https://cis-india.org These are the search results for the query, showing results 41 to 55. https://cis-india.org/internet-governance/blog/the-times-of-india-march-25-2015-sunil-abraham-internet-censorship-will-continue-in-opaque-fashion <b>A division bench of the Supreme Court has ruled on three sections of the Information Technology Act 2000 - Section 66A, Section 79 and Section 69A. The draconian Section 66A was originally meant to tackle spam and cyber-stalking but was used by the powerful elite to crack down on online dissent and criticism.</b> <p style="text-align: justify; ">The article by Sunil Abraham was published in the <a class="external-link" href="http://timesofindia.indiatimes.com/city/bengaluru/Internet-censorship-will-continue-in-opaque-fashion/articleshow/46681490.cms">Times of India</a> on March 25, 2015.</p> <hr /> <p style="text-align: justify; ">Section 79 was meant to give immunity to internet intermediaries for liability emerging from third-party speech, but it had a chilling effect on free speech because intermediaries erred on the side of caution when it came to deciding whether the content was legal or illegal.</p> <p style="text-align: justify; ">And Section 69A was the web blocking or internet censorship provision, but the procedure prescribed did not adhere to the principles of natural justice and transparency. For instance, when books are banned by courts, the public is informed of such bans but when websites are banned in India, there's no clear message from the Internet Service Provider.</p> <p style="text-align: justify; ">The Supreme Court upheld 69A, so web blocking and internet censorship in India will continue to happen in an opaque fashion which is worrying. But on 66A and 79, the landmark judgment protects the right to free speech and expression. It struck down 66A in entirety, saying the vague and imprecise language made the provision unconstitutional and it interfered with "the right of the people to know - the market place of ideas - which the internet provides to persons of all kinds". However, it only read down Section 79 saying "unlawful acts beyond what is laid down" as reasonable restrictions to the right to free speech in the Constitution "obviously cannot form any part" of the section. In short, the court has eliminated any additional restrictions for speech online even though it admitted that the internet is "intelligibly different" from traditional media and might require additional laws to be passed by the Indian Parliament."</p> <p> For more details visit <a href='https://cis-india.org/internet-governance/blog/the-times-of-india-march-25-2015-sunil-abraham-internet-censorship-will-continue-in-opaque-fashion'>https://cis-india.org/internet-governance/blog/the-times-of-india-march-25-2015-sunil-abraham-internet-censorship-will-continue-in-opaque-fashion</a> </p> No publisher sunil IT Act Censorship Freedom of Speech and Expression Internet Governance Chilling Effect 2015-03-26T02:07:28Z Blog Entry https://cis-india.org/internet-governance/news/the-hindu-march-24-2015-live-chat-win-for-free-speech <b>Join us for a live chat at 5.30 pm on SC striking down the Section 66A of the IT Act which had permitted the arrest of people for posting "offensive content" on the internet. </b> <p style="text-align: justify; ">The <a class="external-link" href="http://www.thehindu.com/news/national/live-chat-hope-for-free-speech/article7028037.ece">live chat transcript</a> was published in the Hindu on March 24, 2015. Geetha Hariharan participated in the live chat.</p> <hr style="text-align: justify; " /> <p class="body" style="text-align: justify; ">In a victory for proponents of free speech, the Supreme Court today struck down Section 66 A of the IT Act, which had permitted the arrest of people for posting “offensive content” on the internet. However, the Court upheld Section 69A, which allows the government to block websites based on a set of rules.</p> <p class="body" style="text-align: justify; ">What are your views on this ruling? Join us for a live chat today at 5.30 pm with:</p> <p class="body" style="text-align: justify; ">Gautam Bhatia, a practicing lawyer and author of "Offend, shock or disturb: Free Speech under the constitution" forthcoming in OUP.</p> <p class="body" style="text-align: justify; ">Geetha Hariharan, a Programme Officer at Centre for Internet and Society, focusing on Internet governance and freedom of expression.</p> <p class="body" style="text-align: justify; ">Lawrence Liang, Lawyer and researcher at Alternative Law Forum working on free speech.</p> <p class="body" style="text-align: justify; ">and G Ananth Krishnan, Coordinating Editor with The Hindu</p> <p class="body" style="text-align: justify; ">The Hindu: Hi all, welcome to the live chat on the Supreme Court's much-celebrated decision to strike down Section 66 A of the IT Act. There are caveats of course: For instance, the Court has upheld Section 69A, which allows the government to block websites based on a set of rules.</p> <p class="body" style="text-align: justify; ">5:30</p> <p class="body" style="text-align: justify; ">The Hindu: Welcome to Gautam Bhatia, a practicing lawyer and author of "Offend, shock or disturb: Free Speech under the constitution" forthcoming in OUP.</p> <p class="body" style="text-align: justify; ">5:31</p> <p class="body" style="text-align: justify; ">The Hindu: Geetha Hariharan, a Programme Officer at Centre for Internet and Society, focusing on Internet governance and freedom of expression.</p> <p class="body" style="text-align: justify; ">5:31</p> <p class="body" style="text-align: justify; ">The Hindu: Lawrence Liang, Lawyer and researcher at Alternative Law Forum working on free speech.</p> <p class="body" style="text-align: justify; ">and</p> <p class="body" style="text-align: justify; ">G Ananth Krishnan, Coordinating Editor with The Hindu</p> <p class="body" style="text-align: justify; ">5:33</p> <p class="body" style="text-align: justify; ">Comment From shraddha</p> <p class="body" style="text-align: justify; ">This is landmark judgement,though.</p> <p class="body" style="text-align: justify; ">5:34</p> <p class="body" style="text-align: justify; ">Comment From Mystiquethinker</p> <p class="body" style="text-align: justify; ">I would like to ask you one thing was that necessary to abolish Sec66 A completely.</p> <p class="body" style="text-align: justify; "> </p> <p class="body" style="text-align: justify; ">Gautam Bhatia: Yes, in my opinion it was. The terms of S. 66A - such as "grossly offensive" - went beyond what is constitutionally permitted by Article 19(2). It was impossible to "sever" these terms from the rest of the section. In such cases, the Court has no alternative but to strike down the section in its entirety.</p> <p class="body" style="text-align: justify; ">5:34</p> <p class="body" style="text-align: justify; ">Comment From Rohan</p> <p class="body" style="text-align: justify; ">I'm particularly interested in the relevance of Sec 66 A in West Bengal. Over the last few years the TMC government has massively curbed freedom of speech. Do you think this will deter the ruling party?</p> <p class="body" style="text-align: justify; ">5:35</p> <p class="body" style="text-align: justify; ">The Hindu: Gautam, Geetha and Lawrence would you like to respond?</p> <p class="body" style="text-align: justify; ">5:35</p> <p class="body" style="text-align: justify; ">Lawrence Liang: typing</p> <p class="body" style="text-align: justify; ">5:37</p> <p class="body" style="text-align: justify; ">Comment From kc</p> <p class="body" style="text-align: justify; ">so does this mean its okay for anyone to say anything over the internet? Does the internet need separate rules? Anything that cant be said over a microphone or using any media shouldn't be said over the internet either.</p> <p class="body" style="text-align: justify; "> </p> <p class="body" style="text-align: justify; ">Gautam Bhatia: No, the standard penal laws - against defamation, hate speech (S. 153A), religious incitement (S. 295A) continue to apply. Yes, the argument that the internet needs separate rules when it comes to the *content* of speech was precisely what was rejected by the Court.</p> <p class="body" style="text-align: justify; ">5:38</p> <p class="body" style="text-align: justify; ">Comment From Jai</p> <p class="body" style="text-align: justify; ">I would like to ask what when people cross the boundary of decency when they post comments on social network?</p> <p class="body" style="text-align: justify; ">5:38</p> <p class="body" style="text-align: justify; ">Lawrence Liang: So the court goes into this question of whether 66A needed to go in its entirely or could it be saved. The ASG suggested that it could be read down by the courts, and offered a range of ways it coudl have been done. But the court responded to say that the restrictions in 19(2) are clear, and if the impugned law does not fall within it, then to ask for a reading that incorporates other principles only in order to save it would be to do violence to the language of Sec. 66A</p> <p class="body" style="text-align: justify; "> </p> <p class="body" style="text-align: justify; ">In para 49 they say</p> <p class="body" style="text-align: justify; "> </p> <p class="body" style="text-align: justify; ">What the learned Additional Solicitor General is asking us to do is not to read down Section 66A – he is asking for a wholesale substitution of the provision which is obviously not possible.</p> <p class="body" style="text-align: justify; ">5:38</p> <p class="body" style="text-align: justify; ">Geetha Hariharan: @Mystiquethinker: Section 66A makes it a criminal offense to make any post on the Internet, that might “grossly offend” or be “menacing”. If you happen to post false information (like a spoof), with the purpose of annoying, inconveniencing, criminally intimidating or causing hatred, you can be criminalized for that, too. However, the terms "annoyance, inconvenience, hatred, ill-will", etc. are vague. Section 66A does not define them. Applying the law to misuse it becomes extremely easy then - and this has happened.</p> <p class="body" style="text-align: justify; ">5:38</p> <p class="body" style="text-align: justify; ">Comment From Guest</p> <p class="body" style="text-align: justify; ">The Supreme Court has struck a delicate balance</p> <p class="body" style="text-align: justify; ">5:39</p> <p class="body" style="text-align: justify; ">Comment From neerulal</p> <p class="body" style="text-align: justify; ">It's a great step on part of judiciary. Infact it's the judicial activism that washed much of the waste created by legislature. Hope it was as experienced and sensible as judiciary..</p> <p class="body" style="text-align: justify; ">5:39</p> <p class="body" style="text-align: justify; ">Comment From shraddha</p> <p class="body" style="text-align: justify; ">according to me it's imp to important to amend it completely... coz it directly infringes the article19(a) right to freedom of speech and expression.</p> <p class="body" style="text-align: justify; ">5:40</p> <p class="body" style="text-align: justify; ">Comment From Danish Sheikh</p> <p class="body" style="text-align: justify; ">why do you think the Court is so sparse in its analysis of the website blocking rules as opposed to 66A?</p> <p class="body" style="text-align: justify; ">5:40</p> <p class="body" style="text-align: justify; ">Gautam Bhatia: @ Jai - The boundaries of decency will be determined by our existing penal laws - Sections 295A, 153A and the rest.</p> <p class="body" style="text-align: justify; ">5:40</p> <p class="body" style="text-align: justify; ">The Hindu: @gananth would you like to respond to the last one?</p> <p class="body" style="text-align: justify; ">5:41</p> <p class="body" style="text-align: justify; ">The Hindu: on 69A</p> <p class="body" style="text-align: justify; ">Comment From Guest</p> <p class="body" style="text-align: justify; ">Despite striking down Section 66A, Article 19(2) provides sufficient grounds for the government to protect public peace. It is comprehensive and is applicable to all media. Therefore, in a way, Section 66A was not required at all.</p> <p class="body" style="text-align: justify; ">5:42</p> <p class="body" style="text-align: justify; ">Lawrence Liang: Danish, you are right. One wishes that the court had paid as much attention to the Blocking orders as they did 66A. I feel they have gone on a technical reading of the procedures established to conclude that it is at least not as arbitrary as 66A, but fail to acknowledge that the ways the orders have been operationalised completely lack transparency and are hence arbitrary</p> <p class="body" style="text-align: justify; ">5:42</p> <p class="body" style="text-align: justify; ">Comment From Eric</p> <p class="body" style="text-align: justify; ">I would say yes. The best and most practical control of social media comes from the maturity of its users. We can make a useful presumption that useless content will simply not be shared substantially. Instead of making laws, we need to make mature citizens and users of social media.</p> <p class="body" style="text-align: justify; ">5:42</p> <p class="body" style="text-align: justify; ">Comment From saurav</p> <p class="body" style="text-align: justify; ">what are the others instruments available with govt. to curb cyber crimes ???</p> <p class="body" style="text-align: justify; ">5:42</p> <p class="body" style="text-align: justify; ">Gautam Bhatia: @ Guest - True, but you still need a *law* that would authorise the police and other agencies to implement the restrictions under Article 19(2) in specific situations. That is why we have speech regulating provisions in the Indian Penal Code.</p> <p class="body" style="text-align: justify; ">5:43</p> <p class="body" style="text-align: justify; ">Comment From shashi</p> <p class="body" style="text-align: justify; ">I think sec 66A should be amended and specific definition of "offence" must be brought in, because there needs to reasonable restrictions under article 19(2). But having such vague clauses shows how it can be misused by people in power.</p> <p class="body" style="text-align: justify; ">5:44</p> <p class="body" style="text-align: justify; ">Geetha Hariharan: @saurav: As Gautam said, the IPC's provisions such as Sections 153A and 295A are available to the government as limitations on speech. In addition, there are other offences in the IT Act (Sections 66B to 67B).</p> <p class="body" style="text-align: justify; ">5:44</p> <p class="body" style="text-align: justify; ">Comment From Mystiquethinker</p> <p class="body" style="text-align: justify; ">In my point of view there should be few limitation . You cannot say anything to anybody. I am afraid what will be its result in future.</p> <p class="body" style="text-align: justify; ">5:45</p> <p class="body" style="text-align: justify; ">Gautam Bhatia: @ Shashi The Supreme Court has held before - in S. Rangarajan's case - that causing offence doe not fall within Article 19(2). In fact, quoting the European Court of Human Rights, the Supreme Court said that the freedom of speech is nothing without the freedom to "offend, shock or disturb." That's actually why 19(2) is so specifically worded, and restricts itself to "public order", "decency or morality", "incitement to an offence", "defamation" etc.</p> <p class="body" style="text-align: justify; ">5:45</p> <p class="body" style="text-align: justify; ">Lawrence Liang: @Mystiquethinker To add to the previous point, the court also did consider whether they could apply the doctrine of severability but concluded that because "The present is a case where, as has been held above, Section 66A does not fall within any of the subject matters contained in Article 19(2) and the possibility of its being applied for purposes outside those subject matters is clear. We therefore hold that no part of Section 66A is severable and the provision as a whole must be declared unconstitutional."</p> <p class="body" style="text-align: justify; ">5:47</p> <p class="body" style="text-align: justify; ">Comment From Ashish</p> <p class="body" style="text-align: justify; ">is it means??Now morphed girls photo posting ,revealing individual secret to harm him/her physcologicaly is allowed publicly.</p> <p class="body" style="text-align: justify; "> </p> <p class="body" style="text-align: justify; ">Lawrence Liang: Not at all. There are still other laws including obscenity laws and privacy laws under the IT act that deal with this</p> <p class="body" style="text-align: justify; ">5:47</p> <p class="body" style="text-align: justify; ">The Hindu: What happens to all the cases already booked? Is the verdict retrospective?</p> <p class="body" style="text-align: justify; ">5:48</p> <p class="body" style="text-align: justify; ">Gautam Bhatia: @ Ashish No. There is the Indecent Representation of Women Act, which prohibits that. There are also laws against blackmail and criminal intimidation under the IPC.</p> <p class="body" style="text-align: justify; ">5:48</p> <p class="body" style="text-align: justify; ">Comment From Cherry</p> <p class="body" style="text-align: justify; ">A remarkable judgement to free their speeches n voices</p> <p class="body" style="text-align: justify; "> </p> <p class="body" style="text-align: justify; ">Lawrence Liang: absolutely, an important first step towards a free jurisprudence of the 21st century</p> <p class="body" style="text-align: justify; ">Comment From Sarpanch</p> <p class="body" style="text-align: justify; ">66A declared unconstitutional - good. But, a religious hate-filled reaction will it still attract 295 IPC.</p> <p class="body" style="text-align: justify; "> </p> <p class="body" style="text-align: justify; ">Lawrence Liang: yes and 153A of the IPC amongst others</p> <p class="body" style="text-align: justify; ">Comment From Geek</p> <p class="body" style="text-align: justify; ">If this is all about facebook, remove it and everyhing is fine!</p> <p class="body" style="text-align: justify; "> </p> <p class="body" style="text-align: justify; ">Lawrence Liang: sorry, but thats no longer an option after this judgment :)</p> <p class="body" style="text-align: justify; ">5:49</p> <p class="body" style="text-align: justify; ">Gautam Bhatia: @ TheHindu: to the best of my knowledge, no. A judgment is not ordinarily retrospective. Subject to correction.</p> <p class="body" style="text-align: justify; ">5:49</p> <p class="body" style="text-align: justify; ">Comment From Neel</p> <p class="body" style="text-align: justify; ">Doesn't the line of reasoning adopted by the SC throw open the possibility of other restrictive laws being questioned too?