Centre for Internet and Society

TRAI and the Disclosure of Personal Information

Nehaa Chaudhari and Vidushi Marda — 2015-05-10T09:16:28Z

The Telecom Regulatory Authority of India (TRAI), in March 2015 invited comments on its Consultation Paper for the regulation of over-the-top (OTT) services. In an unprecedented wave of public participation, TRAI received over a million e-mails in support of net neutrality.

This note sets out the law in relation to the unauthorized disclosure of personal information. Many thanks to Bhairav Acharya for his inputs on this.

Subsequently, on April 27, 2015, TRAI made all responses received by it public, including personal information like email addresses along with any information contained in email signatures, which invariably include a phone number or address. While disclosure of names was needed to ensure transparency in the consultation process, disclosure of personal information gave rise to criticism and questions around the legality of such disclosure.

This note sets out the law in relation to the unauthorized disclosure of personal information:
Section 43A of the IT Act provides for subordinate legislation to govern the manner in which sensitive personal data is collected and processed. The governance of personal information is dealt with under the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 (“2011 Rules”). The 2011 Rules are made to give effect to Section 43A of the IT Act.

TRAI is a body corporate as per Section 3(2) of the TRAI Act. Hence, TRAI’s collection, storage, and disclosure of personal information is governed by the 2011 Rules. Rule 5(8) requires personal information collected to be held securely. TRAIs publishing of email addresses is a violation of Rule 5(8).

Rule 4 of the 2011 rules requires a body corporate to have a privacy policy. On its website, TRAI publishes a Privacy Policy. However, the Policy speaks of information gathered from the TRAI- Website. Even the wording on the Home Page of the TRAI website (that links to these policies) says “Website Policies”. It is unclear therefore, whether the Privacy Policy applies ONLY to the collection of information over the TRAI- Website or whether the Privacy Policy applies to TRAI overall.

Either way there is an argument to be made. TRAI has failed to draft and publicize a privacy policy for the personal information it collects directly. Without prejudice to the above, if the privacy policy on the TRAI website governs this collection of email addresses, then its unauthorized disclosure is a contravention of its own Privacy Policy, specifically paragraph 2.

Since the IT Act does not enact a specific penalty for contravention of section 43A in respect of personal information, TRAI’s unauthorized disclosure will be penalized through the residuary penalty contained in section 45 of the IT Act.

Hence TRAI is liable under Section 45 of the IT Act read with Rules 4 and 5(8) of the 2011 Rules. Section 45 provides a “residuary penalty”; for those provisions under the IT Act or Rules for whose contravention no other penalty has been prescribed. For this contravention, TRAI would have to pay a compensation of 25,000/- to the affected persons or a penalty of 25,000/- rupees.

TRAI may argue that it disclosed that personal information would be disclosed/published. However, the Call for Comments Press Release says that Comments will be published. Email addresses are not comments, and therefore TRAI did not issue a prior disclaimer for the publication of this personal information – hence the disclosure of e-mail addresses is still a violation.

The remedy for violation of Section 43A of the IT Act is the Adjudicating Authority appointed under Section 46(1), which requires a person not below the rank of Director in the appropriate government to receive complaints. Since TRAI is a body corporate as per the Act, it is unclear as to who the adjudicating officer in the present case should be; and is the matter of a separate research question.

The Appellate authority is the Cyber Appellate Tribunal constituted under Section 48 of the IT Act . It is not known if the tribunal has been constituted, and if it has; it is unknown whether it is staffed.

In the absence of clarity with regard to statutory authorities, a citizen whose personal information has been disclosed by TRAI without authorization may file a writ petition in the Delhi High Court under Article 226, or in the Supreme Court under Article 32 for issue of a writ of mandamus or prohibition, for appointment of the first adjudicating officer and also for issuance of directions in lieu of such an officer.

For more details visit https://cis-india.org/telecom/blog/trai-and-the-disclosure-of-personal-information

New intermediary guidelines: The good and the bad

TorShark — 2021-03-15T13:52:46Z

In pursuance of the government releasing the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, this blogpost offers a quick rundown of some of the changes brought about the Rules, and how they line up with existing principles of best practices in content moderation, among others.

This article originally appeared in the Down to Earth magazine. Reposted with permission.

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The Government of India notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The operation of these rules would be in supersession of the existing intermediary liability rules under the Information Technology (IT) Act, made back in 2011.

These IL rules would have a significant impact on our relationships with internet ‘intermediaries’, i.e. gatekeepers and getaways to the internet, including social media platforms, communication and messaging channels.

The rules also make a bid to include entities that have not traditionally been considered ‘intermediaries’ within the law, including curated-content platforms such as Netflix and Amazon Prime as well as digital news publications.

These rules are a significant step-up from the draft version of the amendments floated by the Union government two years ago; in this period, the relationship between the government around the world and major intermediaries changed significantly.

The insistence of these entities in the past, that they are not ‘arbiters of truth’, for instance, has not always held water in their own decision-makings.

Both Twitter and Facebook, for instance, have locked the former United States president Donald Trump out of their platforms. Twitter has also resisted to fully comply with government censorship requests in India, spilling into an interesting policy tussle between the two entities. It is in the context of these changes, therefore, that we must we consider the new rules.

What changed for the good?

One of the immediate standouts of these rules is in the more granular way in which it aims to approach the problem of intermediary regulation. The previous draft — and in general the entirety of the law — had continued to treat ‘intermediaries’ as a monolithic entity, entirely definable by section 2(w) of the IT Act, which in turn derived much of its legal language from the EU E-commerce Directive of 2000.

Intermediaries in the directive were treated more like ‘simple conduits’ or dumb, passive carriers who did not play any active role in the content. While that might have been the truth of the internet when these laws and rules were first enacted, the internet today looks much different.

Not only is there a diversification of services offered by these intermediaries, there’s also a significant issue of scale, wielded by a few select players, either by centralisation or by the sheer number of user bases. A broad, general mandate would, therefore, miss out on many of these nuances, leading to imperfect regulatory outcomes.

The new rules, therefore, envisage three types of entities:

There are the ‘intermediaries’ within the traditional, section 2(w) meaning of the IT Act. This would be the broad umbrella term for all entities that would fall within the ambit of the rules.
There are the ‘social media intermediaries’ (SMI), as entities, which enable online interaction between two or more users.
The rules identify ‘significant social media intermediaries’ (SSMI), which would mean entities with user-thresholds as notified by the Central Government.

The levels of obligations vary based on these hierarchies of classification. For instance, an SSMI would be obligated with a much higher standard of transparency and accountability towards their users. They would have to fulfill by publishing six-monthly transparency reports, where they have to outline how they dealt with requests for content removal, how they deployed automated tools to filter content, and so on.

I have previously argued how transparency reports, when done well, are an excellent way of understanding the breadth of government and social media censorships. Legally mandating this is then perhaps a step in the right direction.

Some other requirements under this transparency principle include giving notice to users whose content has been disabled, allowing them to contest such removal, etc.

One of the other rules from the older draft that had raised a significant amount of concern was the proactive filtering mandate, where intermediaries were liable to basically filter for all unlawful content. This was problematic on two counts:

Developments in machine learning technologies are simply not up there to make this a possibility, which would mean that there would always be a chance that legitimate and legal content would get censored, leading to general chilling effect on digital expression
The technical and financial burden this would impose on intermediaries would have impacted the competition in the market.

