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Indian Intermediary Liability Regime: Compliance with the Manila Principles on Intermediary Liability
https://cis-india.org/internet-governance/blog/indian-intermediary-liability-regime
<b>This report assesses the compliance of the Indian intermediary liability framework with the Manila Principles on Intermediary Liability, and recommends substantive legislative changes to bring the legal framework in line with the Manila Principles. </b>
<p><span style="text-align: justify; ">The report was edited by Elonnai Hickok and Swaraj Barooah</span></p>
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<p style="text-align: justify; ">The report is an examination of Indian laws based upon the background paper to the Manila Principles as the explanatory text on which these recommendations have been based, and not an assessment of the principles themselves. To do this, the report considers the Indian regime in the context of each of the principles defined in the Manila Principles. As such, the explanatory text to the Manila Principles recognizes that diverse national and political scenario may require different intermediary liability legal regimes, however, this paper relies only on the best practices prescribed under the Manila Principles.</p>
<p style="text-align: justify; ">The report is divided into the following sections</p>
<ul>
<li>Principle I: Intermediaries should be shielded by law from liability for third-party content</li>
<li>Principle II: Content must not be required to be restricted without an order by a judicial authority</li>
<li>Principle III: Requests for restrictions of content must be clear, be unambiguous, and follow due process</li>
<li>Principle IV: Laws and content restriction orders and practices must comply with the tests of necessity and proportionality</li>
<li>
<div id="_mcePaste">Principle V: Laws and content restriction policies and practices must respect due process</div>
</li>
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<div id="_mcePaste">Principle VI: Transparency and accountability must be built into laws and content restriction policies and practices</div>
</li>
<li>
<div id="_mcePaste">Conclusion</div>
</li>
</ul>
<p style="text-align: justify; "><a class="external-link" href="http://cis-india.org/internet-governance/files/indian-intermediary-liability-regime">Download the Full report here</a></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/indian-intermediary-liability-regime'>https://cis-india.org/internet-governance/blog/indian-intermediary-liability-regime</a>
</p>
No publisherdivijInternet GovernanceIntermediary LiabilityPrivacy2018-05-20T15:14:21ZBlog EntryIndian government at second position after U.S.A for demanding user data from Google
https://cis-india.org/news/whdi-reviews-nov-22-2012-indian-government-at-second-position-after-usa-for-demanding-user-data-from-google
<b>The Indian government has secured 2nd position in the list of the governments demanding for Web user information. It is behind only from the United States government.</b>
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<p>This blog entry was <a class="external-link" href="http://whdi-reviews.com/2012/11/indian-government-at-second-position-after-u-s-a-for-demanding-user-data-from-google/">published in WHDI Reviews</a> on November 22, 2012. Pranesh Prakash is quoted.</p>
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<p>This fact came to light in the ‘Transparency Report’ published by web services major. The report covers the time period from January to June in the present year. During this time period, the Govt. of India has asked Google for user information 2,319 times over 3,647 user accounts.</p>
<p style="text-align: justify; ">This has been done by the way of court orders and requests made by police. Google has allowed the disclosure of the information sometimes partially and sometimes completely. The U.S.A government on the other hand requested for more information 7,969 requests over 16,281 accounts. The compliance rate by Google to Indian and U.S requests was 64% and 90% respectively. The report gives details about two categories of interactions: firstly to divulge data and secondly to pull down content. India now ranks 7th in the list of countries which had made requests to pull down data. India could have achieved even a better rank but owing to the lack of any constitutional power which backs its action, it has to be satisfied with the seventh position. According to Pranesh, (policy director with Bangalore-based Centre for Internet and Society) these requests for pulling down data are an attempt made by the government so that its criticism is not able to reach a wide audience.</p>
<p style="text-align: justify; ">Google (which is banned in China) supports the cause of disclosure of the information related to governments. The other net service providers which put out similar transparency reports are twitter, Linkedin and Cloud storage service Dropbox. These content pull down request made by the government is not healthy for a democratic country like India.</p>
<p>
For more details visit <a href='https://cis-india.org/news/whdi-reviews-nov-22-2012-indian-government-at-second-position-after-usa-for-demanding-user-data-from-google'>https://cis-india.org/news/whdi-reviews-nov-22-2012-indian-government-at-second-position-after-usa-for-demanding-user-data-from-google</a>
</p>
No publisherpraskrishnaInternet GovernanceIntermediary Liability2012-11-30T05:05:01ZNews ItemIndia: The New Front Line in the Global Struggle for Internet Freedom
https://cis-india.org/news/india-the-new-front-line-in-the-global-struggle-for-internet-freedom
<b>The government tussles with Internet freedom activists in the world's largest democracy.</b>
<p><a class="external-link" href="http://www.theatlantic.com/international/archive/2012/06/india-the-new-front-line-in-the-global-struggle-for-internet-freedom/258237/">This article was published in the Atlantic on June 7, 2012</a></p>
<p>This Saturday, Indian Internet freedom advocates are planning to stage a nation-wide protest against what they see as their government's increasingly restrictive regulation of the Internet. An amorphous alliance of concerned citizens and activist hackers intend to use the streets and the Internet itself to make their opposition felt. </p>
<p>Over the last year, as Americans were focused on the domestic debates surrounding the <a class="external-link" href="http://www.forbes.com/fdc/welcome_mjx.shtml">Stop Online Piracy Act (SOPA) and the Protect Intellectual Property Act (PIPA)</a>, or on the more brazen displays of online censorship by mainstays of Internet restriction like China, Iran and Pakistan, India was rapidly emerging as a key battleground in the worldwide struggle for Internet freedom.</p>
<p>The confrontation escalated in April 2011, when the Ministry of Communications and Information Technology introduced sweeping new rules regulating the nature of material that Internet companies could host online. In response, civil liberties groups, Internet freedom supporters, and a growing assembly of online activist hackers have been fighting back, initiating street protests, organizing online petitions, and launching -- under the banner of the "Anonymous" hacker group -- a torrent of distributed denial of service (DDoS) attacks against Indian government and industry web sites. </p>
<p>The <a class="external-link" href="http://www.mit.gov.in/sites/upload_files/dit/files/GSR314E_10511%281%29.pdf">April 2011 rules</a>, an update to India's <a class="external-link" href="http://www.mit.gov.in/sites/upload_files/dit/files/downloads/itact2000/it_amendment_act2008.pdf">Information Technology Act</a> (IT Act) of 2000 (amended in 2008), popularly known as the "intermediary guidelines," instruct online "intermediaries" -- companies that provide Internet access, host online content, websites, or search services -- to remove, within 36 hours, any material deemed to be "grossly harmful, harassing, blasphemous," "ethnically objectionable," or "disparaging" by any Internet user who submits a formal objection letter to that intermediary. Under the guidelines, any resident of India can compel Google, at the risk of criminal and/or civil liability, to remove content from its site that the resident finds politically, religiously, or otherwise "objectionable." </p>
<p>Information Technology Minister Kapil Sibal -- the intermediary guidelines' most important government evangelist, and the head of the agency responsible for administering the guidelines -- even <a class="external-link" href="http://india.blogs.nytimes.com/2011/12/05/india-asks-google-facebook-others-to-screen-user-content/">instructed Internet companies</a> to go one step further and start pre-screening content for removal before it was flagged by concerned users. This requires companies like Facebook, in effect, to determine what material might offend its users and thus violate Indian law, and then remove it from the website. With <a class="external-link" href="http://articles.economictimes.indiatimes.com/2011-12-15/news/30520358_1_e-commerce-indian-internet-space-internet-and-mobile-association">over 100 million Internet users</a> in India, no company could possibly monitor all its content through human intervention alone; web companies would have to set up filters and other mechanisms to take down potentially objectionable content more or less automatically.</p>
<p>India's constitution, in large part crafted in response to the modern country's harrowing history of religious and communal violence, allows for "reasonable restrictions" on free speech. Indian officials have at times banned certain books, movies, or other materials touching on such sensitive subjects as religion and caste. </p>
<p>Left with little choice but to comply or risk legal action, Google, Yahoo!, and other Internet companies acquiesced and <a class="external-link" href="http://www.reuters.com/article/2012/02/06/india-internet-idUSL4E8D66SM20120206">began pulling down </a>webpages after receiving requests to do so. Yet many companies refused to remove all the content requested, prompting Mufti Aijaz Arshad Qasm, an Islamic scholar, and journalist Vinay Rai, respectively, to file civil and criminal suits against 22 of the largest Internet companies operating in India. The targets, including Google, Yahoo!, Facebook, and Microsoft, were accused of failing to remove material deemed to be offensive to the Prophet Mohammed, Jesus, several Hindu gods and goddesses, and various political leaders. </p>
<p>The companies have had some success in the litigation: Google India, Yahoo!, and Microsoft have all <a class="external-link" href="http://online.wsj.com/article/SB10001424052702304356604577341101544076864.html">been dropped</a> from the civil case after the court heard preliminary arguments; the Delhi High Court recently dismissed Microsoft from the criminal case. Otherwise, both cases are still ongoing.</p>
<p>India has taken its Internet regulation internationally, <a class="external-link" href="http://www.thinkdigit.com/Internet/India-asks-US-to-remove-objectionable-content_9366.html">asking</a> the United States government to ensure that India-specific objectionable content is removed from sites such as Facebook, Google, and YouTube, and suggesting that these companies should be asked to relocate their servers to India in to order better to regulate the content locally.</p>
<p>The Indian government's state-centric view of Internet regulation and governance is also clear in their approach to international governance. Citing the need for more governmental input in the Internet's development and what happens online, India formally <a class="external-link" href="http://content.ibnlive.in.com/article/21-May-2012documents/full-text-indias-un-proposal-to-control-the-internet-259971-53.html">proposed the creation</a> of the Committee for Internet Related Policies (CIRP) at the 2011 United Nations General Assembly. The CIRP would be an entirely new multilateral UN body responsible for coordinating virtually all Internet governance functions, including multilateral treaties. </p>
<p>To be fair, some Indians see these as efforts not to impose censorship but to allow a greater degree of Indian and international control over a system considered by many in India and elsewhere to be <a class="external-link" href="http://www.thehindu.com/opinion/op-ed/article3426292.ece">under the thumb of the U.S. government</a>. </p>
<p>Yet some Internet experts in both India and the West are criticizing the CIRP proposal as part of "<a class="external-link" href="http://articles.timesofindia.indiatimes.com/2012-05-21/internet/31800574_1_governance-cyber-security-internet">thinly masked efforts to control or shape the Internet</a>," as one Indian official put it. They<a class="external-link" href="http://www.huffingtonpost.com/joe-waz/internet-governance-at-a-_b_1203125.html"> warn</a> that a state-centric system of Internet governance could lead to serious restrictions on the type of information available online, and damage the Internet's potential for innovation.</p>
<p><img src="https://cis-india.org/home-images/IndiaAnonymous.jpg/image_preview" alt="India Anonymous" class="image-inline image-inline" title="India Anonymous" /></p>
<p>India's Internet freedom advocates are straining to keep up with the rapid pace of the last year. But, now, they're gathering some steam. Online petitions against the intermediary guidelines, the IT Act, and censorship in India in general have appeared on <a class="external-link" href="https://www.change.org/petitions/mps-of-india-support-the-annulment-motion-to-protect-internet-freedom-stopitrules">Change.org</a> and <a class="external-link" href="https://www.facebook.com/saveyourvoice">Facebook</a>; <a class="external-link" href="http://www.youtube.com/watch?v=HtA194jig3s">protest videos</a> are popping up on Youtube. The Centre for Internet and Society, a web-focused think tank, released an <a href="https://cis-india.org/internet-governance/chilling-effects-on-free-expression-on-internet" class="external-link">extensive report highlighting</a> the intermediary guidelines' effects on freedom online. The Internet Democracy Project <a class="external-link" href="http://lighthouseinsights.in/bloggers-against-internet-censorship.html">organized a day-long training program</a> on freedom of expression and censorship for bloggers entitled "Make Blog not War." FreeSoftware Movement Karnataka organized a protest of hundreds of students in Bangalore, India's IT hub. And Save Your Voice activists <a class="external-link" href="http://kafila.org/2012/04/22/freedom-in-the-cage-photos-from-a-protest-against-internet-censorship-in-delhi/">held a sit in</a> outside Delhi's Jantar Mantar monument to pressure lawmakers.</p>
<p>Yet, not all the opposition has been so civil. Hackers, operating under the umbrella of the techno-libertarian hacker community, "Anonymous," are waging their own, less lawful fight against the government as well as the Internet companies that have, in their view, too readily complied with the government's censorship demands. </p>
<p>On May 17, Anonymous hackers attacked a number of Indian <a class="external-link" href="http://tech2.in.com/news/web-services/supreme-court-website-hacked-in-response-to-tpb-vimeo-block/307532">government websites</a>, including the Indian Supreme Court, the Reserve Bank of India, the ruling Congress Party and its <a class="external-link" href="http://windowsera.com/anonymous-india-hacks-aitmc-mizoram-government-website-redirects-to-twitter">coalition partners</a>, as well as the opposition Bhartiya Janata Party (BJP), making them all inaccessible for several hours. </p>
<p>Moreover, just this past week, Anonymous broke into the websites and servers of a number of Internet Service Providers, including <a class="external-link" href="http://www.firstpost.com/tech/anonymous-strikes-rcom-to-protest-india-net-censorship-322241.html">Reliance Communications</a>, seemingly to punish them for complying with government orders to block file-sharing hosts such as Pirate Bay and Vimeo. Once in the ISPs' servers, the hackers accessed their lists of <a class="external-link" href="http://tech2.in.com/news/general/anonymous-india-releases-blocked-sites-list-plans-peaceful-protest/310682">blocked sites</a> -- which they then distributed to media outlets. They also redirected people who tried to reach Reliance's site to an Anonymous <a class="external-link" href="http://www.cio.in/sites/default/files/topstory/2012/05/reliance_network_hacked.JPG">protest page</a>. </p>