</p> <p class="body" style="text-align: justify; ">Comment From Eric</p> <p class="body" style="text-align: justify; ">There is plenty of scope for an independent regulator including representatives of social media and internet users to regulate the restrictions under Art 19(2). Giving the police or any other governmental agency the power to prosecute potential offenders involves the unnecessary risk of political bias which underlies the SC's judgment. Clearly, severing the provision would have been messy. Moreover, the judgment is an unapologetic thrust in the direction of protecting fundamental rights.</p> <p class="body" style="text-align: justify; "> </p> <p class="body" style="text-align: justify; ">Comment From shashi</p> <p class="body" style="text-align: justify; ">@Gautam one must not forget how social media can be used to incite violence against a perticular community and force exodus (as happened in Bangalore few years back). So, there has to be reasonable restrictions. Else the government would look helpless in such incidents</p> <p class="body" style="text-align: justify; ">5:50</p> <p class="body" style="text-align: justify; ">Comment From Cherry</p> <p class="body" style="text-align: justify; ">i agree with the comment of mystiquethinker</p> <p class="body" style="text-align: justify; ">5:50</p> <p class="body" style="text-align: justify; ">Comment From Panky</p> <p class="body" style="text-align: justify; ">Excellent decision from Court!!!!</p> <p class="body" style="text-align: justify; ">5:51</p> <p class="body" style="text-align: justify; ">The Hindu: Gautam, a question for you from Shashi</p> <p class="body" style="text-align: justify; ">5:51</p> <p class="body" style="text-align: justify; ">Gautam Bhatia: @ Neel Yes, it does. For instance, crucial to the Supreme Court's reasoning is a distinction between incitement and advocacy, and a need for proximity between speech and the 19(2) restrictions. Now if you look at the cases where the Supreme Court upheld 295A (1957) and sedition (1962), it did so on the specific understanding that there was no need for proximity - a mere "tendency" was enough. But in this case, the Supreme Court specifically says that the tendency must be to *imminent public disorder*. Now that severely undermines the foundation of 295A and especially sedition, because it's really hard to argue that spreading disaffection against the government has an imminent relationship with public disorder. So yes - I think it might just be time to try and have some of those old judgments reviewed!</p> <p class="body" style="text-align: justify; ">5:51</p> <p class="body" style="text-align: justify; ">Comment From Shanmukh</p> <p class="body" style="text-align: justify; ">@ Eric. Social censorship works in a society where everybody is educated and mature. India isn't quite there yet. But this 66A was abused and it's good that it is going away.</p> <p class="body" style="text-align: justify; "> </p> <p class="body" style="text-align: justify; ">Lawrence Liang: We perhaos need to be careful about the argument of whether India is ready. That was the same logic that colonial authorities use to introduce a number of speech regulating laws. Worth having a look at Lala Lajpat Rai's reply to the Indian Cinematograph Committee</p> <p class="body" style="text-align: justify; ">5:52</p> <p class="body" style="text-align: justify; ">Gautam Bhatia: @ Shashi Yes, I agree. But 66A went far beyond those reasonable restrictions. The Constitution allows for reasonable restrictions in the interests of public order, and we have a long series of cases interpreting what that means. I think that would speak to your concern.</p> <p class="body" style="text-align: justify; ">5:53</p> <p class="body" style="text-align: justify; ">Gautam Bhatia: @ Shanmukh: See also the arguments that Raja Rammohun Roy made as fas back as 1823 about the freedom of the press, when the colonial authorities were using the same argument about Indians not being ready.</p> <p class="body" style="text-align: justify; ">5:53</p> <p class="body" style="text-align: justify; ">Comment From Guest</p> <p class="body" style="text-align: justify; ">The government has Section 69A to prevent mass exodus type situations. Am I right?</p> <p class="body" style="text-align: justify; "> </p> <p class="body" style="text-align: justify; ">Lawrence Liang: Yes, and that is an important concern but you must note that even during the NE exodus, the government exceeded its brief and even blocked websites that were trying to quell rumous</p> <p class="body" style="text-align: justify; ">Comment From Sam</p> <p class="body" style="text-align: justify; ">Yesterday's column from readers editor had some suggestions on stopping rumors being spread via SM. I think, those kind of methods will go a long way in stopping falsehoods being spread than banning content and sections like 66A</p> <p class="body" style="text-align: justify; ">5:54</p> <p class="body" style="text-align: justify; ">Comment From Eric</p> <p class="body" style="text-align: justify; ">@Lawrence Liang. Precisely. One has to be cautious of underestimating or belittling the input from regular users of the subject. Giving more deliberative platforms can only encourage participation and education of its users.</p> <p class="body" style="text-align: justify; ">5:54</p> <p class="body" style="text-align: justify; ">Comment From Guest</p> <p class="body" style="text-align: justify; ">A case will be governed by the law applicable on the date the offence was committed, unless otherwise stated. Therefore, I think the ruling will be prospective only</p> <p class="body" style="text-align: justify; ">5:55</p> <p class="body" style="text-align: justify; ">Comment From Neel</p> <p class="body" style="text-align: justify; ">What is the weight that precedent has in our legal system? For instance what will it take for a judge to say the previous judgements on sedition are too restrictive?</p> <p class="body" style="text-align: justify; "> </p> <p class="body" style="text-align: justify; ">Lawrence Liang: We are totally a precedent based system, but preedents can be enabling and restrictive, so the way it develops is through slow processes of comparing and distinguishing</p> <p class="body" style="text-align: justify; ">5:55</p> <p class="body" style="text-align: justify; ">Comment From Neel</p> <p class="body" style="text-align: justify; ">What is the weight that precedent has in our legal system? For instance what will it take for a judge to say the previous judgements on sedition are too restrictive?</p> <p class="body" style="text-align: justify; ">5:55</p> <p class="body" style="text-align: justify; ">Gautam Bhatia: @ Guest Yes, I think that's correct.</p> <p class="body" style="text-align: justify; ">5:55</p> <p class="body" style="text-align: justify; ">Comment From Shiva</p> <p class="body" style="text-align: justify; ">What does the judgement imply for posting adult/sexually explicit/pornographic content online?</p> <p class="body" style="text-align: justify; "> </p> <p class="body" style="text-align: justify; ">Lawrence Liang: It does not affect that: We have obscenity laws under the IPC as well as special obscenity provisions within the IT act that deal with it</p> <p class="body" style="text-align: justify; ">5:56</p> <p class="body" style="text-align: justify; ">Comment From Utkarsh</p> <p class="body" style="text-align: justify; ">SC proves how powerful our democracy is. It is good that citizens are free to post anything they want now, but shouldn't we try to teach the people their responsibilty with this freedom?</p> <p class="body" style="text-align: justify; ">5:56</p> <p class="body" style="text-align: justify; ">The Hindu: Geetha your thoughts on that?</p> <p class="body" style="text-align: justify; ">5:56</p> <p class="body" style="text-align: justify; ">Comment From Vikas</p> <p class="body" style="text-align: justify; ">Rather debating we should demand action on such people who in real sense do the offending act via speech and social media, arresting some body who has just shared some views is not right.....</p> <p class="body" style="text-align: justify; ">5:56</p> <p class="body" style="text-align: justify; ">Gautam Bhatia: @Neel It's a hard question. I don't think a Supreme Court bench will be able to directly overrule the sedition case. That was decided by a five-judge bench, and so you;d need a seven-judge bench to actually overturn it. I think what we can try and argue is that in the 50 years since the Court upheld sedition, the foundations of that decision have been so greatly undermined by succeeding cases, that at least in 2015, sedition is unconstitutional. It's a hard argument to pull off, but I think it's worth a shot.</p> <p class="body" style="text-align: justify; ">5:57</p> <p class="body" style="text-align: justify; ">Comment From Guest</p> <p class="body" style="text-align: justify; ">The population has moral responsibility to not spread rumours over SM &amp; the citizens need to be mature enough to not take everything too personally. You have the choice of ignoring what you deem offensive. If any of the above fail, it is because the society has failed, not the legal system.</p> <p class="body" style="text-align: justify; ">Comment From zenmist</p> <p class="body" style="text-align: justify; ">what if i get cyber bullied ! Do I have any recourse now ?</p> <p class="body" style="text-align: justify; ">5:59</p> <p class="body" style="text-align: justify; ">Comment From kkamal</p> <p class="body" style="text-align: justify; ">implementation still a matter of concern</p> <p class="body" style="text-align: justify; "> </p> <p class="body" style="text-align: justify; ">Lawrence Liang: Certainly, and esp for the intermediary guidelines. Often when a court reads down a provision, rather than striking it down, there is a gap between the law and enforcement</p> <p class="body" style="text-align: justify; ">Gautam Bhatia: @ Zeminist yes - for instance, under criminal intimidation provisions in the IPC.</p> <p class="body" style="text-align: justify; ">6:00</p> <p class="body" style="text-align: justify; ">Comment From Guest</p> <p class="body" style="text-align: justify; ">Can we not issue guidelines for social sites like facebook twitter and others to filters such content from being posted(I think it'll show some pop-up in general.?)</p> <p class="body" style="text-align: justify; ">6:00</p> <p class="body" style="text-align: justify; ">Geetha Hariharan: @Utkarsh: Perhaps. However, the freedoms enshrined in out Constitution say our freedom of speech and expression can be restricted by the government only under specific circumstances: see http://indiankanoon.org/doc.... The _government's_ restrictions on speech must abide by these - whether they teach citizens what is (morally) right to speak or not is different from what we have a right to say. As Gautam has mentioned before, Article 19(1)(a) gives us the right to "offend, shock or disturb".</p> <p class="body" style="text-align: justify; ">6:00</p> <p class="body" style="text-align: justify; ">Gautam Bhatia: @ Guest - the problem with filters are that they are *invariably* over-inclusive.</p> <p class="body" style="text-align: justify; ">6:01</p> <p class="body" style="text-align: justify; ">Comment From Vibhu</p> <p class="body" style="text-align: justify; ">This decision once again upheld citizen's belief in the constitution and the Supreme Court. But this power also comes with an added responsibility to the citizens to be sensitive towards the emotions of communities and other sections of the country.</p> <p class="body" style="text-align: justify; ">Gautam Bhatia: @Vibhu Absolutely. This is why it's important to make a distinction between two important ideas - the fact that it is your *right* to do or speak in a certain manner doesn't always mean that you *ought* to speak in that manner.</p> <p class="body" style="text-align: justify; ">6:02</p> <p class="body" style="text-align: justify; ">Comment From Negi Gaurav</p> <p class="body" style="text-align: justify; ">Striking down 66A is good for democratic values and citizenry expression. It will enhance the power of common mass and will affect political procedure. Free speech is fundamental right of Indian citizen , However judicious use of right is necessary to check hate crime.</p> <p class="body" style="text-align: justify; ">6:03</p> <p class="body" style="text-align: justify; ">Comment From Guest</p> <p class="body" style="text-align: justify; ">We appreciate the verdict... It was much needed but there still is a question still unanswered, why do we need judicial activism to strike all those laws that are pushing us back by several decades. If such laws are always have to be decided by Supreme court, what do we have legislature for?</p> <p class="body" style="text-align: justify; ">6:03</p> <p class="body" style="text-align: justify; ">Comment From Pankaj</p> <p class="body" style="text-align: justify; ">A welcome judgement by SC today. Section 66(A) was indeed an uncontitutional provision which accounted for few arrests considering the arbitrary and vague terminologies. But, certainly regulation of speech over internet should be regulated in a more robust and comprehensive manner</p> <p class="body" style="text-align: justify; ">6:04</p> <p class="body" style="text-align: justify; ">Gautam Bhatia: @ Guest To be fair to our parliaments, legislatures all over the world restrict speech, and it falls to the Court to correct them. Legislatures are composed of human beings like us, and often, because of the position they are in, they tend to overestimate the dangers of free speech, and underestimate its importance. But that's why we have a constitutional court. :)</p> <p class="body" style="text-align: justify; ">The Hindu: If taken to its logical extreme, does the SC verdict mean that anything goes on the internet?</p> <p class="body" style="text-align: justify; ">6:07</p> <p class="body" style="text-align: justify; ">Comment From Serendipity</p> <p class="body" style="text-align: justify; ">@The Hindu: Free Speech is not absolute. There are always restrictions. It depends on how the law is drafted.</p> <p class="body" style="text-align: justify; "> </p> <p class="body" style="text-align: justify; ">Comment From Vibhu</p> <p class="body" style="text-align: justify; ">@Hindu. No not anything goes on the internet. All elements like pornography, abuse, etc which are illegal in general sense also applies to the internet.</p> <p class="body" style="text-align: justify; ">6:08</p> <p class="body" style="text-align: justify; ">Gautam Bhatia: @TheHindu No. The SC expressly says that speech which bears a proximate relationship to any of the 19(2) categories may legitimately be restricted. Many of the speech-regulating provisions of the IPC do just that. These provisions are agnostic towards the medium - for instance, defamation will be punishable whether it happens offline, or over the internet.</p> <p class="body" style="text-align: justify; ">6:08</p> <p class="body" style="text-align: justify; ">Comment From charan malhotra</p> <p class="body" style="text-align: justify; ">our Sc lifted great barricade in the freedom of speech.. but even if any one explicit n posts the images of others n morphing ? then what could be the next step to take an action on those convicts?</p> <p class="body" style="text-align: justify; "> </p> <p class="body" style="text-align: justify; ">Geetha Hariharan: @charan: Other provisions are still in operation under the IT Act and IPC that can be used. For example: Section 66D (cheating by personation), 66E , etc. I would urge you to look at Section 67, 67A and 67B of IT Act as well.</p> <p class="body" style="text-align: justify; ">Comment From manoharan</p> <p class="body" style="text-align: justify; ">right to experss includes right to go online in thought</p> <p class="body" style="text-align: justify; ">6:11</p> <p class="body" style="text-align: justify; ">Geetha Hariharan: @TheHindu: No. Restrictions placed under one or more of the conditions under Article 19(2) of the Constitution are legitimate (online and offline). Also, offences under the IPC (Sections 153A, 295A, 292) continue to apply. As also the offences under the IT Act, which target online speech (Sections 66E, 67, 67A and 67B, for instance).</p> <p class="body" style="text-align: justify; ">6:11</p> <p class="body" style="text-align: justify; ">Gautam Bhatia: By the way, as an aside, I'd like to add - this judgment is extremely lucid and accessible, and really eloquent at times. Do read it. 123 pages sounds like a lot, but it's easy reading - shouldn't take more than an hour.</p> <p class="body" style="text-align: justify; "> </p> <p class="body" style="text-align: justify; ">6:09</p> <p class="body" style="text-align: justify; ">Lawrence Liang: @The Hindu Not at all, we still have all of the good old speech restrictive laws including in the IPC, it is important to remember that even in the past 66A cases, they have rarely been filed in islation, and are usually accompanied by 124A, 153A or 295A of the IPC</p> <p class="body" style="text-align: justify; ">6:09</p> <p class="body" style="text-align: justify; ">Comment From Dhruv</p> <p class="body" style="text-align: justify; ">A Great Decision to uphold Free Speech. We do not want to be Police State like CHINA but our Indian legislators are slowly taking the country far from Democracy and denying civil rights to civilians. Great decision from Supreme Court. This is a lesson for the indian politicians who think they can play with our fundamental rights and impose their narrow mindset on us.</p> <p class="body" style="text-align: justify; ">The Hindu: Thank you all so much for joining the chat.</p> <p class="body" style="text-align: justify; ">6:14</p> <p class="body" style="text-align: justify; ">The Hindu: The panellists and readers!</p> <p class="body" style="text-align: justify; ">6:15</p> <p class="body" style="text-align: justify; ">Geetha Hariharan: Thanks!</p> <p class="body" style="text-align: justify; ">6:15</p> <p class="body" style="text-align: justify; ">Gautam Bhatia: Thank you!</p> <p class="body" style="text-align: justify; ">6:15</p> <p class="body" style="text-align: justify; ">The Hindu: And for making this a lively and informative debate. Watch this space for more live chats on emerging issues.</p> <p> For more details visit <a href='https://cis-india.org/internet-governance/news/the-hindu-march-24-2015-live-chat-win-for-free-speech'>https://cis-india.org/internet-governance/news/the-hindu-march-24-2015-live-chat-win-for-free-speech</a> </p> No publisher praskrishna IT Act Censorship Freedom of Speech and Expression Internet Governance Chilling Effect 2015-03-26T16:07:06Z News Item https://cis-india.org/internet-governance/news/hindustan-times-march-25-2015-vishakha-saxena-i-dare-you-i-double-dare-you <b>Users across social media platforms on Tuesday welcomed the Supreme Court's scrapping of the controversial Section 66A of the Information Technology Act, hailing it as a measure that will strengthen freedom of expression online.