The new rules seemed to have lessened this burden, by first, reducing it from being mandatory to being best endeavour-basis; and second, by reducing the ambit of ‘unlawful content’ to only include content depicting sexual abuse, child sexual abuse imagery (CSAM) and duplicating to already disabled / removed content.

This specificity would be useful for better deployment of such technologies, since previous research has shown that it’s considerably easier to train a machine learning tool on corpus of CSAM or abuse, rather than on more contextual, subjective matters such as hate speech.

What should go?

That being said, it is concerning that the new rules choose to bring online curated content platforms (OCCPs) within the ambit of the law by proposals of a three-tiered self-regulatory body and schedules outlining guidelines about the rating system these entities should deploy.

In the last two years, several attempts have been made by the Internet and Mobile Association of India (IAMAI), an industry body consisting of representatives of these OCCPs, to bring about a self-regulatory code that fills in the supposed regulatory gap in the Indian law.

It is not known if these stakeholders were consulted before the enactment of these provisions. Some of this framework would also apply to publishers of digital news portals.

Noticeably, this entire chapter was also missing from the old draft, and introducing it in the final form of the law without due public consultations is problematic.

Part III and onwards of the rules, which broadly deal with the regulation of these entities, therefore, should be put on hold and opened up for a period of public and stakeholder consultations to adhere to the true spirit of democratic participation.

The author would like to thank Gurshabad Grover for his editorial suggestions.

For more details visit https://cis-india.org/internet-governance/blog/new-intermediary-guidelines-the-good-and-the-bad

Do IT Rules 2011 indirectly leads to Censorship of Internet

praskrishna — 2012-05-31T09:00:41Z

Pranesh Prakash along with Dr. Arvind Gupta, National Convener, BJP IT Cell and Ms. Mishi Choudhary, Executive Director, SFLC participated in a panel discussion on censorship of the Internet on May 8, 2012.

The discussion was broadcast on Yuva iTV. See the video below:

Video

Click for the video on YouTube

For more details visit https://cis-india.org/news/do-it-rules-indirectly-lead-to-censorship-of-internet

India’s Supreme Court strikes down law that led to arrests over Facebook posts

praskrishna — 2015-03-26T01:49:54Z

Judge rules that section of the information technology law was unconstitutional, had wrongly swept up innocent people and had a ‘chilling’ effect on free speech.

The article by Annie Gowen was published in 'The Star.com' on March 25, 2015. Sunil Abraham is quoted.

The Supreme Court in India struck down a section of its country’s information technology act Tuesday that had made it illegal to spread “offensive messages” on electronic devices and resulted in arrests over posts on Facebook and other social media.

Supreme Court Judge Rohinton Fali Nariman wrote in the ruling that the section of the law, known as 66A, was unconstitutional, saying the vaguely worded legislation had wrongly swept up innocent people and had a “chilling” effect on free speech in the world’s most populous democracy.

“Section 66A is cast so widely that virtually any opinion on any subject would be covered by it,” the judge wrote. “If it is to withstand the test of constitutionality, the chilling effect on free speech would be total.”

India had first passed its Information Technology Act in 2000, but stricter provisions were added in 2008 and ratified in 2009 that gave police sweeping authority to arrest citizens for their personal posts on social media, a crime punishable for up to three years in jail and a fine.

Sunil Abraham, the executive director of the Centre for Internet and Society in Bangalore, said the section was originally intended to protect citizens from electronic spam, but it did not turn out that way.

“Politicians who didn’t like what people were saying about them used it to crack down on online criticism,” he said.

In the end, there were more than 20 high-profile arrests, including a professor who posted an unflattering cartoon of a state political leader and another artist who drew a set of cartoons lampooning the government and Parliament.

The most well-known was the case of two young women arrested in the western town of Palghar after one of them posted a comment on Facebook that argued the city of Mumbai should not have been shut down for the funeral of a famous conservative leader. A friend, who merely “liked” the post, was also arrested. After much outcry, the two were released on bail and the charges eventually dropped.

The case of the “Palghar Girls” inspired a young law student, Shreya Singhal, to take on the government’s law. Singhal became the chief petitioner for the case, along with other free speech advocates and an Indian information technology firm.

“It’s a big victory,” Singhal said after the ruling. “The Internet is so far-reaching and so many people use it now, it’s very important for us to protect this right.”

Singhal and other petitioners had also argued that another section of India’s technology act that allowed the government to block websites containing questionable material were also unconstitutional, but the court disagreed, saying there was a sufficient review process in place to avoid misuse.

Free speech in India is enshrined in the country’s constitution but has its limits. Books and movies are often banned or censored out of consideration for religious and minority groups.

In 2014, a conservative Hindu group persuaded Penguin India to withdraw a book about Hinduism by Wendy Doniger, a professor of religion at the University of Chicago, from the Indian market. And more recently, the government of India blocked a planned television debut of a documentary film on a 2012 gang rape case, India’s Daughter.

For more details visit https://cis-india.org/internet-governance/news/the-star-march-25-2015-annie-gowen-indias-supreme-court-strikes-down-law-that-led-to-arrests-over-facebook-posts

Historic day for freedom of speech and expression in India

vidushi — 2015-03-26T02:19:17Z

In a petition that finds its origin in a simple status message on Facebook, Shreya Singhal vs Union of India marks a historic reinforcement of the freedom of speech and expression in India.

The article by Vidushi Marda was published in Bangalore Mirror on March 25, 2015.

Hearing a batch of writ petitions, the bench comprising Justices Rohinton F Nariman and J Chelameswar considered the constitutionality of three provisions of the Information Technology Act, 2000. The provisions under consideration were Section 66A, dealing with punishment of sending offensive messages through communication services, Section 69A which discusses website blocking and Section 79, dealing with intermediary liability.

The intent behind Section 66A was originally to regulate spam and cyber stalking, but in the last seven years not a single spammer has been imprisoned.

Instead, innocent academics have been arrested for circulating caricatures. The Court struck down the section in its entirety, declaring it unconstitutional.

It held that the language of the section was "nebulous" and "imprecise" and did not satisfy reasonable restrictions under A. 19(2) of the Constitution of India.

Section 79 was meant to result in the blossoming of free speech since it stated that intermediaries will not be held liable for content created by their users unless they refused to act on take-down notices. Unfortunately, intermediaries were unable to decide whether content was legal or illegal, and when the Centre for Internet and Society in 2011 sent flawed take-down notices to seven prominent national and international intermediaries, they erred on the side of caution and over-complied, often deleting legitimate content. By insisting on a court order, the Supreme Court has eliminated the chilling effect of this Section.

Block orders issued by the Indian government to telecom operators and ISPs were shrouded in opacity.

The process through which such orders were developed and implemented was not within public scrutiny. When a film is banned, it becomes part of public discourse, but website blocking does not enjoy the same level of transparency. The person whose speech has been censored is not notified or given an opportunity to be heard as part of the executive process. Unfortunately, in dealing with Section 69A, the Court chose to leave it intact, stating that it is a "narrowly drawn provision with several safeguards."

On balance, this is a truly a landmark judgment as it is the first time since the 1960s that the Supreme Court has struck down any law in its entirety for a violation of free speech.

