The Centre for Internet and Society
http://editors.cis-india.org
These are the search results for the query, showing results 51 to 65.
Indian government at second position after U.S.A for demanding user data from Google
http://editors.cis-india.org/news/whdi-reviews-nov-22-2012-indian-government-at-second-position-after-usa-for-demanding-user-data-from-google
<b>The Indian government has secured 2nd position in the list of the governments demanding for Web user information. It is behind only from the United States government.</b>
<hr />
<p>This blog entry was <a class="external-link" href="http://whdi-reviews.com/2012/11/indian-government-at-second-position-after-u-s-a-for-demanding-user-data-from-google/">published in WHDI Reviews</a> on November 22, 2012. Pranesh Prakash is quoted.</p>
<hr />
<p>This fact came to light in the ‘Transparency Report’ published by web services major. The report covers the time period from January to June in the present year. During this time period, the Govt. of India has asked Google for user information 2,319 times over 3,647 user accounts.</p>
<p style="text-align: justify; ">This has been done by the way of court orders and requests made by police. Google has allowed the disclosure of the information sometimes partially and sometimes completely. The U.S.A government on the other hand requested for more information 7,969 requests over 16,281 accounts. The compliance rate by Google to Indian and U.S requests was 64% and 90% respectively. The report gives details about two categories of interactions: firstly to divulge data and secondly to pull down content. India now ranks 7th in the list of countries which had made requests to pull down data. India could have achieved even a better rank but owing to the lack of any constitutional power which backs its action, it has to be satisfied with the seventh position. According to Pranesh, (policy director with Bangalore-based Centre for Internet and Society) these requests for pulling down data are an attempt made by the government so that its criticism is not able to reach a wide audience.</p>
<p style="text-align: justify; ">Google (which is banned in China) supports the cause of disclosure of the information related to governments. The other net service providers which put out similar transparency reports are twitter, Linkedin and Cloud storage service Dropbox. These content pull down request made by the government is not healthy for a democratic country like India.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/news/whdi-reviews-nov-22-2012-indian-government-at-second-position-after-usa-for-demanding-user-data-from-google'>http://editors.cis-india.org/news/whdi-reviews-nov-22-2012-indian-government-at-second-position-after-usa-for-demanding-user-data-from-google</a>
</p>
No publisherpraskrishnaInternet GovernanceIntermediary Liability2012-11-30T05:05:01ZNews ItemGoogle's 'Transparency Report' sketchy, inconclusive: Government
http://editors.cis-india.org/news/articles-economic-times-nov-17-2012-indu-nandakumar-googles-transparency-report-sketchy-inconclusive
<b>Google calls it the 'Transparency Report', but as far as Indian authorities are concerned, it is anything but. The world's largest Internet company this week published its latest half-yearly findings on government requests for access to personal information, showing that both the number of requests and the rate of denials have risen. The data, according to the world's largest democracy, are too sketchy for any clear conclusions to be drawn.</b>
<hr />
<p style="text-align: justify; ">This article by Indu Nandakumar was <a class="external-link" href="http://articles.economictimes.indiatimes.com/2012-11-17/news/35170763_1_transparency-report-google-data-requests">published in the Economic Times</a> on November 17, 2012. Pranesh Prakash is quoted.</p>
<hr />
<p style="text-align: justify; ">The skirmish is happening during a year in which relations between the <a href="http://economictimes.indiatimes.com/topic/Indian%20government">Indian government</a> and <a href="http://economictimes.indiatimes.com/topic/Internet%20companies">Internet companies</a> deteriorated, with demands to take down fake <a href="http://economictimes.indiatimes.com/topic/Twitter">Twitter</a> handles and web pages that the former said threatened the security of regional and religious minorities.</p>
<div dir="LTR" id="mod-a-body-after-first-para" style="text-align: justify; ">
<p>The sum and substance of the 'Transparency Report' is that government authorities have increased the number of requests they make for personal information of user accounts on Google-owned services, including <a href="http://economictimes.indiatimes.com/topic/YouTube">YouTube</a> and Gmail. Google, on the other hand, has been denying the requests at a higher rate since it first started publishing the half-yearly report in 2010.</p>
<p>"If we believe a request is overly broad, we seek to narrow it. We may refuse to remove content or produce information, or try to narrow the request in some cases if it was not specific enough," a Google spokesman told ET. In an emailed statement, Google said it respects the legal process in India, but is keen to meet both the letter and spirit of the law before complying.</p>
<p>According to Google, in the first half of 2012, various arms of the Indian government made 2,319 requests but Google "partially or fully" complied with only 64% of those, compared with 70% in the same period in 2011 and nearly 80% in 2010. The government requests also sought information about 3,467 user accounts.</p>
<p>The department of information technology deflected requests for comment to the office of Gulshan Rai, director of India's <a href="http://economictimes.indiatimes.com/topic/Cyber%20Emergency%20Response%20Team">Cyber Emergency Response Team</a>.</p>
<p><b>India Big Market for Google</b></p>
<p>Rai said Google must "transparently" share the data pertaining to requests received by them. "It's Google data, which cannot be accessed by anybody else," he said. "We have been speaking to Google for over a year now to streamline this process and bring in more transparency, but they never came around."</p>
<p>What this could mean is that the government does not have a central repository of all requests for personal information by Indian authorities. So, by depending solely on Google, the government may be leaving itself in a position where it cannot challenge the authenticity of information in the Internet company's report. India's a significant market for Google, which has over 100 million users here with an over 95% market share of the Internet search market, according to research firm StatCounter. Google employs nearly 1,535 engineers in India. In August, the department of electronics & information technology sought 412 web pages hosted on Google to be blocked in connection with the controversial movie "Innocence of Muslims" as well as the mass exodus to the North-East states following riots in Assam.</p>
<p>"Google invariably tends to be more subjective on the adequacy of the request. Earlier they were more inclined to accept government requests. Now with the increase in the number of requests, especially since the 26/11 attacks, there is an exercise to examine the adequacy," said Pawan Duggal, a Supreme Court lawyer specialising in <a href="http://economictimes.indiatimes.com/topic/cyber%20law">cyber law</a>.</p>
</div>
<p>
For more details visit <a href='http://editors.cis-india.org/news/articles-economic-times-nov-17-2012-indu-nandakumar-googles-transparency-report-sketchy-inconclusive'>http://editors.cis-india.org/news/articles-economic-times-nov-17-2012-indu-nandakumar-googles-transparency-report-sketchy-inconclusive</a>
</p>
No publisherpraskrishnaInternet GovernanceIntermediary Liability2012-11-22T07:39:05ZNews ItemIndia ranks second globally in accessing private details of users
http://editors.cis-india.org/news/thinkdigit-internet-kul-bhushan-nov-15-2012-india-ranks-second-globally-in-accessing-private-details-of-users
<b>According to the latest transparency report released by Google, India ranks second in the world for accessing private details of its citizens, only after the U.S. The Google report lists out requests it received from governments across the world to access details of users of its various services.</b>
<hr />
<p style="text-align: justify; ">Kul Bhushan's blog post was <a class="external-link" href="http://www.thinkdigit.com/Internet/India-ranks-second-globally-in-accessing-private_11364.html">published in thinkdigit</a> on November 15, 2012. Pranesh Prakash is quoted.</p>
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<p style="text-align: justify; "><a href="http://www.thinkdigit.com/latest/google.html" target="_blank">Google's</a> data reveals India had made 2,319 requests involving 3,467 users in the first six months. The U.S. made 7,969 requests, while Brazil, which ranks third, made 1,566 requests during the same period. Worldwide 20,938 requests were made during the January-June period. The report says the information shared included complete Gmail account, chat logs, Orkut profile and search terms among others.</p>
<p style="text-align: justify; ">The requests for accessing user data from India had grown two-fold from 1,061 in July-December 2009 to 2,207 in July-December 2011, the report points out.<br /><br />According to the report, India has been consistently sending requests to remove content which it brands as defamatory and against national security. The court orders, however, to take down content has remained almost stagnant over the years; though requests from the executive and police have grown.<br /><br />In the first six months this year, there were 20 court orders and 64 requests from executive/police that resulted in 596 items being taken down from the web. During the January-June 2010 period, there were only eight court orders and 22 executive/police requests, resulting in 125 items being taken down. Read about Google's previous transparency report here.<br /><br />"Though India is a large country with a significant number of internet users, this data is nonetheless an indicator of growing surveillance," Times of India quotes Pranesh Prakash, policy director at Centre for Internet and Society ( CIS), a Bangalore-based organization looking at issues of public accountability, internet freedom and openness, as saying.<br /><br />"India lacks a general privacy law that helps set guidelines for such user requests, despite privacy being a constitutional right as part of the right to life," added Prakash.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/news/thinkdigit-internet-kul-bhushan-nov-15-2012-india-ranks-second-globally-in-accessing-private-details-of-users'>http://editors.cis-india.org/news/thinkdigit-internet-kul-bhushan-nov-15-2012-india-ranks-second-globally-in-accessing-private-details-of-users</a>
</p>
No publisherpraskrishnaInternet GovernanceIntermediary LiabilityPrivacy2012-11-19T04:49:23ZNews ItemSuper Cassettes v. MySpace
http://editors.cis-india.org/a2k/blogs/super-cassettes-v-my-space
<b>The Delhi High Court’s judgment in Super Cassettes v. MySpace last July is worrying for a number of reasons. The court failed to appreciate the working of intermediaries online and disregard all pragmatic considerations involved. The consequences for free expression and particularly for file sharing by users of services online are especially unfavourable. </b>
