The Centre for Internet and Society
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You can still get into trouble for online posts: Digital law experts
https://cis-india.org/internet-governance/news/times-of-india-march-30-2015-kim-arora-you-can-still-get-into-trouble-for-online-posts
<b>The internet in India is freer now, but individuals could still to get into trouble for online posts, say digital media and law experts. Hailing the Supreme Court judgment on Tuesday as a landmark verdict for free speech in India, experts who have closely read the judgment say there is much to be careful about too. </b>
<p style="text-align: justify; ">The article by Kim Arora was <a class="external-link" href="http://timesofindia.indiatimes.com/tech/tech-news/You-can-still-get-into-trouble-for-online-posts-Digital-law-experts/articleshow/46741580.cms">published in the Times of India</a> on March 30, 2015. Sunil Abraham is quoted.</p>
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<p style="text-align: justify; ">The scrapping of the contentious section doesn't mean that one has a free run, cautions Sunil Abraham, executive director, Centre for Internet and Society. An online comment can still land you in jail, he says.<br /><br />"The judgement in no way means that speech on online platforms will be unregulated now. You can still be charged for pornography or voyeurism under the IT Act. There are many provisions in the Constitution and Indian Penal Code that the government can use to target people it wants to go after. You can be still charged for hate speech or defamation - which is a criminal offence in India - for an online comment," says Abraham.</p>
<p style="text-align: justify; ">While lawyer Apar Gupta found the judgment to be forward-looking, he pointed to Para 98 of the 120 page judgment, which addresses Article 14 of the Constitution regarding "discrimination" and talks of the distinction between online and other media.</p>
<p style="text-align: justify; ">"We make it clear that there is an intelligible differentia between speech on the internet and other mediums of communication for which separate offences can certainly be created by legislation," says the judgment. "The court has indicated that special offences can be created for the internet. Constant vigilance is the price of liberty. We need to constantly engage with these issues to keep the internet free," says Gupta.</p>
<p style="text-align: justify; ">The judgment has been praised for making a distinction between online posts and messages that pertain to advocacy, discussion and incitement. "This is an excellent decision. The SC is saying that no matter what the medium, we stand for constitutional rights. The judges were ready to listen, and ready to share their experience of using the internet also," says Mishi Choudhary, legal director at Software Freedom Law Center, adding, "It was a lost opportunity for the Modi government. They should have gotten rid of section 66 A themselves."</p>
<p style="text-align: justify; ">Section 69A of the Act, which stands as is, allows non-transparent blocking of online content 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." However, Choudhary says that since it is a narrowly-drawn provision, it ensures more safeguards.</p>
<p style="text-align: justify; ">"It will be noticed that Section 69A unlike Section 66A is a narrowly drawn provision with several safeguards. First and foremost, blocking can only be resorted to where the Central Government is satisfied that it is necessary so to do. Secondly, such necessity is relatable only to some of the subjects set out in Article 19(2). Thirdly, reasons have to be recorded in writing in such blocking order so that they may be assailed in a writ petition under Article 226 of the Constitution," she says.</p>
<p style="text-align: justify; ">Going forward, the government plan of action should focus on balancing safety and freedom on the internet, says Rajya Sabha MP Rajeev Chandrasekhar, who himself was one of the petitioners. "The final endgame has to be one where we have a new law or even a new IT Act which meets the twin objectives of a safe and free internet. The two need not be mutually exclusive," he says.</p>
<p style="text-align: justify; "><i>(With inputs from Anand J in Bengaluru) </i></p>
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For more details visit <a href='https://cis-india.org/internet-governance/news/times-of-india-march-30-2015-kim-arora-you-can-still-get-into-trouble-for-online-posts'>https://cis-india.org/internet-governance/news/times-of-india-march-30-2015-kim-arora-you-can-still-get-into-trouble-for-online-posts</a>
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No publisherpraskrishnaIT ActCensorshipFreedom of Speech and ExpressionInternet GovernanceChilling Effect2015-04-02T01:44:32ZNews Item Women arrested for Facebook post: Did cops act under Sena pressure?
https://cis-india.org/news/ndtv-video-ndtv-special-ndtv-24x7
<b>After Bal Thackeray's death, during the Mumbai Bandh, a 21-year-old criticised the shutdown on her Facebook page — her friend approved of it — next thing they know, they are facing a case, and this morning they were arrested. </b>
<p style="text-align: justify; ">YP Singh, Alyque Padamsee, Rohan Joshi, Karuna Nundy and Pranesh Prakash took part in a discussion about the arrest of two girls over a Facebook comment. The discussion was aired in NDTV on November 19, 2012.</p>
<p style="text-align: justify; ">The anchor asked Pranesh Prakash:</p>
<p style="text-align: justify; ">Who are these people scrolling through people's Facebook posts and Twitter accounts, finding these comments and taking action?</p>
<p style="text-align: justify; ">Pranesh Prakash said that it could be anyone. The reality is doesn't really matter because the laws are written in such a way that if it is public and stuff that is on Facebook for different purposes can either be public or private, if it is public these laws can very often apply and that is a problem. We haven't quite figured out to what extent these laws apply. The IT Act section 66A for instance, is unconstitutional, section 295 A which has been applied, and section 505 which also seems to have been applied in this case make it a clear case of misappropriation of those provisions. These kind of arrests will happen. It doesn't quite matter if we have right laws at one level and it clearly doesn't help if we have bad laws. What we need to do at least in part to remedy the situation is to amend the IT Act to make it consonant and consistent with civil and political rights and to do so in multi-stakeholder fashion involving civil society, industry and government. Right now it doesn't protect privacy and freedom of speech as much as it should.</p>
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<p style="text-align: justify; "><a class="external-link" href="http://www.ndtv.com/video/player/ndtv-special-ndtv-24x7/women-arrested-for-facebook-post-did-cops-act-under-sena-pressure/255407?hp&video-featured">Watch the full video aired on NDTV</a></p>
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For more details visit <a href='https://cis-india.org/news/ndtv-video-ndtv-special-ndtv-24x7'>https://cis-india.org/news/ndtv-video-ndtv-special-ndtv-24x7</a>
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No publisherpraskrishnaIT ActFreedom of Speech and ExpressionInternet GovernanceVideoCensorship2012-11-21T11:17:37ZNews ItemWhat the experts said on live chat
https://cis-india.org/internet-governance/news/the-hindu-march-25-2015-what-the-experts-said-on-live-chat
<b>Three eminent panellists shared their views and answered questions from readers on the Supreme Court verdict striking down Section 66 A of the IT Act that allowed the arrest of people posting “offensive content” on the Internet, in a live chat hosted by The Hindu. </b>
<p style="text-align: justify; ">The article was published in the <a class="external-link" href="http://www.thehindu.com/news/national/what-the-experts-said-on-live-chat/article7029320.ece">Hindu</a> on March 25, 2015. Geetha Hariharan was one of the panelists.</p>
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<p style="text-align: justify; ">Does this now mean anything goes on the Internet, asked one reader.</p>
<p style="text-align: justify; ">“No, the standard penal laws — against defamation, hate speech (S. 153A), religious incitement (S. 295A) — continue to apply,” said Gautam Bhatia, a practicing lawyer and author of forthcoming book “Offend, shock or disturb: Free Speech under the Constitution.” The argument that the Internet needed separate rules when it came to the content of speech was what was rejected by the Court, he said.</p>
<p style="text-align: justify; ">What was the rationale for the Court upholding Section 69 A, allowing the blocking of websites, asked another.</p>
<p style="text-align: justify; ">“One wishes that the court had paid as much attention to the blocking orders as they did to 66A,” said Lawrence Liang, lawyer and researcher at Alternative Law Forum working on free speech.</p>
<p style="text-align: justify; ">Geetha Hariharan, a Programme Officer at Centre for Internet and Society, focusing on Internet governance and freedom of expression, was the third expert on the panel.</p>
<p style="text-align: justify; "><i>Click <a href="http://www.thehindu.com/news/national/live-chat-hope-for-free-speech/article7028037.ece?homepage=true&theme=true">here</a> to read the full transcript of the chat</i></p>
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For more details visit <a href='https://cis-india.org/internet-governance/news/the-hindu-march-25-2015-what-the-experts-said-on-live-chat'>https://cis-india.org/internet-governance/news/the-hindu-march-25-2015-what-the-experts-said-on-live-chat</a>
</p>
No publisherpraskrishnaIT ActCensorshipFreedom of Speech and ExpressionInternet GovernanceChilling Effect2015-03-26T02:35:49ZNews ItemWhat 66A 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
<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>
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<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 & 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>