For more details visit https://cis-india.org/internet-governance/blog/bangalore-mirror-vidushi-marda-march-25-2015-historic-day-for-freedom-of-speech-and-expression-in-india

What the experts said on live chat

praskrishna — 2015-03-26T02:35:49Z

Three eminent panellists shared their views and answered questions from readers on the Supreme Court verdict striking down Section 66 A of the IT Act that allowed the arrest of people posting “offensive content” on the Internet, in a live chat hosted by The Hindu.

The article was published in the Hindu on March 25, 2015. Geetha Hariharan was one of the panelists.

Does this now mean anything goes on the Internet, asked one reader.

“No, the standard penal laws — against defamation, hate speech (S. 153A), religious incitement (S. 295A) — continue to apply,” said Gautam Bhatia, a practicing lawyer and author of forthcoming book “Offend, shock or disturb: Free Speech under the Constitution.” The argument that the Internet needed separate rules when it came to the content of speech was what was rejected by the Court, he said.

What was the rationale for the Court upholding Section 69 A, allowing the blocking of websites, asked another.

“One wishes that the court had paid as much attention to the blocking orders as they did to 66A,” said Lawrence Liang, lawyer and researcher at Alternative Law Forum working on free speech.

Geetha Hariharan, a Programme Officer at Centre for Internet and Society, focusing on Internet governance and freedom of expression, was the third expert on the panel.

Click here to read the full transcript of the chat

For more details visit https://cis-india.org/internet-governance/news/the-hindu-march-25-2015-what-the-experts-said-on-live-chat

Indian Court Strikes Down Section of Law Punishing Offensive Posts

praskrishna — 2015-03-26T15:40:06Z

The Indian Supreme Court on Tuesday struck down a section of a law that allowed the authorities to jail people for offensive online posts, in a judgment that was regarded as a landmark ruling on free speech in India.

The blog post by Nida Najar and Suhasini Raj was published on the website of NDTV on March 25, 2015. Sunil Abraham gave his inputs.

The law stipulated that a person could be jailed for up to three years for any communication online that was, among other things, "grossly offensive," "menacing" or "false," and for the purpose of causing "annoyance," "inconvenience" or "injury." The provisions, which led to highly publicized arrests in recent years, had been roundly criticised by legal experts who called them vague and argued that they had been used in some cases to stifle dissent.

Calling the wording so vague that "virtually any opinion on any subject would be covered by it," the court said "if it is to withstand the test of constitutionality, the chilling effect on free speech would be total."

Sunil Abraham, the executive director of the Center for Internet & Society, which is based in Bangalore, called the decision "amazing."
"It is in continuation of a great tradition in India: that of apex courts consistently, over the years, protecting the citizens of India from violations of human rights," he said.

India is considered by some to be one of the world's most freewheeling democracies, but the law reflected the ambivalence with which Indian officials have sometimes treated freedom of expression, occasionally citing the Constitution's allowance of "reasonable restrictions" on free speech in order to ban books, movies and other material about subjects like sex, politics and religion.

The government recently blocked the screening in India of the BBC documentary "India's Daughter," about the Delhi gang rape in 2012 that made international news.

The law, the Information Technology (Amendment) Act, was passed by parliament shortly after the three-day terrorist attacks on Mumbai in 2008. It granted the authorities more expansive powers to monitor electronic communications for reasons of national security. That section was not a part of the court case.

In the past, critics have been particularly worried that the section of the law that was struck down was ripe for misuse at the hands of police officials often beholden to political parties.

Last week, a young man in the northern Indian state of Uttar Pradesh became one of the latest people to be arrested under the law when the police said he incorrectly attributed a polarizing statement to the lawmaker Azam Khan on Facebook.

Other highly publicized cases include the arrest in 2012 of a professor accused of sharing cartoons mocking the chief minister of West Bengal state on Facebook and the arrest of two young women after one shared a Facebook post criticizing the virtual shutdown of Mumbai following the death of a revered right-wing political leader there. The professor is still contesting his case in court, while the case against the two young women was dropped in 2013, according to the Press Trust of India.

In a separate part of the Supreme Court judgment, the justices made it harder to force websites to take down content, although a legal expert said it remained to be seen how much of an impediment the ruling would be to blocking content.

For more details visit https://cis-india.org/internet-governance/news/ndtv-nida-najar-and-suhasini-raj-march-25-2015-indian-court-strikes-down-section-of-law-punishing-offensive-posts

IT Leaders, Lawyers Welcome SC Ruling on 66A of the IT Act

praskrishna — 2015-03-26T15:58:19Z

The Supreme Court of India has delivered a landmark judgment in scrapping section 66A of the Information Technology Act, which prescribed 'punishment for sending offensive messages through communication service, etc.' and had been branded as grossly 'unconstitutional' by various lawyers and legal advisors.

The blog past was published by Cio.in on March 25, 2015. Pranesh Prakash is quoted.

Here's what 66A of the IT (Amendment) Act, 2008 stated: Any person who sends, by means of a computer resource or a communication device,(a) any information that is grossly offensive or has menacing character;(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently by making use of such computer resource or a communication device, or (c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.

As per the study conducted by the Centre for Internet and Society, Bangalore, intermediaries over-comply and tend to take down even legitimate information when they receive a takedown notice. There were also several arrests made as a result. The most recent among which was when a class XI student from Bareilly was arrested for sharing an “objectionable” post on Facebook against senior Samajwadi party leader and state Urban Development Minister, Azam Khan.

The ruling by the Supreme Court has not only been welcomed by Shreya Singhal, the young law student who was among the first to challenge it in the Supreme Court, but also lawyers, legal advisors as well as IT leaders.

Pranesh Prakash, a Policy Director with the Centre for Internet and Society, Bangalore, and a graduate of the National Law School tweeted: While the case is about 'Internet' censorship, the SC judgment is against ALL censorship. That's important. #66A

According to Pavan Duggal, advocate, Supreme Court of India, Section 66A symbolized the tyranny of ambiguous vague terms over the purity of legitimate free speech.

"It represented a tool for suppressing bonafide free speech, which was extensively misused. Sec 66A was a foe more than your friend. In scrapping Sec 66A, Supreme Court has done a great service to the cause of free speech of vibrant digital Indians. Digital free speech in India owes a great deal to the SC ruling," said Duggal.

Various Indian IT leaders also expressed their satisfaction towards the apex court's ruling, and called it a balanced judgment.

Anjani Kumar, CIO, Safexpress says, the ruling is by and large, a favorable one. “Previously, people who were writing against the establishment were being harassed. However, with this ruling, the apex court has protected the constitutional right of freedom of speech,” he said.

There will be freedom of speech and everyone will be able to express their views openly on social media platforms. It will help maintain an equilibrium over a period of time,” said T.G Dhandapani, group CIO, TVS Motors.

While the general sentiment was fairly positive. Manas Mati, executive director and technology head, Walt Disney said, “I think the Section should not have been scrapped. Every person needs to be responsible and accountable for what they post on social media.”

Accountable or not, the judgment clearly indicates that's there won't be any arrests on the subjective interpretation of vague expressions such as “grossly offensive” and “menacing character” etc. under section 66A of the Information Technology Act, 2000.

“However, the ruling is a very balanced one, with the court stating that the government has the right to remove objectionable content, but not arrest the person. The negative can be that some people go overboard on social media and they need to be checked," Kumar said.