<p style="text-align: justify; ">The judgment<a href="#fn*" name="fr*">[*]</a>is extremely worrying since it holds MySpace liable for copyright infringement, <b>despite</b> it having shown that it did not know, and could not have known, about each instance of infringement; that it removed each instance of alleged infringement upon mere complaint; that it asked Super Cassettes to submit their songs to their song identification database and Super Cassettes didn't.</p>
<p style="text-align: justify; ">This, in essence, means, that all 'social media services' in which there is even a <b>potential</b> for copyright infringement (such as YouTube, Facebook, Twitter, etc.) are now faced with a choice of either braving lawsuits for activities of their users that they have no control over — they can at best respond to takedown requests after the infringing material has already been put up — or to wind down their operations in India.</p>
<h2 style="text-align: justify; ">The Facts</h2>
<p style="text-align: justify; ">Aside from social networking, MySpace facilitates the sharing of content between its users. This case concerns content (whose copyright vested in T-Series) was uploaded by users to MySpace’s website. It appears that tensions between MySpace and T-Series arose in 2007, when T-Series entered into talks with MySpace to grant it licenses in its copyrighted content, while MySpace asked instead that T-Series register with its rights management programme. Neither the license nor the registration came about, and the infringing material continued to be available on the MySpace website.</p>
<p style="text-align: justify; ">Specifically, T-Series alleged that cases for primary infringement under section 51(a)(i) of the Copyright Act as well as secondary infringement under section 51 (a) (ii) could be made out. Alleging that MySpace had infringed its copyrights and so affected its earnings in royalties, T-Series approached the Delhi High Court and filed a suit seeking injunctive relief and damages. In proceedings for interim relief while the suit was pending, the court granted an injunction, but, in an appeal by MySpace, added the qualification that the content would have to be taken down only on receipt of a specific catalogue of infringing works available on MySpace, rather than a general list of works in which T-Series held a copyright.</p>
<h2 style="text-align: justify; ">The Defence</h2>
<p>While other arguments such as one around the jurisdiction of the court were also raised, the central issues are listed below:</p>
<ol>
<li style="text-align: justify; ">Non-Specificity of Prayer<br />T-Series’ claim in the suit is for a blanket injunction on copyrighted content on the MySpace website. This imposes a clearly untenable, even impossible, burden for intermediaries to comply with.</li>
<li style="text-align: justify; ">Knowledge<br />MySpace argued that no liability could accrue to it on two counts. The first was that it had no actual or direct knowledge or role in the selection of the content, while the second was that no control was exercised, or was exercisable over the uploading of the content. Additionally, there was no possible means by which it could have identified the offending content and segregated it from lawful content, or monitored all of the content that it serves as a platform for.</li>
<li style="text-align: justify; ">Intermediary status and Safe Harbour Protection<br />In relation to its status as an intermediary, MySpace raised several arguments. First, it argued that it had immunity under section 79 of the IT Act and under the US Digital Millennium Copyright Act (US DMCA). Another argument restated what is arguably the most basic tenet of intermediary liability that merely providing the platform by which infringement could occur cannot amount to infringement. In other words, the mere act of facilitating expression over internet does not amount to infringement. It then made reference to its terms of use and its institution of safeguards (in the form of a hash filter, a rights management tool and a system of take-down–stay-down), which it argued clearly reflect an intention to discourage or else address cases of infringement as they arise. MySpace also emphasized that a US DMCA compliant procedure was in place, although T-Series countered that the notice and take down system would not mitigate the infringement.</li>
<li style="text-align: justify; ">Relationship between MySpace and its Users<br />Taking from previous arguments about a lack of control and its status as an intermediary, MySpace argued that it was simply a licensee of users who uploaded content. The license is limited, in that MySpace is only allowed to alter user-generated content so as to make it viewable.</li>
</ol>
<h2 style="text-align: justify; ">Outcomes</h2>
<ol>
<li style="text-align: justify; ">Infringement by Facilitation<br />The court concluded that infringement in terms of section 51 (a) (ii) had occurred in this case, since web space is a “place” in the terms required by the section and there were monetary gains in the form of ad revenue. The argument as to a lack of knowledge of infringement was also rejected on the ground that MySpace’s provision for safeguards against infringement clearly established a reason to believe that infringement will occur. Also referenced as evidence of knowledge, or at least a reason to believe infringement would occur, is the fact that MySpace modifies the format of the content before making it available on its website. It also tested for infringement by authorization in terms of section 14 read with section 51 (a) (i), but concluded that this did not arise here.</li>
<li style="text-align: justify; ">Reading away section 79?<br />The court accepted the argument made by T-Series to the effect that sections 79 and 81 of the IT Act must be read together. Since section 79 would be overridden by section 81’s non-obstante, the effect would be that rights holders’ interests under the Copyright Act will erode intermediaries’ immunity under section 79. </li>
<li style="text-align: justify; ">Due Diligence<br />The court rejected the argument that the provision of due diligence or curative measures post-infringement would be sufficient. Specifically, the contention that the quantum of content being uploaded precludes close scrutiny, given the amount of labour that would be involved, was rejected. Content should not immediately be made available but must be subject to enquiries as to its title or to authentication of its proprietor before it is made available. In fact, it holds that, “there is no reason to axiomatically make each and every work available to the public solely because user has supplied them unless the defendants are so sure that it is not infringement.” (Paragraph 88).</li>
</ol> <ol> </ol>
<p style="text-align: justify; ">There is also an attempt to distinguish the Indian framework from the DMCA. While that law calls for post-infringement measures, it is argued that in India, on reading section 51 with section 55, the focus is on preventing infringement at the threshold. In response to the case that it would be impossible to do so, the court held that since the process here requires MySpace to modify the format of content uploaded to it to make it viewable, it will have a reasonable opportunity to test for infringement.</p>
<h2 style="text-align: justify; ">Analysis</h2>
<h3>Accounting for the Medium of Communication</h3>
<p style="text-align: justify; ">The court’s analysis of the issues begins with a predictable emphasis on how the law of copyright would operate in the context of what is termed “internet computing”, peppered with trite statements about “the virtual world of internet” creating “complexit[ies]” for copyright law. The court appears to have entered into this discussion to establish that the notion of place in section 51 (a) (ii) should extend to “web space” but the statements made here only serve to contrast starkly against its subsequent failure to account for the peculiarities of form and function of intermediaries online. Had this line of argument been taken to its logical conclusion, after the character of the medium had been appreciated, the court’s final conclusion, that MySpace is liable for copyright infringement, would have been an impossible one to arrive at.</p>
<h3 style="text-align: justify; ">And What of Free Speech?</h3>
<p style="text-align: justify; ">As it had argued before the court, intermediaries such as MySpace have no means by which to determine whether content is illegal (whether by reason of amounting to a violation of copyright, or otherwise) until content is uploaded. In other words, there is no existing mechanism by which this determination can be made at the threshold, before posting.</p>
<p style="text-align: justify; ">The court does not engage with the larger consequences for such a scheme of penalizing intermediaries. Censoring patent illegalities at the threshold, even if that were possible is one thing. The precedent that the court creates here is quite another. Given the general difficulty in conclusively establishing whether there is an infringement at all due to the complexities in applying the exceptions contained under section 52, it should not be for ordinary private or commercial interests such as intermediaries to sit in judgment over whether content is or is not published at all. In order to minimize its own liability, the likelihood of legitimate content being censored by the intermediary prior to posting is high.</p>
<p style="text-align: justify; ">The consequences for civil liberties, and free speech and expression online in particular, appear to have been completely ignored in favour of rights holders’ commercial interests.</p>
<h3 style="text-align: justify; ">Consequences for Intermediary Liability and Safe Harbour Protection</h3>
<blockquote class="pullquote" style="text-align: justify; ">Even if every instance in question did amount to an infringement of copyright and a mechanism did exist allowing for removal of content, the effect of this judgment is to create a strict liability regime for intermediaries.</blockquote>
<p style="text-align: justify; ">In other words, the court’s ruling will have the effect that courts’ determination of intermediaries’ liability will become detached from whether or not any fault can be attributed to them. MySpace did make this argument, even going as far as to suggest that doing so would impose strict liability on intermediaries. This would lead to an unprecedented and entirely unjustifiable result. In spite the fact that a given intermediary did apply all available means to prevent the publication of potentially infringing content, it would remain potentially liable for any illegality in the content, even though the illegality could not have been detected or addressed.</p>
<p style="text-align: justify; ">What is perhaps even more worrying is that MySpace’s attempt at proactively and in good faith preventing copyright infringement through its terms of use and in addressing them through its post-infringement measures was explicitly cited as evidence of knowledge of and control over the uploading of copyrighted material, at the threshold rather than ex post. This creates perverse incentives for the intermediary to ignore infringement, to the detriment of rights holders, rather than act proactively to minimize its incidence.</p>
