Centre for Internet and Society

Mufti Aijaz Arshad Qasmi v. Facebook and Ors (Order dated December 20, 2011)

pranesh — 2012-02-20T18:02:44Z

This is the order passed on December 20, 2011 by Addl. Civil Judge Mukesh Kumar of the Rohini Courts, New Delhi. All errors of spelling, syntax, logic, and law are present in the original.

Suit No 505/11

Mufti Aijaz Arshad Qasmi
vs.
Facebook etc.

20.12.11

Fresh suit received by assignment. It be checked and registered.

Present: Plaintiff in person with Ld. Counsel.

Ld. Counsel for plaintiff prayed for ex-parte ad-interim injunction. He has filed the present suit for permanent and mandatory injunction against 22 defendants who are running their social networking websites under the name of Facebook, Google India (P) Ltd., Yahoo India (P) Ltd., Microsoft India (P) Ltd., Orkut, Youtube etc as shown in the memo of parties in the plaint. It is submitted that plaintiff is an active citizen of India and residing at the given address and he believes in Secular, Socialist and Democratic India professing Muslim religion. It is further submitted that the contents which are uploaded by some of the miscreants through these social networking websites mentioned above are highly objectionable and unacceptable by any set of the society as the contents being published through the aforesaid websites are derogatory, per-se inflammatory and defamatory which cannot be acceptable by any of the society professing any religion. Even if the same is allowed to be published through these social networking websites and if anybody will take out the print and circulated amongst any of the community whether it is Muslim or Hindu or Sikh, then definitely there would be rioting at mass level which may result into serious law and order problem in the country. Where the miscreants have not even spare any of the religion, even they have created defamatory articles and pictures against the Prophet Mohammad, the Hindu goddess Durga, Laxmi, Lord Ganesha and many other Hindu gods which are being worshiped by the people of Hindu community. It is prayed by the counsel for plaintiff that the defendants may be directed to remove these defamatory and derogatory articles and pictures from their social websites and they should be restrained from publishing the same anywhere through Internet or in any manner. It is further submitted that the social websites are being utilised by the every person of whatever age of he is whether he is 7 years old or 80 years old. These defamatory articles will certainly corrupt not only young minds below the 18 years of age but also corrupt the minds of all age group persons. It is further submitted that even the miscreants have not spared the leaders of any political party whether it is BJP, Congress, Shiv Sena or any other political party doing their political activities in India, which may further vitiate the minds of every individual and may result into political rivalry by raising allegations against each other.

I have gone through the record carefully wherein the plaintiff has also filed a CD containing all the defamatory articles and photographs, plaintiff also wants to file certain defamatory and obscene photographs of the Prophet Mohammad and Hindu Gods and Goddesses. Photographs are returned to the plaintiff, although, the defamatory written articles are taken on record. Same be kept in sealed cover.

In my considered opinion, the photographs shown by the plaintiff having content of defamation and derogation against the sentiments of every community. In such circumstances, I am of the view that the plaintiff has a prima facie case in his favour. Moreover, balance of convenience also lies against the defendants and in favour of the plaintiff. Moreover, if the defendants will not be directed to remove the defamatory articles and contents from their social networking websites, then not only the plaintiff but every individual who is having religious sentiments would suffer irreparable loss and injury which cannot be compensated in terms of money. Accordingly, in view of the above discussion, taking in consideration the facts and circumstances and nature of the suit filed by the plaintiff where every time these social networking websites are being used by the public at large and there is every apprehension of mischief in the public, the defendants are hereby restrained from publishing the defamatory articles shown by the plaintiff and contained in the CD filed by the plaintiff immediately on service of this order and notice. Defendants are further directed to remove the same from their social networking websites.

Application under Order 39 Rule 1 & 2 CPC stands allowed and disposed of accordingly.

Summons be issued to the defendants on filing of PF/RO/Speed Post. The defendants having their addresses in different places may be served as per the provisions of Order 5 CPC. Reader of this court is directed to keep the documents and CD in a sealed cover. Plaintiff is directed to get served the defendants along with all the documents. Plaintiff is further directed to ensure the compliance of the provisions under Order 39 Rule 3 CPC and file an affidavit in this regard. Copy of this order be given dasti.

Put up for further proceedings on 24.12.11.

Sd/-
(Mukesh Kumar)
ACJ-cum-ARC, N-W
Rohini Courts, Delhi

For more details visit https://cis-india.org/internet-governance/resources/order-2011-12-20-mufti-aijaz-arshad-qasmi-v-facebook-and-ors

Section 200 Complaint in Vinay Rai v. Facebook India and Ors.

pranesh — 2012-02-20T16:22:35Z

This is the complaint filed by Vinay Rai against Facebook, Google, Microsoft, Yahoo, "Exboii" (sic), Shyni Blog, Topix, and others, under sections 200 and 156(3) of the Cr.P.C., read with sections 153A, 153B, 292, 293, 295A, 298, 109, 500, and 120B of the Indian Penal Code.

IN THE COURT OF ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, PATIALA HOUSE COURTS, NEW DELHI

Complaint Case No __ of 2011

In the matter of:

Vinay Rai
S/o Sh. Mahima Rai
10 A, First Floor, Pritvi Raj Road
New Delhi

... Complainant

Versus

Facebook India
Through its country head
Ms. Kirthiga Reddy
Office at : 4th Floor, Building-14, OPUS Towers, Mindspace, Cyberabad, APIIC SW Unit Layout, Madhapur, Hyderabad-500081
kirthiga@fb.com
07799021 119
FaceBook
Through its chairman
Donald Edward Graham
Facebook Corporate Office 1601 S. California Ave. Palo Alto, CA 94304
Google India (P) Ltd.
Orkut
Youtube
Blogspot
Through its Country head
Shri Rajan Anandan
8th and 9th Floors, Tower -- C, Building No.8, DLF Cyber City, Gurgacn - 122 002
Google
Youtube
Blogspot
Orkut
Through its CEO,
Larry Page - CEO
1600, Amphitheatre, Parkway, Mountain View, CA 94043, USA
Yahoo India (P) Ltd.
Shri Arun Tadanki
Building No. 8, Tower-C, DLF Cyber City Phase-2, Gurgaon
Yahoo
Roy J. Bostock - Chairman
Yahoo! Inc.701 1st Ave., Sunnyvale, CA 94089
Microsoft India (P) Ltd.
Shri Bhaskar Pramanik
7th Floor, Cyber Green Tower-A.
DLF Cyber City, Phase-3 Gurgaon-122002
Microsoft
Through Steve Ballmer - CEO Microsoft Corporation
One Microsoft Way, Redmond, WA 98052-7329 USA
Zombie Time
Exboii [sic]
Boardreader
IMC India
My Lot
Shyni Blog
Topix

...Accused

P.S. Tuglak Road

Complaint Under Section 200 Read With Section 156 (3) Of the Code of Criminal Procedure For Registration of FIR Under Section 153 (A), 153(B), 292, 293, 295(A), 298, 109, 500 and 120 B of the INDIAN PENAL CODE.