<p>Building on the momentum of these attacks, and on the anti-censorship outrage growing across India, Anonymous <a class="external-link" href="http://articles.timesofindia.indiatimes.com/2012-05-31/internet/31920036_1_occupy-protests-government-sites-website">has called for a national day of protest</a> in 11 Indian cities this Saturday, and an additional series online attacks against government and industry websites. The occupy-style protests -- which Anonymous insists will be non-violent -- are to include awareness campaigns on Facebook and other social networking sites. Protesters are being asked to don the <a class="external-link" href="http://en.wikipedia.org/wiki/File:Anonymous_at_Scientology_in_Los_Angeles.jpg">Guy Fawkes mask</a>, a symbol now associated with Anonymous, among other protest movements, both in the streets and on their Facebook profiles. </p>
<p>It's unclear how much support the June 9 protest will receive, or how serious the planned Anonymous attacks with be, but given the attention that the announcement has attracted in the Indian media, it seems likely that people will at least be paying attention. And even if this weekend the protest fails to attract the type of large and vocal response protest organizers are hoping it will, that it's come so far is an indication that neither side looks ready to back down.</p>
<p>Still, the government has given some small signs recently that it is reconsidering its position on the "intermediary guidelines," if not on Internet regulation more generally. Information Technology Minister Sibal, under pressure from the political opposition and after Parliament Member P. Rajeeve tabled a motion to seek rescission of the new rules,<a class="external-link" href="http://indiatoday.intoday.in/story/kapil-sibal-promises-to-rethink-on-internet-censorship/1/189265.html"> indicated</a> that he would reconsider his previous positions, and the government has agreed to <a class="external-link" href="http://articles.economictimes.indiatimes.com/2012-05-18/news/31765682_1_internet-rules-arun-jaitley-information-technology-rules">reexamine the rules</a>. </p>
<p>This is an encouraging sign, although it's unlikely that any government action will come in time to forestall this weekend's protests. But even if the intermediary guidelines are ultimately rescinded, India will likely continue its soul-searching on how it deals with the Internet.</p>
<p>As the world's largest democracy and a model for much of the developing world, and with an Internet population anticipated to surpass that of the United States in the next few years, India is an important, maybe the most important, test case for the future of Internet freedom globally. Should India continue down a course of restriction, other nations eager to restrict online speech could see precedent to impose their own technical and political barriers to free expression online. It would be a tragic irony if India, as one of the developing world's greatest beneficiaries of the information revolution, ended up curbing those same free flows of information and ideas.</p>
<p>
For more details visit <a href='https://cis-india.org/news/india-the-new-front-line-in-the-global-struggle-for-internet-freedom'>https://cis-india.org/news/india-the-new-front-line-in-the-global-struggle-for-internet-freedom</a>
</p>
No publisherpraskrishnaFreedom of Speech and ExpressionInternet GovernanceIntermediary LiabilityCensorship2012-06-18T07:10:21ZNews ItemIndia- EU FTA: A Note on the Copyright Issues
https://cis-india.org/a2k/blogs/india-eu-fta-copyright-issues
<b>In this blog post, Nehaa Chaudhari gives us an overview of some of the provisions of the Free Trade Agreement (FTA) and the copyright issues identified therein. </b>
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<p style="text-align: justify; "><a href="https://cis-india.org/a2k/blogs/india-eu-fta-copyright-issues.pdf" class="internal-link">Click to download the India-EU FTA: A Note on Copyright Issues</a> (PDF, 205 Kb)</p>
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<p style="text-align: justify; ">Against the backdrop of ongoing negotiations dating back to 2007, and, more recently, with parties being unable to make substantial progress on the Indo-EU FTA<a href="#fn1" name="fr1">[1]</a> this note presents an overview on some of the provisions of the FTA and the copyright issues identified therein. This note deals with the issues on two levels- first to examine the impact of intellectual property right provisions in FTAs in general and second to apply these generic principles to the Indo- EU FTA specifically.</p>
<h2>Introduction</h2>
<p style="text-align: justify; ">Investment agreements, of which bilateral investment treaties are a part, and investment chapters in various FTAs often result in an increase in the effective levels of intellectual property protection in one of the countries that is a part to the agreement. This can be done either explicitly, where ‘investment’ may be defined to include IP, or implicitly, for instance, through an expropriation provision.<a href="#fn2" name="fr2">[2]</a> This has concurrently witnessed the growing realization that the promotion of these increased IP standards is not suited to the need of developing countries. Therefore, it has been observed<a href="#fn3" name="fr3">[3]</a>that there is now an attempt by the developed countries to use FTAs as a forum to push for higher standards of IP protection in developing countries, and to restrict the scope of the flexibilities offered by TRIPS, most notably in the sectors of protection of plant varieties, patents and access to medicine, farmers rights and access to information.<a href="#fn4" name="fr4">[4]</a>This approach is inherently problematic, because it then infringes on the developing countries’ ability to achieve their developmental objectives.</p>
<h2 style="text-align: justify; ">Dismantling the Arguments In Favour of Increased IP Protection</h2>
<p style="text-align: justify; ">A prevalent view of thought is that in order to increase Foreign Direct Investment (FDI), developing countries would have to increase their IP protection. This section of the paper seeks to argue that this might not necessarily be the case.</p>
<p style="text-align: justify; ">An illustration of the aforesaid proposition may be <i>Heald’s </i>criticism<a href="#fn5" name="fr5">[5]</a> levied on <i>Mansfield’s </i>paper<a href="#fn6" name="fr6">[6]</a> arguing that there was a direct correlation between the level of intellectual property protection in a country and the foreign direct investment into that country. Further, a study<a href="#fn7" name="fr7">[7]</a> conducted under the aegis of the United Nations has suggested that there was a ‘considerable incentive’ for countries to use the flexibilities provided under TRIPS to maximise net benefits for their development; stating that while in countries with a capacity to innovate stronger IPR protection can reap some benefits in terms of greater innovation at home and a greater diffusion of technology, the same cannot be said about nations without such a capacity, and may in fact impose additional costs.<a href="#fn8" name="fr8">[8]</a></p>
<p style="text-align: justify; ">Specifically in the area of copyright, it has been observed that increased copyright protection can hamper the growth and development of knowledge based industries. <i>Sanya Smith </i>argues that those who control copyright have a ‘significant advantage’ in the knowledge based economy, and says that in the current scenario where ownership of copyright is largely in the hands of industrialized nations, this places developing nations, and smaller economies at a significant disadvantage.<a href="#fn9" name="fr9">[9]</a> She also goes on to argue that increasing copyright protection alone does not seem to be sufficient to stimulate industries, and there may other factors involved. Additionally, copyright could also significantly increase the cost of creative industries.<a href="#fn10" name="fr10">[10]</a> More fundamentally however, access to information and knowledge are amongst the most affected areas as a result of tightening of copyright laws, leaving students, academicians, researchers, scientists and persons with print disability significantly disadvantaged.</p>
<h2>Implications of the Copyright Provisions in the Proposed Indo- EU FTA</h2>
<p class="MsoListParagraph" style="text-align: justify; ">Based on the general discussion earlier, this section of the paper seeks to examine the proposed and long debated Indo- EU FTA for the concerns enumerated earlier. As things currently stand, both parties have failed to reach a consensus on various substantial differences, and a ministerial meet originally scheduled for June seems unlikely to take place.<a href="#fn11" name="fr11">[11]</a></p>
<p style="text-align: justify; ">It has been observed<a href="#fn12" name="fr12">[12]</a> that the Indo- EU FTA<a href="#fn13" name="fr13">[13]</a> includes various provisions that preserve the flexibilities offered under the TRIPS framework. This is extremely critical from the perspective of developing countries, given that access to knowledge is an extremely important ideal to be preserved. For instance, as noted by Knowledge Ecology International<a href="#fn14" name="fr14">[14]</a>the proposed FTA includes Articles 7 (Objectives) and 8 (Principles) of the TRIPS<a href="#fn15" name="fr15">[15]</a> by reference. Further, the language of Article 13 under the proposed FTA explicitly recognizes the importance of the Doha Declaration, which is a positive step.<a href="#fn16" name="fr16">[16]</a> It has been said however, that stronger language where the parties ‘affirmed’ their obligations under the Declaration could have been used.<a href="#fn17" name="fr17">[17]</a> However, this does not take away from the fact that many of the provisions of the proposed FTA are extremely problematic, as will be discussed in the forthcoming parts of this paper.</p>
<h3>Problematic Provisions</h3>
<p class="MsoListParagraph" style="text-align: justify; ">The main concern that has emerged from this FTA is the fact that some of its provisions dealing with IPR go beyond the mandate as under the TRIPS Agreement. For instance, as pointed out by Shamnaad Basheer to Intellectual Property Watch, various provisions now provide for intermediary liability, which isn’t present in TRIPS. He also adds however, that if the initial stand of the government that India would not go TRIPS plus continues to hold, the government should indeed adopt a strong stance and not cave in to the said provisions.<a href="#fn18" name="fr18">[18]</a> An overview of some of the problematic provisions has been presented hereafter:</p>
<h4>International Obligations</h4>
<p style="text-align: justify; ">As per the proposed treaty, protection granted by the parties should be in accordance with the Berne Convention, the Rome Convention and the WIPO Copyright and Performance and Phonograms Treaties. Snehashish Ghosh in his blog post<a href="#fn19" name="fr19">[19]</a> writes that the EU stipulates compliance with Articles 1 through 22 of the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961), Articles 1 through 14 of the WIPO Copyright Treaty – WCT (Geneva, 1996), Articles 1 through 23 of the WIPO Performance and Phonograms Treaty – WPPT (Geneva, 1996). It is critical to note that the Rome Convention is not in force in India<a href="#fn20" name="fr20">[20]</a>, and that India is not a party to either the WCT<a href="#fn21" name="fr21">[21]</a> or the WPPT<a href="#fn22" name="fr22">[22]</a>, and therefore, this provision would have the effect of substantially surpassing all obligations that India has at the moment under multilateral international agreements.</p>
<h4>Technical Protection Measures (TPMs) and Digital Rights Management (DRM)</h4>
<p style="text-align: justify; ">A TPM, understood simply, is a lock in a digital format, placed on digital material to prevent access to or copying of the material in question. The problem with such measures is that they can prevent even those forms of copying which are legal (for instance, the copying of a movie on which copyright has expired could be prevented), creating a potentially infinite monopoly over the product in question. India, in its negotiations with the EU, has agreed to sweeping language under this provision, where TPMs and DRM measures are broadly defined. The Agreement further provides for limitations on TPM protections only to persons who have “legal access to the protected work or subject matter”.<a href="#fn23" name="fr23">[23]</a></p>
<h4>Copyright Expansion</h4>
<p style="text-align: justify; ">There are various provisions under the proposed FTA that have the effect of copyright expansion. To begin with, the duration of protection for photographic works is not expressly mentioned in the proposed agreement.<a href="#fn24" name="fr24">[24]</a> Snehashish Ghosh concludes that the term of photographic works is unclear in the proposed FTA. He writes that the proposed FTA makes it mandatory for the parties to comply with the Berne Convention, and all literary and artistic work under the proposed FTA is to be construed as the same as the Berne Convention<a href="#fn25" name="fr25">[25]</a>. Photographic works are included under literary and artistic works under the Berne Convention, and the rights of an author in case of photographic works are protected for a minimum period of 25 years. However, the proposed FTA extends the period of protection to beyond that prescribed by the Berne Convention and states that protection is given to literary and artistic works (as defined in the Berne Convention) for a period of the duration of the life of the author plus fifty years after this death. It further states that works for which the period of protection is not calculated from the death of the author, and which have not been lawfully made available to the public within at least 50 years from their creation, the protection shall terminate.<a href="#fn26" name="fr26">[26]</a></p>
<p style="text-align: justify; ">Article 7.6 (proposed by the EU), limits the resale rights of a downstream purchaser. It has been noted by Knowledge Ecology International<a href="#fn27" name="fr27">[27]</a> that this seems to give the author of an original work of art a right in perpetuity, to receive a royalty for the resale of the piece of art, where such right cannot be waived or transferred by the author of the work. Therefore, a situation would arise where each time a person who has purchased the work wants to resell the same, he would have to pay royalties to the original author.<a href="#fn28" name="fr28">[28]</a> The observations further go on to note that royalties are not limited, and the amount has to be determined by national legislation. Further complicating the situation is the fact that the provision does not cease to apply after a given number of re-sales, and continues to the death of the author (but might not into the 50 year protection post the death of the author).<a href="#fn29" name="fr29">[29]</a></p>
<p style="text-align: justify; ">Exceptions and limitations for copyright have been covered under Article 7.9(1) of the proposed FTA, and they may be created “only” in accordance with the three step test, which is essentially that (a) the exceptions and limitations must apply in certain special cases; (b) must not be in conflict with the normal course of exploitation of the subject matter in question and (c) must not unreasonably prejudice the legitimate interests of the right holders.<a href="#fn30" name="fr30">[30]</a> It has been observed that this test is more restrictive than TRIPS, Berne Convention, Rome Convention or the WCT.<a href="#fn31" name="fr31">[31]</a></p>
<p style="text-align: justify; ">On the plus side, temporary copies have been excluded from copyright protection, as per Article 7.9(2) of the proposed FTA, which would ensure the proper functioning of technology.</p>
<h4>Persons with Disabilities</h4>