</b> <p style="text-align: justify; ">The article by Vishakha Saxena published in the <a class="external-link" href="http://www.hindustantimes.com/india-news/i-dare-you-i-double-dare-you-social-media-celebrates-sec-66a-verdict/article1-1330012.aspx">Hindustan Times</a> on March 25, 2015 quotes Pranesh Prakash.</p> <hr /> <p style="text-align: justify; ">"This is the first SC judgment since the 60s to plainly strike down a law for free expression violation! #66A," tweeted Pranesh Prakash, policy director at the Centre for Internet and Society in Bengaluru.</p> <p style="text-align: justify; ">Prakash, who tweeted "I AM ECSTATIC!!" minutes after the judgement, was one of the most vocal critics of Section 66A - which made offensive comments online punishable with jail terms - and played a key role in creating awareness about freedom of expression.</p> <p style="text-align: justify; ">Apar Gupta, a representative of the People's Union for Civil Liberties (one of the parties that petitioned the Supreme Court against section 66A), also took to Twitter to jubilantly declare victory.</p> <p style="text-align: justify; ">"My TL is a little crazy right now…This decision means a lot to me. Thank you. I am smiling." he posted.</p> <p style="text-align: justify; ">Supreme Court advocate Karuna Nundy, who too represents PUCL, expressed her happiness on Facebook.</p> <p>The top court struck down the provision, described as draconian by many internet rights activists, describing it as "unconstitutional" and a "restriction on free speech".</p> <p>Section 66A, incorporated through an amendment of the IT Act in 2009, prohibited the sending of information of a "grossly offensive" or "menacing" nature through communication devices. It was used by several states to arrest people over posts on social media that officials claimed were "seditious" or "communally sensitive".</p> <p>Discussions on social media against the provision had gained pace hours ahead of the court's ruling. Twitter, in fact, was abuzz as thousands used the hashtag #No66A to voice their opinions.</p> <p>Reddit, known for being unabashed with opinion and language, wasn’t far behind. The first post announcing the verdict was upvoted 96% and garnered 460 points within four hours.</p> <p>"Supreme Court zindabad! Now can we abuse Azam Khan without any fear?" commented user Apunebolatumerilaila.</p> <p>Another user, Indian_galileo, wrote, "FINALLY, SOME SENSE HAS PREVAILED PRAISE THE OVERLORDS AT SC THANK YOU SC THANK YOU VERY VERY MUCH."</p> <p> For more details visit <a href='https://cis-india.org/internet-governance/news/hindustan-times-march-25-2015-vishakha-saxena-i-dare-you-i-double-dare-you'>https://cis-india.org/internet-governance/news/hindustan-times-march-25-2015-vishakha-saxena-i-dare-you-i-double-dare-you</a> </p> No publisher praskrishna IT Act Censorship Freedom of Speech and Expression Internet Governance Chilling Effect 2015-03-26T16:33:55Z News Item https://cis-india.org/internet-governance/news/boston-globe-march-25-2015-annie-gowen-ruling-in-india-shields-web-posts <b>The Supreme Court in India struck down a section of its country’s information technology act Tuesday that had made it illegal for anyone to spread ‘‘offensive messages’’ on electronic devices and resulted in arrests over posts on Facebook and other social media.</b> <p style="text-align: justify; ">This is the modified version of the article originally published by <a class="external-link" href="http://www.washingtonpost.com/world/indias-supreme-court-strikes-down-law-that-led-to-facebook-arrests/2015/03/24/9ca54e3c-608f-46d7-a32a-57918fdd9c35_story.html">Washington Post</a> and mirrored in <a class="external-link" href="http://www.bostonglobe.com/news/world/2015/03/24/india-supreme-court-strikes-down-law-that-led-facebook-arrests/ssYxzhVXjSEkYgS8W4qwDN/story.html">Boston Globe</a>. Sunil Abraham is quoted. <i>Picture by Manjunath Kiran, AFP.</i></p> <hr style="text-align: justify; " /> <p style="text-align: justify; ">The Supreme Court in India struck down a section of its country’s information technology act Tuesday that had made it illegal for anyone to spread ‘‘offensive messages’’ on electronic devices and resulted in arrests over posts on Facebook and other social media.</p> <p style="text-align: justify; ">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.</p> <p style="text-align: justify; ">‘‘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.’’</p> <p style="text-align: justify; ">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.</p> <p style="text-align: justify; ">Sunil Abraham, the executive director of the Center for Internet and Society in Bangalore, said that the section was originally intended to protect citizens from electronic spam, but it did not turn out that way.</p> <p style="text-align: justify; ">‘‘Politicians who didn’t like what people were saying about them used it to crack down on online criticism,’’ he said.</p> <p style="text-align: justify; ">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 an artist who drew a set of cartoons lampooning the government and Parliament.</p> <p style="text-align: justify; ">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 that 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.</p> <p style="text-align: justify; ">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.</p> <p style="text-align: justify; ">‘‘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.’’</p> <p style="text-align: justify; ">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.</p> <p style="text-align: justify; ">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.</p> <p style="text-align: justify; ">In 2014, 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 of India blocked a planned television debut of a documentary film on a 2012 gang rape case, ‘‘India’s Daughter.’’</p> <p style="text-align: justify; ">Along with India, other nations have sharply increased monitoring and crackdowns on perceived insulting Web posts in recent years.</p> <p style="text-align: justify; ">Across the Gulf Arab states, dozens of activists have been arrested for social media posts considered insulting to the country’s rulers or tarnishing the national image.</p> <p> For more details visit <a href='https://cis-india.org/internet-governance/news/boston-globe-march-25-2015-annie-gowen-ruling-in-india-shields-web-posts'>https://cis-india.org/internet-governance/news/boston-globe-march-25-2015-annie-gowen-ruling-in-india-shields-web-posts</a> </p> No publisher praskrishna IT Act Censorship Freedom of Speech and Expression Internet Governance Chilling Effect 2015-03-27T00:38:34Z News Item https://cis-india.org/internet-governance/news/voice-of-america-march-24-2015-anjana-pascricha-indias-online-freedom-advocates-hail-court-ruling-on-free-speech <b>Online freedom advocates in India are hailing a court ruling that struck down a controversial law seen as infringing free speech on the Internet. But in a country expected to have the world’s largest number of web users by 2018, some concerns about net censorship remain.</b> <p style="text-align: justify; ">The blog post by Anjana Pasricha was published by <a class="external-link" href="http://www.voanews.com/content/online-freedom-advocates-in-india-welcome-court-ruling-on-free-speech/2693941.html">Voice of America</a> on March 24, 2015. Sunil Abraham is quoted.</p> <hr /> <p style="text-align: justify; ">The 24-year old law student, Shreya Singhal, who spearheaded the legal battle for overturning the harsh law, said it was the arrest of two young women in 2012 for a seemingly innocuous Facebook post that prompted her to petition the Supreme Court. One woman had criticized a shutdown in Mumbai after the death of a Hindu nationalist leader Bal Thackeray, the other “liked” her post.</p> <p style="text-align: justify; ">Like millions of others, Singhal was alarmed at their detention because she says she could have been the one to post the innocuous comment.</p> <p style="text-align: justify; ">“It [the law] was punishing people for expressing their views on the Internet, whereas if they did it or they did it on TV or they did nit in newspapers, they would not get arrested for the same views,” she said.</p> <p style="text-align: justify; ">Scrapping the law on Tuesday, India's Supreme Court said the Information Technology Act was vaguely worded, and did not explain what could be “inconvenient" or “grossly offensive.” The judgment said the law was liable to have a chilling effect on free speech as it strikes at the root of liberty and freedom of expression.</p> <p style="text-align: justify; ">The law had raised alarm bells after several people were arrested in recent years for posting “objectionable content.” In the latest instance, a 16-year-old boy in Uttar Pradesh state was arrested and released on bail for posting an “insulting” remark about regional party leader, Azam Khan. Among others who were picked up under the law were a professor in Kolkata and a cartoonist in Mumbai.</p> <p style="text-align: justify; ">The previous government, which passed the law, said it was necessary to combat abuse and defamation on the Internet, but critics said it was used by political parties to suppress dissent and criticism.</p> <p style="text-align: justify; ">The Supreme Court ruling also made it tougher for the government to order Internet companies to remove online content.</p> <p style="text-align: justify; ">Sunil Abraham of Bangalore-based Center for Internet and Society says local and foreign Internet companies have faced growing pressure for putting up content deemed offensive in India.</p> <p style="text-align: justify; ">“According to Facebook's latest transparency report, takedown requests and information requests from the Indian government continue to grow, and that is worrying. But that part of the law has been read down. Now when the government sends the takedown notice, it has to be accompany the takedown notice with a court order,” said Abraham.</p> <p style="text-align: justify; ">But free speech campaigners say concerns about online censorship have not completely gone away. The Supreme Court has upheld a law that allows the government to block websites, saying there are sufficient safeguards.</p> <p style="text-align: justify; ">Campaigners like Sunil Abraham think otherwise. “Lack of transparency makes it impossible for anybody to tell whether the government is censoring the Internet in a proportionate manner, whether it is working to truly address the real harms that emerge from bad content online. When the court in India bans books or movies, the judgments of these courts are made available to the public."</p> <p style="text-align: justify; ">"But if when it comes to website blocking, this transparency requirement is missing. In fact, the law has secrecy provisions, which prevents ISP’s that receive these block orders from making them available in the public domain,” said Abraham.</p> <p style="text-align: justify; ">The young student, Singhal, who led the legal battle, said she was “overwhelmed” at the victory for online freedom.</p> <p style="text-align: justify; ">“We are such a diverse society in India with so many diverse and different opinions. It is inherent in us, it is part of us, this democracy, this debate we have,” she said.</p> <p style="text-align: justify; ">Her views were echoed on Twitter and Facebook by people in India, a country of 1.2 billion people where Internet access is growing rapidly.</p> <p> For more details visit <a href='https://cis-india.org/internet-governance/news/voice-of-america-march-24-2015-anjana-pascricha-indias-online-freedom-advocates-hail-court-ruling-on-free-speech'>https://cis-india.org/internet-governance/news/voice-of-america-march-24-2015-anjana-pascricha-indias-online-freedom-advocates-hail-court-ruling-on-free-speech</a> </p> No publisher praskrishna IT Act Censorship Freedom of Speech and Expression Internet Governance Chilling Effect 2015-03-27T01:43:22Z News Item https://cis-india.org/internet-governance/blog/global-voices-march-25-2014-subhashish-panigrahi-indias-supreme-court-axes-online-censorship-law-but-challenges-remain <b>The Supreme Court of India took a remarkable step to protect free expression on March 24, 2015, striking down controversial section 66A of the IT Act that criminalized “grossly offensive” content online. In response to a public interest litigation filed by Indian law student Shreya Singhal, the court made this landmark judgement calling the section “vague”, “broad” and “unconstitutional”. Since Tuesday's announcement, the news has trended nationally on Twitter, with more than 50,000 tweets bearing the hashtags #Sec66A and #66A.</b> <p style="text-align: justify; ">The blog entry by Subhashish Panigrahi was originally published by <a class="external-link" href="http://globalvoicesonline.org/2015/03/25/indias-supreme-court-axes-online-censorship-law-but-challenges-remain/">Global Voices Online</a> on March 25, 2015. Pranesh Prakash is quoted.</p> <hr /> <p style="text-align: justify; ">Section 66A allowed police to arrest any person who sent online communications deemed “grossly offensive” or known to be false. This has enabled the government <a href="http://www.hindustantimes.com/india-news/facebook-trouble-people-arrested-under-sec-66a-of-it-act/article1-1329883.aspx" target="_blank">take down many websites</a> with allegedly objectionable content. Among various cases since the law was updated in 2008, two people were arrested for making comments on Facebook regarding India's prime minister Narendra Modi and one man was arrested for commenting on public service closures following the death of political leader Bal Thakrey.</p> <p style="text-align: justify; ">The now-defunct Section 66A reads as follows:</p> <blockquote class="quoted" style="text-align: justify; ">66-A. Punishment for sending offensive messages through communication service, etc.<br /> —Any person who sends, by means of a computer<br /> resource or a communication device,—<br /> (a) any information that is grossly offensive or has menacing character; or<br /> (b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal<br /> intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device; or<br /> (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<br /> recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.</blockquote> <p style="text-align: justify; ">Internet rights advocate and lawyer Pranesh Prakash, who works with the Center for Internet and Society in Bangalore, has been one of the law's <a href="http://cis-india.org/internet-governance/blog/breaking-down-section-66-a-of-the-it-act" target="_blank">most outspoken critics</a> in recent years. Immediately following the ruling, he tweeted:</p> <p style="text-align: justify; "><img src="https://cis-india.org/home-images/Tweet.png" alt="Tweet" class="image-inline" title="Tweet" /></p> <p style="text-align: justify; ">Nikhil Pahwa, independent journalist and founder of the MeddiaNama blog, <a href="http://www.medianama.com/2015/03/223-section-66a-unconstritutional/">offered his take</a> on the ruling:</p> <blockquote class="quoted" style="text-align: justify; ">This is a great decision for freedom of speech in India…66A is far too vague, and lends itself to arbitrary implementation by the police, especially phrases like “grossly offensive”, annoyance, inconvenience, ill will. Remember that even the right to offend is an integral part of free speech.</blockquote> <p style="text-align: justify; ">Journalist and author Sagarika Ghose sarcastically wondered if the government of India would retroactively offer recompense for all of the actions taken against citizens for violating 66A.</p> <p style="text-align: justify; "><img src="https://cis-india.org/home-images/sagarika.png" alt="Sagarika" class="image-inline" title="Sagarika" /></p> <p style="text-align: justify; ">Some were playful in their response to the decision. Siddharth Sing set out to “test” the efficacy of the ruling with a tweet mocking prominent public figures in Indian politics:</p> <p style="text-align: justify; "><img src="https://cis-india.org/home-images/copy_of_Siddharth.png" alt="Siddharth" class="image-inline" title="Siddharth" /></p> <p style="text-align: justify; ">Section 69, which provides authorities with the power to censor websites that “create communal disturbance, social disorder, or affect India's relationship with other countries” was upheld however. The Court has yet to clarify this decision. CIS India's Pranesh Prakash tweeted:</p> <blockquote> <p>Unfortunately 69A (website blocking) has been upheld despite many issues, incl lack of transparency. Need to read full judgment to see why.</p> <p>— Pranesh Prakash (@pranesh_prakash) <a href="https://twitter.com/pranesh_prakash/status/580239299641135105">March 24, 2015</a></p> </blockquote> <p style="text-align: justify; ">Tuesday's decision comes after the government of India was <a href="http://advocacy.globalvoicesonline.org/2015/01/06/indian-netizens-criticize-online-censorship-of-jihadi-content/" target="_blank">heavily criticized</a> in January 2015 for blocking 32 websites in the country.</p> <p> For more details visit <a href='https://cis-india.org/internet-governance/blog/global-voices-march-25-2014-subhashish-panigrahi-indias-supreme-court-axes-online-censorship-law-but-challenges-remain'>https://cis-india.org/internet-governance/blog/global-voices-march-25-2014-subhashish-panigrahi-indias-supreme-court-axes-online-censorship-law-but-challenges-remain</a> </p> No publisher subha IT Act Censorship Freedom of Speech and Expression Internet Governance Chilling Effect 2015-03-27T02:38:20Z Blog Entry https://cis-india.org/internet-governance/blog/huffington-post-geetha-hariharan-march-26-2015-what-66-a-judgment-means-for-free-speech-online <b>This week India's Supreme Court redefined the boundaries of freedom of speech on the internet. With the Court's decision in Shreya Singhal & Ors. v. Union of India, Section 66A of the Information Technology Act, 2000, has been struck down in entirety and is no longer good law.</b> <p style="text-align: justify; ">Geetha Hariharan's article was originally published in the <a class="external-link" href="http://www.huffingtonpost.in/geetha-hariharan/what-66a-judgment-means-f_b_6938110.html">Huffington Post</a> on March 26, 2015.