THE COMPLAINANT MOST RESPECTFULLY SHOWETH:

That the complainant is a law abiding citizen of India. The Complainant is a resident of above stated address.
The complainant before this Hon'ble Court is a senior journalist and editor of Akbari, an Urdu weekly.
That the complainant is moving to this Court as a citizen of India, not only in public interest but also as an affected person who believes in a secular India.
The accused persons are the publishers and service provider of the electronic contents and also responsible to manage and control online site and internet contents, who ever used and post the material on the site through internet.
That the complainant wishes to draw the attention of this Hon'ble Court to certain content hosted on various websites, which are per-se inflammatory, unacceptable by any set of community standards; seeks to create enmity, hatred and communal Violence amongst various religious communities; is demeaning, degrading and obscene, and will corrupt minds and will seriously affect religious sentiments . It is submitted that complainant had received some information about these type contents and material posted on the social site as well as sites of the above named accused and thereafter the complainant in his office at the above mentioned address while going through the contents of the above said websites realized that the same were unacceptable to the secular fabric provided by the constitution of India and would be intolerable to any community or religion.
That even on a bare perusal of the content it is clear that the same will certainly corrupt young minds below the age of 18 years is highly provocative and which may lead to illogical and dangerous consequences. It is humbly submitted that these contents prima facie appears to be dangerous for the society and communal harmony.
That such content, if allowed to be hosted on these websites would seriously damage the secular fabric of India and would severely hurt the sentiment of general public following different religions. Following are the websites which host the said objectionable content as provided to the Hon'ble court in a sealed envelope: 1.Facebook, 2.Youtube, 3. Google 4.Yahoo,5.0rkut, 6.Broadreader, 7. Mylot, 8.Zombie Time, 9.Shyni Blog, 10.Blogspot, 11.Exbii.com, 12.IMC India
That the accused persons are Social Networking Websites and their Directors, Agents with their addresses provided as per the memo of parties.
The Social Networking Websites are only for providing the educational, historical, research and entertainment work etc. as part of their commercial activities meaning thereby that the functions and informations which are regarding the welfare, development and entertainment of the society.
That on perusal of the same it has been found that presently there are so many objectionable materials available on these social networking websites which may lead to communal riots. It seems that the government authorities have turned a blind eye to the same and does not have any established measures or rules and guidelines to control and regulate the same. On the bare perusal of all these contents it is more than evident that the government is least bothered and as usual waiting for some dangerous consequences to happen before taking some appropriate actions . It is submitted that the neither police official nor the government had initiated any action to curve/check these activities sou moto and failed to registered any .case against the above named accused persons in any manner whatsoever under any law prevailing at present point of time and corrective measures against the said websites and the concerned officials.
That the main social networking websites are Google, Facebook, Youtube, Orkut, Broadreader, Mylot, Zomie Time, Shyni Blog, Blogspot, Exbii.com, IMC India. These accused persons knowingly well these facts that these contents and materials are most dangerous for the community and peace of the harmony, but with common and malfide intention and hands under glove with each other failed to remove the same for the wrongful gain.
That the complainant is filing this complaint against the Directors, Agents, Officials, Representatives and Employees of all the said Social Networking Websites for having committed the offences under Section 153 (A), 153(B), 292, 293, 295(A), 298 and 500 of the IPC, which this hon'ble court will appreciate even on a bare glance of the contents provided in the sealed cover. The same is being provided to this hon'ble court in a sealed cover understanding my social responsibility not to publicize the offensive and inflammatory material which may lead to communal disharmony.
That the nature of the content hosted on each of these websites are ex-facie scurrilous, defamatory, prejudicial to the maintenance of harmony between different religions and communities, likely to cause fear and generate a feeling of insecurity amongst members of religious communities, obscene by any criteria of community standards of obscenity, seeks to corrupt young minds, malicious and insulting to religions and religious beliefs of certain communities and is intended to wound the religious feelings of persons and under no stretch of imagination be considered to be under freedom of speech and expression . The contents hosted on the websites are annexed to this complaint in a sealed cover as Annexure - A.
That Perusal of the content will lead to the conclusion that the same is per-se unacceptable. It is humbly submitted that the contents of the site are clearly established the offences punishable under provisions mentioned in the above and if the action will taken against the accused person the same will be caused serious prejudice to our society and social value provided and protected under constitution of India.
That as a member of the community, The complainant is not only individually hurt but also believe that if such content is allowed to continue to be on these platforms in this form, then incalculable and irreparable damage will be caused to the secular fabric of India. All those who are responsible for allowing this content to be hosted on the websites conspired with those who are the source of such content, and those who are promoting such material to malice and defame the country with intention to spread the communal violence to destabilise the country with undisclosed persons are liable to be prosecuted and punished under these Sections 153 (A), 153(B), 292, 293, 295(A), 298,109, 500 and 120B of the INDIAN PENAL CODE.
That the contents which are shown on the social networking websites are clearly showing and instigating enmity between different groups on the grounds of religion, race, place of birth, residence, language etc. and doing acts prejudicial to maintenance of harmony. It is clearly visible on the material available on these social networking websites.
That the content which has been clearly shown on these websites are clearly imputations, assertions, prejudicial to national integration. The material is clearly visible in the Annexure .
That the contents which are available on these social networking websites is obscene, that will create obscene books, pamphlets, paper, which can easily be downloaded from these social networking websites. It will affect the minds of the children. It is also harmful in the development of the nation.
That the contents which are clearly mentioned and annexed in Annexure, shows the contents and malafide intention of these social networking websites to create deliberate and malicious acts intended to outrage, religious feelings of any class by insulting its religion or religious beliefs.
That the cause of action for filing the present complaint has arisen on 8.12.2011 when the complainant downloaded these pictures and photos and these facts came to know in the knowledge of the complainant while sitting at his above stated residence The cause of action is continuing and arising day by day.
That the cause of action has arisen within the jurisdiction of the Hon'ble Court which may take cognizance of the offence as committed by the accused persons.
That the present complaint has been filed within the period of limitation and this Hon'ble Court is competent to entertain & try the present complaint and grant relief to the complainant.
That the complainant seeks the permission of this Hon'ble Court to urge any additional ground or to examine any other witness or to submit any other documents which would be made available to him at the time of hearing of this complaint.

PRAYER

In view of the aforesaid submission made here in and in the interest of the justice, it is therefore most respectfully prayed that this Hon'ble Court may graciously be pleased to:

Register the present complaint.
Take cognizance of the offence, as the contents per-se amount to commission of offences, as indicated above, without anything more.
Summon try and punish the accused persons for committing the offences under section 153(A), 153(B), 292, 293, 295(A), 298, 109, 500 and 120B of the IPC.
Take appropriate steps for prosecution and punishment of the above website owners, concerned officials and their representatives and undisclosed accused persons.

Pass such other or further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

COMPLAINANT

Through Counsel

Dated: 15.12.2011
Place: New Delhi

For more details visit https://cis-india.org/internet-governance/resources/s200-complaint-vinay-rai-v.-facebook-india-and-ors

World Narrow Web

pranesh — 2012-03-27T16:00:24Z

Censorship and how govt reacts to it may push us to country-specific networks, writes Pranesh Prakash in an article published in the Indian Express on 4 February 2012.

Twitter, a popular micro-blogging service, recently announced that “[today] we give ourselves the ability to reactively withhold content from users in a specific country — while keeping it available in the rest of the world”. In a move a few weeks ago, Blogger, Google’s blogging service, in effect announced something similar, by saying that default they would redirect Blogger users trying to get to Blogspot.com addresses (like http://example.blogspot.com) to their respective country sites (like http://example.blogspot.in). Twitter’s announcement was greeted with much disapproval by many Twitter users, as a move towards censorship, with some talking (on Twitter) about a boycott. Blogger’s move was hidden away, deep within a help page, and is being noticed now, and is causing quite a stir as caving in to censorship. Are these concerns justified? Before answering that question, let’s look at what the platforms’ announcements really say.