<p style="text-align: justify; ">There is nothing that deals with the import/export or cross border exchange of files/documents/books etc. for persons with disabilities.</p>
<h4>Cross Border Measures</h4>
<p style="text-align: justify; ">Cross Border Measures have been dealt with under Article 30 of the proposed FTA. It is interesting to note that under this Article the EU has proposed the application of border measures to exports as well. This is contrary to the position laid down in the TRIPS Agreement, which has this requirement only for importing infringing goods.<a href="#fn32" name="fr32">[32]</a> Further, the EU also seeks to expand the applicability of such measures to include those goods which also infringe designs or geographical indications. Additionally, Article 30 also leaves out certain TRIPS safeguards, for instance, one that requires the right holder to provide adequate evidence for a prima facie case of infringement.<a href="#fn33" name="fr33">[33]</a></p>
<h4>Intermediary Liability</h4>
<p style="text-align: justify; ">It has been suggested that the EU, under the garb of protecting intermediate service providers from liability for infringement by users, is purporting to place a greater burden on the providers in question, of policing user activity.<a href="#fn34" name="fr34">[34]</a> For instance under Article 35.1.1 of the proposed FTA, while service providers are not under any general obligation to seek facts or circumstances that could indicate illegal activity, they may be obligated to promptly inform competent authorities of these alleged illegal activities undertaken/information provided by recipients of their service. <a href="#fn35" name="fr35">[35]</a> Otherwise, the providers may also be required to communicate to the authorities, on their request, information that would enable the identification of their service with whom they have storage agreements, as per Article 35.1.2.<a href="#fn36" name="fr36">[36]</a> It has been rightly identified by Glover Wright, that such provisions would only serve to increase tensions between the users and their service providers, with relations dictated by concerns about liability, and barriers in the sending, receiving and storing of information freely. It would be a tricky question for intermediate service providers to check what would constitute ‘knowledge’ and how they were to best safeguard themselves from liability.<a href="#fn37" name="fr37">[37]</a> Therefore, the author is inclined to agree with Wright’s submission that India needs to reject all provisions of liability of intermediate service providers as discussed above.</p>
<h4>IP Enforcement</h4>
<p style="text-align: justify; ">There exist, as regards the enforcement of rights, many problematic provisions in the proposed FTA. For starters, the EU has proposed that interlocutory injunctions may also be issued under the same conditions against an intermediary whose services are being used by a third party to infringe intellectual property rights.<a href="#fn38" name="fr38">[38]</a> This may be found under Article 22.1 of the proposed FTA, and is inherently problematic for being a provision far beyond the mandate as laid down by TRIPS.</p>
<p style="text-align: justify; ">The EU is also pushing for the use of very explicit language as regards seizing movable and immovable property of the alleged infringer as a precautionary measure. This also extends to the blocking of the bank accounts and other assets of the said infringer, and to this end, competent authorities may even order the communication of bank, financial or commercial documents, or access to the said information.<a href="#fn39" name="fr39">[39]</a> It is critical to note that such a provision is greatly problematic as being rather vague in its approach, and very readily compromising privacy for ‘alleged’ acts of infringement.</p>
<p style="text-align: justify; ">It is further critical to note that while Article 20 states that courts should have the power to grant ex parte order to collect evidence that is allegedly infringing, there are no safeguards provided for protection of a bona fide defendant whose premises might have been raided wrongly. It is submitted that provisions that safeguard the interests of defendants are of prime importance, especially in the Indian set up, where courts are as it is rather generous in their granting of ex parte orders.</p>
<h2>Concluding Observations</h2>
<p style="text-align: justify; ">While India may stand to benefit from the proposed FTA with the EU, there remain significant IP related issues that need to be ironed out before India comes to any consensus about the agreement and ratifies the same. On the basis of the discussion over the course of this paper, it may be seen that the provisions on intellectual property rights are problematic on various levels, particularly in the areas of expansion of copyright, the inclusion of TRIPS plus provisions, cross border measures, TPMs, liability of service providers and enforcement mechanisms.</p>
<p style="text-align: justify; ">Discussions in the first half of this paper have demonstrated that increased IP protections do not necessarily translate into increased FDI and may in fact stifle innovation. Further, the warning to developing countries against adopting IPR standards fixed by developed nations has been sounded many times over, and is one that needs to be heeded to very closely for developing nations to achieve their developmental objectives.</p>
<p style="text-align: justify; ">India has over a period of time established an IP regime that is consumer friendly. In adopting the proposed FTA in its current form, she risks endangering this regime that has thus far been instrumental in proliferating emerging technologies in the county.<a href="#fn40" name="fr40">[40]</a> Given that India has already acceded to international standards for IPRs as a result of being a member of the WTO and being TRIPS compliant, there is no cogent reason to be made out that warrants the accession to an FTA with TRIPS plus provisions. India ought to continue to push back strongly on these fronts, bearing in mind that its stance could very well set the tone for other such agreements in South Asia. From the way things stand at the moment, it is indeed a matter of some relief that the ratification of this proposed FTA still appears to be at a considerable distance.</p>
<hr />
<p style="text-align: justify; ">[<a href="#fr1" name="fn1">1</a>].Hereafter referred to as the FTA.</p>
<p style="text-align: justify; ">[<a href="#fr2" name="fn2">2</a>]. <span>Sanya Reid Smith, Intellectual Property in Free Trade Agreements, for the UNDP Regional Trade Workshop (17-18 December, Penang, Malaysia), available at </span><a class="external-link" href="http://bit.ly/11W8dqy">http://bit.ly/11W8dqy</a> <span>(last accessed 04 June, 2013). </span></p>
<p style="text-align: justify; ">[<a href="#fr3" name="fn3">3</a>]. Id.</p>
<p style="text-align: justify; ">[<a href="#fr4" name="fn4">4</a>]. Id at 5.</p>
<p style="text-align: justify; ">[<a href="#fr5" name="fn5">5</a>]. Supra note 2, citing PJ Heald, Information Economics and Policy 16 (2004) 57-65</p>
<p style="text-align: justify; ">[<a href="#fr6" name="fn6">6</a>]. <span>Edwin Mansfield, Intellectual Property Protection, Foreign Direct Investment and Technology Transfer, International Finance Corporation: Discussion Paper No. 19, available at </span><a class="external-link" href="http://bit.ly/18V4D5v">http://bit.ly/18V4D5v</a><span><a href="http://www-wds.worldbank.org/servlet/WDSContentServer/WDSP/IB/1994/02/01/000009265_3970311123634/Rendered/PDF/multi_page.pdf"></a> (last accessed 05 June, 2013)</span></p>
<p style="text-align: justify; ">[<a href="#fr7" name="fn7">7</a>]. See generally- Rod Falvey et. al., The Role of Intellectual Property Rights in Technology Transfer and Economic Growth: Theory and Evidence, United Nations Industrial Development Organization: Discussion Paper (2006), available at <a class="external-link" href="http://bit.ly/11JBR4o">http://bit.ly/11JBR4o</a> <span>(last accessed 05 June, 2013).</span></p>
<p style="text-align: justify; ">[<a href="#fr8" name="fn8">8</a>]. Id.</p>
<p style="text-align: justify; ">[<a href="#fr9" name="fn9">9</a>]. Supra note 2 at 23.</p>
<p style="text-align: justify; ">[<a href="#fr10" name="fn10">10</a>]. Supra note 2 at 23.</p>
<p style="text-align: justify; ">[<a href="#fr11" name="fn11">11</a>]. <span>PTI, India – EU FTA Talks Fail to Bridge Gaps, available at </span>http://bit.ly/19LJaeP <span>(last accessed 05 June, 2013). </span></p>
<p style="text-align: justify; ">[<a href="#fr12" name="fn12">12</a>]. <span>Krista Cox, Quick Reaction to the EU/India (BTIA) Negotiating Text, available at <a href="http://keionline.org/node/1693">http://keionline.org/node/1693</a> (last accessed 04 June, 2013). </span></p>
<p style="text-align: justify; ">[<a href="#fr13" name="fn13">13</a>]. Hereafter referred to as the FTA</p>
<p style="text-align: justify; ">[<a href="#fr14" name="fn14">14</a>]. <span>KEI Staff, More Notes on the India EU FTA (BTIA), available at <a href="http://keionline.org/node/1692">http://keionline.org/node/1692</a> (last accessed 05 June, 2013).</span><span> </span></p>
<p style="text-align: justify; ">[<a href="#fr15" name="fn15">15</a>]. <span>See </span><a class="external-link" href="http://bit.ly/13XhCfZ">http://bit.ly/13XhCfZ</a> <span> for more details, and for the bare text of the Articles. (last accessed 05 June, 2013).</span><span> </span></p>
<p style="text-align: justify; ">[<a href="#fr16" name="fn16">16</a>]. Supra note 14.</p>
<p style="text-align: justify; ">[<a href="#fr17" name="fn17">17</a>]. Supra note 12.</p>
<p style="text-align: justify; ">[<a href="#fr18" name="fn18">18</a>]. <span>Patralekha Chatterjee, Leaked IP Chapter of India- EU FTA Shows TRIPS-PLUS Pitfalls for India, Expert Says, available at </span><a class="external-link" href="http://bit.ly/Y7w70e">http://bit.ly/Y7w70e</a><span> (last accessed 05 June, 2013).</span><span> </span></p>
<p style="text-align: justify; ">[<a href="#fr19" name="fn19">19</a>]. <span>Snehashish Ghosh, Analysis of Copyright Expansion in the India-EU FTA (July 2010), available at </span><a class="external-link" href="http://bit.ly/ysitEC">http://bit.ly/ysitEC</a><span><a href="https://cis-india.org/a2k/blogs/blog/analysis-copyright-expansion-india-eu-fta"></a> (last accessed 03 June, 2013).</span></p>
<p style="text-align: justify; ">[<a href="#fr20" name="fn20">20</a>]. <span>For the status of Contracting Parties, see </span><a class="external-link" href="http://bit.ly/UITpsX">http://bit.ly/UITpsX</a><span> (last accessed 05 June, 2013).</span></p>
<p style="text-align: justify; ">[<a href="#fr21" name="fn21">21</a>]. <span>For the status of Contracting Parties, see </span><a class="external-link" href="http://bit.ly/f92xL2">http://bit.ly/f92xL2</a><span> (last accessed 05 June, 2013).</span></p>
<p style="text-align: justify; ">[<a href="#fr22" name="fn22">22</a>]. For the status of Contracting Parties, see <a class="external-link" href="http://bit.ly/fEsUAF">http://bit.ly/fEsUAF</a> (last accessed 05 June, 2013).</p>
<p style="text-align: justify; ">[<a href="#fr23" name="fn23">23</a>]. Supra note 14.</p>
<p style="text-align: justify; ">[<a href="#fr24" name="fn24">24</a>]. Supra note 19.</p>
<p style="text-align: justify; ">[<a href="#fr25" name="fn25">25</a>]. Supra note 19.</p>
<p style="text-align: justify; ">[<a href="#fr26" name="fn26">26</a>]. Supra note 19.</p>
<p style="text-align: justify; ">[<a href="#fr27" name="fn27">27</a>]. Supra note 12.</p>
<p style="text-align: justify; ">[<a href="#fr28" name="fn28">28</a>]. Supra note 12.</p>
<p style="text-align: justify; ">[<a href="#fr29" name="fn29">29</a>]. Supra note 12.</p>
<p style="text-align: justify; ">[<a href="#fr30" name="fn30">30</a>]. Supra note 12.</p>
<p style="text-align: justify; ">[<a href="#fr31" name="fn31">31</a>]. Supra note 14.</p>
<p style="text-align: justify; ">[<a href="#fr32" name="fn32">32</a>]. Supra note 12.</p>
<p style="text-align: justify; ">[<a href="#fr33" name="fn33">33</a>]. Supra note 12.</p>
<p style="text-align: justify; ">[<a href="#fr34" name="fn34">34</a>]. See Article 35 of the Proposed FTA.</p>
<p style="text-align: justify; ">[<a href="#fr35" name="fn35">35</a>]. <span>Glover Wright, A Guide to the Proposed India-European Union Free Trade Agreement, available at </span><a class="external-link" href="http://bit.ly/16Dfuga">http://bit.ly/16Dfuga</a><span><a href="https://cis-india.org/a2k/blogs/publications/CIS%20Open%20Data%20Case%20Studies%20Proposal.pdf/view"></a> (last accessed 05 June, 2013) at 12- 14.</span><span> </span></p>
<p style="text-align: justify; ">[<a href="#fr36" name="fn36">36</a>]. Id.</p>
<p style="text-align: justify; ">[<a href="#fr37" name="fn37">37</a>]. Id.</p>
<p style="text-align: justify; ">[<a href="#fr38" name="fn38">38</a>]. <span>Thiru, EU-India FTA: EU Pushes for IP Enforcement- IP Chapter Draft Text Under Negotiation (2013), available at <a href="http://keionline.org/node/1681">http://keionline.org/node/1681</a> (last accessed 05 June, 2013).</span></p>
<p style="text-align: justify; ">[<a href="#fr39" name="fn39">39</a>]. See Article 22.3 of the proposed FTA.</p>
<p style="text-align: justify; ">[<a href="#fr40" name="fn40">40</a>]. Supra note 35.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/india-eu-fta-copyright-issues'>https://cis-india.org/a2k/blogs/india-eu-fta-copyright-issues</a>
</p>
No publishernehaaAccess to KnowledgeCopyrightAccessibilityIntermediary LiabilityTechnological Protection Measures2013-07-03T06:47:08ZBlog EntryIndia's Broken Internet Laws Need a Shot of Multi-stakeholderism
https://cis-india.org/internet-governance/blog/india-broken-internet-law-multistakeholderism
<b>Cyber-laws in India are severely flawed, with neither lawyers nor technologists being able to understand them, and the Cyber-Law Group in DEIT being incapable of framing fair, just, and informed laws and policies. Pranesh Prakash suggests they learn from the DEIT's Internet Governance Division, and Brazil, and adopt multi-stakeholderism as a core principle of Internet policy-making.</b>
<p>(An edited version of this article was published in the Indian Express as <a href="http://www.indianexpress.com/story-print/941491/">"Practise what you preach"</a> on Thursday, April 26, 2012.)</p>
<p>The laws in India relating to the Internet are greatly flawed, and the only way to fix them would be to fix the way they are made. The <a href="https://cis-india.org/internet-governance/blog/www.mit.gov.in/content/cyber-laws-security">Cyber-Laws & E-Security Group</a> in the <a href="http://www.mit.gov.in">Department of Electronics and Information Technology</a> (DEIT, who refer to themselves as 'DeitY' on their website!) has proven itself incapable of making fair, balanced, just, and informed laws and policies. The Information Technology (IT) Act is filled with provisions that neither lawyers nor technologists understand (not to mention judges). (The definition of <a href="http://www.vakilno1.com/bareacts/informationtechnologyact/s65.htm">"computer source code" in s.65 of the IT Act</a> is a great example of that.)</p>
<p>The Rules drafted under s.43A of the IT Act (on 'reasonable security practices' to be followed by corporations) were so badly formulated that the government was forced to issue a <a href="http://pib.nic.in/newsite/PrintRelease.aspx??relid=74990">clarification through a press release</a>, even though the clarification was in reality an amendment and amendments cannot be carried out through press releases. Despite the clarification, it is unclear to IT lawyers whether the Rules are mandatory or not, since s.43A (i.e., the parent provision) seems to suggest that it is sufficient if the parties enter into an agreement specifying reasonable security practices and procedures. Similarly, the "Intermediary Guidelines" Rules (better referred to as the Internet Censorship Rules) drafted under s.79 of the Act have been called <a href="http://www.indianexpress.com/story-print/940682/">"arbitrary and unconstitutional" by many, including MP P. Rajeev</a>, who has <a href="http://cis-india.org/internet-governance/blog/statutory-motion-against-intermediary-guidelines-rules">introduced a motion in the Rajya Sabha to repeal the Rules</a> ("Caught in a net", Indian Express, April 24, 2012). These Rules give the power of censorship to every citizen and allow them to remove any kind of material off the Internet within 36 hours without anybody finding out. Last year, we at the Centre for Internet and Society used this law to get thousands of innocuous links removed from four major search engines without any public notice. In none of the cases (including one where an online news website removed more material than the perfectly legal material we had complained about) were the content-owners notified about our complaint, much less given a chance to defend themselves.</p>