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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 publishergeethaIT ActCensorshipFreedom of Speech and ExpressionInternet GovernanceChilling Effect2015-03-27T16:50:43ZBlog EntryWe the goondas
https://cis-india.org/news/bangalore-mirror-shyam-prasad-august-4-2014-we-the-goondas
<b>You can now be arrested in Karnataka even before you commit an offence under the IT Act. You could be in jail under the Goonda Act even if not guilty under the Indian Copyright Act. If govt thinks you are planning to send a 'lascivious' photo to a WhatsApp group, or forwarding a copyrighted song, you can be arrested.</b>
<p style="text-align: justify; ">The article by Shyam Prasad <a class="external-link" href="http://www.bangaloremirror.com/Bangalore/Cover-story/We-the-goondas/articleshow/39564603.cms">was published in the Bangalore Mirror</a> on August 4, 2014. Sunil Abraham gave his inputs.</p>
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<p style="text-align: justify; "><span id="advenueINTEXT">Have a smartphone? Run for cover. Bizarre as this might sound, the cops are going to come after you if you so much as forward a song to a friend. Forget actually doing it, any plans to do so could land you in serious trouble too. You could be labelled a 'goonda' in the eyes of the State and find yourself behind bars.</span></p>
<p style="text-align: justify; "><span><span id="advenueINTEXT">In a completely unfathomable move, Karnataka has brought most offences under the Information Technology Act, 2000, and Indian Copyright Act, 1957, under the ambit of the Goonda Act. Until now, people with a history of offences like bootlegging, drug offences and immoral trafficking could be taken into preventive custody. But the government, in its enthusiasm, while adding acid attackers and sexual predators to the law, has also added 'digital offenders'. While it was thought to be against audio and video pirates, Bangalore Mirror has found it could be directed at all those who frequent FB, Twitter and the online world, posting casual comments and reactions to events unfolding around them.</span></span></p>
<p style="text-align: justify; "><span><span><span id="advenueINTEXT">So if you are planning a digital 'offence' — which could be an innocuous opinion like the young girls' in Mumbai after the bandh declared on Bal Thackeray's death — that could attract the provisions of the Information Technology Act. You can even be taken into preventive custody like a 'goonda'. Even those given exceptions under the Indian Copyright Act can find themselves in jail for a year without being presented before a magistrate. Technically, if you are even planning to forward 'lascivious' memes and images to a WhatsApp group or forwarding a song or 'copyrighted' PDF book, you can be punished under the Goondas Act.</span></span></span></p>
<p style="text-align: justify; "><span><span><span><span id="advenueINTEXT">The law-makers clearly did not dwell much on the implications while bringing the majority of the populace within the ambit of this law. On July 28, the Karnataka Legislature passed (it took barely a minute from tabling to voice vote), 'The Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum-grabbers and Video or Audio Pirates, (Amendment) Bill, 2014'. The amendment adds, "Acid attackers, Depradator of Environment, Digital Offenders, Money Launderers and Sexual Predators", to the title. In common parlance, this law is known as the 'Goonda Act'.</span></span></span></span></p>
<p style="text-align: justify; "><span><span><span><span><span id="advenueINTEXT">The move has come as a shock to the legal community which has slammed it, terming it an attempt by the state to usurp central powers. The government had earlier included 'piracy' under the Goonda Act. But it was applicable only to those pirating film DVDs. Now, this will include books, film songs, music, software or anything big corporates and multinationals claim they have copyright on.</span></span></span></span></span></p>
<p style="text-align: justify; "><span><span><span><span><span><span id="advenueINTEXT">Sunil Abraham, executive director, Centre for Internet and Society, is left in no doubt that the new law is "a terrible thing". "It is a sad development. It is not just bringing the provisions of the IT Act, but also the Copyright Act, that will hurt the common man," he said.</span></span></span></span></span></span></p>
<p style="text-align: justify; "><span><span><span><span><span><span><span id="advenueINTEXT">'Digital Offenders' means "any person who knowingly or deliberately violates, for commercial purposes, any copyright law in relation to any book, music, film, software, artistic or scientific work and also includes any person who illegally enters through the identity of another user and illegally uses any computer or digital network for pecuniary gain for himself or any other person or commits any of the offences specified under sections 67, 68, 69, 70, 71, 72, 73, 74 and 75 of the Information Technology Act, 2000."</span></span></span></span></span></span></span></p>
<p style="text-align: justify; "><span><span><span><span><span><span><span><span id="advenueINTEXT">Section 67 of the IT Act will be the most dangerous for the common man with a smartphone in hand now. The section, "Publishing of information which is obscene in electronic form," includes "any material which is lascivious or appeal to the prurient interest." This could have a very broad interpretation.</span></span></span></span></span></span></span></span></p>
<p style="text-align: justify; "><span><span><span><span><span><span><span><span><span id="advenueINTEXT">Advocate Nagendra Naik says, "The Goonda Act provides for preventive arrest. In the Information Technology Act and The Copyright Act, you have to commit the offence to be arrested. But here, you can be taken into preventive custody even before you commit the said offences. In normal arrests, you can straightaway apply for bail. But under the Goonda Act, you cannot. There is a long process of review and you will be in custody at least till then. The third impact is, you can have a history sheet started against you by the police. Technically, your slips on WhatsApp will attract the Goonda Act against you."</span></span></span></span></span></span></span></span></span></p>
<p style="text-align: justify; "><span><span><span><span><span><span><span><span><span><span id="advenueINTEXT">Supreme Court advocate KV Dhananjay said the Goonda Act is a draconian piece of legislation and it necessarily mocks at the institution of courts and lawyers. "After the passage of the various amendments to the Goonda Act, Karnataka now looks like a mini North Korea where police mood swings will decide whether the ordinary citizen has any right at all," he said.</span></span></span></span></span></span></span></span></span></span></p>
<p style="text-align: justify; "><span><span><span><span><span><span><span><span><span><span><span id="advenueINTEXT">Advocate Shyam Sundar, says, "What if your smartphone has a list of repeated material sent out over days or weeks. Most people do not even know if their phones are affected by viruses which could be sending out such material. Another example is of Facebook. There are so many FB pages with pornographic content. If someone who has subscribed to such a page sends you a friend request and you accept it, that content will surface on your page. It will have a history of repetition. The amendment clearly opens up huge problems for the common people. There is no doubt of the law being grossly misused and the amendment to include provisions of the IT Act has been done without application of mind. What is lascivious appeal in the first place? A porn star has been made a film star in India. Is this not lust? Are there enough filters in place to secure your smartphone from online abuse?"</span></span></span></span></span></span></span></span></span></span></span></p>
<p style="text-align: justify; "><span><span><span><span><span><span><span><span><span><span><span><span id="advenueINTEXT">The new law will in all probability create more corruption than anything else, say experts. Dhananjay says, "Until last week, police postings in Bangalore and other bigger cities were selling for tens of lakhs. Thanks to these amendments, some postings that enforce the Goonda Act will now sell for a couple of crores. The public will not feel safe due to this draconian legislation. Those who enforce the Goonda Act, however, will become richer through corruption, thanks to the fear created by these new amendments."</span></span></span></span></span></span></span></span></span></span></span></span></p>
<h3><span><span><span><span><span><span><span><span><span><span><span><span>One year in jail for the innocent too</span></span></span></span></span></span></span></span></span></span></span></span></h3>
<p style="text-align: justify; "><span><span><span><span><span><span><span><span><span><span><span><span><span id="advenueINTEXT">Sunil Abraham gives two examples by which the amended Goonda Act will become a ruthless piece of legislation. "If I publish an image of a naked body as part of a scientific article about the human body, is it obscene or not? It will not be obscene and, if I am arrested under the IT Act, I will be produced before the magistrate within 24 hours and can explain it to him. But now, I will be arrested under the Goonda Act and need not be produced before a magistrate for 90 days. It can be extended to one year. So for one year, I will be in jail even if I have not committed any wrong. Another example pertains to bringing offences under the Copyright Act under the Goonda Act. In the Copyright Act, there is an exception for reporting, research, educational and people with disability. A visually impaired person, for example, can, without paying royalty, convert a book into another format like Braille or audio and share it with another visually impaired person on a non-profit basis. But if he is arrested under Goonda Act, he will be in jail for one year, even before he does it."</span></span></span></span></span></span></span></span></span></span></span></span></span></p>