</p> <hr /> <p style="text-align: justify; ">This week India's Supreme Court redefined the boundaries of freedom of speech on the internet. With the <a href="http://judis.nic.in/supremecourt/imgs1.aspx?filename=42510" target="_hplink">Court's decision</a> in <i>Shreya Singhal &amp; Ors. v. Union of India</i>, Section 66A of the Information Technology Act, 2000, has been struck down in entirety and is no longer good law. Through a structured, well-reasoned and heartening judgment, the court talks us through the nuances of free speech and valid restrictions. While previously, intermediaries were required to take down content upon <i>suo moto</i> determination of lawfulness, Section 79(3)(b) of the Act -- the intermediary liability provision -- has been read down to require actual knowledge of a court order or a government notification to take down content. Section 69A of the Act and its corresponding Rules, the provisions enabling the blocking of web content, have been left intact by the court, though infirmities persist.</p> <p style="text-align: justify; ">The Supreme Court's decision comes at a critical moment for freedom of speech in India. In recent years, the freedom guaranteed under <a href="http://indiankanoon.org/doc/1142233/" target="_hplink">Article 19(1)(a)</a> of the Constitution has suffered unmitigated misery: Wendy Doniger's <i>The Hindus: An Alternative History</i><a href="http://indianexpress.com/article/india/india-others/the-hindus-controversy-angry-wendy-doniger-says-indian-law-true-villain/" target="_hplink"> was banned</a> for hurting religious sentiments, publisher <a href="http://indianexpress.com/article/india/india-others/its-batra-again-book-on-sexual-violence-in-ahmedabad-riots-is-set-aside-by-publisher/" target="_hplink">Orient Blackswan</a> fearing legal action stayed its release of an academic work on sexual violence in Ahmedabad, the author Perumal Murugan <a href="http://www.caravanmagazine.in/vantage/why-perumal-murugans-one-part-woman-significant-debate-freedom-expression-india" target="_hplink">faced harsh criticism</a> for his novel <i>One Part Woman</i> and chose to slay his authorial identity.</p> <blockquote class="pullquote" style="text-align: justify; ">"The Supreme Court's decision comes at a critical moment for freedom of speech in India. In recent years, the freedom guaranteed under Article 19(1)(a) of the Constitution has suffered unmitigated misery."</blockquote> <p style="text-align: justify; ">The tale of free speech on the Internet is similar. In response to takedown requests, intermediaries <a href="http://cis-india.org/internet-governance/chilling-effects-on-free-expression-on-internet" target="_hplink">prefer to tread a safe path</a>, taking down even legitimate content for fear of triggering penalties under Section 79 of the IT Act. The government has <a href="http://cis-india.org/internet-governance/blog/analysing-blocked-sites-riots-communalism" target="_hplink">blocked websites</a> in ways that transgress the bounds of 'reasonable restrictions' on speech. Section 66A alone has gathered astounding arrests and controversy. In 2012, <a href="http://www.hindustantimes.com/mumbai/outrage-after-arrest-of-2-women-for-facebook-post-on-mumbai-shutdown/article1-961377.aspx" target="_hplink">Shaheen Dhada and her friend</a> were arrested in Maharashtra for observing that Bal Thackeray's funeral shut down Mumbai, <a href="http://timesofindia.indiatimes.com/city/goa/Chargesheet-against-Devu-Chodankar-likely-soon/articleshow/43452449.cms" target="_hplink">Devu Chodankar</a> in Goa and <a href="http://tech.firstpost.com/news-analysis/facebook-youth-arrested-anti-modi-message-whatsapp-224422.html" target="_hplink">Syed Waqar</a> in Karnataka were arrested in 2014 for making posts about PM Narendra Modi, and <a href="http://indiatoday.intoday.in/story/man-arrested-for-tweet-on-chidambarams-son-months-after-swamy-targeted-karti/1/227022.html" target="_hplink">a Puducherry man was arrested</a> for criticizing P. Chidambaram's son. The misuse of Section 66A, and the inadequacy of other provisions of the IT Act, were well-documented.</p> <h3 style="text-align: justify; ">Section 66A: No longer draconian</h3> <p style="text-align: justify; ">In a writ petition filed in 2012, the law student Shreya Singhal challenged the constitutionality of <a href="http://cis-india.org/internet-governance/resources/section-66A-information-technology-act" target="_hplink">Section 66A</a> on grounds, <i>inter alia</i>, of vagueness and its chilling effect. More petitions were filed challenging other provisions of the IT Act including Section 69A (website blocking) and Section 79 (intermediary liability), and <a href="http://cis-india.org/internet-governance/blog/overview-constitutional-challenges-on-itact" target="_hplink">these were heard jointly</a> by justices Rohinton F. Nariman and G. Chelameshwar. Section 66A, implicating grave issues of freedom of speech on the internet, was at the centre of the challenge.</p> <blockquote class="pullquote" style="text-align: justify; ">"It is difficult -impossible, in fact - to foresee or predict what speech is permitted or criminalised under Section 66A. As a result, there is a chilling effect on free speech online, resulting in self-censorship."</blockquote> <p style="text-align: justify; ">Section 66A makes it a criminal offence to send any online communication that is "grossly offensive" or "menacing", or false information sent for the purposes of causing "annoyance, inconvenience, insult, injury, obstruction, enmity, hatred, ill will", etc. These terms are not defined. Neither do they fall within one of the eight subjects for limitation under Article 19(2). It is difficult -impossible, in fact - to foresee or predict what speech is permitted or criminalised under Section 66A. As a result, there is a chilling effect on free speech online, resulting in self-censorship.</p> <p>With yesterday's decision, the Supreme Court has struck down Section 66A on grounds of vagueness, excessive range and chilling effects on speech online. What is perhaps most uplifting is the court's affirmation of the value of free speech. In the midst of rising conservatism towards free speech, the Court reminds us that an "informed citizenry" and a "culture of open dialogue" are crucial to our democracy. Article 19(1)(a) shields us from "occasional tyrannies of governing majorities", and its restriction should be within Constitutional bounds enumerated in <a href="http://indiankanoon.org/doc/493243/" target="_hplink">Article 19(2)</a>.</p> <h3>What speech is protected?</h3> <p style="text-align: justify; ">There are three types of speech, the court says: Discussion, advocacy and incitement. Discussion and advocacy are at the heart of Article 19(1)(a), and are unquestionably protected. But when speech amounts to incitement - that is, if it is expected to cause harm, danger or public disorder- it can be reasonably restricted for any of these reasons: public order, sovereignty and integrity of India, security of the State and friendly relations with foreign states.</p> <p style="text-align: justify; ">" The Union of India argued that Section 66A is saved by the clauses "public order", "defamation", "incitement to an offence" and "decency, morality". But as the court finds that these are spurious grounds."</p> <p style="text-align: justify; ">Section 66A, however, does not meet the legal standards for any of the limitation-clauses under Article 19(2), and so is unconstitutional. The Union of India argued that Section 66A is saved by the clauses "public order", "defamation", "incitement to an offence" and "decency, morality". But as the court finds that these are spurious grounds. For instance, Section 66A covers "all information" sent via the Internet, but does not make any reference (express or implied) to public order. Section 66A is not saved by incitement, either. The ingredients of "incitement" are that there must be a "clear tendency to disrupt public order", or an express or implied call to violence or disorder, and Section 66A is remarkably silent on these. By its vague and wide scope, Section 66A may apply to one-on-one online communication or to public posts, and so its applicability is uncertain. For these grounds, Section 66A has been struck down.</p> <p style="text-align: justify; ">For freedom of speech on the internet, this is fantastic news! The unpredictability and threat of Section 66A has been lifted. Political commentary, criticism and dialogue are clearly protected under Article 19(1)(a). Of course, the government is still keen to regulate online speech, but the bounds within which it may do so have been reasserted and fortified.</p> <h3 style="text-align: justify; ">Section 69A and website blocking</h3> <p style="text-align: justify; ">Section 69A empowers the government and its agencies to block websites on any of six grounds: "in the interest of sovereignty and integrity of India, defense of India, security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence relating to above". The blocking procedure is set out in the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009. It requires that a Committee for Examination of Request (CER) examines each blocking request, and gives the content-generator or host 48 hours to make a representation. The Secretary of the Department of Electronics and Information Technology then issues the blocking direction to the intermediary.</p> <blockquote class="pullquote" style="text-align: justify; ">"[The court has] failed to consider the impact of Section 69A and its Rules. Our free speech rights as listeners are equally affected when legitimate websites containing information are blocked. Transparency, blockpage notifications and judicial review are essential to determine whether each blocking direction is valid."</blockquote> <p style="text-align: justify; ">Now, the Supreme Court decision has left Section 69A and its Rules intact, stating that it is a "narrowly drawn provision with several safeguards". However, the Court has overlooked some crucial details. For instance, no judicial review is available to test the validity of each blocking direction. Moreover, Rule 14 of the Blocking Rules requires that all blocking requests and directions are kept confidential. This means that neither the content-generator, nor the reader/listener or general public, will have any idea of how many blocking directions have been issued or why. There is no standard blockpage display in India, either, and this further aggravates the transparency problem.</p> <p style="text-align: justify; ">Lamentably, the Supreme Court has not considered this. Though the court has recognised and upheld the rights of viewers, readers and listeners in its decision on Section 66A, it failed to consider the impact of Section 69A and its Rules on readers and listeners. Our free speech rights as listeners are equally affected when legitimate websites containing information are blocked. Transparency, blockpage notifications and judicial review are essential to determine whether each blocking direction is valid.</p> <h3 style="text-align: justify; ">Section 79 and the intermediary as a judge</h3> <p style="text-align: justify; ">Section 79 provides a safe harbour for intermediaries: if they abide by the requirements of Section 79(2), they retain immunity. But under Section 79(3)(b), intermediaries can lose their immunity from prosecution if, after receiving a takedown notice, they do not take down content in three circumstances: (1) if they have actual knowledge that third-party information within their control is being used to commit an unlawful act (i.e., by suo moto deciding the lawfulness of content); (2) if a court order requires takedown of content; (3) if a government notification requires takedown. Rule 3(4) of the Intermediaries Guidelines Rules, 2011 has a similar provision.</p> <blockquote class="pullquote" style="text-align: justify; ">"The Supreme Court has wisely put an end to private adjudication of lawfulness. Section 79(3)(b) and Rule 3(4) have been read down to mean that the intermediary must have actual knowledge of a court order or government notification."</blockquote> <p style="text-align: justify; ">This leads to a situation where a private intermediary is responsible for deciding what constitutes lawful content. <a href="http://cis-india.org/internet-governance/chilling-effects-on-free-expression-on-internet" target="_hplink">Previous studies</a> have shown that, when placed in such a position, intermediaries prefer overbroad blocking to escape liability. As readers, we can then only access uncontroversial content. But the freedom of speech includes, as the European Court of Human Rights emphasised in <i><a href="http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57897" target="_hplink">Otto-Preminger Institut</a></i>, the freedom to "offend, shock and disturb".</p> <p style="text-align: justify; ">In <i>Shreya Singhal</i>, the Supreme Court has wisely put an end to private adjudication of lawfulness. Section 79(3)(b) and Rule 3(4) have been read down to mean that the intermediary must have actual knowledge of a court order or government notification. Even if an intermediary chooses not to act in response to a private takedown notice, it will retain its immunity under Section 79.</p> <p style="text-align: justify; ">With <i>Shreya Singhal</i>, India has reaffirmed its protections for freedom of speech on the internet. One may now freely speak online without fear of illegitimate and unconstitutional prosecution. However, a re-examination of the blocking procedure, with its infirmities and direct impact on speech diversity, is essential. But today, we celebrate!</p> <p> For more details visit <a href='https://cis-india.org/internet-governance/blog/huffington-post-geetha-hariharan-march-26-2015-what-66-a-judgment-means-for-free-speech-online'>https://cis-india.org/internet-governance/blog/huffington-post-geetha-hariharan-march-26-2015-what-66-a-judgment-means-for-free-speech-online</a> </p> No publisher geetha IT Act Censorship Freedom of Speech and Expression Internet Governance Chilling Effect 2015-03-27T16:50:43Z Blog Entry https://cis-india.org/internet-governance/news/livemint-dhamini-ratnam-march-28-2015-sc-has-set-a-high-threshold-for-tolerance <b>Lawyer-activist Lawrence Liang on why SC upheld section 69A and the implications of striking down section 66A. </b> <p style="text-align: justify; ">The article by Dhamini Ratnam was published in <a class="external-link" href="http://www.livemint.com/Politics/hDIjjunGikWywOgSRiM7NP/SC-has-set-a-high-threshold-for-tolerance-Lawrence-Liang.html">Livemint</a> on March 28, 2015. Lawrence Liang gave his inputs.</p> <hr /> <p style="text-align: justify; ">Tuesday marked a landmark in the fight for free speech in our country, as the Supreme Court struck down the contentious section 66A of the Information Technology Act of 2000. The section, which was introduced through an amendment in 2009, penalized those who wrote messages online that could be deemed as being false or grossly offensive. However, the apex court turned down a plea to strike down sections 69A (procedure for blocking websites) and 79 (exemption from liability of intermediaries) of the same law. Lawrence Liang, a lawyer who co-founded the Alternative Law Forum in Bengaluru, a fellow at the Centre for Internet and Society, and author of The Public is Watching: Sex, Laws and Videotape and A Guide to Open Content Licenses, spoke in an interview on the wide-ranging implications of the judgement. Edited excerpts:</p> <div> <h3>What was the impetus to fight section 66A?</h3> <p style="text-align: justify; ">Over the past few years, there have been numerous cases in which section 66A has been used in bad faith against individuals online. One of the cases that became well-known by virtue of just how ridiculous it was involved the arrest of Shaheen Dhada and her friend Renu Srinivasan (which led petitioner Shreya Singhal to file a public interest litigation in the Supreme Court that eventually led to this judgement), but there have been more, so it was inevitable that a law as draconian as section 66A would be challenged for its constitutional validity.</p> <p style="text-align: justify; ">The judgement begins by noting a distinction between three forms of speech—discussion, advocacy and incitement—and says discussion and advocacy of a particular cause, howsoever unpopular, is at the heart of Article 19(1)(a) of the Constitution (all citizens shall have the right to freedom of speech and expression). Only when they reach the level of incitement can they be legitimately prohibited. While the judgement does not provide a new definition of incitement, it affirms what was laid down in the Rangarajan test (1989), in which the courts had established that for censorship to be justified, the “expression of thought should be intrinsically dangerous to the public interest”. There should be an immediate and direct relation between speech and effect.</p> <p style="text-align: justify; ">The court said that section 66A is “cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net”. The courts have also historically held that Article 19(1)(a) is as much about the right to receive information as it is to disseminate, and when there is a chilling effect on speech, it also violates the right to receive information. However, I would say that the court missed an opportunity to consider the blocking of websites under section 69A.</p> <h3 style="text-align: justify; ">Why did the court uphold section 69A, and which other parts of the IT Act did it examine?</h3> <p style="text-align: justify; ">If section 66A was found to be arbitrary, then the procedure for blocking websites, as laid out in section 69A, is also beset with similar problems. The court, however, upheld this section and the rules under the IT Act on the grounds that there are internal safeguards and reasonable procedures. This section allows the government to block any site or information that violates Article 19(2) of the Constitution (which enables the legislature to impose certain restrictions on free speech).</p> <p style="text-align: justify; ">The problem is that often there is no hearing or notice given to the owner of information, there is no transparency since blocks can happen on a confidential basis and these can have serious implications for the right to receive information.</p> <p style="text-align: justify; ">The court read down section 79, which used to provide an intermediary exemption from liability with the exception that if it received “actual knowledge” of any illegal content, it was obliged to act within 36 hours. A study by the Centre for Internet and Society showed that even on sending frivolous takedown notices, intermediaries tended to comply to be on the safe side. The court’s decision has read down section 79 now to mean that “actual knowledge” means either an order of a court or the government. It moves it away from a subjective determination by intermediaries.