<p style="text-align: justify; ">A final observation is that the court’s use, while pronouncing on relief, of the fact that MySpace makes a “copy” of the uploaded content by converting it into a format that could subsequently be hosted on the site and made accessible to show evidence of infringement and impose liability upon MySpace in itself is a glaring instance of the disingenuous reasoning the court employs throughout the case. There is another problem with the amended section 79, which waives immunity where the intermediary “modifies” material. That term is vague and overreaches, as it does here: altering formats to make content compatible with a given platform is not comparable to choices as to the content of speech or expression, but the reading is tenable under section 79 as it stands.</p>
<p style="text-align: justify; ">The result of all of this is to dislodge the section 79 immunity that accrues to intermediaries and replace that with a presumption that they are liable, rather than not, for any illegality in the content that they passively host.</p>
<h3 style="text-align: justify; ">Effect of the Copyright (Amendment) Act, 2012</h3>
<p style="text-align: justify; ">Since the judgment in the MySpace case, the Copyright Act has been amended to include some provisions that would bear on online service providers and on intermediaries’ liability for hosting infringing content, in particular. Section 52 (1) (b) of the amended Act provides that “transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public” would not infringe copyright. The other material provision is section 52 (1) (c) which provides that “transient or incidental storage of a work or performance for the purpose of providing electronic links, access or integration, where such links, access or integration has not been expressly prohibited by the right holder, unless the person responsible is aware or has reasonable grounds for believing that such storage is of an infringing copy” will not constitute an infringement of copyright. The latter provision appears to institute a rather rudimentary, and very arguably incomplete, system of notice and takedown by way of a proviso. This requires intermediaries to takedown content on written complaint from copyright owners for a period of 21 days or until a competent rules on the matter whichever is sooner, and restore access to the content once that time period lapses, if there is no court order to sustain it beyond that period.</p>
<p style="text-align: justify; ">This post does not account for the effect that these provisions could have had on the case, but it is already clear, from the sloppy drafting of section 52 (1) (c) and its proviso that they are not entirely salutary even at the outset. At any rate, there appears to be nothing that *<i>determinatively*</i> affects intermediaries’ secondary liability, <i>i.e.</i>, their liability for users’ infringing acts.</p>
<hr />
<p style="text-align: justify; "><i>Disclosure: CIS is now a party to these proceedings at the Delhi High Court. This is a purely academic critique, and should not be seen to have any prejudice to the arguments we will make there.</i></p>
<hr />
<p>[<a href="#fr*" name="fn*">*</a>]. Super Cassettes Industries Ltd. v. MySpace Inc. and Another, on 29 July, 2011, Indian Kanoon - Search engine for Indian Law. See<a class="external-link" href="http://bit.ly/quj6JW"> http://bit.ly/quj6JW</a>, last accessed on October 31, 2012.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/super-cassettes-v-my-space'>http://editors.cis-india.org/a2k/blogs/super-cassettes-v-my-space</a>
</p>
No publisherujwalaAccess to KnowledgeCopyrightIntellectual Property RightsIntermediary LiabilityFeatured2012-10-31T10:27:36ZBlog EntryAnalyzing the Latest List of Blocked Sites (Communalism and Rioting Edition) Part II
http://editors.cis-india.org/internet-governance/analyzing-the-latest-list-of-blocked-sites-communalism-and-rioting-edition-part-ii
<b>Snehashish Ghosh does a further analysis of the leaked list of the websites blocked by the Indian Government from August 18, 2012 till August 21, 2012 (“leaked list”). </b>
<p style="text-align: justify; "><b>Unnecessary Blocks and Mistakes:</b></p>
<ol>
<li style="text-align: justify; ">http://hinduexistance.files.wordpress.com/..., which appears on the leaked list, does not exist because the URL is incorrect. However, the correct URL does contain an image which, in my opinion, can be considered to be capable of inciting violence. It has not been blocked due to a spelling error in the order. Instead of blocking hinduexist<b><i>e</i></b>nce.wordpress.com/... the DoT has ordered the blocking of hinduexist<b><i>a</i></b>nce.wordpress.com/..., which does not exist.</li>
<li style="text-align: justify; ">Two URLs in the block order are from the website of the High Council for Human Rights, Judiciary of the Islamic Republic of Iran. The reason for blocking these two links from this particular website is unclear.</li>
<li style="text-align: justify; ">The website of the Union of NGOs of the Islamic World was blocked. Again, the reason for blocking this website remains unclear.</li>
<li style="text-align: justify; ">URLs such as, http://farazahmed.com/..., mumblingminion.blogspot.com, were blocked. The content on these URLs was in fact debunking the fake photographs.</li>
<li style="text-align: justify; ">Certain blocked Facebook pages did not have any bearing on the North East exodus which was the main reason behind the blocks. For example, Facebook link leading to United States Institute for Peace page was blocked.</li>
</ol>
<p style="text-align: justify; "><b> </b></p>
<p style="text-align: justify; "><b>Duration of the Block</b></p>
<p style="text-align: justify; ">The Department of Telecommunications (DoT) did not specify the period for which the block has been implemented in its orders. As a result of which certain URLs still remain blocked while a majority of the links in the leaked list can be accessed. Lack of clear directions from the DoT has resulted in haphazard blocking and certain internet service providers (ISPs) have lifted the block on certain links whereas some other ISPs have continued with a complete block.</p>
<p style="text-align: justify; "><b> </b></p>
<p style="text-align: justify; "><b>How have the intermediaries reacted to the block orders?</b></p>
<p style="text-align: justify; ">Going by the leaked list of websites blocked by DoT, it issued the block orders to ‘all internet service licensees’. Intermediaries that do not fall in the category of 'internet service licensees’ were also sent a separate set of requests for taking down third party content. However, it is unclear under which provision of the law such request was made by the Government.</p>
<p style="text-align: justify; "><b>Internet Service Licensees</b></p>
<p style="text-align: justify; "><b><img src="http://editors.cis-india.org/home-images/chart_1.png" alt="Implementation of the order at the ISP level" class="image-inline" title="Implementation of the order at the ISP level" /><br /></b></p>
<p style="text-align: justify; ">The internet service licensee or the ISPs have not followed any uniform system to notify that a particular URL or website in the leaked list is blocked according to DoT’s orders. The lack of transparency in the implementation of the block orders, have a chilling effect on free speech.</p>
<p style="text-align: justify; ">For instance, BSNL returns the following messages:</p>
<p style="text-align: justify; ">"This website/URL has been blocked until further notice either pursuant to Court orders or on the Directions issued by the Department of Telecommunications" or “This site has been blocked as per instructions from Department of Telecom (DOT).”</p>
<p style="text-align: justify; ">However, these messages are not uniform across all the URLs/websites in the leaked list. BSNL does not generate any response for the majority of the URLs in the leaked list. This results in ‘invisible censorship’ as the person who is trying to access the blocked URL does not have any means to know whether a particular URL is unavailable or certain sites are blocked by government orders.</p>
<p style="text-align: justify; ">Lack of notification does not only infringes upon the fundamental right to freedom of speech and expression but also violates the fundamental right to a constitutional remedy guaranteed under Article 32 of our Constitution. The person aggrieved by such block orders cannot approach the Court for a remedy because there is no means to figure out:</p>
<p style="text-align: justify; ">(a) Description of the content blocked?</p>
<p style="text-align: justify; ">(b) Who has issued the block order/request?</p>
<p style="text-align: justify; ">(c) Under which provision of the law such block order/request has been issued?</p>
<p style="text-align: justify; ">(d) Who has implemented the block order/request? and</p>
<p style="text-align: justify; ">(e) What was the reason for the block?</p>
<p style="text-align: justify; ">The intermediaries should provide with the above notification details while implementing a block order issued by the Government. </p>
<p style="text-align: justify; "><b>Intermediaries hosting third party content: </b></p>
<p align="right" style="text-align: justify; ">More than 100 out of the 309 blocks are Facebook (http and https) URLs. Facebook has not informed its users about the reasons behind unavailability of certain pages or content. This is another instance of invisible censorship. However, YouTube, a Google service, has maintained certain level of transparency, and informs the user that the content has been blocked as per ‘government removal request’. It is interesting to note that certain YouTube user accounts were terminated as well. It is unclear whether this was as a result of the block order. Furthermore, links associated with blogger.com, which is another service provided by Google, have been removed.</p>
<hr />
<p align="right" style="text-align: justify; ">This was <a class="external-link" href="http://www.medianama.com/2012/09/223-analyzing-the-latest-list-of-blocked-sites-communalism-rioting-edition-part-ii/">re-posted</a> by Medianama on September 26, 2012.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/analyzing-the-latest-list-of-blocked-sites-communalism-and-rioting-edition-part-ii'>http://editors.cis-india.org/internet-governance/analyzing-the-latest-list-of-blocked-sites-communalism-and-rioting-edition-part-ii</a>
</p>
No publishersnehashishIT ActSocial mediaFreedom of Speech and ExpressionPublic AccountabilityInternet GovernanceIntermediary LiabilitySocial Networking2012-09-27T10:42:30ZBlog EntryIntermediary Liability & Freedom of Expression — Executive Summary
http://editors.cis-india.org/internet-governance/intermediary-liability-and-foe-executive-summary.pdf
<b>This document provides a critique of “The Information Technology (Intermediaries Guidelines) Rules 2011 and proposes an alternate set of Rules.</b>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/intermediary-liability-and-foe-executive-summary.pdf'>http://editors.cis-india.org/internet-governance/intermediary-liability-and-foe-executive-summary.pdf</a>
</p>
No publisherRishabh DaraFreedom of Speech and ExpressionInternet GovernanceIntermediary Liability2016-04-24T11:54:22ZFileTo regulate Net intermediaries or not is the question
http://editors.cis-india.org/internet-governance/www-deccan-herald-aug-26-2012-to-regulate-net-intermediaries-or-not-is-the-question
<b>Given the disruption to public order caused by the mass exodus of North-Eastern Indians from several cities, the government has had for the first time in many years, a legitimate case to crackdown on Internet intermediaries and their users.</b>
<hr />
<p style="text-align: justify; ">Sunil's column was <a class="external-link" href="http://www.deccanherald.com/content/274218/to-regulate-net-intermediaries-not.html">published</a> in the Deccan Herald on August 26, 2012.</p>
<hr />