Twitter has given itself the ability to withhold specific tweets and users in particular countries where that content is legally required to be removed (generally with a court order). Their earlier option, they inform us, was to block the offending tweets and users in all countries. Apart from this, they will publish a notice for each tweet/ user that is blocked in a country. They will also be proactively publishing every removal request they receive at ChillingEffects.org, which allows us to hold them to account and question their decision to remove tweets.

Google, by redirecting you to the country-specific Blogger, is allowing for country-level removal of both blogs and individual blog posts. However, they also note that you can circumvent this by using a special “no redirect” address. Google currently forwards all search-related removals, but does not do so for Blogger-related requests, and all copyright-related complaints to ChillingEffects.org. Google does publish aggregate data relating to censorship of Blogger, on which free-speech advocates have been asking them to provide more granular information.

There are three problems. First, while Twitter was just as open to repressive governments’ requests last week, by making this change, they are advertising this fact to such governments. Thailand has noted it, and has congratulated Twitter.

Second, as Rob Beschizza, managing editor of the website Boing Boing, pointed out, there have been no instances of political content having been removed by Twitter. Even British courts’ super-injunctions (injunctions on speech, that prevent you from mentioning the fact that there is an injunction) were defeated by Twitter users, which only showed that attempts to censor material results in even more attention being drawn to it (which is popularly known as the “Streisand Effect”). So, does this now mean that Twitter will start applying local laws to judge “valid and applicable legal requests”, instead of American laws? What if the law is as bad as that which exists in India, where they are required to remove content within 36 hours based on any affected person’s complaint — without a court order? Will they still act on it? If they don’t, will the government or courts order Twitter.com to be blocked in India, finding it liable for illegal omissions?

Third, this trend points increasingly to the fact that we are witnessing a Balkanisation of the Web as more countries start asserting their sovereignty online. As Chinese dissident journalist Michael Anti pointed out recently, it seems we now need visas (read “circumvention techniques”) to visit the international Web. But even then, there is no longer a singular “international” Web, but an Indian Web and a Guatemalan Web, and an Angolan Web. And the government’s recent proposal of requiring companies to locate their servers in India is a move towards this (apart from being a move towards killing cloud computing).

That having been said, the reality is that the CEOs of Google, Google India, and Microsoft have been summoned to appear in Indian courts for allowing their users to publish material which they don’t know about, which is in a sealed envelope (and most of the accused companies haven’t been shown yet), and which they weren’t even asked once to remove.

The Intermediary Guidelines Rules passed by the Department of Information Technology in April 2011 do not require the user, whose content it is, to be told that there is a complaint, nor to be given a chance to defend themselves. It does not even require public notice that the content has been removed.

The truth is, the transparency around censorship that Google and Twitter are providing is far better than what most other companies are providing. For instance, Big Rock, an Indian DNS provider, suspended the CartoonsAgainstCorruption.com web address on the basis of a seemingly not legal request by the Cyber Cell of the Mumbai Crime Branch, and did so without any public notice and without even informing the cartoonist whose web address it was. At least Google and Twitter are pushing back against non-legal requests, and refusing to remove content that doesn’t violate local laws. Single-mindedly criticising them will only put off other companies from following in their footsteps.

Instead of criticising those who are actually working towards transparency in censorship, we should encourage them and others, push intermediaries not to cave in to unreasonable censorship requests, prevent them from over-censoring on their own, and push hard for the government to incorporate their best practices as part of the Intermediary Guidelines Rules.

The original article was published in the Indian Express

For more details visit https://cis-india.org/internet-governance/world-narrow-web

Information Technology (Intermediaries Guidelines) Rules, 2011

pranesh — 2012-01-26T17:33:38Z

The Information Technology (Intermediaries Guidelines) Rules, 2011, as notified on April 11, 2011. All errors are in the original notification.

THE GAZETTE OF INDIA : EXTRAORDINARY
[ PART II-SEC. 3(i)]
NOTIFICATION
New Delhi, the 11th April, 2011

G.S.R. 314(E).— In exercise of the powers conferred by clause (zg) of subsection (2) of section 87 read with sub-section (2) of section 79 of the Information Technology Act, 2000 (21 of 2000), the Central Government hereby makes the following rules, namely.-

1. Short title and commencement —

(1) These rules may be called the Information Technology (Intermediaries guidelines) Rules, 2011.

(2) They shall come into force on the date of their publication in the Official Gazette

2. Definitions —
        (1) In these rules, unless the context otherwise requires,--
                (a) "Act" means the Information Technology Act, 2000 (21 of 2000);
                (b) "Communication link” means a connection between a hyperlink or graphical element (button, drawing, image) and one or more such items in the same or different electronic document wherein upon clicking on a hyperlinked item, the user is automatically transferred to the other end of the hyperlink which could be another document website or graphical element.
                (c) "Computer resource” means computer resources as defined in clause (k) of sub-section (1) of section 2 of the Act;
                (d) "Cyber security incidnt” means any real or suspected adverse event in relation to cybersecurity that violates an explicity or implicity applicable security policy resulting in unauthotrised access, denial of service or disruption, unauthorised use of a computer resource for processing or storage of information or changes to data, information without authorisation;
                (e) "Data" means data as defined in clause (o) of sub-section (1) of section 2 of the Act;
                (f) "Electronic Signature" means electronic signature as defined in clause (ta) of sub-section (1) of section 2 of the Act;
                (g) "Indian Computer Emergency Response Team” means the Indian Computer Emergency Response Team appointed under sub section (1) section 70 (B) of the Act;
                (h) “Information” means information as defined in clause (v) of sub-section (1) of section 2 of the Act;
                (i) “Intermediary” means an intermediary as defined in clause (w) of sub-section (1) of section 2 of the Act;
                (j) "User" means any person who access or avail any computer resource of intermediary for the purpose of hosting, publishing, sharing, transacting, displaying or uploading information or views and includes other persons jointly participating in using the computer resource of an intermediary.

(2) Ail other words and expressions used and not defined in these rules but defined in the Act shall have the meanings respectively assigned to them in the Act.

3. Due diligence to he observed by intermediary —
The intermediary shall observe following due diligence while discharging his duties, namely : —

(1) The intermediary shall publish the rules and regulations, privacy policy and user agreement for access-or usage of the intermediary's computer resource by any person.

(2) Such rules and regulations, terms and conditions or user agreement shall inform the users of computer resource not to host, display, upload, modify, publish, transmit, update or share any information that —
(a) belongs to another person and to which the user does not have any right to;

(b) is grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, paedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever;

(d) infringes any patent, trademark, copyright or other proprietary rights;

(e) violates any law for the time being in force;

(f) deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;

(g) impersonate another person;

(h) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource;

(i) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation.