<p style="text-align: justify; "><span><span><span><span><span><span><span><span><span><span><span><span><span>HAVE THEY READ STATUTE?<br /><i>Supreme Court advocate KV Dhananjay says, "The definition of a 'digital offender' is simply laughable. I do not think that whoever asked the state government to include 'digital offence' under the Goonda Act has carefully read the Constitution of India. Under the Constitution, both copyright and telecommunications are exclusive central subjects. This means that states simply cannot make any law on these subjects." Dhananjay gives the example of payment of income tax. "You know already that only the central government can demand and collect your income taxes. Can any state government say that it will create a new law to punish its resident who defaults in payment of income tax? You would simply laugh at any such law. This new definition of 'digital offender' is no less amusing. Offences under the Information Technology Act, 2000, are exclusively punishable by the central government only. State governments have no power to say that an Act shall become an offence when it does not even have the power to regulate such an Act."</i></span></span></span></span></span></span></span></span></span></span></span></span></span></p>
<p style="text-align: justify; "><span><span><span><span><span><span><span><span><span><span><span><span><span>CRIMINAL LAW EXPERTS SAY<br /><i>Senior designate advocate, MT Nanaiah: "This law will be too harsh. There are MLAs who do not know the meaning of cyber crime. We (advocates) will be kept busy at the cost of innocent people because of this step. It provides for arresting anyone who would allegedly be planning to do something. Finding him guilty or otherwise comes later. What happens if your phone is lost or somebody sends something from your phone without your knowledge? For the first few years, innocents will go to jail. Then the courts will probably intervene and call for modifying what is at best a bad law. A similar situation arose with Section 498(A) of IPC and Sections 3 and 4 of Dowry Prohibition Act. It was misused to such an extent that courts had to step in." Senior designate advocate and former State Public Prosecutor HS Chandramouli : "Even social legislations have been misused. And, in this case, most people are illiterate about what cyber crime is. It is mostly teenagers and college students who will feel the heat. These are the people who mostly forward material considered obscene. It is necessary to educate people through discussions, workshops in the bar associations, law college and with experts. The amendment has been passed in the Legislature without discussion, which is a tragedy. At least now, before it is gazetted, people should be warned about what is being brought into the Goonda Act. I do not know how fair adding 'digital offenders' in the Goonda Act will be to the public, but the chances of misuse are more. There are no riders or prosecution for misuse. And how many policemen know about cyber crimes? During the infamous 'kidney' case (where people were cheated and their kidneys removed) many policemen did not know the difference between kidneys and testicles."</i></span></span></span></span></span></span></span></span></span></span></span></span></span></p>
<p style="text-align: justify; "><span><span><span><span><span><span><span><span><span><span><span><span><span>ONE YEAR IN JAIL WITHOUT CHANCE OF BAIL FOR..<br /></span></span></span></span></span></span></span></span></span></span></span></span></span></p>
<ol>
<li><span><span><span><span><span><span><span><span><span><span><span><span><span>Forwarding a song from your phone</span></span></span></span></span></span></span></span></span></span></span></span></span></li>
<li>Forwarding an e-book from your email</li>
<li>A nude photo which the govt thinks is obscene</li>
<li>Any software that a company says it owns</li>
<li>A movie which a company says it has copyright on</li>
</ol>
<p>
For more details visit <a href='https://cis-india.org/news/bangalore-mirror-shyam-prasad-august-4-2014-we-the-goondas'>https://cis-india.org/news/bangalore-mirror-shyam-prasad-august-4-2014-we-the-goondas</a>
</p>
No publisherpraskrishnaIT ActCensorshipSocial MediaInternet GovernanceChilling Effect2014-08-04T15:06:18ZNews ItemViews | Why the Left may for once be right
https://cis-india.org/news/left-may-for-once-be-right
<b>On the opening day of the upcoming parliamentary session on Tuesday, the Rajya Sabha is set to vote on an annulment motion against the IT rules, moved by P. Rajeeve of the Communist Party of India (Marxist). </b>
<p><a class="external-link" href="http://www.livemint.com/2012/04/23173934/Views--Why-the-Left-may-for-o.html?h=A1"><u>The article by Pramit Bhattacharya was published in LiveMint on April 23, 2012</u></a>.</p>
<p>India’s information technology (IT) minister, Kapil Sibal appears to be running into rough weather over IT rules framed last year, which curb freedom of expression on the internet. The rules have incensed India’s growing blogging community and piqued at least a few of his fellow parliamentarians.</p>
<p>On the opening day of the upcoming parliamentary session on Tuesday, the Rajya Sabha is set to vote on an annulment motion against the IT rules, moved by P. Rajeeve of the Communist Party of India (Marxist), a rediff.com report said. Ironically, the party that still treats Stalin as a hero (quoting him unfailingly in its political resolutions) has become the first to stand up for internet freedom.<br />Rajeeve is of course not the only parliamentarian to take exception to the rules. Jayant Choudhry, a member of parliament (MP) from the Rashtriya Lok Dal, was the first to draw attention to the draconian rules late last year, and MPs from other regional parties such as the Samajwadi Party and the Asom Gana Parishad criticized the rules in a parliamentary discussion in December.<br /><br />Two sets of rules, one governing cyber cafes and the other relating to intermediaries have attracted most criticism. The rules relating to intermediaries such as internet service providers, search engines or interactive websites such as Twitter and Facebook are the most disturbing. Intermediaries are required under the current rules to remove content that anyone objects to, within 36 hours of receiving the complaint, without allowing content creators any scope of defence.<br /><br />The criteria for deciding objectionable content, laid down in the rules, are subjective and vague. For instance, intermediaries are mandated to remove among other things, ‘grossly harmful’ content, whatever that may mean.<br /><br />This is a unique form of ‘private censorship’ that will endanger almost all online content. In this age of easily offended sensibilities, it is virtually impossible to write anything that does not “offend” anyone. For instance, even this piece may be termed ‘grossly harmful’ to the CPI(M) party.<br /><br />However far-fetched this may sound, this has already become a reality. A researcher working with the Bangalore-based Centre for Internet and Society (CIS) tried out such a strategy with several different intermediaries, and was successful in six out of seven times, always with frivolous and flawed complaints, Pranesh Prakash of CIS wrote in a January blog-post. It has become much easier in India to ban an e-book than a book, Prakash pointed out.<br /><br />The rules regulating cyber cafes are no better. Cyber cafes are required to keep a log detailing the identity of users and their internet usage, which has negative implications for privacy and personal safety of users, analysis of the rules by PRS legislative research said.<br /><br />Internet freedom in India has declined over time and is only ‘partly free’, a 2011 report on internet freedom by US-based think tank, Freedom House said. India has joined a growing club of developing nations where, “internet freedom is increasingly undermined by legal harassment, opaque censorship procedures, or expanding surveillance,” the report noted.<br /><br />The only saving grace is that some of the IT rules are drafted in a language so arcane that anyone will find it hard to decipher them, leave alone implementing them. Sample this: “The intermediary shall not knowingly deploy or install or modify the technical configuration of computer resource or become party to any such act which may change or has the potential to change the normal course of operation of the computer resource than what it is supposed to perform thereby circumventing any law for the time being in force: provided that the intermediary may develop, produce, distribute or employ technological means for the sole purpose of performing the acts of securing the computer resource and information contained therein.”<br /><br />The first task at hand for Sibal may be to explain to fellow lawmakers what the above rule is supposed to mean, before he defends such rules.</p>
<p><a class="external-link" href="http://www.livemint.com/2012/04/23173934/Views--Why-the-Left-may-for-o.html?h=A1">Click</a> for the original, Pranesh Prakash is quoted in this article.</p>
<p>
For more details visit <a href='https://cis-india.org/news/left-may-for-once-be-right'>https://cis-india.org/news/left-may-for-once-be-right</a>
</p>
No publisherpraskrishnaIT ActFreedom of Speech and ExpressionPublic AccountabilityInternet GovernanceCensorship2012-04-25T11:48:50ZNews ItemTV versus Social Media: The Rights and Wrongs
https://cis-india.org/internet-governance/blog/sunday-tribune-january-20-2013-sunil-abraham-tv-vs-social-media
<b>For most ordinary Netizens, everyday speech on social media has as much impact as graffiti in a toilet, and therefore employing the 'principle of equivalence' will result in overregulation of new media.</b>
<hr />
<p style="text-align: justify; ">Sunil Abraham's guest column was <a class="external-link" href="http://www.tribuneindia.com/2013/20130120/edit.htm#2">published in the Tribune </a>on January 20, 2013.</p>
<hr />
<p style="text-align: justify; ">Many in traditional media, especially television, look at social media with a mixture of envy and trepidation. They have been at the receiving end of various unsavoury characters online and consequently support regulation of social media. A common question asked by television anchors is "shouldn't they be subject to the same regulation as us?" This is because they employ the 'principle of equivalence', according to which speech that is illegal on broadcast media should also be illegal on social media and vice versa. According to this principle, criticising a bandh on national TV or in a newspaper op-ed or on social media should not result in jail time and, conversely, publishing obscene content, in either new or old media, should render you a guest of the state.</p>
