The Centre for Internet and Society
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Department of Telecommunications Order u/s. 69A IT Act Blocking 32 URLS (2014-12-17, compressed version)
https://cis-india.org/internet-governance/resources/2014-12-17_DoT-32-URL-Block-Order_compressed.pdf
<b>On December 17, 2014, the Dept. of Telecommunications blocked 32 URLs (as it was ordered to do so by the by Dept. of Electronics & IT — specifically the Designated Officer under section 69A of the Information Technology Act, 2000 and under the Information Technology (Procedures and Safeguards for Blocking of Access of Information by Public) Rules, 2009), those being:
01) https://justpaste.it/
02) http://hastebin.com
03) http://codepad.org
04) http://pastie.org
05) https://pasteeorg
06) http://paste2.org
07) http://slexy.org
08) http://paste4btc.com/
09) http://0bin.net
10) http://www.heypasteit.com
11) http://sourceforge.net/projects/phorkie
12) http://atnsoft.com/textpaster
13) https://archive.org
14) http://www.hpage.com
15) http://www.ipage.com/
16) http://www.webs.com/
17) http://www.weebly.com/
18) http://www.000webhost.com/
19) https://www.freehosting.com
20) https://vimeo.com/
21) http://www.dailymotion.com/
22) http://pastebin.com
23) https://gist.github.com
24) http://www.ipaste.eu
25) https://thesnippetapp.com
26) https://snipt.net
27) http://tny.ct (Tinypaste)
28) https://github.com (gist-it)
29) http://snipplr.com/
30) http://termbin.com
31) http://www.snippetsource.net
32) https://cryptbin.com</b>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/resources/2014-12-17_DoT-32-URL-Block-Order_compressed.pdf'>https://cis-india.org/internet-governance/resources/2014-12-17_DoT-32-URL-Block-Order_compressed.pdf</a>
</p>
No publisherpraneshFreedom of Speech and ExpressionIT ActCensorship2014-12-31T14:48:24ZFileOverview of the Constitutional Challenges to the IT Act
https://cis-india.org/internet-governance/blog/overview-constitutional-challenges-on-itact
<b>There are currently ten cases before the Supreme Court challenging various provisions of the Information Technology Act, the rules made under that, and other laws, that are being heard jointly. Advocate Gopal Sankaranarayanan who's arguing Anoop M.K. v. Union of India has put together this chart that helps you track what's being challenged in each case.</b>
<br />
<br />
<br />
<table class="tg" style="undefined;table-layout: fixed; border=">
<tr>
<th class="tg-s6z2">PENDING MATTERS</th>
<th class="tg-s6z2">CASE NUMBER</th>
<th class="tg-0ord">PROVISIONS CHALLENGED</th>
</tr>
<tr>
<td class="tg-4eph">Shreya Singhal v. Union of India</td>
<td class="tg-spn1">W.P.(CRL.) NO. 167/2012</td>
<td class="tg-zapm">66A</td>
</tr>
<tr>
<td class="tg-031e">Common Cause & Anr. v. Union of India</td>
<td class="tg-s6z2">W.P.(C) NO. 21/2013</td>
<td class="tg-0ord">66A, 69A & 80</td>
</tr>
<tr>
<td class="tg-4eph">Rajeev Chandrasekhar v. Union of India & Anr.</td>
<td class="tg-spn1">W.P.(C) NO. 23/2013</td>
<td class="tg-zapm">66A & Rules 3(2), 3(3), 3(4) & 3(7) of the Intermediaries Rules 2011</td>
</tr>
<tr>
<td class="tg-031e">Dilip Kumar Tulsidas Shah v. Union of India & Anr.</td>
<td class="tg-s6z2">W.P.(C) NO. 97/2013</td>
<td class="tg-0ord">66A</td>
</tr>
<tr>
<td class="tg-4eph">Peoples Union for Civil Liberties v. Union of India & Ors.</td>
<td class="tg-spn1">W.P.(CRL.) NO. 199/2013</td>
<td class="tg-zapm">66A, 69A, Intermediaries Rules 2011 (s.79(2) Rules) & Blocking of Access of Information by Public Rules 2009 (s.69A Rules)</td>
</tr>
<tr>
<td class="tg-031e">Mouthshut.Com (India) Pvt. Ltd. & Anr. v. Union of India & Ors.</td>
<td class="tg-s6z2">W.P.(C) NO. 217/2013</td>
<td class="tg-0ord">66A & Intermediaries Rules 2011</td>
</tr>
<tr>
<td class="tg-4eph">Taslima Nasrin v. State of U.P & Ors.</td>
<td class="tg-spn1">W.P.(CRL.) NO. 222/2013</td>
<td class="tg-zapm">66A</td>
</tr>
<tr>
<td class="tg-031e">Manoj Oswal v. Union of India & Anr.</td>
<td class="tg-s6z2">W.P.(CRL.) NO. 225/2013</td>
<td class="tg-0ord">66A & 499/500 Indian Penal Code</td>
</tr>
<tr>
<td class="tg-4eph">Internet and Mobile Ass'n of India & Anr. v. Union of India & Anr.</td>
<td class="tg-spn1">W.P.(C) NO. 758/2014</td>
<td class="tg-zapm">79(3) & Intermediaries Rules 2011</td>
</tr>
<tr>
<td class="tg-031e">Anoop M.K. v. Union of India & Ors.</td>
<td class="tg-s6z2">W.P.(CRL.) NO. 196/2014</td>
<td class="tg-0ord">66A, 69A, 80 & S.118(d) of the Kerala Police Act, 2011</td>
</tr>
</table>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/overview-constitutional-challenges-on-itact'>https://cis-india.org/internet-governance/blog/overview-constitutional-challenges-on-itact</a>
</p>
No publisherpraneshIT ActCourt CaseFreedom of Speech and ExpressionIntermediary LiabilityConstitutional LawCensorshipSection 66AArticle 19(1)(a)Blocking2014-12-19T09:01:50ZBlog EntryIs India’s website-blocking law constitutional? – I. Law & procedure
https://cis-india.org/internet-governance/blog/is-india2019s-website-blocking-law-constitutional-2013-i-law-procedure
<b>Section 69A of the Information Technology Act, 2000, along with its corresponding Rules, set out the procedure for blocking of websites in India. Over two posts, Geetha Hariharan examines the constitutional validity of Section 69A and the Blocking Rules. </b>
<p style="text-align: justify; "> </p>
<h2 style="text-align: justify; "><span>Introduction</span>:</h2>
<p style="text-align: justify; ">The Information Technology Act, 2000 (“<strong>IT Act</strong>”) is no stranger to litigation or controversy. Since its enactment in 2000, the IT Act has come under stringent criticism, both for the alleged Constitutional infirmities of its provisions and Rules, as well as for the way it is implemented. In recent years, Sections 66A (re: criminal liability for offensive, annoying or inconveniencing online communications), 67A (re: obscene 69A (re: website-blocking) and 79 (re: intermediary liability) have all come under attack for these reasons.</p>
<p style="text-align: justify; "><span>Today, these Sections and several others have been challenged before the Supreme Court. A total of ten cases, challenging various Sections of the IT Act, are being heard together by the Supreme Court. This is a welcome occasion, for the IT Act desperately needs judicial review. Nikhil Pahwa over at Medianama provides an </span><a href="http://www.medianama.com/2014/12/223-if-a-law-requires-a-person-to-be-careful-it-is-not-violative-of-free-speech-notes-from-the-supreme-court/">update and the list of cases</a><span>.</span></p>
<p style="text-align: justify; ">Among the challenged provisions are Section 66A, Section 79 and Section 69A. Section 66A was and continues to be used wantonly by the State and police. A student was <a href="http://m.thehindu.com/news/national/andhra-pradesh/andhra-pradesh-law-student-arrested-for-facebook-comment-on-cyclone-hudhud/article6544417.ece/">recently arrested</a> for a Twitter comment regarding Cyclone Hudhud, while anti-Modi comments led to several arrests earlier in the year (see <a href="http://m.firstpost.com/politics/goa-facebook-user-faces-jail-term-for-anti-modi-comments-1538499.html">here</a>, <a href="http://www.hindustantimes.com/india-news/aap-activist-arrested-for-allegedly-forwarding-anti-modi-mms-in-karnataka/article1-1222788.aspx">here</a> and <a href="http://indianexpress.com/article/india/india-others/modi-on-negative-faces-list-principal-6-others-booked/">here</a>). At CIS, we have previously subjected Section 66A to constitutional analyses. <a href="http://cis-india.org/internet-governance/blog/breaking-down-section-66-a-of-the-it-act">Pranesh Prakash traced</a> the genealogy of the Section and <a href="http://cis-india.org/internet-governance/blog/bal-thackeray-comment-arbitrary-arrest-295A-66A">its import</a> in targeting offensive, annoying and inconveniencing communications and spam, while <a href="http://cis-india.org/internet-governance/blog/two-arguments-against-the-constitutionality-of-section-66a">Gautam Bhatia examined</a> the Section’s overbreadth and vagueness. The casual wording and potential for misuse of Section 79 and the Information Technology (Intermediaries Guidelines) Rules, 2011 <a href="http://cis-india.org/internet-governance/constitutional-analysis-of-intermediaries-guidelines-rules">led Ujwala Uppaluri</a> to offer strong arguments regarding their violation of Part III of the Constitution.</p>
<p style="text-align: justify; ">Similar infirmities also handicap Section 69A and its Rules. This provision empowers the Central government and officers authorised by it to order the blocking of websites or webpages. Website-blocking is permissible for reasons enumerated in Section 69A, and in accordance with the process laid out in the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public (sic)) Rules, 2009 (“<strong>Blocking Rules</strong>”). In our view, Section 69A and the Blocking Rules are also unconstitutional, and liable to be declared as such by the Supreme Court. We provide our analysis in this post and the next.</p>
<h2 style="text-align: justify; "><span>Section 69A, IT Act</span><span>:</span></h2>
<p style="text-align: justify; ">Section 69A and the Blocking Rules provide for website-blocking in accordance with enumerated reasons and process. The Section reads as follows:</p>
<blockquote class="quoted" style="text-align: justify; "><strong>69A.</strong> <i>Power to issue directions for blocking for public access of any information through any computer resource.- </i></blockquote>
<blockquote class="quoted" style="text-align: justify; "><i> </i><span>(1) Where the Central Government or any of its officer specially authorized by it in this behalf is satisfied that it is necessary or expedient so to do in the interest of sovereignty and integrity of India, defense of India, security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence relating to above, it may subject to the provisions of sub-sections (2) for reasons to be recorded in writing, by order direct any agency of the Government or intermediary to block access by the public or cause to be blocked for access by public any information generated, transmitted, received, stored or hosted in any computer resource. </span></blockquote>
<blockquote class="quoted" style="text-align: justify; "><span> </span><span>(2) The procedure and safeguards subject to which such blocking for access by the public may be carried out shall be such as may be prescribed. </span></blockquote>
<blockquote class="quoted" style="text-align: justify; "><span> </span><span>(3) The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with an imprisonment for a term which may extend to seven years and also be liable to fine.</span></blockquote>
<p style="text-align: justify; ">As you will notice, the Central government may block any information that is “<i>generated, transmitted, received, stored or hosted</i>” in any computer. This will extend, clearly, to any webpage available and/or hosted in India. The Government can order website-blocks if it is satisfied of the necessity or expedience for this on the basis of (any of) six reasons. These reasons are:</p>
<ol style="text-align: justify; ">
<li>Sovereignty and integrity of India,</li>
<li>Defense of India,</li>
<li>Security of the State,</li>
<li>Friendly relations with foreign states,</li>
<li>Public order,</li>
<li>Preventing incitement to the commission of any cognizable offence relating to above.</li>
</ol>
<p style="text-align: justify; "><span>If the Central government is convinced it has a valid reason, then it must follow the blocking procedure set out in the </span><a href="http://cis-india.org/internet-governance/resources/information-technology-procedure-and-safeguards-for-blocking-for-access-of-information-by-public-rules-2009">Blocking Rules</a><span>, which were notified on 27 October 2009. Before entering into an analysis of the Blocking Rules, let us understand the blocking procedure.</span></p>
<h2 style="text-align: justify; "><span>The Blocking Procedure</span><span>:</span></h2>
<p style="text-align: justify; ">I will explain the blocking procedure in 4 steps: (1) Relevant designations and committees; (2) Procedure to make and examine a blocking request, and issue blocking direction; (3) Blocking in special circumstances; and (4) Review of blocking directions.</p>
<h3 style="text-align: justify; "><span>(1) Relevant designations and committees:</span></h3>
<p><strong><span style="text-decoration: underline;">Designated Officer (“<strong>DO</strong>”)</span></strong>: The Central government notifies an officer not below the rank of Joint Secretary as the Designated Officer, who will issue the blocking direction ot the relevant intermediary or agency [Rule 3]. By a <a href="http://deity.gov.in/sites/upload_files/dit/files/Gazette1_20082010(1).pdf">notification dated 20 January 2010</a>, the DO is the Group Coordinator, Cyberlaw Division, Department of Information Technology (DIT). Unfortunately, I was unable to locate the Group Coordinator, Cyberlaw Division <a href="http://deity.gov.in/content/people-and-offices">on the website</a> of the Department of Electronics and Information Technology (DeitY, the name to which DIT was renamed in 2012). I am also unable to find a notification updating the designation of the DO. Presumably, Dr. Gulshan Rai, Director General (Cyberlaws & E-security), DeitY, continues to be the DO.</p>
<p style="text-align: justify; "><span><strong><span style="text-decoration: underline;">Nodal Officer (“<strong><strong>NO</strong></strong>”)</span></strong></span>: Every organization designates one of its officers as a Nodal Officer, who will receive blocking requests and forward them to the DO [Rule 4]. ‘Organisation’ is defined in Rule 2(g) as Ministries or Departments of the Government of India, State governments and Union Territories, and any Agency of the Central government notified in the Official Gazette. I am unable to find <a href="http://deity.gov.in/content/notifications">on the DeitY website</a> a notification explaining which government Agencies are ‘organisations’ under Rule 2(g).</p>
<p style="text-align: justify; "><span><strong><span style="text-decoration: underline;">Intermediary Contact</span></strong></span>: Every intermediary also designates one person to receive and handle blocking directions from the DO [Rule 13].</p>
<p style="text-align: justify; "><span><strong><span style="text-decoration: underline;">Committee for Examination of Request (“<strong><strong>CER</strong></strong>”)</span></strong></span>: The 5-membered CER comprises the DO as Chairman, along with officers not below the rank of Joint Secretary from the Ministries of Law & Justice, Home Affairs, Information & Broadcasting and <a href="http://deity.gov.in/content/indian-computer-emergency-response-team-cert-dpl-rtoi">CERT-In</a> [Rule 7]. The CER examines each blocking request, before issuing recommendations to the DO to block or not to block. Regrettably, I am unable to identify the current membership of the CER, as no document is available that gives this information. However, the CER’s composition in 2010 <a href="http://cis-india.org/internet-governance/dit-response-2nd-rti-blocking">may be gleaned</a> (see Annexure III).</p>
<p style="text-align: justify; "><span><strong><span style="text-decoration: underline;">Review Committee (“<strong><strong>RC</strong></strong>”)</span></strong></span>: Rule 2(i) defines the RC as the body set up under Rule 419A, Indian Telegraph Rules, 1951. <a href="http://www.dot.gov.in/sites/default/files/358%20GI-2014%20dated%208.2.2014_6.pdf">As per Rule 419A(16)</a>, the Central RC is constituted by the Cabinet Secretary, Secretary to the Government of India (Legal Affairs) and Secretary (Department of Telecom).</p>
<h3 style="text-align: justify; "><span><strong>(2) </strong><strong>Blocking procedure</strong><span>:</span></span></h3>
<p style="text-align: justify; ">The Blocking Rules stipulate that the entire blocking procedure, from examining a blocking request to issuing a blocking direction, must be carried out within 7 days from the date on which the DO receives the blocking request from the NO [Rule 11].</p>
<p style="text-align: justify; "><strong><span style="text-decoration: underline;">(a) Making a blocking request</span></strong>: Any person may send a request for a website-block to an NO of any ‘organisation’ (“<strong>outside request</strong>”). Alternatively, the NO may himself raise a blocking request. The organization has to examine each outside request and be satisfied that it meets the requirements of Section 69A(1), IT Act. Once it is satisfied, the NO forwards the blocking request to the DO. Outside requests must be approved by the Chief Secretary of the State or Union Territory, before they are sent to the DO. [See Rule 6 for this procedure]</p>
<p style="text-align: justify; "><strong><span style="text-decoration: underline;">(b) Examining a blocking request</span></strong>: Once the DO receives a blocking request, he/she places it before the CER. The DO tries to identify the person/intermediary hosting the troubling information, and if identified, issues a notice seeking their representation before the CER. Foreign entities hosting the information are also informed over fax/email. The person/intermediary has 48 hours from the date of receiving the DO’s notice to make its representation.</p>
<p style="text-align: justify; ">After this, the CER will examine the blocking request. It will “consider whether the request is covered within the scope of Section 69A(1)”, and whether it is justifiable to block [Rule 8(4)].</p>
<p style="text-align: justify; "><strong><span style="text-decoration: underline;">(c) Blocking direction</span></strong>: The DO then places the CER’s recommendation to block or not to block before the Secretary (DeitY) for his/her approval. If and once approval is granted, the DO directs the relevant Agency or intermediary to block the website/page.</p>
<h3 style="text-align: justify; "><span><strong>(3) </strong><strong>Blocking in special circumstances</strong>:</span></h3>
<p style="text-align: justify; "><strong><span style="text-decoration: underline;">(a) Emergencies [Rule 9]</span></strong>: In an emergency “when no delay is acceptable”, the DO passes over the blocking procedure described above. With written recommendations, the DO directly approaches the Secretary (DeitY) for approval of blocking request. If satisfied, the Secretary (DeitY) issues the blocking direction as an <i>interim measure</i>. Nevertheless, the DO is required to place the blocking request before the CER at the earliest opportunity (in any case, not later than 48 hours after blocking direction).</p>
<p style="text-align: justify; "><strong><span style="text-decoration: underline;">(b) Court orders [Rule 10]</span></strong>: If a court has ordered a website-block, the DO follows a procedure similar to an Emergency situation. He/she submits the certified copy of order to the Secretary (DeitY), and then initiates action as ordered by the court.</p>
<h3 style="text-align: justify; "><span><strong>(4) </strong><strong>Review of blocking directions</strong>:</span></h3>
<p style="text-align: justify; ">The RC is to meet once in 2 months to evaluate whether blocking directions issued under the Blocking Rules are in compliance with Section 69A(1) [Rule 14]. No other review or appeal mechanism is provided under the Blocking Rules. Nor are aggrieved parties afforded any further opportunities to be heard. Also note that Rule 16 mandates that all requests and complaints received under the Blocking Rules are to the kept strictly confidential.</p>
<p style="text-align: justify; ">In the next post, I will subject Section 69A and the Blocking Rules to a constitutional analysis.</p>
<h2 style="text-align: justify; "><span>Blocking procedure poster</span>:</h2>
<p style="text-align: justify; ">CIS has produced a poster explaining the blocking procedure (<a href="http://cis-india.org/internet-governance/blog/blocking-websites.pdf/at_download/file">download PDF</a>, 2.037MB).</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/is-india2019s-website-blocking-law-constitutional-2013-i-law-procedure'>https://cis-india.org/internet-governance/blog/is-india2019s-website-blocking-law-constitutional-2013-i-law-procedure</a>
</p>
No publishergeethaFreedom of Speech and ExpressionIT ActBlocking2014-12-11T11:02:01ZBlog EntryE-Consultation on Cyber Security, Justice, and Governance Begins!