</p> <p style="text-align: justify; ">The court could have, like it did with section 79, retained section 66A while clarifying a procedure that would maintain a balance between the need sometimes to block and public interest, and transparency.</p> <h3 style="text-align: justify; ">What does the judgement open up for the free speech debate?</h3> <p style="text-align: justify; ">The judgement speaks of chilling effects, because if one is not careful, one runs the risk of endangering political discourse through self-censorship. This is terrible for a democratic culture, which is premised on the ability to debate and dissent. Much of the use of section 66A has been politically motivated to silence criticism, and the judgement goes a long way towards promoting a culture of critique.</p> <p style="text-align: justify; ">As the first major Supreme Court case on free speech in the 21st century, it sets the tone on how we think of free speech in a context where every individual with a smartphone is potentially a writer, a publisher and a distributor. By setting a high threshold for what is tolerated in online speech, it ensures that the online space is not doomed to be infantilized.</p> <h3 style="text-align: justify; ">What position must the law take to protect rights and minority identities?</h3> <p style="text-align: justify; ">I think it is important to distinguish between different effects of speech. The court has merely reaffirmed a position that has been held in India for a long time (such as through the Ram Manohar Lohia judgement of 1960, which interpreted what “restriction made in the interests of public order” in Article 19(2) means). In other words, if someone is inciting violence, especially if they have the power to effect such violence (such as a politician), then their speech can be regulated, but the court also held that the idea of threat to public order is often imaginary.</p> <p style="text-align: justify; ">For instance, in what way would Shaheen Dhada’s post on Facebook have incited violence? (In November 2012, Dhada, then a student and based in Palghar, Maharashtra, had written a post on Facebook commenting on the state of shutdown that followed politician Bal Thackeray’s death. Her comment was liked by her friend Srinivasan, and both of them were charged under section 66A.) So, the court is distinguishing between speech that is critical and speech that is dangerous. There are laws that deal with the latter, such as 153A and 295A of the IPC (Indian Penal Code).</p> <p style="text-align: justify; ">It must be noted, however, that provisions also suffer from the same vice of vagueness. What we need is a more nuanced understanding of hate speech that addresses speech that incites violence or hatred against a community, but one in which the test is not of subjective hurt sentiment. The problem with hate speech laws is that they collapse questions of law and order with questions of subjective hurt, and we run the risk of becoming a republic of hurt sentiments where anyone can claim that their sentiments are hurt, especially their religious sentiments.</p> <h3 style="text-align: justify; ">What happens to existing cases that are being tried under section 66A, such as the one against the organizers and participants of the All India Bakchod Roast?</h3> <p style="text-align: justify; ">Court judgements do not necessarily have retrospective effect, so cases that have been filed will continue. We must also remember that the cases filed under section 66A were also accompanied by other provisions. Of course, a judgement as significant as this, which completely delegitimizes section 66A, will have a profound impact on the ongoing cases insofar as they relate to the offence under the section, but the other charges remain.</p> </div> <p> For more details visit <a href='https://cis-india.org/internet-governance/news/livemint-dhamini-ratnam-march-28-2015-sc-has-set-a-high-threshold-for-tolerance'>https://cis-india.org/internet-governance/news/livemint-dhamini-ratnam-march-28-2015-sc-has-set-a-high-threshold-for-tolerance</a> </p> No publisher praskrishna IT Act Censorship Freedom of Speech and Expression Internet Governance Chilling Effect 2015-03-28T16:18:18Z News Item https://cis-india.org/internet-governance/news/the-week-march-28-2015-soni-mishra-66a-dead-long-live-66a <b>Last Tuesday, Twitter CEO Dick Costolo walked into Prime Minister Narendra Modi's office. India's most compulsive and most-followed tweeter, Modi, as Gujarat chief minister, had protested when the Manmohan Singh government blocked the micro-blogging site of a few journalists. Modi had blacked out his own Twitter profile and tweeted: “May God give good sense to everyone.”</b> <p>The article by Soni Mishra was published in the <a class="external-link" href="http://week.manoramaonline.com/cgi-bin/MMOnline.dll/portal/ep/theWeekContent.do?contentId=18627255&amp;programId=1073755753&amp;tabId=13&amp;BV_ID=@@@&amp;categoryId=-226161">Week</a> on March 28, 2015. T. Vishnu Vardhan gave his inputs.</p> <hr /> <p>Today, with 11 million followers on Twitter, and 27.6 million likes on Facebook, Modi rules the virtual world and India. He received Costolo warmly and told him how Twitter could help his Clean India, girl child and yoga campaigns. Impressed, Costolo told Modi how Indian youth were innovating on Twitter.</p> <p style="text-align: justify; ">But, the greatest and the most fundamental boost for all social media in India was being effected a few minutes drive away from the PMO. Ironically, in the Supreme Court of India, Modi's lawyers were defending a law made by the United Progressive Alliance government—section 66A of the Information Technology Act, which curbed free speech on social media.</p> <p style="text-align: justify; ">Anything posted on the internet can go viral worldwide and reach millions in no time, argued Additional Solicitor General Tushar Mehta. While the traditional media is ruled by licences and checks, social media has nothing, he said. Finally, Mehta made an impassioned plea that the government meant well. Section 66A will be administered reasonably and will not be misused, he assured the court.</p> <p style="text-align: justify; ">It seemed he, and the government, had forgotten an old saying: if there is a bad law, someone will use it. Luckily for India, and its liberal democracy, the judges saw a bad law and struck it down. “If section 66A is otherwise invalid, it cannot be saved by an assurance from the learned additional solicitor general,” said the bench comprising Justice Rohinton Nariman and Justice J. Chelameswar.<br /><br />The fact is that 66A was knee-jerk legislation. Almost as thoughtless and compulsive as a netizen's derisive tweet. On December 22, 2008, the penultimate day of the winter session, the UPA government had got seven bills passed in seven minutes in the Lok Sabha; the opposition BJP had played along.<br /><br />One of the bills was to amend the IT Act. It went to the Rajya Sabha the next day, when members were hurrying to catch their trains and flights home for the year-end vacation. They just okayed the bill and hurried home.<br /><br />The argument then was that there was no need to discuss the bill as it had been examined by a standing committee of Parliament. Indeed, it had been. But, the committee, headed by Nikhil Kumar of the Congress, had met only for 23 hours and five minutes. Nine of its 31 members had not attended a single meeting. Ravi Shankar Prasad, the current Union minister for IT, was one among the 31.<br /><br />Apparently, everyone wanted the bill, so did not bother to apply their minds. Only a CPI(M) member, A. Vijayaraghavan, had a few dissenting suggestions to the committee report. No one else bothered to mull over a law that was “unconstitutional, vague” and which would have a “chilling effect” on free speech.</p> <p style="text-align: justify; ">Once the law was made, it was constable raj across India. Shaheen Dhada from Palghar simply commented on Facebook about a Shiv Sena bandh on the death of Bal Thackeray. Her friend Rinu Srinivasan liked it. The two teenagers were bundled into a police station. Rinu still remembers with a chill how “a mob of about 200 people gathered outside the police station that day.” This was when the Congress was ruling Maharashtra.<br /><br />Jadavpur University professor Ambikesh Mahapatra was picked up by the police in Trinamool Congress-ruled West Bengal in April 2012, for posting a cartoon ridiculing Chief Minister Mamata Banerjee. “I was thrashed several times in police custody,” said the professor, who got relief from the West Bengal Human Rights Commission.<br /><br />Vickey Khan, 22, was arrested in Rampur, UP, for a Facebook post on Samajwadi Party leader Azam Khan. Rampur is, of course, Khan's pocket borough. The Uttar Pradesh Police, controlled by the Samajwadi Party government, also arrested dalit writer Kanwal Bharti from Rampur for criticising the UP government's suspension of IAS officer Durga Shakti Nagpal in 2013.<br /><br />At least 30 people in AIADMK-ruled Chennai have been booked under 66A; four of them this year. Ravi Srinivasan, general secretary of the Aam Aadmi Party in Puducherry, was picked up in October 2012 for his tweets on Karti Chidambaram, son of then Union home minister P. Chidambaram. “He was not even in India when I tweeted,” said Ravi. “He sent the complaint by fax from abroad and everything happened [fast] as Puducherry is a Union Territory and can be controlled by the home ministry.”<br /><br />Whistleblower A. Shankar of Chennai was pulled up by the Madras High Court for the content on his blog, Savukku. The Orissa Police, controlled by the Biju Janata Dal (BJD) government, took Facebook to court in 2011 asking who created a Facebook page in the name of Chief Minister Naveen Patnaik. It is another thing that the page had no content.</p> <p style="text-align: justify; ">Indeed, there had been stray political voices opposing the law. In Parliament, the CPI(M)'s P. Rajeeve, the BJD's Jay Panda and independent MP Rajeev Chandrasekhar pushed several times for scrapping 66A. Panda moved a private members bill, and Rajeeve moved a resolution. “I only wish we in Parliament had heeded the people's voice and repealed it, instead of yet again letting the judiciary do our work for us,” Panda said after the law was scrapped.<br /><br />Finally, it was left to a young law student, Shreya Singhal, to move the Supreme Court on behalf of the Palghar girls. Singhal pointed out that several provisions in 66A violated fundamental rights guaranteed by article 19(1)(a)—the right to freedom of speech and expression. Several more cases followed and, finally, the court heard them together.<br /><br />Indeed, Justices Nariman and Chelameswar have been extremely restrained in their comments. But, the fact that Parliament had not applied its mind comes through in the judgment.<br /><br />The court “had raised serious concerns with the manner in which section 66A of the IT Act has been drafted and implemented across the country,” pointed out Supreme Court lawyer Shivshankar Panicker. Added Kiran Shanmugam, a cyber forensic expert and CEO of ECD Global Bengaluru: “The law lacked foresight in estimating the magnitude of the way the electronic media would grow.”<br /><br />Apparently the government, too, knew it was defending the indefensible, and tried to win the case highlighting the benign nature of the democratic state. But, the court was not impressed. “Governments may come and governments may go, but section 66A goes on forever,” the judges noted. “An assurance from the present government, even if carried out faithfully, would not bind any successor government.”<br /><br />Clearly, Mehta was defending the indefensible, a law that, the court found, would have a “chilling effect on free speech”. Moreover, as the judges found out, the new law did not provide even the safeguards that the older Criminal Procedure Code had provided. “Safeguards that are to be found in sections 95 and 96 of the CrPC are also absent when it comes to section 66A,” the judges said. For example, according to the CrPC, a book or document that contained objectionable matter could be seized by the police, but it also allowed the publisher to move court. The new law did not provide even such a cushion.</p> <p style="text-align: justify; ">All the same, the court was careful and did not overturn the entire law. It scrapped section 66A, and section 118(D) of the Kerala Police Act, but upheld section 69A and section 79 of the IT Act, which too had been questioned by the litigants (see box on page 45).<br /><br />The judgment has set the cyberworld rocking. “I am so happy now, I do not know how to express it,” said Rinu, now an audio-engineering student in Kerala. Shaheen is married and lives in Bengaluru. Vickey Khan is relieved. “Some people had told me that I could be jailed for three years,” he said. But, Azam Khan took it out on the media and said it “favours criminals”.<br /><br />Karti, who claims to be a votary of free speech, however, wants “some protection” against defamation. “I filed a complaint in an existing provision of law,” he said. “If that provision is not available, then I will have to seek other provisions to safeguard my reputation.”<br /><br />Mahapatra is still apprehensive. “The government will still try to harass me,” he said. “But I know that in the end I will win.” Shankar of Chennai called it “a huge relief for people like me, who are active on social media.” Ravi Srinivasan, who locked horns with Karti, said he felt “relieved and happy”.<br /><br />The hard rap on the knuckles for their legislative laxity has sobered the political class. The Congress, the progenitor of 66A, admitted that the vagueness of the law was its undoing. “If in a particular area, the local constabulary took action to stifle dissent, it was never the purpose of the act,” said Congress spokesperson Abhishek Manu Singhvi. The Modi government officially welcomed the judgment, and its spokespersons are blaming the UPA for the law.<br /><br />Apparently, the scrapped law was made after a series of grossly offensive posts appeared on the social media five years ago. “If such content is not blocked online, it would immediately lead to riots,” said a law ministry official, who said the posts had been shown to the court, too. He said the government would take some time to draft a new law.</p> <p style="text-align: justify; ">But, is a new law required? Opinion is still divided. What if someone is defamed on the net? “There are defamation laws which can deal with these,” said T. Vishnuvardhan, programme director, Centre for Internet and Society, Bengaluru. “Also, the IT Act has various provisions. If somebody misuses your picture on social media, you can report it to the website immediately. The website is liable to take action on it within 36 hours.”<br /><br />Smarika Kumar of Bengaluru-based Alternative Law Forum said the scrapping of 66A does not mean one can post anything online. “The Supreme Court has said that speech can be censored when it falls under the restrictions provided under article 19(2) of the Constitution,” she said. “But, if you prevent speech on any other ground, it is going to be unconstitutional.”<br /><br />But, even critics of 66A think a replacement law is needed. Said Rajeev Chandrasekhar: “The government needs to act quickly and create a much more contemporaneous Act, via multi-stakeholder consultations, general consensus and collaboration, so that there is less ambiguity and freedom of expression is preserved.”<br /><br />Senior Supreme Court advocate Pravin H. Parekh said, “As the cyberworld is growing day by day and there is increase in the number of social media users, we do require a proper mechanism which can regulate the expression of views on the internet.”<br /><br />The government is putting forth the argument of national security. “If the security establishment says the present act is not sufficient, we will look into it. The government will consider it, but only with adequate safeguards,” said Ravi Shankar Prasad.<br /><br />That will call for a legislative process undertaken in a cool and calm house, and not hurried through when the members are ready to hurry home.</p> <p style="text-align: justify; "><span class="contentEng" id="textId"> </span></p> <p><b>Sound judgment</b></p> <p style="text-align: justify; "><b>Thumbs down</b><br />The Supreme Court set aside section <b>66A of the IT act,</b> which says any person who sends offensive, menacing or false information to cause annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, or uses email to trouble its recipient or deceive him/her about the origin of such messages, can be punished with a jail term up to three years and a fine.</p> <p style="text-align: justify; ">The court also struck down section <b>118(d) of the Kerala Police Act,</b> which says any person who makes indecent comments by calls, mails, messages or any such means causing grave violation of public order or danger can be punished with imprisonment up to three years or a fine not exceeding Rs10,000, or  both.</p> <p style="text-align: justify; "><b>Thumbs up<br /></b>The Supreme Court upheld section <b>69A of the IT act,</b> which allows the government to block the public's access to information in national interest and penalise intermediaries [telecom or internet service providers and web hosting services] who fail to comply with the government's directives.</p> <p>Section <b>79 of the IT Act,</b> which deals with intermediaries' exemption from liability in certain cases, too, was upheld.</p> <hr /> <p>With R. Prasanan, Mini P. Thoma, Ajay Uprety, Lakshmi Subramanian, Rabi Banerjee and Sharmista Chaudhury</p> <p> For more details visit <a href='https://cis-india.org/internet-governance/news/the-week-march-28-2015-soni-mishra-66a-dead-long-live-66a'>https://cis-india.org/internet-governance/news/the-week-march-28-2015-soni-mishra-66a-dead-long-live-66a</a> </p> No publisher praskrishna IT Act Censorship Freedom of Speech and Expression Internet Governance Chilling Effect 2015-04-01T02:11:27Z News Item https://cis-india.org/internet-governance/blog/sc-judgment-in-shreya-singhal-what-it-means-for-intermediary-liability <b>Even as free speech advocates and users celebrate the Supreme Court of India's landmark judgment striking down Section 66A of the Information Technology Act of 2000, news that the Central government has begun work on drafting a new provision to replace the said section of the Act has been trickling in.</b> <p style="text-align: justify; ">The SC judgement in upholding the constitutionality of Section  69A (procedure for blocking websites) and in reading down Section 79 (exemption from liability of intermediaries) of the IT Act, raises crucial questions regarding transparency, accountability and under what circumstances may reasonable restrictions be placed on free speech on the Internet. While discussions and analysis of S. 66A continue, in this post I will focus on the aspect of the judgment related to intermediary liability that could benefit from further clarification from the apex court and in doing so, will briefly touch upon S. 69A and secret blocking.