<p style="text-align: justify; ">Given that Section 66-A of the Information Technology Act, 2000, places more draconian and arguably unconstitutional limits on free speech when compared to the regulation of traditional and broadcast media, those in favour of civil liberties may be tempted to agree with the 'principle of equivalence' since that will mean a great improvement from status quo. However, we must remember that this compromise goes too far since potential for harm through social media is usually very limited when compared to traditional media, especially when it comes to hate speech, defamation and infringement of privacy. A Facebook update or 'like' or a tweet from an ordinary citizen usually passes completely unnoticed. On rare occasion, an expression on social media originating from an ordinary citizen goes viral and then the potential for harm increases dramatically. But since this is the fringe case we cannot design policy based on it. On the other hand, public persons (those occupying public office and those in public life), including television journalists, usually have tens and hundreds of thousands friends and followers on these social networks and, therefore, can more consistently cause harm through their speech online. For most ordinary Netizens, everyday speech on social media has as much impact as graffiti in a public or residential toilet and therefore employing the 'principle of equivalence' will result in overregulation of new media.</p>
<p style="text-align: justify; ">Ideally speech regulation should address the asymmetries in the global attention economy by constantly examining the potential for harm. This applies to both 'speech about' public persons and also 'speech by' them. Since 'speech about' public persons is necessary for transparent and accountable governance and public discourse, such speech must be regulated less than 'speech about' ordinary citizens. Let us understand this using two examples: One, a bunch of school kids referring to a classmate as an idiot on a social network is bullying, but citizens using the very same term to criticise a minister or television anchor must be permitted. Two, an ordinary citizen should be allowed to photograph or video-record the acts of a film or sports star at a public location and upload it to a social network, but this exception to the right of privacy based on public interest will not imply that the same ordinary citizen can publish photographs or videos of other ordinary citizens. Public scrutiny and criticism is part of the price to be paid for occupying public office or public life. If speech regulation is configured to prevent damage to the fragile egos of public persons, then it would have a chilling effect on many types of speech that are critical in a democracy and an open society.</p>
<p style="text-align: justify; ">When it comes to 'speech by' those in public office or in public life - given the greater potential for harm - they should be held more liable for their actions online. For example, an ordinary citizen with less than 100 followers causes very limited harm to the reputation of a particular person through a defamatory tweet. However, if the very same tweet is retweeted by a television anchor with millions of followers, there can be more severe damage to that particular person's reputation.</p>
<p style="text-align: justify; ">Many in television also wish to put an end to anonymous and pseudonymous speech online. They would readily agree with Nandan Nilekani's vision of tagging all - visits to the cyber cafe, purchases of broadband connections and SIM cards and, therefore, all activities from social media accounts with the UID number. I have been following coverage of the Aadhaar project for the past three years. Often I see a 'senior official from the UIDAI' make a controversial point. If anonymous speech is critical to protect India's identity project then surely it is an important form of speech. But, unlike the print media, which more regularly uses anonymous sources for their stories, television doesn't see clearly the connection between anonymous speech and free media. This is because many of the trolls that harass them online often hide behind pseudonymous identities. Television forgets that anonymous speech is at the very foundation of our democracy, i.e., the electoral ballot.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/sunday-tribune-january-20-2013-sunil-abraham-tv-vs-social-media'>https://cis-india.org/internet-governance/blog/sunday-tribune-january-20-2013-sunil-abraham-tv-vs-social-media</a>
</p>
No publishersunilFreedom of Speech and ExpressionIT ActInternet GovernanceCensorship2013-01-21T03:09:56ZBlog EntryTRAI and the Disclosure of Personal Information
https://cis-india.org/telecom/blog/trai-and-the-disclosure-of-personal-information
<b>The Telecom Regulatory Authority of India (TRAI), in March 2015 invited comments on its Consultation Paper for the regulation of over-the-top (OTT) services. In an unprecedented wave of public participation, TRAI received over a million e-mails in support of net neutrality.</b>
<p>This note sets out the law in relation to the unauthorized disclosure of personal information. <i>Many thanks to Bhairav Acharya for his inputs on this</i>.</p>
<hr />
<p style="text-align: justify; ">Subsequently, on April 27, 2015, TRAI made all responses received by it public, including personal information like email addresses along with any information contained in email signatures, which invariably include a phone number or address. While disclosure of names was needed to ensure transparency in the consultation process, disclosure of personal information gave rise to criticism and questions around the legality of such disclosure.</p>
<p style="text-align: justify; ">This note sets out the law in relation to the unauthorized disclosure of personal information:<br />Section 43A of the IT Act provides for subordinate legislation to govern the manner in which sensitive personal data is collected and processed. The governance of personal information is dealt with under the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 (“2011 Rules”). The 2011 Rules are made to give effect to Section 43A of the IT Act.</p>
<p style="text-align: justify; ">TRAI is a body corporate as per Section 3(2) of the TRAI Act. Hence, TRAI’s collection, storage, and disclosure of personal information is governed by the 2011 Rules. Rule 5(8) requires personal information collected to be held securely. TRAIs publishing of email addresses is a violation of Rule 5(8).</p>
<p style="text-align: justify; ">Rule 4 of the 2011 rules requires a body corporate to have a privacy policy. On its website, TRAI publishes a Privacy Policy. However, the Policy speaks of information gathered from the TRAI- Website. Even the wording on the Home Page of the TRAI website (that links to these policies) says “Website Policies”. It is unclear therefore, whether the Privacy Policy applies ONLY to the collection of information over the TRAI- Website or whether the Privacy Policy applies to TRAI overall. <br /><br />Either way there is an argument to be made. TRAI has failed to draft and publicize a privacy policy for the personal information it collects directly. Without prejudice to the above, if the privacy policy on the TRAI website governs this collection of email addresses, then its unauthorized disclosure is a contravention of its own Privacy Policy, specifically paragraph 2.</p>
<p style="text-align: justify; ">Since the IT Act does not enact a specific penalty for contravention of section 43A in respect of personal information, TRAI’s unauthorized disclosure will be penalized through the residuary penalty contained in section 45 of the IT Act.</p>
<p style="text-align: justify; ">Hence TRAI is liable under Section 45 of the IT Act read with Rules 4 and 5(8) of the 2011 Rules. Section 45 provides a “residuary penalty”; for those provisions under the IT Act or Rules for whose contravention no other penalty has been prescribed. For this contravention, TRAI would have to pay a compensation of 25,000/- to the affected persons or a penalty of 25,000/- rupees.</p>
<p style="text-align: justify; ">TRAI may argue that it disclosed that personal information would be disclosed/published. However, the Call for Comments Press Release says that Comments will be published. Email addresses are not comments, and therefore TRAI did not issue a prior disclaimer for the publication of this personal information – hence the disclosure of e-mail addresses is still a violation.</p>
<p style="text-align: justify; ">The remedy for violation of Section 43A of the IT Act is the Adjudicating Authority appointed under Section 46(1), which requires a person not below the rank of Director in the appropriate government to receive complaints. Since TRAI is a body corporate as per the Act, it is unclear as to who the adjudicating officer in the present case should be; and is the matter of a separate research question.<br /><br />The Appellate authority is the Cyber Appellate Tribunal constituted under Section 48 of the IT Act . It is not known if the tribunal has been constituted, and if it has; it is unknown whether it is staffed.</p>
<p style="text-align: justify; ">In the absence of clarity with regard to statutory authorities, a citizen whose personal information has been disclosed by TRAI without authorization may file a writ petition in the Delhi High Court under Article 226, or in the Supreme Court under Article 32 for issue of a writ of mandamus or prohibition, for appointment of the first adjudicating officer and also for issuance of directions in lieu of such an officer.</p>
<p>
For more details visit <a href='https://cis-india.org/telecom/blog/trai-and-the-disclosure-of-personal-information'>https://cis-india.org/telecom/blog/trai-and-the-disclosure-of-personal-information</a>
</p>
No publisherNehaa Chaudhari and Vidushi MardaTelecomIT ActTRAI, OTTInternet Governance2015-05-10T09:16:28ZBlog EntryTo preserve freedoms online, amend the IT Act
https://cis-india.org/internet-governance/blog/hindustan-times-april-16-2019-gurshabad-grover-to-preserve-freedoms-online-amend-it-act