For more details visit https://cis-india.org/internet-governance/news/cio-in-march-25-2015-it-leaders%2C-lawyers-welcome-sc-ruling-on-66a-of-the-it-act

India's section 66A scrapped: Win for free speech

praskrishna — 2015-03-26T16:19:42Z

India's Supreme Court court has struck down a law that made posting "offensive" comments on the internet a crime punishable by a jail term of up to three years. But, for the free speech campaigners, there is more work to do, writes technology writer Prasanto K Roy.

The blog post by Prasanto K. Roy was published by BBC on March 24, 2015. Pranesh Prakash was quoted.

Section 66A, inserted in 2009 into India's Information Technology [IT] Act of 2000, was sweeping and draconian, and was repeatedly abused across the country, say free speech campaigners.

It was challenged in 2012 by a law student, Shreya Singhal, then 21.

She filed a public-interest litigation in the Supreme Court, shortly after the arrest of two girls in Mumbai for a Facebook post criticising the shutdown of the city after a political leader's death.

One of the two girls had merely "liked" the post.

Earlier in the same year, a businessman in south India was arrested for tweeting that a politician had amassed much wealth.

A professor at Jadavpur University in Kolkata (formerly Calcutta) was arrested for forwarding a cartoon about West Bengal Chief Minister Mamata Banerjee. Both were charged under Section 66A, among others.

In May 2013, the Supreme Court made arrests under Section 66A tougher - it said an arrest would require the permission of senior law-enforcement officials.

'A victory'

The judgement on Tuesday was read out by Justice RF Nariman, who said Section 66A was unconstitutional and directly affected the public's right to know.

"We have no hesitation in striking it down in its entirety," he said.

The order notes that Section 66A violates an article of the Indian constitution that guarantees freedom of speech and expression.

"This judgement is a victory for anyone and everyone who uses the internet.

"I am ecstatic. It's a complete victory for us, because the Supreme Court struck it down and held it unconstitutional," Ms Singhal told BBC Hindi moments after the court scrapped the law.

Section 66A provided for up to three years in jail for anyone who sent an electronic message that was considered "grossly offensive" or caused "annoyance or inconvenience".

Justice Nariman said such terms were vague, and created a sweeping law that was open to abuse.

The apex court judgement notes that 66A was based substantially on section 66 of the UK Post Office Act of 1953, which made sending offensive or annoying messages by telephone or telegram an offence punishable by up to a month in jail.

That law, last updated in 2003, still retains the terms "annoyance" and "inconvenience".

Section 66A's creation, and much of its implementation, happened on the watch of the Congress party-led political regime that lost to Prime Minister Narendra Modi's BJP government in last year's general election.

Arun Jaitley of the BJP - the current finance minister and former opposition leader - had criticised the law in the upper house of parliament, after it was reported that the government had blocked nearly 300 websites.

Once in power, however, the BJP swung around to defending 66A in the Supreme Court, the government represented by additional solicitor general Tushar Mehta.

Arrests under Section 66A continued into 2015 - last week, a 19-year-old student in Uttar Pradesh was arrested for a Facebook post on a political leader, and spent two days in jail.

Next target

The petitioners and their many supporters, including multiple virtual support groups, are celebrating the order striking down 66A.

But there are concerns about another section - 69A - introduced in the same amendment of 2009, which has been retained.

Section 69A, which was also challenged in Ms Singhal's and others' petitions, allows the government to block online content that "threatens the security of the state" or fulfils other conditions.

Hundreds of websites and web pages have been blocked under 69A, including a government website in 2013.

The apex court's order notes that 69A is a "narrowly drawn provision with several safeguards", and has allowed the section to remain.

Pranesh Prakash of the Centre for Internet and Society says: "The Supreme Court judgement is at its best on 66A, but weaker on 69A."

The free speech campaigners say their work is not yet finished.

For more details visit https://cis-india.org/internet-governance/news/bbc-march-24-2015-indias-section-66-a-scrapped

India’s Supreme Court strikes down law that led to Facebook arrests

praskrishna — 2015-03-27T00:29:08Z

India’s Supreme Court on Tuesday struck down a provision of a law that made it illegal to spread “offensive messages” on electronic devices and resulted in arrests over posts on Facebook and other social media.

The article by Annie Gowen was published in Washington Post on March 24, 2015. Sunil Abraham is quoted.

In a decision hailed as a victory for free speech, Judge Rohinton Fali Nariman ruled that Section 66A of the Information Technology Act was unconstitutional, writing that the vaguely worded legislation had wrongly swept up innocent people and had a “chilling” effect on free speech in the world’s most populous democracy.

India passed the Information Technology Act in 2000, and an amendment that went into effect in 2009 gave authorities broad powers to arrest those who post content deemed “grossly offensive” or false. The offense was punishable by up to three years in jail and a fine.

Sunil Abraham, the executive director of the Centre for Internet and Society in Bangalore, said that the provision was originally intended to protect citizens from electronic spam but that it was used much more broadly.

“Politicians who didn’t like what people were saying about them used it to crack down on online criticism,” he said.

The section has resulted in more than 20 high-profile arrests, including that of a professor who posted an unflattering cartoon of a state political leader and an artist who drew cartoons lampooning the government and Parliament.

The most well-known was the case of two young women arrested in the western town of Palghar after one of them posted a comment on Facebook that said Mumbai should not have been shut down for the funeral of a famous conservative leader. A friend who merely “liked” the post also was arrested. After much outcry, the two were released on bail and the charges eventually dropped.

The case of the “Palghar Girls” inspired a young law student, Shreya Singhal, to take on the law. Singhal became the chief petitioner for the case, joined by other free speech advocates and an Indian information technology firm.

[When — and where — posting the wrong thing to Facebook can get you arrested]

“It’s a big victory,” Singhal said after the ruling. “The Internet is so far-reaching and so many people use it now, it’s very important for us to protect this right.”

In addition, Singhal and other petitioners had argued that a section of the Information Technology Act that allowed the government to block Web sites containing questionable material also was unconstitutional. The court disagreed, however, saying there was a sufficient review process in place to avoid misuse.

Free speech is enshrined in the Indian constitution but has its limits. Books and movies are often banned or censored out of consideration for the sentiments of religious and minority groups.

Last year, a conservative Hindu group persuaded Penguin India to withdraw a book on Hinduism by Wendy Doniger, a professor of religion at the University of Chicago, from the Indian market. And, more recently, the government halted the planned television debut of a documentary on a 2012 gang rape called “India’s Daughter.”

[India blocks film about 2012 New Delhi rape case]

The government, whose attorney had argued in court that the legislature was in the best position to understand the needs of the people, also welcomed the decision.

“The government is committed to free speech. India is a democratic country, and free flow of ideas should be respected. We do not seek to curtail any rights,” said Ravi Shankar Prasad, the minister of communications and information technology. He cautioned, however, that social media users and platforms should show self-restraint.

In recent years, other nations also have sharply increased monitoring of and crackdowns on Web posts perceived as insulting.

Across the Persian Gulf Arab states, dozens of activists have been arrested for social media posts considered insulting to the countries’ rulers or damaging to the national image. In January 2014, an American national was allowed to leave the United Arab Emirates after serving more than eight months in prison for posting a YouTube video spoofing the UAE’s youth culture.