<p style="text-align: justify; ">There was, of course, much room for improvement in the manner in which the government conducted the censorship. But the policy question that becomes most pertinent now is: do we need to regulate Internet intermediaries further? The answer is yes and no. <br /> <br /> There are areas where these intermediaries need to be regulated in order to protect citizen and consumer interest. But to deal with rumour-mongering and hate speech, there is sufficient provisions in Indian law to deal with the current disruption in public order and any similar disruptions in the future. <br /> <br /> It is a common misunderstanding to assume that all civil society organisations that advocate civil liberties on networked technologies are regulatory doves that wish to dismantle regulation of the private sector and allow them complete free hand for innovation and, perhaps, causing harm to public interest.<br /> <br /> The opposite is also not necessarily true. We are not hawks, those that believe in maximal regulation of the private sector. The state should regulate the private sector in areas where the citizens are unable to protect their own interest and self-regulation is inadequate. But there are many other areas where regulation needs to be dismantled in the interests of citizen and public interest. <br /> <br /> Dr Rohan Samarajiva, founder of a Colombo-based regional policy think tank LIRNEasia, explains this best using the ‘law of soft toys’. When his daughter was young he told her that in Sri Lanka there was a law which mandated that every time she got a new soft toy, she would have to necessarily give away another one.<br /> <br /> The regulatory lesson here is: the mandate for regulation cannot keep endlessly expanding. As the government moves into new areas of regulation, it should also exit other older areas where regulatory rupee is providing limited returns. These decisions should be based on evidence of harm caused to citizens and consumers. The following are a list of areas where regulation is required for Internet intermediaries:<br /> <br /> Privacy: India needs the office of the privacy commissioner established and an articulation of national privacy principles through the enactment of the long awaited Privacy Act. This privacy commissioner should be able to investigate complaints against intermediaries, proactively investigate companies, order remedial action and fine companies that violate the principles and other policies in force. Remedial action could require change in policies, features, data retention policies and services etc. <br /> <br /> Competition: Many of these intermediaries have been taken to court on anti-trust complaints, fined and subjected to remedial action by regulators in America and Europe. <br /> <br /> Earlier this year, BharatMatrimony.com has filed a complaint against Google at the Competition Commission of India (CCI) alleging anti-competitive practices in its Adwords program. In addition, based on a report submitted by Consumer Unity & Trust Society (CUTS), a civil society organisation, CCI has initiated an investigation into Google's search engine for anti-competitive practices. If they are found guilty of breaking competition law they could be fined up to 10 per cent of their turnover.<br /> <br /> Speech: Article 19(2) of the Constitution permits Parliament to enact laws that place eight categories of reasonable restrictions on speech. Unfortunately, the Information Technology Act and its associated rules attempts to expand these restrictions and in addition does not comply with the principles of natural justice. Ideally, all those impacted by the censorship should be informed and should be able to seek redress and reinstatement for the censured speech.<br /> <br /> The policy sting operation conducted by the Centre for Internet and Society (CIS) last year demonstrated that intermediaries are risk-averse and tend to over-comply with takedown notices. There is a clear chilling effect on speech online and it is important that the Act and rules be amended at the earliest.<br /> <br /> Intellectual Property: Policies that fall under this inappropriate umbrella term for many differently configured laws make the yet unproven fundamental assumption that granting limited monopolies to rights holders, usually corporations, will result in greater innovation. However, citizen and consumer interest is protected through provisions for exceptions and limitations in laws such as copyright, patent, trademarks etc. Some examples of these safeguards that guarantee access to knowledge in Indian law include compulsory licences, patent opposition, fair-dealing etc. <br /> <br /> There are many other areas where special treatment may be required for intermediaries. For example tax law needs to handle evasion techniques like the Double Irish and the Dutch Sandwich. Given my lengthy wish-list of regulation of Internet intermediaries, why then has CIS become an NGO member of the Global Network Initiative?<br /> <br /> This is because I believe that technological development happen too quickly for us to purely depend on government regulation. Self-regulation has an important role to play in keeping up with these rapid changes. As self-regulatory norms mature they could be formalised into policy by the government.<br /> <br /> Therefore, I consider it a privilege that CIS has been accepted as a member of this self-regulatory initiative and we influence GNI norms using our Indian perspective. However, when self-regulation fails to protect public interest, then the government must step in to regulate Internet intermediaries.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/www-deccan-herald-aug-26-2012-to-regulate-net-intermediaries-or-not-is-the-question'>http://editors.cis-india.org/internet-governance/www-deccan-herald-aug-26-2012-to-regulate-net-intermediaries-or-not-is-the-question</a>
</p>
No publishersunilFreedom of Speech and ExpressionPublic AccountabilityInternet GovernanceIntermediary LiabilityCensorship2012-08-26T06:12:48ZBlog EntryIndia limits social media after civil unrest
http://editors.cis-india.org/news/articles-latimes-com-mark-magnier-aug-23-2012-india-limits-social-media-after-civil-unrest
<b>Indian officials have gone too far in limiting text messages and pressuring local Internet firms as well as Twitter and others to block accounts, critics say.</b>
<hr />
<p style="text-align: justify; ">This article by Mark Magnier was published in <a class="external-link" href="http://articles.latimes.com/2012/aug/23/world/la-fg-india-twitter-20120824">Los Angeles Times</a> on August 23, 2012 and re-posted in <a class="external-link" href="http://www.channel6newsonline.com/2012/08/after-civil-unrest-indian-government-places-limits-social-media/">Channel 6 News</a> on August 24, 2012. Sunil Abraham is quoted.</p>
<hr />
<p style="text-align: justify; ">Has the Indian government lost its sense of humor?</p>
<p style="text-align: justify; ">That's what some in India were asking as word spread that authorities had pressured Twitter into blocking several accounts parodying the prime minister after civil unrest that saw dozens of people from northeastern India killed and thousands flee in panic.</p>
<p style="text-align: justify; ">This week, the government also imposed a two-week limit of five text messages a day — raised Thursday to 20 — potentially affecting hundreds of millions of people, and pressured local Internet companies as well as Facebook, Twitter and Google to block hundreds of websites and user accounts.</p>
<p style="text-align: justify; ">Although journalists, free speech advocates and bloggers said the effort to squelch rumors may be justified, several criticized the actions as excessive.</p>
<p style="text-align: justify; ">"You cannot burn the entire house to kill one mischievous mouse," said Gyana Ranjan Swain, a senior editor at Voice & Data, a networking trade magazine. "You're in the 21st century. Their thinking is still 50 years old. It's just 'kill the messenger.'"</p>
<p style="text-align: justify; ">Comedians said Indian political humor is evolving and there's more leeway to make fun of politicians than a decade ago, but the nation's mores still call for greater respect than in the West.</p>
<p style="text-align: justify; ">"If I tried something like South Park, I'd be put behind bars tomorrow," said Rahul Roushan, founder of Faking News website, which satirizes Indian current events.</p>
<p style="text-align: justify; ">Faking News has lampooned the recent corruption scandals, including specious stories about theme restaurants (where customers must bribe waiters or go hungry); and a tongue-in-cheek report that India has banned the zero because too many of them appear nowadays in auditors' reports, after recent coal and telecommunications scandals each allegedly involving more than $30 billion.</p>
<p style="text-align: justify; ">Roushan, whose site isn't blocked, said he hopes low-level officials misinterpreted government directives.</p>
<p style="text-align: justify; ">"I'm still in a state of disbelief," he said. "I don't think the government is so stupid that it can ask that parody accounts get taken down. If they did, God help this country."</p>
<p style="text-align: justify; ">A spokesman for the prime minister's office said the blocking of six fake Twitter accounts attributed to the prime minister has been in the works for months and wasn't related to the recent crisis. He said the move was in response to tweets containing hate language and caste insults that readers could easily mistake as the Indian leader's. A dozen Twitter accounts and about 300 websites were blocked, according to news reports.</p>
<p style="text-align: justify; ">"We have not lost our sense of humor," said Pankaj Pachauri, the prime minister's spokesman. "We started a procedure to take action against people misrepresenting themselves."</p>
<p style="text-align: justify; ">But some Twitter users whose accounts are frozen, including media consultant Kanchan Gupta, counter that the government may be using the crisis to muzzle critics.</p>
<p style="text-align: justify; ">"I'm very clear in my mind this is a political decision," said Gupta, who has been critical of corruption and the government's policy drift. "If they were openly confrontational of me, they'd go nowhere, so they're trying this."</p>
<p style="text-align: justify; ">Attempts to access his Twitter page Thursday were met with the message: "This website/URL has been blocked until further notice either pursuant to Court orders or on the Directions issued by the Department of Telecommunications."</p>
<p style="text-align: justify; ">Even Britain's Queen Elizabeth II has numerous parody accounts so India needs to lighten up, consultant Gupta said.</p>
<p style="text-align: justify; ">He's received several messages from worried Pakistani friends since the news broke. "They ask if I'm all right, say they hope they haven't frog-marched you to jail," he said. "What irony."</p>
<p style="text-align: justify; ">The restrictions are the latest chapter of a crisis that started in July when Muslims and members of the Bodo tribal community in northeastern India clashed over land, jobs and politics. The result: 75 people killed and 300,000 displaced.</p>
<p style="text-align: justify; ">Muslims in Mumbai, formerly Bombay, staged a sympathy demonstration last week; two more people were killed and dozens injured.</p>
<p style="text-align: justify; ">Rumors, hate messages and altered photos of supposed atrocities against Muslims soon spread on social media sites, and several people from northeastern India were beaten in Bangalore and other cities, prompting the crackdown.</p>