https://cis-india.org/internet-governance/news/the-hague-institute-for-global-justice-november-4-2014-e-consultation-on-cyber-security-justice-and-governance-begins
<b>Sunil Abraham facilitated the e-consultation on "Internet access, the freedom of expression online, and development in the Global South" at the event organized by the Hague Institute for Global Justice.</b>
<p>This was originally <a class="external-link" href="http://thehagueinstituteforglobaljustice.org/index.php?page=News-News_Articles-Recent_News-E-Consultation_on_Cyber_Security,_Justice,_and_Governance_Begins!&pid=138&id=307">published on the website of the Hague Institute for Global Justice</a> on November 4, 2014.</p>
<hr />
<p style="text-align: justify; ">On 3 November 2014, The Hague Institute launched its first e-consultation, which seeks to contribute to the work of the <a href="http://thehagueinstituteforglobaljustice.org/index.php?page=Programs&pid=180&progid=3&thid=7" target="_blank">Commission on Global Security, Justice, and Governance</a>. This is the first of a series of e-consultations on topics relevant to the research and policy agenda of the Commission.</p>
<p style="text-align: justify; ">This consultation brings together over 75 international cyber security and cyber governance experts and seeks to build on the high-level <i>Expert Consultation on Cyber Security, Justice, and Governance </i>hosted by The Hague Institute, The Stimson Center and the Observer Research Foundation in New Delhi on 18 October 2014 following the conclusion of the <a href="http://cyfy.org/event/cyfy-2014/" target="_blank">India Conference on Cyber Security and Cyber Governance</a>.</p>
<p style="text-align: justify; ">The consultation was chaired by <a href="http://www.counciloncybersecurity.org/about-us/leadership/" target="_blank">Dr. Jane Holl Lute</a> – a Commissioner, and President and CEO of the Council on Cyber Security and Former U.S. Deputy-Secretary for Homeland Security. Speakers included former Deputy National Security Advisor of India, <a href="http://www.ewi.info/profile/latha-reddy" target="_blank">Ambassador Latha Reddy</a> and Executive Director of the Centre for Internet and Society, <a href="http://cis-india.org/publications-automated/cis/sunil" target="_blank">Mr. Sunil Abraham</a>.</p>
<p style="text-align: justify; ">A summary of the expert discussion can be read <a href="http://thehagueinstituteforglobaljustice.org/cp/uploads/downloadsprojecten/Summary_Expert_Consultation_New_Delhi.pdf" target="_blank">here</a>.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/news/the-hague-institute-for-global-justice-november-4-2014-e-consultation-on-cyber-security-justice-and-governance-begins'>https://cis-india.org/internet-governance/news/the-hague-institute-for-global-justice-november-4-2014-e-consultation-on-cyber-security-justice-and-governance-begins</a>
</p>
No publisherpraskrishnaFreedom of Speech and ExpressionInternet Governance2014-12-04T23:36:27ZNews ItemGood Intentions, Recalcitrant Text - I: Why India’s Proposal at the ITU is Troubling for Internet Freedoms
https://cis-india.org/internet-governance/blog/good-intentions-going-awry-i-why-india2019s-proposal-at-the-itu-is-troubling-for-internet-freedoms
<b>The UN's International Telecommunications Union (ITU) is hosting its Plenipotentiary Conference (PP-14) this year in South Korea. At PP-14, India introduced a new draft resolution on ITU's Role in Realising Secure Information Society. The Draft Resolution has grave implications for human rights and Internet governance. Geetha Hariharan explores.</b>
<p style="text-align: justify; "> </p>
<p style="text-align: justify; ">At the 2014 Plenipotentiary Conference (‘PP-14’ or ‘Plenipot’) of the International Telecommunications Union (ITU), India has tabled <a href="https://cis-india.org/internet-governance/blog/india-draft-resolution-itus-role-in-securing-information-security/at_download/file">a draft proposal</a> on “ITU’s Role in Realising Secure Information Society” [Document 98, dated 20 October 2014] (“<strong>Draft Resolution</strong>”). India’s proposal has incited a great deal of concern and discussion among Plenipot attendees, governments and civil society alike. Before offering my concerns and comments on the Draft Resolution, let us understand the proposal.</p>
<p style="text-align: justify; ">Our Draft Resolution identifies 3 security concerns with exchange of information and resource allocation on the Internet:</p>
<ul style="text-align: justify; ">
<li><i>First</i>, it is troubling for India that present network architecture has “<i>security weaknesses</i>” such as “<i>camouflaging the identity of the originator of the communication</i>”;<a href="#_ftn1">[1]</a> random IP address distribution also makes “<i>tracing of communication difficult</i>”;<a href="#_ftn2">[2]</a></li>
<li><i>Second</i>, India is concerned that under the present allocation system of naming, numbering and addressing resources on the Internet, it is impossible or at the very least, cumbersome to identify the countries to which IP address are allocated;<a href="#_ftn3">[3]</a> </li>
<li><i>Third</i>, India finds it insecure from the point of view of national security that traffic originating and terminating in the same country (domestic traffic) often routes through networks overseas;<a href="#_ftn4">[4]</a> similarly, local address resolution also routes through IP addresses outside the country or region, which India finds troubling.<a href="#_ftn5">[5]</a></li>
</ul>
<p style="text-align: justify; ">In an effort to address these concerns, the Draft Resolution seeks to instruct the ITU Secretary General:</p>
<ul style="text-align: justify; ">
<li><i>First</i>,<i> </i>to develop and recommend a ‘traffic routing plan’ that can “<i>effectively ensure the traceability of communication</i>”;<a href="#_ftn6">[6]</a></li>
<li><i>Second</i>, to collaborate with relevant international and intergovernmental organisations to develop an<i> </i>“<i>IP address plan</i>”<i> </i>which facilitates identification of locations/countries to which IP addresses are allocated and coordinates allocation accordingly;<a href="#_ftn7">[7]</a></li>
<li><i>Third</i>, to develop and recommend “<i>a public telecom network architecture</i>” that localizes both routing<a href="#_ftn8">[8]</a> as well as address resolution<a href="#_ftn9">[9]</a> for local/domestic traffic to “<i>within the country</i>”.</li>
</ul>
<p style="text-align: justify; ">Admittedly, our Draft Resolution is intended to pave a way for “<i>systematic, fair and equitable allocation</i>” of, <i>inter alia</i>, naming, numbering and addressing resources,<a href="#_ftn10">[10]</a> keeping in mind security and human rights concerns.<a href="#_ftn11">[11]</a> In an informal conversation, members of the Indian delegation echoed these sentiments. Our resolution does not, I was told, raise issues about the “<i>concentration of control over Internet resources</i>”, though “<i>certain governments</i>” have historically exercised more control. It also does not, he clarified, wish to make privacy or human rights a matter for discussion at the ITU. All that the Draft Resolution seeks to do is to equip the ITU with the mandate to prepare and recommend a “<i>roadmap for the systematization</i>” of allocation of naming, numbering and addressing resources, and for local routing of domestic traffic and address resolution. The framework for such mandate is that of security, given the ITU’s role in ‘building confidence and security in the use of ICTs’ under Action Line C5 of the <a href="http://www.itu.int/wsis/docs/geneva/official/poa.html">Geneva Plan of Action</a>, 2003.</p>
<p style="text-align: justify; ">Unfortunately, the text of our Draft Resolution, by dint of imprecision or lack of clarity, undermines India’s intentions. On three issues of utmost importance to the Internet, the Draft Resolution has unintended or unanticipated impacts. <strong><i>First</i></strong>, its text on tracing communication and identity of originators, and systematic allocation of identifiable IP address blocks to particular countries, has impacts on privacy and freedom of expression. Given Edward Snowden’s <a href="http://www.theguardian.com/world/interactive/2013/nov/01/snowden-nsa-files-surveillance-revelations-decoded">NSA files</a> and the absence of adequate protections against government incursions or excesses into privacy,<a href="#_ftn12">[12]</a> either in international human rights law or domestic law, such text is troublesome. <strong><i>Second</i></strong>, it has the potential to undermine multi-stakeholder approaches to Internet governance by proposing text that refers almost exclusively to sovereign monopolies over Internet resource allocation, and <strong><i>finally</i></strong>, displays a certain disregard for network architecture and efficiency, and to principles of a free, open and unified Internet, when it seeks to develop global architecture that facilitates (domestic) localization of traffic-routing, address resolution and allocation of naming, numbering and addressing.</p>
<p style="text-align: justify; ">In this post, I will address the first concern of human rights implications of our Draft Resolution.<span> </span></p>
<h3 style="text-align: justify; ">Unintended Implications for Privacy and Freedom of Expression:</h3>
<p style="text-align: justify; ">India’s Draft Resolution has implications for individual privacy. At two different parts of the preamble, India expresses concerns with the impossibility of locating the user at the end of an IP address:</p>
<ul style="text-align: justify; ">
<li>Pream. §(e): “<i>recognizing</i>… that the modern day packet networks, which at present have many security weaknesses, <i>inter alia</i>, camouflaging the identity of originator of the communication”;</li>
<li>Pream. §(h): “<i>recognizing</i>… that IP addresses are distributed randomly, that makes the tracing of communication difficult”.</li>
</ul>
<p style="text-align: justify; ">The concerns here surround difficulties in tracking IP addresses due to the widespread use of NATs, as also the existence of IP anonymisers like Tor. Anonymisers like Tor permit individuals to cover their online tracks; they conceal user location and Internet activity from persons or governments conducting network surveillance or traffic analysis. For this reason, Tor has caused much discomfort to governments. <a href="http://www.wired.com/2014/10/laura-poitras-crypto-tools-made-snowden-film-possible/">Snowden used Tor</a> while communicating with Laura Poitras. Bradley (now Chelsea) Manning of Wikileaks fame is<i> </i><a href="http://belfercenter.ksg.harvard.edu/files/maurer-dp-2011-10-wikileaks-final.pdf">reported</a> to have used Tor (page 24). Crypto is increasingly the safest – perhaps the only safe – avenue for political dissidents across the world; even Internet companies were <a href="http://gizmodo.com/the-nsa-was-going-to-fine-yahoo-250k-a-day-if-it-didnt-1633677548">coerced</a> into governmental compliance. No wonder, then, that governments are doing all they can to dismantle IP anonymisers: the <a href="http://arstechnica.com/security/2013/10/nsa-repeatedly-tries-to-unpeel-tor-anonymity-and-spy-on-users-memos-show/">NSA</a> and <a href="http://www.itproportal.com/2013/10/04/nsa-and-gchq-repeatedly-tried-infiltrate-tor-documents-reveal/">GCHQ</a> have tried to break Tor; the Russian government has <a href="http://www.bloomberg.com/news/2014-07-29/putin-sets-110-000-bounty-for-cracking-tor-as-anonymous-internet-usage-in-russia-surges.html">offered a reward</a> to anyone who can.</p>
<p style="text-align: justify; ">Far be it from me to defend Tor blindly. There are reports <a href="http://www.theguardian.com/world/2013/oct/04/nsa-gchq-attack-tor-network-encryption">suggesting</a> that Tor is being <a href="http://news.softpedia.com/news/Tor-Attracts-More-and-More-Cybercriminals-Experts-Warn-430659.shtml">used by offenders</a>, and not merely those of the Snowden variety. But governments must recognize the very obvious trust deficit they face, especially after <a href="http://www.statewatch.org/news/2014/may/ep-LIBE-Inquiry-NSA-Surveillance.pdf">Snowden’s revelations</a>, and consider the implications of seeking traceability and identity/geolocation for every IP address, in a systematic manner. The implications are for privacy, a right guaranteed by Article 17 of the International Covenant on Civil and Political Rights (ICCPR). Privacy has been <a href="http://www.hrw.org/sites/default/files/related_material/UNGA_upload_0.pdf">recognized</a> by the UN General Assembly as applicable in cases of surveillance, interception and data collection, in Pream. §4 of its resolution <i>The Right to Privacy in the Digital Age</i>. But many states do not have robust privacy protections for individuals and data. And while governments may state the necessity to create international policy to further effective criminal investigations, such an aim cannot be used to nullify or destroy the rights of privacy and free speech guaranteed to individuals. Article 5(1), ICCPR, codifies this principle, when it states that States, groups or persons may not “<i>engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein…</i>”.</p>
<p style="text-align: justify; "><span>Erosion of privacy has a chilling effect on free speech [</span><i><a href="http://www.law.cornell.edu/supremecourt/text/376/254">New York Times v. Sullivan</a></i><span>, 376 U.S. 254], so free speech suffers too. Particularly with regard to Tor and identification of IP address location and users, anonymity in Internet communications is at issue. At the moment, most states already have anonymity-restrictions, in the form of identification and registration for cybercafés, SIM cards and broadband connections. For instance, Rule 4 of India’s </span><a href="http://deity.gov.in/sites/upload_files/dit/files/GSR315E_10511(1).pdf">Information Technology (Guidelines for Cyber Cafe) Rules, 2011</a><span>, mandates that we cannot not use computers in a cybercafé without establishing our identities. But our ITU Draft Resolution seeks to </span><i>dismantle</i><span> the ability of Internet users to operate anonymously, be they political dissidents, criminals or those merely acting on their expectations of privacy. Such dismantling would be both violative of international human rights law, as well as dangerous for freedom of expression and privacy in principle. Anonymity is integral to democratic discourse, held the US Supreme Court in </span><i><a href="http://www.law.cornell.edu/supct/html/93-986.ZO.html">McIntyre v. Ohio Elections Commission</a></i><span> [514 U.S. 334 (1995)].</span><a href="#_ftn13">[13]</a><span> Restrictions on Internet anonymity facilitate communications surveillance and have a chilling effect on the free expression of opinions and ideas, </span><a href="http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session23/A.HRC.23.40_EN.pdf">wrote Mr. Frank La Rue</a><span>, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (¶¶ 48-49).</span></p>
<p style="text-align: justify; ">So a law or international policy for blanket identification and traceability of IP addresses has grave consequences for and <i>prima facie </i>violates privacy, anonymity and freedom of speech. But these rights are not absolute, and can be validly restricted. And because these human rights are implicated, the ITU with its lack of expertise in the area may not be the adequate forum for discussion or study.</p>
<p style="text-align: justify; "><span>To be valid and justified interference, any law, policy or order interfering with privacy and free speech must meet the standards of reasonableness and proportionality, even if national security were the government’s legitimate aim, laid down in Articles 19(3) and 17 of the Covenant on Civil and Political Rights (CCPR) [</span><i><a href="http://www1.umn.edu/humanrts/undocs/html/vws488.htm">Toonen v. Australia</a></i><span>, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994), ¶6.4]. And as the European Court of Human Rights found in </span><i><a href="http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-76586">Weber & Saravia v. Germany</a></i><span> [Application no. 54934/00, 29 June 2006 (ECHR), ¶95], law or executive procedure that </span><i>enables</i><span> surveillance without sufficient safeguards is </span><i>prima facie</i><span> unreasonable and disproportionate. Re: anonymity, in </span><i><a href="http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-126635">Delfi AS v. Estonia</a></i><span> [Application no. 64569/09, 17 February 2014, ¶83], while considering the liability of an Internet portal for offensive anonymous comments, the ECHR has emphasized the importance of balancing freedom of expression and privacy. It relied on certain principles such as “</span><i>contribution to a debate of general interest, subject of the report, the content, form and consequences of the publication</i><span>” to test the validity of government’s restrictions.</span></p>
<p style="text-align: justify; ">The implications of the suggested text of India’s Draft Resolution should then be carefully thought out. And this is a good thing. For one must wonder why governments need perfect traceability, geolocation and user identification for <i>all</i> IP addresses. Is such a demand really different from mass or blanket surveillance, in scale and government tracking ability? Would this not tilt the balance of power strongly in favour of governments against individuals (citizens or non-citizens)? This fear must especially arise in the absence of domestic legal protections, both in human rights, and criminal law and procedure. For instance, India’s Information Technology Act, 2000 (amended in 2008) has Section 66A, which criminalizes offensive speech, as well as speech that causes annoyance or inconvenience. Arguably, arrests under Section 66A have been <a href="http://timesofindia.indiatimes.com/city/bangalore/Man-arrested-for-allegedly-sending-offensive-MMS-against-Modi-confirmed-innocent-by-police-released/articleshow/35624351.cms">arbitrary</a>, and traceability may give rise to a host of new worries.</p>