<p>Laws framed by the Cyber-Law Group are so poorly drafted that they are misused more often than used. There are too many criminal provisions in the IT Act, and their penalties are greatly more than that of comparable crimes in the IPC. Section 66A of the IT Act, which criminalizes "causing annoyance or inconvenience" electronically, has a penalty of 3 years (greater than that for causing death by negligence), and does not require a warrant for arrest. This section has been used in the Mamata Banerjee cartoon case, for arresting M. Karthik, a Hyderabad-based student who made atheistic statements on Facebook, and against former Karnataka Lokayukta Santosh Hegde. Section 66A, I believe, imperils freedom of speech more than is allowable under Art. 19(2) of the Constitution, and is hence unconstitutional.</p>
<p>While <a href="http://indiankanoon.org/doc/1740460/">s.5 of the Telegraph Act</a> only allows interception of telephone conversations on the occurrence of a public emergency, or in the interest of the public safety, the IT Act does not have any such threshold conditions, and greatly broadens the State's interception abilities. Section 69 allows the government to force a person to decrypt information, and might clash with Art.20(3) of the Constitution, which provides a right against self-incrimination. One can't find any publicly-available governmental which suggests that the constitutionality of provisions such as s.66A or s.69 was examined.</p>
<p>Omissions by the Cyber-Law Group are also numerous. The <a href="http://www.cert-in.org.in">Indian Computer Emergency Response Team (CERT-In)</a> has been granted <a href="http://www.cert-in.org.in/">very broad functions</a> under the IT Act, but without any clarity on the extent of its powers. Some have been concerned, for instance, that the broad power granted to CERT-In to "give directions" relating to "emergency measures for handling cyber security incidents" includes the powers of an "Internet kill switch" of the kind that Egypt exercised in January 2011. Yet, they have failed to frame Rules for the functioning of CERT-In. The licences that the Department of Telecom enters into with Internet Service Providers requires them to restrict usage of encryption by individuals, groups or organisations to a key length of only 40 bits in symmetric key algorithms (i.e., weak encryption). The RBI mandates a minimum of 128-bit SSL encryption for all bank transactions. Rules framed by the DEIT under s.84A of the IT Act were to resolve this conflict, but those Rules haven't yet been framed.</p>
<p>All of this paints a very sorry picture. Section 88 of the IT Act requires the government, "soon after the commencement of the Act", to form a "Cyber Regulations Advisory Committee" consisting of "the interests principally affected or having special knowledge of the subject-matter" to advise the government on the framing of Rules, or for any other purpose connected with the IT Act. This body still has not been formed, despite the lag of more than two and a half years since the IT Act came into force. Justice Markandey Katju’s recent letter to Ambika Soni about social media and defamation should ideally have been addressed to this body. </p>
<p>The only way out of this quagmire is to practise at home that which we preach abroad on matters of Internet governance: multi-stakeholderism. Multi-stakeholderism refers to the need to recognize that when it comes to Internet governance there are multiple stakeholders: government, industry, academia, and civil society, and not just the governments of the world. This idea has gained prominence since it was placed at the core of the "Declaration of Principles" from the first World Summit on Information Society in Geneva in 2003, and has also been at the heart of India's pronouncements at forums like the Internet Governance Forum. Brazil has an <a href="httphttp://www.cgi.br/english/">"Internet Steering Committee"</a> which is an excellent model that practices multi-stakeholderism as a means of framing and working national Internet-related policies. DEIT's <a href="http://www.mit.gov.in/content/internet-governance">Internet Governance Division</a>, which formulates India's international stance on Internet governance, has long recognized that governance of the Internet must be done in an open and collaborative manner. It is time the DEIT's Cyber-Law and E-Security Group, which formulates our national stance on Internet governance, realizes the same.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/india-broken-internet-law-multistakeholderism'>https://cis-india.org/internet-governance/blog/india-broken-internet-law-multistakeholderism</a>
</p>
No publisherpraneshIT ActFreedom of Speech and ExpressionEncryptionIntermediary LiabilityFacebookInternet GovernanceCensorship2012-04-26T13:45:25ZBlog EntryIndia ranks second globally in accessing private details of users
https://cis-india.org/news/thinkdigit-internet-kul-bhushan-nov-15-2012-india-ranks-second-globally-in-accessing-private-details-of-users
<b>According to the latest transparency report released by Google, India ranks second in the world for accessing private details of its citizens, only after the U.S. The Google report lists out requests it received from governments across the world to access details of users of its various services.</b>
<hr />
<p style="text-align: justify; ">Kul Bhushan's blog post was <a class="external-link" href="http://www.thinkdigit.com/Internet/India-ranks-second-globally-in-accessing-private_11364.html">published in thinkdigit</a> on November 15, 2012. Pranesh Prakash is quoted.</p>
<hr />
<p style="text-align: justify; "><a href="http://www.thinkdigit.com/latest/google.html" target="_blank">Google's</a> data reveals India had made 2,319 requests involving 3,467 users in the first six months. The U.S. made 7,969 requests, while Brazil, which ranks third, made 1,566 requests during the same period. Worldwide 20,938 requests were made during the January-June period. The report says the information shared included complete Gmail account, chat logs, Orkut profile and search terms among others.</p>
<p style="text-align: justify; ">The requests for accessing user data from India had grown two-fold from 1,061 in July-December 2009 to 2,207 in July-December 2011, the report points out.<br /><br />According to the report, India has been consistently sending requests to remove content which it brands as defamatory and against national security. The court orders, however, to take down content has remained almost stagnant over the years; though requests from the executive and police have grown.<br /><br />In the first six months this year, there were 20 court orders and 64 requests from executive/police that resulted in 596 items being taken down from the web. During the January-June 2010 period, there were only eight court orders and 22 executive/police requests, resulting in 125 items being taken down. Read about Google's previous transparency report here.<br /><br />"Though India is a large country with a significant number of internet users, this data is nonetheless an indicator of growing surveillance," Times of India quotes Pranesh Prakash, policy director at Centre for Internet and Society ( CIS), a Bangalore-based organization looking at issues of public accountability, internet freedom and openness, as saying.<br /><br />"India lacks a general privacy law that helps set guidelines for such user requests, despite privacy being a constitutional right as part of the right to life," added Prakash.</p>
<p>
For more details visit <a href='https://cis-india.org/news/thinkdigit-internet-kul-bhushan-nov-15-2012-india-ranks-second-globally-in-accessing-private-details-of-users'>https://cis-india.org/news/thinkdigit-internet-kul-bhushan-nov-15-2012-india-ranks-second-globally-in-accessing-private-details-of-users</a>
</p>
No publisherpraskrishnaInternet GovernanceIntermediary LiabilityPrivacy2012-11-19T04:49:23ZNews ItemIndia limits social media after civil unrest
https://cis-india.org/news/articles-latimes-com-mark-magnier-aug-23-2012-india-limits-social-media-after-civil-unrest
<b>Indian officials have gone too far in limiting text messages and pressuring local Internet firms as well as Twitter and others to block accounts, critics say.</b>
<hr />
<p style="text-align: justify; ">This article by Mark Magnier was published in <a class="external-link" href="http://articles.latimes.com/2012/aug/23/world/la-fg-india-twitter-20120824">Los Angeles Times</a> on August 23, 2012 and re-posted in <a class="external-link" href="http://www.channel6newsonline.com/2012/08/after-civil-unrest-indian-government-places-limits-social-media/">Channel 6 News</a> on August 24, 2012. Sunil Abraham is quoted.</p>
<hr />
<p style="text-align: justify; ">Has the Indian government lost its sense of humor?</p>
<p style="text-align: justify; ">That's what some in India were asking as word spread that authorities had pressured Twitter into blocking several accounts parodying the prime minister after civil unrest that saw dozens of people from northeastern India killed and thousands flee in panic.</p>
<p style="text-align: justify; ">This week, the government also imposed a two-week limit of five text messages a day — raised Thursday to 20 — potentially affecting hundreds of millions of people, and pressured local Internet companies as well as Facebook, Twitter and Google to block hundreds of websites and user accounts.</p>
<p style="text-align: justify; ">Although journalists, free speech advocates and bloggers said the effort to squelch rumors may be justified, several criticized the actions as excessive.</p>
<p style="text-align: justify; ">"You cannot burn the entire house to kill one mischievous mouse," said Gyana Ranjan Swain, a senior editor at Voice & Data, a networking trade magazine. "You're in the 21st century. Their thinking is still 50 years old. It's just 'kill the messenger.'"</p>
<p style="text-align: justify; ">Comedians said Indian political humor is evolving and there's more leeway to make fun of politicians than a decade ago, but the nation's mores still call for greater respect than in the West.</p>
<p style="text-align: justify; ">"If I tried something like South Park, I'd be put behind bars tomorrow," said Rahul Roushan, founder of Faking News website, which satirizes Indian current events.</p>
<p style="text-align: justify; ">Faking News has lampooned the recent corruption scandals, including specious stories about theme restaurants (where customers must bribe waiters or go hungry); and a tongue-in-cheek report that India has banned the zero because too many of them appear nowadays in auditors' reports, after recent coal and telecommunications scandals each allegedly involving more than $30 billion.</p>
<p style="text-align: justify; ">Roushan, whose site isn't blocked, said he hopes low-level officials misinterpreted government directives.</p>
<p style="text-align: justify; ">"I'm still in a state of disbelief," he said. "I don't think the government is so stupid that it can ask that parody accounts get taken down. If they did, God help this country."</p>
<p style="text-align: justify; ">A spokesman for the prime minister's office said the blocking of six fake Twitter accounts attributed to the prime minister has been in the works for months and wasn't related to the recent crisis. He said the move was in response to tweets containing hate language and caste insults that readers could easily mistake as the Indian leader's. A dozen Twitter accounts and about 300 websites were blocked, according to news reports.</p>
<p style="text-align: justify; ">"We have not lost our sense of humor," said Pankaj Pachauri, the prime minister's spokesman. "We started a procedure to take action against people misrepresenting themselves."</p>
<p style="text-align: justify; ">But some Twitter users whose accounts are frozen, including media consultant Kanchan Gupta, counter that the government may be using the crisis to muzzle critics.</p>
<p style="text-align: justify; ">"I'm very clear in my mind this is a political decision," said Gupta, who has been critical of corruption and the government's policy drift. "If they were openly confrontational of me, they'd go nowhere, so they're trying this."</p>
<p style="text-align: justify; ">Attempts to access his Twitter page Thursday were met with the message: "This website/URL has been blocked until further notice either pursuant to Court orders or on the Directions issued by the Department of Telecommunications."</p>
<p style="text-align: justify; ">Even Britain's Queen Elizabeth II has numerous parody accounts so India needs to lighten up, consultant Gupta said.</p>
<p style="text-align: justify; ">He's received several messages from worried Pakistani friends since the news broke. "They ask if I'm all right, say they hope they haven't frog-marched you to jail," he said. "What irony."</p>
<p style="text-align: justify; ">The restrictions are the latest chapter of a crisis that started in July when Muslims and members of the Bodo tribal community in northeastern India clashed over land, jobs and politics. The result: 75 people killed and 300,000 displaced.</p>
<p style="text-align: justify; ">Muslims in Mumbai, formerly Bombay, staged a sympathy demonstration last week; two more people were killed and dozens injured.</p>
<p style="text-align: justify; ">Rumors, hate messages and altered photos of supposed atrocities against Muslims soon spread on social media sites, and several people from northeastern India were beaten in Bangalore and other cities, prompting the crackdown.</p>
<p style="text-align: justify; ">New Delhi has accused Pakistani websites of fanning the online rumors. (Islamabad said it would investigate if there's any proof.) But Indian news media also reported that 20% of the websites blocked contained inflammatory material uploaded by Hindu nationalist groups in India that were apparently trying to stir up sectarian trouble.</p>
<p style="text-align: justify; ">The Twitter community has responded with derision and humor to limits on text messages on prepaid cellphones.</p>
<p style="text-align: justify; ">"Feeling deeply insulted that I still have not been blocked," tweeted user @abhijitmajumder. "Victim of govt apathy."</p>
<p style="text-align: justify; ">Sunil Abraham, head of the Bangalore civic group Center for Internet and Society, said this week's restrictions are the latest in a series of regulations and recommendations aimed at tightening Internet control.</p>
<p>
For more details visit <a href='https://cis-india.org/news/articles-latimes-com-mark-magnier-aug-23-2012-india-limits-social-media-after-civil-unrest'>https://cis-india.org/news/articles-latimes-com-mark-magnier-aug-23-2012-india-limits-social-media-after-civil-unrest</a>
</p>
No publisherpraskrishnaSocial mediaFreedom of Speech and ExpressionPublic AccountabilityInternet GovernanceIntermediary LiabilityCensorship2012-09-04T11:59:01ZNews ItemHow India Makes E-books Easier to Ban than Books (And How We Can Change That)
https://cis-india.org/internet-governance/blog/india-ebooks-easier-to-ban-than-books
<b>Without getting into questions of what should and should not be unlawful speech, Pranesh Prakash chooses to take a look at how Indian law promotes arbitrary removal and blocking of websites, website content, and online services, and how it makes it much easier than getting offline printed speech removed.</b>
<h2>E-Books Are Easier To Ban Than Books, And Safer</h2>