(3) The intermediary shall not knowingly host or publish any information or shall not initiate the transmission, select the receiver of transmission, and select or modify the information contained in the transmission as specified in sub-rule (2):
provided that the following actions by an intermediary shall not amount to hosing, publishing, editing or storing of any such information as specified in sub-rule: (2) —

(a) temporary or transient or intermediate storage of information automatically within the computer resource as an intrinsic feature of such computer resource, involving no exercise of any human editorial control, for onward transmission or communication to another computer resource;
(b) removal of access to any information, data or communication link by an intermediary after such information, data or communication link comes to the actual knowledge of a person authorised by the intermediary pursuant to any order or direction as per the provisions of the Act;

(4) The intermediary, on whose computer system the information is stored or hosted or published, upon obtaining knowledge by itself or been brought to actual knowledge by an affected person in writing or through email signed with electronic signature about any such information as mentioned in sub-rule (2) above, shall act within thirty six hours and where applicable, work with user or owner of such information to disable such information that is in contravention of sub-rule (2). Further the intermediary shall preserve such information and associated records for at least ninety days for investigation purposes,

(5) The Intermediary shall inform its users that in case of non-compliance with rules and regulations, user agreement and privacy policy for access or usage of intermediary computer resource, the Intermediary has the right to immediately terminate the access or usage lights of the users to the computer resource of Intermediary and remove non-compliant information.

(6) The intermediary shall strictly follow the provisions of the Act or any other laws for the time being in force.

(7) When required by lawful order, the intermediary shall provide information or any such assistance to Government Agencies who are lawfully authorised for investigative, protective, cyber security activity. The information or any such assistance shall be provided for the purpose of verification of identity, or for prevention, detection, investigation, prosecution, cyber security incidents and punishment of offences under any law for the time being in force, on a request in writing staling clearly the purpose of seeking such information or any such assistance.

(8) The intermediary shall take all reasonable measures to secure its computer resource and information contained therein following the reasonable security practices and procedures as prescribed in the Information Technology (Reasonable security practices and procedures and sensitive personal Information) Rules, 2011.

(9) The intermediary shall report cyber security incidents and also share cyber security incidents related information with the Indian Computer Emergency Response Team.

(10) The intermediary shall not knowingly deploy or install or modify the technical configuration of computer resource or become party to any such act which may change or has the potential to change the normal course of operation of the computer resource than what it is supposed to "perform thereby circumventing any law for the time being in force:
provided that the intermediary may develop, produce, distribute or employ technological means for the sole purpose of performing the acts of securing the computer resource and information contained therein.

(11) The intermediary shall publish on its website the name of the Grievance Officer and his contact details as well as mechanism by which users or any victim who suffers as a result of access or usage of computer resource by any person in violation of rule 3 can notify their complaints against such access or usage of computer resource of the intermediary or other matters pertaining to the computer resources made available by it. The Grievance Officer shall redress the complaints within one month from the date of receipt of complaint.

[F. No. 11(3)/2011-CLFE]
N. RAVI SHANKER, Jt. Secy.

For more details visit https://cis-india.org/internet-governance/resources/intermediary-guidelines-rules

Section 79 of the Information Technology Act

pranesh — 2012-11-19T14:55:02Z

79. INTERMEDIARIES NOT TO BE LIABLE IN CERTAIN CASES

(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hasted by him.

(2) The provisions of sub-section (1) shall apply if—

(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hasted; or

(b) the intermediary does not—

(i) initiate the transmission,

(ii) select the receiver of the transmission, and

(iii) select or modify the information contained in the transmission;

(c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.

(3) The provisions of sub-section (1) shall not apply if—

(a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or othorise in the commission of the unlawful act;

(b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.

Explanation.—For the purposes of this section, the expression “third party information” means any information dealt with by an intermediary in his capacity as an intermediary.

For more details visit https://cis-india.org/internet-governance/resources/section-79-information-technology-act

How India Makes E-books Easier to Ban than Books (And How We Can Change That)

pranesh — 2012-02-21T11:50:56Z

Without getting into questions of what should and should not be unlawful speech, Pranesh Prakash chooses to take a look at how Indian law promotes arbitrary removal and blocking of websites, website content, and online services, and how it makes it much easier than getting offline printed speech removed.

E-Books Are Easier To Ban Than Books, And Safer

Contrary to what Mr. Sibal's recent hand-wringing at objectionable online material might suggest, under Indian laws currently in force it is far easier to remove material from the Web, by many degrees of magnitude, than it is to ever get them removed from a bookstore or an art gallery. To get something from a bookstore or an art gallery one needs to collect a mob, organize collective outrage and threats of violence, and finally convince either the government or a magistrate that the material is illegal, thereby allowing the police to seize the books or stop the painting from being displayed. The fact of removal of the material will be noted in various records, whether in government records, court records, police records or in newspapers of record. By contrast, to remove something from the Web, one needs to send an e-mail complaining about it to any of the string of 'intermediaries' that handle the content: the site itself, the web host for the site, the telecom companies that deliver the site to your computer/mobile, the web address (domain name) provider, the service used to share the link, etc. Under the 'Intermediary Guidelines Rules' that have been in operation since 11th April 2011, all such companies are required to 'disable access' to the complained-about content within thirty-six hours of the complaint. It is really that simple.

"That's ridiculous," you think, "surely he must be exaggerating." Think again. A researcher working with us at the Centre for Internet and Society tried it out, several times, with many different intermediaries and always with frivolous and flawed complaints, and was successful six out of seven times . Thus it is easier to prevent Flipkart or Amazon from selling Rushdie's Midnight's Children than it is to prevent a physical bookstore from doing so: today Indira Gandhi wouldn't need to win a lawsuit in London against the publishers to remove a single line as she did then; she would merely have to send a complaint to online booksellers and get the book removed. It is easier to block Vinay Rai's Akbari.in (just as CartoonsAgainstCorruption.com was recently blocked) than it is to prevent its print publication. Best of all for complainants: there is no penalty for frivolous complaints such as those sent by us, nor are any records kept of who's removed what. Such great powers of censorship without any penalties for their abuse are a sure-fire way of ensuring a race towards greater intolerance, with the Internet — that republic of opinions and expressions — being a casualty.

E-Book Bans Cannot Be Challenged

In response to some of the objections raised, the Cyberlaw Division of the Department of Information Technology, ever the dutiful guardian of free speech, noted that if you have a problem with access to your content being 'disabled', you could always approach a court and get that ban reversed. Unfortunately, the Cyberlaw Division of the Department of Information Technology forgot to take into account that you can't contest a ban/block/removal if you don't know about it. While they require all intermediaries to disable access to the content within thirty-six hours, they forgot to mandate the intermediary to tell you that the content is being removed. Whoops. They forgot to require the intermediary to give public notice that content has been removed following a complaint from person ABC or corporation XYZ on such-and-such grounds. Whoops, again.

So while records are kept, along with reasons, of book bans, there are no such records required to be kept of e-book bans.

E-Book Censors Are Faceless

Vinay Rai is a brave man. He is being attacked by fellow journalists who believe he's disgracing the professional upholders of free-speech, and being courted by television channels who believe that he should be encouraged to discuss matters that are sub judice. He is viewed by some as a man who's playing politics in courts on behalf of unnamed politicians and bureaucrats, while others view him as being bereft of common-sense for believing that companies should be legally liable for not having been clairvoyant and removing material he found objectionable, though he has never complained to them about it, and has only provided that material to the court in a sealed envelope. I choose, instead, to view him as a scrupulous and brave man. He has a face, and a name, and is willing to openly fight for what he believes in. However, there are possibly thousands of unscrupulous Vinay Rais out there, who know the law better than he does, and who make use not of the court system but of the Intermediary Guidelines Rules, firmly assured by those Rules that their censorship activities will never be known, will never be challenged by Facebook and Google lawyers, and will never be traced back to them.