<p style="text-align: justify; "><span>In any event, IP addresses and users can be discerned under existing domestic law frameworks. Regional Internet Registries (RIR) such as APNIC allocate blocks of IP addresses to either National Internet Registries (NIR – such as IRINN for India) or to ISPs directly. The ISPs then allocate IP addresses dynamically to users like you and me. Identifying information for these ISPs is maintained in the form of </span><a href="http://www.irinn.in/whoisSearchform.action">WHOIS records</a><span> and </span><a href="file://localhost/pub/stats/apnic">registries</a><span> with RIRs or NIRs, and this information is public. ISPs of most countries require identifying information from users before Internet connection is given, i.e., IP addresses allocated (mostly by dynamic allocation, for that is more efficient). ISPs of some states are also regulated; in India, for instance, ISPs require a </span><a href="http://www.dot.gov.in/licensing/data-services">licence</a><span> to operate and offer services.</span></p>
<p style="text-align: justify; ">If any government wished, on the basis of some reasonable cause, to identify a particular IP address or its user, then the government could first utilize WHOIS to obtain information about the ISP. Then ISPs may be ordered to release specific IP address locations and user information under executive or judicial order. There are also technical solutions, such as <a href="http://traceroute.monitis.com/">traceroute</a> or <a href="http://ip-lookup.net/">IP look-up</a> that assist in tracing or identifying IP addresses. Coders, governments and law enforcement must surely be aware of better technology than I.</p>
<p style="text-align: justify; ">If we take into account this possibility of geolocation of IP addresses, then the Draft Resolution’s motivation to ‘systematize’ IP address allocations on the basis of states is unclear. I will discuss the implication of this proposal, and that of traffic and address localization, in my next post.</p>
<p style="text-align: justify; "> </p>
<hr size="1" style="text-align: justify; " width="33%" />
<p style="text-align: justify; "><a href="#_ftnref1">[1]</a> Pream. §(e), Draft Resolution: “recognizing… that the modern day packet networks, which at present have many security weaknesses, inter alia, camouflaging the identity of originator of the communication”.</p>
<p style="text-align: justify; "><a href="#_ftnref2">[2]</a> Pream. §(h), Draft Resolution: “recognizing… that IP addresses are distributed randomly, that makes the tracing of communication difficult”.</p>
<p style="text-align: justify; "><a href="#_ftnref3">[3]</a> Op. §1, Draft Resolution: “instructs the Secretary General… to collaborate with all stakeholders including International and intergovernmental organizations, involved in IP addresses management to develop an IP address plan from which IP addresses of different countries are easily discernible and coordinate to ensure distribution of IP addresses accordingly”.</p>
<p style="text-align: justify; "><a href="#_ftnref4">[4]</a> Pream. §(g), Draft Resolution: “recognizing… that communication traffic originating and terminating in a country also many times flows outside the boundary of a country making such communication costly and to some extent insecure from national security point of view”.</p>
<p style="text-align: justify; "><a href="#_ftnref5">[5]</a> Pream. §(f), Draft Resolution: “recognizing… that even for local address resolution at times, system has to use resources outside the country which makes such address resolution costly and to some extent insecure from national security perspective”.</p>
<p style="text-align: justify; "><a href="#_ftnref6">[6]</a> Op. §6, Draft Resolution: “instructs the Secretary General… to develop and recommend a routing plan of traffic for optimizing the network resources that could effectively ensure the traceability of communication”.</p>
<p style="text-align: justify; "><a href="#_ftnref7">[7]</a> Op. §1, Draft Resolution; <i>see</i> note 3.</p>
<p style="text-align: justify; "><a href="#_ftnref8">[8]</a> Op. §5, Draft Resolution: “instructs the Secretary General… to develop and recommend public telecom network architecture which ensures that effectively the traffic meant for the country, traffic originating and terminating in the country remains within the country”.</p>
<p style="text-align: justify; "><a href="#_ftnref9">[9]</a> Op. §4, Draft Resolution: “instructs the Secretary General… to develop and recommend public telecom network architecture which ensures effectively that address resolution for the traffic meant for the country, traffic originating and terminating in the country/region takes place within the country”.</p>
<p style="text-align: justify; "><a href="#_ftnref10">[10]</a> Context Note to Draft Resolution, ¶3: “Planning and distribution of numbering and naming resources in a systematic, equitable, fair and just manner amongst the Member States…”</p>
<p style="text-align: justify; "><a href="#_ftnref11">[11]</a> Context Note to Draft Resolution, ¶2: “…there are certain areas that require critical attention to move in the direction of building the necessary “Trust Framework” for the safe “Information Society”, where privacy, safety are ensured”.</p>
<p style="text-align: left; "><a href="#_ftnref12">[12]</a> <i>See, for instance</i>, Report of the Office of the High Commission for Human Rights (“OHCHR”), <i>Right to Privacy in the Digital Age</i>, A/HRC/27/37 (30 June 2014), ¶34-35, <a href="http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session27/Documents/A.HRC.27.37_en.pdf">http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session27/Documents/A.HRC.27.37_en.pdf</a>. <i>See esp. </i>note 30 of the Report, ¶35.</p>
<p style="text-align: justify; "><a href="#_ftnref13">[13]</a> Many thorny political differences exist between the US and many states (including India and Kenya, who I am told has expressed preliminary support for the Draft Resolution) with regard to Internet governance. Irrespective of this, the US Constitution’s First Amendment and judicial protections to freedom of expression remain a yardstick for many states, including India. India, for instance, has positively referred to the US Supreme Court’s free speech protections in many of its decisions; <i>ex. see</i> Kharak Singh v. State of Uttar Pradesh, 1963 Cri. L.J. 329; R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/good-intentions-going-awry-i-why-india2019s-proposal-at-the-itu-is-troubling-for-internet-freedoms'>https://cis-india.org/internet-governance/blog/good-intentions-going-awry-i-why-india2019s-proposal-at-the-itu-is-troubling-for-internet-freedoms</a>
</p>
No publishergeethaCryptographyPrivacyCybersecurityInternet GovernanceFreedom of Speech and ExpressionChilling EffectMulti-stakeholderAnonymityITU2014-11-02T15:13:45ZBlog EntryReport on CIS' Workshop at the IGF:'An Evidence Based Framework for Intermediary Liability'
https://cis-india.org/internet-governance/report-on-cis-workshop-at-igf
<b>An evidence based framework for intermediary liability' was organised to present evidence and discuss ongoing research on the changing definition, function and responsibilities of intermediaries across jurisdictions.</b>
<p style="text-align: justify; ">The discussion from the workshop will contribute to a comprehensible framework for liability, consistent with the capacity of the intermediary and with international human-rights standards.</p>
<p style="text-align: justify; ">Electronic Frontier Foundation (USA), Article 19 (UK) and Centre for Internet and Society (India) have come together towards the development of best practices and principles related to the regulation of online content through intermediaries. The nine principles are: Transparency, Consistency, Clarity, Mindful Community Policy Making, Necessity and Proportionality in Content Restrictions, Privacy, Access to Remedy, Accountability, and Due Process in both Legal and Private Enforcement. The workshop discussion will contribute to a comprehensible framework for liability that is consistent with the capacity of the intermediary and with international human-rights standards. The session was hosted by Centre for Internet and Society (India) and Centre for Internet and Society, Stanford (USA) and attended by 7 speakers and 40 participants.</p>
<p style="text-align: justify; ">Jeremy Malcolm, Senior Global Policy Analyst EFF kicked off the workshop highlighting the need to develop a liability framework for intermediaries that is derived out of an understanding of their different functions, their role within the economy and their impact on human rights. He went on to structure the discussion which would follow to focus on ongoing projects and examples that highlight central issues related to gathering and presenting evidence to inform the policy space.</p>
<p style="text-align: justify; ">Martin Husovec from the International Max Planck Research School for Competition and Innovation, began his presentation, tracking the development of safe harbour frameworks within social contract theory. Opining that safe harbour was created as a balancing mechanism between a return of investments of the right holders and public interest for Internet as a public space, he introduced emerging claims that technological advancement have altered this equilibrium. Citing injunctions and private lawsuits as instruments, often used against law abiding intermediaries, he pointed to the problem within existing liability frameoworks, where even intermediaries, who diligently deal with illegitimate content on their services, can be still subject to a forced cooperation to the benefit of right holders. He added that for liability frameworks to be effective, they must keep pace with advances in technology and are fair to right holders and the public interest.</p>
<p style="text-align: justify; ">He also pointed that in any liability framework because the ‘law’ that prescribes an interference, must be always sufficiently clear and foreseeable, as to both the meaning and nature of the applicable measures, so it sufficiently outlines the scope and manner of exercise of the power of interference in the exercise of the rights guaranteed. He illustrated this with the example of the German Federal Supreme Court attempts with Wi-Fi policy-making in 2010. He also raised issues of costs of uncertainty in seeking courts as the only means to balance rights as they often, do not have the necessary information. Similarly, society also does not benefit from open ended accountability of intermediaries and called for a balanced approach to regulation.</p>
<p style="text-align: justify; ">The need for consistency in liability regimes across jurisdictions, was raised by Giancarlo Frosio, Intermediary Liability Fellow at Stanford's Centre for Internet and Society. He introduced the World Intermediary Liability Map, a project mapping legislation and case law across 70 countries towards creating a repository of information that informs policymaking and helps create accountability. Highlighting key takeaways from his research, he stressed the necessity of having clear definitions in the field of intermediary liability and the need to develop taxonomy of issues to deepen our understanding of the issues at stake towards an understanding of type of liability appropriate for a particular jurisdiction.</p>
<p style="text-align: justify; ">Nicolo Zingales, Assistant Professor of Law at Tilburg University highlighted the need for due process and safeguards for human rights and called for more user involvement in systems that are in place in different countries to respond to requests of takedown. Presenting his research findings, he pointed to the imbalance in the way notice and takedown regimes are structured, where content is taken down presumptively, but the possibility of restoring user content is provided only at a subsequent stage or not at all in many cases. He cited several examples of enhancing user participation in liability mechanisms including notice and notice, strict litigation sanction inferring the knowledge that the content might have been legal and shifting the presumption in favor of the users and the reverse notice and takedown procedure. He also raised the important question, if multistakeholder cooperation is sufficient or adequate to enable the users to have a say and enter as part of the social construct in this space? Reminding the participants of the failure of the multistakeholder agreement process regarding the cost for the filters in the UK, that would be imposed according to judicial procedure, he called for strengthening our efforts to enable users to get more involved in protecting their rights online.</p>
<p style="text-align: justify; ">Gabrielle Guillemin from Article 19 presented her research on the types of intermediaries and models of liability in place across jurisdictions. Pointing to the problems associated with intermediaries having to monitor content and determine legality of content, she called for procedural safeguards and stressed the need to place the dispute back in the hands of users and content owners and the person who has written the content rather than the intermediary. She goes on to provide some useful and practically-grounded solutions to strengthen existing takedown mechanisms including, adding details to the notices, introducing fees in order to extend the number of claims that are made and defining procedure regards criminal content.</p>
<p style="text-align: justify; ">Elonnai Hickok introduced CIS' research to the UNESCO report Fostering Freedom Online: the Role of Internet Intermediaries, comparing a range of liability models in different stages of development and provisions across jurisdictions. She argued for a liability framework that tackles procedural and regulatory uncertainty, lack of due process, lack of remedy and varying content criteria.</p>
<p style="text-align: justify; ">Francisco Vera, Advocacy Director, Derechos Digitales from Chile raised issues related to mindful community policy-making expounding on Chile's implementation of intermediary liability obligation with the USA, the introduction of judicial oversight under Chilean legislation which led to US objection to Chile on grounds of not fulfilling their standards in terms of Internet property protection. He highlighted the tensions that arise in balancing the needs of the multiple communities and interests engaged over common resources and stressed the need for evidence in policy-making to balance the needs of rights holders and public interest. He stressed the need for evidence to inform policy-making and ensure it keeps pace with technological developments citing the example of the ongoing Transpacific Partnership Agreement negotiations that call for exporting provisions DMCA provisions to 11 countries even though there is no evidence of the success of the system for public interest. He concluded by cautioning against the development of frameworks that are or have the potential to be used as anti-competitive mechanisms that curtail innovation and therby do not serve public interest.</p>
<p style="text-align: justify; ">Malcolm Hutty associated with the European Internet Service Providers Association, Chair of the Intermediary Reliability Committee and London Internet Exchange brought in the intermediaries' perspective into the discussion. He argued for challenging the link between liability and forced cooperation, understated the problems arising from distinction without a difference and incentives built in within existing regimes. He raised issues arising from the expectancy on the part of those engaged in pre-emptive regulation of unwanted or undesirable content for intermediaries to automate content. Pointing to the increasing impact of intermediaries in our lives he underscored how exposing vast areas of people's lives to regulatory enforce, which enhances power of the state to implement public policy in the public interest and expect it to be executed, can have both positive and negative implications on issues such as privacy and freedom of expression.</p>
<p style="text-align: justify; ">He called out practices in regulatory regimes that focus on one size fits all solutions such as seeking automating filters on a massive scale and instead called for context and content specific solutions, that factor the commercial imperatives of intermediaries. He also addressed the economic consequences of liability frameworks to the industry including cost effectiveness of balancing rights, barriers to investments that arise in heavily regulated or new types of online services that are likely to be the targeted for specific enforcement measures and the long term costs of adapting old enforcement mechanisms that apply, while networks need to be updated to extend services to users.</p>
<p style="text-align: justify; ">The workshop presented evidence of a variety of approaches and the issues that arise in applying those approaches to impose liability on intermediaries. Two choices emerged towards developing frameworks for enforcing responsibility on intermediaries. We could either rely on a traditional approach, essentially court-based and off-line mechanisms for regulating behaviour and disputes. The downside of this is it will be slow and costly to the public purse. In particular, we will lose a great deal of the opportunity to extend regulation much more deeply into people's lives so as to implement the public interest.<br /><br />Alternatively, we could rely on intermediaries to develop and automate systems to control our online behaviour. While this approach does not suffer from efficiency problems of the earlier approach it does lack, both in terms of hindering the developments of the Information Society, and potentially yielding up many of the traditionally expected protections under a free and liberal society. The right approach lies somewhere in the middle and development of International Principles for Intermediary Liability, announced at the end of the workshop, is a step closer to the developing a balanced framework for liability.</p>
<hr />
<p>See the <a class="external-link" href="http://www.intgovforum.org/cms/174-igf-2014/transcripts/1968-2014-09-03-ws206-an-evidence-based-liability-policy-framework-room-5">transcript on IGF website</a>.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/report-on-cis-workshop-at-igf'>https://cis-india.org/internet-governance/report-on-cis-workshop-at-igf</a>
</p>