<p>Contrary to what Mr. Sibal's recent hand-wringing at objectionable online material might suggest, under Indian laws currently in force it is far easier to remove material from the Web, by many degrees of magnitude, than it is to ever get them removed from a bookstore or an art gallery. To get something from a bookstore or an art gallery one needs to collect a mob, organize collective outrage and threats of violence, and finally convince either the government or a magistrate that the material is illegal, thereby allowing the police to seize the books or stop the painting from being displayed. The fact of removal of the material will be noted in various records, whether in government records, court records, police records or in newspapers of record. By contrast, to remove something from the Web, one needs to send an e-mail complaining about it to any of the string of 'intermediaries' that handle the content: the site itself, the web host for the site, the telecom companies that deliver the site to your computer/mobile, the web address (domain name) provider, the service used to share the link, etc. Under the <a href="https://cis-india.org/internet-governance/resources/intermediary-guidelines-rules">'Intermediary Guidelines Rules'</a> that have been in operation since 11th April 2011, all such companies are required to 'disable access' to the complained-about content within thirty-six hours of the complaint. It is really that simple.</p>
<p>"That's ridiculous," you think, "surely he must be exaggerating." Think again. A researcher working with us at the Centre for Internet and Society tried it out, several times, with many different intermediaries and always with frivolous and flawed complaints, and was successful <a class="external-link" href="http://www.cis-india.org/news/chilling-impact-of-indias-april-internet-rules"> six out of seven times </a>. Thus it is easier to prevent Flipkart or Amazon from selling Rushdie's Midnight's Children than it is to prevent a physical bookstore from doing so: today Indira Gandhi wouldn't need to win a lawsuit in London against the publishers to remove a single line as she did then; she would merely have to send a complaint to online booksellers and get the book removed. It is easier to block Vinay Rai's Akbari.in (just as CartoonsAgainstCorruption.com was recently blocked) than it is to prevent its print publication. Best of all for complainants: there is no penalty for frivolous complaints such as those sent by us, nor are any records kept of who's removed what. Such great powers of censorship without any penalties for their abuse are a sure-fire way of ensuring a race towards greater intolerance, with the Internet — that republic of opinions and expressions — being a casualty.</p>
<h2>E-Book Bans Cannot Be Challenged</h2>
<p>In response to some of the objections raised, the Cyberlaw Division of the Department of Information Technology, ever the dutiful guardian of free speech, noted that if you have a problem with access to your content being 'disabled', you could always <a href="http://www.pib.nic.in/newsite/erelease.aspx?relid=72066">approach a court</a> and get that ban reversed. Unfortunately, the Cyberlaw Division of the Department of Information Technology forgot to take into account that you can't contest a ban/block/removal if you don't know about it. While they require all intermediaries to disable access to the content within thirty-six hours, they forgot to mandate the intermediary to tell you that the content is being removed. Whoops. They forgot to require the intermediary to give public notice that content has been removed following a complaint from person ABC or corporation XYZ on such-and-such grounds. Whoops, again.</p>
<p>So while records are kept, along with reasons, of book bans, there are no such records required to be kept of e-book bans.</p>
<h2>E-Book Censors Are Faceless</h2>
<p>Vinay Rai is a brave man. He is being attacked by fellow journalists who believe he's disgracing the professional upholders of free-speech, and being courted by television channels who believe that he should be encouraged to discuss matters that are sub judice. He is viewed by some as a man who's playing politics in courts on behalf of unnamed politicians and bureaucrats, while others view him as being bereft of common-sense for believing that companies should be legally liable for not having been clairvoyant and removing material he found objectionable, though he has never complained to them about it, and has only provided that material to the court in a sealed envelope. I choose, instead, to view him as a scrupulous and brave man. He has a face, and a name, and is willing to openly fight for what he believes in. However, there are possibly thousands of unscrupulous Vinay Rais out there, who know the law better than he does, and who make use not of the court system but of the Intermediary Guidelines Rules, firmly assured by those Rules that their censorship activities will never be known, will never be challenged by Facebook and Google lawyers, and will never be traced back to them.</p>
<h2>Challenging Invisible Censorship</h2>
<p>Dear reader, you may have noticed that this is a bit like a trial involving Free Speech in which Free Speech is presumed guilty upon complaint, is not even told what the charges against it are, has not been given a chance to prove its innocence, and has no right to meet its accusers nor to question them. Yet, the Cyberlaw Division of the Department of Information Technology continues to issue press releases defending these Rules as fair and just, instead of being simultaneously Orwellian and Kafkaesque. These Rules are delegated legislation passed by the Department of Information Technology under <a href="https://cis-india.org/internet-governance/resources/section-79-information-technology-act">s.79 of the Information Technology Act</a>. The Rules were laid before Parliament during the 2011 Monsoon session. We at CIS believe that these Rules are *ultra vires* the IT Act as well as the Constitution of India, not only with respect to what is now (newly) proscribed online (which in itself is enough to make it unconstitutional), but how that which is purportedly unlawful is to be removed. We have prepared an alternative that we believe is far more just and in accordance with our constitutional principles, taking on best practices from Canada, the EU, Chile, and Brazil, while still allowing for expeditious removal of unlawful material. We hope that the DIT will consider adopting some of the ideas embodied in our draft proposal.</p>
<p>As Parliament passed the IT Act in the midst of din, without any debate, it is easy to be skeptical and wonder whether Rules made under the IT Act will be debated. However, I remain hopeful that Parliament will not only exercise its power wisely, but will perform its solemn duty — borne out of each MP's oath to uphold our Constitution — by rejecting these Rules.</p>
<p>Photo credit: <a href="https://secure.flickr.com/photos/grandgrrl/5240360344/">Lynn Gardner</a>, under CC-BY-NC-SA 2.0 licence*</p>
<p><a class="external-link" href="http://www.outlookindia.com/article.aspx?279712">This was reproduced in Outlook Magazine</a> on 27 January 2012</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/india-ebooks-easier-to-ban-than-books'>https://cis-india.org/internet-governance/blog/india-ebooks-easier-to-ban-than-books</a>
</p>
No publisherpraneshObscenityFreedom of Speech and ExpressionInternet GovernanceFeaturedIntermediary LiabilityCensorship2012-02-21T11:50:56ZBlog EntryGovernment asks Twitter to block fake 'PMO India' accounts; site fails to respond
https://cis-india.org/news/articles-economictimes-indiatimes-com-govt-asks-twitter-to-block-fake-pmo-india-accounts-site-fails-to-respond
<b>A standoff between the government and microblogging service Twitter, that has got India's online community up in arms, continues, as Twitter is still to act on India's requests to block some of the fake 'PMO India' accounts. </b>
<hr />
<p style="text-align: justify; ">This article was <a class="external-link" href="http://articles.economictimes.indiatimes.com/2012-08-23/news/33342478_1_twitter-parody-accounts-unlawful-content">published</a> in the Economic Times on August 23, 2012. Sunil Abraham is quoted.</p>
<hr />
<p style="text-align: justify; ">India's Minister for Communications and Information Technology <a href="http://economictimes.indiatimes.com/topic/Kapil%20Sibal">Kapil Sibal</a> said, "Twitter has not responded to our requests in a satisfactory manner. The fake accounts are still there. The government of India is contemplating what action should be taken against Twitter and this will be announced as soon as we have finalised our response," he said.</p>
<p style="text-align: justify; ">Sibal further added that the government received a response from the <a href="http://economictimes.indiatimes.com/topic/US%20Department%20of%20Justice">US Department of Justice</a>, which also agreed that the content on the sites India sought to ban was inappropriate.</p>
<p style="text-align: justify; ">Twitter's operating code allows for parody accounts to be allowed as long as such accounts clearly identify as parody. The accounts in question - including @Indian_pm, @PMOIndiaa, @dryumyumsingh, @PM0India- do so.</p>
<p style="text-align: justify; ">Unlike other popular parody accounts of world leaders, though, some of these accounts make no attempt to 'spoof' tweets from the Prime Minister. The user of the @PM0India handle, with over 11 thousand followers, has changed their handle to @thehinduexpress, and tweeted "When I've to parody PM, I'll use the other a/c and RT that. For countering media and <a href="http://economictimes.indiatimes.com/topic/Congress">Congress</a>, this ID will be used. To hell with censorship."</p>
<p style="text-align: justify; ">An email by ET to <a href="http://economictimes.indiatimes.com/topic/Twitter%20Inc">Twitter Inc</a>, received no response at the time of going to press. However, news agency PTI quoted sources saying that Twitter has communicated to the PMO that it would be locating the "unlawful content". "India is important to us and we would like to have clearer communication in these matters in future," PTI quoted Twitter as saying. Official spokesperson for Indian Prime Minister's Office Pankaj Pachauri confirmed that Twitter is looking into the matter.</p>
<p style="text-align: justify; ">Over the past few days, the government has blocked around 300 websites which it blames for spreading rumours that triggered the exodus of people from the North East from several cities. <a href="http://economictimes.indiatimes.com/topic/Google">Google</a> and <a href="http://economictimes.indiatimes.com/topic/Facebook">Facebook</a> on Tuesday told ET they were working with India in removing content which can incite violence.</p>
<p style="text-align: justify; "><img class="gwt-Image" src="http://www.economictimes.indiatimes.com/photo/15610805.cms" /></p>
<p style="text-align: justify; ">"There is clear evidence that these social networks have caused harm and disruption. However, they need to be clearer about the way they go about blocking sites and other links. The block order contained around 20 accounts and over 80 <a href="http://economictimes.indiatimes.com/topic/Youtube">Youtube</a> videos.</p>
<p style="text-align: justify; ">It also had several mainstream media reports and a few Pakistani sites," Sunil Abraham, executive director of Bangalore-based <a href="http://economictimes.indiatimes.com/topic/Centre%20for%20Internet">Centre for Internet</a> and Society said. Analysts do not rule out the possibility that Twitter itself will be blocked in India if it does not act.</p>
<p>
For more details visit <a href='https://cis-india.org/news/articles-economictimes-indiatimes-com-govt-asks-twitter-to-block-fake-pmo-india-accounts-site-fails-to-respond'>https://cis-india.org/news/articles-economictimes-indiatimes-com-govt-asks-twitter-to-block-fake-pmo-india-accounts-site-fails-to-respond</a>
</p>
No publisherpraskrishnaSocial mediaFreedom of Speech and ExpressionPublic AccountabilityInternet GovernanceIntermediary LiabilityCensorship2012-09-04T12:24:52ZNews ItemGoogle's 'Transparency Report' sketchy, inconclusive: Government
https://cis-india.org/news/articles-economic-times-nov-17-2012-indu-nandakumar-googles-transparency-report-sketchy-inconclusive
<b>Google calls it the 'Transparency Report', but as far as Indian authorities are concerned, it is anything but. The world's largest Internet company this week published its latest half-yearly findings on government requests for access to personal information, showing that both the number of requests and the rate of denials have risen. The data, according to the world's largest democracy, are too sketchy for any clear conclusions to be drawn.</b>
<hr />
<p style="text-align: justify; ">This article by Indu Nandakumar was <a class="external-link" href="http://articles.economictimes.indiatimes.com/2012-11-17/news/35170763_1_transparency-report-google-data-requests">published in the Economic Times</a> on November 17, 2012. Pranesh Prakash is quoted.</p>
<hr />
<p style="text-align: justify; ">The skirmish is happening during a year in which relations between the <a href="http://economictimes.indiatimes.com/topic/Indian%20government">Indian government</a> and <a href="http://economictimes.indiatimes.com/topic/Internet%20companies">Internet companies</a> deteriorated, with demands to take down fake <a href="http://economictimes.indiatimes.com/topic/Twitter">Twitter</a> handles and web pages that the former said threatened the security of regional and religious minorities.</p>
<div dir="LTR" id="mod-a-body-after-first-para" style="text-align: justify; ">
<p>The sum and substance of the 'Transparency Report' is that government authorities have increased the number of requests they make for personal information of user accounts on Google-owned services, including <a href="http://economictimes.indiatimes.com/topic/YouTube">YouTube</a> and Gmail. Google, on the other hand, has been denying the requests at a higher rate since it first started publishing the half-yearly report in 2010.</p>
<p>"If we believe a request is overly broad, we seek to narrow it. We may refuse to remove content or produce information, or try to narrow the request in some cases if it was not specific enough," a Google spokesman told ET. In an emailed statement, Google said it respects the legal process in India, but is keen to meet both the letter and spirit of the law before complying.</p>
<p>According to Google, in the first half of 2012, various arms of the Indian government made 2,319 requests but Google "partially or fully" complied with only 64% of those, compared with 70% in the same period in 2011 and nearly 80% in 2010. The government requests also sought information about 3,467 user accounts.</p>
<p>The department of information technology deflected requests for comment to the office of Gulshan Rai, director of India's <a href="http://economictimes.indiatimes.com/topic/Cyber%20Emergency%20Response%20Team">Cyber Emergency Response Team</a>.</p>
<p><b>India Big Market for Google</b></p>
<p>Rai said Google must "transparently" share the data pertaining to requests received by them. "It's Google data, which cannot be accessed by anybody else," he said. "We have been speaking to Google for over a year now to streamline this process and bring in more transparency, but they never came around."</p>
<p>What this could mean is that the government does not have a central repository of all requests for personal information by Indian authorities. So, by depending solely on Google, the government may be leaving itself in a position where it cannot challenge the authenticity of information in the Internet company's report. India's a significant market for Google, which has over 100 million users here with an over 95% market share of the Internet search market, according to research firm StatCounter. Google employs nearly 1,535 engineers in India. In August, the department of electronics & information technology sought 412 web pages hosted on Google to be blocked in connection with the controversial movie "Innocence of Muslims" as well as the mass exodus to the North-East states following riots in Assam.</p>
<p>"Google invariably tends to be more subjective on the adequacy of the request. Earlier they were more inclined to accept government requests. Now with the increase in the number of requests, especially since the 26/11 attacks, there is an exercise to examine the adequacy," said Pawan Duggal, a Supreme Court lawyer specialising in <a href="http://economictimes.indiatimes.com/topic/cyber%20law">cyber law</a>.</p>