Challenging Invisible Censorship

Dear reader, you may have noticed that this is a bit like a trial involving Free Speech in which Free Speech is presumed guilty upon complaint, is not even told what the charges against it are, has not been given a chance to prove its innocence, and has no right to meet its accusers nor to question them. Yet, the Cyberlaw Division of the Department of Information Technology continues to issue press releases defending these Rules as fair and just, instead of being simultaneously Orwellian and Kafkaesque. These Rules are delegated legislation passed by the Department of Information Technology under s.79 of the Information Technology Act. The Rules were laid before Parliament during the 2011 Monsoon session. We at CIS believe that these Rules are *ultra vires* the IT Act as well as the Constitution of India, not only with respect to what is now (newly) proscribed online (which in itself is enough to make it unconstitutional), but how that which is purportedly unlawful is to be removed. We have prepared an alternative that we believe is far more just and in accordance with our constitutional principles, taking on best practices from Canada, the EU, Chile, and Brazil, while still allowing for expeditious removal of unlawful material. We hope that the DIT will consider adopting some of the ideas embodied in our draft proposal.

As Parliament passed the IT Act in the midst of din, without any debate, it is easy to be skeptical and wonder whether Rules made under the IT Act will be debated. However, I remain hopeful that Parliament will not only exercise its power wisely, but will perform its solemn duty — borne out of each MP's oath to uphold our Constitution — by rejecting these Rules.

Photo credit: Lynn Gardner, under CC-BY-NC-SA 2.0 licence*

This was reproduced in Outlook Magazine on 27 January 2012

For more details visit https://cis-india.org/internet-governance/blog/india-ebooks-easier-to-ban-than-books

Consumers International IP Watchlist 2011 — India Report

pranesh — 2014-05-29T05:52:28Z

Pranesh Prakash prepared the India Report for the Consumers International IP Watchlist 2011. The report was published on the A2K Network website.

The report says:

India's Copyright Act is a relatively balanced instrument that recognises the interests of consumers through its broad private use exception, and by facilitating the compulsory licensing of works that would otherwise be unavailable. However, the compulsory licensing provision have not been utilized so far, because of both a lack of knowledge and more importantly because of the stringent conditions attached to them. Currently, the Indian law is also a bit out of sync with general practices as the exceptions and limitations allowed for literary, artistic and musical works are often not available with sound recordings and cinematograph films. There are numerous other such inconsistencies.

While India has not acceded to the WIPO [23] Copyright Treaty or the WIPO Performers and Phonograms Treaty, yet a set of amendments have been proposed which would bring the Indian law in compliance with both the WCT and the WPPT. These amendments would expose India's consumers to the same problems experienced in other jurisdictions which have prohibited the use of circumvention devices to gain access to legally-acquired copyright material. These amendments also propose a substantial increase in the copyright term for photographs (from 50 years to life plus 60 years), and a conditional increase of ten years for cinematograph films to 70 years if a special agreement is entered into by the producer with the director. It is true that copyright infringement, particularly in the form of physical media, is widespread in India. However this must be taken in the context that India, although fast-growing, remains one of the poorest countries in the world. Although India's knowledge and cultural productivity over the centuries and to the present day has been rich and prodigious, its citizens are economically disadvantaged as consumers of that same knowledge and culture. Indeed, most students, even in the so-called elite institutions, need to employ photocopying and other such means to be able to afford the requisite study materials. Physically challenged persons have no option but to disobey the law that does not grant them equal access to copyrighted works.

Legitimate operating systems (with the notable exception of most free and open source OSes) add a very high overhead to the purchase of cheap computers, thus driving users to pirated software. Thus, these phenomena need to be addressed not at the level of enforcement, but at the level of supply of affordable works in a suitable format.

Over the last year, the Standing Committee tasked with review of the Copyright Amendment Bill has held hearings and presented its findings and recommendations to the HRD Ministry. However, not a single consumer rights organization was called by the Standing Committee, and no civil society engagement was sought except for the issue of access for persons with disabilities. This was despite a number of civil society organizations sending in written submissions to the Standing Committee. The government is going to re-table the Bill in this session of Parliament (February-April).

Click to download the full report [PDF, 150 kb]
Read the report published by A2K Network here

For more details visit https://cis-india.org/a2k/blogs/ip-watch-list-2011

Invisible Censorship: How the Government Censors Without Being Seen

pranesh — 2012-01-04T08:59:14Z

The Indian government wants to censor the Internet without being seen to be censoring the Internet. This article by Pranesh Prakash shows how the government has been able to achieve this through the Information Technology Act and the Intermediary Guidelines Rules it passed in April 2011. It now wants methods of censorship that leave even fewer traces, which is why Mr. Kapil Sibal, Union Minister for Communications and Information Technology talks of Internet 'self-regulation', and has brought about an amendment of the Copyright Act that requires instant removal of content.

Power of the Internet and Freedom of Expression

The Internet, as anyone who has ever experienced the wonder of going online would know, is a very different communications platform from any that has existed before. It is the one medium where anybody can directly share their thoughts with billions of other people in an instant. People who would never have any chance of being published in a newspaper now have the opportunity to have a blog and provide their thoughts to the world. This also means that thoughts that many newspapers would decide not to publish can be published online since the Web does not, and more importantly cannot, have any editors to filter content. For many dictatorships, the right of people to freely express their thoughts is something that must be heavily regulated. Unfortunately, we are now faced with the situation where some democratic countries are also trying to do so by censoring the Internet.

Intermediary Guidelines Rules

In India, the new 'Intermediary Guidelines' Rules and the Cyber Cafe Rules that have been in effect since April 2011 give not only the government, but all citizens of India, great powers to censor the Internet. These rules, which were made by the Department of Information Technology and not by the Parliament, require that all intermediaries remove content that is 'disparaging', 'relating to... gambling', 'harm minors in any way', to which the user 'does not have rights'. When was the last time you checked wither you had 'rights' to a joke before forwarding it? Did you share a Twitter message containing the term "#IdiotKapilSibal", as thousands of people did a few days ago? Well, that is 'disparaging', and Twitter is required by the new law to block all such content. The government of Sikkim can run advertisements for its PlayWin lottery in newspapers, but under the new law it cannot do so online. As you can see, through these ridiculous examples, the Intermediary Guidelines are very badly thought-out and their drafting is even worse. Worst of all, they are unconstitutional, as they put limits on freedom of speech that contravene Article 19(1)(a) and 19(2) of the Constitution, and do so in a manner that lacks any semblance of due process and fairness.

Excessive Censoring by Internet Companies

We, at the Centre for Internet and Society in Bangalore, decided to test the censorship powers of the new rules by sending frivolous complaints to a number of intermediaries. Six out of seven intermediaries removed content, including search results listings, on the basis of the most ridiculous complaints. The people whose content was removed were not told, nor was the general public informed that the content was removed. If we hadn't kept track, it would be as though that content never existed. Such censorship existed during Stalin's rule in the Soviet Union. Not even during the Emergency has such censorship ever existed in India. Yet, not only was what the Internet companies did legal under the Intermediary Guideline Rules, but if they had not, they could have been punished for content put up by someone else. That is like punishing the post office for the harmful letters that people may send over post.