<p style="text-align: justify; ">New Delhi has accused Pakistani websites of fanning the online rumors. (Islamabad said it would investigate if there's any proof.) But Indian news media also reported that 20% of the websites blocked contained inflammatory material uploaded by Hindu nationalist groups in India that were apparently trying to stir up sectarian trouble.</p>
<p style="text-align: justify; ">The Twitter community has responded with derision and humor to limits on text messages on prepaid cellphones.</p>
<p style="text-align: justify; ">"Feeling deeply insulted that I still have not been blocked," tweeted user @abhijitmajumder. "Victim of govt apathy."</p>
<p style="text-align: justify; ">Sunil Abraham, head of the Bangalore civic group Center for Internet and Society, said this week's restrictions are the latest in a series of regulations and recommendations aimed at tightening Internet control.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/news/articles-latimes-com-mark-magnier-aug-23-2012-india-limits-social-media-after-civil-unrest'>http://editors.cis-india.org/news/articles-latimes-com-mark-magnier-aug-23-2012-india-limits-social-media-after-civil-unrest</a>
</p>
No publisherpraskrishnaSocial mediaFreedom of Speech and ExpressionPublic AccountabilityInternet GovernanceIntermediary LiabilityCensorship2012-09-04T11:59:01ZNews ItemGovernment asks Twitter to block fake 'PMO India' accounts; site fails to respond
http://editors.cis-india.org/news/articles-economictimes-indiatimes-com-govt-asks-twitter-to-block-fake-pmo-india-accounts-site-fails-to-respond
<b>A standoff between the government and microblogging service Twitter, that has got India's online community up in arms, continues, as Twitter is still to act on India's requests to block some of the fake 'PMO India' accounts. </b>
<hr />
<p style="text-align: justify; ">This article was <a class="external-link" href="http://articles.economictimes.indiatimes.com/2012-08-23/news/33342478_1_twitter-parody-accounts-unlawful-content">published</a> in the Economic Times on August 23, 2012. Sunil Abraham is quoted.</p>
<hr />
<p style="text-align: justify; ">India's Minister for Communications and Information Technology <a href="http://economictimes.indiatimes.com/topic/Kapil%20Sibal">Kapil Sibal</a> said, "Twitter has not responded to our requests in a satisfactory manner. The fake accounts are still there. The government of India is contemplating what action should be taken against Twitter and this will be announced as soon as we have finalised our response," he said.</p>
<p style="text-align: justify; ">Sibal further added that the government received a response from the <a href="http://economictimes.indiatimes.com/topic/US%20Department%20of%20Justice">US Department of Justice</a>, which also agreed that the content on the sites India sought to ban was inappropriate.</p>
<p style="text-align: justify; ">Twitter's operating code allows for parody accounts to be allowed as long as such accounts clearly identify as parody. The accounts in question - including @Indian_pm, @PMOIndiaa, @dryumyumsingh, @PM0India- do so.</p>
<p style="text-align: justify; ">Unlike other popular parody accounts of world leaders, though, some of these accounts make no attempt to 'spoof' tweets from the Prime Minister. The user of the @PM0India handle, with over 11 thousand followers, has changed their handle to @thehinduexpress, and tweeted "When I've to parody PM, I'll use the other a/c and RT that. For countering media and <a href="http://economictimes.indiatimes.com/topic/Congress">Congress</a>, this ID will be used. To hell with censorship."</p>
<p style="text-align: justify; ">An email by ET to <a href="http://economictimes.indiatimes.com/topic/Twitter%20Inc">Twitter Inc</a>, received no response at the time of going to press. However, news agency PTI quoted sources saying that Twitter has communicated to the PMO that it would be locating the "unlawful content". "India is important to us and we would like to have clearer communication in these matters in future," PTI quoted Twitter as saying. Official spokesperson for Indian Prime Minister's Office Pankaj Pachauri confirmed that Twitter is looking into the matter.</p>
<p style="text-align: justify; ">Over the past few days, the government has blocked around 300 websites which it blames for spreading rumours that triggered the exodus of people from the North East from several cities. <a href="http://economictimes.indiatimes.com/topic/Google">Google</a> and <a href="http://economictimes.indiatimes.com/topic/Facebook">Facebook</a> on Tuesday told ET they were working with India in removing content which can incite violence.</p>
<p style="text-align: justify; "><img class="gwt-Image" src="http://www.economictimes.indiatimes.com/photo/15610805.cms" /></p>
<p style="text-align: justify; ">"There is clear evidence that these social networks have caused harm and disruption. However, they need to be clearer about the way they go about blocking sites and other links. The block order contained around 20 accounts and over 80 <a href="http://economictimes.indiatimes.com/topic/Youtube">Youtube</a> videos.</p>
<p style="text-align: justify; ">It also had several mainstream media reports and a few Pakistani sites," Sunil Abraham, executive director of Bangalore-based <a href="http://economictimes.indiatimes.com/topic/Centre%20for%20Internet">Centre for Internet</a> and Society said. Analysts do not rule out the possibility that Twitter itself will be blocked in India if it does not act.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/news/articles-economictimes-indiatimes-com-govt-asks-twitter-to-block-fake-pmo-india-accounts-site-fails-to-respond'>http://editors.cis-india.org/news/articles-economictimes-indiatimes-com-govt-asks-twitter-to-block-fake-pmo-india-accounts-site-fails-to-respond</a>
</p>
No publisherpraskrishnaSocial mediaFreedom of Speech and ExpressionPublic AccountabilityInternet GovernanceIntermediary LiabilityCensorship2012-09-04T12:24:52ZNews ItemConstitutional Analysis of the Information Technology (Intermediaries' Guidelines) Rules, 2011
http://editors.cis-india.org/internet-governance/constitutional-analysis-of-intermediaries-guidelines-rules
<b>Ujwala Uppaluri provides a constitutional analysis of the Information Technology (Intermediaries' Guidelines) Rules notified in April 2011, and examines its compatibility with Articles 14, 19, 21 of the Constitution of India.</b>
<h2>Summary of Salient Provisions</h2>
<p style="text-align: justify; ">The <b>Information Technology (Intermediaries’ Guidelines) Rules, 2011</b> (‘<b>the Intermediary Guidelines</b>’)<b> </b> were notified in April, 2011 as rules enacted in exercise of powers conferred under section 87(2)(zg) read with Section 79 of the Information Technology Act, 2000 (as amended) (‘<b>the IT Act</b>’).</p>
<p style="text-align: justify; ">Rule 2 of the Intermediary Guidelines imports definitions for key terms from the IT Act. Notably, this includes an importation of Section 2 (w) by <b>Rule 2 (i)</b>, which defines “intermediary” broadly in the following terms:</p>
<p style="text-align: justify; ">“<i> “intermediary”, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes;</i>”<i> </i></p>
<p style="text-align: justify; ">Rule 3 whose margin note indicates that it is limited to due diligence measures to be adhered to by intermediaries nevertheless also raises other liabilities by creating a regime to censor content, pre-publication as well as once content has been made publically available online.</p>
<p style="text-align: justify; "><b>Sub-rule (2) of Rule 3</b> inventories the classes of content which are deemed actionable, with only clause (i), clause (c), clause (e) and, arguably clause (h), of that rule addressing the national interest, public order and security restrictions cognizable under Article 19(2) of the Constitution. The remainder of grounds includes private claims such as content which “belongs to another person”<a href="#fn1" name="fr1">[1]</a>, or otherwise infringes proprietary rights<a href="#fn2" name="fr2">[2]</a>, or is “defamatory”<a href="#fn3" name="fr3">[3]</a>. Still others are terminologically indeterminate and purely subjective, with the terms “grossly harmful”, “harassing” and “disparaging” being examples.</p>
<p style="text-align: justify; ">This sub-rule also includes a number of redundancies. While there is reference to libelous as well as defamatory content in clause (b), it is well established that Indian law does not admit of the former concept, instead dissolving the common law distinction between the two to treat them alike.<a href="#fn4" name="fr4">[4]</a> There is also clause (e), which prohibits content which is all ready illegal for violating the provisions of an existing statute and the residuary phrasing of the clause (b)’s reference to content which is “otherwise unlawful in any manner whatever”.</p>
<p style="text-align: justify; ">The sub-rules immediately following the list in Rule 3(2) address the consequences of users publishing content listed in that rule:</p>
<p style="text-align: justify; "><b>Sub-rule (3) of rule 3</b> provides that intermediaries will not knowingly deal in any manner whatsoever, whether by hosting, publication, transmission or otherwise, with any content of the types that are listed in the previous clause.</p>
<p style="text-align: justify; "><b>Sub-rule (4) of rule 3</b> creates a complaints mechanism in respect of content incompatible with Rule 3 (2) by requiring intermediaries to disable access to offending content within 36 hours of obtaining knowledge themselves or on being brought to “actual knowledge” by an “affected person”. The Intermediaries Guidelines do nothing to clarify what would amount to “actual knowledge”, to indicate in unambiguous terms, which parties would have sufficient <i>locus</i> to bring complaints in order to be deemed an “affected person” for the purposes of these provisions or to suggest that there is a procedure or timeline for action by the intermediary, such that requirements such notice to the author of the content and time for the preparation of a defence by the author and/or the intermediary are accounted for. Rule 3 (4) also requires that all information which is taken down be preserved, along with “associated records” for a duration of atleast ninety days for investigative purposes.</p>
<p style="text-align: justify; "><b>Sub-rule (5) of rule 3 </b>mandates that intermediaries inform users that non-compliance with the Intermediary Guidelines, <i>inter alia</i>, is a ground for the exercise of their right to terminate access or usage rights and remove non-compliant content.</p>
<p style="text-align: justify; ">Finally, <b>sub-rule (11) of rule 3 </b>requires intermediaries to name Grievance Officers to receive complaints on any matters relating to the computer resources made available by the intermediary, including for non-compliance or harm in terms of Rule 3 (2). This officer is bound to respond to the complaint within one month from the date of receipt of the complaint.</p>
<p style="text-align: justify; ">In the result, the Intermediary Guidelines create a two-track system by which private censorship is legitimized online. In the first place, intermediaries can take down content on their own motion where they are of the opinion that the content falls under any of the grounds enumerated in Rule 3 (2) or, alternatively, do so in response to a complaint, in terms of Rule 3 (4).</p>
