The Centre for Internet and Society
https://cis-india.org
These are the search results for the query, showing results 131 to 145.
Yes, You Can Get Arrested for a Facebook Status Update Now
https://cis-india.org/news/the-atlantic-wire-november-29-2012-david-wagner-you-can-get-arrested-for-facebook-status-update-now
<b>A 21-year-old Indian woman thought Mumbai shouldn't have been shutdown for the funeral of an Islamophobic leader. Broadcasting such opinions on Facebook was apparently grounds for arrest. </b>
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<p style="text-align: justify; ">The article by David Wagner was <a class="external-link" href="http://www.theatlanticwire.com/global/2012/11/yes-you-can-get-arrested-facebook-status-update-now/59450/">published in the Atlantic Wire</a> on November 29, 2012. Pranesh Prakash is quoted.</p>
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<p style="text-align: justify; "><span><span>A Muslim graduate student, Shaheen Dhada posted a note (<a href="https://www.facebook.com/photo.php?fbid=300712513362810&set=a.299963443437717.55180.299958060104922&type=1">of her iPhone message</a>) on her timeline November 18th, writing, "Every day thousands of people die, but still the world moves on ... Today, Mumbai shuts down out of fear, not out of respect." Her status was written in reference to the death of Bal Thackeray, the late leader of Hindu extremist group Shiv Sena, responsible for repeated waves violence against Muslims in the Maharashtra state, <a href="http://www.bbc.co.uk/news/world-asia-india-20383401">according to the BBC</a>. Another 21-year-old woman, Rinu Shrinivasan, was also arrested by Indian police for stoking "religious enmity." She'd simply clicked "like" on Dhada's post. </span></span></p>
<p style="text-align: justify; "><span><span>A mob of angry Thackeray supporters thronged around the police station Dhada's house. Others vandalized her uncle's clinic two days after her arrest. Mumbai newspaper </span></span><i><span><span>The Hindu </span></span></i><span><span><a href="http://www.thehindu.com/news/national/facebook-row-police-to-drop-case-against-girls/article4146343.ece">reports today</a> that charges have been dropped against the two arrested women, but those observing the case are worried about the precedent this sets for free speech in India. "I have 3,500 followers on Twitter, and I'm pretty sure I annoy 100 of them on a daily basis," says Centre for Internet and Society director Pranesh Prakash. But should that mean he and others in India should picture themselves in handcuffs every time they type a potentially controversial status update? Retired Supreme Court Justice Markandey Katju tells NPR's Julie McCarthy that, at least in this case, the arrest was totally inappropriate: </span></span></p>
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<td>You can mourn a death in whichever way you want, but you can't bring a whole city to a stoppage. So what this girl wrote was in consonance with the verdict of the Supreme Court—nothing illegal.</td>
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</table>
<p>
For more details visit <a href='https://cis-india.org/news/the-atlantic-wire-november-29-2012-david-wagner-you-can-get-arrested-for-facebook-status-update-now'>https://cis-india.org/news/the-atlantic-wire-november-29-2012-david-wagner-you-can-get-arrested-for-facebook-status-update-now</a>
</p>
No publisherpraskrishnaFreedom of Speech and ExpressionInternet GovernanceCensorship2012-11-30T08:16:20ZNews ItemGovt tweaks enforcement of IT Act after spate of arrests
https://cis-india.org/news/livemint-politics-november-29-2012-surabhi-agarwal-govt-tweaks-enforcement-of-it-act-after-spate-of-arrests
<b>The government on Thursday tweaked the law to make it tougher for citizens to be arrested for online comments that are deemed offensive after recent arrests came in for heavy criticism by Internet activists, the media and other groups.</b>
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<p style="text-align: justify; ">Surabhi Agarwal's article was <a class="external-link" href="http://www.livemint.com/Politics/hJLTj0OG2oXS1W64jE20bL/Govt-tries-to-tighten-application-of-cyber-law.html">published in LiveMint</a> on November 29, 2012. Pranesh Prakash is quoted.</p>
<hr />
<p style="text-align: justify; ">This took place just before the Supreme Court was to hear a public interest litigation seeking an amendment to the Information Technology (IT) Act.</p>
<p style="text-align: justify; ">Complaints under the controversial Section 66A of the IT Act, which criminalizes “causing annoyance or inconvenience” online or electronically, can be registered only with the permission of an officer of or above the rank of deputy commissioner of police, and inspector general in metro cities, said a senior government official.</p>
<p style="text-align: justify; ">The government, however, has not amended the terms in the section that are said to be vague and subject to interpretation.</p>
<p style="text-align: justify; ">The public interest litigation against Section 66A filed by student Shreya Singhal came up in chief justice <a href="http://www.livemint.com/Search/Link/Keyword/Altamas%20Kabir">Altamas Kabir</a>’s court on Thursday. The matter will be heard on Friday.</p>
<p style="text-align: justify; ">Two girls near Mumbai were arrested last week for criticizing on <a href="http://www.livemint.com/Search/Link/Keyword/Facebook">Facebook</a> the shutdown in the city for Shiv Sena chief <a href="http://www.livemint.com/Search/Link/Keyword/Bal%20Thackeray">Bal Thackeray</a>’s funeral. Earlier in November, a businessman in Puducherry was arrested for comments made on <a href="http://www.livemint.com/Search/Link/Keyword/Twitter">Twitter</a> against finance minister <a href="http://www.livemint.com/Search/Link/Keyword/P.%20Chidambaram">P. Chidambaram</a>’s son <a href="http://www.livemint.com/Search/Link/Keyword/Karti%20Chidambaram">Karti Chidambaram</a>.</p>
<p style="text-align: justify; ">According to people present at the meeting of the cyber regulatory advisory committee on Thursday, the Union government will issue guidelines to states with respect to the compliance of the new enforcement rules soon. The people didn’t want to be named. An official said the move was not related to the case.</p>
<p style="text-align: justify; "><a href="http://www.livemint.com/Search/Link/Keyword/Pranesh%20Prakash">Pranesh Prakash</a>, policy director at the Centre for Internet and Society think tank, said that while the change in the law is a step in the right direction and will eliminate a lot of frivolous complaints, more needs to be done to make the legislation specific.</p>
<p style="text-align: justify; ">Chief justice Kabir said the apex court was considering taking suo motu cognisance of recent incidents.</p>
<p style="text-align: justify; ">Singhal contended in her plea that “the phraseology of section 66A of the IT Act, 2000, is so wide and vague and incapable of being judged on objective standards, that it is susceptible to wanton abuse and, hence, falls foul of Article 14, 19 (1)(a) and Article 21 of the Constitution.”</p>
<p style="text-align: justify; ">She submitted that “unless there is judicial sanction as a prerequisite to the setting into motion the criminal law with respect to freedom of speech and expression, the law as it stands is highly susceptible to abuse and for muzzling free speech in the country.”</p>
<p style="text-align: justify; ">The PIL was argued by Mukul Rohatgi, who said in his opening remarks that Section 66A was vague. Terms such as “offensive” and “annoyance” should be clearly defined as the section is part of criminal law, he said.</p>
<p style="text-align: justify; ">Senior advocate Harish Salve, who was also present during the hearing, said India guaranteed the right to “annoy” and there was no need to have a separate law.</p>
<p style="text-align: justify; ">Salve, who is in the process of filing an intervention on behalf of some technology companies, added that the section needed to be narrowed to specifically cater to private messages sent electronically and not social media communications.</p>
<p style="text-align: justify; ">He said the existing law of defamation should suffice and could be extended to include electronic communications. According to a lawyer who is part of the team representing Singhal, the petition also demanded that the law be made non-cognisable so that the police can’t make an arrest without an order from a magistrate.</p>
<p style="text-align: justify; ">“There has been a lot of misuse and abuse of the law recently and we want it to be struck down absolutely and also the court to issue guidelines,” he said.</p>
<p style="text-align: justify; ">Apart from the incident at Palghar in Thane district involving the two girls, Singhal’s PIL referred to an April incident in which a professor of chemistry from Jadavpur University in West Bengal, <a href="http://www.livemint.com/Search/Link/Keyword/Ambikesh%20Mahapatra">Ambikesh Mahapatra</a>, was arrested for posting a cartoon concerning chief minister <a href="http://www.livemint.com/Search/Link/Keyword/Mamata%20Banerjee">Mamata Banerjee</a> on a social networking site.</p>
<p style="text-align: justify; ">She also referred to the Puducherry case as well as the May arrests of two <a href="http://www.livemint.com/Search/Link/Keyword/Air%20India">Air India</a> Ltd employees, <a href="http://www.livemint.com/Search/Link/Keyword/V.%20Jaganatharao">V. Jaganatharao</a> and <a href="http://www.livemint.com/Search/Link/Keyword/Mayank%20Sharma">Mayank Sharma</a>, by the Mumbai Police under the IT Act for posting content on Facebook and <a href="http://www.livemint.com/Search/Link/Keyword/Orkut">Orkut</a> against a trade union leader and some politicians.</p>
<p style="text-align: justify; ">Singhal has sought guidelines from the apex court to “reconcile Section 41 and 156 (1) of the Criminal Procedure Code (CPC) with Article 19 (1)(a) of the Constitution” and that offences under the Indian Penal Code and any other legislation, if they involve the freedom of speech and expression, be treated as a non-cognizable offences for the purposes of Sections 41 and 156 (1).</p>
<p style="text-align: justify; ">Section 41 of CPC empowers the police to arrest any person without an order from a magistrate and without a warrant in the event that the offence involved is a cognizable offence. Section 156 (1) empowers the investigation by the police into a cognizable offence without an order from a magistrate.</p>
<p style="text-align: justify; ">The government official present at the cyber regulatory advisory committee said the expressions used in Section 66A had been taken from different statutes around the world, including the UK and the US.</p>
<p style="text-align: justify; ">“There has been a broad consensus that the parameters of the law concerned might be in order but from a procedural standpoint there might be difficulty,” the official said.</p>
<p style="text-align: justify; ">Prakash said that while some of the terms in the section may be taken from legislation overseas, the penalty imposed under the Indian law is far more stringent at three years of imprisonment than, for instance, six months under the UK law. “Criminal offences can’t be put at the same level as something which causes insult.”</p>
<p style="text-align: justify; ">The cyber regulatory advisory committee meeting was attended by minister for communications and information technolgy Kapil Sibal, and secretaries of the department of telecommunications and information technology, besides representatives of technology companies such as Google and Facebook, industry associations and civil society.</p>
<p style="text-align: justify; ">The official also said that the situation will be reviewed every three to four months based on “ground realities”.</p>
<p style="text-align: justify; ">A government official said on condition of anonymity that the decision to revive the cyber regulatory advisory committee had been taken at a meeting in August. Section 66A was put on the agenda since it was the subject of much debate, he said. The meeting, however, was not a pre-emptive measure ahead of the PIL that was taken up in the Supreme Court. The official also said that the government will spell out its position in court in favour of the legislation.</p>
<p>
For more details visit <a href='https://cis-india.org/news/livemint-politics-november-29-2012-surabhi-agarwal-govt-tweaks-enforcement-of-it-act-after-spate-of-arrests'>https://cis-india.org/news/livemint-politics-november-29-2012-surabhi-agarwal-govt-tweaks-enforcement-of-it-act-after-spate-of-arrests</a>
</p>
No publisherpraskrishnaSocial MediaFreedom of Speech and ExpressionPublic AccountabilityInternet GovernanceCensorshipInformation Technology2012-11-30T08:27:01ZNews ItemThe flaw in cyber law
https://cis-india.org/news/the-hindu-businessline-november-29-2012-the-flaw-in-cyber-law
<b>Legal experts and netizens want the controversial clause in the IT Act to be scrapped after two Mumbai girls were arrested for a post on Facebook.</b>
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<p style="text-align: justify; ">This article by S Ronendra Singh was <a class="external-link" href="http://www.thehindubusinessline.com/features/eworld/the-flaw-in-cyber-law/article4143509.ece?homepage=true&ref=wl_home">published in the Hindu BusinessLine</a> on November 29, 2012. Sunil Abraham and Snehashish Ghosh are quoted.</p>
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<p style="text-align: justify; ">Shaheen Dhada, 21, and her friend Rini Srinivas would never have imagined that they could land in jail because of a Facebook post. The two girls were arrested in Palghar following a complaint from local Shiv Sena workers against Shaheen's post on Facebook, where she questioned the need for a 'bandh' being observed in Mumbai on the death of the Sena supremo Bal Thackery.</p>
<p style="text-align: justify; ">While the two girls’ experience was traumatic, the action by the police has given fodder to activists and cyber experts to raise the clamour for scrapping section 66A of the IT Act, which they term as being draconian.</p>
<p style="text-align: justify; ">The Palghar incident is not an isolated event. Recently, Ravi Srinivasan, a 45-year-old supplier of plastic parts to telecom companies and a volunteer with India Against Corruption got into trouble with police after he tweeted about alleged corruption charges against Karti Chidambram, son of Finance Minister P Chidambaram.</p>
<p style="text-align: justify; ">There was a common factor in all these cases - arbitrary use of the Section 66 (A) of the Information Technology Act, 2000. The only mistake that most of these so-called offenders had committed was publishing their views online.</p>
<p style="text-align: justify; ">So, should we consider the law draconian now?</p>
<h3 style="text-align: justify; ">Assess Ambiguity</h3>
<p style="text-align: justify; "><span><span>According to Snehashish Ghosh, Policy Associate at Centre for Internet and Society (Bangalore-based organisation looking at multidisciplinary research and advocacy in the field of Internet and society), the main reason for such inconsistent application of the law can be found in the history of the provision. </span></span></p>