Brian Murphy in Washington contributed to this report. Picture: (Indranil Mukherjee/AFP/Getty Images)

For more details visit https://cis-india.org/internet-governance/news/washington-post-annie-gowen-march-24-2015-indias-sc-strikes-down-law-that-led-to-fb-arrests

Noose tightens on freedom of speech on the Internet

praskrishna — 2015-03-27T01:01:18Z

A worrying trend has emerged in the last few years, where intermediaries around the world are being used as chokepoints to restrict freedom of expression online, and to hold users accountable for content.

The blog post by Gabey Goh was originally published by Digital News Asia and mirrored in Malaymail Online on March 26, 2015. Jyoti Panday gave her inputs.

“These services are all routinely asked to take down content, and their policies for responding are often muddled, heavy-handed, or inconsistent.

“That results in censorship and the limiting of people’s rights,” he told Digital News Asia (DNA) on the sidelines of RightsCon, an Internet and human rights conference hosted in Manila from March 24-25.

This year, the government of France is moving to implement regulation that makes Internet operators “accomplices” of hate-speech offences if they host extremist messages.

In February, the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA) urged ICANN (the Internet Corporation for Assigned Names and Numbers) to ensure that domain name registries and registrars “investigate copyright abuse complaints and respond appropriately.”

Closer to home, the Malaysian Government passed a controversial amendment to the Evidence Act 1950 – Section 114A – back in 2012.

Under Section 114A, an Internet user is deemed the publisher of any online content unless proven otherwise. The new legislation also makes individuals and those who administer, operate or provide spaces for online community forums, blogging and hosting services, liable for content published through their services.

Due to the potential negative impact on freedom of expression, a roadmap called the Manila Principles on Internet Liability was launched during RightsCon.

The EFF, Centre for Internet Society India, Article 19, and other global partners unveiled the principles, whose framework outlines clear, fair requirements for content removal requests and details how to minimise the damage a takedown can do.

For example, if content is restricted because it’s unlawful in one country or region, then the scope of the restriction should be geographically limited as well.

The principles also urge adoption of laws shielding intermediaries from liability for third-party content, which encourages the creation of platforms that allow for online discussion and debate about controversial issues.

“Our goal is to protect everyone’s freedom of expression with a framework of safeguards and best practices for responding to requests for content removal,” said Malcolm.

Jyoti Panday from the Centre for Internet and Society India noted that people ask for expression to be removed from the Internet for various reasons, good and bad, claiming the authority of myriad local and national laws.

“It’s easy for important, lawful content to get caught in the crossfire. We hope these principles empower everyone – from governments and intermediaries, to the public – to fight back when online expression is censored,” she said.

The Manila Principles can be summarised in six key points:

Intermediaries should be shielded by law from liability for third-party content
Content must not be required to be restricted without an order by a judicial authority
Requests for restrictions of content must be clear, be unambiguous, and follow due process
Laws and content restriction orders and practices must comply with the tests of necessity and proportionality
Laws and content restriction policies and practices must respect due process
Transparency and accountability must be built in to laws and content restriction policies and practices

“In addition, there is no logic in distinguishing between intellectual property (IP) and other forms of content as in the case in the United States for example, where under Section 230 of the Communications Decency Act, intermediaries are not liable for third party content but that doesn’t apply to IP,” he added.

The Manila Principles have two main targets: Governments and intermediaries themselves. The coalition, led by EFF, will be approaching governments to present the document and discuss the recommendations on how best to establish an intermediary liability regime.

This includes immunising intermediaries from liability and requiring a court order before any content can be taken down.

With intermediaries, the list includes companies such as Facebook, Twitter and Google, to discuss establishing transparency, responsibility and accountability in any actions taken.

The overall aim with the Manila Principles is to influence policy changes for the better.

Malcolm pointed out that by coincidence, some encouraging developments have taken place in India. On the same day the principles were released, the Indian Supreme Court struck down the notorious Section 66A of the country’s Information Technology Act.

Since 2009, the law had allowed both criminal charges against users and the removal of content by intermediaries based on vague allegations that the content was “grossly offensive or has menacing character,” or that false information was posted “for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will.”

Calling it a “landmark decision,” Malcolm noted that the case shows why the establishment and promotion of the Manila Principles are important.

“Not only is the potential overreach of this provision obvious on its face, but it was, in practice, misused to quell legitimate discussion online, including in the case of the plaintiffs in that case – two young women, one of whom made an innocuous Facebook post mildly critical of government officials, and the other who ‘liked’ it,” he said.

The court however, upheld section 69A of the Act, which allows the Government to block online content; and Section 79(3), which makes intermediaries such as YouTube or Facebook liable for not complying with government orders for censorship of content. — Digital News Asia

For more details visit https://cis-india.org/internet-governance/news/malaymail-online-gabey-goh-march-26-2015-noose-tightens-on-freedom-of-speech-on-the-internet

The noose tightens on freedom of speech on the Internet

praskrishna — 2015-03-27T01:06:52Z

A WORRYING trend has emerged in the last few years, where intermediaries around the world are being used as chokepoints to restrict freedom of expression online, and to hold users accountable for content.

The blog post by Gabey Goh was published by Digital News Asia on March 26, 2015. Jyoti Panday gave her inputs.

“All communication across the Internet is facilitated by intermediaries: Service providers, social networks, search engines, and more,” said Electronic Frontier Foundation (EFF) senior global policy analyst Jeremy Malcolm.

“These services are all routinely asked to take down content, and their policies for responding are often muddled, heavy-handed, or inconsistent.

“That results in censorship and the limiting of people’s rights,” he told Digital News Asia (DNA) on the sidelines of RightsCon, an Internet and human rights conference hosted in Manila from March 24-25.

This year, the government of France is moving to implement regulation that makes Internet operators ‘accomplices’ of hate-speech offences if they host extremist messages.

In February, the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA) urged ICANN (the Internet Corporation for Assigned Names and Numbers) to ensure that domain name registries and registrars “investigate copyright abuse complaints and respond appropriately.”

Closer to home, the Malaysian Government passed a controversial amendment to the Evidence Act 1950 – Section 114A – back in 2012.

Under Section 114A, an Internet user is deemed the publisher of any online content unless proven otherwise. The new legislation also makes individuals and those who administer, operate or provide spaces for online community forums, blogging and hosting services, liable for content published through their services.

Due to the potential negative impact on freedom of expression, a roadmap called the Manila Principles on Internet Liability was launched during RightsCon.

The EFF, Centre for Internet Society India, Article 19, and other global partners unveiled the principles, whose framework outlines clear, fair requirements for content removal requests and details how to minimise the damage a takedown can do.

For example, if content is restricted because it’s unlawful in one country or region, then the scope of the restriction should be geographically limited as well.

The principles also urge adoption of laws shielding intermediaries from liability for third-party content, which encourages the creation of platforms that allow for online discussion and debate about controversial issues.

“Our goal is to protect everyone’s freedom of expression with a framework of safeguards and best practices for responding to requests for content removal,” said Malcolm.

Jyoti Panday from the Centre for Internet and Society India noted that people ask for expression to be removed from the Internet for various reasons, good and bad, claiming the authority of myriad local and national laws.

“It’s easy for important, lawful content to get caught in the crossfire. We hope these principles empower everyone – from governments and intermediaries, to the public – to fight back when online expression is censored,” she said.