</div>
<p>
For more details visit <a href='https://cis-india.org/news/articles-economic-times-nov-17-2012-indu-nandakumar-googles-transparency-report-sketchy-inconclusive'>https://cis-india.org/news/articles-economic-times-nov-17-2012-indu-nandakumar-googles-transparency-report-sketchy-inconclusive</a>
</p>
No publisherpraskrishnaInternet GovernanceIntermediary Liability2012-11-22T07:39:05ZNews ItemGoogle Policy Fellowship Programme: Call for Applications
https://cis-india.org/internet-governance/google-policy-fellowship
<b>The Centre for Internet & Society (CIS) is inviting applications for the Google Policy Fellowship programme. Google is providing a USD 7,500 stipend to the India Fellow, who will be selected by August 15, 2012.</b>
<p>The <a class="external-link" href="http://www.google.com/policyfellowship/">Google Policy Fellowship</a> offers successful candidates an opportunity to develop research and debate on the fellowship focus areas, which include Access to Knowledge, Openness in India, Freedom of Expression, Privacy, and Telecom, for a period of about ten weeks starting from August 2012 upto October 2012. CIS will select the India Fellow. Send in your applications for the position by June 27, 2012.</p>
<p>To apply, please send to<a class="external-link" href="mailto:google.fellowship@cis-india.org"> google.fellowship@cis-india.org</a> the following materials:</p>
<ol><li><strong>Statement of Purpose</strong>: A brief write-up outlining about your interest and qualifications for the programme including the relevant academic, professional and extracurricular experiences. As part of the write-up, also explain on what you hope to gain from participation in the programme and what research work concerning free expression online you would like to further through this programme. (About 1200 words max).</li><li><strong>Resume</strong></li><li><strong>Three references</strong></li></ol>
<h2>Fellowship Focus Areas</h2>
<ul><li><strong>Access to Knowledge</strong>: Studies looking at access to knowledge issues in India in light of copyright law, consumers law, parallel imports and the interplay between pervasive technologies and intellectual property rights, targeted at policymakers, Members of Parliament, publishers, photographers, filmmakers, etc.</li><li><strong>Openness in India</strong>: Studies with policy recommendations on open access to scholarly literature, free access to law, open content, open standards, free and open source software, aimed at policymakers, policy researchers, academics and the general public. </li><li><strong>Freedom of Expression</strong>: Studies on policy, regulatory and legislative issues concerning censorship and freedom of speech and expression online, aimed at bloggers, journalists, authors and the general public.</li><li><strong>Privacy</strong>: Studies on privacy issues like data protection and the right to information, limits to privacy in light of the provisions of the constitution, media norms and privacy, banking and financial privacy, workplace privacy, privacy and wire-tapping, e-governance and privacy, medical privacy, consumer privacy, etc., aimed at policymakers and the public.</li><li><strong>Telecom</strong>: Building awareness and capacity on telecommunication policy in India for researchers and academicians, policymakers and regulators, consumer and civil society organisations, education and library institutions and lay persons through the creation of a dedicated web based resource focusing on knowledge dissemination.<br /></li></ul>
<h2>Frequently Asked Questions</h2>
<ul><li><strong>What is the Google Policy Fellowship program?</strong><br />The Google Policy Fellowship program offers students interested in Internet and technology related policy issues with an opportunity to spend their summer working on these issues at the Centre for Internet and Society at Bangalore. Students will work for a period of ten weeks starting from July 2012. The research agenda for the program is based on legal and policy frameworks in the region connected to the ground-level perceptions of the fellowship focus areas mentioned above.<br /></li></ul>
<ul><li><strong>I am an International student can I apply and participate in the program? Are there any age restrictions on participating?</strong><br />Yes. You must be 18 years of age or older by January 1, 2012 to be eligible to participate in Google Policy Fellowship program in 2012.<br /></li></ul>
<ul><li><strong>Are there citizenship requirements for the Fellowship?</strong><br />For the time being, we are only accepting students eligible to work in India (e.g. Indian citizens, permanent residents of India, and individuals presently holding an Indian student visa. Google cannot provide guidance or assistance on obtaining the necessary documentation to meet the criteria.<br /></li></ul>
<ul><li><strong>Who is eligible to participate as a student in Google Policy Fellowship program?</strong><br />In order to participate in the program, you must be a student. Google defines a student as an individual enrolled in or accepted into an accredited institution including (but not necessarily limited to) colleges, universities, masters programs, PhD programs and undergraduate programs. Eligibility is based on enrollment in an accredited university by January 1, 2012.<br /></li></ul>
<ul><li><strong>I am an International student can I apply and participate in the program?</strong><br />In order to participate in the program, you must be a student (see Google's definition of a student above). You must also be eligible to work in India (see section on citizen requirements for fellowship above). Google cannot provide guidance or assistance on obtaining the necessary documentation to meet this criterion.</li><li><strong>I have been accepted into an accredited post-secondary school program, but have not yet begun attending. Can I still take part in the program?</strong><br />As long as you are enrolled in a college or university program as of January 1, 2012, you are eligible to participate in the program.</li><li><strong>I graduate in the middle of the program. Can I still participate?</strong><br />As long as you are enrolled in a college or university program as of January 1, 2012, you are eligible to participate in the program.</li></ul>
<h2>Payments, Forms, and Other Administrative Stuff</h2>
<h3>How do payments work?*</h3>
<p>Google will provide a stipend of USD 7,500 equivalent to each Fellow for the summer.</p>
<ul><li>Accepted students in good standing with their host organization will receive a USD 2,500 stipend payable shortly after they begin the Fellowship in August 2012.</li><li>Students who receive passing mid-term evaluations by their host organization will receive a USD 1,500 stipend shortly after the mid-term evaluation in September 2012.</li><li>Students who receive passing final evaluations by their host organization and who have submitted their final program evaluations will receive a USD 3,500 stipend shortly after final evaluations in October 2012.</li></ul>
<p>Please note: <em>Payments will be made by electronic bank transfer, and are contingent upon satisfactory evaluations by the host organization, completion of all required enrollment and other forms. Fellows are responsible for payment of any taxes associated with their receipt of the Fellowship stipend</em>.</p>
<p><strong>*</strong>While the three step payment structure given here corresponds to the one in the United States, disbursement of the amount may be altered as felt necessary.</p>
<h3>What documentation is required from students?</h3>
<p>Students should be prepared, upon request, to provide Google or the host organization with transcripts from their accredited institution as proof of enrollment or admission status. Transcripts do not need to be official (photo copy of original will be sufficient).</p>
<h3>I would like to use the work I did for my Google Policy Fellowship to obtain course credit from my university. Is this acceptable?</h3>
<p>Yes. If you need documentation from Google to provide to your school for course credit, you can contact Google. We will not provide documentation until we have received a final evaluation from your mentoring organization.</p>
<h2>Host Organizations<br /></h2>
<h3>What is Google's relationship with the Centre for Internet and Society?</h3>
<p>Google provides the funding and administrative support for individual fellows directly. Google and the Centre for Internet and Society are not partners or affiliates. The Centre for Internet and Society does not represent the views or opinions of Google and cannot bind Google legally.</p>
<h2>Important Dates<br /></h2>
<h3><strong>What is the program timeline?</strong></h3>
<table class="plain">
<tbody>
<tr>
<td>June 27, 2012</td>
<td>Student Application Deadline. Applications must be received by midnight.</td>
</tr>
<tr>
<td>July 18, 2012</td>
<td>Student applicants are notified of the status of their applications.</td>
</tr>
<tr>
<td>August 2012</td>
<td>Students begin their fellowship with the host organization (start date to be determined by students and the host organization); Google issues initial student stipends.</td>
</tr>
<tr>
<td>September 2012</td>
<td>Mid-term evaluations; Google issues mid-term stipends.</td>
</tr>
<tr>
<td>October 2012</td>
<td>Final evaluations; Google issues final stipends.</td>
</tr>
</tbody>
</table>
<p> </p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/google-policy-fellowship'>https://cis-india.org/internet-governance/google-policy-fellowship</a>
</p>
No publisherpraskrishnaAccess to KnowledgeFreedom of Speech and ExpressionPublic AccountabilityInternet GovernanceResearchTelecomIntermediary LiabilityCensorshipOpenness2012-05-24T15:38:28ZBlog EntryGNI and IAMAI Launch Interactive Slideshow Exploring Impact of India's Internet Laws
https://cis-india.org/internet-governance/blog/gni-and-iamai-launch-interactive-slideshow-exploring-impact-of-indias-internet-laws
<b>The Global Network Initiative and the Internet and Mobile Association of India have come together to explain how India’s Internet and technology laws impact economic innovation and freedom of expression. </b>
<p>The <a class="external-link" href="http://www.globalnetworkinitiative.org/">Global Network Initiative (GNI)</a>, and the <a class="external-link" href="http://www.iamai.in/">Internet and Mobile Association of India (IAMAI)</a> have launched an interactive slide show exploring the impact of existing Internet laws on users and businesses in India. The slide show created by Newsbound, and to which Centre for Internet and Society (CIS) has contributed its comments—explain the existing legislative mechanisms prevalent in India, map the challenges of the regulatory environment and highlight areas where such mechanisms can be strengthened.</p>
<p>Foregrounding the difficulties of content regulation, the slides are aimed at informing users and the public of the constraints of current legal mechanisms in place, including safe harbour and take down and notice provisions. Highlighting Section 79(3) and the Intermediary Liability Rules issued in 2011, the slide show identifies some of the challenges faced by Internet platforms, such as the broad interpretation of the legislation by the executive branch.</p>
<p>Challenges governing Internet platforms highlighted in the slide show include uniform Terms of Service that do not consider the type of service being provided by the platform, uncertain requirements for taking down content and compliance obligations related to information disclosure. Further the issues of over compliance and misuse of the legal notice and take down system introduced under Section 79 of the Information Technology (Intermediaries Guidelines) Rules 2011.</p>
<p>The Rules were created with the purpose of providing guidelines for the ‘post-publication redressal mechanism expression as envisioned in the Constitution of India'. However, since their introduction, the Rules have been criticised extensively, by both the national and the international media on account of not conforming to principles of natural justice and freedom of expression. Critics have pointed out that by not recognising the different functions performed by the different intermediaries and by not providing safeguards against misuse of such mechanism for suppressing legitimate expression, the Rules have a chilling effect on freedom of expression.</p>
<p>Under the current Rules, the third party provider/creator of information is not given a chance to be heard by the intermediary, nor is there a requirement to give a reasoned decision by the intermediary to the creator whose content has been taken down. The take down procedure also, does not have any provisions for restoring the removed information, such as providing a counter notice filing mechanism or appealing to a higher authority. Further, the content criteria for removal of content includes terms like 'disparaging' and 'objectionable', which are not defined and prima facie seem to be beyond the reasonable restrictions envisioned by the Constitution of India. With uncertainty in content criteria and no safeguards to prevent abuse complainant may send frivolous complaints and suppress legitimate expressions without any fear of repercussions.</p>
<p>Most importantly, the redressal mechanism under the Rules shifts the burden of censorship, previously, the exclusive domain of the judiciary or the executive, and makes it the responsibility of private intermediaries. Often, private intermediaries, do not have sufficient legal resources to subjectively determine the legitimacy of a legal claim, resulting in over compliance to limit liability. The slide show cites the <a href="https://cis-india.org/internet-governance/chilling-effects-on-free-expression-on-internet">2011 CIS research carried out by Rishabh Dara</a> to determine whether the Rules lead to a chilling effect on online free expression, towards highlighting the issue of over compliance and self censorship.</p>
<p>The initiative is timely, given the change of guard in India, and stresses, not only the economic impact of fixing the Internet legal framework, but also the larger impact on users rights and freedom of expression. The initiative calls for a legal environment for the Internet that enables innovation, protects the rights of users, and provides clear rules and regulations for businesses large and small.</p>
<p>See the slideshow here: <a href="http://globalnetworkinitiative.org/india">How India’s Internet Laws Can Help Propel the Country Forward</a></p>
<p><strong>Other GNI reports and resources: </strong></p>
<p><a href="http://www.globalnetworkinitiative.org/sites/default/files/Closing%20the%20Gap%20-%20Copenhagen%20Economics_March%202014_0.pdf">Closing the Gap: Indian Online Intermediaries and a Liability System Not Yet Fit for Purpose</a></p>
<p><a href="http://www.globalnetworkinitiative.org/sites/default/files/Closing%20the%20Gap%20-%20Copenhagen%20Economics_March%202014_0.pdf">Strengthening Protections for Online Platforms Could Add Billions to India’s GDP</a></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/gni-and-iamai-launch-interactive-slideshow-exploring-impact-of-indias-internet-laws'>https://cis-india.org/internet-governance/blog/gni-and-iamai-launch-interactive-slideshow-exploring-impact-of-indias-internet-laws</a>
</p>
No publisherjyotiCensorshipFreedom of Speech and ExpressionInternet GovernanceIntermediary LiabilityChilling EffectInformation Technology2014-07-17T12:01:01ZBlog EntryFinding Needles in Haystacks - Discussing the Role of Automated Filtering in the New Indian Intermediary Liability Rules
https://cis-india.org/internet-governance/blog/finding-needles-in-haystacks-discussing-the-role-of-automated-filtering-in-the-new-indian-intermediary-liability-rules
<b>On the 25th of February this year The Government of India notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The new Rules broaden the scope of which entities can be considered as intermediaries to now include curated-content platforms (Netflix) as well as digital news publications. This blogpost analyzes the rule on automated filtering, in the context of the growing use of automated content moderation.