<p style="text-align: justify; ">He said the language used in Section 66A of the IT Act, 2000 has been borrowed from Section 127 of the UK Communication Act, 2003 and the Malicious Communications Act, 1988.</p>
<p style="text-align: justify; ">“These two particular provisions are applicable in cases where the communication is directed to a particular person. Section 1 of the Malicious Prosecution Act begins with the, “any person who sends to another person” and hence it is clear that the provision does not include any post or electronic communication which is broadcasted to the world and deals with only one-to-one communication,” said Ghosh.</p>
<p style="text-align: justify; ">Section 127 only deals with “improper use of public electronic communications network”. It was meant to prevent misuse of public communication services. Therefore, social media Web sites do not fall under its ambit. However, the Section 66(A) in its current form fails to define any specific category, which has led to inconsistent and arbitrary use of the provision, said Ghosh.</p>
<p style="text-align: justify; ">One of the principles of interpretation of statute is that of absurdity. It states that when there are two interpretation of the law - where one renders it absurd and arbitrary, while the other puts it within the constitutional limits - then the latter interpretation is adopted.</p>
<p style="text-align: justify; ">“In the case of 66(A), interpreting it to include any form of communication transmitted using computer resource or communication device renders it to be absurd and arbitrary. Therefore, it should be interpreted and made applicable only to communication between two parties,” he opined.</p>
<p style="text-align: justify; ">According to Pavan Duggal, cyber law expert and advocate at Supreme Court of India, primarily section 66(A) is for protecting reputation and preventing misuse of its own.</p>
<p style="text-align: justify; ">“It is so vast – what is annoyance and inconvenience – gives a tremendous handle in the hands of the complainant and the police to target anyone. Further, if you send any information through email or SMS, which aims to mislead the addressee about such mail or message is a crime. All this suddenly opens a Pandora box of offences,” he said.</p>
<p style="text-align: justify; ">“So, when you look at case of Mamta Banerjee or latest case of those two girls getting arrested in Mumbai, it shows that Section 66(A) becomes an effective tool in the hands of ingenious complainants to gag free speech. And, that is why there is so much noise,” Duggal said.</p>
<h3 style="text-align: justify; ">To Use, Not Abuse</h3>
<p style="text-align: justify; "><span><span>Sighting the recent case of the two girls from Mumbai, he said the law was abused and all they need to do is just exploit – whether clicking a ‘Like’ button on Facebook could involve Section 66(A) – and this case is setting a precedence that ‘liking’ a comment can be an offensive of Section 66(A). </span></span></p>
<p style="text-align: justify; ">“When you click a ‘Like’ button, you do not send any information that is defined under Section 66(A). You only send information of ‘liking’ that information or message,” he said.</p>
<p style="text-align: justify; ">However, it has become a code of misuse in its own sense. Parameters given there in the Act are extremely wide and can be interpreted.</p>
<p style="text-align: justify; ">“It has only one good thing – it makes the offence bailable, which means bail as a matter of right. But, once you get stuck under Section 66(A), along with that invites a long period of mental agony and trauma because the trial will take five-six years and you will have to undergo the trial,” he added.</p>
<p style="text-align: justify; ">So does it mean the Government should scrap or completely abolish this Section from the IT Act, 2000 or should the people of India file a petition against this Section?</p>
<p style="text-align: justify; ">Sunil Abraham, Executive Director, Centre for Internet and Society says there are laws specifically dealing with cyber stalking and communications and therefore, there we do not need an additional law.</p>
<p>“Either scrap or retain narrow parameters, which could be made defamatory. Otherwise, more such cases would be seen in future under this section. It has not done anything significant and has an impact on basic free online speech to public,” says Duggal.</p>
<p style="text-align: justify; ">A better approach would be to strike down the provision and include separate well defined anti-stalking and anti-spamming provision, said Ghosh of Centre for Internet and Society.</p>
<p style="text-align: justify; ">However, Mahesh Uppal, Director, ComFirst India (consultancy firm on regulatory issues) said it would be premature, in these circumstances, for any litigation against this Section.</p>
<p style="text-align: justify; ">“The issue is serious. However, this is as much to do with policing in general as it is to do with Section 66(A) which needs an amendment and clarification to remove any scope for abuse,” he said.</p>
<p style="text-align: justify; ">But, is the Government ready for any change?</p>
<p style="text-align: justify; ">Minister of Communications and IT, Kapil Sibal recently said, “Just because some people do not follow it properly, we cannot entirely scrap the law. Can we do away with penal code? We cannot.”</p>
<p style="text-align: justify; ">So, does that mean we, as citizens, have to consult legal notes before posting a message online or sending an SMS? And, even if we do, are all laws, sections and under-sections comprehendible by the common man? If not, how big a risk are we, and the person who ‘Likes’ what we say is taking?</p>
<p>The answers to these questions determine the future of freedom of speech.</p>
<p>
For more details visit <a href='https://cis-india.org/news/the-hindu-businessline-november-29-2012-the-flaw-in-cyber-law'>https://cis-india.org/news/the-hindu-businessline-november-29-2012-the-flaw-in-cyber-law</a>
</p>
No publisherpraskrishnaFreedom of Speech and ExpressionIT ActInternet Governance2012-11-30T09:06:25ZNews ItemDraft nonsense
https://cis-india.org/internet-governance/blog/times-crest-pranesh-prakash-november-24-2012-draft-nonsense
<b>Seriously flawed and dodgily drafted provisions in the IT Act provide the state a stick to beat its citizens with.</b>
<hr />
<p style="text-align: justify; ">Pranesh Prakash's <a class="external-link" href="http://www.timescrest.com/opinion/draft-nonsense-9274">op-ed was published in the Times of India</a> on November 24, 2012.</p>
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<p style="text-align: justify; ">Section 66A of the Information Technology Act once again finds itself in the middle of a brewing storm. It has been used in cases ranging from the Mamata Banerjee cartoon case, the Aseem Trivedi case, the Karti Chidambaram case, the Chinmayi case, to the current Bal Thackeray-Facebook comments case. In all except the Karti Chidambaram case (which is actually a case of defamation where 's. 66A' is inapplicable), it was used in conjunction with another penal provision, showing that existing laws are more than adequate for regulation of online speech. That everything from online threats wishing sexual assault (the Chinmayi case) to harmless cartoons are sought to be covered under this should give one cause for concern. Importantly, this provision is cognisable (though bailable), meaning an arrest warrant isn't required. This makes it a favourite for those wishing to harass others into not speaking.</p>
<p style="text-align: justify; ">Section 66A prohibits the sending "by means of a computer resource or a communication device" certain kinds of messages. These messages are divided into three sub-parts : (a) anything that is "grossly offensive or has menacing character";(b) information known to be false for the purposes of "causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will" and is sent persistently;or (c) "for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages". This carries with it a punishment of up to three years in jail and a fine without an upper limit. As even non-lawyers can see, these are very broadly worded, with use of 'or' everywhere instead of 'and', and the punishment is excessive. The lawyers amongst the readers will note that while some of the words used are familiar from other laws (such as the Indian Penal Code), they are never used this loosely. And all should hopefully be able to conclude that large parts of section 66A are plainly unconstitutional.</p>
<p style="text-align: justify; ">If that is so obvious, how did we end up getting this law? We copied (and badly at that) from the UK. The sad part is that the modifications that were introduced while copying are the bits that cause the most trouble. The most noteworthy of these changes are the increase in term of punishment to 3 years (in the UK it's 6 months); the late introduction (on December 16, 2008 by A Raja) of sub-section (c), meant as an anti-spam provision, but covering everything in the world except spam;and the mangling up of sub-section (b) to become a witches brew of all the evil intentions in this world.</p>
<p style="text-align: justify; ">Further, we must recognise that our Constitution is much stronger when it comes to issues like free speech than the UK's unwritten constitution, and our high courts and Supreme Court have the power to strike down laws for being unconstitutional, unlike in the UK where Parliament reigns supreme. The most the courts can do there is accommodate the European Convention on Human Rights by 'reading down' laws rather than striking them down.<br /><br />Lastly, even if we do decide to engage in policy-laundering, we need to do so intelligently. The way the government messed up section 66A should serve as a fine lesson on how not to do so. While one should fault the ministry of communications and IT for messing up the IT Act so badly, it is apparent that the law ministry deserves equal blame as well for being the sleeping partner in this deplorable joint venture. For instance, wrongfully accessing a computer to remove material which one believes can be used for defamation can be considered 'cyber-terrorism'. Where have all our fine legal drafters gone? In a meeting, former SEBI chairman M Damodaran noted how bad drafters make our policies seem far dumber than they are. We wouldn't be in this soup if we had good drafters who clearly understand the fundamental rights guaranteed by our constitution.</p>
<p style="text-align: justify; ">There are a great many things flawed in this unconstitutional provision, from the disproportionality of the punishment to the non-existence of the crime. The 2008 amendment to the IT Act was one of eight laws passed in 15 minutes without any debate in the 2008 winter session of Parliament. For far too long the Indian government has spoken about "multi-stakeholder" governance of the internet at international fora (meaning that civil society and industry must be seen as equal to governments when it comes to policymaking for the governance of the internet). It is about time we implemented multi-stakeholder internet governance domestically. The way to go forward in changing this would be to set up a multi-stakeholder body (including civil society and industry) which can remedy this and other ridiculously unconstitutional provisions of our IT Act.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/times-crest-pranesh-prakash-november-24-2012-draft-nonsense'>https://cis-india.org/internet-governance/blog/times-crest-pranesh-prakash-november-24-2012-draft-nonsense</a>
</p>
No publisherpraneshIT ActSocial MediaFreedom of Speech and ExpressionPublic AccountabilityInternet Governance2012-12-03T09:08:10ZBlog EntryFrom Virtual to Reliable: Exploring Freedom and Facts in the World of WWW (World Wide Web)
https://cis-india.org/internet-governance/news/from-virtual-to-reliable-exploring-freedom-and-facts-in-the-world-of-www-world-wide-web
<b>An interactive seminar on internet freedom was organized by the Embassy of the Kingdom of Netherlands and Adaan Foundation on March 21, 2017 at the India International Centre in New Delhi. Saikat Dutta and Amber Sinha were panelists. </b>
<p>The seminar was coincident with the inauguration of the World Press Photo Exhibition 2016. In total there were four panelists. <a class="external-link" href="http://cis-india.org/internet-governance/files/interactive-seminar-on-internet-freedom">Read the agenda here</a>.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/news/from-virtual-to-reliable-exploring-freedom-and-facts-in-the-world-of-www-world-wide-web'>https://cis-india.org/internet-governance/news/from-virtual-to-reliable-exploring-freedom-and-facts-in-the-world-of-www-world-wide-web</a>
</p>
No publisherpraskrishnaFreedom of Speech and ExpressionInternet FreedomInternet Governance2017-03-29T04:01:25ZNews ItemCensorship — A Death Knell for Freedom of Expression Online
https://cis-india.org/news/internet-censorship
<b>On December 8, 2011, NDTV aired an interesting discussion on internet censorship. Shashi Tharoor, Soli Sorabjee, Shekhar Kapoor, Ken Ghosh and Sunil Abraham participated in this discussion with NDTV's Sonia Singh.</b>
<p>Sunil said that we need to reflect upon the limitations of freedom of expression which was listed out by Soli Sorabjee and then ask the question whether they are the same limitations in the IT Act. If one reads section 66A, one comes to the conclusion that the IT Act places many additional limitations on the freedom of expression (annoying speech, speech harmful to minors, inconvenient speech) and these are limitations that don’t have existing definitions either in the IT Act or any other statute or case laws. </p>
<p>Sunil further said that through section 79 which is the intermediary liability regime, the government places together a private censorship regime. We did some research at CIS. We sent fraudulent take down notices to seven large international and national intermediaries and through our empirical research we can demonstrate that these intermediaries over-comply with these fraudulent take down notices. So there is already (since the amended IT Act and the notification of the Rules in April this year) a huge chilling effect on the internet thanks to post facto censorship and what the minister is now calling for is preemptive or pro-active censorship which is really going to be the death knell for freedom of expression online.</p>
<p><strong>VIDEO</strong></p>
<iframe src="http://blip.tv/play/AYLkg3YA.html" frameborder="0" height="250" width="250"></iframe><embed style="display:none" src="http://a.blip.tv/api.swf#AYLkg3YA" type="application/x-shockwave-flash"></embed>
<p>
For more details visit <a href='https://cis-india.org/news/internet-censorship'>https://cis-india.org/news/internet-censorship</a>
</p>
No publisherpraskrishnaFreedom of Speech and ExpressionInternet Governance2011-12-19T10:12:46ZNews ItemFree Speech Online in India under Attack?
