. In Bangalore, by the time people in authority came to know there was a rumour and people were packing their bags, they were too late – by then 5,000 people were at the train station.” The government response needed to go up a hierarchy and across ministries – and meanwhile the text messages were flying.

It was also, said Mr. Pai, indicative of how little faith people had in government’s ability to protect them, and, Mr. Hazarika said, illustrated the deep distrust people from the northeast have for the central government

Internet crackdown

As the government began to dig in to the cause of the panic, the story became increasingly bizarre. Almost none of the images that were ostensibly outraging Muslims in the rest of India, and potentially spurring them to acts of vicious revenge, were actually of Assam. The much-circulated Facebook images were Photoshopped (often badly) pictures of atrocities allegedly carried out against Muslims in Burma several years ago or entirely unrelated pictures (such as those of Buddhist monks helping earthquake victims in Tibet) purporting to be from Assam. But the media consumers in question were not sophisticated, Mr. Pai noted, and the irrationality was lost in the mass panic.

On Aug. 19, Indian Home Minister Sushil Kumar Shinde said that government intelligence agencies had determined that the posts were originating in Pakistan, and that he had asked his Pakistani counterparts to track down and stop those responsible. Pakistan denied responsibility. Relations between the two countries, which had been thawing perceptibly, suddenly became chilly once more.

To try to stanch the exodus to the northeast, the Indian government first banned the sending of bulk text messages and then began to try to block Internet sites that hosted offensive material. But this undertaking fast became fraught: for the past three years the Indian government has battled in court with big Internet companies, such as Facebook and Google, and its own citizens over efforts at censorship. The government has been engaged in a prolonged skirmish with the companies to try to force them to screen and remove “objectionable” material.

But up until now, that material has been satirical Twitter handles and Facebook groups that mock senior members of government or the ruling Indian National Congress. “Now for a change, the government has legitimate grounds to censor speech,” said Sunil Abraham, director of the Centre for Internet and Society in Bangalore, “but they’ve cried wolf on so many occasions before.”

Nevertheless, the companies concerned have engaged the government on the issue, acknowledged that the material in question is causing harm and disrupting public order, and appear to be co-operating in its removal. The government has listed 310 items – Twitter feeds, Facebook pages, URLs – for blocking. But, Mr. Abraham noted, instead of doing that directly with the firms, it is using the much slower and more erratic approach of relying on Internet Service Providers or ISPs to do it.

Mr. Abraham said he fears what may come next: that government will see this incident as reason – or use it as a pretext – to attempt to get an even tighter hold over the Internet. “Then we’re headed for big trouble.”

For more details visit https://cis-india.org/news/www-the-globe-and-mail-stephanie-nolen-august-23-2012-indias-ethnic-clashes-intensify-within-social-media-maelstrom

Govt cracks down on Twitter

praskrishna — 2012-08-25T02:09:42Z

India’s crackdown on social media platforms for hosting “inflammatory” content — following the violence in Assam and the exodus of northeastern people from several cities — seems to have been a little reckless.

Published in the Hindustan Times on August 24, 2012. Pranesh Prakash is quoted.

The government’s order to internet service providers to block 310 webpages between August 18-21 goes beyond blocking doctored images and videos uploaded to incite passions. Instead, it seeks to block 16 Twitter handles, including those of VHP leader Pravin Togadia and two journalists and even reportage of sectarian violence in international and domestic news websites.

“Block TRUTH & there will be 1000M Togadias!” Togadia tweeted, as the virtual world erupted in protests.

The home ministry insisted it had not asked for individual Twitter handles to be blocked, only for removal of malicious content.

Earlier in the day, the micro-blogging site opened dialogue with the government but sought clarifications before taking a call on blocking content.

"Twitter has promised to cooperate on handles resembling the PMO's," said communications adviser to the PM Pankaj Pachouri, emphasising that the PMO's only demand is that Twitter handle the case in accordance with its rules.

Also on the government's block list are blogs in India and Pakistan that tried to educate web surfers about the morphed photos. One was apparently written by a government officer in Mumbai.

Critics slammed the government for its "ham-handed" and "artless" handling of the situation, which they said came after the morphed images and videos had already done damage.

The Bangalore-headquartered Centre for Internet & Society said the "goodness of the government's intentions seems unquestionable" but it appears to have gone overboard and not by the book.

"The blocking was done without due process of law," Pranesh Prakash at CIS observed. He argued that the government should have engaged with the social media platforms since a majority —217 out of 310 —of the block orders were aimed at Facebook, YouTube, and Twitter.

For more details visit https://cis-india.org/news/www-hindustantimes-com-aug-24-2012-govt-cracks-down-on-twitter