<b>Look into the mechanisms that allow the government and ISPs to carry out online censorship without accountability.</b>
<p style="text-align: justify; ">The article by Gurshabad Grover was published in the <a class="external-link" href="https://www.hindustantimes.com/analysis/to-preserve-freedoms-online-amend-the-it-act/story-aC0jXUId4gpydJyuoBcJdI.html">Hindustan Times</a> on April 16, 2019.</p>
<hr style="text-align: justify; " />
<p style="text-align: justify; ">The issue of blocking of websites and online services in India has gained much deserved traction after internet users reported that popular services like Reddit and Telegram were inaccessible on certain Internet Service Providers (ISPs). The befuddlement of users calls for a look into the mechanisms that allow the government and ISPs to carry out online censorship without accountability.</p>
<p style="text-align: justify; ">Among other things, Section 69A of the Information Technology (IT) Act, which regulates takedown and blocking of online content, allows both government departments and courts to issue directions to ISPs to block websites. Since court orders are in the public domain, it is possible to know this set of blocked websites and URLs. However, the process is much more opaque when it comes to government orders.</p>
<p style="text-align: justify; ">The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, issued under the Act, detail a process entirely driven through decisions made by executive-appointed officers. Although some scrutiny of such orders is required normally, it can be waived in cases of emergencies. The process does not require judicial sanction, and does not present an opportunity of a fair hearing to the website owner. Notably, the rules also mandate ISPs to maintain all such government requests as confidential, thus making the process and complete list of blocked websites unavailable to the general public.</p>
<p style="text-align: justify; ">In the absence of transparency, we have to rely on a mix of user reports and media reports that carry leaked government documents to get a glimpse into what websites the government is blocking. Civil society efforts to get the entire list of blocked websites have repeatedly failed. In response to the Right to Information (RTI) request filed by the Software Freedom Law Centre India in August 2017, the Ministry of Electronics and IT refused to provide the entire of list of blocked websites citing national security and public order, but only revealed the number of blocked websites: 11,422.</p>
<p style="text-align: justify; ">Unsurprisingly, ISPs do not share this information because of the confidentiality provision in the rules. A 2017 study by the Centre for Internet and Society (CIS) found all five ISPs surveyed refused to share information about website blocking requests. In July 2018, the Bharat Sanchar Nagam Limited rejected the RTI request by CIS which asked for the list of blocked websites.</p>
<p style="text-align: justify; ">The lack of transparency, clear guidelines, and a monitoring mechanism means that there are various forms of arbitrary behaviour by ISPs. First and most importantly, there is no way to ascertain whether a website block has legal backing through a government order because of the aforementioned confidentiality clause. Second, the rules define no technical method for the ISPs to follow to block the website. This results in some ISPs suppressing Domain Name System queries (which translate human-parseable addresses like ‘example.com’ to their network address, ‘93.184.216.34’), or using the Hypertext Transfer Protocol (HTTP) headers to block requests. Third, as has been made clear with recent user reports, users in different regions and telecom circles, but serviced by the same ISP, may be facing a different list of blocked websites. Fourth, when blocking orders are rescinded, there is no way to make sure that ISPs have unblocked the websites. These factors mean that two Indians can have wildly different experiences with online censorship.</p>
<p style="text-align: justify; ">Organisations like the Internet Freedom Foundation have also been pointing out how, if ISPs block websites in a non-transparent way (for example, when there is no information page mentioning a government order presented to users when they attempt to access a blocked website), it constitutes a violation of the net neutrality rules that ISPs are bound to since July 2018.</p>
<p style="text-align: justify; ">While the Supreme Court upheld the legality of the rules in 2015 in Shreya Singhal vs. Union of India, recent events highlight how the opaque processes can have arbitrary and unfair outcomes for users and website owners. The right to access to information and freedom of expression are essential to a liberal democratic order. To preserve these freedoms online, there is a need to amend the rules under the IT Act to replace the current regime with a transparent and fair process that makes the government accountable for its decisions that aim to censor speech on the internet.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/hindustan-times-april-16-2019-gurshabad-grover-to-preserve-freedoms-online-amend-it-act'>https://cis-india.org/internet-governance/blog/hindustan-times-april-16-2019-gurshabad-grover-to-preserve-freedoms-online-amend-it-act</a>
</p>
No publishergurshabadFreedom of Speech and ExpressionIT ActInternet GovernanceInternet Freedom2019-04-16T10:09:41ZBlog EntryThree reasons why 66A verdict is momentous
https://cis-india.org/internet-governance/blog/times-of-india-march-29-2015-pranesh-prakash-three-reasons-why-66a-is-momentous
<b>Earlier this week, the fundamental right to freedom of expression posted a momentous victory. The nation's top court struck down the much-reviled Section 66A of the IT Act — which criminalized communications that are "grossly offensive", cause "annoyance", etc — as "unconstitutionally vague", "arbitrarily, excessively, and disproportionately" encumbering freedom of speech, and likely to have a "chilling effect" on legitimate speech.</b>
<p style="text-align: justify; ">The article was <a class="external-link" href="http://timesofindia.indiatimes.com/home/sunday-times/all-that-matters/Three-reasons-why-66A-verdict-is-momentous/articleshow/46731904.cms">published in the Times of India</a> on March 29, 2015.</p>
<hr />
<p style="text-align: justify; ">It also struck down Sec 118(d) of the Kerala Police Act on similar grounds. This is a landmark judgment, as it's possibly the first time since 1973's Bennett Coleman case that statutory law was struck down by the Supreme Court for violating our right to free expression.</p>
<p style="text-align: justify; ">The SC also significantly 'read down' the draconian 'Intermediary Guidelines Rules' which specify when intermediaries — website hosts and search engines — may be held liable for what is said online by their users. The SC held that intermediaries should not be forced to decide whether the online speech of their users is lawful or not. While the judgment leaves unresolved many questions — phrases like "grossly offensive", which the SC ruled were vague in 66A, occur in the Rules as well — the court's insistence on requiring either a court or a government order to be able to compel an intermediary to remove speech reduces the 'invisible censorship' that results from privatized speech regulation.</p>
<p style="text-align: justify; ">The SC upheld the constitutional validity of Sec 69A and the Website Blocking Rules, noting they had several safeguards: providing a hearing to the website owner, providing written reasons for the blocking, etc. However, these safeguards are not practised by courts. Na Vijayashankar, a legal academic in Bengaluru, found a blogpost of his — ironically, on the topic of website blocking — had been blocked by a Delhi court without even informing him. He only got to find out when I published the government response to my RTI on blocked websites. Last December, Github, Vimeo and some other websites were blocked without being given a chance to contest it. As long as lower courts don't follow "principles of natural justice" and due process, we'll continue to see such absurd website blocking, especially in cases of copyright complaints, without any way of opposing or correcting them.</p>
<p style="text-align: justify; ">There are three main outcomes of this judgment. First is the legal victory: SC's analysis while striking down 66A is a masterclass of legal clarity and a significant contribution to free speech jurisprudence. This benefits not only future cases in India, but all jurisdictions whose laws are similar to ours, such as Bangladesh, Malaysia and the UK.</p>
<p style="text-align: justify; ">Second is the moral victory for free speech. Sec 66A was not merely a badly written law, it became a totem of governmental excess and hubris. Even when political parties realized they had passed 66A without a debate, they did not apologize to the public and revise it; instead, they defended it. Only a few MPs, such as P Rajeev and Baijayant Panda, challenged it. Even the NDA, which condemned the law in the UPA era, supported it in court. By striking down this totem, the SC has restored the primacy of the Constitution. For instance, while this ruling doesn't directly affect the censor board's arbitrary rules, it does morally undermine them.</p>
<p style="text-align: justify; ">Third, this verdict shows that given proper judicial reading, the Indian constitutional system of allowing for a specific list of purposes for which reasonable restrictions are permissible, might in fact be as good or even better in some cases, than the American First Amendment. The US law baldly states that Congress shall make no law abridging freedom of speech or of the press. However, the US Supreme Court has never held the opinion that freedom of speech is absolute. The limits of Congress's powers are entirely judicially constructed, and till the 1930s, the US court never struck down a law for violating freedom of speech, and has upheld laws banning obscenity, public indecency, offensive speech in public, etc. However, in India, the Constitution itself places hard limits on Parliament's powers, and also, since the first amendment to our Constitution, allows the judiciary to determine if the restrictions placed by Parliament are "reasonable". In the judgment Justice Nariman quotes Mark Antony from Julius Caesar. He could also have quoted Cassius: "The fault, dear Brutus, is not in our stars, but in ourselves." Judges like Justice Nariman show the constitutional limits to free speech can be read both narrowly and judiciously: we can no longer complain about the Constitution as the primary reason we have so many restrictions on freedom of expression.</p>