<p style="text-align: justify; ">In addition to the provisions relating to censorship, the Intermediary Guidelines also provide for information to be given over to government agencies making a request with lawful authority and in writing under <b>sub-rule (7) of rule 3</b>, for data protection measures in accordance with the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Information) Rules, 2011 notified under Section 43A of the IT Act to be adhered to (<b>sub-rule (8) of rule 3</b>) and for intermediaries to report and share information realting to cyber security with CERT-In (<b>sub-rule (9) of rule 3</b>).</p>
<h2>Areas of Infirmity</h2>
<p style="text-align: justify; ">It is doubtful whether the Intermediary Guidelines could pass constitutional muster, on several grounds:</p>
<h3>Compatibility with Article 19 (1) (a) and (2)</h3>
<p><i>(a) Applicability of Article 19 (2) to Rule 3 (2) Grounds</i></p>
<p style="text-align: justify; ">In <i>Romesh Thappar v. State of Madras</i><a href="#fn5" name="fr5">[5]</a> the Supreme Court held that the freedom of speech and expression under Article 19(1)(a) includes the freedom to propogate and disseminate ideas. It also held that very narrow and stringent limits govern the permissibility of legislative abridgment of the right of free speech. Ordinarily, any abridgement of free speech by means of censorship must be compatible with one or more of the grounds provided for under Article 19 (2), and the Supreme Court held in <i>Express Newspapers (Private) Ltd. v. Union of India</i><a href="#fn6" name="fr6">[6]</a>that limitations on the exercise of the Article 19(1)(a) right which do not fall within Article 19(2) cannot be upheld.</p>
<p style="text-align: justify; ">Further, the right to free speech applies across all media, and the internet is no exception. In <i>Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal</i><a href="#fn7" name="fr7">[7]</a>, the Supreme Court reflected the understanding that where media are different, such that the treatment accorded to them must be different in accordance with that indicia of difference, it will treat them as such in order to uphold fundamental rights. More specifically, in <i>Ajay Goswami v. Union of India</i><a href="#fn8" name="fr8">[8]</a>, the Supreme Court opined (in <i>obiter</i>) that the internet, as a unique medium of expression, deserved a different standard of protection than other mediums that have preceded it.</p>
<p style="text-align: justify; ">Rule 3 (2) of the Intermediary Guidelines, which lists the grounds for censorship, is not complaint with Article 19 (2) for two reasons:</p>
<p style="text-align: justify; "><i>First</i>, many of the grounds mentioned have no constitutional basis whatsoever. Rule 3 (2) prohibits, <i>inter alia</i>, content which “grossly harmful”, “harassing”, “invasive of another’s privacy”, “hateful”, “disparaging”, “grossly offensive” or “menacing”, in addition to content which is simply illegal, and should be actionable <i>ex post</i> rather than prohibited <i>ex ante </i>(content infringing intellectual property under Rule 3 (2) (d), for example). Most of the terms employed are not legal standards, but merely subjective indicators of personal sensitivities, while still others though legal do not figure in Article 19 (2). Since the whole scheme of the Intermediary Guidelines is premised on these extra-constitutional grounds, they are, as a whole, subject to being to being struck down.</p>
<p style="text-align: justify; "><i>Second</i>, the restriction is unreasonable because instead of preserving rights online in accordance with <i>Ajay Goswami</i>, the Intermediary Guidelines unjustifiably abridge the right to speak and receive information on the internet. The Intermediary Guidelines overreach in their scope, by including as actionable content which is not itself punishable when communicated via any other medium. For example, disparaging speech, as long as it is not defamatory, is not criminalised in India, and cannot be because the Constitution does not allow for it. Similarly, content about gambling in print is not unlawful, but now all Internet intermediaries are required to remove any content that promotes gambling.</p>
<p style="text-align: justify; "><i>(b) Nature of Censorship: Directness of Censorship and Legitimacy of Private and Prior Censorship</i></p>
<p style="text-align: justify; ">In judging whether a statute is constitutional, the effect that the statute will have on the fundamental rights of citizens must be examined. The Supreme Court held in <i>Bennett Coleman & Co. v. Union of India</i><a href="#fn9" name="fr9">[9]</a> that the test was to examine whether the <i>effect</i> of an impugned action was to abridge a fundamental right, notwithstanding its object.</p>
<p style="text-align: justify; ">Further, while it is true in light of the Supreme Court’s holdings in <i>Prakash Jha Productions v. Union of India</i><a href="#fn10" name="fr10">[10]</a><i> </i>that pre-censorship is permissible within the Indian constitutional scheme, this permissibility is qualified. Prior censorship may be undertaken only within closely regulated circumstances, such as under the grounds in the Cinematograph Act, 1952, and even then, only by an appropriately empowered governmental entity.</p>
<p style="text-align: justify; ">The Intermediary Guidelines create mechanisms for the abridgement of the freedom of speech which amount to indirect and unjustifiable prior censorship, contrary to Article 19 (2):</p>
<p style="text-align: justify; "><i>Firstly</i>, while the state does not itself censor under these rules, it has empowered private, commercial entities to do so <i>vide </i>the Intermediary Guidelines. These rules thus transfer the executive power of censorship to private intermediaries. This amounts to an indirect form of censorship for the purposes of the <i>Bennett Coleman </i>test and has the result of increased censorship on the Internet because the state granted legislative sanction to such a system, although it does not censor by itself or through a state agency. The Intermediary Guidelines, and specifically Rule 3 (4) read with Rule 3 (2), place a burden on intermediaries to decide on the lawfulness of content as a pre-condition for their statutory exemption from liability. An intermediary, on receiving a complaint, to ensure that it continues to receive the protection offered by Section 79 of the IT Act, will be forced to disable access to the content posted by a user. Thus, the direct effect of the rules will be strict censoring of content posted on-line by users. The rules will have a direct effect on the fundamental right of freedom of speech and expression guaranteed under Article 19(1) of the Constitution unreasonable restrictions on fundamental rights, that are imposed by a statute or executive orders are liable to be struck down as unconstitutional.</p>
<p style="text-align: justify; "><i>Secondly</i>,<i> </i>while prior censorship is permissible only in a strictly limited range of cases, the Intermediary Guidelines allow for an unrestrained and unlimited degree of prior and arguably invisible censorship. Rule 3 of the Intermediary Guidelines clearly envisages such a system of prior censorship. Whereas the consequences for passively displaying content incompatible with Rule 3(2) would be a complete waiver and dissolution of the Section 79 immunity that would ordinary accrue to neutral intermediaries, intermediaries or complainants have no obligation in respect of ensuring the tenability of complaints and the grounds cited in them. The Intermediary Guidelines do not draw a distinction between arbitrary actions of an intermediary and take-downs subsequent to a request. Further, the inclusion of a residuary clause in Rule 3 (2) (b) allowing pre-censorship of content which is “unlawful in any manner whatever”, also indicates that the Intermediary Guidelines allow the use of the exceptional instrument of not only allows private censorship, but that they actively encourage it as the default rule rather than the exception without any justification whatsoever.</p>
<p style="text-align: justify; "><i>(c)</i><i> Vagueness and Overbreadth: Possibility for Over-Censorship</i></p>
<p style="text-align: justify; ">Vagueness in the terms of a restriction to free speech is grounds for it to be struck down, even where the ground is apparently broadly constitutional. The Supreme Court held in <i>Sakal Papers (P) Ltd. v. Union of India</i><a href="#fn11" name="fr11">[11]</a> that the Constitution must be interpreted in order to enable citizens to enjoy their rights to fullest measure, subject to limited permissible restrictions. In <i>Romesh Thapar</i><a href="#fn12" name="fr12">[12]</a><i> </i>the Supreme Court also held that a legislation authorizing the imposition of restrictions on free speech in language wide enough to cover restrictions which are permissible as well as extra-constitutional will be held to be wholly unconstitutional.</p>
<p style="text-align: justify; ">The grounds listed in Rule 3 (2) of the Intermediary Guidelines are highly subjective, private interest grounds which are not defined either in the Intermediary Guidelines or in the IT Act itself. These include terms such as “grossly harmful”, “harassing”, “invasive of another’s privacy”, “hateful”, “disparaging”, “grossly offensive” or “menacing”. Consequently, the Intermediary Guidelines constitute unreasonable restrictions on freedom of speech, with Rule 3 (2) containing vague terms which, in addition to falling beyond the purview of Article 19(2), cover only private and subjective grounds, incapable of objective definition or application.</p>
<p style="text-align: justify; ">Further, the Intermediary Guidelines do no precisely define the term “affected person” employed in Rule 3 (4). Thus, complaints from <i>any</i> party, including those uninvolved or unaffected by content must all be complied with, without qualification.</p>
<p style="text-align: justify; ">In the result, the vagueness of the grounds in Rule 3 (2) and the diffuse terminology of “affected person” leaves Rule 3 (2) grounds serving as placeholders for whatever claim a complainant, having no <i>locus</i> whatsoever, chooses to bring, without regard for whether it is constitutional or even legal. Online content is thus treated as presumptively illegal and take down of content as the presumptive course of action. Additionally, there is a further consequence to the vagueness and overbreadth of the terms in Rule 3 (2): because of the indeterminacy in the grounds listed thereunder, intermediaries tasked with enforcing the law will tend to err on the side of caution and censor, rather than keep speech accessible online. There is empirical evidence to show that cautious intermediaries will over-censor and over comply with complaints in order to avoid liability under Section 79 of the IT Act.<a href="#fn13" name="fr13">[13]</a></p>
<p style="text-align: justify; "><i>(d) Contravention of International Human Rights Norms & Horizontal Application</i></p>
<p style="text-align: justify; ">The censorship regime constructed by the Intermediary Guidelines is non-compliant not only with domestic requirements under the Constitution, but also with India’s obligations under international human rights law under Articles 19 of the Universal Declaration of Human Rights (‘<b>UDHR</b>’) and the International Covenant on Civil and Political Rights (‘<b>ICCPR</b>’), under the UN Human Rights Council’s Report of the Special Rapporteur Frank La Rue on the Promotion and Protection of the Right to Freedom of Opinion and Expression (2011)<a href="#fn14" name="fr14">[14]</a>(‘<b>Special Rapporteur’s Report</b>’) and the UN Human Rights Council Resolution on Internet Freedom (2012)<a href="#fn15" name="fr15">[15]</a> (‘<b>UN Internet Freedom Resolution</b>’).</p>