The Manila Principles can be summarised in six key points:

Intermediaries should be shielded by law from liability for third-party content.

Content must not be required to be restricted without an order by a judicial authority.

Requests for restrictions of content must be clear, be unambiguous, and follow due process.

Laws and content restriction orders and practices must comply with the tests of necessity and proportionality.

Laws and content restriction policies and practices must respect due process.

Transparency and accountability must be built in to laws and content restriction policies and practices.

“Right now, different countries have differing levels of protection when it comes to intermediary liability, and we’re saying that there should be expansive protection across all content,” said Malcolm (pic).

“In addition, there is no logic in distinguishing between intellectual property (IP) and other forms of content as in the case in the United States for example, where under Section 230 of the Communications Decency Act, intermediaries are not liable for third party content but that doesn’t apply to IP,” he added.

The Manila Principles have two main targets: Governments and intermediaries themselves. The coalition, led by EFF, will be approaching governments to present the document and discuss the recommendations on how best to establish an intermediary liability regime.

This includes immunising intermediaries from liability and requiring a court order before any content can be taken down.

With intermediaries, the list includes companies such as Facebook, Twitter and Google, to discuss establishing transparency, responsibility and accountability in any actions taken.

“We recognise that a lot of the time, intermediaries are not waiting for a court order before taking down content, and we’re telling them to avoid removing content unless there is a sufficiently good reason and users have been notified and presented that reason,” said Malcolm.

The overall aim with the Manila Principles is to influence policy changes for the better.

Malcolm pointed out that by coincidence, some encouraging developments have taken place in India. On the same day the principles were released, the Indian Supreme Court struck down the notorious Section 66A of the country’s Information Technology Act.

Since 2009, the law had allowed both criminal charges against users and the removal of content by intermediaries based on vague allegations that the content was “grossly offensive or has menacing character,” or that false information was posted “for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will.”

Calling it a “landmark decision”, Malcolm noted that the case shows why the establishment and promotion of the Manila Principles are important.

“Not only is the potential overreach of this provision obvious on its face, but it was, in practice, misused to quell legitimate discussion online, including in the case of the plaintiffs in that case – two young women, one of whom made an innocuous Facebook post mildly critical of government officials, and the other who ‘liked’ it,” he said.

The court however, upheld section 69A of the Act, which allows the Government to block online content; and Section 79(3), which makes intermediaries such as YouTube or Facebook liable for not complying with government orders for censorship of content.

Gabey Goh reports from RightsCon in Manila at the kind invitation of the South-East Asian Press Alliance or Seapa.

For more details visit https://cis-india.org/internet-governance/news/digital-news-asia-gabey-goh-march-26-2015-noose-tightens-on-freedom-of-speech-on-internet

India's landmark online speech ruling is step toward greater press freedom

praskrishna — 2015-03-29T00:55:35Z

In an historic decision, India's Supreme Court on Tuesday struck down part of a law used to silence criticism and free expression. While this marks a pivotal victory that has been welcomed in many quarters, many challenges remain for press freedom in the country.

The blog post by Sumit Galhotra was published by CPJ (Committee to Protect Journalists) on March 28, 2015. Pranesh Prakash is quoted.

Section 66A of the Information Technology Act--the vaguely worded provision struck down by the court--criminalized online speech deemed "grossly offensive" or "menacing," along with information for the purpose of causing "annoyance" or "inconvenience." Individuals convicted under the provision could face up to three years in prison. This law, along with others that remain on the books, has allowed India to become a paradise for the offended.

The law was challenged by a public interest litigation mounted by Shreya Singhal, in 2012. Singhal, who had just returned to Delhi from her studies in the U.K., was infuriated at how the law was being used to stifle debate and criticism in her home country, according to reports.

The September 2012 arrest of cartoonist Aseem Trivedi, on a range of charges including one under Section 66A, over his cartoons on politics and corruption, caught Singhal's attention. A few weeks later, she learned of the arrest of 21-year-old Shaheen Dhada, who questioned on Facebook the shutdown of Mumbai following the death of a politician, Singhal said. Dhada's friend, Renu Srinivasan, who had merely "liked" the comment, was arrested under the law. According to news reports, both were charged. These cases sparked a national debate on the space for free expression in the world's largest democracy, and led Singhal to challenge the law, she told reporters.

"It's a big victory," Singhal, who is currently studying law in Delhi, told the media following Tuesday's decision. "The Internet is so far-reaching and so many people use it now, it's very important for us to protect this right."

India is expected to overtake the U.S. as the second largest population of Internet users in the world, behind only China, according to the Internet and Mobile Association of India, a nonprofit group representing the Web and mobile industry. As Internet usage accelerates in India, thanks in large part to the widespread use of mobile devices, there has been an ongoing debate on how best to policeit in a country that has to contend with frequent episodes of violence, civil unrest, and terrorist attacks.


Karuna Nundy, an advocate at the Supreme Court of India who helped the legal challenge, says the country has several laws that are a threat to press freedom. (Geoffrey King)

Lawrence Liang, a lawyer and researcher at the Bangalore-based Alternative Law Forum, an Indian legal research organization, shared in Singhal's welcoming of the decision. "It is important to note that this is the first judgment in decades in which the Supreme Court has struck down a legal provision for violating freedom of speech, and in doing so, it simultaneously builds upon a rich body of free speech cases in India and paves the way for a jurisprudence of free speech in the 21st century, the era of the Internet and social media," he told CPJ.

Pranesh Prakash, policy director at Bangalore-based Centre for Internet and Society, an organization that focuses on issues of digital pluralism, called the judgment "a moral victory." He said the decision "furthers free speech jurisprudence in India, but also in all those other countries where an Indian precedent would be important," including many countries in Asia, and places such as South Africa.

As part of the judgment, the court narrowed its reading of Section 79 of the IT Act, under which private parties could submit notice-and-takedown orders directly to Internet intermediaries. The court held that intermediary liability can be pursued only through a court order or other government order, reports said.

Liang told CPJ the judgment falls short in some areas. The Supreme Court's 123-page judgment kept in place Section 69A of the IT Act and Information Technology Rules 2009 that allows the government to block websites if the content in question has the potential to create communal discord, social disorder, or impact India's relations with other countries, according to news reports.

"I would say that if there is missed opportunity in the judgment, it is the clarification of the process of blocking websites. If Section 66A was found to be arbitrary in that its scope covered protected and unprotected speech, then the procedure for blocking websites as laid out in Section 69A is also beset with similar problems," Liang said.

According to Chinmayi Arun, research director at the Centre for Communications Governance at the National Law University in Delhi, the 2009 rules require blocking requests and implementation to be kept confidential. "This means that speakers will have no way of finding out that the government has ordered intermediaries to block their content. Speakers will therefore not be able to question unconstitutional blocking orders before the judiciary--this is a clear interference with their constitutional rights," she told CPJ via email, referring to online users who could fall foul of the law.

Academic in me: As a matter of legal & constitutional analysis, the SC judgment is at its best on #66A, but weaker on 69A & weakest on 79.
-- Pranesh Prakash (@pranesh_prakash) March 24, 2015

For some journalists, the decision highlights how virtually no national party in India, including the ruling Bharatiya Janata Party (BJP), is a champion of these rights. In a piece for independent news website Scroll, journalist Shivam Vij criticizes the current Narendra Modi-led government for missing an opportunity by not acting decisively to address the problematic law. "It has become routine for India's politicians to avoid taking tough political decisions if they can be left to the courts," he said. "When in power, the BJP is as happy as the Congress to have at its disposal laws that can muzzle voices of dissent."