</p> <h3 style="text-align: justify; ">Conditions qualifying intermediary for exemption and obligations not related to exemption</h3> <p align="JUSTIFY">The intermediary liability regime in India is defined under S. 79 and assosciated rules that were introduced to protect intermediaries for liability from user generated content and ensure the Internet continues to evolve as a <i>“marketplace of ideas”</i>. But as intermediaries may not have sufficient legal competence or resources to deliberate on the legality of an expression, they may end up erring on the side of caution and takedown lawful expression. As a study by Centre for Internet and Society (CIS) in 2012 revealed, the criteria, procedure and safeguards for administration of the takedowns as prescribed by the rules lead to a chilling effect on online free expression.</p> <p align="JUSTIFY"><span><span><span>S. 69A grants powers to the Central Government to </span></span></span><span><i><span>“issue directions for blocking of public access to any information through any computer resource”.</span></i></span><span><span><span> The 2009 </span></span></span><span><span><span>rules </span></span></span><span><span><span>allow the blocking of websites by a court order, </span></span></span><span><span><span>and </span></span></span><span><span><span>sets in place a review committee to review the decision to block websites </span></span></span><span><span><span>a</span></span></span><span><span><span>s also establishes </span></span></span><span><span><span>penalt</span></span></span><span><span><span>ies </span></span></span><span><span><span>for the intermediary </span></span></span><span><span><span>that fails to extend cooperation in this respect. </span></span></span></p> <p align="JUSTIFY"><span><span><span>There are two key aspects of both these provisions that must be noted:</span></span></span></p> <p align="JUSTIFY">a) S. 79 is an exemption provision that qualifies the intermediary for conditional immunity, as long as they fulfil the conditions of the section. The judgement notes this distinction, adding that “<i>being an exemption provision, it is closely related to provisions which provide for offences including S. 69A.”</i></p> <p align="JUSTIFY"><span><span><span>b) S. 69A does not contribute to immunity for the intermediary rather places additional obligations on the intermediary and as the judgement notes </span></span></span><span><i><span>“intermediary who finally fails to comply with the directions issued who is punishable under sub-section (3) of 69A.”</span></i></span><span><span><span> The provision though outside of the conditional immunity liability regime enacted through S. 79 contributes to the restriction of access to, or removing content online by placing liability on intermediaries to block unlawful third party content or information that is being generated, transmitted, received, stored or hosted by them. Therefore restriction requests must fall within the contours outlined in Article 19(2) and include principles of natural justice and elements of due process.</span></span></span></p> <h3 align="JUSTIFY">Subjective Determination of Knowledge</h3> <p align="JUSTIFY">The provisions for exemption laid down in S. 79 do not apply when they receive <i>“actual knowledge” </i>of illegal content under section 79(3)(b). Prior to the court's verdict actual knowledge could have been interpreted to mean the intermediary is called upon its own judgement under sub-rule (4) to restrict impugned content in order to seek exemption from liability. Removing the need for intermediaries to take on an adjudicatory role and deciding on which content to restrict or takedown, the SC has read down <i>“actual knowledge”</i> to mean that there has to be a court order directing the intermediary to expeditiously remove or disable access to content online. The court also read down <i>“upon obtaining knowledge by itself”</i> and <i>“brought to actual knowledge”</i> under Rule 3(4) in the same manner as 79(3)(b).</p> <p align="JUSTIFY"><span><span><span>Under S.79(3)(b) the intermediary must comply with the orders from the executive in order to qualify for immunity. Further, S. 79 (3)(b) goes beyond the specific categories of restriction identified in Article 19(2) by including the term </span></span></span><span><i><span>“unlawful acts”</span></i></span><span><span><span> and places the executive in an adjudicatory role of determining the illegality of content. The government cannot emulate private regulation as it is bound by the Constitution and the court addresses this issue by applying the limitation of 19(2) on unlawful acts, </span></span></span><span><i><span>“the court order and/or the notification by the appropriate government or its agency must strictly conform to the subject matters aid down in Article 19(2).”</span></i></span><span><span><span> </span></span></span></p> <p align="JUSTIFY"><span><span><span>By reading down of S. 79 (3) (b) the court has addressed the issue of intermediaries </span></span></span><span><span><span>complying with tak</span></span></span><span><span><span>edown requests from non-government entities and </span></span></span><span><span><span>has </span></span></span><span><span><span>made government notifications and court orders to be consistent with reasonable restrictions in Article 19(2). This is an important clarification from the court, because this places limits on the private censorship of intermediaries and the invisible censorship of opaque government takedown requests as they must </span></span></span><span><span><span>and should </span></span></span><span><span><span>adhere, to </span></span></span><span><span><span>the </span></span></span><span><span><span>boundaries set by Article 19(2).</span></span></span></p> <h3><span><span><span>Procedural Safeguards</span></span></span></h3> <p style="text-align: justify; "><span><span><span>The SC does not touch upon other parts of the rules and in not doing so, has left significant procedural issues open for debate. It is relevant to bear in mind and as established above, S. 69A blocking and restriction requirements for the intermediary are part of their additional obligations and do not qualify them for immunity. The court ruled in favour of upholding S. 69A as constitutional on the basis that blocking orders are issued when the executive has sufficiently established that it is absolutely necessary to do so, and that the necessity is relatable to only some subjects set out in Article 19(2). Further the court notes that reasons for the blocking orders must be recorded in writing so that they may be challenged through writ petitions. The court also goes on to specify that under S. 69A the intermediary and the 'originator' if identified, have the right to be heard before the committee decides to issue the blocking order. </span></span></span></p> <p style="text-align: justify; "><span><span><span>Under S. 79 the intermediary must also comply with government restriction orders and the procedure for notice and takedown is not sufficiently transparent and lacks procedural safeguards that have been included in the notice and takedown procedures under S. 69. For example, there is no requirement for committee to evaluate the necessity of issuing the restriction order, though the ruling does clarify that these restriction notices must be within the confines of Article 19(2). The judgement could have gone further to directing the government to state their entire cause of action and provide reasonable level of proof (prima facie). It should have also addressed issues such as the government using extra-judicial measures to restrict content including collateral pressures to force changes in terms of service, to promote or enforce so-called "voluntary" practices. </span></span></span></p> <h3><span><span><span>Accountability</span></span></span></h3> <p style="text-align: justify; "><span><span><span>The judgement could also have delved deeper into issues of accountability such as the need to consider 'udi alteram partem' by providing the owner of the information or the intermediary a hearing prior to issuing the restriction or blocking order nor is an post-facto review or appeal mechanism made available except for the recourse of writ petition. Procedural uncertainty around wrongly restricted content remains, including what limitations should be placed on the length, duration and geographical scope of the restriction. The court also does not address the issue of providing a recourse for the third party provider of information to have the removed information restored or put-back remains unclear. Relatedly, the court also does not clarify the concerns related to frivolous requests by establishing penalties nor is there a codified recourse under the rules presently, for the intermediary to claim damages even if it can be established that the takedown process is being abused.</span></span></span></p> <h3><span><span><span>Transparency</span></span></span></h3> <p style="text-align: justify; "><span><span><span>The bench in para 113 in addressing S. 79 notes that the intermediary in addition to publishing rules and regulations, privacy policy and user agreement for access or usage of their service has to also inform users of the due diligence requirements including content restriction policy under rule 3(2). However,  the court ought to have noted the differentiation between different categories of intermediaries which may require different terms of use. Rather than stressing a standard terms of use as a procedural safeguard, the court should have insisted on establishing terms of use and content restriction obligations that is proportional to the role of the intermediary and based on the liability accrued in providing the service, including the impact of the restriction by the intermediary both on access and free speech. By placing requirement of disclosure or transparency on the intermediary including what has been restricted under the intermediary's own terms of service, the judgment could have gone a step further than merely informing users of their rights in using the service as it stands presently,  to ensuring that users can review and have knowledge of what information has been restricted and why. The judgment also does not touch upon broader issues of intermediary liability such as proactive filtering sought by government and private parties, an important consideration given the recent developments around the right to be forgotten in Europe and around issues of defamation and pornography in India. </span></span></span></p> <p style="text-align: justify; "><span><span><span>The judgment, while a welcome one in the direction of ensuring the Internet remains a democratic space where free speech thrives, could benefit from the application of the recently launched Manila principles developed by CIS and others. The Manila Principles is a framework of baseline safeguards and best practices that should be considered by policymakers and intermediaries when developing, adopting, and reviewing legislation, policies and practices that govern the liability of intermediaries for third-party content. </span></span></span></p> <p style="text-align: justify; "><span><span><span>The court's ruling is truly worth celebrating, in terms of the tone it sets on how we think of free speech and the contours of censorship that exist in the digital space. But the real impact of this judgment lies in the debates and discussions which it will throw open about content removal practices that involve intermediaries making determinations on requests received, or those which only respond to the interests of the party requesting removal. As the Manila Principles highlight a balance between public and private interests can be obtained through a mechanism where power is distributed between the parties involved, and where an impartial, independent, and accountable oversight mechanism exists. <br /></span></span></span></p> <p><span><span><span><br /></span></span></span></p> <p> For more details visit <a href='https://cis-india.org/internet-governance/blog/sc-judgment-in-shreya-singhal-what-it-means-for-intermediary-liability'>https://cis-india.org/internet-governance/blog/sc-judgment-in-shreya-singhal-what-it-means-for-intermediary-liability</a> </p> No publisher jyoti IT Act Censorship Freedom of Speech and Expression Internet Governance Intermediary Liability Chilling Effect 2015-04-17T23:59:34Z Blog Entry https://cis-india.org/internet-governance/blog/good-intentions-going-awry-i-why-india2019s-proposal-at-the-itu-is-troubling-for-internet-freedoms <b>The UN's International Telecommunications Union (ITU) is hosting its Plenipotentiary Conference (PP-14) this year in South Korea. At PP-14, India introduced a new draft resolution on ITU's Role in Realising Secure Information Society. The Draft Resolution has grave implications for human rights and Internet governance. Geetha Hariharan explores.</b> <p style="text-align: justify; "> </p> <p style="text-align: justify; ">At the 2014 Plenipotentiary Conference (‘PP-14’ or ‘Plenipot’) of the International Telecommunications Union (ITU), India has tabled <a href="https://cis-india.org/internet-governance/blog/india-draft-resolution-itus-role-in-securing-information-security/at_download/file">a draft proposal</a> on “ITU’s Role in Realising Secure Information Society” [Document 98, dated 20 October 2014] (“<strong>Draft Resolution</strong>”). India’s proposal has incited a great deal of concern and discussion among Plenipot attendees, governments and civil society alike. Before offering my concerns and comments on the Draft Resolution, let us understand the proposal.</p> <p style="text-align: justify; ">Our Draft Resolution identifies 3 security concerns with exchange of information and resource allocation on the Internet:</p> <ul style="text-align: justify; "> <li><i>First</i>, it is troubling for India that present network architecture has “<i>security weaknesses</i>” such as “<i>camouflaging the identity of the originator of the communication</i>”;<a href="#_ftn1">[1]</a> random IP address distribution also makes “<i>tracing of communication difficult</i>”;<a href="#_ftn2">[2]</a></li> <li><i>Second</i>, India is concerned that under the present allocation system of naming, numbering and addressing resources on the Internet, it is impossible or at the very least, cumbersome to identify the countries to which IP address are allocated;<a href="#_ftn3">[3]</a> </li> <li><i>Third</i>, India finds it insecure from the point of view of national security that traffic originating and terminating in the same country (domestic traffic) often routes through networks overseas;<a href="#_ftn4">[4]</a> similarly, local address resolution also routes through IP addresses outside the country or region, which India finds troubling.<a href="#_ftn5">[5]</a></li> </ul> <p style="text-align: justify; ">In an effort to address these concerns, the Draft Resolution seeks to instruct the ITU Secretary General:</p> <ul style="text-align: justify; "> <li><i>First</i>,<i> </i>to develop and recommend a ‘traffic routing plan’ that can “<i>effectively ensure the traceability of communication</i>”;<a href="#_ftn6">[6]</a></li> <li><i>Second</i>, to collaborate with relevant international and intergovernmental organisations to develop an<i> </i>“<i>IP address plan</i>”<i> </i>which facilitates identification of locations/countries to which IP addresses are allocated and coordinates allocation accordingly;<a href="#_ftn7">[7]</a></li> <li><i>Third</i>, to develop and recommend “<i>a public telecom network architecture</i>” that localizes both routing<a href="#_ftn8">[8]</a> as well as address resolution<a href="#_ftn9">[9]</a> for local/domestic traffic to “<i>within the country</i>”.</li> </ul> <p style="text-align: justify; ">Admittedly, our Draft Resolution is intended to pave a way for “<i>systematic, fair and equitable allocation</i>” of, <i>inter alia</i>, naming, numbering and addressing resources,<a href="#_ftn10">[10]</a> keeping in mind security and human rights concerns.<a href="#_ftn11">[11]</a> In an informal conversation, members of the Indian delegation echoed these sentiments. Our resolution does not, I was told, raise issues about the “<i>concentration of control over Internet resources</i>”, though “<i>certain governments</i>” have historically exercised more control. It also does not, he clarified, wish to make privacy or human rights a matter for discussion at the ITU. All that the Draft Resolution seeks to do is to equip the ITU with the mandate to prepare and recommend a “<i>roadmap for the systematization</i>” of allocation of naming, numbering and addressing resources, and for local routing of domestic traffic and address resolution. The framework for such mandate is that of security, given the ITU’s role in ‘building confidence and security in the use of ICTs’ under Action Line C5 of the <a href="http://www.itu.int/wsis/docs/geneva/official/poa.html">Geneva Plan of Action</a>, 2003.</p> <p style="text-align: justify; ">Unfortunately, the text of our Draft Resolution, by dint of imprecision or lack of clarity, undermines India’s intentions. On three issues of utmost importance to the Internet, the Draft Resolution has unintended or unanticipated impacts. <strong><i>First</i></strong>, its text on tracing communication and identity of originators, and systematic allocation of identifiable IP address blocks to particular countries, has impacts on privacy and freedom of expression. Given Edward Snowden’s <a href="http://www.theguardian.com/world/interactive/2013/nov/01/snowden-nsa-files-surveillance-revelations-decoded">NSA files</a> and the absence of adequate protections against government incursions or excesses into privacy,<a href="#_ftn12">[12]</a> either in international human rights law or domestic law, such text is troublesome. <strong><i>Second</i></strong>, it has the potential to undermine multi-stakeholder approaches to Internet governance by proposing text that refers almost exclusively to sovereign monopolies over Internet resource allocation, and <strong><i>finally</i></strong>, displays a certain disregard for network architecture and efficiency, and to principles of a free, open and unified Internet, when it seeks to develop global architecture that facilitates (domestic) localization of traffic-routing, address resolution and allocation of naming, numbering and addressing.</p> <p style="text-align: justify; ">In this post, I will address the first concern of human rights implications of our Draft Resolution.