Government Has Powers to Censor and Already Censors

Currently, the government can either block content by using section 69A of the Information Technology Act (which can be revealed using RTI), or it has to send requests to the Internet companies to get content removed. Google has released statistics of government request for content removal as part of its Transparency Report. While Mr. Sibal uses the examples of communally sensitive material as a reason to force censorship of the Internet, out of the 358 items requested to be removed from January 2011 to June 2011 from Google service by the Indian government (including state governments), only 8 were for hate speech and only 1 was for national security. Instead, 255 items (71 per cent of all requests) were asked to be removed for 'government criticism'. Google, despite the government in India not having the powers to ban government criticism due to the Constitution, complied in 51 per cent of all requests. That means they removed many instances of government criticism as well.

'Self-Regulation': Undetectable Censorship

Mr. Sibal's more recent efforts at forcing major Internet companies such as Indiatimes, Facebook, Google, Yahoo, and Microsoft, to 'self-regulate' reveals a desire to gain ever greater powers to bypass the IT Act when censoring Internet content that is 'objectionable' (to the government). Mr. Sibal also wants to avoid embarrassing statistics such as that revealed by Google's Transparency Report. He wants Internet companies to 'self-regulate' user-uploaded content, so that the government would never have to send these requests for removal in the first place, nor block sites officially using the IT Act. If the government was indeed sincere about its motives, it would not be talking about 'transparency' and 'dialogue' only after it was exposed in the press that the Department of Information Technology was holding secret talks with Internet companies. Given the clandestine manner in which it sought to bring about these new censorship measures, the motives of the government are suspect. Yet, both Mr. Sibal and Mr. Sachin Pilot have been insisting that the government has no plans of Internet censorship, and Mr. Pilot has made that statement officially in the Lok Sabha. This, thus seems to be an instance of censoring without censorship.

Backdoor Censorship through Copyright Act

Further, since the government cannot bring about censorship laws in a straightforward manner, they are trying to do so surreptitiously, through the back door. Mr. Sibal's latest proposed amendment to the Copyright Act, which is before the Rajya Sabha right now, has a provision called section 52(1)(c) by which anyone can send a notice complaining about infringement of his copyright. The Internet company will have to remove the content immediately without question, even if the notice is false or malicious. The sender of false or malicious notices is not penalized. But the Internet company will be penalized if it doesn't remove the content that has been complained about. The complaint need not even be shown to be true before the content is removed. Indeed, anyone can complain about any content, without even having to show that they own the rights to that content. The government seems to be keen to have the power to remove content from the Internet without following any 'due process' or fair procedure. Indeed, it not only wants to give itself this power, but it is keen on giving all individuals this power.

It's ultimate effect will be the death of the Internet as we know it. Bid adieu to it while there is still time.

The article was translated to Marathi and featured in Lokmat

For more details visit https://cis-india.org/internet-governance/invisible-censorship

About Us

pranesh — 2016-06-27T13:59:12Z

What we do

The Centre for Internet and Society is a non-profit research organisation that works on policy issues relating to freedom of expression, privacy, accessibility for persons with disabilities, access to knowledge and intellectual property rights, and openness (including open data, free/open source software, open standards, open access to scholarly literature, open educational resources, and open video), and engages in academic research on reconfigurations of social processes and structures through the Internet and digital media technologies, and vice versa.

Vision and Mission

The Centre for Internet and Society will critically engage with concerns of digital pluralism, public accountability and pedagogic practices, in the field of Internet and Society, with particular emphasis on South-South dialogues and exchange.

Through multidisciplinary research, intervention, and collaboration, we seek to explore, understand, and affect the shape and form of the internet, and its relationship with the political, cultural, and social milieu of our times.

For more details visit https://cis-india.org/about/about-us

Press Coverage of Online Censorship Row

pranesh — 2011-12-08T11:31:30Z

We are maintaining a rolling blog with press references to the row created by the proposal by the Union Minister for Communications and Information Technology to pre-screen user-generated Internet content.

Monday, December 5, 2011

India Asks Google, Facebook to Screen Content | Heather Timmons (New York Times, India Ink)

Tuesday, December 6, 2011

Sibal warns social websites over objectionable content | Sandeep Joshi (The Hindu)

Hate speech must be blocked, says Sibal | Praveen Swami & Sujay Mehdudia (The Hindu)

Won't remove material just because it's controversial: Google | (Press Trust of India)

Any Normal Human Being Would Be Offended | Heather Timmons (New York Times, India Ink)

After Sibal, Omar too feels some online content inflammatory | (Press Trust of India)

Online uproar as India seeks social media screening | Devidutta Tripathy and Anurag Kotoky (Reuters)

Kapil Sibal for content screening: Facebook, Twitter full of posts against censorship | (IANS)

India May Overstep Its Own Laws in Demanding Content Filtering | John Ribeiro (IDG)

Kapil Sibal warns websites: Mixed response from MPs | (Press Trust of India)

Websites must clean up content, says Sibal | (NewsX)

Kapil Sibal warns websites; Google says won't remove material just because it's controversial | Press Trust of India

Censorship By Any Other Name... | Yamini Lohia (Mint)

Kapil Sibal: We have to take care of sensibility of our people | Associated Press

Kapil Sibal gets backing of Digvijaya Singh over social media screening | Press Trust of India

Sibal Gets What He Set Out To Censor | (Hindustan Times, Agencies)

Objectionable Matter Will Be Removed, Censorship Not in Picture Yet: Kapil Sibal | Amar Kapadia (News Tonight)

Wednesday, December 7, 2011

Kapil Sibal Doesn't Understand the Internet | Shivam Vij (India Today)

'Chilling' Impact of India's April Internet Rules | Heather Timmons (New York Times, India Ink)

Screening, not censorship, says Sibal | (Business Standard)

Chandni Chowk to China | Salil Tripathi (Mint)

Kapil Sibal vs the internet | Sandipan Deb (Mint)

No Need for Censorship of the Internet: Cyber Law Experts | (Times News Network)

Protest with flowers for Sibal | (The Hindu)

Kapil Sibal cannot screen this report | Team DNA, Blessy Chettiar & Renuka Rao (Daily News and Analysis)

Kapil Sibal warns websites, but experts say prescreening of user content not practical | (Reuters)

Sibal's Remarks Brought Disgust | Hitesh Mehta (News Tonight)

BJP backs mechanism to curb objectionable content on websites | (The Hindu)

Move to regulate networking sites should be discussed in Parliament: BJP | (Press Trust of India)

Sibal under attack in cyberspace | (Press Trust of India)

Kapil Sibal's web censorship: Indian govt wanted 358 items removed, says Google | (Press Trust of India)

Kapil Sibal gets BJP support but with rider | (Indo-Asian News Service)

Sibal's way of regulating web not okay, says BJP | (Indo-Asian News Service)

Censorship in Blasphemy's Clothings | Gautam Chikermane (Hindustan Times, Just Faith)

India wants Google, Facebook to screen content | Sharon Gaudin (Computer World)

Should we be taming social media? | Swati Prasad (ZDNet, Inside India)

Kapil Sibal gets lampooned for views on Web control | (Daily News and Analysis)

'We don't need no limitation' | Asha Prakash (Times of India)

Five reasons why India can't censor the internet | Prasanto K. Roy (Indo-Asian News Service)

We Are the Web | (Indian Express)

Thursday, December 8, 2011

Kapil Sibal under attack in cyberspace, (Press Trust of India)

Speak Up for Freedom | Pranesh Prakash (Indian Express)

Newswallah: Censorship | Neha Thirani (New York Times, India Ink)

No Question of Censoring the Internet, Says Sachin Pilot | (NDTV)