Trivedi told CPJ he agreed that the previous and current government did little to address abuses of the law. Trivedi, who up until the court decision, faced charges under Section 66A, and had joined Singhal as a petitioner in the case, added: "This decision marks a strong first step." The cartoonist's lawyer, Vijay Hiremath, told CPJ that the Section 66A charge has now been removed, but Trivedi still faces charges under the National Emblem Act.

While the striking down of Section 66A is a step in the right direction, many challenges remain for press freedom in India. Karuna Nundy, an advocate at the Supreme Court of India, who was at the forefront of the legal challenge, told CPJ numerous colonial-era laws, particularly in India's penal code, continue to pose threats to free speech and press freedom in India. CPJ has long documented cases of Indian journalists being threatened with sedition, defamation, and laws that criminalize "outraging religious sentiment."

Actually, next step(s): a review of the constitutionality of sedition, challenge criminal defamation, constitutionalise civil defamation.
-- Gautam Bhatia (@gautambhatia88) March 24, 2015

But Nundy expressed optimism for the challenges ahead for press freedom in India and elsewhere. She said the judgment shows, "If you do the work, you take the trouble, you make the challenge, you can achieve the kinds of values that you stand for. That is the work that is the duty of all us as national citizens and citizens of the world."

[Geoffrey King, CPJ Internet Advocacy Coordinator, contributed to this report from Manila]

For more details visit https://cis-india.org/internet-governance/news/cpj-march-28-2015-sumit-galhotra-indias-landmark-online-speech-ruling-is-step-toward-greater-press-freedom

Three reasons why 66A verdict is momentous

pranesh — 2015-03-29T16:22:51Z

Earlier this week, the fundamental right to freedom of expression posted a momentous victory. The nation's top court struck down the much-reviled Section 66A of the IT Act — which criminalized communications that are "grossly offensive", cause "annoyance", etc — as "unconstitutionally vague", "arbitrarily, excessively, and disproportionately" encumbering freedom of speech, and likely to have a "chilling effect" on legitimate speech.

The article was published in the Times of India on March 29, 2015.

It also struck down Sec 118(d) of the Kerala Police Act on similar grounds. This is a landmark judgment, as it's possibly the first time since 1973's Bennett Coleman case that statutory law was struck down by the Supreme Court for violating our right to free expression.

The SC also significantly 'read down' the draconian 'Intermediary Guidelines Rules' which specify when intermediaries — website hosts and search engines — may be held liable for what is said online by their users. The SC held that intermediaries should not be forced to decide whether the online speech of their users is lawful or not. While the judgment leaves unresolved many questions — phrases like "grossly offensive", which the SC ruled were vague in 66A, occur in the Rules as well — the court's insistence on requiring either a court or a government order to be able to compel an intermediary to remove speech reduces the 'invisible censorship' that results from privatized speech regulation.

The SC upheld the constitutional validity of Sec 69A and the Website Blocking Rules, noting they had several safeguards: providing a hearing to the website owner, providing written reasons for the blocking, etc. However, these safeguards are not practised by courts. Na Vijayashankar, a legal academic in Bengaluru, found a blogpost of his — ironically, on the topic of website blocking — had been blocked by a Delhi court without even informing him. He only got to find out when I published the government response to my RTI on blocked websites. Last December, Github, Vimeo and some other websites were blocked without being given a chance to contest it. As long as lower courts don't follow "principles of natural justice" and due process, we'll continue to see such absurd website blocking, especially in cases of copyright complaints, without any way of opposing or correcting them.

There are three main outcomes of this judgment. First is the legal victory: SC's analysis while striking down 66A is a masterclass of legal clarity and a significant contribution to free speech jurisprudence. This benefits not only future cases in India, but all jurisdictions whose laws are similar to ours, such as Bangladesh, Malaysia and the UK.

Second is the moral victory for free speech. Sec 66A was not merely a badly written law, it became a totem of governmental excess and hubris. Even when political parties realized they had passed 66A without a debate, they did not apologize to the public and revise it; instead, they defended it. Only a few MPs, such as P Rajeev and Baijayant Panda, challenged it. Even the NDA, which condemned the law in the UPA era, supported it in court. By striking down this totem, the SC has restored the primacy of the Constitution. For instance, while this ruling doesn't directly affect the censor board's arbitrary rules, it does morally undermine them.

Third, this verdict shows that given proper judicial reading, the Indian constitutional system of allowing for a specific list of purposes for which reasonable restrictions are permissible, might in fact be as good or even better in some cases, than the American First Amendment. The US law baldly states that Congress shall make no law abridging freedom of speech or of the press. However, the US Supreme Court has never held the opinion that freedom of speech is absolute. The limits of Congress's powers are entirely judicially constructed, and till the 1930s, the US court never struck down a law for violating freedom of speech, and has upheld laws banning obscenity, public indecency, offensive speech in public, etc. However, in India, the Constitution itself places hard limits on Parliament's powers, and also, since the first amendment to our Constitution, allows the judiciary to determine if the restrictions placed by Parliament are "reasonable". In the judgment Justice Nariman quotes Mark Antony from Julius Caesar. He could also have quoted Cassius: "The fault, dear Brutus, is not in our stars, but in ourselves." Judges like Justice Nariman show the constitutional limits to free speech can be read both narrowly and judiciously: we can no longer complain about the Constitution as the primary reason we have so many restrictions on freedom of expression.

For more details visit https://cis-india.org/internet-governance/blog/times-of-india-march-29-2015-pranesh-prakash-three-reasons-why-66a-is-momentous

SECTION 66A: DELETE

praskrishna — 2015-03-30T01:32:18Z

The Supreme Court has killed a law that allowed the Government to control social media. What’s the Net worth of freedom hereafter?

The article by Kumar Anshuman was published in the Open Magazine on March 27, 2015. Sunil Abraham gave his inputs.

It was in 2009 that Section 66A was added as an amendment to India’s IT Act by the then UPA Government, but it took three years before it came to the notice of Shreya Singhal, a student of Law at Delhi University. By then, the Section had already earned itself a fair amount of notoriety for how much leeway it provided for the police and politicians to abuse the law.

The first time was in September 2011 when Musafir Baitha, a famous poet and government employee in Bihar, was suspended from his job because he criticised the state government on Facebook. An uproar followed, as people realised that freedom of speech in social media could now be construed as a criminal activity. Ambikesh Mahapatra, a professor at Jadavpur Unversity, became a target of the Mamata Banerjee government in April 2012 when he made cartoons of her. In September 2012, cartoonist Aseem Trivedi was arrested in Mumbai for a caricature of corruption under the UPA. But the case that caught Shreya Singhal’s attention was perhaps the most shocking of all. In November 2012, after Shiv Sena founder Bal Thackeray’s death, Shaheen Dhada, a Thane resident, posted a comment on her Facebook page criticising the near-total shutdown of Mumbai for the funeral. She wrote that Mumbai was shut not in respect, but fear, and that a leader should earn respect instead of forcing it out of people. Her friend Renu Srinivasan ‘liked’ this post. Hours later, both were arrested and booked under Section 66A. "I was shocked when I heard of this news," Singhal says, "I went and checked the post and there was nothing which could have provoked such an outrage." Her mother, Manali Singhal, a lawyer at the Supreme Court, advised her to file a Public Interest Litigation (PIL) against the Section.