https://cis-india.org/internet-governance/free-speech-online-in-india-under-attack
<b>When the Union Minister for Communications and Information Technology, Mr. Kapil Sibal suggested pre-censorship for a range of popular online platforms and social networking sites, the suggestion was met by a barrage of criticism, which soon forced him to back down. Yet Sibal’s suggestion is not the only threat to free speech on the Internet in India today. Legislation such as the Intermediary Due Diligence Rules and Cyber Café Rules (also jointly known as the IT Rules) issued in April 2011 is equally dangerous for free speech online.</b>
<p>Achal Prabhala, Anja Kovacs and Lawrence Liang will join Sunil Abraham to discuss in more detail some of the direct threats to freedom of expression online in India today including the larger legal and social context of freedom of expression and censorship, control and resistance in which they have to be understood and the steps that can be taken to ensure that substantive protections for freedom of expression online will be put into place.</p>
<h2>The Speakers</h2>
<h3>Achal Prabhala</h3>
<p>Achal is based in Bangalore, Karnataka. He is a researcher, activist and writer in the areas of access to knowledge and access to medicine besides being a member of the Advisory board of the Wikimedia Foundation.</p>
<h3>Anja Kovacs<br /></h3>
<p>Anja works with the Internet Democracy Project, which engages in research and advocacy on the promises and challenges that the Internet poses for democracy and social justice in the developing world.</p>
<h3>Lawrence Liang</h3>
<p>Lawrence is a researcher and lawyer based in Bangalore, who is known for his legal campaigns on issues of public concern. He is a co-founder of the Alternative Law Forum and works on the intersection of law, technology and culture. He has worked closely with filmmakers and artists in a number of anti-censorship campaigns.</p>
<h2>The Moderator</h2>
<h3>Sunil Abraham</h3>
<p>Sunil is the Executive Director of the Centre for Internet and Society, a Bangalore-based non-profit organization. He is also a social entrepreneur and Free Software advocate. He founded Mahiti in 1998 which aims to reduce the cost and complexity of Information and Communication Technology for the Voluntary Sector by using Free Software. <br /><br /><em>This event is jointly organised by the Internet Democracy Project and the Centre for Internet and Society. Join us at the Centre for Internet and Society in Bangalore, on Wednesday 21 December, at 5.30 pm.</em></p>
<p><em><strong>VIDEOS</strong><br /></em></p>
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<p>
For more details visit <a href='https://cis-india.org/internet-governance/free-speech-online-in-india-under-attack'>https://cis-india.org/internet-governance/free-speech-online-in-india-under-attack</a>
</p>
No publisherpraskrishnaFreedom of Speech and ExpressionPublic AccountabilityInternet GovernanceLectureEvent Type2012-03-02T03:03:24ZEventRight to Exclusion, Government Spaces, and Speech
https://cis-india.org/internet-governance/blog/right-to-exclusion-government-spaces-and-speech
<b>The conclusion of the litigation surrounding Trump blocking its critiques on Twitter brings to forefront two less-discussed aspects of intermediary liability: a) if social media platforms could be compelled to ‘carry’ speech under any established legal principles, thereby limiting their right to exclude users or speech, and b) whether users have a constitutional right to access social media spaces of elected officials. This essay analyzes these issues under the American law, as well as draws parallel for India, in light of the ongoing litigation around the suspension of advocate Sanjay Hegde’s Twitter account.</b>
<p> </p>
<p>This article first appeared on the Indian Journal of Law and Technology (IJLT) blog, and can be accessed <a class="external-link" href="https://www.ijlt.in/post/right-to-exclusion-government-controlled-spaces-and-speech">here</a>. Cross-posted with permission. </p>
<p>---</p>
<h2><span class="s1">Introduction</span></h2>
<p class="p2"><span class="s1">On April 8, the Supreme Court of the United States (SCOTUS), vacated the judgment of the US Court of Appeals for Second Circuit’s in <a href="https://int.nyt.com/data/documenthelper/1365-trump-twitter-second-circuit-r/c0f4e0701b087dab9b43/optimized/full.pdf%23page=1"><span class="s2"><em>Knight First Amendment Institute v Trump</em></span></a>. In that case, the Court of Appeals had precluded Donald Trump, then-POTUS, from blocking his critics from his Twitter account on the ground that such action amounted to the erosion of constitutional rights of his critics. The Court of Appeals had held that his use of @realDonaldTrump in his official capacity had transformed the nature of the account from private to public, and therefore, blocking users he disagreed with amounted to viewpoint discrimination, something that was incompatible with the First Amendment.<span class="Apple-converted-space"> </span></span></p>
<p class="p3"><span class="s1"></span></p>
<p class="p2"><span class="s1">The SCOTUS <a href="https://www.supremecourt.gov/opinions/20pdf/20-197_5ie6.pdf"><span class="s2">ordered</span></a> the case to be dismissed as moot, on account of Trump no longer being in office. Justice Clarence Thomas issued a ten-page concurrence that went into additional depth regarding the nature of social media platforms and user rights. It must be noted that the concurrence does not hold any direct precedential weightage, since Justice Thomas was not joined by any of his colleagues at the bench for the opinion. However, given that similar questions of public import, are currently being deliberated in the ongoing <em>Sanjay Hegde</em> <a href="https://www.barandbench.com/news/litigation/delhi-high-court-sanjay-hegde-challenge-suspension-twitter-account-hearing-july-8"><span class="s2">litigation</span></a> in the Delhi High Court, Justice Thomas’ concurrence might hold some persuasive weightage in India. While the facts of these litigations might be starkly different, both of them are nevertheless characterized by important questions of applying constitutional doctrines to private parties like Twitter and the supposedly ‘public’ nature of social media platforms.<span class="Apple-converted-space"> </span></span></p>
<p class="p3"><span class="s1"></span></p>
<p class="p4"><span class="s1">In this essay, we consider the legal questions raised in the opinion as possible learnings for India. In the first part, we analyze the key points raised by Justice Thomas, vis-a-vis the American legal position on intermediary liability and freedom of speech. In the second part, we apply these deliberations to the <em>Sanjay Hegde </em>litigation, as a case-study and a roadmap for future legal jurisprudence to be developed.<span class="Apple-converted-space"> </span></span></p>
<h2><span class="s1">A flawed analogy</span></h2>
<p class="p2"><span class="s1">At the outset, let us briefly refresh the timeline of Trump’s tryst with Twitter, and the history of this litigation: the Court of Appeals decision was <a href="https://int.nyt.com/data/documenthelper/1365-trump-twitter-second-circuit-r/c0f4e0701b087dab9b43/optimized/full.pdf%23page=1"><span class="s2">issued</span></a> in 2019, when Trump was still in office. Post-November 2020 Presidential Election, where he was voted out, his supporters <a href="https://indianexpress.com/article/explained/us-capitol-hill-siege-explained-7136632/"><span class="s2">broke</span></a> into Capitol Hill. Much of the blame for the attack was pinned on Trump’s use of social media channels (including Twitter) to instigate the violence and following this, Twitter <a href="https://blog.twitter.com/en_us/topics/company/2020/suspension"><span class="s2">suspended</span></a> his account permanently.<span class="Apple-converted-space"> </span></span></p>
<p class="p3"><span class="s1"></span></p>
<p class="p2"><span class="s1">It is this final fact that seized Justice Thomas’ reasoning. He noted that a private party like Twitter’s power to do away with Trump’s account altogether was at odds with the Court of Appeals’ earlier finding about the public nature of the account. He deployed a hotel analogy to justify this: government officials renting a hotel room for a public hearing on regulation could not kick out a dissenter, but if the same officials gather informally in the hotel lounge, then they would be within their rights to ask the hotel to kick out a heckler. The difference in the two situations would be that, <em>“the government controls the space in the first scenario, the hotel, in the latter.” </em>He noted that Twitter’s conduct was similar to the second situation, where it “<em>control(s) the avenues for speech</em>”. Accordingly, he dismissed the idea that the original respondents (the users whose accounts were blocked) had any First Amendment claims against Trump’s initial blocking action, since the ultimate control of the ‘avenue’ was with Twitter, and not Trump.<span class="Apple-converted-space"> </span></span></p>
<p class="p3"><span class="s1"></span></p>
<p class="p4"><span class="s1">In the facts of the case however, this analogy was not justified. The Court of Appeals had not concerned itself with the question of private ‘control’ of entire social media spaces, and given the timeline of the litigation, it was impossible for them to pre-empt such considerations within the judgment. In fact, the only takeaway from the original decision had been that an elected representative’s utilization of his social media account for official purposes transformed </span><span class="s3">only that particular space</span><span class="s1"><em> </em>into a public forum where constitutional rights would find applicability. In delving into questions of ‘control’ and ‘avenues of speech’, issues that had been previously unexplored, Justice Thomas conflates a rather specific point into a much bigger, general conundrum. Further deliberations in the concurrence are accordingly put forward upon this flawed premise.<span class="Apple-converted-space"> </span></span></p>
<h2><span class="s1">Right to exclusion (and must carry claims)</span></h2>
<p class="p2"><span class="s1">From here, Justice Thomas identified the problem to be “<em>private, concentrated control over online content and platforms available to the public</em>”, and brought forth two alternate regulatory systems — common carrier and public accommodation — to argue for ‘equal access’ over social media space. He posited that successful application of either of the two analogies would effectively restrict a social media platform’s right to exclude its users, and “<em>an answer may arise for dissatisfied platform users who would appreciate not being blocked</em>”. Essentially, this would mean that platforms would be obligated to carry <em>all </em>forms of (presumably) legal speech, and users would be entitled to sue platforms in case they feel their content has been unfairly taken down, a phenomenon Daphne Keller <a href="http://cyberlaw.stanford.edu/blog/2018/09/why-dc-pundits-must-carry-claims-are-relevant-global-censorship"><span class="s2">describes</span></a> as ‘must carry claims’.<span class="Apple-converted-space"> </span></span></p>
<p class="p3"><span class="s1"></span></p>
<p class="p2"><span class="s1">Again, this is a strange place to find the argument to proceed, since the original facts of the case were not about ‘<em>dissatisfied platform users’,</em> but an elected representative’s account being used in dissemination of official information. Beyond the initial ‘private’ control deliberation, Justice Thomas did not seem interested in exploring this original legal position, and instead emphasized on analogizing social media platforms in order to enforce ‘equal access’, finally arriving at a position that would be legally untenable in the USA.<span class="Apple-converted-space"> </span></span></p>
<p class="p3"><span class="s1"></span></p>
<p class="p4"><span class="s1">The American law on intermediary liability, as embodied in Section 230 of the Communications Decency Act (CDA), has two key components: first, intermediaries are <a href="https://www.eff.org/issues/cda230"><span class="s2">protected</span></a> against the contents posted by its users, under a legal model <a href="https://www.article19.org/wp-content/uploads/2018/02/Intermediaries_ENGLISH.pdf"><span class="s2">termed</span></a> as ‘broad immunity’, and second, an intermediary does not stand to lose its immunity if it chooses to moderate and remove speech it finds objectionable, popularly <a href="https://intpolicydigest.org/section-230-how-it-actually-works-what-might-change-and-how-that-could-affect-you/"><span class="s2">known</span></a> as the Good Samaritan protection. It is the effect of these two components, combined, that allows platforms to take calls on what to remove and what to keep, translating into a ‘right to exclusion’. Legally compelling them to carry speech, under the garb of ‘access’ would therefore, strike at the heart of the protection granted by the CDA.<span class="Apple-converted-space"> </span></span></p>
<h2><span class="s1">Learnings for India</span></h2>
<p class="p2"><span class="s1">In his petition to the Delhi High Court, Senior Supreme Court Advocate, Sanjay Hegde had contested that the suspension of his Twitter account, on the grounds of him sharing anti-authoritarian imagery, was arbitrary and that:<span class="Apple-converted-space"> </span></span></p>