</b>
<p class="p1"><span class="s1">This article first <a class="external-link" href="https://www.law.kuleuven.be/citip/blog/finding-needles-in-haystacks/">appeared</a> on the KU Leuven's Centre for IT and IP (CITIP) blog. Cross-posted with permission.</span></p>
<p class="p1"><span class="s1">----</span></p>
<p class="p1"><span class="s1">Mathew Sag in his 2018 <a href="https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=4761&context=ndlr"><span class="s2">paper</span></a> on internet safe harbours discussed how the internet resulted in a shift from the traditional gatekeepers of knowledge (publishing houses) that used to decide what knowledge could be showcased, to a system where everybody who has access to the internet can showcase their work. A “<em>content creator</em>” today ranges from legacy media companies to any person who has access to a smartphone and an internet connection. In a similar trajectory, with the increase in websites and mobile apps and the functions that they serve, the scope of what is an internet intermediary has widened all over the world. </span></p>
<p class="p2"><span class="s1"></span></p>
<p class="p1"><span class="s1"><strong>Who is an Intermediary?</strong></span></p>
<p class="p2"><span class="s1"></span></p>
<p class="p1"><span class="s1">In India the definition of “<em>intermediary</em>” is found under Section 2(w) of the <a href="https://www.meity.gov.in/writereaddata/files/itbill2000.pdf"><span class="s2">Information Technology (IT) Act 2000</span></a>, which defines an Intermediary as <em>“with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecoms service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-marketplaces and cyber cafes”.</em> The all-encompassing nature of the definition has allowed the dynamic nature of intermediaries to be included under the definition of the Act, and the Guidelines that have been published periodically (<a href="https://www.meity.gov.in/writereaddata/files/GSR314E_10511%25281%2529_0.pdf"><span class="s2">2011</span></a>, <a href="https://www.meity.gov.in/writereaddata/files/Draft_Intermediary_Amendment_24122018.pdf"><span class="s2">2018</span></a> and <a href="https://www.meity.gov.in/writereaddata/files/Intermediary_Guidelines_and_Digital_Media_Ethics_Code_Rules-2021.pdf"><span class="s2">2021</span></a>). With more websites and social media companies, and even more content creators online today, there is a need to look at ways in which intermediaries can remove illegal content or content that goes against their community guidelines.</span></p>
<p class="p2"><span class="s1"></span></p>
<p class="p1"><span class="s1">Along with the definition of an intermediary, the IT Act, under Section 79, provides exemptions which grant safe harbours to internet intermediaries, from liability from third-party content, and further empowers the central government to make Rules that act as guidelines for the intermediaries to follow. The Intermediary Liability Rules hence seek to regulate content and lay down safe harbour provisions for intermediaries and internet service providers. To keep up with the changing nature of the internet and internet intermediaries, India relies on the Intermediary Liability Rules to regulate and provide a conducive environment for intermediaries. In view of this provision India has as of now published three versions of the Intermediary Liability (IL) Rules. The first Rules came out in<a href="https://www.meity.gov.in/writereaddata/files/GSR314E_10511%25281%2529_0.pdf"><span class="s2"> 2011</span></a>, followed by the introduction of draft amendments to the law in<a href="https://www.meity.gov.in/writereaddata/files/Draft_Intermediary_Amendment_24122018.pdf"><span class="s2"> 2018</span></a> and finally the latest <a href="https://www.meity.gov.in/writereaddata/files/Intermediary_Guidelines_and_Digital_Media_Ethics_Code_Rules-2021.pdf"><span class="s2">2021 </span></a>version, which would supersede the earlier Rules of 2011. </span></p>
<p class="p2"><span class="s1"></span></p>
<p class="p1"><span class="s1"><strong>The Growing Use of Automated Content Moderation </strong></span></p>
<p class="p2"><span class="s1"></span></p>
<p class="p1"><span class="s1">With each version of the Rules there seemed to be changes that ensured that they were abreast with the changing face of the internet and the changing nature of both content and content creator. Hence the 2018 version of the Rules showcase a push towards automated content filtering. The text of Rule 3(9) reads as follows: “<em>The Intermediary shall deploy technology based automated tools or appropriate mechanisms, with appropriate controls, for proactively identifying and removing or disabling public access to unlawful information or content</em>”.</span></p>
<p class="p2"><span class="s1"></span></p>
<p class="p1"><span class="s1">Under Rule 3(9), intermediaries were required to deploy automated tools or appropriate mechanisms to proactively identify, remove or disable public access to unlawful content. However, neither the 2018 IL Rules, nor the parent Act (the IT Act) specified which content can be deemed unlawful. The 2018 Rules also failed to establish the specific responsibilities of the intermediaries, instead relying on vague terms like “<em>appropriate mechanisms</em>” and with “<em>appropriate controls</em>”. Hence it can be seen that though the Rules mandated the use of automated tools, neither them nor the IT Act provided clear guidelines on what could be removed. </span></p>
<p class="p2"><span class="s1"></span></p>
<p class="p1"><span class="s1">The lack of clear guidelines and list of content that can be removed had left the decision up to the intermediaries to decide which content, if not actively removed, could cost them their immunity. It has been previously documented that the lack of clear guidelines in the 2011 version of the <a href="https://cis-india.org/internet-governance/chilling-effects-on-free-expression-on-internet"><span class="s2">Rules</span></a>, led to intermediaries over complying with take down notices, often taking down content that did not warrant it. The existing tendency to over-comply, combined with automated filtering could have resulted in a number of <a href="https://cis-india.org/internet-governance/how-india-censors-the-web-websci#:~:text=One%2520of%2520the%2520primary%2520ways,certain%2520websites%2520for%2520its%2520users."><span class="s2">unwarranted take downs</span></a>.</span></p>
<p class="p2"><span class="s1"></span></p>
<p class="p1"><span class="s1">While the 2018 Rules mandated the deployment of automated tools, the year 2020, (possibly due to the pandemic induced work from home safety protocols and global lockdowns) saw major social media companies announcing the move towards a fully automated system of content<a href="https://www.medianama.com/2020/03/223-facebook-content-moderation-coronavirus-medianamas-take/"><span class="s2"> moderation</span></a>. Though the use of automated content removal seems like the right step considering the <a href="https://www.businessinsider.in/tech/news/facebook-content-moderator-who-quit-reportedly-wrote-a-blistering-letter-citing-stress-induced-insomnia-among-other-trauma/articleshow/82075608.cms"><span class="s2">trauma </span></a>that human moderators had to go through, the algorithms that are being used now to remove content are relying on the parameters, practices and data from earlier removals made by the human moderators. More recently, in India with the emergence of the second wave of the COVID19 wave, the Ministry of Electronics and Information Technology has <a href="https://www.thehindu.com/news/national/govt-asks-social-media-platforms-to-remove-100-covid-19-related-posts/article34406733.ece"><span class="s2">asked </span></a>social media platforms to remove “<em>unrelated, old and out of the context images or visuals, communally sensitive posts and misinformation about COVID19 protocols</em>”.</span></p>
<p class="p2"><span class="s1"></span></p>
<p class="p1"><span class="s1"><strong>The New IL Rules - A ray of hope?</strong></span></p>
<p class="p3"><span class="s3">The 2021 version of the IL Rules provides a more nuanced approach to the use of automated content filtering compared to the earlier version. Rule 4(4) now requires only “</span><span class="s1">significant social media intermediaries” to use automated tools to identity and take down content pertaining to “child sexual abuse material”, or “depicting rape”, or any information which is identical to a content that has already been removed through a take-down notice. The Rules define a social media intermediary as “<em>intermediary which primarily or solely enables interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services”</em> .The Rules also go a step further to create another type of intermediary, the significant social media intermediary. A significant social media intermediary is defined as one “<em>having a number of registered users in India above such threshold as notified by the Central Government</em>''. Hence what can be considered as a social media intermediary that qualifies as a significant one could change at any time.</span></p>
<p class="p2"><span class="s1"></span></p>
<p class="p1"><span class="s4">Along with adding a new threshold (qualifying as a significant social media intermediary) the Rules, in contrast to the 2018 version, also emphasises the need of such removal to be </span><span class="s1">proportionate to the interests of freedom of speech and expression and privacy of users. The Rules also call for “<em>appropriate human oversight</em>” as well as a periodic review of the tools used for content moderation. The Rules by using the term “<em>shall endeavor</em>” aids in reducing the pressure on the intermediary to set up these mechanisms. This also means that the requirement is now on a best effort basis, as opposed to the word “<em>shall</em>” in the 2018 version of the Rules, which made it mandatory.</span></p>
<p class="p2"><span class="s1"></span></p>
<p class="p1"><span class="s1">Although the Rules now narrow down the instances where automated content removal can take place, the concerns around over compliance and censorship still loom. One of the reasons for concern is that the Rules still fail to require the intermediaries to set up a mechanism for redress or for appeals to such removal. Additionally, the provision that states that automated systems could remove content that have been previously taken down, creates a cause for worry as the propensity of the intermediaries to over comply and take down content has already been documented. This then brings us back to the previous issue where the social media company’s automated systems were removing legitimate news sources. Though the 2021 Rules tries to clarify certain provisions related to automated filtering, like the addition of the safeguards, the Rules also suffer from vague provisions that could cause issues related to compliance. The use of terms such as “<em>proportionate</em>”, “<em>having regard to free speech</em>” etc. fail to lay down definitive directions for the intermediaries (in this case SSMI) to comply with. Additionally, as earlier stated, being qualified as a SSMI can change at any time, either based on the change in the number of users, or the change in the threshold of users, mandated by the government. The absence of human intervention during removal, vague guidelines and fear of losing out on safe harbour provisions, add to the already increasing trend of censorship in social media. With the use of automated means and the fast, and almost immediate removal of content would mean that certain content creators might not even be able to post their content <a href="https://www.eff.org/wp/unfiltered-how-youtubes-content-id-discourages-fair-use-and-dictates-what-we-see-online"><span class="s2">online.</span><span class="s5"> With the use of proactive filtering through automated means the content can be removed almost immediately.</span></a></span><span class="s6"> </span><span class="s1">With India’s current trend of new internet users, some of these creators would also be <a href="https://timesofindia.indiatimes.com/business/india-business/for-the-first-time-india-has-more-rural-net-users-than-urban/articleshow/75566025.cms"><span class="s2">first time users</span></a> of the internet. </span></p>
<p class="p2"><span class="s1"></span></p>
<p class="p3"><span class="s1"><strong>Conclusion</strong></span></p>
<p class="p2"><span class="s1"></span></p>
<p class="p3"><span class="s1">The need for automated removal of content is understandable, based not only on the sheer volume of content but also the nightmare stories of the toll it takes on human content moderators, who otherwise have to go through hours of disturbing content. Though the Indian Intermediary Liability Guidelines have improved from the earlier versions in terms of moving away from mandating proactive filtering, there still needs to be consideration of how these technologies are used, and the laws should understand the shift in the definition of who a content creator is. There needs to be ways of recourse to unfair removal of content and a means to get an explanation of why the content was removed, via notices to the user. In the case of India, the notices should be in Indian languages as well, so that the people are able to understand them. </span></p>
<p class="p2"><span class="s1"></span></p>
<p class="p3"><span class="s1">In the absence of further clear guidelines, the perils of over-censorship by the intermediaries in order to stay out of trouble could lead to further stifling of not just freedom of speech but also access to information. In addition, the fear of content being taken down or even potential prosecution could mean that people resort to self-censorship, preventing them from exercising their fundamental rights to freedom of speech and expression, as guaranteed by the Indian Constitution. We hope that the next version of the Rules take a more nuanced approach to automated content removal and ensure adequate and specific safeguards to ensure a conducive environment for both intermediaries and content creators. </span></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/finding-needles-in-haystacks-discussing-the-role-of-automated-filtering-in-the-new-indian-intermediary-liability-rules'>https://cis-india.org/internet-governance/blog/finding-needles-in-haystacks-discussing-the-role-of-automated-filtering-in-the-new-indian-intermediary-liability-rules</a>
</p>
No publisherShweta Mohandas and Torsha SarkarInternet GovernanceIntermediary LiabilityArtificial Intelligence2021-08-03T07:28:53ZBlog EntryEuropean Court of Justice rules Internet Search Engine Operator responsible for Processing Personal Data Published by Third Parties
https://cis-india.org/internet-governance/blog/ecj-rules-internet-search-engine-operator-responsible-for-processing-personal-data-published-by-third-parties
<b>The Court of Justice of the European Union has ruled that an "an internet search engine operator is responsible for the processing that it carries out of personal data which appear on web pages published by third parties.” The decision adds to the conundrum of maintaining a balance between freedom of expression, protecting personal data and intermediary liability.</b>
<p style="text-align: justify; ">The ruling is expected to have considerable impact on reputation and privacy related takedown requests as under the decision, data subjects may approach the operator directly seeking removal of links to web pages containing personal data. Currently, users prove whether data needs to be kept online—the new rules reverse the burden of proof, placing an obligation on companies, rather than users for content regulation.</p>
<h3>A win for privacy?</h3>
<p style="text-align: justify; ">The ECJ ruling addresses Mario Costeja González complaint filed in 2010, against Google Spain and Google Inc., requesting that personal data relating to him appearing in search results be protected and that data which was no longer relevant be removed. Referring to <a href="http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31995L0046:en:HTML">the Directive 95/46/EC</a> of the European Parliament, the court said, that Google and other search engine operators should be considered 'controllers' of personal data. Following the decision, Google will be required to consider takedown requests of personal data, regardless of the fact that processing of such data is carried out without distinction in respect of information other than the personal data.</p>
<p style="text-align: justify; ">The decision—which cannot be appealed—raises important of questions of how this ruling will be applied in practice and its impact on the information available online in countries outside the European Union. The decree forces search engine operators such as Google, Yahoo and Microsoft's Bing to make judgement calls on the fairness of the information published through their services that reach over 500 million people across the twenty eight nation bloc of EU.</p>
<p style="text-align: justify; ">ECJ rules that search engines 'as a general rule,' should place the right to privacy above the right to information by the public. Under the verdict, links to irrelevant and out of date data need to be erased upon request, placing search engines in the role of controllers of information—beyond the role of being an arbitrator that linked to data that already existed in the public domain. The verdict is directed at highlighting the power of search engines to retrieve controversial information while limiting their capacity to do so in the future.</p>
<p style="text-align: justify; ">The ruling calls for maintaining a balance in addressing the legitimate interest of internet users in accessing personal information and upholding the data subject’s fundamental rights, but does not directly address either issues. The court also recognised, that the data subject's rights override the interest of internet users, however, with exceptions pertaining to nature of information, its sensitivity for the data subject's private life and the role of the data subject in public life. Acknowledging that data belongs to the individual and is not the right of the company, European Commissioner Viviane Reding, <a href="https://www.facebook.com/permalink.php?story_fbid=304206613078842&id=291423897690447&_ga=1.233872279.883261846.1397148393">hailed the verdict</a>, "a clear victory for the protection of personal data of Europeans".</p>
<p style="text-align: justify; ">The Court stated that if data is deemed irrelevant at the time of the case, even if it has been lawfully processed initially, it must be removed and that the data subject has the right to approach the operator directly for the removal of such content. The liability issue is further complicated by the fact, that search engines such as Google do not publish the content rather they point to information that already exists in the public domain—raising questions of the degree of liability on account of third party content displayed on their services.</p>
<p style="text-align: justify; ">The ECJ ruling is based on the case originally filed against Google, Spain and it is important to note that, González argued that searching for his name linked to two pages originally published in 1998, on the website of the Spanish newspaper La Vanguardia. The Spanish Data Protection Agency did not require La Vanguardia to take down the pages, however, it did order Google to remove links to them. Google appealed this decision, following which the National High Court of Spain sought advice from the European court. The definition of Google as the controller of information, raises important questions related to the distinction between liability of publishers and the liability of processors of information such as search engines.</p>
<h3>The 'right to be forgotten'</h3>
<p style="text-align: justify; ">The decision also brings to the fore, the ongoing debate and <a href="http://www.theguardian.com/technology/2013/apr/04/britain-opt-out-right-to-be-forgotten-law">fragmented opinions within the EU</a>, on the right of the individual to be forgotten. The <a href="http://www.bbc.com/news/technology-16677370">'right to be forgotten</a>' has evolved from the European Commission's wide-ranging plans of an overhaul of the commission's 1995 Data Protection Directive. The plans for the law included allowing people to request removal of personal data with an obligation of compliance for service providers, unless there were 'legitimate' reasons to do otherwise. Technology firms rallying around issues of freedom of expression and censorship, have expressed concerns about the reach of the bill. Privacy-rights activist and European officials have upheld the notion of the right to be forgotten, highlighting the right of the individual to protect their honour and reputation.</p>
<p style="text-align: justify; ">These issues have been controversial amidst EU member states with the UK's Ministry of Justice claiming the law 'raises unrealistic and unfair expectations' and has <a href="http://www.theguardian.com/technology/2013/apr/04/britain-opt-out-right-to-be-forgotten-law">sought to opt-out</a> of the privacy laws. The Advocate General of the European Court <a href="http://curia.europa.eu/juris/document/document.jsf?text=&docid=138782&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=362663#Footref91">Niilo Jääskinen's opinion</a>, that the individual's right to seek removal of content should not be upheld if the information was published legally, contradicts the verdict of the ECJ ruling. The European Court of Justice's move is surprising for many and as Richard Cumbley, information-management and data protection partner at the law firm Linklaters <a href="http://turnstylenews.com/2014/05/13/europe-union-high-court-establishes-the-right-to-be-forgotten/">puts it</a>, “Given that the E.U. has spent two years debating this right as part of the reform of E.U. privacy legislation, it is ironic that the E.C.J. has found it already exists in such a striking manner."</p>
<p style="text-align: justify; ">The economic implications of enforcing a liability regime where search engine operators censor legal content in their results aside, the decision might also have a chilling effect on freedom of expression and access to information. Google <a href="http://www.theguardian.com/technology/2014/may/13/right-to-be-forgotten-eu-court-google-search-results">called the decision</a> “a disappointing ruling for search engines and online publishers in general,” and that the company would take time to analyze the implications. While the implications of the decision are yet to be determined, it is important to bear in mind that while decisions like these are public, the refinements that Google and other search engines will have to make to its technology and the judgement calls on the fairness of the information available online are not public.</p>
<p style="text-align: justify; ">The ECJ press release is available <a href="http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-05/cp140070en.pdf">here</a> and the actual judgement is available <a href="http://curia.europa.eu/juris/documents.jsf?pro=&lgrec=en&nat=or&oqp=&lg=&dates=&language=en&jur=C%2CT%2CF&cit=none%252CC%252CCJ%252CR%252C2008E%252C%252C%252C%252C%252C%252C%252C%252C%252C%252Ctrue%252Cfalse%252Cfalse&num=C-131%252F12&td=%3BALL&pcs=Oor&avg">here</a>.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/ecj-rules-internet-search-engine-operator-responsible-for-processing-personal-data-published-by-third-parties'>https://cis-india.org/internet-governance/blog/ecj-rules-internet-search-engine-operator-responsible-for-processing-personal-data-published-by-third-parties</a>
</p>
No publisherjyotiFreedom of Speech and ExpressionSocial MediaInternet GovernanceIntermediary Liability2014-05-14T14:18:46ZBlog EntryDonald Trump is attacking the social media giants; here’s what India should do differently
https://cis-india.org/internet-governance/blog/donald-trump-is-attacking-the-social-media-giants-here2019s-what-india-should-do-differently
<b>For a robust and rights-respecting public sphere, India needs to ensure that large social media platforms receive adequate protections, and are made more responsible to its users.</b>
<p>This piece was first published at <a class="external-link" href="https://scroll.in/article/965151/donald-trump-is-attacking-the-social-media-giants-heres-what-india-should-do-differently">Scroll</a>. The authors would like to thank Torsha Sarkar for reviewing and editing the piece, and to Divij Joshi for his feedback.</p>
<hr />
<div id="article-contents" class="article-body">
<p>In retaliation to Twitter <a class="link-external" href="https://www.nytimes.com/2020/05/26/technology/twitter-trump-mail-in-ballots.html" rel="nofollow noopener" target="_blank">labelling</a> one of US President Donald Trump’s tweets as being misleading, the White House signed an <a class="link-external" href="https://www.whitehouse.gov/presidential-actions/executive-order-preventing-online-censorship/" rel="nofollow noopener" target="_blank">executive order</a>
on May 28 that seeks to dilute protections that social media companies
in the US have with respect to third-party content on their platforms.</p>
<p>The
order argues that social media companies that engage in censorship stop
functioning as ‘passive bulletin boards’: they must consequently be
treated as ‘content creators’, and be held liable for content on their
platforms as such. The shockwaves of the decision soon reached India,
with news coverage of the event <a class="link-external" href="https://www.business-standard.com/article/companies/trump-twitter-spat-debate-rages-on-role-of-social-media-companies-120053100055_1.html" rel="nofollow noopener" target="_blank">starting</a> to <a class="link-external" href="https://economictimes.indiatimes.com/tech/internet/feud-between-donald-trump-and-jack-dorsey-can-have-long-lasting-effects-on-how-we-consume-media-in-india/articleshow/76111556.cms" rel="nofollow noopener" target="_blank">debate</a> the <a class="link-external" href="https://economictimes.indiatimes.com/tech/internet/trumps-move-against-social-media-cos-unlikely-to-change-indias-stand/articleshow/76094586.cms?from=mdr" rel="nofollow noopener" target="_blank">consequences</a> of Trump’s order on how India regulates internet services and social media companies.</p>
<p>The
debate on the responsibilities of online platforms is not new to India,
and recently took main stage in December 2018 when the Ministry of
Electronics and Information Technology, Meity, published a draft set of
guidelines that most online services – ‘intermediaries’ – must follow.