No publisherjyotiPrivacyFreedom of Speech and ExpressionInternet Governance ForumInternet GovernanceIntermediary Liability2014-09-24T10:47:30ZBlog EntryMulti-stakeholder Internet Governance: The Way Ahead
https://cis-india.org/internet-governance/events/multi-stakeholder-internet-governance-the-way-ahead
<b>The Centre for Internet and Society (CIS) in partnership with Software Freedom Law Centre (SFLC.in) is organizing a workshop "Multi-stakeholder Internet Governance: The Way Ahead" on August 6, 2014, 10.30 a.m. to 12.00 p.m., at during the APrIGF event to be held at Crown Plaza, Greater Noida.</b>
<h3>Thematic Area of Interest</h3>
<ul>
<li>Enhanced Cooperation & the Multi-stakeholder model</li>
</ul>
<p style="text-align: justify; "><b>Introduction</b>:<br />Today, multi-stakeholderism is the catchphrase in Internet governance. With the display of a multi-stakeholder model at NETmundial, controversies and opinions regarding the meaning, substance and benefits of multi-stakeholderism have deepened. As the recent meeting of the Working Group on Enhanced Cooperation of the United Nations Commission on Science, Technology and Development demonstrates, questions and concerns regarding meaning of multi-stakeholderism, the<br /><br />legitimacy and desirability of its processes, and the successes and disappointments of its outcomes now dominate the discussion. At this juncture, clarity and consensus are imperative to determine the future of multi-stakeholderism in Internet governance.</p>
<p style="text-align: justify; "><b>Roles and responsibilities of stakeholders</b>:<br />The debates surrounding stakeholder-roles in Internet governance began with ¶ 49 of the Geneva Declaration of Principles and ¶ 35 of the Tunis Agenda, which delineated clear roles and responsibilities. It created a ‘contributory’ multi-stakeholder model, where states held sovereign authority over public policy issues, while business and civil society were contributed to ‘important roles’ at the ‘technical and economic fields’ and the ‘community level’, respectively. At the same time, it set forth an agenda for enhanced cooperation.</p>
<p style="text-align: justify; ">As the WGEC meeting (April 30-May 2, 2014) demonstrated, there is as yet no consensus on stakeholder-roles. Certain governments remain strongly opposed to equal roles of other stakeholders, emphasizing their lack of accountability and responsibility. Civil society is similarly splintered, with a majority opposing the Tunis Agenda delineation of stakeholder-roles, while others remain dubious of permitting the private sector an equal footing in public policy-making. Still others question the wisdom of seeking a ‘fix’ when ‘nothing is broken’. In this session, we aim to interrogate the benefits and disadvantages of an ‘equal footing’ model, as opposed to a ‘contributory’ model.</p>
<h3 style="text-align: justify; ">Specific Issues of Discussions & Description</h3>
<p style="text-align: justify; ">Who are the stakeholders? Should a multi-stakeholder model of Internet governance grant all stakeholders ‘equal footing’? Should such ‘equal footing’ be relegated to issues other than substantive public policy-making? On the other hand, is a ‘contributory’ model safer? Are states better equipped to represent interests inclusively? How can governments and businesses best perform their role as trustees of the public interest of interest users?</p>
<p style="text-align: justify; ">In view of the formidable consolidation by the private sector at NETmundial, while civil society splintered on issues of intellectual property and intermediary liability, can a ‘participative model’ better prevent detrimental outcomes?</p>
<p style="text-align: justify; "><b>Multi-stakeholderism beyond NETmundial</b>:<br />As important as the meaning of multi-stakeholderism is the process of its execution. The need to fashion safe and sustainable processes for multi-stakeholder participation was highlighted by the successes and failures of private sector and civil society at NETmundial. From the ICANN and IGF models to stakeholder coalitions, premeeting coordination and governmental policy participation, this session shall expand on the quest for effective and beneficial stakeholder participation and representation in both the ‘equal footing’ and ‘contributory’ models, with a focus on enhancing developing country participation.</p>
<p style="text-align: justify; ">Particularly, lessons that Internet governance may draw from multi-stakeholder governance processes across areas shall be discussed. For instance, deliberative democracy, enterprise associations or unions (such as in the International Labour Organisation) may all be of value. Similarly, multi-stakeholder processes in environmental and corporate governance and the development sector may benefit Internet governance. In determining the value of these processes to Internet governance, public interest of users is an important consideration. The capability and initiative of governments to implement an effective bottom-up model of Internet governance is equally important and will be considered.</p>
<p style="text-align: justify; ">We aim to conduct a 90-minute workshop (2 panels of 45 minutes each), inclusive of 15-30 minutes in all for Q&A from audience, panellists and moderators.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/events/multi-stakeholder-internet-governance-the-way-ahead'>https://cis-india.org/internet-governance/events/multi-stakeholder-internet-governance-the-way-ahead</a>
</p>
No publisherpraskrishnaFreedom of Speech and ExpressionEventInternet Governance2014-07-29T07:08:04ZEventMinimising Legal Risks of Online Intermediaries while Protecting User Rights
https://cis-india.org/internet-governance/events/minimising-legal-risks-of-online-intermediaries-while-protecting-user-rights
<b>The Centre for Internet and Society (CIS) in partnership with Software Freedom Law Centre (SFLC.in) is organizing a workshop during the APrIGF event to be held at Crown Plaza, Greater Noida on August 5, 2014, 3.30 p.m. to 5.00 p.m. Jyoti Panday will be a panelist.</b>
<h3>Thematic Area of Interest</h3>
<ul>
<li>Internet business in the Asia Pacific region</li>
</ul>
<ul>
<li>Consumer protection for users of global Internet services</li>
</ul>
<ul>
<li>Internet for socio-economic development</li>
</ul>
<h3></h3>
<h3>Specific Issues of Discussions & Description</h3>
<p style="text-align: justify; ">Internet usage in the Asia Pacific region has been growing at a phenomenal rate and online service providers have benefited enormously from this growth. However, the region poses challenges for online service providers in terms of legal risks involved with respect to user generated content. Across the world from Europe to the US, it has been an accepted policy that service providers on the Internet cannot be held liable for user-generated content and this principle has found place in legislations enacted in this field in most countries. However, the Asian region has often seen blocking of services and websites due to user-generated content that is deemed to be illegal. There needs to be a debate on safe harbour provisions for intermediaries and the take-down provisions in legislations to ensure that the right to freedom of expression of citizens are protected while maintaining an environment that permits innovation in this space.</p>
<p style="text-align: justify; ">The workshop will also consider the different classes of intermediaries, how they differ functionally and if their differing roles should bear an impact on their responsibility with regards to protection of rights of users. Traditional models of consumer protection are based on distinguishing the roles and responsibilities of suppliers, facilitators and consumers. While developing consumer protection models for online intermediary platforms, their evolving roles and responsibilities as a supplier and a facilitator need to be considered. Intermediary platforms have also created and highlighted new consumer relations and issues that call for robust and fluid reddressal mechanisms.</p>
<p style="text-align: justify; ">The need to reflect on reddressal mechanisms for consumer issues pertaining to online intermediaries is also necessary, given the economic implications associated with intermediary liability. Failure to protect intermediaries stems innovation and restricts growth of start-ups and small to medium enterprises in the digital economy and has negative financial implications. Moreover, intermediaries are crucial in connecting developing countries to global markets and a failure to protect them, creates a barrier to information exchange and capacity building.</p>
<p style="text-align: justify; ">The panel will discuss the following issues:</p>
<ul>
<li>Take-down procedures and Put-back provisions used in various countries in the region</li>
<li>Safe-harbour provisions for intermediaries</li>
<li>Need for classification of Intermediaries for the purpose of a take-down regime and user rights</li>
<li>Rights of users of services provided by online intermediaries </li>
<li>Recommendations for a balanced intermediary liability regime</li>
</ul>
<h3 style="text-align: justify; "></h3>
<h3 style="text-align: justify; ">Expected Format and Confirmed Panel Members</h3>
<p>The workshop will be a ninety minute panel divided in two sessions of forty five minutes each. The proposed panel includes:</p>
<p style="text-align: justify; "><b>Mishi Choudhary</b> (Moderator) SFLC.IN Civil Society India<br />Mishi Choudhary is the founding director of SFLC India. She started working with SFLC in New York following the completion of her fellowship during which she earned her LLM from Columbia Law School and was a Stone Scholar. In addition to her LLM, she has an LLB and a bachelors degree in political science from the University of Delhi, India.</p>
<p style="text-align: justify; "><b>Jyoti Panday</b>, Center for Internet and Society, Civil Society, India <br />Jyoti Panday is Programme Officer at the Centre for Internet and Society working on Internet governance and on issues related to the role and responsibility of intermediaries in protecting user rights and freedom of expression. She has experience in strategy, campaign management and research on issues and processes related to the development agenda, sustainability and democracy. She has completed her MSc in Public Policy from Queen Mary, University of London.</p>
<p style="text-align: justify; "><b>Shahzad Ahmed</b>, Bytes for All Pakistan, Civil Society, Pakistan<br />Shahzad Ahmad is the Country Coordinator of Bytes for All, Pakistan and founder of the Digital Rights Institute (DRI). He is currently working on issues of ICT policy advocacy, internet rights and freedom of expression. He is a development communications expert and is at the forefront of the Internet Rights movement in Pakistan.</p>
<p style="text-align: justify; ">Mr. Ahmad is a Diplo Fellow, Executive Board Member of the Association for Progressive Communications, Advisory Board Member of .PK ccTLD and a member of the International Advisory Board of Privacy International, UK. He regularly contributes to various publications and research studies on ICTs for development, freedom of expression and gender related issues. Widely travelled, he regularly participates in various forums at local, regional and global level. Mr. Ahmad maintains a strong engagement with broader civil society networks and strongly believes in participation and openness.</p>
<p style="text-align: justify; "><b>Professor KS Park</b>, Korea University Law School Professor <br />One of the founders of Open Net Korea, Professor Park has written and is active in internet, free speech, privacy, defamation, copyright, international business contracting, etc. He has given expert testimonies in high-profile free speech cases including the /Minerva /case, the internet real name verification case, the military’s subversive book blacklisting case, the newspaper consumers’ boycott case, and the Park Jung-Geun Retweet case. As a result, the “false news” crime and the internet real name verification laws were struck down as unconstitutional, Park Jung-Geun and Minerva acquitted, the soldiers challenging book blacklisting reinstated, the newspaper boycotters acquitted partially as to the “secondary boycotting” charge (2010-2013).</p>
<p style="text-align: justify; ">Since 2006, he serves as the Executive Director of the PSPD Law Center, a non-profit entity that has organized several impact litigations in the areas of free speech, privacy, and copyright. There, the Law Center won the world’s first damage lawsuit against a copyright holder for “bad faith” takedown (2009) and the first damage lawsuit against a portal for warrantless disclosure of the user identity data to the police (2012).</p>
<p style="text-align: justify; "><b>Arvind Gupta</b>, National Head-Information and Technology, Government/ BJP Political party, India<br />National Head, BJP Information Technology Cell</p>
<p style="text-align: justify; "><b>Faisal Farooqui</b>, CEO, MouthShut.com, Private Sector, India<br />Faisal Farooqui is a highly recognized entrepreneur who is among the trailblazers of his generation. Faisal has founded and managed two successful Internet and technology companies -MouthShut.com, India's largest consumer review and social media portal and Zarca Interactive, a Virginia based enterprise survey and feedback company.</p>
<p style="text-align: justify; "><b>Ramanjit Singh Chima</b>, Google, Private Sector, India<br />Raman Jit Singh Chima serves as Policy Counsel and Government Affairs Manager for Google, based in New Delhi. He currently helps lead Google'spublic policy and government affairs work in India. He is a graduate of the Bachelors in Arts and Law (Honours) programme of the National Law School of India University, Bangalore. While at the National Law School, he was Chief Editor of the Indian Journal of Law and Technology. He has studied Internet regulation as an independent research fellow with the Sarai programme of the Centre for the Study of Developing Societies and contributed to Freedom House's 2009 Freedom on the Internet report.</p>
<p style="text-align: justify; "><b>Apar Gupta</b>, Legal, India <br />Apar Gupta is a practicing lawyer in Delhi working as a Partner at the law firm of Advani & Co. His practice areas include, commercial litigation and arbitration with a focus on technology and media. Apar as a retained counsel, represents an internet industry organisation in government affairs, including consultations on draft laws and policies which effect the sector. These issues include legal risks of intermediaries, media freedom and consumer rights. He has completed his masters in law from Columbia Law School, New York and has written columns for the Business Standard, Indian Express and the Pioneer on legal issues. Apar also is a visiting faculty at National Law University, Delhi.</p>
<h3 style="text-align: justify; ">Full Name, Affiliation and Contact Details of the Workshop Organizer</h3>
<p>The workshop will be jointly organised by SFLC.IN and the Centre for Internet & Society, India. The details of the contact person for the workshop is given below:</p>
<ol>
<li>Name: Ms. Mishi Choudhary, Executive Director, SFLC.IN I<br />E: mishi@softwarefreedom.org</li>
<li>Jyoti Panday—Centre for Internet & Society, India<br />E: jyoti@cis-india.org</li>
</ol>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/events/minimising-legal-risks-of-online-intermediaries-while-protecting-user-rights'>https://cis-india.org/internet-governance/events/minimising-legal-risks-of-online-intermediaries-while-protecting-user-rights</a>
</p>
No publisherpraskrishnaFreedom of Speech and ExpressionInternet GovernanceEventIntermediary Liability2014-07-29T07:50:51ZEventGNI 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 EntryFree Speech and Surveillance
https://cis-india.org/internet-governance/blog/free-speech-and-surveillance
<b>Gautam Bhatia examines the constitutionality of surveillance by the Indian state. </b>
<p style="text-align: justify; ">The Indian surveillance regime has been the subject of <a href="http://india.blogs.nytimes.com/2013/07/10/how-surveillance-works-in-india/?_php=true&_type=blogs&_r=0">discussion</a> for quite some time now. Its nature and scope is controversial. The Central Monitoring System, through which the government can obtain direct access to call records, appears to have the potential to be used for bulk surveillance, although official claims emphasise that it will only be implemented in a targeted manner. The <a href="http://timesofindia.indiatimes.com/tech/tech-news/Govt-to-launch-internet-spy-system-Netra-soon/articleshow/28456222.cms">Netra system</a>, on the other hand, is certainly about dragnet collection, since it detects the communication, via electronic media, of certain “keywords” (such as “attack”, “bomb”, “blast” and “kill”), no matter what context they are used in, and no matter who is using them.<span> </span></p>
<p style="text-align: justify; ">Surveillance is quintessentially thought to raise concerns about <i>privacy</i>. Over a <a href="http://indiankanoon.org/doc/845196/">series</a> of <a href="http://news.rediff.com/report/2010/apr/26/phone-tapping-what-1997-supreme-court-verdict-says.htm">decisions</a>, the Indian Supreme Court has read in the right to privacy into Article 21’s guarantee of the right to life and personal liberty. Under the Supreme Court’s (somewhat cloudy) precedents, privacy may only be infringed if there is a compelling State interest, and if the restrictive law is narrowly tailored – that is, it does not infringe upon rights to an extent greater than it needs to, in order to fulfill its goal. It is questionable whether bulk surveillance meets these standards.<span> </span></p>
<p style="text-align: justify; ">Surveillance, however, does not only involve privacy rights. It also implicated Article 19 – in particular, the Article 19(1)(a) guarantee of the freedom of expression, and the 19(1)(c) guarantee of the freedom of association.</p>
<p style="text-align: justify; "><span>Previously on this blog, we have discussed the “chilling effect” in relation to free speech. The chilling effect evolved in the context of defamation cases, where a combination of exacting standards of proof, and prohibitive damages, contributed to create a culture of self-censorship, where people would refrain from voicing even legitimate criticism for fear of ruinous defamation lawsuits. The chilling effect, however, is not restricted merely to defamation, but arises in free speech cases more generally, where vague and over-broad statutes often leave the border of the permitted and the prohibited unclear.</span></p>