<ol style="list-style-type: lower-alpha;" class="ol1"><li class="li2"><span class="s1">Twitter was carrying out a public function and would be therefore amenable to writ jurisdiction under Article 226 of the Indian Constitution; and</span></li><li class="li2"><span class="s1">The suspension of his account had amounted to a violation of his right to freedom of speech and expression under Article 19(1)(a) and his rights to assembly and association under Article 19(1)(b) and 19(1)(c); and</span></li><li class="li2"><span class="s1">The government has a positive obligation to ensure that any censorship on social media platforms is done in accordance with Article 19(2).<span class="Apple-converted-space"> </span></span></li></ol>
<p class="p3"><span class="s1"></span></p>
<p class="p5"><span class="s1">The first two prongs of the original petition are perhaps easily disputed: as previous <a href="https://indconlawphil.wordpress.com/2020/01/28/guest-post-social-media-public-forums-and-the-freedom-of-speech-ii/"><span class="s2">commentary</span></a> has pointed out, existing Indian constitutional jurisprudence on ‘public function’ does not implicate Twitter, and accordingly, it would be a difficult to make out a case that account suspensions, no matter how arbitrary, would amount to a violation of the user’s fundamental rights. It is the third contention that requires some additional insight in the context of our previous discussion.<span class="Apple-converted-space"> </span></span></p>
<h3><span class="s1">Does the Indian legal system support a right to exclusion?<span class="Apple-converted-space"> </span></span></h3>
<p class="p2"><span class="s1">Suing Twitter to reinstate a suspended account, on the ground that such suspension was arbitrary and illegal, is in its essence a request to limit Twitter’s right to exclude its users. The petition serves as an example of a must-carry claim in the Indian context and vindicates Justice Thomas’ (misplaced) defence of ‘<em>dissatisfied platform users</em>’. Legally, such claims perhaps have a better chance of succeeding here, since the expansive protection granted to intermediaries via Section 230 of the CDA, is noticeably absent in India. Instead, intermediaries are bound by conditional immunity, where availment of a ‘safe harbour’, i.e., exemption from liability, is contingent on fulfilment of statutory conditions, made under <a href="https://indiankanoon.org/doc/844026/"><span class="s2">section 79</span></a> of the Information Technology (IT) Act and the rules made thereunder. Interestingly, in his opinion, Justice Thomas had briefly visited a situation where the immunity under Section 230 was made conditional: to gain Good Samaritan protection, platforms might be induced to ensure specific conditions, including ‘nondiscrimination’. This is controversial (and as commentators have noted, <a href="https://www.lawfareblog.com/justice-thomas-gives-congress-advice-social-media-regulation"><span class="s2">wrong</span></a>), since it had the potential to whittle down the US' ‘broad immunity’ model of intermediary liability to a system that would resemble the Indian one.<span class="Apple-converted-space"> </span></span></p>
<p class="p3"><span class="s1"></span></p>
<p class="p2"><span class="s1">It is worth noting that in the newly issued Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, proviso to Rule 3(1)(d) allows for “<em>the removal or disabling of access to any information, data or communication link [...] under clause (b) on a voluntary basis, or on the basis of grievances received under sub-rule (2) [...]</em>” without dilution of statutory immunity. This does provide intermediaries a right to exclude, albeit limited, since its scope is restricted to content removed under the operation of specific sub-clauses within the rules, as opposed to Section 230, which is couched in more general terms. Of course, none of this precludes the government from further prescribing obligations similar to those prayed in the petition.<span class="Apple-converted-space"> </span></span></p>
<p class="p3"><span class="s1"></span></p>
<p class="p2"><span class="s1">On the other hand, it is a difficult proposition to support that Twitter’s right to exclusion should be circumscribed by the Constitution, as prayed. In the petition, this argument is built over the judgment in <a href="https://indiankanoon.org/doc/110813550/"><span class="s2"><em>Shreya Singhal v Union of India</em></span></a>, where it was held that takedowns under section 79 are to be done only on receipt of a court order or a government notification, and that the scope of the order would be restricted to Article 19(2). This, in his opinion, meant that “<em>any suo-motu takedown of material by intermediaries must conform to Article 19(2)</em>”.</span></p>
<p class="p3"><span class="s1"></span></p>
<p class="p2"><span class="s1">To understand why this argument does not work, it is important to consider the context in which the <em>Shreya Singhal </em>judgment was issued. Previously, intermediary liability was governed by the Information Technology (Intermediaries Guidelines) Rules, 2011 issued under section 79 of the IT Act. Rule 3(4) made provisions for sending takedown orders to the intermediary, and the prerogative to send such orders was on ‘<em>an affected person</em>’. On receipt of these orders, the intermediary was bound to remove content and neither the intermediary nor the user whose content was being censored, had the opportunity to dispute the takedown.</span></p>
<p class="p3"><span class="s1"></span></p>
<p class="p2"><span class="s1">As a result, the potential for misuse was wide-open. Rishabh Dara’s <a href="https://cis-india.org/internet-governance/intermediary-liability-in-india.pdf"><span class="s2">research</span></a> provided empirical evidence for this; intermediaries were found to act on flawed takedown orders, on the apprehension of being sanctioned under the law, essentially chilling free expression online. The <em>Shreya Singhal</em> judgment, in essence, reined in this misuse by stating that an intermediary is legally obliged to act <em>only when </em>a takedown order is sent by the government or the court. The intent of this was, in the court’s words: “<em>it would be very difficult for intermediaries [...] 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.</em>”<span class="Apple-converted-space"> </span></span></p>
<p class="p3"><span class="s1"></span></p>
<p class="p5"><span class="s1">In light of this, if Hegde’s petition succeeds, it would mean that intermediaries would now be obligated to subsume the entirety of Article 19(2) jurisprudence in their decision-making, interpret and apply it perfectly, and be open to petitions from users when they fail to do so. This might be a startling undoing of the court’s original intent in <em>Shreya Singhal</em>. Such a reading also means limiting an intermediary’s prerogative to remove speech that may not necessarily fall within the scope of Article 19(2), but is still systematically problematic, including unsolicited commercial communications. Further, most platforms today are dealing with an unprecedented spread and consumption of harmful, misleading information. Limiting their right to exclude speech in this manner, we might be <a href="https://www.hoover.org/sites/default/files/research/docs/who-do-you-sue-state-and-platform-hybrid-power-over-online-speech_0.pdf"><span class="s2">exacerbating</span></a> this problem. <span class="Apple-converted-space"> </span></span></p>
<h3><span class="s1">Government-controlled spaces on social media platforms</span></h3>
<p class="p2"><span class="s1">On the other hand, the original finding of the Court of Appeals, regarding the public nature of an elected representative’s social media account and First Amendment rights of the people to access such an account, might yet still prove instructive for India. While the primary SCOTUS order erases the precedential weight of the original case, there have been similar judgments issued by other courts in the USA, including by the <a href="https://globalfreedomofexpression.columbia.edu/cases/davison-v-randall/"><span class="s2">Fourth Circuit</span></a> court and as a result of a <a href="https://knightcolumbia.org/content/texas-attorney-general-unblocks-twitter-critics-in-knight-institute-v-paxton"><span class="s2">lawsuit</span></a> against a Texas Attorney General.<span class="Apple-converted-space"> </span></span></p>
<p class="p3"><span class="s1"></span></p>
<p class="p4"><span class="s1">A similar situation can be envisaged in India as well. The Supreme Court has <a href="https://indiankanoon.org/doc/591481/"><span class="s2">repeatedly</span></a> <a href="https://indiankanoon.org/doc/27775458/"><span class="s2">held</span></a> that Article 19(1)(a) encompasses not just the right to disseminate information, but also the right to <em>receive </em>information, including <a href="https://indiankanoon.org/doc/438670/"><span class="s2">receiving</span></a> information on matters of public concern. Additionally, in <a href="https://indiankanoon.org/doc/539407/"><span class="s2"><em>Secretary, Ministry of Information and Broadcasting v Cricket Association of Bengal</em></span></a>, the Court had held that the right of dissemination included the right of communication through any media: print, electronic or audio-visual. Then, if we assume that government-controlled spaces on social media platforms, used in dissemination of official functions, are ‘public spaces’, then the government’s denial of public access to such spaces can be construed to be a violation of Article 19(1)(a).<span class="Apple-converted-space"> </span></span></p>
<h2><span class="s1">Conclusion</span></h2>
<p class="p2"><span class="s1">As indicated earlier, despite the facts of the two litigations being different, the legal questions embodied within converge startlingly, inasmuch that are both examples of the growing discontent around the power wielded by social media platforms, and the flawed attempts at fixing it.<span class="Apple-converted-space"> </span></span></p>
<p class="p3"><span class="s1"></span></p>
<p class="p2"><span class="s1">While the above discussion might throw some light on the relationship between an individual, the state and social media platforms, many questions still continue to remain unanswered. For instance, once we establish that users have a fundamental right to access certain spaces within the social media platform, then does the platform have a right to remove that space altogether? If it does so, can a constitutional remedy be made against the platform? Initial <a href="https://indconlawphil.wordpress.com/2018/07/01/guest-post-social-media-public-forums-and-the-freedom-of-speech/"><span class="s2">commentary</span></a> on the Court of Appeals’ decision had contested that the takeaway from that judgment had been that constitutional norms had a primacy over the platform’s own norms of governance. In such light, would the platform be constitutionally obligated to <em>not </em>suspend a government account, even if the content on such an account continues to be harmful, in violation of its own moderation standards?<span class="Apple-converted-space"> </span></span></p>
<p class="p3"><span class="s1"></span></p>
<p class="p2"><span class="s1">This is an incredibly tricky dimension of the law, made trickier still by the dynamic nature of the platforms, the intense political interests permeating the need for governance, and the impacts on users in the instance of a flawed solution. Continuous engagement, scholarship and emphasis on having a human rights-respecting framework underpinning the regulatory system, are the only ways forward.<span class="Apple-converted-space"> </span></span></p>
<p class="p2"><span class="s1"><span class="Apple-converted-space"><br /></span></span></p>
<p class="p2"><span class="s1"><span class="Apple-converted-space">---</span></span></p>
<p class="p2"><span class="s1"><span class="Apple-converted-space"><br /></span></span></p>
<p class="p2"><span class="s1"><span class="Apple-converted-space"></span></span></p>
<p>The author would like to thank Gurshabad Grover and Arindrajit Basu for reviewing this piece. </p>
<div> </div>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/right-to-exclusion-government-spaces-and-speech'>https://cis-india.org/internet-governance/blog/right-to-exclusion-government-spaces-and-speech</a>
</p>
No publisherTorSharkFreedom of Speech and ExpressionIntermediary LiabilityInformation Technology2021-07-02T12:05:13ZBlog EntryIntermediary Liability in India: Chilling Effects on Free Expression on the Internet 2011
https://cis-india.org/internet-governance/intermediary-liability-in-india
<b>Intermediaries are widely recognised as essential cogs in the wheel of exercising the right to freedom of expression on the Internet. Most major jurisdictions around the world have introduced legislations for limiting intermediary liability in order to ensure that this wheel does not stop spinning. With the 2008 amendment of the Information Technology Act 2000, India joined the bandwagon and established a ‘notice and takedown’ regime for limiting intermediary liability.</b>