Mind Your Netiquette, or We'll Mind it for You | A.A.K. (The Economist)

Take Parliament's view to regulate social networking sites, BJP tells govt | (Times News Network)

India wanted 358 items removed | Priscilla Jebaraj (The Hindu)

Indian Government v Social Networking sites: Expert Views | (Bar & Bench News Network)

Can Government Muzzle Websites? | Priyanka Joshi & Piyali Mandal (Business Standard)

US concerned over internet curbs, sidesteps India move | (Indo-Asian News Service)

Why Internet Companies Are Upset with Kapil Sibal | (Rediff)

Why Censor Facebook When You Don't Censor Sunny Leone? | (Indo-Asian News Service)

Online content issue: Talks with India on, says U.S. | (Press Trust of India)

US calls for Internet freedom amid India plan | Agence France-Presse

For more details visit https://cis-india.org/internet-governance/blog/press-coverage-online-censorship

Online Pre-Censorship is Harmful and Impractical

pranesh — 2011-12-12T17:00:50Z

The Union Minister for Communications and Information Technology, Mr. Kapil Sibal wants Internet intermediaries to pre-censor content uploaded by their users. Pranesh Prakash takes issue with this and explains why this is a problem, even if the government's heart is in the right place. Further, he points out that now is the time to take action on the draconian IT Rules which are before the Parliament.

Mr. Sibal is a knowledgeable lawyer, and according to a senior lawyer friend of his with whom I spoke yesterday, greatly committed to ideals of freedom of speech. He would not lightly propose regulations that contravene Article 19(1)(a) [freedom of speech and expression] of our Constitution. Yet his recent proposals regarding controlling online speech seem unreasonable. My conclusion is that the minister has not properly grasped the way the Web works, is frustrated because of the arrogance of companies like Facebook, Google, Yahoo and Microsoft. And while he has his heart in the right place, his lack of knowledge of the Internet is leading him astray. The more important concern is the IT Rules that have been in force since April 2011.

Background

The New York Times scooped a story on Monday revealing that Mr. Sibal and the MCIT had been in touch with Facebook, Google, Yahoo, and Microsoft, asking them to set up a system whereby they would manually filter user-generated content before it is published, to ensure that objectionable speech does not get published. Specifically, he mentioned content that hurt people's religious sentiments and content that Member of Parliament Shashi Tharoor described as 'vile' and capable of inciting riots as being problems. Lastly, Mr. Sibal defended this as not being "censorship" by the government, but "supervision" of user-generated content by the companies themselves.

Concerns

One need not give lectures on the benefits of free speech, and Mr. Sibal is clear that he does not wish to impinge upon it. So one need not point out that freedom of speech means nothing if not the freedom to offend (as long as no harm is caused). There can, of course, be reasonable limitations on freedom of speech as provided in Article 19 of the ICCPR and in Article 19(2) of our Constitution. My problem lies elsewhere.

Secrecy

It is unfortunate that the New York Times has to be given credit for Mr. Sibal addressing a press conference on this issue (and he admitted as much). What he is proposing is not enforcement of existing rules and regulations, but of a new restriction on online speech. This should have, in a democracy, been put out for wide-ranging public consultations first.

Making intermediaries responsible

The more fundamental disagreement is that over how the question of what should not be published should be decided, and how that decision should be and how that should be carried out, and who can be held liable for unlawful speech. I believe that "to make the intermediary liable for the user violating that code would, I think, not serve the larger interests of the market." Mr. Sibal said that in May this year in an interview with the Wall Street Journal. The intermediaries (that is, all persons and companies who transmit or host content on behalf of a third party), are but messengers just like a post office and do not exercise editorial control, unlike a newspaper. (By all means prosecute Facebook, Google, Yahoo, and Microsoft whenever they have created unlawful content, have exercised editorial control over unlawful content, have incited and encouraged unlawful activities, or know after a court order or the like that they are hosting illegal content and still do not remove it.) Newspapers have editors who can take responsibility for content published in the newspaper. They can afford to, because the number of articles in a newspaper is limited. YouTube, which has 48 hours of videos uploaded every minutes, cannot. One wag suggested that Mr. Sibal was not suggesting a means of censorship, but of employment generation and social welfare for censors and editors. To try and extend editorial duties to these 'intermediaries' by executive order or through 'forceful suggestions' to these companies cannot happen without amending s.79 of the Information Technology Act which ensures they are not to be held liable for their user's content: the users are. Internet speech has, to my knowledge, and to date, has never caused a riot in India. It is when it is translated into inflammatory speeches on the ground with megaphones that offensive speech, whether in books or on the Internet, actually become harmful, and those should be targeted instead. And the same laws that apply to offline speech already apply online. If such speech is inciting violence then the police can be contacted and a magistrate can take action. Indeed, Internet companies like Facebook, Google, etc., exercise self-regulation already (excessively and wrongly, I feel sometimes). Any person can flag any content on YouTube or Facebook as violating the site's terms of use. Indeed, even images of breast-feeding mothers have been removed from Facebook on the basis of such complaints. So it is mistaken to think that there is no self-regulation. In two recent cases, the High Courts of Bombay (Janhit Manch v. Union of India) and Madras (R. Karthikeyan v. Union of India) refused to direct the government and intermediaries to police online content, saying that places an excessive burden on freedom of speech.

IT Rules, 2011

In this regard, the IT Rules published in April 2011 are great offenders. While speech that is 'disparaging' (while not being defamatory) is not prohibited by any statute, yet intermediaries are required not to carry 'disparaging' speech, or speech to which the user has no right (how is this to be judged? do you have rights to the last joke that you forwarded?), or speech that promotes gambling (as the government of Sikkim does through the PlayWin lottery), and a myriad other kinds of speech that are not prohibited in print or on TV. Who is to judge whether something is 'disparaging'? The intermediary itself, on pain of being liable for prosecution if it is found have made the wrong decision. And any person may send a notice to an intermediary to 'disable' content, which has to be done within 36 hours if the intermediary doesn't want to be held liable. Worst of all, there is no requirement to inform the user whose content it is, nor to inform the public that the content is being removed. It just disappears, into a memory hole. It does not require a paranoid conspiracy theorist to see this as a grave threat to freedom of speech. Many human rights activists and lawyers have made a very strong case that the IT Rules on Intermediary Due Diligence are unconstitutional. Parliament still has an opportunity to reject these rules until the end of the 2012 budget session. Parliamentarians must act now to uphold their oaths to the Constitution.

For more details visit https://cis-india.org/internet-governance/online-pre-censorship-harmful-impractical

CIS Intervention on Future Work of the WIPO Advisory Committee on Enforcement

pranesh — 2011-12-01T15:30:38Z

The seventh session of the World Intellectual Property Organization's Advisory Committee on Enforcement (ACE) is being held in Geneva on November 30 and December 1, 2011. Pranesh Prakash intervened during the discussion of future work of the ACE with this comment.

Thank you, Chair.

I just wanted to point out that some of the proposals on future work could be worded better to reflect their true meaning. For instance, one of the proposal calls for control of the problem of "parallel import". However, "parallel importation" is actually allowed by both the TRIPS Agreement and by various other instruments such as the Berne Convention? Indeed, calling “parallel import” a problem is like calling "exceptions and limitations" a problem. This is a view that has been firmly rejected here at WIPO, especially post the adoption of the WIPO Development Agenda. This, quite obviously, could not have been the intention of the proposal framers.