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For more details visit <a href='https://cis-india.org/internet-governance/blog/times-of-india-march-29-2015-pranesh-prakash-three-reasons-why-66a-is-momentous'>https://cis-india.org/internet-governance/blog/times-of-india-march-29-2015-pranesh-prakash-three-reasons-why-66a-is-momentous</a>
</p>
No publisherpraneshIT ActCensorshipFreedom of Speech and ExpressionInternet GovernanceChilling Effect2015-03-29T16:22:51ZBlog EntryThe thrill of saving India from cybercrime
https://cis-india.org/internet-governance/news/the-hindu-peerzada-abrar-november-20-2016-the-thrill-of-saving-india-from-cybercrime
<b>Geeks seize the chance to help the government, defence forces and banks draw up fences against tech crimes.</b>
<p class="body" style="text-align: justify; ">The <a class="external-link" href="http://www.thehindu.com/business/Industry/the-thrill-of-saving-india-from-cybercrime/article9367640.ece">article by Peerzada Abrar was published in the Hindu </a>on November 20, 2016.</p>
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<p class="body" style="text-align: justify; ">Saket Modi loves long flights. The 26-year-old hacker likes to do most of his reasoning while criss-crossing the world. It was on one such flight from the United States to India that the co-founder of cybersecurity start-up Lucideus Tech read about India's largest data security breaches. While surfing the in-flight Internet he came to know that the security of about 3.2 million debit cards had been compromised.</p>
<p class="body" style="text-align: justify; ">“I was not surprised but I started thinking about how it would have happened. What was the ‘exploit’ used, how long was it there,” said Mr. Modi. Soon after reaching New Delhi, he received multiple requests from several banks and organisations to protect them from the hacking incident, which is just one of the thousands of cybercrimes that the country is facing.</p>
<p class="body" style="text-align: justify; ">In India, there has been a surge of approximately 350 per cent of cybercrime cases registered under the Information Technology (IT) Act, 2000 from the year of 2011 to 2014, according to a joint study by The Associated Chambers of Commerce and Industry of India and consulting firm PricewaterhouseCoopers. The Indian Computer Emergency Response Team (CERT-In) has also reported a surge in the number of incidents handled by it, with close to 50,000 security incidents in 2015, noted the Assocham-PwC joint study.</p>
<p style="text-align: justify; "><b>Ethical hackers</b></p>
<p class="body" style="text-align: justify; ">Mr. Modi is among a new breed of ethical hackers-turned-entrepreneurs who are betting big on this opportunity. An ethical hacker is a computer expert who hacks into a computer network on the behalf of its owner in order to test or evaluate its security, rather than with malicious or criminal intent.</p>
<p class="body" style="text-align: justify; ">“You cannot live in a world where you think that you can't be hacked. It doesn’t matter who you are,” said Mr. Modi who cofounded Lucideus four years ago. The company clocked revenues of Rs.4 crore in the last fiscal. This compares with the Rs.2.5 lakh revenues in the first year. The New Delhi-based firm now counts Reserve Bank of India, Ministry of Defence and Standard Chartered among its top clients.</p>
<p class="body" style="text-align: justify; ">Mr. Modi, who is also a pianist, discovered his skills for hacking into secure computer systems while preparing for his board exams. He hacked into his school computer and stole the chemistry question paper, after realising that he would not be able to clear the test conducted by his school. However, a guilty conscience compelled him to confess to his teacher who permitted him to still take the test. The incident transformed him to use his skills to protect and not misuse them. This year, Lucideus was hired by National Payments Corporation of India (NPCI) along with other information security specialists to protect its most ambitious project, the Unified Payment Interface (UPI) platform, from cyber attacks. UPI aims to bring digital banking to 1.2 billion people in the country. Lucideus has a team of 70 people mostly fresh college graduates who do hacking with authorisation.</p>
<p class="body" style="text-align: justify; ">“The reason behind choosing Lucideus was their young, energetic and knowledgeable team," said Bhavesh Lakhani, chief technology officer of DSP BlackRock, one of the premier asset management companies. Mr. Lakhani said that India is currently the epicentre of financial and technological advancements which make it a probable target of cyber-attacks.</p>
<p style="text-align: justify; "><b>Hacking lifeline</b></p>
<p class="body" style="text-align: justify; ">Indeed, a new breed of cyber criminals has emerged, whose main aim is not just financial gains but also cause disruption and chaos to businesses in particular and the nation at large, according to the Assocham-PwC study. Attackers can gain control of vital systems such as nuclear plants, railways, transportation and hospitals. This can subsequently lead to dire consequences such as power failures, water pollution or floods, disruption of transportation systems and loss of life, noted the study.</p>
<p class="body" style="text-align: justify; ">“The hacker doesn’t care whether he is attacking an Indian or a U.S. company. It is bread and butter for him and he wants to eat it wherever he gets it from,” said Trishneet Arora, a 22-year-old ethical hacker. In an office tucked away in Mohali, a commercial hub lying adjacent to the city of Chandigarh in Punjab, Mr.Arora fights these cyberattacks on a daily basis to protect his clients. His start-up TAC Security provides an emergency service to customers who have been hacked or are anticipating a cyberattack. It alerted a hospital in the U.S. after detecting vulnerabilities in their computer network.</p>
<p class="body" style="text-align: justify; ">Mr.Arora said that the hackers could have easily shut down the intensive care unit which was connected to it and remotely killed the patients. TAC said the data server of a bank in the UAE containing critical information got hacked recently. The bank also lost access to the server. TAC said that it not only helped the organisation to get back access to the server but also traced the hacker’s identity.</p>
<p class="body" style="text-align: justify; ">A school drop out, Mr.Arora founded TAC three years ago. But he initially found it tough to convince enterprises about his special skills. “I was a backbencher in the classroom and not good in studies, but I loved playing video games and hacking,” he said. He conducted workshops on hacking and provided his expertise to law enforcement agencies such as the Central Bureau of Investigation and various State police departments. His firm now provides its services to customers such as Reliance Industries, dairy brand Amul and tractor manufacturer Sonalika.</p>
<p class="body" style="text-align: justify; ">“We were surprised by their expertise,” said R.S. Sodhi, managing director of Amul. “We wanted to be sure that the company’s vital IT infrastructure is in the right hands – the big question was, ‘Who can that be?’ In TAC, we found that team.”</p>
<p class="body" style="text-align: justify; ">TAC expects to cross revenues of $5 million (Rs.33 crore) and employ about 100 ethical hackers by next year.</p>
<p style="text-align: justify; "><b>Budget woes</b></p>
<p class="body" style="text-align: justify; ">Security watchers such as Sunil Abraham, executive director of Bengaluru-based think tank Centre for Internet and Society said that India’s cybersecurity budget is woefully inadequate when compared to the spending by other countries. In 2014-15, the government doubled its cybersecurity budget by earmarking Rs.116 crore. “We require a budget of $1 billion per annum or every two years to build the cybersecurity infrastructure. The current cyber security policy has no such budget,” said Mr. Abraham.</p>
<p class="body" style="text-align: justify; ">According to Data Security Council of India (DSCI), India's cybersecurity market is expected to grow nine-fold to $35 billion by 2025, from about $4 billion. This would mainly be driven by an ecosystem to promote the growth of indigenous security product and services start-up companies.</p>
<p class="body" style="text-align: justify; ">The Cyber Security Task Force (CSTF) set up by DSCI and industry body Nasscom expects to create a trained base of one million certified and skilled cybersecurity professionals. It also aims to build more than 100 successful security product companies from India. Investors who normally focus on e-commerce ventures or public markets are now taking note of this opportunity and are betting on such ventures. Amit Choudhary, director, MotilalOswal Private Equity and an investor in Lucideus, said he saw tremendous opportunity in the cybersecurity market as hackers are shifting their focus from developed countries to emerging countries like India.</p>
<p class="body" style="text-align: justify; ">“There is a huge opportunity. The recent security breaches of a few Indian banks are an example,” said Vijay Kedia an ace stock picker and an investor in TAC Security. He said that organisations are still unaware of the widespread damage that can be caused by hackers. “The next war will be a ‘cyberwar’,” he said.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/news/the-hindu-peerzada-abrar-november-20-2016-the-thrill-of-saving-india-from-cybercrime'>https://cis-india.org/internet-governance/news/the-hindu-peerzada-abrar-november-20-2016-the-thrill-of-saving-india-from-cybercrime</a>
</p>
No publisherpraskrishnaCyber SecurityInternet GovernanceIT Act2016-11-21T02:42:48ZNews ItemThe Supreme Court Judgment in Shreya Singhal and What It Does for Intermediary Liability in India?