<p style="text-align: justify; "><span>Indeed, a few years before it decided </span><i>New York Times v. Sullivan</i><span>, which brought in the chilling effect doctrine into defamation and free speech law, the American Supreme Court applies a very similar principle in a surveillance case. In </span><a href="http://supreme.justia.com/cases/federal/us/357/449/case.html"><i>NAACP v. Alabama</i></a><span>, the National Association for the Advancement of Coloured People (NAACP), which was heavily engaged in the civil rights movement in the American deep South, was ordered by the State of Alabama to disclose its membership list. NAACP challenged this, and the Court held in its favour. It specifically connected freedom of speech, freedom of association, and the impact of surveillance upon both:</span></p>
<p style="text-align: justify; "><i> “Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the “liberty” assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the</i><i> </i><i>effect of curtailing the freedom to associate is subject to the closest scrutiny… it is hardly a novel perception that <span>compelled disclosure</span> of affiliation with groups engaged in advocacy may constitute</i> [an]<i> effective a restraint on freedom of association… this Court has recognized the vital relationship between freedom to associate and privacy in one’s associations. <span>Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs</span>.”</i></p>
<p style="text-align: justify; "><i> </i></p>
<p style="text-align: justify; "><i> </i>In other words, if persons are not assured of privacy in their association with each other, they will tend to self-censor both who they associate with, and what they say to each other, especially when unpopular groups, who have been historically subject to governmental or social persecution, are involved. Indeed, this was precisely the <a href="https://www.aclu.org/national-security/aclu-v-clapper-challenge-nsa-mass-phone-call-tracking">argument</a> that the American Civil Liberties Union (ACLU) made in its constitutional challenge to PRISM, the American bulk surveillance program. In addition to advancing a Fourth Amendment argument from privacy, the ACLU also made a First Amendment freedom of speech and association claim, arguing that the knowledge of bulk surveillance had made – or at least, was likely to have made – politically unpopular groups wary of contacting it for professional purposes (the difficulty, of course, is that any chilling effect argument effectively requires proving a negative).<span> </span></p>
<p style="text-align: justify; ">If this argument holds, then it is clear that Articles 19(1)(a) and 19(1)(c) are <i>prima facie</i> infringed in cases of bulk – or even other forms of – surveillance. Two conclusions follow: <i>first</i>, that any surveillance regime needs statutory backing. Under <a href="http://indiankanoon.org/doc/493243/">Article 19(2),</a> reasonable restrictions upon fundamental rights can only be imposed by <i>law</i>, and not be executive fiat (the same argument applies to Article 21 as well).</p>
<p style="text-align: justify; ">Assuming that a statutory framework <i>is</i> brought into force, the crucial issue then becomes whether the restriction is a reasonable one, in service of one of the stated 19(2) interests. The relevant part of Article 19(2) permits reasonable restrictions upon the freedom of speech and expression “in the interests of… the security of the State [and] public order.” The Constitution does not, however, provide a test for determining when a restriction can be legitimately justified as being “in the interests of” the security of the State, and of public order. There is not much relevant precedent with respect to the first sub-clause, but there happens to be an extensive – although conflicted – jurisprudence dealing with the public order exception.</p>
<p style="text-align: justify; ">One line of cases – characterised by <a href="http://indiankanoon.org/doc/553290/"><i>Ramji Lal Modi v. State of UP</i></a><i> </i>and <a href="http://indiankanoon.org/doc/1475436/"><i>Virendra v. State of Punjab</i></a> – has held that the phrase “for the interests of” is of very wide ambit, and that the government has virtually limitless scope to make laws ostensibly for securing public order (this extends to prior restraint as well, something that Blackstone, writing in the 18<sup>th</sup> century, found to be illegal!). The other line of cases, such as <a href="http://indiankanoon.org/doc/1386353/"><i>Superintendent v. Ram Manohar Lohia</i></a> and <a href="http://www.indiankanoon.org/doc/341773/"><i>S. Rangarajan v. P. Jagjivan Ram</i></a>, have required the government to satisfy a stringent burden of proof. In <i>Lohia</i>, for instance, Ram Manohar Lohia’s conviction for encouraging people to break a tax law was reversed, the Court holding that the relationship between restricting free speech and a public order justification must be “proximate”. In <i>Rangarajan</i>, the Court used the euphemistic image of a “spark in a powder keg”, to characterise the degree of proximity required. It is evident that under the broad test of <i>Ramji Lal Modi</i>, a bulk surveillance system is likely to be upheld, whereas under the narrow test of <i>Lohia</i>, it is almost certain not to be.</p>
<p style="text-align: justify; ">Thus, if the constitutionality of surveillance comes to Court, three issues will need to be decided: <i>first</i>, whether Articles 19(1)(a) and 19(1)(c) have been violated. <i>Secondly</i> – and if so – whether the “security of the State” exception is subject to the same standards as the “public order” exception (there is no reason why it should not be). And <i>thirdly</i>, which of the two lines of precedent represent the correct understanding of Article 19(2)?</p>
<hr style="text-align: justify; " />
<p style="text-align: justify; "><span><i>Gautam Bhatia — @gautambhatia88 on Twitter — is a graduate of the National Law School of India University (2011), and has just received an LLM from the Yale Law School. He blogs about the Indian Constitution at <a class="moz-txt-link-freetext" href="http://indconlawphil.wordpress.com/">http://indconlawphil.wordpress.com</a>. Here at CIS, he blogs on issues of online freedom of speech and expression.</i></span></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/free-speech-and-surveillance'>https://cis-india.org/internet-governance/blog/free-speech-and-surveillance</a>
</p>
No publisherGautam BhatiaNetraPrivacyFreedom of Speech and ExpressionSurveillanceCensorshipCentral Monitoring SystemArticle 19(1)(a)2014-07-07T04:59:59ZBlog EntryFacebook and its Aversion to Anonymous and Pseudonymous Speech
https://cis-india.org/internet-governance/blog/facebook-and-its-aversion-to-anonymous-and-pseudonymous-speech
<b>Jessamine Mathew explores Facebook's "real name" policy and its implications for the right to free speech. </b>
<p style="text-align: justify; ">The power to be unidentifiable on the internet has been a major reason for its sheer number of users. Most of the internet can now be freely used by anybody under a pseudonym without the fear of being recognised by anybody else. These conditions allow for the furtherance of free expression and protection of privacy on the internet, which is particularly important for those who use the internet as a medium to communicate political dissent or engage in any other activity which would be deemed controversial in a society yet not illegal. For example, an internet forum for homosexuals in India, discussing various issues which surround homosexuality may prove far more fruitful if contributors are given the option of being undetectable, considering the stigma that surrounds homosexuality in India, and the recent setting-aside of the Delhi High Court decision reading down Section 377 of the Indian Penal Code. The possibility of being anonymous or pseudonymous exists on many internet fora but on Facebook, the world’s greatest internet space for building connections and free expression, there is no sanction given to pseudonymous accounts as Facebook follows a real name policy. And as the <a href="http://www.nytimes.com/2014/06/27/technology/facebook-battles-manhattan-da-over-warrants-for-user-data.html?_r=0">recent decision</a> of a New York judge, disallowing Facebook from contesting warrants on private information of over 300 of its users, shows, there are clear threats to freedom of expression and privacy.</p>
<p style="text-align: justify; ">On the subject of using real names, Facebook’s Community Standards states, “Facebook is a community where people use their real identities. We require everyone to provide their real names, so you always know who you're connecting with. This helps keep our community safe.” Facebook’s Marketing Director, Randi Zuckerberg, <a href="http://www.dailymail.co.uk/news/article-2019544/Facebook-director-Randi-Zuckerberg-calls-end-internet-anonymity.html">bluntly dismissed</a> the idea of online anonymity as one that “has to go away” and that people would “behave much better” if they are made to use their real names. Apart from being a narrow-minded statement, she fails to realise that there are many different kinds of expression on the internet, from stories of sexual abuse victims to the views of political commentators, or indeed, whistleblowers, many of whom may prefer to use the platform without being identified. It has been decided in many cases that humans have a right to anonymity as it provides for the furtherance of free speech without the fear of retaliation or humiliation (<i>see </i>Talley v. California).<i> </i></p>
<p style="text-align: justify; ">While Facebook’s rationale behind wanting users to register for accounts with their own names is based on the goal of maintaining the security of other users, it is still a serious infraction on users’ freedom of expression, particularly when anonymous speech has been protected by various countries. Facebook has evolved from a private space for college students to connect with each other to a very public platform where not just social connections but also discussions take place, often with a heavily political theme. Facebook has been described as <a href="http://www.thenational.ae/news/uae-news/facebook-and-twitter-key-to-arab-spring-uprisings-report">instrumental</a> in the facilitation of communication during the Arab Spring, providing a space for citizens to effectively communicate with each other and organise movements. Connections on Facebook are no longer of a purely social nature but have extended to political and legal as well, with it being used to promote movements all through the country. Even in India, Facebook was the <a href="http://timesofindia.indiatimes.com/home/news/Facebook-Twitter-Google-change-face-of-Indian-elections/articleshow/34721829.cms">most widely adopted medium</a>, along with Twitter and Facebook, for discourse on the political future of the country during, before and after the 2014 elections. Earlier in 2011, Facebook was <a href="https://cis-india.org/news/web2.0-responds-to-hazare">used intensively</a> during the India Against Corruption movement. There were pages created, pictures and videos uploaded, comments posted by an approximate of 1.5 million people in India. In 2012, Facebook was also used to <a href="http://timesofindia.indiatimes.com/tech/social-media/Delhi-gang-rape-case-FacebookTwitter-fuels-rally-at-India-Gate/articleshow/17741529.cms">protest against the Delhi gang rape</a> with many coming forward with their own stories of sexual assault, providing support to the victim, organising rallies and marches and protesting about the poor level of safety of women in Delhi.</p>
<p style="text-align: justify; ">Much like its content policy, Facebook exhibits a number of discrepancies in the implementation of the anonymity ban. Salman Rushdie found that his Facebook account had been <a href="http://www.nytimes.com/2011/11/15/technology/hiding-or-using-your-name-online-and-who-decides.html?pagewanted=all&_r=0">suspended</a> and when it was reinstated after he sent them proof of identity, Facebook changed his name to the name on his passport, Ahmed Rushdie instead of the name he popularly goes by. Through a series of tweets, he criticised this move by Facebook, forcing him to display his birth name. Eventually Facebook changed his name back to Salman Rushdie but not before serious questions were raised regarding Facebook’s policies. The Moroccan activist Najat Kessler’s account was also <a href="https://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=5&cad=rja&uact=8&ved=0CD8QFjAE&url=http%3A%2F%2Fjilliancyork.com%2F2010%2F04%2F08%2Fon-facebook-deactivations%2F&ei=O1KxU-fwH8meugSZ74HgAg&usg=AFQjCNE7oUt2dyrSjpTskK7Oz3Q1OYXudg&sig2=bsOu46nmABTUhArhdjDCVw&bvm=bv.69837884,d.c2E">suspended</a> as it was suspected that she was using a fake name. Facebook has also not just stopped at suspending individual user accounts but has also removed pages and groups because the creators used pseudonyms to create and operate the pages in question. This was seen in the case of Wael Ghonim who created a group which helped in mobilizing citizens in Egypt in 2011. Ghonim was a Google executive who did not want his online activism to affect his professional life and hence operated under a pseudonym. Facebook temporarily <a href="http://www.newsweek.com/how-wael-ghonim-sparked-egypts-uprising-68727">removed</a> the group due to his pseudonymity but later reinstated it.</p>
<p style="text-align: justify; ">While Facebook performs its due diligence when it comes to some accounts, it has still done nothing about the overwhelmingly large number of obviously fake accounts, ranging from Santa Claus to Jack the Ripper. On my own Facebook friend list, there are people who have entered names of fictional characters as their own, clearly violating the real name policy. I once reported a pseudonymous account that used the real name of another person. Facebook thanked me for reporting the account but also said that I will “probably not hear back” from them. The account still exists with the same name. The redundancy of the requirement lies in the fact that Facebook does not request users to upload some form identification when they register with the site but only when they suspect them to be using a pseudonym. Since Facebook also implements its policies largely only on the basis of complaints by other users or the government, the real name policy makes many political dissidents and social activists the target of abuse on the internet.</p>
<p style="text-align: justify; ">Further, Articles 21 and 22 of the ICCPR grant all humans the right to free and peaceful assembly. As governments increasingly crack down on physical assemblies of people fighting for democracy or against legislation or conditions in a country, the internet has proved to be an extremely useful tool for facilitating this assembly without forcing people to endure the wrath of governmental authorities. A large factor which has promoted the popularity of internet gatherings is the way in which powerful opinions can be voice without the fear of immediate detection. Facebook has become the coveted online space for this kind of assembly but their policies and more particularly, faulty implementation of the policies, lead to reduced flows of communication on the site.</p>
<p style="text-align: justify; ">Of course, Facebook’s fears of cyberbullying and harassment are likely to materialise if there is absolutely no check on the identity of users. A possible solution to the conflict between requiring real names to keep the community safe and still allowing individuals to be present on the network without the fear of identification by anybody would be to ask users to register with their own names but still allowing them to create a fictional name which would be the name that other Facebook users can see. Under this model, Facebook can also deal with the issue of safety through their system of reporting against other users. If a pseudonymous user has been reported by a substantial number of people for harassment or any other cause, then Facebook may either suspend the account or remove the content that is offensive. If the victim of harassment chooses to approach a judicial body, then Facebook may reveal the real name of the user so that due process may be followed. At the same time, users who utilise the website to present their views and participate in the online process of protest or contribute to free expression in any other way can do so without the fear of being detected or targeted. Safety on the site can be maintained even without forcing users to reveal their real names to the world. The system that Facebook follows currently does not help curb the presence of fake accounts and neither does it promote completely free expression on the site.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/facebook-and-its-aversion-to-anonymous-and-pseudonymous-speech'>https://cis-india.org/internet-governance/blog/facebook-and-its-aversion-to-anonymous-and-pseudonymous-speech</a>
</p>
No publisherJessamine MathewSocial MediaPrivacyFreedom of Speech and ExpressionFacebookChilling EffectAnonymityPseudonimityArticle 19(1)(a)2014-07-04T07:53:07ZBlog EntryAn Evidence based Intermediary Liability Policy Framework: Workshop at IGF
https://cis-india.org/internet-governance/blog/igf-workshop-an-evidence-based-intermediary-liability-policy-framework
<b>CIS is organising a workshop at the Internet Governance Forum 2014. The workshop will be an opportunity to present and discuss ongoing research on the changing definition of intermediaries and their responsibilities across jurisdictions and technologies and contribute to a comprehensible framework for liability that is consistent with the capacity of the intermediary and with international human-rights standards.</b>