Further, the link between some of the proposals and the Development Agenda could be made clearer. It has been established that the Development Agenda is not just something for the Committee on Development and Intellectual Property (CDIP) to consider, but for all committees to make an integral part of their work.

I would also like to underscore the importance of evidence-based policy-making.

Lastly, I would like to mention that a report has already been commissioned by WIPO on intermediary liability, which was written by Prof. Lilian Edwards and was released in a side-event during SCCR 22, in June 2011.

If the ACE is going ahead with a study or an event, I would suggest that the UN Special Rapporteur on Freedom of Expression and Opinion, who in his report to the UN Human Rights Council dealt in some depth with intermediary liability, be involved or invited.

Thank you.

For more details visit https://cis-india.org/a2k/blogs/ace-7-future-work-cis-intervention

Comment by CIS at ACE on Presentation on French Charter on the Fight against Cyber-Counterfeiting

pranesh — 2011-12-01T11:59:45Z

The seventh session of the World Intellectual Property Organization's Advisory Committee on Enforcement is being held in Geneva on November 30 and December 1, 2011. Pranesh Prakash responded to a presentation by Prof. Pierre Sirinelli of the École de droit de la Sorbonne, Université Paris 1 on 'The French Charter on the Fight against Cyber-Counterfeiting of December 16, 2009' with this comment.

Thank you, Chair. I speak on behalf of the Centre for Internet and Society. First, I would like to congratulate you on your re-election.

And I would like to congratulate Prof. Sirenelli on his excellent presentation.

I would like to flag a few points, though:

One of the benefits of normal laws, as opposed to the soft/plastic laws, which he champions, is that normal laws are bound by procedures established by law, due process requirements, and principles of natural justice. Unfortunately, the soft/plastic laws, which in essence are private agreements, are not.
The report of the UN Special Rapporteur on the Freedom of Expression and Opinion made it clear in his report to the UN Human Rights Council that the Internet is now an intergral part of citizens exercising their right of freedom of speech under national constitutions and under the Universal Declaration of Human Rights. That report highlights that many initiatives on copyright infringement, including that of the French government with HADOPI and the UK, actually contravene the Universal Declaration of Human Rights
The right of privacy is also flagged by many as something that will have to be compromised if such private enforcement of copyright is encouraged.

I'd like to know Prof. Sirinelli's views on these three issues: due process, right of freedom of speech, and the right to privacy.

For more details visit https://cis-india.org/a2k/blogs/ace-7-french-charter-cis-comment

Statement of CIS on the WIPO Broadcast Treaty at the 23rd SCCR

pranesh — 2011-11-30T06:55:43Z

The twenty-third session of the Standing Committee on Copyright and Related Rights is being held in Geneva from November 22, 2011 to December 2, 2011. Pranesh Prakash delivered this statement on a new proposal made by South Africa and Mexico (SCCR/23/6) on a treaty for broadcasters.

The Centre for Internet and Society would like to thank the South African and Mexican delegations for their hard work on this text before us.

We wish to reiterate the statement on principles provided last SCCR by many civil society non-governmental organizations, cable casters and technology companies opposing a rights-based Broadcasting Treaty, and would like to associate ourselves with the statements made today by Public Knowledge, Computer & Communications Industry Association, Knowledge Ecology International, International Federation of Library Associations, and the Canadian Library Association.

Broadcasters Already Protected Online

Broadcasters make two kinds of investments for which they are protected. They invest in infrastructure and they invest in licensing copyrighted works. The first investment is protected by 'broadcast rights', and the latter investment is protected by copyright law.

Broadcasters, being licensees of copyrighted works, generally already have rights of enforcement insofar as their licence is concerned. Therefore there is no need to provide for additional protections with regard to broadcasters in order to enable them to proceed against acts that violate existing copyright laws: they already have those rights by way of licence. This is often forgotten when talking about rights of broadcasters.

The investments to be made in infrastructure in traditional broadcast and in IP-based transmission are very different, even if it is the same 'traditional broadcasters' who are indulging in both. Given that this investment is the basis of additional protection for broadcaster over and above the rights provided to underlying copyright, IP-based transmissions should not be covered in any way even if it is traditional broadcast organizations that are engaged in them.

Providing new and separate rights to large broadcasters for their online transmission, as is currently being done via the provision on 'retransmission' while excluding small webcasters will create a hierarchy and a class distinction without any basis in either principle or existing laws.

Support Countries' Concerns

We also wish to support the amendments suggested by the Indian delegation. As we were reminded by the Indian delegation, the General Assembly mandate of 2007 only extends to traditional broadcasting and to a signal-based approach. In this regard, we also wish to support the question posed by the United States delegation between signal-based and rights-based approaches, as also the strong statement by the Brazilian delegation on the need to ensure that cultural diversity and competition are protected and promoted by any international instrument on broadcasting, and we would like to add 'preservation of a vibrant public domain' as provided by Paragraph 16 of the WIPO Development Agenda.

Thank you, Chair.

For more details visit https://cis-india.org/a2k/blogs/sccr-23-broadcast-cis-statement

Sources of CIS Funding

pranesh — 2018-07-07T01:19:19Z

CIS's donors' names and the amount of the grants they've provided are being published in an effort to be absolutely transparent and to make it clear that our donors do not dictate the policy and research positions we espouse.

To access the latest information on CIS funding click here

According to some news reports, the Centre for Internet and Society's criticisms of some government policies are being seen as being motivated by our funding. To set the record clear, we are publishing the names of all our donors, and the amounts received from them. It is to be noted that this list does not include donors (such as Privacy International) with whom we have agreements, but from whom we have not yet received any funding.

	Name of Donor	2008–2009	2009–2010	2010–2011	2011–2012	2012–2013	Total
1	Kusuma Trust	र14,473,000	र21,226,199	र22,190,787	र10,000,000	र2,32,99,038	र9,11,89,024
2	Hans Foundation					र1,40,85,662	र1,40,85,662
3	Wikimedia Foundation					र1,11,41,246	र1,11,41,246
4	Hivos		र6,49,635	र47,68,347	र22,82,939		र77,00,921
5	Ford Foundation				र45,01,370		र45,01,370
6	Privacy International					र25,05122	र25,05,122
7	Estudios para la Democracia Social			र24,32,877			र24,32,877
8	LexUM		र13,49,137	र7,11,716			र20,60,853
9	Open Society Institute, London			र900,000			र9,00,000
10	National Internet Exchange of India		र535,000	र100,000			र6,35,000
11	International Telecommunications Union			र616,487			र6,16,487
12	Rohini Nilekani		र5,00,000				र5,00,000
13	UNESCO			र2,63,480			र2,63,480
14	iCommons			र2,22,300			र2,22,300
15	Centre for the Study of Culture and Society			र1,61,100			र1,61,100
16	National Institute for the Visually Handicapped		र50,000				र50,000
Total		र1,44,73,000	र2,43,09,971	र3,23,67,094	र1,22,82,939	र5,10,31,068	र13,89,65,320

While CIS is not opposed to corporate funding (and is not opposed to corporations), we do not adopt policy positions on the basis of our funding. We adopt policy positions based on what we consider is in the public interest, specifically in the interest of consumers and developing countries such as India, as that would give effect to CIS's vision statement. While these interests may sometimes align themselves with the interests of multi-national corporations, it often does not.

For more details visit https://cis-india.org/internet-governance/sources-cis-funding