<p>On the 11th of April 2011, the Government of India notified the Information Technology (Intermediaries Guidelines) Rules 2011 that prescribe, amongst other things, guidelines for administration of takedowns by intermediaries. The Rules have been criticised extensively by both national and international media. The media has projected that the Rules, contrary to the objective of promoting free expression, seem to encourage privately administered injunctions to censor and chill free expression. On the other hand, the Government has responded through press releases and assured that the Rules in their current form do not violate the principle of freedom of expression or allow the government to regulate content.</p>
<p>This study has been conducted with the objective of determining whether the criteria, procedure and safeguards for administration of the takedowns as prescribed by the Rules lead to a chilling effect on online free expression. In the course of the study, takedown notices were sent to a sample comprising of 7 prominent intermediaries and their response to the notices was documented. Different policy factors were permuted in the takedown notices in order to understand at what points in the process of takedown, free expression is being chilled.</p>
<p>The results of the paper clearly demonstrate that the Rules indeed have a chilling effect on free expression. Specifically, the Rules create uncertainty in the criteria and procedure for administering the takedown thereby inducing the intermediaries to err on the side of caution and over-comply with takedown notices in order to limit their liability and as a result suppress legitimate expressions. Additionally, the Rules do not establish sufficient safeguards to prevent misuse and abuse of the takedown process to suppress legitimate expressions.</p>
<p>Of the 7 intermediaries to which takedown notices were sent, 6 intermediaries over-complied with the notices, despite the apparent flaws in them. From the responses to the takedown notices, it can be reasonably presumed that not all intermediaries have sufficient legal competence or resources to deliberate on the legality of an expression. Even if such intermediary has sufficient legal competence, it has a tendency to prioritise the allocation of its legal resources according to the commercial importance of impugned expressions. Further, if such subjective determination is required to be done in a limited timeframe and in the absence of adequate facts and circumstances, the intermediary mechanically (without application of mind or proper judgement) complies with the takedown notice.</p>
<p>The results also demonstrate that the Rules are procedurally flawed as they ignore all elements of natural justice. The third party provider of information whose expression is censored is not informed about the takedown, let alone given an opportunity to be heard before or after the takedown. There is also no recourse to have the removed information put-back or restored. The intermediary is under no obligation to provide a reasoned decision for rejecting or accepting a takedown notice. The Rules in their current form clearly tilt the takedown mechanism in favour of the complainant and adversely against the creator of expression.</p>
<table class="plain">
<tbody>
<tr>
<td>The research highlights the need to:<br />
<ul><li>increase the safeguards against misuse of the privately administered takedown regime;</li></ul>
<ul><li>reduce the uncertainty in the criteria for administering the takedown;</li></ul>
<ul><li>reduce the uncertainty in the procedure for administering the takedown;</li></ul>
<ul><li>include various elements of natural justice in the procedure for administering the takedown; and</li></ul>
<ul><li>replace the requirement for subjective legal determination by intermediaries with an objective test.</li></ul>
</td>
</tr>
</tbody>
</table>
<hr />
This executive summary is a research output of the Google Policy Fellowship 2011. The Centre for Internet & Society was the host organization. For the entire paper along with references, please write to <a class="external-link" href="mailto:rishabhdara@gmail.com">rishabhdara@gmail.com</a> or<a class="external-link" href="mailto:sunil@cis-india.org"> sunil@cis-india.org</a>
<p>.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/intermediary-liability-in-india'>https://cis-india.org/internet-governance/intermediary-liability-in-india</a>
</p>
No publisherRishabh DaraFreedom of Speech and ExpressionInternet GovernanceIntermediary LiabilityCensorship2012-04-21T18:05:58ZBlog EntryAn Evidence based Intermediary Liability Policy Framework: Workshop at IGF
https://cis-india.org/internet-governance/blog/igf-workshop-an-evidence-based-intermediary-liability-policy-framework
<b>CIS is organising a workshop at the Internet Governance Forum 2014. The workshop will be an opportunity to present and discuss ongoing research on the changing definition of intermediaries and their responsibilities across jurisdictions and technologies and contribute to a comprehensible framework for liability that is consistent with the capacity of the intermediary and with international human-rights standards.</b>
<p style="text-align: justify; ">The Centre for Internet and Society, India and Centre for Internet and Society, Stanford Law School, USA, will be organising a workshop to analyse the role of intermediary platforms in relation to freedom of expression, freedom of information and freedom of association at the Internet Governance Forum 2014. <span>The aim of the workshop is to highlight the increasing importance of digital rights and broad legal protections of stakeholders in an increasingly knowledge-based economy. The workshop will discuss public policy issues associated with Internet intermediaries, in particular their roles, legal responsibilities and related liability limitations in context of the evolving nature and role of intermediaries in the Internet ecosystem. distinct</span></p>
<p style="text-align: justify; "><b>Online Intermediaries: Setting the context</b></p>
<p style="text-align: justify; ">The Internet has facilitated unprecedented access to information and amplified avenues for expression and engagement by removing the limits of geographic boundaries and enabling diverse sources of information and online communities to coexist. Against the backdrop of a broadening base of users, the role of intermediaries that enable economic, social and political interactions between users in a global networked communication is ubiquitous. Intermediaries are essential to the functioning of the Internet as many producers and consumers of content on the internet rely on the action of some third party–the so called intermediary. Such intermediation ranges from the mere provision of connectivity, to more advanced services such as providing online storage spaces for data, acting as platforms for storage and sharing of user generated content (UGC), or platforms that provides links to other internet content.</p>
<p style="text-align: justify; ">Online intermediaries enhance economic activity by reducing costs, inducing competition by lowering the barriers for participation in the knowledge economy and fuelling innovation through their contribution to the wider ICT sector as well as through their key role in operating and maintaining Internet infrastructure to meet the network capacity demands of new applications and of an expanding base of users.</p>
<p style="text-align: justify; ">Intermediary platforms also provide social benefits, by empowering users and improving choice through social and participative networks, or web services that enable creativity and collaboration amongst individuals. By enabling platforms for self-expression and cooperation, intermediaries also play a critical role in establishing digital trust, protection of human rights such as freedom of speech and expression, privacy and upholding fundamental values such as freedom and democracy.</p>
<p style="text-align: justify; ">However, the economic and social benefits of online intermediaries are conditional to a framework for protection of intermediaries against legal liability for the communication and distribution of content which they enable.</p>
<p style="text-align: justify; "><b>Intermediary Liability</b></p>
<p style="text-align: justify; ">Over the last decade, right holders, service providers and Internet users have been locked in a debate on the potential liability of online intermediaries. The debate has raised global concerns on issues such as, the extent to which Internet intermediaries should be held responsible for content produced by third parties using their Internet infrastructure and how the resultant liability would affect online innovation and the free flow of knowledge in the information economy?</p>
<p style="text-align: justify; ">Given the impact of their services on communications, intermediaries find themselves as either directly liable for their actions, or indirectly (or “secondarily”) liable for the actions of their users. Requiring intermediaries to monitor the legality of the online content poses an insurmountable task. Even if monitoring the legality of content by intermediaries against all applicable legislations were possible, the costs of doing so would be prohibitively high. Therefore, placing liability on intermediaries can deter their willingness and ability to provide services, hindering the development of the internet itself.</p>
<p style="text-align: justify; ">Economics of intermediaries are dependent on scale and evaluating the legality of an individual post exceeds the profit from hosting the speech, and in the absence of judicial oversight can lead to a private censorship regime. Intermediaries that are liable for content or face legal exposure, have powerful incentives, to police content and limit user activity to protect themselves. The result is curtailing of legitimate expression especially where obligations related to and definition of illegal content is vague. Content policing mandates impose significant compliance costs limiting the innovation and competiveness of such platforms.</p>
<p style="text-align: justify; ">More importantly, placing liability on intermediaries has a chilling effect on freedom of expression online. Gate keeping obligations by service providers threaten democratic participation and expression of views online, limiting the potential of individuals and restricting freedoms. Imposing liability can also indirectly lead to the death of anonymity and pseudonymity, pervasive surveillance of users' activities, extensive collection of users' data and ultimately would undermine the digital trust between stakeholders.</p>
<p style="text-align: justify; ">Thus effectively, imposing liability for intermediaries creates a chilling effect on Internet activity and speech, create new barriers to innovation and stifles the Internet's potential to promote broader economic and social gains. To avoid these issues, legislators have defined 'safe harbours', limiting the liability of intermediaries under specific circumstances.</p>
<p style="text-align: justify; ">Online intermediaries do not have direct control of what information is or information are exchanged via their platform and might not be aware of illegal content per se. A key framework for online intermediaries, such limited liability regimes provide exceptions for third party intermediaries from liability rules to address this asymmetry of information that exists between content producers and intermediaries.</p>
<p style="text-align: justify; ">However, it is important to note, that significant differences exist concerning the subjects of these limitations, their scope of provisions and procedures and modes of operation. The 'notice and takedown' procedures are at the heart of the safe harbour model and can be subdivided into two approaches:</p>
<p style="text-align: justify; ">a. Vertical approach where liability regime applies to specific types of content exemplified in the US Digital Copyright Millennium Act</p>
<p style="text-align: justify; ">b. Horizontal approach based on the E-Commerce Directive (ECD) where different levels of immunity are granted depending on the type of activity at issue</p>
<p style="text-align: justify; "><b>Current framework </b></p>
<p style="text-align: justify; ">Globally, three broad but distinct models of liability for intermediaries have emerged within the Internet ecosystem:</p>
<p style="text-align: justify; ">1. Strict liability model under which intermediaries are liable for third party content used in countries such as China and Thailand</p>
<p style="text-align: justify; ">2. Safe harbour model granting intermediaries immunity, provided their compliance on certain requirements</p>
<p style="text-align: justify; ">3. Broad immunity model that grants intermediaries broad or conditional immunity from liability for third party content and exempts them from any general requirement to monitor content. <b> </b></p>
<p style="text-align: justify; ">While the models described above can provide useful guidance for the drafting or the improvement of the current legislation, they are limited in their scope and application as they fail to account for the different roles and functions of intermediaries. Legislators and courts are facing increasing difficulties, in interpreting these regulations and adapting them to a new economic and technical landscape that involves unprecedented levels user generated content and new kinds of and online intermediaries.</p>