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 publisherjyotiIT ActCensorshipFreedom of Speech and ExpressionInternet GovernanceIntermediary LiabilityChilling Effect2015-04-17T23:59:34ZBlog EntryThe real Sibal’s law: Resisting Section 66A is futile
https://cis-india.org/news/first-post-politics-lakshmi-chaudhry-november-30-2012-the-real-sibals-law-resisting-section-66a-is-futile
<b>The Information Technology Act is “substantially the same” as laws instituted in other democracies like UK and the United States. What’s more, the language that is employed in various sections is exactly the same. Thus was the thrust of Kapil Sibal’s defense of Section 66A on NDTV last night.</b>
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<p style="text-align: justify; ">The article by Lakshmi Chaudhry was <a class="external-link" href="http://www.firstpost.com/politics/the-real-sibals-law-resisting-section-66a-is-futile-541045.html">published in FirstPost on November 30</a>. Pranesh Prakash's blog post on section 66A which was also carried in Outlook is quoted.</p>
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<p style="text-align: justify; ">The problem therefore lies not in the law but in its interpretation: “It’s very difficult to interpret the act on the ground. If you give this power to a sub-inspector of police, it is more than likely to be misused.” Sibal is hence “open” to putting in place guidelines that may prevent such abuse, whether it involves requiring a senior police officer to make the call or specifying the “circumstances” in which the law is applicable.</p>
<p style="text-align: justify; ">Now, there are many ways to tear apart Sibal’s logic. In <i>Outlook</i>, for example, Centre for Internet and Society’s Pranesh Prakash offers a <a href="http://www.outlookindia.com/article.aspx?283149" target="_blank">detailed comparison</a> with the UK law to show that: one, the UK courts have “read down” the “broad wording” of the law; two, they remain subject to EU human rights provisions; and three, UK law may well be unconstitutional under the Indian Constitution which offers stronger free speech protection.</p>
<p style="text-align: justify; ">Prakash’s legal arguments are worthy, meticulously argued and — in my view — somewhat moot.</p>
<p style="text-align: justify; ">Here’s why. Would discarding or amending Section 66A prevent the MNS goons from hauling Sunil Vishwakarma to the police station for a Facebook update? Would it prevent the Palghar policemen from filing a case against Shaheen and Rinu under pressure from the local Sainiks? Would that Jadhavpur professor then be immune from Trinamool harrassment for offending <a href="http://www.firstpost.com/topic/person/mamata-banerjee-profile-16017.html" target="_self">Mamata</a>?</p>
<p align="LEFT">The answer is a big fat N-O.</p>
<p style="text-align: justify; ">Sibal is right. In India, the actual law is often irrelevant. Interpretation is all. And that interpretation in the real world of the police <i>thana</i> is determined not by legal standards but according to political power. So we have wonderfully progressive statutes on the book — as we do in the matter of women’s rights — that exist only in theory. More effective and employed are the draconian, colonial-era laws that are routinely used to punish the innocent. The IT act is just one of them.</p>
<p style="text-align: justify; ">In India, law is a weapon, a <i>brahmastra</i> of the powerful. The Sainiks were looking to make an example of someone, to exercise their political brawn. Shaheen and Rinu were convenient targets, and once selected, no law could have saved them from Shiv Sena wrath. The legal threshold for “offensive” content is irrelevant to NCP Kiran Pawaskar who put pressure on the police to <a href="http://www.ndtv.com/article/cities/two-air-india-employees-arrested-for-facebook-posts-spend-12-days-in-custody-297118?fb" target="_blank">arrest</a> two Air India employees because they “shared lewd jokes about politicians, made derogatory comments against the Prime Minister and insulted the national flag in their posts.”</p>
<p style="text-align: justify; ">The <i>goonda raj</i> of politicians on the Internet merely reflects the reality offline. All that our online activity does is make the<i> aam aadmi</i> more visible, and therefore easier to target and victimise. They can’t put in spy cameras in every living room, but now they can monitor our conversations on Facebook and Twitter instead. In a sense, the Internet has allowed Big Brother into our homes</p>
<p style="text-align: justify; ">This is why comparisons to UK or US — which enjoy the rule of law — are irrelevant. And why upgrading the rank of the policeman — DCP or Inspector-general — making the call will not change the outcome in most cases. The political pressures on a DCP or IG are not different than on a lowly sub-inspector who takes action not because he doesn’t understand the law, but because he understands all too well the costs of non-compliance. As for putting a magistrate in charge, well, it was a magistrate who authorised the arrests of Shaheen and Rinu.</p>
<p style="text-align: justify; ">The only reason the policemen who arrested the girls may be punished is that the Congress party is in power in Maharashtra, as in not the Shiv Sena or the BJP. In Kolkata, for example, <a href="http://www.firstpost.com/topic/person/mamata-banerjee-profile-16017.html" target="_self">Mamata</a>-<i>di</i> has no intention of taking action against those who arrested Ambikesh Mahapatra. ‘<i>Raja chale bazaar to kutta bhonke hazaar</i>‘ (the king walks to market, though a thousand dogs bark),” <a href="http://www.business-standard.com/generalnews/ians/news/mend-your-ways-or-lose-power-katju-tells-mamata/85648/" target="_blank">declared<i> Didi</i></a> when pressed on Justice Katju’s criticism of her anti-free speech stance.</p>
<p style="text-align: justify; ">It succinctly embodies the attitude of our leaders. Sibal may be saddened by the Palghar case but he was every bit as unruffled as Mamata when Ravi Srinivasan was arrested for an innocuous tweet accusing Karti Chidambaram of corruption. There are naturally no plans to drop the case against him. So it matters little if the IT act is amended or who is tasked with interpreting Section 66A. Who is punished, who receives justice, however delayed, is determined by politics not law.</p>
<p style="text-align: justify; ">In his <i>NDTV</i> interview, Sibal chided Barkha for bringing up “5-10 instances” of unlawful arrests when “there must be millions of [abusive] comments that have been put on the internet.” It’s a familiar Sibal strategy that he has employed in the past. Pressed on Ravi Srinivasan’s arrest, he <a href="http://articles.timesofindia.indiatimes.com/2012-11-09/internet/35015347_1_cyber-law-kapil-sibal-rules-bailable-offence" target="_blank">told reporters</a>, “There are 500 things by the name of Kapil Sibal and there are some things which I really don’t like. But I have not taken action.”</p>
<p style="text-align: justify; ">What he’s really saying is that each time we update, tweet or comment, we enter an online version of russian roulette, the kind you play with a gun. You never know which chamber is loaded, or when a politician is likely to pull the trigger. We survive not by the mercy of the law but at the whim of the powerful. In India, law isn’t an ass; it’s our dear <i>netaji’s chaprasi.</i></p>
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For more details visit <a href='https://cis-india.org/news/first-post-politics-lakshmi-chaudhry-november-30-2012-the-real-sibals-law-resisting-section-66a-is-futile'>https://cis-india.org/news/first-post-politics-lakshmi-chaudhry-november-30-2012-the-real-sibals-law-resisting-section-66a-is-futile</a>
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No publisherpraskrishnaIT ActInternet Governance2012-12-03T05:16:11ZNews ItemThe noose tightens on freedom of speech on the Internet
https://cis-india.org/internet-governance/news/digital-news-asia-gabey-goh-march-26-2015-noose-tightens-on-freedom-of-speech-on-internet
<b>A WORRYING trend has emerged in the last few years, where intermediaries around the world are being used as chokepoints to restrict freedom of expression online, and to hold users accountable for content.</b>
<p style="text-align: justify; ">The blog post by Gabey Goh was published by <a class="external-link" href="https://www.digitalnewsasia.com/digital-economy/the-noose-tightens-on-freedom-of-speech-on-the-internet">Digital News Asia</a> on March 26, 2015. Jyoti Panday gave her inputs.</p>
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<p style="text-align: justify; ">“All communication across the Internet is facilitated by intermediaries: Service providers, social networks, search engines, and more,” said Electronic Frontier Foundation (EFF) senior global policy analyst Jeremy Malcolm.<br /> <br /> “These services are all routinely asked to take down content, and their policies for responding are often muddled, heavy-handed, or inconsistent.<br /> <br /> “That results in censorship and the limiting of people’s rights,” he told Digital News Asia (DNA) on the sidelines of <a href="https://www.rightscon.org/" target="_blank">RightsCon</a>, an Internet and human rights conference hosted in Manila from March 24-25.<br /> <br /> This year, the government of France is moving to <a href="http://www.bloomberg.com/news/articles/2015-01-27/france-seeks-to-sanction-web-companies-for-posts-pushing-terror" target="_blank">implement regulation</a> that makes Internet operators ‘accomplices’ of hate-speech offences if they host extremist messages.<br /> <br /><a href="http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/03/09/icann-copyright-infringement-and-the-public-interest/" target="_blank">In February</a>, the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA) urged ICANN (the Internet Corporation for Assigned Names and Numbers) to ensure that domain name registries and registrars “investigate copyright abuse complaints and respond appropriately.”<br /> <br /> Closer to home, the Malaysian Government passed a controversial amendment to the Evidence Act 1950 – Section 114A – back in 2012.<br /> <br /> Under <a href="http://www.digitalnewsasia.com/digital-economy/govt-stealthily-gazettes-evidence-act-amendment-law-is-now-in-operation" target="_blank">Section 114A</a>, an Internet user is deemed the publisher of any online content unless proven otherwise. The new legislation also makes individuals and those who administer, operate or provide spaces for online community forums, blogging and hosting services, liable for content published through their services.</p>