<span> </span></p> <h3 style="text-align: justify; ">Unintended Implications for Privacy and Freedom of Expression:</h3> <p style="text-align: justify; ">India’s Draft Resolution has implications for individual privacy. At two different parts of the preamble, India expresses concerns with the impossibility of locating the user at the end of an IP address:</p> <ul style="text-align: justify; "> <li>Pream. §(e): “<i>recognizing</i>… that the modern day packet networks, which at present have many security weaknesses, <i>inter alia</i>, camouflaging the identity of originator of the communication”;</li> <li>Pream. §(h): “<i>recognizing</i>… that IP addresses are distributed randomly, that makes the tracing of communication difficult”.</li> </ul> <p style="text-align: justify; ">The concerns here surround difficulties in tracking IP addresses due to the widespread use of NATs, as also the existence of IP anonymisers like Tor. Anonymisers like Tor permit individuals to cover their online tracks; they conceal user location and Internet activity from persons or governments conducting network surveillance or traffic analysis. For this reason, Tor has caused much discomfort to governments. <a href="http://www.wired.com/2014/10/laura-poitras-crypto-tools-made-snowden-film-possible/">Snowden used Tor</a> while communicating with Laura Poitras. Bradley (now Chelsea) Manning of Wikileaks fame is<i> </i><a href="http://belfercenter.ksg.harvard.edu/files/maurer-dp-2011-10-wikileaks-final.pdf">reported</a> to have used Tor (page 24). Crypto is increasingly the safest – perhaps the only safe – avenue for political dissidents across the world; even Internet companies were <a href="http://gizmodo.com/the-nsa-was-going-to-fine-yahoo-250k-a-day-if-it-didnt-1633677548">coerced</a> into governmental compliance. No wonder, then, that governments are doing all they can to dismantle IP anonymisers: the <a href="http://arstechnica.com/security/2013/10/nsa-repeatedly-tries-to-unpeel-tor-anonymity-and-spy-on-users-memos-show/">NSA</a> and <a href="http://www.itproportal.com/2013/10/04/nsa-and-gchq-repeatedly-tried-infiltrate-tor-documents-reveal/">GCHQ</a> have tried to break Tor; the Russian government has <a href="http://www.bloomberg.com/news/2014-07-29/putin-sets-110-000-bounty-for-cracking-tor-as-anonymous-internet-usage-in-russia-surges.html">offered a reward</a> to anyone who can.</p> <p style="text-align: justify; ">Far be it from me to defend Tor blindly. There are reports <a href="http://www.theguardian.com/world/2013/oct/04/nsa-gchq-attack-tor-network-encryption">suggesting</a> that Tor is being <a href="http://news.softpedia.com/news/Tor-Attracts-More-and-More-Cybercriminals-Experts-Warn-430659.shtml">used by offenders</a>, and not merely those of the Snowden variety. But governments must recognize the very obvious trust deficit they face, especially after <a href="http://www.statewatch.org/news/2014/may/ep-LIBE-Inquiry-NSA-Surveillance.pdf">Snowden’s revelations</a>, and consider the implications of seeking traceability and identity/geolocation for every IP address, in a systematic manner. The implications are for privacy, a right guaranteed by Article 17 of the International Covenant on Civil and Political Rights (ICCPR). Privacy has been <a href="http://www.hrw.org/sites/default/files/related_material/UNGA_upload_0.pdf">recognized</a> by the UN General Assembly as applicable in cases of surveillance, interception and data collection, in Pream. §4 of its resolution <i>The Right to Privacy in the Digital Age</i>. But many states do not have robust privacy protections for individuals and data. And while governments may state the necessity to create international policy to further effective criminal investigations, such an aim cannot be used to nullify or destroy the rights of privacy and free speech guaranteed to individuals. Article 5(1), ICCPR, codifies this principle, when it states that States, groups or persons may not “<i>engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein…</i>”.</p> <p style="text-align: justify; "><span>Erosion of privacy has a chilling effect on free speech [</span><i><a href="http://www.law.cornell.edu/supremecourt/text/376/254">New York Times v. Sullivan</a></i><span>, 376 U.S. 254], so free speech suffers too. Particularly with regard to Tor and identification of IP address location and users, anonymity in Internet communications is at issue. At the moment, most states already have anonymity-restrictions, in the form of identification and registration for cybercafés, SIM cards and broadband connections. For instance, Rule 4 of India’s </span><a href="http://deity.gov.in/sites/upload_files/dit/files/GSR315E_10511(1).pdf">Information Technology (Guidelines for Cyber Cafe) Rules, 2011</a><span>, mandates that we cannot not use computers in a cybercafé without establishing our identities. But our ITU Draft Resolution seeks to </span><i>dismantle</i><span> the ability of Internet users to operate anonymously, be they political dissidents, criminals or those merely acting on their expectations of privacy. Such dismantling would be both violative of international human rights law, as well as dangerous for freedom of expression and privacy in principle. Anonymity is integral to democratic discourse, held the US Supreme Court in </span><i><a href="http://www.law.cornell.edu/supct/html/93-986.ZO.html">McIntyre v. Ohio Elections Commission</a></i><span> [514 U.S. 334 (1995)].</span><a href="#_ftn13">[13]</a><span> Restrictions on Internet anonymity facilitate communications surveillance and have a chilling effect on the free expression of opinions and ideas, </span><a href="http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session23/A.HRC.23.40_EN.pdf">wrote Mr. Frank La Rue</a><span>, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (¶¶ 48-49).</span></p> <p style="text-align: justify; ">So a law or international policy for blanket identification and traceability of IP addresses has grave consequences for and <i>prima facie </i>violates privacy, anonymity and freedom of speech. But these rights are not absolute, and can be validly restricted. And because these human rights are implicated, the ITU with its lack of expertise in the area may not be the adequate forum for discussion or study.</p> <p style="text-align: justify; "><span>To be valid and justified interference, any law, policy or order interfering with privacy and free speech must meet the standards of reasonableness and proportionality, even if national security were the government’s legitimate aim, laid down in Articles 19(3) and 17 of the Covenant on Civil and Political Rights (CCPR) [</span><i><a href="http://www1.umn.edu/humanrts/undocs/html/vws488.htm">Toonen v. Australia</a></i><span>, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994), ¶6.4]. And as the European Court of Human Rights found in </span><i><a href="http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-76586">Weber &amp; Saravia v. Germany</a></i><span> [Application no. 54934/00, 29 June 2006 (ECHR), ¶95], law or executive procedure that </span><i>enables</i><span> surveillance without sufficient safeguards is </span><i>prima facie</i><span> unreasonable and disproportionate. Re: anonymity, in </span><i><a href="http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-126635">Delfi AS v. Estonia</a></i><span> [Application no. 64569/09, 17 February 2014, ¶83], while considering the liability of an Internet portal for offensive anonymous comments, the ECHR has emphasized the importance of balancing freedom of expression and privacy. It relied on certain principles such as “</span><i>contribution to a debate of general interest, subject of the report, the content, form and consequences of the publication</i><span>” to test the validity of government’s restrictions.</span></p> <p style="text-align: justify; ">The implications of the suggested text of India’s Draft Resolution should then be carefully thought out. And this is a good thing. For one must wonder why governments need perfect traceability, geolocation and user identification for <i>all</i> IP addresses. Is such a demand really different from mass or blanket surveillance, in scale and government tracking ability? Would this not tilt the balance of power strongly in favour of governments against individuals (citizens or non-citizens)? This fear must especially arise in the absence of domestic legal protections, both in human rights, and criminal law and procedure. For instance, India’s Information Technology Act, 2000 (amended in 2008) has Section 66A, which criminalizes offensive speech, as well as speech that causes annoyance or inconvenience. Arguably, arrests under Section 66A have been <a href="http://timesofindia.indiatimes.com/city/bangalore/Man-arrested-for-allegedly-sending-offensive-MMS-against-Modi-confirmed-innocent-by-police-released/articleshow/35624351.cms">arbitrary</a>, and traceability may give rise to a host of new worries.</p> <p style="text-align: justify; "><span>In any event, IP addresses and users can be discerned under existing domestic law frameworks. Regional Internet Registries (RIR) such as APNIC allocate blocks of IP addresses to either National Internet Registries (NIR – such as IRINN for India) or to ISPs directly. The ISPs then allocate IP addresses dynamically to users like you and me. Identifying information for these ISPs is maintained in the form of </span><a href="http://www.irinn.in/whoisSearchform.action">WHOIS records</a><span> and </span><a href="file://localhost/pub/stats/apnic">registries</a><span> with RIRs or NIRs, and this information is public. ISPs of most countries require identifying information from users before Internet connection is given, i.e., IP addresses allocated (mostly by dynamic allocation, for that is more efficient). ISPs of some states are also regulated; in India, for instance, ISPs require a </span><a href="http://www.dot.gov.in/licensing/data-services">licence</a><span> to operate and offer services.</span></p> <p style="text-align: justify; ">If any government wished, on the basis of some reasonable cause, to identify a particular IP address or its user, then the government could first utilize WHOIS to obtain information about the ISP. Then ISPs may be ordered to release specific IP address locations and user information under executive or judicial order. There are also technical solutions, such as <a href="http://traceroute.monitis.com/">traceroute</a> or <a href="http://ip-lookup.net/">IP look-up</a> that assist in tracing or identifying IP addresses. Coders, governments and law enforcement must surely be aware of better technology than I.</p> <p style="text-align: justify; ">If we take into account this possibility of geolocation of IP addresses, then the Draft Resolution’s motivation to ‘systematize’ IP address allocations on the basis of states is unclear. I will discuss the implication of this proposal, and that of traffic and address localization, in my next post.</p> <p style="text-align: justify; "> </p> <hr size="1" style="text-align: justify; " width="33%" /> <p style="text-align: justify; "><a href="#_ftnref1">[1]</a> Pream. §(e), Draft Resolution: “recognizing… that the modern day packet networks, which at present have many security weaknesses, inter alia, camouflaging the identity of originator of the communication”.</p> <p style="text-align: justify; "><a href="#_ftnref2">[2]</a> Pream. §(h), Draft Resolution: “recognizing… that IP addresses are distributed randomly, that makes the tracing of communication difficult”.</p> <p style="text-align: justify; "><a href="#_ftnref3">[3]</a> Op. §1, Draft Resolution: “instructs the Secretary General… to collaborate with all stakeholders including International and intergovernmental organizations, involved in IP addresses management to develop an IP address plan from which IP addresses of different countries are easily discernible and coordinate to ensure distribution of IP addresses accordingly”.</p> <p style="text-align: justify; "><a href="#_ftnref4">[4]</a> Pream. §(g), Draft Resolution: “recognizing… that communication traffic originating and terminating in a country also many times flows outside the boundary of a country making such communication costly and to some extent insecure from national security point of view”.</p> <p style="text-align: justify; "><a href="#_ftnref5">[5]</a> Pream. §(f), Draft Resolution: “recognizing… that even for local address resolution at times, system has to use resources outside the country which makes such address resolution costly and to some extent insecure from national security perspective”.</p> <p style="text-align: justify; "><a href="#_ftnref6">[6]</a> Op. §6, Draft Resolution: “instructs the Secretary General… to develop and recommend a routing plan of traffic for optimizing the network resources that could effectively ensure the traceability of communication”.</p> <p style="text-align: justify; "><a href="#_ftnref7">[7]</a> Op. §1, Draft Resolution; <i>see</i> note 3.</p> <p style="text-align: justify; "><a href="#_ftnref8">[8]</a> Op. §5, Draft Resolution: “instructs the Secretary General… to develop and recommend public telecom network architecture which ensures that effectively the traffic meant for the country, traffic originating and terminating in the country remains within the country”.</p> <p style="text-align: justify; "><a href="#_ftnref9">[9]</a> Op. §4, Draft Resolution: “instructs the Secretary General… to develop and recommend public telecom network architecture which ensures effectively that address resolution for the traffic meant for the country, traffic originating and terminating in the country/region takes place within the country”.</p> <p style="text-align: justify; "><a href="#_ftnref10">[10]</a> Context Note to Draft Resolution, ¶3: “Planning and distribution of numbering and naming resources in a systematic, equitable, fair and just manner amongst the Member States…”</p> <p style="text-align: justify; "><a href="#_ftnref11">[11]</a> Context Note to Draft Resolution, ¶2: “…there are certain areas that require critical attention to move in the direction of building the necessary “Trust Framework” for the safe “Information Society”, where privacy, safety are ensured”.</p> <p style="text-align: left; "><a href="#_ftnref12">[12]</a> <i>See, for instance</i>, Report of the Office of the High Commission for Human Rights (“OHCHR”), <i>Right to Privacy in the Digital Age</i>, A/HRC/27/37 (30 June 2014), ¶34-35, <a href="http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session27/Documents/A.HRC.27.37_en.pdf">http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session27/Documents/A.HRC.27.37_en.pdf</a>. <i>See esp. </i>note 30 of the Report, ¶35.</p> <p style="text-align: justify; "><a href="#_ftnref13">[13]</a> Many thorny political differences exist between the US and many states (including India and Kenya, who I am told has expressed preliminary support for the Draft Resolution) with regard to Internet governance. Irrespective of this, the US Constitution’s First Amendment and judicial protections to freedom of expression remain a yardstick for many states, including India. India, for instance, has positively referred to the US Supreme Court’s free speech protections in many of its decisions; <i>ex. see</i> Kharak Singh v. State of Uttar Pradesh, 1963 Cri. L.J. 329; R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264.</p> <p> For more details visit <a href='https://cis-india.org/internet-governance/blog/good-intentions-going-awry-i-why-india2019s-proposal-at-the-itu-is-troubling-for-internet-freedoms'>https://cis-india.org/internet-governance/blog/good-intentions-going-awry-i-why-india2019s-proposal-at-the-itu-is-troubling-for-internet-freedoms</a> </p> No publisher geetha Cryptography Privacy Cybersecurity Internet Governance Freedom of Speech and Expression Chilling Effect Multi-stakeholder Anonymity ITU 2014-11-02T15:13:45Z Blog Entry https://cis-india.org/internet-governance/news/the-times-of-india-sandhya-soman-april-19-2015-net-neutrality-net-activism-packs-a-punch <b>For the first time in the history of internet campaigns in India, a protest movement has successfully changed the course of a debate without having to take to the streets. The net neutrality movement is being fought almost totally in the virtual world. Hashtag activism isn't new in India. In recent times, several big campaigns have been bolstered by the internet which helped mobilize mass support and kept people constantly updated on events. Pink Chaddi, Jan Lokpal and the Nirbhaya movements were some examples of successful on-the-ground campaigns that were galvanized by social media. But they still needed public action — dharnas, candlelight vigils and actual pink undies — to make a difference. </b> <p style="text-align: justify; ">The article by Sandhya Soman was <a class="external-link" href="http://timesofindia.indiatimes.com/tech/tech-news/Net-neutrality-Net-activism-packs-a-punch/articleshow/46973783.cms">published in the Times of India</a> on April 19, 2015. Pranesh Prakash was quoted.</p> <hr /> <p style="text-align: justify; ">But the ongoing battle for internet freedom has proved that clicktivism isn't just about passive engagement with a cause. While it's all too easy to 'like' a cause, leading to what David Carr describes as "favoriting fatigue" in an article in the New York Times, some clicks can count in the real world.</p> <p style="text-align: justify; ">It all started when the Telecom Regulatory Authority of India (Trai) posted a vaguely worded and complicated discussion paper on net neutrality and called for public responses to it. "Clearly, many people understood that some of the proposals put forward by Trai in its paper threatened the internet as they knew it," says Anja Kovacs, who directs the Internet Democracy Project and has closely followed online activism in India.</p> <p style="text-align: justify; ">Soon, an unlikely collective of techies, lawyers, journalists and even stand-up comics had banded together. Some of them — such as tech entrepreneur Kiran Jonnalagadda and journalist Nikhil Pahwa — had been writing and tweeting about the issue for a while but the Trai paper galvanized them. "I dropped everything and asked for help. Kiran, (lawyers) Apar Gupta amd Raman Chima, Sandeep Pillai, standup group All India Bakchod and several Reddit India users (some of whom remain anonymous), started getting involved," says Pahwa, who is the founder of Medianama. The only common factor was their love for internet and an acute worry what this policy consultation might do to destroy its open and equal nature.</p> <p style="text-align: justify; ">Though scattered across India, once they came together online, this 'apolitical collective' was able to rope in engineers, developers, open source activists, entrepreneurs, policy experts, lawyers and journalists as volunteers.