<p style="text-align: justify; ">The nature and role of intermediaries change considerably across jurisdictions, and in relation to the social, economic and technical contexts. In addition to the dynamic nature of intermediaries the different categories of Internet intermediaries‘ are frequently not clear-cut, with actors often playing more than one intermediation role. Several of these intermediaries offer a variety of products and services and may have number of roles, and conversely, several of these intermediaries perform the same function. For example , blogs, video services and social media platforms are considered to be 'hosts'. Search engine providers have been treated as 'hosts' and 'technical providers'.</p>
<p style="text-align: justify; ">This limitations of existing models in recognising that different types of intermediaries perform different functions or roles and therefore should have different liability, poses an interesting area for research and global deliberation. Establishing classification of intermediaries, will also help analyse existing patterns of influence in relation to content for example when the removal of content by upstream intermediaries results in undue over-blocking.</p>
<p style="text-align: justify; ">Distinguishing intermediaries on the basis of their roles and functions in the Internet ecosystem is critical to ensuring a balanced system of liability and addressing concerns for freedom of expression. Rather than the highly abstracted view of intermediaries as providing a single unified service of connecting third parties, the definition of intermediaries must expand to include the specific role and function they have in relation to users' rights. A successful intermediary liability regime must balance the needs of producers, consumers, affected parties and law enforcement, address the risk of abuses for political or commercial purposes, safeguard human rights and contribute to the evolution of uniform principles and safeguards.</p>
<p style="text-align: justify; "><b>Towards an evidence based intermediary liability policy framework</b></p>
<p style="text-align: justify; ">This workshop aims to bring together leading representatives from a broad spectrum of stakeholder groups to discuss liability related issues and ways to enhance Internet users’ trust.</p>
<p style="text-align: justify; ">Questions to address at the panel include:</p>
<p style="text-align: justify; ">1. What are the varying definitions of intermediaries across jurisdictions?</p>
<p style="text-align: justify; ">2. What are the specific roles and functions that allow for classification of intermediaries?</p>
<p style="text-align: justify; ">3. How can we ensure the legal framework keeps pace with technological advances and the changing roles of intermediaries?</p>
<p style="text-align: justify; ">4. What are the gaps in existing models in balancing innovation, economic growth and human rights?</p>
<p style="text-align: justify; ">5. What could be the respective role of law and industry self-regulation in enhancing trust?</p>
<p style="text-align: justify; ">6. How can we enhance multi-stakeholder cooperation in this space?</p>
<p style="text-align: justify; ">Confirmed Panel:</p>
<p style="text-align: justify; ">Technical Community: Malcolm Hutty: Internet Service Providers Association (ISPA)<br />Civil Society: Gabrielle Guillemin: Article19<br />Academic: Nicolo Zingales: Assistant Professor of Law at Tilburg University<br />Intergovernmental: Rebecca Mackinnon: Consent of the Networked, UNESCO project<br />Civil Society: Anriette Esterhuysen: Association for Progressive Communication (APC)<br />Civil Society: Francisco Vera: Advocacy Director: Derechos Digitale<br />Private Sector: Titi Akinsanmi: Policy and Government Relations Manager, Google Sub-Saharan Africa<br />Legal: Martin Husovec: MaxPlanck Institute</p>
<p style="text-align: justify; "><b> </b></p>
<p style="text-align: justify; "><span>Moderator(s): </span><span>Giancarlo Frosio, Centre for Internet and Society (CIS) and </span><span>Jeremy Malcolm, Electronic Frontier Foundation </span></p>
<p style="text-align: justify; "><span><span>Remote Moderator: </span><span>Anubha Sinha, New Delhi</span></span></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/igf-workshop-an-evidence-based-intermediary-liability-policy-framework'>https://cis-india.org/internet-governance/blog/igf-workshop-an-evidence-based-intermediary-liability-policy-framework</a>
</p>
No publisherjyotihuman rightsDigital Governanceinternet governanceFreedom of Speech and ExpressionInternet Governance ForumHuman Rights OnlineIntermediary LiabilityPoliciesMulti-stakeholder2014-07-04T06:41:10ZBlog EntryFree Speech and Civil Defamation
https://cis-india.org/internet-governance/blog/free-speech-and-civil-defamation
<b>Does defamation become a tool in powerful hands to suppress criticism? Gautam Bhatia examines the strict and unrealistic demands of defamation law, and concludes that defamation suits are a weapon to silence dissent and bad press. </b>
<p style="text-align: justify; "><b> </b>Previously on this blog, we have discussed one of the under-analysed aspects of Article 19(2) – contempt of court. In the last post, we discussed the checking – or “watchdog” – function of the press. There is yet another under-analysed part of 19(2) that we now turn to – one which directly implicates the press, in its role as public watchdog. This is the issue of defamation.</p>
<p style="text-align: justify; ">Unlike contempt of court – which was a last-minute insertion by Ambedkar, before the second reading of the draft Constitution in the Assembly – defamation was present in the restrictions clause since the Fundamental Rights Sub-Committee’s first draft, in 1947. Originally, it accompanied libel and slander, before the other two were dropped for the simpler “reasonable restrictions… in the interests of… defamation.” Unlike the other restrictions, which provoked substantial controversy, defamation did not provoke extended scrutiny by the Constituent Assembly.</p>
<p style="text-align: justify; "><span>In hindsight, that was a lapse. In recent years, defamation lawsuits have emerged as a powerful weapon against the press, used primarily by individuals and corporations in positions of power and authority, and invariably as a means of silencing criticism. For example, Hamish MacDonald’s </span><i>The Polyester Prince</i><span>, a book about the Ambanis, </span><a href="http://www.rediff.com/money/2000/jul/26dalal.htm">was unavailable</a><span> in Indian bookshops, because of threats of defamation lawsuits. In January, Bloomsbury </span><a href="http://www.dnaindia.com/mumbai/report-praful-patel-descent-of-air-india-and-the-killing-of-a-critical-book-1951582">withdrew</a><span> </span><i>The Descent of Air India</i><span>, which was highly critical of ex-Aviation Minister Praful Patel, after the latter filed a defamation lawsuit. Around the same time, Sahara initiated a 200 crore lawsuit against Tamal Bandyopadhayay, a journalist with </span><i>The Mint</i><span>, for his forthcoming book, </span><i>Sahara: The Untold Story</i><span>. Sahara even managed to get a stay order from a Calcutta High Court judge, who </span><a href="http://www.indiankanoon.org/doc/136055468/">cited</a><span> one paragraph from the book, and ruled that “</span><i>Prima facie, the materials do seem to show the plaintiffs in poor light</i><span>.” The issue has since been settled out of Court. Yet there is no guarantee that Bandyopadhyay would have won on merits, even with the absurd amount claimed as damages, given that a Pune Court awarded damages of </span><i>Rs. 100 crores </i><span>to former Justice P.B. Sawant against the Times Group, for a fifteen-second clip by a TV channel that accidentally showed his photograph next to the name of a judge who was an accused in a scam. What utterly takes the cake, though, is Infosys </span><a href="http://www.thehindu.com/news/national/infosys-slaps-defamation-notice-on-three-newspapers/article6098717.ece">serving</a><span> legal notices to three journalistic outlets recently, asking for damages worth Rs. 200 crore for “</span><i>loss of reputation and goodwill due to circulation of defamatory articles</i><span>.”</span><span> </span></p>
<p style="text-align: justify; ">Something is very wrong here. The plaintiffs are invariably politicians or massive corporate houses, and the defendants are invariably journalists or newspapers. The subject is always critical reporting. The damages claimed (and occasionally, awarded) are astronomical – enough to cripple or destroy any business – and the actual harm is speculative. A combination of these factors, combined with a broken judicial system in which trials take an eternity to progress, leading to the prospect of a lawsuit hanging perpetually over one’s head, and financial ruin just around the corner, clearly has the potential to create a highly effective chilling effect upon newspapers, when it come to critical speech on matters of public interest.</p>
<p style="text-align: justify; "><span>One of the reasons that this happens, of course, is that extant defamation law </span><i>allows</i><span> it to happen. Under defamation law, as long as a statement is published, is defamatory (that is, tending to lower the reputation of the plaintiff in the minds of reasonable people) and refers to the plaintiff, a </span><i>prima facie </i><span>case of defamation is made out. The burden then shifts to the defendant to argue a justification, such as truth, or fair comment, or privileged communication. Notice that defamation, in this form, is a strict liability offence: that is, the publisher cannot save himself even if he has taken due care in researching and writing his story. Even an inadvertent factual error can result in liability. Furthermore, there are many things that straddle a very uncomfortable barrier between “fact” and “opinion” (“opinions” are generally not punishable for defamation): for example, if I call you “corrupt”, have I made a statement of fact, or one of opinion? Much of reporting – especially political reporting – falls within this slipstream.</span></p>
<p style="text-align: justify; ">The legal standard of defamation, therefore, puts almost all the burden upon the publisher, a burden that will often be impossible to discharge – as well as potentially penalising the smallest error. Given the difficulty in fact-checking just about everything, as well as the time pressures under which journalists operate, this is an unrealistic standard. What makes things even worse, however, is that there is no cap on damages, <i>and </i>that the plaintiff need not even demonstrate <i>actual</i> harm in making his claims. Judges have the discretion to award punitive damages, which are meant to serve both as an example and as a deterrent. When Infosys claims 2000 crores, therefore, it need not show that there has been a tangible drop in its sales, or that it has lost an important and lucrative contract – let alone showing that the loss was caused by the defamatory statement. All it needs to do is make abstract claims about loss of goodwill and reputation, which are inherently difficult to verify either way, and it stands a fair chance of winning.</p>
<p style="text-align: justify; ">A combination of onerous legal standards and crippling amounts in damages makes the defamation regime a very difficult one for journalists to operate freely in. We have discussed before the crucial role that journalists play in a system of free speech whose underlying foundation is the maintenance of democracy: a free press is essential to maintaining a check upon the actions of government and other powerful players, by subjecting them to scrutiny and critique, and ensuring that the public is aware of important facts that government might be keen to conceal. In chilling journalistic speech, therefore, defamation laws strike at the heart of Article 19(1)(a). When considering what the appropriate standards ought to be, a Court therefore must consider the simple fact that if defamation – as it stands today – is compromising the core of 19(1)(a) itself, then it is certainly not a “reasonable restriction” under 19(2) (some degree of proportionality is an important requirement for 19(2) reasonableness, as the Court has held many times).</p>
<p style="text-align: justify; ">This is not, however, a situation unique to India. In Singapore, <a href="http://news.bbc.co.uk/2/hi/asia-pacific/7632830.stm">for instance</a>, “[<i>political] leaders have won hundreds of thousands of dollars in damages in defamation cases against critics and foreign publications, which they have said are necessary to protect their reputations from unfounded attacks</i>” – the defamation lawsuit, indeed, was reportedly a legal strategy used by Lee Kuan Yew against political opponents.<span> </span></p>
<p style="text-align: justify; ">Particularly in the United States, the European Union and South Africa, however, this problem has been recognised, and acted upon. In the next post, we shall examine some of the legal techniques used in those jurisdictions, to counter the chilling effect that strict defamation laws can have on the press.</p>