<p style="text-align: justify; ">While the ICCPR as well as the UDHR guarantee a right to free speech “through any…media of…choice” in their respective Articles 19, the Special Rapporteur’s Report and the UN Internet Freedom Resolution recognize the need for special efforts to be undertaken by states to preserve free speech on the internet. The former document justifies censorship only in the most limited circumstances and makes specific mention of the commercial interests that may be implicated in delivering free speech.</p>
<p style="text-align: justify; ">Through the Intermediary Guidelines, the Indian state creates a system by which the right to free speech can be systematically violated by private and undisclosed entities and even empowers them to do so, without imposing any constitutional safeguards whatsoever. Thus, egregious violations of the right to free speech and expression are a direct and inevitable consequence of the Intermediary Guidelines. To the degree that the Indian Supreme Court has enagaged with free speech online, it appears from <i>Ajay Goswami </i>that it would apply standards consistent with international law obligations to rectify the Intermediary Guidelines to meet them.</p>
<p style="text-align: justify; ">Further, the Indian Supreme Court has held, where necessary for their true enjoyement, that fundamental rights may involve a degree of horizontality in their application. In other words, private action could be guided by fundamental rights, such as in <i>Vishaka v. State of Rajasthan</i><a href="#fn16" name="fr16">[16]</a> which evidences the Supreme Court’s willingness to hold that private entities could be held to constitutional and international human rights law standards where that is necessary for the real rather than illusory enjoyment of fundamental rights.</p>
<p style="text-align: justify; ">As a result, the Intermediary Guidelines are also liable to be struck down for their failure to recognize and account for the role of private interests while empowering them with the right to curtail fundamental rights.</p>
<h3>Compatibility with Article 21</h3>
<p style="text-align: justify; "><i> (a) Adverse Impact on Privacy (and consequently on Free Speech)</i></p>
<p style="text-align: justify; ">A constitutional right to privacy has been read into Article 21’s guarantee of life and personal liberty in several instances by the Supreme Court. The State is consequently under an obligation to refrain from interfering, whether by itself or through any of its agencies, with private lives and spaces. By the same coin, laws which encourage unwarranted state or societal intrusions into private life will contravene the victim’s Article 21 right. In <i>People’s Union for Civil Liberties v. Union of India</i>,<a href="#fn17" name="fr17">[17]</a> the Supreme Court held that Article 21 privacy protected individuals against the interception and monitoring of private communications by the state in the absence of sufficient safeguards.</p>
<p style="text-align: justify; ">Also, an individual’s privacy interests in information relating to him are not dissolved merely because information is not confidential or because another entity has some property interest in that information. In <i>District Registrar and Collector, Hyderabad v. Canara Bank</i><a href="#fn18" name="fr18">[18]</a>, the Supreme Court recognized that even where the search of private documents was concerned, Article 21 protected “persons not places”, <i>i.e.</i>, that the privacy interest did not vest in property or communications but, rather, in the rightsholder himself.</p>
<p style="text-align: justify; ">The Intermediary Guidelines include no limits whatsoever on the scope of disclosures that government agencies can demand or expect to retain, in contravention of Article 21.</p>
<p style="text-align: justify; ">Specifically, Rule 3 (4), which requires data retention for a statutory minimum of ninety days of content taken down as well as “associated records”, violates users’ rights to privacy. In addition to the financial and technical burden (in storing and securing data) imposed by the Intermediary Guidelines in requiring potentially unlimited data retention by intermediaries, there is no clarity as to what or how much information precisely must be held in the form of “associated records”. Instead of subjecting data to limited and closely qualified retention by private intermediaries, and thus limiting the impairment of the fundamental right to privacy to the minimum possible degree necessary, Rule 3 (4) imposes blanket data retention requirements.</p>
<p style="text-align: justify; ">Further, Rule 3 (7), which makes any information held by an intermediary subject to being disclosed to the government upon request is also inconsistent with the requirement that the right to life and personal liberty be violated only in accordance with fair, just and reasonable procedures. Notwithstanding that Rule 3 (7) is consistent with Section 67C of the IT Act and specific rules framed in regard to the surveillance of communications, it is also unconstitutional because it fails to include any safeguards whatsoever in the process of surveillance. These would include, as minimum obligatory conditions in light of <i>PUCL</i>, the requirement that the surveilled be informed of the surveillance and be allowed to challenge its propriety <i>ex ante </i>or its procedural regularity <i>ex post</i>, or atleast administrative or judicial review <i>ex parte</i>.</p>
<p style="text-align: justify; "><i>(b) Non-compliance with Due Process and Natural Justice Requirements</i></p>
<p style="text-align: justify; ">Article 21 explicitly includes a due process guarantee. This means that the right to life and personal liberty, and its constituent rights, can be interfered with only through constitutionally consistent procedures. A cornerstone of fair procedure, compliant with the rule of law, is the notion of natural justice. Consequently, Article 21 contemplates that the procedure by which fundamental rights are curtailed will satisfy natural justice principles.</p>
<p style="text-align: justify; ">In <i>Maneka Gandhi v. Union of India</i>,<a href="#fn19" name="fr19">[19]</a> the Supreme Court held that natural justice was not a rigid or mechanical term, but one that referred to those practices and principles that would ensure<i> </i>“fair play in action”<i>.</i> In addition the Court held that all deviations<i> </i>from natural justice requirements must be supported by a sufficiently justificatory “compelling state interest”. Specifically, in <i>Union</i> <i>of</i> <i>India</i> <i>v.</i> <i>Tulsiram</i> <i>Patel</i><a href="#fn20" name="fr20">[20]</a>, the Supreme Court held that the principle of natural justice required the satisfaction of the <i>audi alteram partem</i> rule, which consisted of several requirements, including the requirement that a person against whose detriment an action is taken be informed of the case against him and be afforded a full and fair opportunity to respond. Finally, in <i>M.C. Mehta v. Union of India</i><a href="#fn21" name="fr21">[21]</a> the Supreme Court held that the absence of due notice and a reasonable opportunity to respond would vitiate any holding to the rightsholder’s detriment. <i> </i></p>
<p style="text-align: justify; ">The Intermediary Guidelines fail to satisfy the requirement of natural justice, and particularly the rights to prior notice as well as that of the affected party to a hearing:</p>
<p style="text-align: justify; ">By requiring that content be taken down swiftly (within 36 hours of complaint, under Rule 3 (4)) and by failing to require the author of the content to be informed of the complaint and its contents, the Intermediary Guidelines violate the author’s right to notice and consequently affect his/her right to prepare and present a defence at all. In practice, authors of content which is the subject of a complaint may never know of the complaint or even of the fact of the take down, given the absence of any mechanism under the rules by which they could have been informed. In a scheme for silent, invisible censorship, authors are never afforded an opportunity to challenge the take down, just as they have no opportunity to rebut the initial complaint. In addition, at any event, it is the intermediary, a biased private entity whose immunity under Section 79 of the IT Act could be called into question based on the outcome, who must make the determination as to the legality of the content.</p>
<p style="text-align: justify; ">While there is nothing to prohibit intermediaries from informing authors on the receipt of a complaint, the limited time within which action must be taken means that such intermediaries would risk liability for non-compliance with the compliant and a waiver of their Section 79 immunity, where the content is not taken down, whether because communication does not occur within the 36 hour timeframe or because an author elects to resist takedown. By creating a system in which takedowns necessarily occur in response to complaints, irrespective of their legitimacy, the Intermediary Guidelines presume and rule in favour of the complainants and in favour of (private) censorship instead of presuming in favour of the preservation of the fundamental right to free speech, or even maintaining neutrality between the two ends.</p>
<h3 style="text-align: justify; ">Compatibility with Article 14</h3>
<h2></h2>
<h2></h2>
<p style="text-align: justify; ">The guarantee of “equal protection of laws” requires equality of treatment of persons who are similarly situated, without discrimination <i>inter se</i>. It is a corollary that that persons differently situated cannot be treated alike. <i>In</i><i> E.</i><i> P.</i><i> Royappa</i><i> v. State</i><i> of</i><i> Tamil</i><i> Nadu</i><a href="#fn22" name="fr22">[22]</a><i> the</i><i> Supreme</i><i> Court</i><i> held</i><i> that arbitrary or unfair actions necessarily run counter to Article 14. The Supreme Court explained in M/S</i><i> Sharma</i><i> Transport</i><i> v.</i><i> Government</i><i> of</i><i> Andhra Pradesh</i><a href="#fn23" name="fr23">[23]</a><i> that</i> arbitrary actions are actions which are unreasonable, non-rational done capriciously or without adequate determining principle, reason or in accordance with due judgment. In addition, Article 14 also requires that state action be reasonable. I<i>n</i><i> Mahesh</i><i> Chandra</i><i> v.</i><i> Regional</i><i> Manager,</i><i> U.P.</i><i> Financial</i><i> Corporation</i><a href="#fn24" name="fr24">[24]</a><i> it was held that discretion must be exercised objectively, and that what is not fair or just will be unreasonable, and subject to being struck down as unconstitutional.</i>Additionally, Article 14 also requires that the basis upon which classifications are undertaken for the purposes of same or differential treatment be reasoned and fair. The Supreme Court held in <i>Sube Singh v. State of Haryana</i><a href="#fn25" name="fr25">[25]</a> that the state’s failure to support a classification on the touchstone of reasonability, with the existence of intelligible differentia or the rational basis of achieving a stated object, will be ground for it to be held arbitrary and unreasonable. Finally, all state action having the potential to curtail Article 14 must be reasonable, justifiable, undertaken in <i>exercise of </i>constitutional powers and be informed and guided by public interest. The Supreme Court held to this effect i<i>n</i><i> Kasturi</i><i> Lal</i><i> Lakshmi</i><i> Reddy</i><i> v.</i><i> State</i><i> of</i><i> Jammu</i><i> and</i><i> Kashmir</i><a href="#fn26" name="fr26">[26]</a>.</p>