<p style="text-align: justify; ">The Centre for Internet and Society, India and Centre for Internet and Society, Stanford Law School, USA, will be organising a workshop to analyse the role of intermediary platforms in relation to freedom of expression, freedom of information and freedom of association at the Internet Governance Forum 2014. <span>The aim of the workshop is to highlight the increasing importance of digital rights and broad legal protections of stakeholders in an increasingly knowledge-based economy. The workshop will discuss public policy issues associated with Internet intermediaries, in particular their roles, legal responsibilities and related liability limitations in context of the evolving nature and role of intermediaries in the Internet ecosystem. distinct</span></p>
<p style="text-align: justify; "><b>Online Intermediaries: Setting the context</b></p>
<p style="text-align: justify; ">The Internet has facilitated unprecedented access to information and amplified avenues for expression and engagement by removing the limits of geographic boundaries and enabling diverse sources of information and online communities to coexist. Against the backdrop of a broadening base of users, the role of intermediaries that enable economic, social and political interactions between users in a global networked communication is ubiquitous. Intermediaries are essential to the functioning of the Internet as many producers and consumers of content on the internet rely on the action of some third party–the so called intermediary. Such intermediation ranges from the mere provision of connectivity, to more advanced services such as providing online storage spaces for data, acting as platforms for storage and sharing of user generated content (UGC), or platforms that provides links to other internet content.</p>
<p style="text-align: justify; ">Online intermediaries enhance economic activity by reducing costs, inducing competition by lowering the barriers for participation in the knowledge economy and fuelling innovation through their contribution to the wider ICT sector as well as through their key role in operating and maintaining Internet infrastructure to meet the network capacity demands of new applications and of an expanding base of users.</p>
<p style="text-align: justify; ">Intermediary platforms also provide social benefits, by empowering users and improving choice through social and participative networks, or web services that enable creativity and collaboration amongst individuals. By enabling platforms for self-expression and cooperation, intermediaries also play a critical role in establishing digital trust, protection of human rights such as freedom of speech and expression, privacy and upholding fundamental values such as freedom and democracy.</p>
<p style="text-align: justify; ">However, the economic and social benefits of online intermediaries are conditional to a framework for protection of intermediaries against legal liability for the communication and distribution of content which they enable.</p>
<p style="text-align: justify; "><b>Intermediary Liability</b></p>
<p style="text-align: justify; ">Over the last decade, right holders, service providers and Internet users have been locked in a debate on the potential liability of online intermediaries. The debate has raised global concerns on issues such as, the extent to which Internet intermediaries should be held responsible for content produced by third parties using their Internet infrastructure and how the resultant liability would affect online innovation and the free flow of knowledge in the information economy?</p>
<p style="text-align: justify; ">Given the impact of their services on communications, intermediaries find themselves as either directly liable for their actions, or indirectly (or “secondarily”) liable for the actions of their users. Requiring intermediaries to monitor the legality of the online content poses an insurmountable task. Even if monitoring the legality of content by intermediaries against all applicable legislations were possible, the costs of doing so would be prohibitively high. Therefore, placing liability on intermediaries can deter their willingness and ability to provide services, hindering the development of the internet itself.</p>
<p style="text-align: justify; ">Economics of intermediaries are dependent on scale and evaluating the legality of an individual post exceeds the profit from hosting the speech, and in the absence of judicial oversight can lead to a private censorship regime. Intermediaries that are liable for content or face legal exposure, have powerful incentives, to police content and limit user activity to protect themselves. The result is curtailing of legitimate expression especially where obligations related to and definition of illegal content is vague. Content policing mandates impose significant compliance costs limiting the innovation and competiveness of such platforms.</p>
<p style="text-align: justify; ">More importantly, placing liability on intermediaries has a chilling effect on freedom of expression online. Gate keeping obligations by service providers threaten democratic participation and expression of views online, limiting the potential of individuals and restricting freedoms. Imposing liability can also indirectly lead to the death of anonymity and pseudonymity, pervasive surveillance of users' activities, extensive collection of users' data and ultimately would undermine the digital trust between stakeholders.</p>
<p style="text-align: justify; ">Thus effectively, imposing liability for intermediaries creates a chilling effect on Internet activity and speech, create new barriers to innovation and stifles the Internet's potential to promote broader economic and social gains. To avoid these issues, legislators have defined 'safe harbours', limiting the liability of intermediaries under specific circumstances.</p>
<p style="text-align: justify; ">Online intermediaries do not have direct control of what information is or information are exchanged via their platform and might not be aware of illegal content per se. A key framework for online intermediaries, such limited liability regimes provide exceptions for third party intermediaries from liability rules to address this asymmetry of information that exists between content producers and intermediaries.</p>
<p style="text-align: justify; ">However, it is important to note, that significant differences exist concerning the subjects of these limitations, their scope of provisions and procedures and modes of operation. The 'notice and takedown' procedures are at the heart of the safe harbour model and can be subdivided into two approaches:</p>
<p style="text-align: justify; ">a. Vertical approach where liability regime applies to specific types of content exemplified in the US Digital Copyright Millennium Act</p>
<p style="text-align: justify; ">b. Horizontal approach based on the E-Commerce Directive (ECD) where different levels of immunity are granted depending on the type of activity at issue</p>
<p style="text-align: justify; "><b>Current framework </b></p>
<p style="text-align: justify; ">Globally, three broad but distinct models of liability for intermediaries have emerged within the Internet ecosystem:</p>
<p style="text-align: justify; ">1. Strict liability model under which intermediaries are liable for third party content used in countries such as China and Thailand</p>
<p style="text-align: justify; ">2. Safe harbour model granting intermediaries immunity, provided their compliance on certain requirements</p>
<p style="text-align: justify; ">3. Broad immunity model that grants intermediaries broad or conditional immunity from liability for third party content and exempts them from any general requirement to monitor content. <b> </b></p>
<p style="text-align: justify; ">While the models described above can provide useful guidance for the drafting or the improvement of the current legislation, they are limited in their scope and application as they fail to account for the different roles and functions of intermediaries. Legislators and courts are facing increasing difficulties, in interpreting these regulations and adapting them to a new economic and technical landscape that involves unprecedented levels user generated content and new kinds of and online intermediaries.</p>
<p style="text-align: justify; ">The nature and role of intermediaries change considerably across jurisdictions, and in relation to the social, economic and technical contexts. In addition to the dynamic nature of intermediaries the different categories of Internet intermediaries‘ are frequently not clear-cut, with actors often playing more than one intermediation role. Several of these intermediaries offer a variety of products and services and may have number of roles, and conversely, several of these intermediaries perform the same function. For example , blogs, video services and social media platforms are considered to be 'hosts'. Search engine providers have been treated as 'hosts' and 'technical providers'.</p>
<p style="text-align: justify; ">This limitations of existing models in recognising that different types of intermediaries perform different functions or roles and therefore should have different liability, poses an interesting area for research and global deliberation. Establishing classification of intermediaries, will also help analyse existing patterns of influence in relation to content for example when the removal of content by upstream intermediaries results in undue over-blocking.</p>
<p style="text-align: justify; ">Distinguishing intermediaries on the basis of their roles and functions in the Internet ecosystem is critical to ensuring a balanced system of liability and addressing concerns for freedom of expression. Rather than the highly abstracted view of intermediaries as providing a single unified service of connecting third parties, the definition of intermediaries must expand to include the specific role and function they have in relation to users' rights. A successful intermediary liability regime must balance the needs of producers, consumers, affected parties and law enforcement, address the risk of abuses for political or commercial purposes, safeguard human rights and contribute to the evolution of uniform principles and safeguards.</p>
<p style="text-align: justify; "><b>Towards an evidence based intermediary liability policy framework</b></p>
<p style="text-align: justify; ">This workshop aims to bring together leading representatives from a broad spectrum of stakeholder groups to discuss liability related issues and ways to enhance Internet users’ trust.</p>
<p style="text-align: justify; ">Questions to address at the panel include:</p>
<p style="text-align: justify; ">1. What are the varying definitions of intermediaries across jurisdictions?</p>
<p style="text-align: justify; ">2. What are the specific roles and functions that allow for classification of intermediaries?</p>
<p style="text-align: justify; ">3. How can we ensure the legal framework keeps pace with technological advances and the changing roles of intermediaries?</p>
<p style="text-align: justify; ">4. What are the gaps in existing models in balancing innovation, economic growth and human rights?</p>
<p style="text-align: justify; ">5. What could be the respective role of law and industry self-regulation in enhancing trust?</p>
<p style="text-align: justify; ">6. How can we enhance multi-stakeholder cooperation in this space?</p>
<p style="text-align: justify; ">Confirmed Panel:</p>
<p style="text-align: justify; ">Technical Community: Malcolm Hutty: Internet Service Providers Association (ISPA)<br />Civil Society: Gabrielle Guillemin: Article19<br />Academic: Nicolo Zingales: Assistant Professor of Law at Tilburg University<br />Intergovernmental: Rebecca Mackinnon: Consent of the Networked, UNESCO project<br />Civil Society: Anriette Esterhuysen: Association for Progressive Communication (APC)<br />Civil Society: Francisco Vera: Advocacy Director: Derechos Digitale<br />Private Sector: Titi Akinsanmi: Policy and Government Relations Manager, Google Sub-Saharan Africa<br />Legal: Martin Husovec: MaxPlanck Institute</p>
<p style="text-align: justify; "><b> </b></p>
<p style="text-align: justify; "><span>Moderator(s): </span><span>Giancarlo Frosio, Centre for Internet and Society (CIS) and </span><span>Jeremy Malcolm, Electronic Frontier Foundation </span></p>
<p style="text-align: justify; "><span><span>Remote Moderator: </span><span>Anubha Sinha, New Delhi</span></span></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/igf-workshop-an-evidence-based-intermediary-liability-policy-framework'>https://cis-india.org/internet-governance/blog/igf-workshop-an-evidence-based-intermediary-liability-policy-framework</a>
</p>
No publisherjyotihuman rightsDigital Governanceinternet governanceFreedom of Speech and ExpressionInternet Governance ForumHuman Rights OnlineIntermediary LiabilityPoliciesMulti-stakeholder2014-07-04T06:41:10ZBlog EntryFree Speech and Civil Defamation
https://cis-india.org/internet-governance/blog/free-speech-and-civil-defamation
<b>Does defamation become a tool in powerful hands to suppress criticism? Gautam Bhatia examines the strict and unrealistic demands of defamation law, and concludes that defamation suits are a weapon to silence dissent and bad press. </b>
<p style="text-align: justify; "><b> </b>Previously on this blog, we have discussed one of the under-analysed aspects of Article 19(2) – contempt of court. In the last post, we discussed the checking – or “watchdog” – function of the press. There is yet another under-analysed part of 19(2) that we now turn to – one which directly implicates the press, in its role as public watchdog. This is the issue of defamation.</p>
<p style="text-align: justify; ">Unlike contempt of court – which was a last-minute insertion by Ambedkar, before the second reading of the draft Constitution in the Assembly – defamation was present in the restrictions clause since the Fundamental Rights Sub-Committee’s first draft, in 1947. Originally, it accompanied libel and slander, before the other two were dropped for the simpler “reasonable restrictions… in the interests of… defamation.” Unlike the other restrictions, which provoked substantial controversy, defamation did not provoke extended scrutiny by the Constituent Assembly.</p>
<p style="text-align: justify; "><span>In hindsight, that was a lapse. In recent years, defamation lawsuits have emerged as a powerful weapon against the press, used primarily by individuals and corporations in positions of power and authority, and invariably as a means of silencing criticism. For example, Hamish MacDonald’s </span><i>The Polyester Prince</i><span>, a book about the Ambanis, </span><a href="http://www.rediff.com/money/2000/jul/26dalal.htm">was unavailable</a><span> in Indian bookshops, because of threats of defamation lawsuits. In January, Bloomsbury </span><a href="http://www.dnaindia.com/mumbai/report-praful-patel-descent-of-air-india-and-the-killing-of-a-critical-book-1951582">withdrew</a><span> </span><i>The Descent of Air India</i><span>, which was highly critical of ex-Aviation Minister Praful Patel, after the latter filed a defamation lawsuit. Around the same time, Sahara initiated a 200 crore lawsuit against Tamal Bandyopadhayay, a journalist with </span><i>The Mint</i><span>, for his forthcoming book, </span><i>Sahara: The Untold Story</i><span>. Sahara even managed to get a stay order from a Calcutta High Court judge, who </span><a href="http://www.indiankanoon.org/doc/136055468/">cited</a><span> one paragraph from the book, and ruled that “</span><i>Prima facie, the materials do seem to show the plaintiffs in poor light</i><span>.” The issue has since been settled out of Court. Yet there is no guarantee that Bandyopadhyay would have won on merits, even with the absurd amount claimed as damages, given that a Pune Court awarded damages of </span><i>Rs. 100 crores </i><span>to former Justice P.B. Sawant against the Times Group, for a fifteen-second clip by a TV channel that accidentally showed his photograph next to the name of a judge who was an accused in a scam. What utterly takes the cake, though, is Infosys </span><a href="http://www.thehindu.com/news/national/infosys-slaps-defamation-notice-on-three-newspapers/article6098717.ece">serving</a><span> legal notices to three journalistic outlets recently, asking for damages worth Rs. 200 crore for “</span><i>loss of reputation and goodwill due to circulation of defamatory articles</i><span>.”</span><span> </span></p>
<p style="text-align: justify; ">Something is very wrong here. The plaintiffs are invariably politicians or massive corporate houses, and the defendants are invariably journalists or newspapers. The subject is always critical reporting. The damages claimed (and occasionally, awarded) are astronomical – enough to cripple or destroy any business – and the actual harm is speculative. A combination of these factors, combined with a broken judicial system in which trials take an eternity to progress, leading to the prospect of a lawsuit hanging perpetually over one’s head, and financial ruin just around the corner, clearly has the potential to create a highly effective chilling effect upon newspapers, when it come to critical speech on matters of public interest.</p>
<p style="text-align: justify; "><span>One of the reasons that this happens, of course, is that extant defamation law </span><i>allows</i><span> it to happen. Under defamation law, as long as a statement is published, is defamatory (that is, tending to lower the reputation of the plaintiff in the minds of reasonable people) and refers to the plaintiff, a </span><i>prima facie </i><span>case of defamation is made out. The burden then shifts to the defendant to argue a justification, such as truth, or fair comment, or privileged communication. Notice that defamation, in this form, is a strict liability offence: that is, the publisher cannot save himself even if he has taken due care in researching and writing his story. Even an inadvertent factual error can result in liability. Furthermore, there are many things that straddle a very uncomfortable barrier between “fact” and “opinion” (“opinions” are generally not punishable for defamation): for example, if I call you “corrupt”, have I made a statement of fact, or one of opinion? Much of reporting – especially political reporting – falls within this slipstream.</span></p>