<p style="text-align: justify; ">We discussed the use of civil defamation laws as weapons to stifle a free and critical press. One of the most notorious of such instances also birthed one of the most famous free speech cases in history: <a href="http://supreme.justia.com/cases/federal/us/376/254/case.html"><i>New York Times v. Sullivan</i></a>. This was at the peak of the civil rights movement in the American South, which was accompanied by widespread violence and repression of protesters and civil rights activists. A full-page advertisement was taken out in the New York Times, titled <i>Heed Their Rising Voices</i>, which detailed some particularly reprehensible acts by the police in Montgomery, Alabama. It also contained some factual errors. For example, the advertisement mentioned that Martin Luther King Jr. had been arrested seven times, whereas he had only been arrested four times. It also stated that the Montgomery police had padlocked students into the university dining hall, in order to starve them into submission. That had not actually happened. On this basis, Sullivan, the Montgomery police commissioner, sued for libel. The Alabama courts awarded 500,000 dollars in damages. Because five other people in a situation similar to Sullivan were also suing, the total amount at stake was three million dollars – enough to potentially boycott the New York Times, and certainly enough to stop it from publishing about the civil rights movement.</p>
<p style="text-align: justify; ">In his book about the <i>Sullivan </i>case, <i>Make No Law</i>, Anthony Lewis notes that the stakes in the case were frighteningly high. The civil rights movement depended, for its success, upon stirring public opinion in the North. The press was just the vehicle to do it, reporting as it did on excessive police brutality against students and peaceful protesters, practices of racism and apartheid, and so on. <i>Sullivan</i> was a legal strategy to silence the press, and its weapon of choice was defamation law.</p>
<p style="text-align: justify; ">In a 9 – 0 decision, the Supreme Court found for the New York Times, and changed the face of free speech law (and, according to Lewis, saved the civil rights movement). Writing for the majority, Justice Brennan made the crucial point that in order to survive, free speech needed “breathing space” – that is, the space to make errors. Under defamation law, as it stood, “<i>the pall of fear and timidity imposed upon those who would give voice to public criticism [is] an atmosphere in which the First Amendment freedoms cannot survive</i>.” And under the burden of proving truth, <i>“would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is, in fact, true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which "steer far wider of the unlawful zone." </i>For these reasons, Justice Brennan laid down an “actual malice” test for defamation – that is, insofar as the statement in question concerned the conduct of a public official, it was actionable for defamation only if the publisher either knew it was false, or published it with “reckless disregard” for its veracity. After <i>New York Times</i>, this standard has expanded, and the press has never lost a defamation case.</p>
<p style="text-align: justify; ">There are some who argue that in its zeal to protect the press against defamation lawsuits by the powerful, the <i>Sullivan </i>court swung the opposite way. In granting the press a near-unqualified immunity to say whatever it wanted, it subordinated the legitimate interests of people to their reputation and their dignity to an intolerable degree, and ushered in a regime of media unaccountability. This is evidently what the South African courts felt. In <a href="https://www.google.com/search?q=khulamo+vs+holomisa&oq=khulamo+vs+holomisa&aqs=chrome..69i57.6996j0j4&sourceid=chrome&es_sm=119&ie=UTF-8"><i>Khulamo v. Holomisa</i></a>, Justice O’Regan accepted that the common law of defamation would have to be altered so as to reflect the new South African Constitution’s guarantees of the freedom of speech. Much like Justice Brennan, she noted that <i>“</i><i>the media are important agents in ensuring that government is open, responsive and accountable to the people as the founding values of our Constitution require</i>”, as well as the chilling effect in requiring journalists to prove the truth of everything they said. Nonetheless, she was not willing to go as far as the American Supreme Court did. Instead, she cited a previous decision by the Supreme Court of Appeals, and incorporated a “resonableness standard” into defamation law. That is, “<i>if a publisher cannot establish the truth, or finds it disproportionately expensive or difficult to do so, the publisher may show that in all the circumstances the publication was reasonable. In determining whether publication was reasonable, a court will have regard to the individual’s interest in protecting his or her reputation in the context of the constitutional commitment to human dignity. It will also have regard to the individual’s interest in privacy. In that regard, there can be no doubt that persons in public office have a diminished right to privacy, though of course their right to dignity persists. It will also have regard to the crucial role played by the press in fostering a transparent and open democracy. The defence of reasonable publication avoids therefore a winner-takes-all result and establishes a proper balance between freedom of expression and the value of human dignity. Moreover, the defence of reasonable publication will encourage editors and journalists to act with due care and respect for the individual interest in human dignity prior to publishing defamatory material, without precluding them from publishing such material when it is reasonable to do so.”</i></p>
<p style="text-align: justify; ">The South African Constitutional Court thus adopts a middle path between the two opposite zero-sum games that are traditional defamation law, and American first amendment law. A similar effort was made in the United Kingdom – the birthplace of the common law of defamation – with the passage of the <a href="http://www.legislation.gov.uk/ukpga/2013/26/pdfs/ukpga_20130026_en.pdf">2013 Defamation Act.</a> Under English law, the plaintiff must now show that there is likely to be “<i>serious harm</i>” to his reputation, and there is also public interest exception.</p>
<p style="text-align: justify; ">While South Africa and the UK try to tackle the problem at the level of standards for defamation, the ECHR has taken another, equally interesting tack: by limiting the quantum of damages. In <a href="http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57947#%7B"><i>Tolstoy Milolasky v. United Kingdom</i></a>, it found a 1.5 million pound damage award “disproportionately large”, and held that there was a violation of the ECHR’s free speech guarantee that could not be justified as necessary in a democratic society.</p>
<p style="text-align: justify; ">Thus, constitutional courts the world over have noticed the adverse impact traditional defamation law has on free speech and a free press. They have devised a multiplicity of ways to deal with this, some more speech-protective than others: from America’s absolutist standards, to South Africa’s “reasonableness” and the UK’s “public interest” exceptions, to the ECHR’s limitation of damages. It is about time that the Indian Courts took this issue seriously: there is no dearth of international guidance.</p>
<hr style="text-align: justify; " />
<p style="text-align: justify; "><span><i>Gautam Bhatia — @gautambhatia88 on Twitter — is a graduate of the National Law School of India University (2011), and has just received an LLM from the Yale Law School. He blogs about the Indian Constitution at <a class="moz-txt-link-freetext" href="http://indconlawphil.wordpress.com/">http://indconlawphil.wordpress.com</a>. Here at CIS, he blogs on issues of online freedom of speech and expression.</i></span></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/free-speech-and-civil-defamation'>https://cis-india.org/internet-governance/blog/free-speech-and-civil-defamation</a>
</p>
No publishergautamCensorshipDefamationFreedom of Speech and ExpressionChilling EffectArticle 19(1)(a)2014-07-08T08:31:18ZBlog EntryOn the legality and constitutionality of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
https://cis-india.org/internet-governance/blog/on-the-legality-and-constitutionality-of-the-information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021
<b>This note examines the legality and constitutionality of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The analysis is consistent with previous work carried out by CIS on issues of intermediary liability and freedom of expression. </b>
<p><span id="docs-internal-guid-6127737f-7fff-b2eb-1b4a-ff9009a1050f"></span></p>
<p dir="ltr">On 25 February 2021, the Ministry of Electronics and Information Technology (Meity) notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (hereinafter, ‘the rules’). In this note, we examine whether the rules meet the tests of constitutionality under Indian jurisprudence, whether they are consistent with the parent Act, and discuss potential benefits and harms that may arise from the rules as they are currently framed. Further, we make some recommendations to amend the rules so that they stay in constitutional bounds, and are consistent with a human rights based approach to content regulation. Please note that we cover some of the issues that CIS has already highlighted in comments on previous versions of the rules.</p>
<p dir="ltr"> </p>
<p dir="ltr">The note can be downloaded <a class="external-link" href="https://cis-india.org/internet-governance/legality-constitutionality-il-rules-digital-media-2021">here</a>.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/on-the-legality-and-constitutionality-of-the-information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021'>https://cis-india.org/internet-governance/blog/on-the-legality-and-constitutionality-of-the-information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021</a>
</p>
No publisherTorsha Sarkar, Gurshabad Grover, Raghav Ahooja, Pallavi Bedi and Divyank KatiraFreedom of Speech and ExpressionInternet GovernanceIntermediary LiabilityInternet FreedomInformation Technology2021-06-21T11:52:39ZBlog EntrySo Much to Lose
https://cis-india.org/internet-governance/blog/indian-express-dec-2-2012-nishant-shah-so-much-to-lose
<b>Unless you have been hiding under a rock, you have been a witness to the maelstrom of events that accompanied the death of the political leader Bal Thackeray.</b>
<hr />
<p style="text-align: center; ">Nishant Shah's <a class="external-link" href="http://www.indianexpress.com/news/so-much-to-lose/1038938/0">column was published in the Indian Express</a> on December 2, 2012.</p>
<hr />
<p style="text-align: justify; ">Unless you have been hiding under a rock, you have been a witness to the maelstrom of events that accompanied the death of the political leader Bal Thackeray. For me, the brouhaha was elbowed out by the case of the police arresting two women for critiquing the events on Facebook. The person who wondered about the nature of the enforced mourning and the state of our public life, and her friend who “liked” the comment on Facebook, were booked and arrested under charges that can only be considered preposterous.</p>
<p style="text-align: justify; ">I will not repeat these arguments because it is needless to say that I am on the side of the women and think of this as yet another manifestation of the stringent measures which are being evolved as an older broadcast way of thinking meets the decentralised realities of digital technologies.</p>
<p style="text-align: justify; ">In the midst of this the idea of internet freedom needs to be revisited. The global Press Freedom Index 2011-12 report compiled by Reporters Without Borders, ranks India at 131, or as a “partly free” country, marking us as a country where the notion of internet freedom is not to be taken for granted, and possibly also one where the concept is not properly understood.</p>
<p style="text-align: justify; ">Citing various instances from the central government’s plans to censor the social web to the authoritarian crackdown on activists and cultural producers involved in online civic protests, from the traditional media industry’s stronghold over intellectual property regimes to the arrest of individuals for voicing their independent critiques online, the report shows that we not only have an infrastructure deficit (with only 10 per cent of the people in the country connected), but also a huge social and political deficit, which is being exposed by our actions and reactions to the Web.</p>
<p style="text-align: justify; ">Take the case of professor Ambikesh Mahapatra dean of the chemistry department of Jadavpur University, who was picked up by the police and lodged in the lock up for almost 40 hours for forwarding an e-mail that contained a cartoon of Trinamool Congress leaders Mamata Banerjee, Mukul Roy and Dinesh Trivedi. He and his housing society co-resident Subrata Sengupta were charged with defamation and outraging the modesty of a woman. While the proceedings are underway with the next date of hearing slated in February, 2013, the Jadavpur university professor says, “Section, 66A of the IT Act is being used for suppression of the freedom of speech. In my opinion, it is being misused by the state government, repeatedly. The section does not empower anyone to arrest those who voice their opinion and never meant to harm anybody’s image. Prompt action is needed to check the misuse of law.”</p>
<p style="text-align: justify; ">Likewise, Ravi Srinivasan, a 46-year-old a businessman from Pondicherry, was arrested for tweeting against Karti Chidambaram, son of Union Finance Minister P Chidambaram. His arrest and consequent release has not blunted his spirit. He says, “At the time (of the arrest) I had not heard of Section 66(A). I still cannot fathom why and how a tweet sent out to just 12 people — half of them family and friends — caught the eye of the police. By evening, when I had come home from the police station, my Twitter following had gone up to 1,700. About 15,000 people re-tweeted the statement that got me arrested.”</p>