The case continued for two years in the Supreme Court, while arbitrary arrests continued to be made. The UPA Government first defended 66A in court, taking the position that the current NDA Government took as well. It argued that the law would be used only in extreme cases where a person overreaches his or her online freedom to curtail the rights of others. Unconvinced, on 24 March, the apex court struck 66A down, saying that it could not allow such a law to exist on mere government assurances. The Court found several terms in the Act, such as ‘grossly offensive’ and ‘insult’, that were not clearly defined and could be interpreted arbitrarily to suit one’s convenience. ‘It is clear that Section 66A is unconstitutionally vague and it takes away a guaranteed freedom,’ observed the bench of Justice J Chelameswar and Justice Rohinton Nariman.

"We can celebrate the scrapping of Section 66A, but with caution," says Sunil Abraham, executive director at The Centre for Internet & Society in Bangalore. "[As for] those who are booked under Section 66A, the police also imposes different sections of the Indian Penal Code to justify their arrest." There are examples to support his statement, a recent one being the arrest of a Bareilly-based student, Gulrez Khan, who had posted a picture on Facebook of UP minister Azam Khan along with some derogatory comments about Hindus that he allegedly made. Gulrez Khan denied the comments, saying that his image was being maligned. The boy was arrested and booked. "People are making it out as a moment of triumph against the UP government. The fact is this boy had been arrested under Section 153A and 504 of the IPC along with Section 66A of the IT Act. We have said this even in the Supreme Court," says Gaurav Bhatia, a spokesperson of the Samajwadi Party and also a senior advocate.

But the import of scrapping Section 66A is that there is now one less law that can be misused, one that specifically stifles online freedom. "It’s an excellent judgment," says Lawrence Liang of Alternative Law Forum, Bangalore. “It couldn’t have been better than this. The fact that the apex court termed it ‘vague and overreaching’ signifies how important it was to scrap this."

Once the 122-page judgment arrived, there was a rush to welcome it—even by those who were responsible for Section 66A to begin with. Former Congress minister Kapil Sibal was one of them. "The Supreme Court has scrapped Section 66A to allow freedom of speech in cyberspace and we should welcome it,” he said. His former cabinet colleague P Chidambaram went to the extent of saying that it was poorly drafted. But the Congress as a party also warned of the possible misuse of this freedom, saying that it had woven various safeguards into Section 66A, including the condition that an arrest could only be made after an officer of the level of Inspector General or Superintendent of Police had okayed it. "The Supreme Court, it appears, has not found the safeguards sufficient," says Congress spokesperson and senior lawyer Abhishek Manu Singhvi. “It is now up to the current Government [to decide] how to strike the right balance between freedom of speech on one hand and [prevention of] abuse and hounding of groups or individuals through obscene or incorrigibly false information [on the other] to deter unbridled defamation in cyberspace." The Left parties, which were supporting the UPA Government back when Section 66A was imposed, have expressed happiness over the verdict. “The draconian provision of 66A was used to arrest people who express dissenting views against the Government and the State and to suppress criticism of those in power,” says senior CPM leader Sitaram Yechury.

The NDA Government has also welcomed the verdict. "The Government absolutely respects the right to freedom of speech and expression on social media and has no intention of curbing it," says Ravi Shankar Prasad, Union Minister for Information Technology.

But the scrapping of the Section leaves the Government with very little power to act against real abuse of online freedoms. Like Congress leader Milind Deora says, "An unregulated internet can be more dangerous than a regulated one." This argument is easily countered: there are enough provisions in existing laws that prevent a person from misusing freedom of speech. Says Apar Gupta, a senior lawyer, “Section 66A was a bailable section and arrests were made only with further imposition of IPC acts." While Article 19 (1) of the Constitution guarantees freedom of expression, at the same time Article 19 (2) provides a list of reasonable restrictions on freedom of speech. This is enough, experts believe, to curtail misuse of the internet. The court judgment also grants the Centre the freedom to enact any other law specific to the internet, provided it does not violate the provisions of freedom of speech as laid down by the Constitution of India.

This does, however, put a question mark on the necessity of Section 66A to begin with, if existing laws were quite enough to address freedom-of- speech abuses. "Section 66A of the IT Act, 2000, was enacted to prevent online abuse and hounding of groups and individuals, check the propagation of obscene or incorrigibly false information with the intent to create social divides and unrest, and deter unbridled defamation in cyberspace. This Act came into effect in 2008 when social media was yet evolving," says Singhvi. But experts disagree with this argument. "It is a perfect case of confusion and mixing up of facts,” says Sunil Abraham. “The purpose of this law was to curb unsolicited messages, spamming and harassing someone through fake identities in the internet space." He says that the Government claimed to borrow law provisions from the US, Canada and other countries, but the legislation was so poorly drafted that it didn’t have any teeth for action against spammers. "Even words like ‘unsolicited commercial mails’ were not included in the Act and that is the reason not a single person has been arrested in India for spam mails even after this Act came into being."

A section of the Indian legal fraternity believes that the country’s apex court should also have made a statement about the problem of spamming and harassment on the internet.

But there is bad news too. The same judgment that struck down Section 66A has upheld Section 69A of the IT Act as constitutionally valid. This allows the Government to block any website which it deems a direct threat to public order and security that might spread propaganda.

"In this case, the Government [can decide] to block a website without notifying [it with any] reason for it. If I am an internet user who wants to visit this site, I am also not notified why that website has been taken down. It is just the whims and fancies of a few officials in the Government, what to block and what not," says Apar Gupta. Using the section, the Union Government had blocked 32 websites just this January, saying that anti- national groups were using these websites for ‘jihadi propaganda’.

All major democracies have some form of legal net regulation. "Laws in foreign jurisdictions vary widely as per the guarantees of civil rights afforded to citizens in any legal system," adds Gupta. "The legislations of the United States, which borrowed certain phrases in Section 66A, have already been declared unconstitutional. In the United Kingdom, similar phrases have come under fierce critique and have been limited by guidelines issued by the office of prosecutions. In these jurisdictions, as in India, existing criminal law applies equally to online speech as much as to offline."

Also, while social media enthusiasts rejoice over their first big victory against restrictions on online freedom of speech, the internet is still a matter of great concern for any government, thanks to its reach and influence. The Union Government walks a thin line while dealing with instances of abuse on social media, and many believe India needs an IT Act drafted in proper consultation with all stakeholders.

For now, a young law student has found a place in the legal history of India. "It will always be remembered as Shreya Singhal vs Union of India," says Singhal.

INFORMATION TECHNOLOGY ACT

‘66A. Punishment for sending offensive messages through communication service, etc. Any person who sends, by means of a computer resource or a communication device:

Any information that is grossly offensive or has menacing character; or
Any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device;
Any electronic mail or message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages...

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

SUPREME COURT ORDER

‘In conclusion, we may summarise what has been held by us: Section 66A of the Information Technology Act, 2000 is struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2)’

For more details visit https://cis-india.org/internet-governance/news/open-magazine-march-27-2015-kumar-anshuman-section-66a-delete