<p style="text-align: justify; ">The legal standard of defamation, therefore, puts almost all the burden upon the publisher, a burden that will often be impossible to discharge – as well as potentially penalising the smallest error. Given the difficulty in fact-checking just about everything, as well as the time pressures under which journalists operate, this is an unrealistic standard. What makes things even worse, however, is that there is no cap on damages, <i>and </i>that the plaintiff need not even demonstrate <i>actual</i> harm in making his claims. Judges have the discretion to award punitive damages, which are meant to serve both as an example and as a deterrent. When Infosys claims 2000 crores, therefore, it need not show that there has been a tangible drop in its sales, or that it has lost an important and lucrative contract – let alone showing that the loss was caused by the defamatory statement. All it needs to do is make abstract claims about loss of goodwill and reputation, which are inherently difficult to verify either way, and it stands a fair chance of winning.</p>
<p style="text-align: justify; ">A combination of onerous legal standards and crippling amounts in damages makes the defamation regime a very difficult one for journalists to operate freely in. We have discussed before the crucial role that journalists play in a system of free speech whose underlying foundation is the maintenance of democracy: a free press is essential to maintaining a check upon the actions of government and other powerful players, by subjecting them to scrutiny and critique, and ensuring that the public is aware of important facts that government might be keen to conceal. In chilling journalistic speech, therefore, defamation laws strike at the heart of Article 19(1)(a). When considering what the appropriate standards ought to be, a Court therefore must consider the simple fact that if defamation – as it stands today – is compromising the core of 19(1)(a) itself, then it is certainly not a “reasonable restriction” under 19(2) (some degree of proportionality is an important requirement for 19(2) reasonableness, as the Court has held many times).</p>
<p style="text-align: justify; ">This is not, however, a situation unique to India. In Singapore, <a href="http://news.bbc.co.uk/2/hi/asia-pacific/7632830.stm">for instance</a>, “[<i>political] leaders have won hundreds of thousands of dollars in damages in defamation cases against critics and foreign publications, which they have said are necessary to protect their reputations from unfounded attacks</i>” – the defamation lawsuit, indeed, was reportedly a legal strategy used by Lee Kuan Yew against political opponents.<span> </span></p>
<p style="text-align: justify; ">Particularly in the United States, the European Union and South Africa, however, this problem has been recognised, and acted upon. In the next post, we shall examine some of the legal techniques used in those jurisdictions, to counter the chilling effect that strict defamation laws can have on the press.</p>
<p style="text-align: justify; ">We discussed the use of civil defamation laws as weapons to stifle a free and critical press. One of the most notorious of such instances also birthed one of the most famous free speech cases in history: <a href="http://supreme.justia.com/cases/federal/us/376/254/case.html"><i>New York Times v. Sullivan</i></a>. This was at the peak of the civil rights movement in the American South, which was accompanied by widespread violence and repression of protesters and civil rights activists. A full-page advertisement was taken out in the New York Times, titled <i>Heed Their Rising Voices</i>, which detailed some particularly reprehensible acts by the police in Montgomery, Alabama. It also contained some factual errors. For example, the advertisement mentioned that Martin Luther King Jr. had been arrested seven times, whereas he had only been arrested four times. It also stated that the Montgomery police had padlocked students into the university dining hall, in order to starve them into submission. That had not actually happened. On this basis, Sullivan, the Montgomery police commissioner, sued for libel. The Alabama courts awarded 500,000 dollars in damages. Because five other people in a situation similar to Sullivan were also suing, the total amount at stake was three million dollars – enough to potentially boycott the New York Times, and certainly enough to stop it from publishing about the civil rights movement.</p>
<p style="text-align: justify; ">In his book about the <i>Sullivan </i>case, <i>Make No Law</i>, Anthony Lewis notes that the stakes in the case were frighteningly high. The civil rights movement depended, for its success, upon stirring public opinion in the North. The press was just the vehicle to do it, reporting as it did on excessive police brutality against students and peaceful protesters, practices of racism and apartheid, and so on. <i>Sullivan</i> was a legal strategy to silence the press, and its weapon of choice was defamation law.</p>
<p style="text-align: justify; ">In a 9 – 0 decision, the Supreme Court found for the New York Times, and changed the face of free speech law (and, according to Lewis, saved the civil rights movement). Writing for the majority, Justice Brennan made the crucial point that in order to survive, free speech needed “breathing space” – that is, the space to make errors. Under defamation law, as it stood, “<i>the pall of fear and timidity imposed upon those who would give voice to public criticism [is] an atmosphere in which the First Amendment freedoms cannot survive</i>.” And under the burden of proving truth, <i>“would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is, in fact, true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which "steer far wider of the unlawful zone." </i>For these reasons, Justice Brennan laid down an “actual malice” test for defamation – that is, insofar as the statement in question concerned the conduct of a public official, it was actionable for defamation only if the publisher either knew it was false, or published it with “reckless disregard” for its veracity. After <i>New York Times</i>, this standard has expanded, and the press has never lost a defamation case.</p>
<p style="text-align: justify; ">There are some who argue that in its zeal to protect the press against defamation lawsuits by the powerful, the <i>Sullivan </i>court swung the opposite way. In granting the press a near-unqualified immunity to say whatever it wanted, it subordinated the legitimate interests of people to their reputation and their dignity to an intolerable degree, and ushered in a regime of media unaccountability. This is evidently what the South African courts felt. In <a href="https://www.google.com/search?q=khulamo+vs+holomisa&oq=khulamo+vs+holomisa&aqs=chrome..69i57.6996j0j4&sourceid=chrome&es_sm=119&ie=UTF-8"><i>Khulamo v. Holomisa</i></a>, Justice O’Regan accepted that the common law of defamation would have to be altered so as to reflect the new South African Constitution’s guarantees of the freedom of speech. Much like Justice Brennan, she noted that <i>“</i><i>the media are important agents in ensuring that government is open, responsive and accountable to the people as the founding values of our Constitution require</i>”, as well as the chilling effect in requiring journalists to prove the truth of everything they said. Nonetheless, she was not willing to go as far as the American Supreme Court did. Instead, she cited a previous decision by the Supreme Court of Appeals, and incorporated a “resonableness standard” into defamation law. That is, “<i>if a publisher cannot establish the truth, or finds it disproportionately expensive or difficult to do so, the publisher may show that in all the circumstances the publication was reasonable. In determining whether publication was reasonable, a court will have regard to the individual’s interest in protecting his or her reputation in the context of the constitutional commitment to human dignity. It will also have regard to the individual’s interest in privacy. In that regard, there can be no doubt that persons in public office have a diminished right to privacy, though of course their right to dignity persists. It will also have regard to the crucial role played by the press in fostering a transparent and open democracy. The defence of reasonable publication avoids therefore a winner-takes-all result and establishes a proper balance between freedom of expression and the value of human dignity. Moreover, the defence of reasonable publication will encourage editors and journalists to act with due care and respect for the individual interest in human dignity prior to publishing defamatory material, without precluding them from publishing such material when it is reasonable to do so.”</i></p>
<p style="text-align: justify; ">The South African Constitutional Court thus adopts a middle path between the two opposite zero-sum games that are traditional defamation law, and American first amendment law. A similar effort was made in the United Kingdom – the birthplace of the common law of defamation – with the passage of the <a href="http://www.legislation.gov.uk/ukpga/2013/26/pdfs/ukpga_20130026_en.pdf">2013 Defamation Act.</a> Under English law, the plaintiff must now show that there is likely to be “<i>serious harm</i>” to his reputation, and there is also public interest exception.</p>
<p style="text-align: justify; ">While South Africa and the UK try to tackle the problem at the level of standards for defamation, the ECHR has taken another, equally interesting tack: by limiting the quantum of damages. In <a href="http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57947#%7B"><i>Tolstoy Milolasky v. United Kingdom</i></a>, it found a 1.5 million pound damage award “disproportionately large”, and held that there was a violation of the ECHR’s free speech guarantee that could not be justified as necessary in a democratic society.</p>
<p style="text-align: justify; ">Thus, constitutional courts the world over have noticed the adverse impact traditional defamation law has on free speech and a free press. They have devised a multiplicity of ways to deal with this, some more speech-protective than others: from America’s absolutist standards, to South Africa’s “reasonableness” and the UK’s “public interest” exceptions, to the ECHR’s limitation of damages. It is about time that the Indian Courts took this issue seriously: there is no dearth of international guidance.</p>
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<p style="text-align: justify; "><span><i>Gautam Bhatia — @gautambhatia88 on Twitter — is a graduate of the National Law School of India University (2011), and has just received an LLM from the Yale Law School. He blogs about the Indian Constitution at <a class="moz-txt-link-freetext" href="http://indconlawphil.wordpress.com/">http://indconlawphil.wordpress.com</a>. Here at CIS, he blogs on issues of online freedom of speech and expression.</i></span></p>
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For more details visit <a href='https://cis-india.org/internet-governance/blog/free-speech-and-civil-defamation'>https://cis-india.org/internet-governance/blog/free-speech-and-civil-defamation</a>
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No publishergautamCensorshipDefamationFreedom of Speech and ExpressionChilling EffectArticle 19(1)(a)2014-07-08T08:31:18ZBlog EntryFOEX Live: June 16-23, 2014
https://cis-india.org/internet-governance/blog/foex-live-june-16-23-2014
<b>A weekly selection of news on online freedom of expression and digital technology from across India (and some parts of the world). </b>
<p style="text-align: justify; "><span>A quick and non-exhaustive perusal of this week’s content shows that many people are worried about the state of India’s free speech following police action on account of posts derogatory to or critical of the Prime Minister. Lawyers, journalists, former civil servants and other experts have joined in expressing this worry.</span></p>
<p style="text-align: justify; ">While a crackdown on freedom of expression would indeed be catastrophic and possibly unconstitutional, fears are so far based on police action in only 4 recent cases: Syed Waqar in Karnataka, Devu Chodankar in Goa and two cases in Kerala where college students and principals were arrested for derogatory references to Modi. Violence in Pune, such as the murder of a young Muslim man on his way home from prayer, or the creation of a Social Peace Force of citizens to police offensive Facebook content, are all related, but perhaps ought to be more carefully and deeply explored.</p>
<h3 style="text-align: justify; ">Kerala:</h3>
<p style="text-align: justify; ">In the Assembly, State Home Minister Ramesh Chennithala <a href="http://www.telegraphindia.com/1140618/jsp/nation/story_18524231.jsp#.U6kh1Y2SxDs">said that the State government did not approve</a> of the registration of cases against students on grounds of anti-Modi publications. The Minister denunciation of political opponents through cartoons and write-ups was common practice in Kerala, and “<i>booking the authors for this was not the state government’s policy</i>”.<span> </span></p>
<h3 style="text-align: justify; ">Maharashtra:</h3>
<p style="text-align: justify; ">Nearly 20,000 people have <a href="http://www.iol.co.za/scitech/technology/internet/peace-force-takes-aim-at-facebook-1.1705842#.U6khAI2SxDs">joined</a> the Social Peace Force, a Facebook group that aims to police offensive content on the social networking site. The group owner’s stated aim is to target religious posts that may provoke riots, not political ones. Subjective determinations of what qualifies as ‘offensive content’ remain a troubling issue.</p>
<h3><span>Tamil Nadu:</span></h3>
<p style="text-align: justify; ">In Chennai, 101 people, including filmmakers, writers, civil servants and activists, have <a href="http://timesofindia.indiatimes.com/City/Chennai/Intelligentsia-ask-CM-to-ensure-screening-of-Lankan-movie/articleshow/37107317.cms">signed a petition</a> requesting Chief Minister J. Jayalalithaa to permit safe screening of the Indo-Sri Lankan film “<i>With You, Without You</i>”. The petition comes after theatres cancelled shows of the film following threatening calls from some Tamil groups.</p>
<h3 style="text-align: justify; ">Telangana:</h3>
<p style="text-align: justify; ">The K. Chandrasekhar Rao government <a href="http://www.newslaundry.com/2014/06/23/channels-on-the-telangana-block/">has blocked</a> two Telugu news channels for airing content that was “<i>derogatory, highly objectionable and in bad taste</i>”.</p>
<p style="text-align: justify; ">The Telagana government’s decision to block news channels has its supporters. Padmaja Shaw <a href="http://www.thehoot.org/web/When-media-threatens-democracy/7593-1-1-14-true.html">considers</a> the mainstream Andhra media contemptuous and disrespectful of “<i>all things Telangana</i>”, while Madabushi Sridhar <a href="http://www.thehoot.org/web/Abusive-media-vs-angry-legislature/7591-1-1-2-true.html">concludes</a> that Telugu channel TV9’s coverage violates the dignity of the legislature.</p>
<h3><span>West Bengal:</span></h3>
<p style="text-align: justify; ">Seemingly anti-Modi arrests <a href="http://www.telegraphindia.com/1140617/jsp/nation/story_18520612.jsp#.U6kh142SxDs">have led to worry</a> among citizens about speaking freely on the Internet. Section 66A poses a particular threat.</p>
<h3><span>News & Opinion:</span></h3>
<p style="text-align: justify; ">The Department of Telecom is preparing a draft of the National Telecom Policy, in which it <a class="external-link" href="http://articles.economictimes.indiatimes.com/2014-06-19/news/50710986_1_national-broadband-policy-broadband-penetration-175-million-broadband-connections">plans to treat broadband Internet as a basic right</a>. The Policy, which will include deliberations on affordable broadband access for end users, will be finalised in 100 days.</p>
<p style="text-align: justify; "><span>While addressing a CII CEO’s Roundtable on Media and Industry, Information and Broadcasting Minister </span><a href="http://www.indiantelevision.com/regulators/i-and-b-ministry/government-committed-to-communicating-with-people-across-media-platforms-javadekar-140619">Prakash Javadekar promised</a><span> a transparent and stable policy regime, operating on a time-bound basis. He promised that efforts would be streamlined to ensure speedy and transparent clearances.</span></p>
<p style="text-align: justify; ">A perceived increase in police action against anti-Modi publications or statements <a href="http://www.dw.de/indias-anti-modi-netizens-fear-possible-crackdown/a-17725267">has many people worried</a>. But the Prime Minister himself was once a fierce proponent of dissent; in protest against the then-UPA government’s blocking of webpages, Modi changed his display pic to black.</p>
<p style="text-align: justify; "><i><a href="http://www.medianama.com/2014/06/223-social-media-helpline-mumbai/">Medianama wonders</a></i> whether the Mumbai police’s Cyber Lab and helpline to monitor offensive content on the Internet is actually a good idea.</p>
<p style="text-align: justify; "><a href="http://www.livemint.com/Opinion/vGkg6ig9qJqzm2eL3SxkUK/Time-for-Modi-critics-to-just-shut-up.html">G. Sampath wonders</a> why critics of the Prime Minister Narendra Modi can’t voluntarily refrain from exercising their freedom of speech, and allow India to be an all-agreeable development haven. Readers may find his sarcasm subtle and hard to catch.</p>
<p style="text-align: justify; ">Experts in India <a href="http://www.business-standard.com/article/current-affairs/does-eu-s-right-to-be-forgotten-put-barrier-on-the-net-114062400073_1.html">mull over</a> whether Section 79 of the Information Technology Act, 2000, carries a loophole enabling users to exercise a ‘right to be forgotten’. Some say Section 79 does not prohibit user requests to be forgotten, while others find it unsettling to provide private intermediaries such powers of censorship.</p>
<h3><span>Some parts of the world:</span></h3>
<p style="text-align: justify; ">Sri Lanka <a href="http://www.canindia.com/2014/06/sri-lanka-bans-meetings-that-can-incite-religious-hatred/">has banned</a> public meetings or rallies intended to promote religious hatred.</p>