<p style="text-align: justify; ">Given the series of incidents that have marked the last year and the whimsical nature of regulatory injunctions on internet freedom in the country, it might be a good idea for us to reflect on democracy and freedom.</p>
<p style="text-align: justify; ">We need to examine the fundamental nature of freedom, and how these attempts at regulating the internet are only a symptom of the systemic failures of enshrining freedom of speech, information, identity and dignity in India. However, internet freedom is often a difficult concept to engage with, because it is one of those phrases that seem to be self-explanatory but without a straightforward explanation. There are three axes which might be useful to unpack the baggage that comes with internet freedom, both for our everyday practices, and our imagined future:</p>
<p style="text-align: justify; ">Freedom of: The freedom of the internet is something that is new and needs more attention. We have to stop thinking of the internet as merely a medium or a conduit of information. As the Web becomes inextricably linked with our everyday lives, the internet is no longer just an appendage or an externality. It becomes a reference point through which our social, political and economic practices are shaped. It becomes a defining point through which we draw our meanings of what it is to be a part of the society, to have rights, to be politically aware, to be culturally engaged — to be a human. The freedom of the Net is important because the crackdowns on the Net are an attack on our rights and freedoms. The silencing of a voice on Facebook, might soon gag the voices of people on the streets, creating conditions of silence in the face of violence perpetuated by the powerful.</p>
<p style="text-align: justify; ">Freedom to: Freedom to the internet is often confused with access to the internet. While, of course, access is important in our imagination of a just society where everybody is equally connected, freedom is also about creating open and fair societies. If the power of the internet is in creating alternative spaces of expression, deliberation and opinion-making, then the freedom to the internet is about being safe and responsible in these spaces. A society that controls these spaces of public discussion, under the guise of security and public safety, is a society that has given up its faith in freedom.</p>
<p style="text-align: justify; ">Freedom for: It is often not clear that when popular technologies of information and communication are regulated and censored, it is not merely the technology that is being controlled. What is being shaped and contained is the way people use them. The freedom for the internet is about the freedom for people. The possibility that Internet Service Providers are being coerced into revealing personal information of users to police states, that intermediaries are being equipped to remove content that they find offensive from the web, and that views expressed on the social media can lead to legal battles by those who have the power but not the acumen to exercise it, all have alarming consequences. There is a need to fight for freedom, not only for the defence of technology but also for the defence of the rights that we cherish that risk being eroded.</p>
<p style="text-align: justify; ">The case of these Facebook arrests is not new. It has happened before and it will continue happening as immature governments are unable to cope with the real voices of representational democracy. These cases sometimes get naturalised because they get repeated, and even without our knowledge, can start creating a life of fear, where we internalise the regulatory system, not voicing our opinions and ideas for fear of persecution. And so, whether you agree with their politics or not, whether you endorse the viewpoints of the people who are under arrest, whether you feel implicated or not in this case, we have to realise that even if we might not agree with somebody’s viewpoint, we must defend their right to have that particular viewpoint. Anything else, and tomorrow, when you want to say something against powers of oppression, you might find yourself alone, as your voice gets heard only by those who will find creative ways of silencing you.</p>
<p style="text-align: justify; ">— With inputs from Gopu Mohan, Madhuparna Das and V Shoba</p>
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For more details visit <a href='https://cis-india.org/internet-governance/blog/indian-express-dec-2-2012-nishant-shah-so-much-to-lose'>https://cis-india.org/internet-governance/blog/indian-express-dec-2-2012-nishant-shah-so-much-to-lose</a>
</p>
No publishernishantSocial MediaFreedom of Speech and ExpressionPublic AccountabilityInternet GovernanceCensorship2012-12-07T16:39:09ZBlog EntryGirl's arrest draws flak on social media
https://cis-india.org/news/times-of-india-arun-dev-nov-20-2012-girl-arrest-draws-flak-on-social-media
<b>The arrest of a 21-year-old girl by Mumbai police for criticizing the shutting down of the city following the death of Bal Thackeray come under fire from netizens.</b>
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<p style="text-align: justify; ">Arun Dev's article was <a class="external-link" href="http://timesofindia.indiatimes.com/city/bangalore/Girls-arrest-draws-flak-on-social-media/articleshow/17286575.cms">published in the Times of India</a> on November 20, 2012. Pranesh Prakash is quoted.</p>
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<p style="text-align: justify; "><span id="advenueINTEXT">Many tweets and <a href="http://timesofindia.indiatimes.com/topic/Facebook">Facebook</a> posts popped up soon after the news of her arrest played on TV and social media networks, some even reposting what she first posted on her page.</span></p>
<p style="text-align: justify; ">Pranesh Prakash, programme manager, Centre for Internet and Society, told TOI this case was a clear case of misapplication of Section 295A of the Indian Penal Code. "This provision has been frivolously used numerous times in Maharashtra. Even the banning of James Laine's book, 'Shivaji: Hindu King in Islamic India', happened this section. The ban was subsequently deemed unlawful by both the Bombay high court and the Supreme Court. Indeed, Section 295A has not been applied in cases where it's more apparent," he said.</p>
<p style="text-align: justify; ">On the CIS blog, he commented, "Interestingly, the question arises of the law under which the friend who 'liked' the Facebook status update was arrested. It would take a highly clever lawyer and a highly credulous judge to make 'liking' of a Facebook status update an act capable of being charged with electronically sending ... any information that is grossly offensive or has menacing character".</p>
<p style="text-align: justify; ">"It is absolutely ridiculous. Regardless of the fact she was given bail, she was sent to 14 days of judicial custody for a mere comment. We have allowed our social media to be free and open but we have laws which are ancient," said Lawrence Liang, a lawyer working on media laws with the Alternative Law Forum in Bangalore. "Such cases don't stand a chance in a court of law. We need procedural safeguards which will ensure cases which are not relevant are not be allowed to be filed," he added.</p>
<p style="text-align: justify; ">The open letter to the chief minister of the Maharashtra by Justice Katju, Chairman, Press Council of India, and former Judge, <a href="http://timesofindia.indiatimes.com/topic/Supreme-Court">Supreme Court</a> of India too was widely circulated on social media. Some posted this excerpt: "We are living in a democracy, not a fascist dictatorship. In fact this arrest itself appears to be a criminal act since under sections 341 and 342 it is a crime to wrongfully arrest or wrongfully confine someone who has committed no crime."</p>
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For more details visit <a href='https://cis-india.org/news/times-of-india-arun-dev-nov-20-2012-girl-arrest-draws-flak-on-social-media'>https://cis-india.org/news/times-of-india-arun-dev-nov-20-2012-girl-arrest-draws-flak-on-social-media</a>
</p>
No publisherpraskrishnaFreedom of Speech and ExpressionPublic AccountabilityInternet GovernanceCensorship2012-11-20T11:04:27ZNews ItemInternet users flay Mumbai girls' arrest over Facebook post
https://cis-india.org/news/ibnlive-news-nov-20-2012-netizens-flay-mumbai-girls-arrest-over-facebook-post
<b>The arrest of two girls over their Facebook post on shutdown in Mumbai for Bal Thackeray's funeral on Monday again opened a can of worms with netizens calling the move a "social media hijack by the powerful and the fundamentalists". Social media was abuzz with tweets and posts about the arrest, with most referring to the arrest as yet another move to curb freedom of speech on the Internet. </b>
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<p style="text-align: justify; ">This post was <a class="external-link" href="http://ibnlive.in.com/news/netizens-flay-mumbai-girls-arrest-over-facebook-post/306360-3.html">published by IBN Live</a> on November 20, 2012. Pranesh Prakash is quoted.</p>
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<p style="text-align: justify; ">Noted journalist Gautam Chikermane tweeted "First Pondicherry businessman, now 21 year old Palghar girl. Next: all of us. Social media hijack by the powerful and the fundamentalists". Minister of State (Communications and IT) Milind Deora tweeted: "To learn who rules over you, simply find out who you are not allowed to criticize ~ Voltaire".</p>
<p style="text-align: justify; ">Communication specialist Alyque Padamsee expressed shock at the arrest and the vandalism at the clinic of one of the girl's uncle. "I want to know how these girls have broken the law when all they said is that why should Mumbai come to a standstill. There is nothing derogatory against Thackeray. I do not see anything illegal in that," he said. Padamsee further said the Constitution provides everyone free speech and that "no one should be arrested on such flimsy grounds".</p>
<p style="text-align: justify; ">Pavan Duggal, Cyber law Expert and an advocate with Supreme Court also voiced similar views. "This is high time for the government for the review of the law. The government should amend the IT Act so as to narrow down its provisions as some of the these violate our constitutional right of free speech."</p>
<p style="text-align: justify; ">He added that it would be a bigger challenge for the prosecution to prove that the statement could incite communal disharmony and violence. "This should not be seen merely as "social media regulation", but as a restriction on freedom of speech and expression by both the law and the police," Centre for Internet and Society Policy Director Pranesh Prakash said.</p>
<p style="text-align: justify; ">The two girls--Shaheen Dhada and Renu--were sent to 14-day judicial custody by a court before which they were produced today but were granted bail within hours after they furnished personal bonds. There was also an attack on the clinic of an uncle of one of them by Sena activists.</p>
<p style="text-align: justify; ">The arrests also sparked an outrage with Press Council of India chief Markandey Katju today demanding "immediate" action against police personnel involved. While Dhada was arrested for the post, Dhada's friend Renu was arrested for 'liking' the post. "Police arrested both of them under section 505(2) (statements creating or promoting enmity, hatred or ill-will between classes). Today, they were granted bail," their advocate Sudhir Gupta said.</p>
<p style="text-align: justify; ">The duo was arrested following a police complaint lodged by a local Sena leader. After the comment was posted, a mob of nearly 40 Shiv Sainiks allegedly barged into Dhada's uncles's orthopaedic hospital at Palghar and vandalised the place on Sunday. However, no arrests were made in connection with the attack.</p>
<p style="text-align: justify; ">Some other tweets in support of the girls read: "Hatred of minorities, liberals is an epidemic on Twitter. Law shd be harsh on hatespeak not on democratic rights of 21 year olds!Cheerio" (@sagarikaghose) and "So the girl n frnd got arrested for posting stuff on FB did Shiv sainiks get arrested for destroying the doc's hospital?? #Mumbai #Balasaheb" (@SocoMumbai).</p>
<p style="text-align: justify; ">Last month, a businessman from Puducherry was arrested on the charge of posting "offensive" messages on social media targeting Union Finance Minister P Chidambaram's son Karti Chidambaram.</p>
<p><b>The following image was also being circulated over the Internet and is said to be the Facebook post that led to the girls' arrest:</b></p>
<p><b><img src="https://cis-india.org/home-images/fbpost_balthackeray.jpg" alt="fb-Post" class="image-inline" title="fb-Post" /><br /></b></p>
<p><br /><br /></p>
<p>
For more details visit <a href='https://cis-india.org/news/ibnlive-news-nov-20-2012-netizens-flay-mumbai-girls-arrest-over-facebook-post'>https://cis-india.org/news/ibnlive-news-nov-20-2012-netizens-flay-mumbai-girls-arrest-over-facebook-post</a>
</p>
No publisherpraskrishnaFreedom of Speech and ExpressionPublic AccountabilityInternet GovernanceCensorship2012-11-20T11:35:04ZNews Item