The draft rules, which haven’t been notified yet, propose to
significantly expand the obligations on intermediaries.</p>
<p>Trump’s
executive order, however, comes in the context of content moderation
practices by social media platforms, i.e. when platforms censor speech
of their volition, and not because of legal requirements. The legal
position of content moderation is relatively under-discussed, at least
in legal terms, when it comes to India.</p>
<p>In contrast to
commentators who have implicitly assumed that Indian law permits content
moderation by social media companies, we believe Indian law fails to
adequately account for content moderation and curation practices
performed by social media companies. There may be adverse consequences
for the exercise of freedom of expression in India if this lacuna is not
filled soon.</p>
<h3 class="cms-block cms-block-heading">India vs US<br /></h3>
<p>A
useful starting point for the analysis is to compare how the US and
India regulate liability for online services. In the US, Section 230 of
the Communications Decency Act provides online services with broad
immunity from liability for third party content that they host or
transmit.</p>
<p>There are two critical components to what is generally referred to as Section 230.</p>
<p>First,
providers of an ‘interactive computer service’, like your internet
service provider or a company like Facebook, will not be treated as
publishers or speakers of third-party content. This system has allowed
the internet speech and economy to <a class="link-external" href="https://law.emory.edu/elj/content/volume-63/issue-3/articles/how-law-made-silicon-valley.html" rel="nofollow noopener" target="_blank">flourish</a>
since it allows companies to focus on their service without a constant
paranoia for what users are transmitting through their service.</p>
<p>The
second part of Section 230 states that services are allowed to moderate
and remove, in ‘good faith’, such third-party content that they may
deem offensive or obscene. This allows for online services to instate
their own community guidelines or content policies.</p>
<p>In India,
section 79 of the Information Technology Act is the analogous provision:
it grants intermediaries conditional ‘safe harbour’. This means
intermediaries, again like Facebook or your internet provider, are
exempt from liability for third-party content – like messages or videos
posted by ordinary people – provided their functioning meets certain
requirements, and they comply with the allied rules, known as
Intermediary Guidelines.</p>
<p>The notable and stark difference between
Indian law and Section 230 is that India’s IT Act is largely silent on
content moderation practices. As Rahul Matthan <a class="link-external" href="https://www.livemint.com/opinion/columns/shield-online-platforms-for-content-moderation-to-work-11591116270685.html" rel="nofollow noopener" target="_blank">points out</a>,
there is no explicit allowance in Indian law for platforms to take down
content based on their own policies, even if such actions are done in
good faith.</p>
<h3 class="cms-block cms-block-heading">Safe harbour</h3>
<div> </div>
<p>One
may argue that the absence of an explicit permission does not
necessarily mean that any platform engaging in content moderation
practices will lose its safe harbour. However, the language of Section
79 and the allied rules may even create room for divesting social media
platforms of their safe harbour.</p>
<p>The first such indication is
that the conditions to qualify for safe harbour, intermediaries must not
modify said content, not select the recipients of particular content,
and take information down when it is brought to their notice by
governments or courts.</p>
<p>Most of the conditions are almost a
verbatim copy of a ‘mere conduit’ as defined by the EU Directive on
E-Commerce, 2000. This definition was meant to encapsulate the
functioning of services like infrastructure providers, which transmit
content without exerting any real control. Thus, by adopting this
definition for all intermediaries, Indian law mostly considers internet
services, even social media platforms, to be passive plumbing through
which information flows.</p>
<p>It is easy to see how this narrow conception of online services is severely <a class="link-external" href="https://georgetownlawtechreview.org/wp-content/uploads/2018/07/2.2-Gilespie-pp-198-216.pdf" rel="nofollow noopener" target="_blank">lacking</a>.</p>
<p>Most prominent social media platforms <a class="link-external" href="http://guidelines." rel="nofollow noopener" target="_blank">remove</a> or <a class="link-external" href="https://techcrunch.com/2019/12/16/instagram-fact-checking/" rel="nofollow noopener" target="_blank">hide</a> content, <a class="link-external" href="https://about.fb.com/news/2016/06/building-a-better-news-feed-for-you/" rel="nofollow noopener" target="_blank">algorithmically curate</a> news-feeds to make users keep coming back for more, and increasingly add <a class="link-external" href="https://blog.twitter.com/en_us/topics/product/2020/updating-our-approach-to-misleading-information.html" rel="nofollow noopener" target="_blank">labels</a>
to content. If the law is interpreted strictly, these practices may be
adjudged to run afoul of the aforementioned conditions that
intermediaries need to satisfy in order to qualify for safe harbour.</p>
<h3 class="cms-block cms-block-heading">Platforms or editors?<br /></h3>
<p>For
instance, it can be argued that social media platforms initiate
transmission in some form when they pick and ‘suggest’ relevant
third-party content to users. When it comes to newsfeeds, neither the
content creator nor the consumer have as much control over how their
content is disseminated or curated as much as the platform does. By
curating newsfeeds, social media platforms can be said to essentially
‘selecting the receiver’ of transmissions.</p>
<p>The Intermediary
Guidelines further complicate matters by specifically laying out what is
not to be construed as ‘editing’ under the law. Under rule 3(3), the
act of taking down content pursuant to orders under the Act will not be
considered as ‘editing’ of said content.</p>
<p>Since the term ‘editing’
has been left undefined beyond the negative qualification, several
social media intermediaries may well qualify as editors. They use
algorithms that curate content for their users; like traditional news
editors, these algorithms use certain <a class="link-external" href="https://www.researchgate.net/profile/Michael_Devito/publication/302979999_From_Editors_to_Algorithms_A_values-based_approach_to_understanding_story_selection_in_the_Facebook_news_feed/links/5a19cc3d4585155c26ac56d4/From-Editors-to-Algorithms-A-values-based-approach-to-understanding-story-selection-in-the-Facebook-news-feed.pdf" rel="nofollow noopener" target="_blank">‘values’</a>
to determine what is relevant to their audiences. In other words, one
can argue that it is difficult to draw a bright line between editorial
and algorithmic acts.</p>
<p>To retain their safe harbour, the
counter-argument that social media platforms can rely is the fact that
Rule 3(5) of the Intermediary Guidelines requires intermediaries to
inform users that intermediaries reserve the right to take down user
content that relates to a wide of variety of acts, including content
that threatens national security, or is “[...] grossly harmful,
harassing, blasphemous, [etc.]”.</p>
<p>In practice, however, the
content moderation practices of some social media companies may go
beyond these categories. Additionally, the rule does not address the
legal questions created by these platforms’ curation of news-feeds.</p>
<p>The
purpose of highlighting how Section 79 treats the practices of social
media platforms is not with the intention of arguing that these
platforms should be held liable for user-generated content. Online
spaces created by social media platforms have allowed for individuals to
express themselves and participate in political organisation and <a class="link-external" href="https://www.pewresearch.org/internet/2018/07/11/public-attitudes-toward-political-engagement-on-social-media/" rel="nofollow noopener" target="_blank">debate</a>.</p>
<p>A
level of protection of intermediaries from immunity is therefore
critical for the protection of several human rights, especially the
right to freedom of speech. This piece only serves to highlight that
section 79 is antiquated and unfit to deal with modern online services.
The interpretative dangers that exist in the provision create regulatory
uncertainty for organisations operating in India.</p>
<h3 class="cms-block cms-block-heading">Dangers to speech<br /></h3>
<p>These dangers may not just be theoretical.</p>
<p>Only last year, Twitter CEO Jack Dorsey was <a class="link-external" href="https://www.hindustantimes.com/india-news/twitter-ceo-jack-dorsey-summoned-by-parliamentary-panel-on-feb-25-panel-refuses-to-hear-other-officials/story-8x9OUbNBo36uvp92L5nOKI.html" rel="nofollow noopener" target="_blank">summoned</a>
by the Parliamentary Committee on Information Technology to answer
accusations of the platform having a bias against ‘right-wing’ accounts.
More recently, BJP politician Vinit Goenka <a class="link-external" href="https://www.medianama.com/2020/06/223-vinit-goenka-twitter-khalistan/" rel="nofollow noopener" target="_blank">encouraged people to file cases against Twitter</a> for promoting separatist content.</p>
<p>Recent <a class="link-external" href="https://sflc.in/sites/default/files/reports/Intermediary_Liability_2_0_-_A_Shifting_Paradigm.pdf" rel="nofollow noopener" target="_blank">interventions</a>
from the Supreme Court have imposed proactive filtration and blocking
requirements on intermediaries, but these have been limited to
reasonable restrictions that may be imposed on free speech under Article
19 of India’s Constitution. Content moderation policies of
intermediaries like Twitter and Facebook go well beyond the scope of
Article 19 restrictions, and the apex court has not yet addressed this.</p>
<p>The
Delhi High Court, in Christian Louboutin v. Nakul Bajaj, has already
highlighted criteria for when e-commerce intermediaries can stake claim
to Section 79 safe harbour protections based on the active (or passive)
nature of their services. While the order came in the context of
intellectual property violations, nothing keeps a court from similarly
finding that Facebook and Twitter play an ‘active’ role when it comes to
content moderation and curation.</p>
<p>These companies may one day
find the ‘safe harbour’ rug pulled from under their feet if a court
reads section 79 more strictly. In fact, judicial intervention may not
even be required. The threat of such an interpretation may simply be
exploited by the government, and used as leverage to get social media
platforms to toe the government line.</p>
<h3 class="cms-block cms-block-heading">Protection and responsibility<br /></h3>
<p>Unfortunately,
the amendments to the intermediary guidelines proposed in 2018 do not
address the legal position of content moderation either. More recent
developments <a class="link-external" href="https://www.medianama.com/2020/04/223-meity-information-technology-act-amendments/" rel="nofollow noopener" target="_blank">suggest</a>
that the Meity may be contemplating amending the IT Act. This presents
an opportunity for a more comprehensive reworking of the Indian
intermediary liability regime than what is possible through delegated
legislation like the intermediary rules.</p>
<p>Intermediaries, rather
than being treated uniformly, should be classified based on their
function and the level of control they exercise over the content they
process. For instance, network infrastructure should continue to be
treated as ‘mere conduits’ and enjoy broad immunity from liability for
user-generated content.</p>
<p>More complex services like search engines
and online social media platforms can have differentiated
responsibilities based on the extent they can contextualise and change
content. The law should carve out an explicit permission to platforms to
moderate content in good faith. Such an allowance should be accompanied
by outlining best practices that these platforms can follow to ensure <a class="link-external" href="https://santaclaraprinciples.org/" rel="nofollow noopener" target="_blank">transparency and accountability</a> to their users.</p>
<p>For
a robust and rights-respecting public sphere, India needs to ensure
that large social media platforms receive adequate protections, and are
made more responsible to its users.</p>
<p><em>Anna Liz Thomas is a law
graduate and a policy researcher, currently working with the Centre for
Internet and Society. Gurshabad Grover manages research in the freedom
of expression and internet governance team at CIS</em>.</p>
</div>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/donald-trump-is-attacking-the-social-media-giants-here2019s-what-india-should-do-differently'>https://cis-india.org/internet-governance/blog/donald-trump-is-attacking-the-social-media-giants-here2019s-what-india-should-do-differently</a>
</p>
No publisherAnna Liz Thomas and Gurshabad GroverContent takedownFreedom of Speech and ExpressionIntermediary Liability2020-06-25T09:07:52ZBlog Entry