<p style="text-align: justify; ">In Pakistan, Twitter <a href="http://www.outlookindia.com/news/article/Twitter-Restores-Access-to-Blasphemous-Material-in-Pak/845254">has restored</a> accounts and tweets that were taken down last month on allegations of being blasphemous or ‘unethical’.</p>
<p style="text-align: justify; ">In Myanmar, an anti-hate speech network <a href="http://www.mmtimes.com/index.php/national-news/10785-anti-hate-speech-network-proposed.html">has been proposed</a> throughout the country to raise awareness and opposition to hate speech and violence.</p>
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<p style="text-align: justify; "><span>For feedback, comments and any incidents of online free speech violation you are troubled or intrigued by, please email Geetha at </span><span>geetha[at]cis-india.org or on Twitter at @covertlight.</span></p>
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For more details visit <a href='https://cis-india.org/internet-governance/blog/foex-live-june-16-23-2014'>https://cis-india.org/internet-governance/blog/foex-live-june-16-23-2014</a>
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No publishergeethaSocial MediaFreedom of Speech and ExpressionFOEX LiveCensorshipSection 66AArticle 19(1)(a)2014-06-24T10:23:18ZBlog EntryWSIS+10 High Level Event: A Bird's Eye Report
https://cis-india.org/internet-governance/blog/wsis-10-high-level-event-a-birds-eye-report
<b>The WSIS+10 High Level was organised by the ITU and collaborative UN entities on June 9-13, 2014. It aimed to evaluate the progress on implementation of WSIS Outcomes from Geneva 2003 and Tunis 2005, and to envision a post-2015 Development Agenda. Geetha Hariharan attended the event on CIS' behalf.</b>
<p style="text-align: justify; "><span>The World Summit on Information Society (WSIS) +10 </span><a href="http://www.itu.int/wsis/implementation/2014/forum/">High Level Event</a><span> (HLE) was hosted at the ITU Headquarters in Geneva, from June 9-13, 2014. The HLE aimed to review the implementation and progress made on information and communication technology (ICT) across the globe, in light of WSIS outcomes (</span><a href="http://www.itu.int/wsis/index-p1.html">Geneva 2003</a><span> and </span><a href="http://www.itu.int/wsis/index-p2.html">Tunis 2005</a><span>). Organised in three parallel tracks, the HLE sought to take stock of progress in ICTs in the last decade (High Level track), initiate High Level Dialogues to formulate the post-2015 development agenda, as well as host thematic workshops for participants (Forum track).</span><span> </span></p>
<h3 style="text-align: justify; ">The High Level Track:</h3>
<p style="text-align: justify; "><img src="https://cis-india.org/internet-governance/blog/copy2_of_HighLevelTrack.jpg/@@images/be5f993c-3553-4d63-bb66-7cd16f8407dc.jpeg" alt="High Level Track" class="image-inline" title="High Level Track" /></p>
<p style="text-align: justify; "><i>Opening Ceremony, WSIS+10 High Level Event </i>(<a class="external-link" href="https://twitter.com/ITU/status/334587247556960256/photo/1">Source</a>)</p>
<p style="text-align: justify; ">The High Level track opened officially on June 10, 2014, and culminated with the endorsement by acclamation (as is ITU tradition) of two <a href="http://www.itu.int/wsis/implementation/2014/forum/inc/doc/outcome/362828V2E.pdf">Outcome Documents</a>. These were: (1) WSIS+10 Statement on the Implementation of WSIS Outcomes, taking stock of ICT developments since the WSIS summits, (2) WSIS+10 Vision for WSIS Beyond 2015, aiming to develop a vision for the post-2015 global information society. These documents were the result of the WSIS+10 <a href="http://www.itu.int/wsis/review/mpp/">Multi-stakeholder Preparatory Platform</a> (MPP), which involved WSIS stakeholders (governments, private sector, civil society, international organizations and relevant regional organizations).</p>
<p style="text-align: justify; ">The <strong>MPP</strong> met in six phases, convened as an open, inclusive consultation among WSIS stakeholders. It was not without its misadventures. While ITU Secretary General Dr. Hamadoun I. Touré consistently lauded the multi-stakeholder process, and Ambassador Janis Karklins urged all parties, especially governments, to “<i>let the UN General Assembly know that the multi-stakeholder model works for Internet governance at all levels</i>”, participants in the process shared stories of discomfort, disagreement and discord amongst stakeholders on various IG issues, not least human rights on the Internet, surveillance and privacy, and multi-stakeholderism. Richard Hill of the Association for Proper Internet Governance (<a href="http://www.apig.ch/">APIG</a>) and the Just Net Coalition writes that like NETmundial, the MPP was rich in a diversity of views and knowledge exchange, but stakeholders <a href="http://www.ip-watch.org/2014/06/16/what-questions-did-the-wsis10-high-level-event-answer/">failed to reach consensus</a> on crucial issues. Indeed, Prof. Vlamidir Minkin, Chairman of the MPP, expressed his dismay at the lack of consensus over action line C9. A compromise was agreed upon in relation to C9 later.<span> </span></p>
<p style="text-align: justify; ">Some members of civil society expressed their satisfaction with the extensive references to human rights and rights-centred development in the Outcome Documents. While governmental opposition was seen as frustrating, they felt that the <strong><span style="text-decoration: underline;">MPP had sought and achieved a common understanding</span></strong>, a sentiment <a href="https://twitter.com/covertlight/status/476748168051580928">echoed</a> by the ITU Secretary General. Indeed, even Iran, a state that had expressed major reservations during the MPP and felt itself unable to agree with the text, <a href="https://twitter.com/covertlight/status/476748723750711297">agreed</a> that the MPP had worked hard to draft a document beneficial to all.</p>
<p style="text-align: justify; ">Concerns around the MPP did not affect the <strong><span style="text-decoration: underline;">review of ICT developments</span></strong> over the last decade. High Level Panels with Ministers of ICT from states such as Uganda, Bangladesh, Sweden, Nigeria, Saudi Arabia and others, heads of the UN Development Programme, UNCTAD, Food and Agriculture Organisation, UN-WOMEN and others spoke at length of rapid advances in ICTs. The focus was largely on ICT access and affordability in developing states. John E. Davies of Intel repeatedly drew attention to innovative uses of ICTs in Africa and Asia, which have helped bridge divides of affordability, gender, education and capacity-building. Public-private partnerships were the best solution, he said, to affordability and access. At a ceremony evaluating implementation of WSIS action-lines, the Centre for Development of Advanced Computing (C-DAC), India, <a href="https://twitter.com/covertlight/status/476748723750711297">won an award</a> for its e-health application MOTHER.</p>
<p style="text-align: justify; "><span>The Outcome Documents themselves shall be analysed in a separate post. But in sum, the dialogue around Internet governance at the HLE centred around the success of the MPP. Most participants on panels and in the audience felt this was a crucial achievement within the realm of the UN, where the Tunis Summit had delineated strict roles for stakeholders in paragraph 35 of the </span><a href="http://www.itu.int/wsis/docs2/tunis/off/6rev1.html">Tunis Agenda</a><span>. Indeed, there was palpable relief in Conference Room 1 at the </span><a href="http://www.cicg.ch/en/">CICG</a><span>, Geneva, when on June 11, Dr. Touré announced that the Outcome Documents would be adopted without a vote, in keeping with ITU tradition, even if consensus was achieved by compromise.</span></p>
<h3 style="text-align: justify; ">The High Level Dialogues:</h3>
<p style="text-align: justify; "><img src="https://cis-india.org/internet-governance/blog/HighLevelDialogues.jpg/@@images/3c30d94f-7a65-4912-bb42-2ccd3b85a18d.jpeg" alt="High Level Dialogues" class="image-inline" title="High Level Dialogues" /></p>
<p style="text-align: justify; "><i>Prof. Vladimir Minkin delivers a statement.</i> (<a class="external-link" href="https://twitter.com/JaroslawPONDER/status/476288845013843968/photo/1">Source</a>)</p>
<p style="text-align: justify; ">The High Level Dialogues on developing a post-2015 Development Agenda, based on WSIS action lines, were active on June 12. Introducing the Dialogue, Dr. Touré lamented the Millennium Development Goals as a “<i>lost opportunity</i>”, emphasizing the need to alert the UN General Assembly and its committees as to the importance of ICTs for development.</p>
<p style="text-align: justify; ">As on previous panels, there was <strong><span style="text-decoration: underline;">intense focus on access, affordability and reach in developing countries</span></strong>, with Rwanda and Bangladesh expounding upon their successes in implementing ICT innovations domestically. The world is more connected than it was in 2005, and the ITU in 2014 is no longer what it was in 2003, said speakers. But we lack data on ICT deployment across the globe, said Minister Knutssen of Sweden, recalling the gathering to the need to engage all stakeholders in this task. Speakers on multiple panels, including the Rwandan Minister for CIT, Marilyn Cade of ICANN and Petra Lantz of the UNDP, emphasized the need for ‘smart engagement’ and capacity-building for ICT development and deployment.</p>
<p style="text-align: justify; ">A crucial session on cybersecurity saw Dr. Touré envision a global peace treaty accommodating multiple stakeholders. On the panel were Minister Omobola Johnson of Nigeria, Prof. Udo Helmbrecht of the European Union Agency for Network and Information Security (ENISA), Prof. A.A. Wahab of Cybersecurity Malaysia and Simon Muller of Facebook. The focus was primarily on building laws and regulations for secure communication and business, while child protection was equally considered.<span> </span></p>
<p style="text-align: justify; ">The lack of laws/regulations for cybersecurity (child pornography and jurisdictional issues, for instance), or other legal protections (privacy, data protection, freedom of speech) in rapidly connecting developing states was noted. But the <strong><span style="text-decoration: underline;">question of cross-border surveillance and wanton violations of privacy went unaddressed</span></strong> except for the customary, unavoidable mention. This was expected. Debates in Internet governance have, in the past year, been silently and invisibly driven by the Snowden revelations. So too, at WSIS+10 Cybersecurity, speakers emphasized open data, information exchange, data ownership and control (the <a href="https://cis-india.org/internet-governance/blog/ecj-rules-internet-search-engine-operator-responsible-for-processing-personal-data-published-by-third-parties">right to be forgotten</a>), but did not openly address surveillance. Indeed, Simon Muller of Facebook called upon governments to publish their own transparency reports: A laudable suggestion, even accounting for Facebook’s own undetailed and truncated reports.</p>
<p style="text-align: justify; ">In a nutshell, the post-2015 Development Agenda dialogues repeatedly emphasized the importance of ICTs in global connectivity, and their impact on GDP growth and socio-cultural change and progress. The focus was on taking this message to the UN General Assembly, engaging all stakeholders and creating an achievable set of action lines post-2015.</p>
<h3 style="text-align: justify; ">The Forum Track:</h3>
<p><img src="https://cis-india.org/internet-governance/blog/copy_of_ForumTrack.jpg/@@images/dfcce68a-18d7-4f1e-897b-7208bb60abc9.jpeg" alt="Forum Track" class="image-inline" title="Forum Track" /></p>
<p><i>Participants at the UNESCO session on its Comprehensive Study on Internet-related Issues</i> (<a class="external-link" href="https://twitter.com/leakaspar/status/476690921644646400/photo/1">Source</a>)</p>
<p style="text-align: justify; ">The HLE was organized as an extended version of the WSIS Forum, which hosts thematic workshops and networking opportunities, much like any other conference. Running in parallel sessions over 5 days, the WSIS Forum hosted sessions by the ITU, UNESCO, UNDP, ICANN, ISOC, APIG, etc., on issues as diverse as the WSIS Action Lines, the future of Internet governance, the successes and failures of <a href="http://www.internetgovernance.org/2012/12/18/itu-phobia-why-wcit-was-derailed/">WCIT-2012</a>, UNESCO’s <a href="http://www.unesco.org/new/internetstudy">Comprehensive Study on Internet-related Issues</a>, spam and a taxonomy of Internet governance.<span> </span></p>
<p style="text-align: justify; ">Detailed explanation of each session I attended is beyond the scope of this report, so I will limit myself to the interesting issues raised.<span> </span></p>
<p style="text-align: justify; ">At ICANN’s session on its own future (June 9), Ms. Marilyn Cade emphasized the <strong><span style="text-decoration: underline;">importance of national and regional IGFs</span></strong> for both issue-awareness and capacity-building. Mr. Nigel Hickson spoke of engagement at multiple Internet governance fora: “<i>Internet governance is not shaped by individual events</i>”. In light of <a href="http://www.internetgovernance.org/2014/04/16/icann-anything-that-doesnt-give-iana-to-me-is-out-of-scope/">criticism</a> of ICANN’s apparent monopoly over IANA stewardship transition, this has been ICANN’s continual <a href="https://www.icann.org/resources/pages/process-next-steps-2014-06-06-en">response</a> (often repeated at the HLE itself). Also widely discussed was the <strong><span style="text-decoration: underline;">role of stakeholders in Internet governance</span></strong>, given the delineation of roles and responsibilities in the Tunis Agenda, and governments’ preference for policy-monopoly (At WSIS+10, Indian Ambassador Dilip Sinha seemed wistful that multilateralism is a “<i>distant dream</i>”).<span> </span></p>
<p style="text-align: justify; ">This discussion bore greater fruit in a session on Internet governance ‘taxonomy’. The session saw <a href="https://www.icann.org/profiles/george-sadowsky">Mr. George Sadowsky</a>, <a href="http://www.diplomacy.edu/courses/faculty/kurbalija">Dr. Jovan Kurbalija</a>, <a href="http://www.williamdrake.org/">Mr. William Drake</a> and <a href="http://www.itu.int/wsis/implementation/2014/forum/agenda/session_docs/170/ThoughtsOnIG.pdf">Mr. Eliot Lear</a> (there is surprisingly no official profile-page on Mr. Lear) expound on dense structures of Internet governance, involving multiple methods of classification of Internet infrastructure, CIRs, public policy issues, etc. across a spectrum of ‘baskets’ – socio-cultural, economic, legal, technical. Such studies, though each attempting clarity in Internet governance studies, indicate that the closer you get to IG, the more diverse and interconnected the eco-system gets. David Souter’s diagrams almost capture the flux of dynamic debate in this area (please see pages 9 and 22 of <a href="http://www.internetsociety.org/sites/default/files/ISOC%20framework%20for%20IG%20assessments%20-%20D%20Souter%20-%20final_0.pdf">this ISOC study</a>).</p>
<p style="text-align: justify; ">There were, for most part, insightful interventions from session participants. Mr. Sadowsky questioned the effectiveness of the Tunis Agenda delineation of stakeholder-roles, while Mr. Lear pleaded that techies be let to do their jobs without interference. <a href="http://internetdemocracy.in/">Ms. Anja Kovacs</a> raised pertinent concerns about <strong><span style="text-decoration: underline;">including voiceless minorities in a ‘rough consensus’ model</span></strong>. Across sessions, <strong><span style="text-decoration: underline;">questions of mass surveillance, privacy and data ownership rose</span></strong> from participants. The protection of human rights on the Internet – especially freedom of expression and privacy – made continual appearance, across issues like spam (<a href="http://www.itu.int/ITU-D/CDS/sg/rgqlist.asp?lg=1&sp=2010&rgq=D10-RGQ22.1.1&stg=1">Question 22-1/1</a> of ITU-D Study Group 1) and cybersecurity.</p>
<h3 style="text-align: justify; ">Conclusion:</h3>
<p style="text-align: justify; ">The HLE was widely attended by participants across WSIS stakeholder-groups. At the event, a great many relevant questions such as the future of ICTs, inclusions in the post-2015 Development Agenda, the value of muti-stakeholder models, and human rights such as free speech and privacy were raised across the board. Not only were these raised, but cognizance was taken of them by Ministers, members of the ITU and other collaborative UN bodies, private sector entities such as ICANN, technical community such as the ISOC and IETF, as well as (obviously) civil society.<span> </span></p>
<p style="text-align: justify; ">Substantively, the HLE did not address mass surveillance and privacy, nor of expanding roles of WSIS stakeholders and beyond. Processually, the MPP failed to reach consensus on several issues comfortably, and a compromise had to be brokered.</p>
<p style="text-align: justify; "><span>But perhaps a big change at the HLE was the positive attitude to multi-stakeholder models from many quarters, not least the ITU Secretary General Dr. Hamadoun Touré. His repeated calls for acceptance of multi-stakeholderism left many members of civil society surprised and tentatively pleased. Going forward, it will be interesting to track the ITU and the rest of UN’s (and of course, member states’) stances on multi-stakeholderism at the ITU Plenipot, the WSIS+10 Review and the UN General Assembly session, at the least.</span></p>
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For more details visit <a href='https://cis-india.org/internet-governance/blog/wsis-10-high-level-event-a-birds-eye-report'>https://cis-india.org/internet-governance/blog/wsis-10-high-level-event-a-birds-eye-report</a>
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No publishergeethaWSIS+10PrivacyCybersecurityHuman Rights OnlineSurveillanceFreedom of Speech and ExpressionInternet GovernanceFacebookData ProtectionMulti-stakeholderICANNInternet AccessITUInternet StudiesE-GovernanceICT2014-06-20T15:57:32ZBlog Entry