<p style="text-align: justify; ">Due to the potential negative impact on freedom of expression, a roadmap called the <i><a href="https://www.manilaprinciples.org/" target="_blank">Manila Principles on Internet Liability</a></i> was launched during RightsCon.<br /> <br /> The EFF, Centre for Internet Society India, Article 19, and other global partners unveiled the principles, whose framework outlines clear, fair requirements for content removal requests and details how to minimise the damage a takedown can do.<br /> <br /> For example, if content is restricted because it’s unlawful in one country or region, then the scope of the restriction should be geographically limited as well.<br /> <br /> The principles also urge adoption of laws shielding intermediaries from liability for third-party content, which encourages the creation of platforms that allow for online discussion and debate about controversial issues.<br /> <br /> “Our goal is to protect everyone’s freedom of expression with a framework of safeguards and best practices for responding to requests for content removal,” said Malcolm.<br /> <br /> Jyoti Panday from the Centre for Internet and Society India noted that people ask for expression to be removed from the Internet for various reasons, good and bad, claiming the authority of myriad local and national laws.<br /> <br /> “It’s easy for important, lawful content to get caught in the crossfire. We hope these principles empower everyone – from governments and intermediaries, to the public – to fight back when online expression is censored,” she said.</p>
<p style="text-align: justify; ">The Manila Principles can be summarised in six key points:</p>
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<li> Intermediaries should be shielded by law from liability for third-party content.</li>
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<li> Content must not be required to be restricted without an order by a judicial authority.</li>
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<li> Requests for restrictions of content must be clear, be unambiguous, and follow due process.</li>
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<li> Laws and content restriction orders and practices must comply with the tests of necessity and proportionality.</li>
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<li> Laws and content restriction policies and practices must respect due process.</li>
</ul>
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<li> Transparency and accountability must be built in to laws and content restriction policies and practices.</li>
</ul>
<p style="text-align: justify; ">“Right now, different countries have differing levels of protection when it comes to intermediary liability, and we’re saying that there should be expansive protection across all content,” said Malcolm <b><i>(pic)</i></b>.<br /> <br /> “In addition, there is no logic in distinguishing between intellectual property (IP) and other forms of content as in the case in the United States for example, where under Section 230 of the Communications Decency Act, intermediaries are not liable for third party content but that doesn’t apply to IP,” he added.<br /> <br /> The Manila Principles have two main targets: Governments and intermediaries themselves. The coalition, led by EFF, will be approaching governments to present the document and discuss the recommendations on how best to establish an intermediary liability regime.<br /> <br /> This includes immunising intermediaries from liability and requiring a court order before any content can be taken down.<br /> <br /> With intermediaries, the list includes companies such as Facebook, Twitter and Google, to discuss establishing transparency, responsibility and accountability in any actions taken.</p>
<p style="text-align: justify; ">“We recognise that a lot of the time, intermediaries are not waiting for a court order before taking down content, and we’re telling them to avoid removing content unless there is a sufficiently good reason and users have been notified and presented that reason,” said Malcolm.<br /> <br /> The overall aim with the Manila Principles is to influence policy changes for the better.<br /> <br /> Malcolm pointed out that by coincidence, some encouraging developments have taken place in India. On the same day the principles were released, the <a href="http://time.com/3755743/india-law-free-speech-section-66a-struck-down/" target="_blank">Indian Supreme Court struck down</a> the notorious Section 66A of the country’s Information Technology Act.<br /> <br /> Since 2009, the law had allowed both criminal charges against users and the removal of content by intermediaries based on vague allegations that the content was “grossly offensive or has menacing character,” or that false information was posted “for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will.”<br /> <br /> Calling it a “landmark decision”, Malcolm noted that the case shows why the establishment and promotion of the Manila Principles are important.<br /> <br /> “Not only is the potential overreach of this provision obvious on its face, but it was, in practice, misused to quell legitimate discussion online, including in the case of the plaintiffs in that case – two young women, one of whom made an innocuous Facebook post mildly critical of government officials, and the other who ‘liked’ it,” he said.<br /> <br /> The court however, upheld section 69A of the Act, which allows the Government to block online content; and Section 79(3), which makes intermediaries such as YouTube or Facebook liable for not complying with government orders for censorship of content.</p>
<p style="text-align: justify; "><b><i>Gabey Goh reports from RightsCon in Manila at the kind invitation of the South-East Asian Press Alliance or <a href="http://www.seapa.org/" target="_blank">Seapa</a>.</i></b></p>
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For more details visit <a href='https://cis-india.org/internet-governance/news/digital-news-asia-gabey-goh-march-26-2015-noose-tightens-on-freedom-of-speech-on-internet'>https://cis-india.org/internet-governance/news/digital-news-asia-gabey-goh-march-26-2015-noose-tightens-on-freedom-of-speech-on-internet</a>
</p>
No publisherpraskrishnaIT ActCensorshipFreedom of Speech and ExpressionInternet GovernanceChilling Effect2015-03-27T01:06:52ZNews ItemThe Last Word: Is there a need to review Information Technology Act?
https://cis-india.org/news/ibnlive-videos-november-20-2012-the-last-word-is-there-a-need-to-review-information-technology-act
<b>Does the high-handed arrest of two young girls mean it's time to review and revise the IT Act?</b>
<p style="text-align: justify; ">Aryaman Sundaram, Pavan Duggal, Pranesh Prakash and Ravi Visvesvaraya Prasad took part in a discussion with Karan Thapar on section 66A of the IT Act. This was aired on CNN-IBN on November 20, 2012.</p>
<p style="text-align: justify; ">Pranesh Prakash said that it was just not a history of misuse of section 66A of the IT Act because that presumes that the law is otherwise fine and it has just been applied wrongly. This law is fundamentally flawed. It is unconstitutional. It is like a law in which there is a provision on rape, murder, theft, nuisance, everything put together in a single section with the same punishment being given for all of them. This obviously is not good law making but that is exactly what has been done in this case by taking bits from laws in the UK and from elsewhere and mashing them all up into one omnibust gargantuan monster which is unconstitutional.<br /><br />Pranesh Prakash also added that the fact is that if you have bad laws they will be used to harass people. Having good law is one part of that. Apart from that there has been also other laws which have been misapplied in this case. In all these recent cases, section 66A of the IT Act wasn't the only provision used. This particular section has been used in conjunction with some other laws. So section 66A of the IT Act independently is not required. There are other laws in the Indian Penal Code and elsewhere which are usually enough to cover all the things that section 66A of the IT Act is right now covering. It is just an add on provision that really can't justify its existence unless it is really reduced in scope.</p>
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<p style="text-align: justify; "><a class="external-link" href="http://ibnlive.in.com/videos/306519/the-last-word-is-there-a-need-to-review-information-technology-act.html">Watch the full video that was aired on CNN-IBN</a></p>
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For more details visit <a href='https://cis-india.org/news/ibnlive-videos-november-20-2012-the-last-word-is-there-a-need-to-review-information-technology-act'>https://cis-india.org/news/ibnlive-videos-november-20-2012-the-last-word-is-there-a-need-to-review-information-technology-act</a>
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No publisherpraskrishnaIT ActFreedom of Speech and ExpressionPublic AccountabilityInternet GovernanceVideoCensorship2012-11-21T12:10:15ZNews Item