</p> <p style="text-align: justify; ">The best way to counter propaganda and opposition was to get people involved. An abridged version of the voluminous Trai paper was posted online, and a FAQ section created on a public Google Doc. "Many came forward to answer the questions and that exercise helped create an understanding of the situation," explains Pahwa. By the time, Jonnalagadda and a few other developers set up the savetheinternet.in website by April 1, there was enough information and data points. Lawyers Gupta and Chima had also decoded the legalese and prepared cogent answers to Trai's 20 questions. This was turned into a ready-to-use email template for users to hit 'send'.</p> <p style="text-align: justify; ">And send they did. The flood of emails to the Trai inbox number is already 803,723 and counting. The results of the social media backlash are evident — with e-commerce retailer Flipkart pulling out of Airtel Zero and several websites backing out of Facebook and Reliance's internet.org. "I was hoping to get around 15,000 responses to counter, say, 15 from the telecom lobby. Now, people make fun of me because I said that," laughs Pahwa. In this case, what also struck a chord was the idea of a bunch of young guys using tech to take on mismanagement by the older generation and corporate greed, says entrepreneur Mahesh Murthy. "We were telling them we like things on the internet as they are now."</p> <p style="text-align: justify; ">But it is hard to sustain online outrage without an action plan, relentless groundwork and some comic warfare. So, when the contentious paper came out on March 27, the website was followed by AIB's punchy video that decoded the concept and took irreverent potshots at those who wanted to limit access while urging people to write to Trai. A lot of the lessons for the campaign came from the US where a John Oliver video turned the tide in the net neutrality debate. "We had seen that several people don't take internet petitions seriously. Also, we wanted to follow the proper legal course in this issue and not hold dharnas," says Jonnalagadda.</p> <p style="text-align: justify; ">It is also important for campaigns to result in doable action. As Kovacs points out, savetheinternet.in and netneutrality. in gave users practical tools to respond before the April 24 deadline. The team also kept clarifying doubts and complex concepts on social media and also had an AMA (ask me anything) chat on Scrollback on Saturday while the 'other side' stuck to big words and jargon.</p> <p style="text-align: justify; ">Of course, like every movement, this one too has attracted criticism. The proneutrality band has been branded as socialist and utopian and there were intense arguments amongst supporters. "Disagreements and arguments are not unique to the activism online," says Pranesh Prakash, policy director at Centre for Internet and Society.</p> <p style="text-align: justify; ">Earlier in the debate, Prakash had said he'd received strong pushback from friends and allies when he spoke about the possible benefits of non-competitive zero rating, an example would be allowing companies to offer free access to their sites and apps via an arrangement with a telecom company — if effective competition exists. Airtel Zero and Reliance's Internet.org claim to do the same though most supporters remain critical. Says Prakash: "There might've been differences. But the fact that a lot of people are thinking about effects of 'free', and comparing it to predatory pricing shows that #savetheinternet is one of the better examples of engaged activism."<br /> <br /> Online campaigns have previously also successfully mobilized people to get involved in issues they do not know much about, says author Nilanajana Roy, who is an influential voice on Twitter. The J&amp;K flood relief efforts last year started on Twitter but got volunteers moving on the ground, she says. "People don't always realize what they care strongly about so, despite the risk of compassion fatigue or armchair volunteerism, it's worth having some online activism," says Roy.<br /> <br /> Meanwhile, those behind the savetheinternet campaign are struggling with their new-found identity as "activists". "I think of myself as a venture capitalist and marketing consultant, not a khadi kurta-jholawala from JNU," says Mahesh Murthy, among those who strongly support the movement.<br /> <br /> And at the end of the day, most of these activists would like to go back to their cubicles, free to browse or start a business. But not before they've tried to keep the internet open.</p> <p> For more details visit <a href='https://cis-india.org/internet-governance/news/the-times-of-india-sandhya-soman-april-19-2015-net-neutrality-net-activism-packs-a-punch'>https://cis-india.org/internet-governance/news/the-times-of-india-sandhya-soman-april-19-2015-net-neutrality-net-activism-packs-a-punch</a> </p> No publisher praskrishna Freedom of Speech and Expression Internet Governance Chilling Effect Censorship 2015-05-09T09:02:03Z News Item https://cis-india.org/internet-governance/news/idg-news-service-august-2-2015-indian-govt-orders-isps-to-block-857-porn-websites <b>The Indian government has ordered a large number of porn websites to be blocked, creating an uproar among users and civil rights groups in the country.</b> <p style="text-align: justify; "><span> </span>The blog post by John Ribeiro was <a class="external-link" href="http://www.pcworld.com/article/2955832/indian-government-orders-isps-to-block-857-porn-websites.html">originally published by IDG News Service and mirrored on PC World website</a> on August 2, 2015.</p> <p><section class="page"> <p style="text-align: justify; ">The Department of Telecommunications has issued orders for the blocking of 857 websites serving pornography, said two persons familiar with the matter, who declined to be named.</p> <p style="text-align: justify; ">Section 69 (A) of India’s Information Technology Act allows the government to order blocking of public access to websites and other information through computer resources, though this section appears to be designed to be invoked when a threat is perceived to the sovereignty and integrity of India, security of the state, friendly relations with foreign states or public order.</p> <p style="text-align: justify; ">“The government cannot on its own block private access to pornography under current statutes,” said Pranesh Prakash, policy director of the Centre for Internet and Society in Bangalore. “Parliament has not authorized the government to ban porn on its own.”</p> <p style="text-align: justify; ">“However, courts have in the past ordered specific websites to be blocked for specific offences such as defamation, though as far as I know not for obscenity,” Prakash added.</p> <p>Viewing pornography privately is not a crime in the country, though its sale and distribution is an offense.</p> <p style="text-align: justify; ">Some porn websites were still accessible through certain Internet service providers on Monday, as some ISPs took some time to implement the order. “All the 857 websites will be blocked by all ISPs today,” said a source in the ISP industry, who requested anonymity. “As licensees we have to follow the orders.”</p> <p>The government could not be immediately reached for comment.</p> <aside class="desktop tablet smartphone nativo-promo"> </aside> <p>Reports of the blocks created a furore among Internet users in the country, who criticized the move on <a href="http://www.reddit.com/r/india/comments/3fdwhm/are_porn_sites_getting_blocked/">Reddit,</a> Twitter and other social media.</p> <p style="text-align: justify; ">India’s Supreme Court struck down in March as unconstitutional an Internet law that provided for the arrest of people sending online messages considered offensive or menacing. But it upheld Section 69 (A) in that same ruling, which it described as a “narrowly drawn provision” limited to a few subjects.</p> <p style="text-align: justify; ">In a public interest lawsuit <a href="http://www.thehindu.com/news/national/cant-stop-an-adult-from-watching-porn-in-his-room-says-sc/article7400690.ece">on the blocking of pornography</a>, the Supreme Court last month declined to issue an interim order that would block porn websites at the request of the private litigant, according to a report.</p> </section></p> <p> For more details visit <a href='https://cis-india.org/internet-governance/news/idg-news-service-august-2-2015-indian-govt-orders-isps-to-block-857-porn-websites'>https://cis-india.org/internet-governance/news/idg-news-service-august-2-2015-indian-govt-orders-isps-to-block-857-porn-websites</a> </p> No publisher pranesh Freedom of Speech and Expression Internet Governance Chilling Effect 2015-09-13T08:18:33Z News Item https://cis-india.org/internet-governance/news/hindustan-times-august-3-2015-siladitya-ray-proxies-and-vpns <b>The government's move to block more than 800 pornographic websites has led experts to question whether this latest attempt to police the internet is even feasible. </b> <p style="text-align: justify; ">The article by Siladitya Ray was <a class="external-link" href="http://www.hindustantimes.com/technology-topstories/is-the-government-s-attempt-to-block-online-porn-futile/article1-1375866.aspx">published in the Hindustan Times</a> on August 3, 2015. Pranesh Prakash was quoted.</p> <hr /> <p style="text-align: justify; ">Internet service providers (ISPs) have confirmed they received letters from the Department of Telecommunications (DoT) on Saturday that directed them to block certain websites. But can the government stop users from visiting porn sites?</p> <p style="text-align: justify; ">The answer seems to be no.</p> <p style="text-align: justify; ">"It is extremely easy to circumvent these blocks, using virtual private networks (VPNs) and proxies that anonymise your traffic," said Pranesh Prakash, policy director at the Centre for Internet and Society in Bengaluru.</p> <p style="text-align: justify; ">A cursory Google search on how to unblock porn websites throws up millions of how-tos and guides on using proxies and VPNs to get around restrictions set by authorities. All these services anonymise users’ web traffic by routing them through foreign servers.</p> <p style="text-align: justify; ">According to data from Pornhub, one of the world's biggest porn sites, India ranks fifth for the most daily visitors to the website. Pornhub saw a total of 78.9 billion video views globally in 2014.</p> <p style="text-align: justify; ">The government can try to keep up with proxies and block them too. But as proxies change on a daily basis and there are always dozens of functioning proxies to choose from across, blocking all of them will be a near impossible task.</p> <p style="text-align: justify; ">Tor, an anonymity network, is also a popular way to surf blocked sites.</p> <p style="text-align: justify; ">But is it legal to circumvent blocks put in place by authorities by using VPNs and proxies?</p> <p style="text-align: justify; ">There is no law in India that prohibits viewing pornography, experts say. Section 67 of the Information Technology Act only deals with "publishing obscene information in electronic form".</p> <p style="text-align: justify; ">This provision has been interpreted as a measure to criminalise the posting of pornographic content online. However, accessing "obscene" content privately – such as within the four walls of a person’s home – is not illegal, say experts.</p> <p style="text-align: justify; ">In July, while hearing a petition seeking the blocking of pornographic websites, Supreme Court Chief Justice HL Dattu wondered whether the court could restrain an adult from watching pornography within his home and described such a ban as a violation of Article 21 of the Constitution, which grants the right to personal liberty to its citizens.</p> <p style="text-align: justify; ">But what about the legality of using VPNs and proxies? “There are no laws preventing the use of VPNs and proxies in India," said Prakash.</p> <p style="text-align: justify; "><b>Are proxies and VPNs safe?</b></p> <p style="text-align: justify; ">While the use of proxies and VPNs is very simple, they do come with their own set of problems. These services have access to all your browsing data and may push adware and other forms of malware.</p> <p style="text-align: justify; ">Prakash advised that users should only choose services that are well known and have a good reputation.</p> <p style="text-align: justify; ">"Sites like TorrentFreak put out annual lists of the top VPNs available," he said. These can be used as a guide to determine what services are safe.</p> <p style="text-align: justify; "><b> </b></p> <p> For more details visit <a href='https://cis-india.org/internet-governance/news/hindustan-times-august-3-2015-siladitya-ray-proxies-and-vpns'>https://cis-india.org/internet-governance/news/hindustan-times-august-3-2015-siladitya-ray-proxies-and-vpns</a> </p> No publisher pranesh Freedom of Speech and Expression Internet Governance Chilling Effect Censorship 2015-09-13T08:26:17Z News Item https://cis-india.org/internet-governance/news/business-standard-august-4-2015-ban-on-pornography-temporary-says-government <b>The government has taken a dramatic U-turn from its stated position on internet pornography.</b> <p style="text-align: justify; ">The article was <a class="external-link" href="http://www.business-standard.com/article/current-affairs/ban-on-pornography-temporary-says-government-115080301262_1.html">published in Business Standard</a> on August 4, 2015. Pranesh Prakash has been quoted.</p> <hr /> <p style="text-align: justify; "><span class="p-content">A year after conveying to the Supreme Court that a blanket ban on internet pornography was not possible, through the department of electronics and information technology, it has asked internet providers to disable 857 websites that carry adult content. A senior official from the department of telecommunications (DoT) said the ban was a temporary measure, till the final order is announced by the apex court on August 10.</span></p> <p style="text-align: justify; "><span class="p-content"><span class="p-content"> The government is looking at setting up an ombudsman to oversee cyber content, which will have representatives from NGOs, child activists and the government. The DoT official said, “There has to be some kind of regulatory oversight away from the government intervention… An ombudsman might be set up for overseeing cyber related content issues.”</span></span></p> <p style="text-align: justify; "><span class="p-content"><span class="p-content"><span class="p-content">The genesis of the current notification lies in the public interest litigation (PIL) filed by advocate Vijay Panjwani in April 2013. The PIL has sought curbs on these websites on the internet, especially the ones showing child pornography. The senior DoT official conveyed that the blocking of 857 websites was in compliance with the SC directive asking for measures to block porn sites, particularly those dealing with child pornography.</span></span></span></p> <p style="text-align: justify; "><span class="p-content">The July 31 notification from DoT has advised internet service licensees to disable content on 857 websites, as the content "hosted on these websites relates to morality and decency as given in Article 19(2) of the Constitution of India". The government had stated last year that it was not technologically feasible to monitor such contents as it would require physical intervention, which would impact data speeds.<br /> <br /> In December 2014, the government had approached telecom providers and internet service providers to help identify such sites, but the service providers did not cooperate. Consequently, the government has gone ahead and identified 857 websites. However, the government has not given any detail as what was the criterion to identify such websites.<br /> <br /> Pranesh Prakash, policy director at the Centre for Internet and Society, says DoT has used the provision of 79 (3) (b) of the IT Act, which is a convoluted Section that the intermediatory (ISPs) may lose protection from liability. This section is very convulated, the provisions for website blocking does not allow blocking porn. In section 69 (a), the entire procedure is that it allows an opportunity for the blocked website to be heard. “I can't comment on the reasons that the government for doing this. I know the order says the ban relates to morality, decency," adds Prakash.<br /> <br /> Last year, the government took a position that said blocking these websites was not feasible, given that these sites are hosted outside India. In case of any ban, these sites can be relocated within hours to bypass it. Pavan Duggal, an advocate who specialises in cyber laws, has called the disablement 'cosmetic,' as it will not have the requisite deterrent effect. Duggal says: "This is a lost battle from the word go, as it is impossible to disable access permanently."<br /> <br /> Watching such content in India is currently not an offence and, thus, the government is invoking “morality and decency” while seeking a curb on a fundamental right — Freedom of Speech &amp; Expression. Under Article 19 (2) of the Constitution, the state can curb a fundamental right in order to maintain public order, decency or morality.<br /> </span></p> <hr /> <p><span><span><b>TO BAN OR NOT TO BAN</b></span></span><br /> <br /> <b>2013</b></p> <ul> <li> Advocate Vijay Panjwani &amp; Kamlesh Vaswani file PIL seeking curbs on internet pornography</li> </ul> <p><b>Aug 2014</b></p> <ul> <li> Supreme Court bench under Chief Justice R M Lodha agreed with the PIL and sought strict laws to curb online content</li> </ul> <p><b>8 Jul 2015</b></p> <ul> <li> Chief Justice of India H L Dattu upholds personal liberty and refuses to pass an interim order. Asks government to take a stand on the issue</li> <li> CJI, heading a three-judge Bench, asks government to a detailed affidavit within four weeks</li> </ul> <p><b>Jul 31</b></p> <ul> <li> DoT sends notification seeking ban on 857 websites</li> <li> Currently, there are no laws banning internet pornography in India, other than those related to children</li> <li> Government’s stated position has been that it is difficult to curb online content</li> </ul> <p> For more details visit <a href='https://cis-india.org/internet-governance/news/business-standard-august-4-2015-ban-on-pornography-temporary-says-government'>https://cis-india.org/internet-governance/news/business-standard-august-4-2015-ban-on-pornography-temporary-says-government</a> </p> No publisher pranesh Internet Governance Chilling Effect Censorship 2015-09-13T08:46:24Z News Item