<p style="text-align: justify; ">The Intermediary Guidelines contravene Article 14 on the following grounds:</p>
<p style="text-align: justify; "><i>First</i>, intermediaries who are not similarly situated are treated alike. Rule 2 (i) imports the IT Act’s omnibus definition of the term “intermediary”, such that all classes of intermediaries, ranging from intermediaries which control the architecture of the internet and the hardware which enables it to run (such as ISPs and DNS providers) to intermediaries that enable content creation, sharing and communications online (such as email clients, content aggregators, social networking services and content hosts), are empowered to censor and are required to comply with complaints regarding content. Intermediaries, for the purposes of the IT Act and the Intermediary Guidelines, thus refer to a large and disparate group of providers of services enabling access to as well as use of the Internet. Reasoned state action must recognize that their liabilities must necessarily vary with the specific type of service that each provides. The Intermediary Guidelines fail to do so, and are consequently incompatible with Article 14.</p>
<p style="text-align: justify; "><i>Second</i>, the Intermediary Guidelines treat the same or similar content across media differently, without apparent justification. More specifically, users of the internet are unfairly discriminated against. All of the Rule 3 (2) grounds which are not explicitly mentioned in Article 19 (2) in particular reflect this discriminatory, unreasoned treatment. To illustrate, the prohibition under Rule 3 (2) on the display of any content online when it relates to gambling treats speakers using the internet differently from speakers communicating this content via any other medium of communication. Given that nothing in the nature of the medium itself attaches a new or different character to the content, criminality or liability must attach to such content in a medium-neutral fashion. So, while content qualifying as seditious under law remains so across media, whether it be print, audio or video broadcast or online, the same as not the case for communications on the internet. In other words, while gambling itself may be prohibited under law, speech or expression involving it is nowhere prohibited under law. While such content is legal and protected across print and broadcasting media, the same content is liable to take down online. This would amount to discriminatory treatment of equal content <i>merely</i> because speakers choose the internet, and the speech occurred online.</p>
<p style="text-align: justify; "><i>Third</i>, the Intermediary Guidelines accord unrestrained discretion in the curtailment of fundamental rights to <i>private </i>functionaries, without any guidance whatsoever. This should have been the sole reserve of the state. In addition to the lack of guidance, the breadth of the grounds for censorship in Rule 3 (2), some of which are<i> themselves incapable of precise and non-subjective application</i>, means that private censorship can occur to an arguably unlimited degree. Expecting compliance with such terms, and attaching liability (for intermediaries) or a curtailment of fundamental rights (for generators of content), without the provision of a right to challenge or even, more fundamentally, be informed is both unreasonable and arbitrary.</p>
<p style="text-align: justify; ">Similarly, Rules 3 (4) and 3 (5) empower intermediaries to take down content without providing any realistic opportunity of hearing to its author. Intermediaries are accorded an adjudicatory role to the intermediary in deciding questions whether or not authors can access their fundamental right to free speech in the process. This role is ordinarily reserved for competent courts or administrative authorities, which are subject to constitutional checks and balances and a general obligation to preserve and promote fundamental rights. Assigning such functions to a self-interested private entity without any accountability whatsoever is both unreasonable as well as arbitrary.</p>
<p style="text-align: justify; "><i>Finally</i>, the Intermediary Guidelines fail to account for the public interest because they directly restrict the public’s freedom of speech and expression, without any justifiable reason, and privilege the personal and not necessarily constitutional sensitivities of private complainants instead. Rule 3(3) in effect vests an extraordinary power of censorship in intermediaries, entities which operate on the basis of private interest and outside the limits of administrative or even the most basic human rights control. Safeguards must apply to power-bearers to the degree and in the manner required in relation to the nature of the power, rather than its holder, if fundamental rights are to be legislatively preserved. While the Supreme Court in <i>A.K. Kraipak v. Union of India</i><a href="#_ftn27">[27]</a> extended the applicability of natural justice principles from judicial bodies alone and quasi-judicial bodies to administrative bodies as well, the applicability of such principles still remains limited to state entities. In other words, there is an acknowledged difficulty in applying public law standards to private, commercial entities.</p>
<p style="text-align: justify; ">The Intermediary Guidelines thus vest the right to abridge core fundamental rights (under Articles 14, 19 and 21) in private delegates operating outside public law controls that constrain the scope in which the power can be exercised and ensure that citizen interest can be preserved. In the alternative, they also failed to provide for other safeguards to prevent abuse to the detriment of fundamental rights private delegates of governmental power, even as they granted such powers in unlimited terms. As a result, the Intermediary Guidelines evidence thoughtless, arbitrary, unreasoned and unjust state action.</p>
<h3 style="text-align: justify; ">Vires vis á vis the Parent Act</h3>
<p style="text-align: justify; ">While it is permissible within the constitutional scheme for legislative functions of the Parliament to be delegated to a degree, they may be struck down on several grounds. In general, per <i>Indian</i><i> </i><i>Express</i><i> </i><i>Newspapers</i><i> </i><i>(Bombay)</i><i> </i><i>Pvt.</i><i> </i><i>Ltd.</i><i> </i><i>v.</i><i> </i><i>Union</i><i> </i><i>of</i><i> </i><i>India</i><a href="#_ftn28">,[28]</a> subordinate legislation can be challenged not only on any of grounds on which the parent legislation is vulnerable to challenge, but also on the grounds that it does not conform to parent statute, that it is contrary to other statutes or that it is unreasonable, in the sense that it is manifestly arbitrary. Notably, the Court also held here that subordinate legislation is liable to being struck down where it fails to conform to constitutional requirements, or, specifically that “it offends Article 14 or Article 19 (1) (a) of the Constitution”.</p>
<p style="text-align: justify; ">It is a well-accepted proposition that delegated legislation which travels outside the scope of its enabling law will not stand as valid. It was held in <i>Agricultural</i><i> </i><i>Market</i><i> </i><i>Committee</i><i> </i><i>v.</i><i> </i><i>Shalimar</i><i> </i><i>Chemical</i><i> </i><i>Works</i><i> </i><i>Ltd </i><a href="#_ftn29">[29]</a> that a delegate cannot alter the scope of the act under which it has been it has been empowered to make rules, or even of a provision or principle included there under. In <i>State</i><i> </i><i>of</i><i> </i><i>Karnataka</i><i> v</i><i>.</i><i> </i><i>Ganesh</i><i> </i><i>Kamath</i><a href="#_ftn30">[30]</a> the Supreme Court held that “it is a well settled principle of interpretation of statutes that the conferment of rule-making power by an Act does not enable the rule-making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent there with or repugnant thereto”. Similarly, in <i>KSEB</i><i> </i><i>v.</i><i> </i><i>Indian</i><i> </i><i>Aluminium</i><i> </i><i>Company</i><a href="#_ftn31">[31]</a>, it held that“subordinate legislation cannot be said to be valid unless it is within the scope of the rule making power provided in the statute”.</p>
<p style="text-align: justify; ">The Intermediary Guidelines were enacted under Sections 79(2) and 87(2)(zg) of the Information Technology Act, 2000 (as amended). While the latter provision explicitly grants the Central Government rule-making powers by which it can lay out guidelines to be followed by intermediaries in order to comply with Section 79(2), it appears that the rules in their current form appear to have been drafted based on a misunderstanding of Section 79.</p>
<p style="text-align: justify; ">Section 79(2) itself merely clarifies the circumstances in which intermediaries can claim that intermediaries are not liable for content where they do not initiate the transmission of potentially actionable content or select its recipient, modify its contents and observe all necessary “due diligence” requirements under the IT Act and rules.</p>
<p style="text-align: justify; ">The extent to which the Intermediary Guidelines alter the intent and scope of section 79 (or other provisions of the IT Act, in some cases) clearly leaves them <i>ultra vires</i> the parent statute. The specific instances of deviation by the Intermediary Guidelines from the IT Act are listed below:</p>
<p style="text-align: justify; "><i>First</i>, Rule 3 (3) is ultra vires section 79 of the IT Act. Where this rule expressly prohibits the hosting, publication or initiation of transmission of content described in Rule 3 (2), section 79 does not intend any prohibition. All that it does is to waive the immunity otherwise accorded to intermediaries where the conditions specified are not satisfied. In other words, the section is optional, rather than mandatory and punitive: whether or not an intermediary can claim immunity will depend on whether it chooses to comply with section 79 (2).</p>
<p style="text-align: justify; "><i>Second</i>, Rule 3 (4) requires intermediaries to take steps to disable access to within 36 hours of receiving a complaint in relation thereto. This is inconsistent with section 69B of the IT Act, which lays down in detail, the procedure to be followed to disable access to information. Since section 69B is statutory law, Rule 3 (4), being mere delegated legislation, will have to yield in its favour.</p>
<p style="text-align: justify; "><i>Third</i>, Rule 3 (7) is <i>ultra</i><i> </i><i>vires</i> sections 69 and 69B, and falls outside the scope of section 79 (2). Rule 3 (7) provides that intermediaries must comply with requests for information or assistance when required to do so by appropriate authorities. This provision has no relation to the contents of section 79, which regulates intermediaries’ liability for content, and under which these rules were notified. In addition, rules have already been issued under the properly relevant sections, namely sections 69 and 69B, to provide a procedure to be followed by the government for the interception, monitoring, and decryption of information held by intermediaries. Rule 3 (7) is not consistent with the rules under sections 69 and 69B, as it removes all safeguards that those rules included. Under the Information Technology (Procedure and Safeguards for Interception, Monitoring, and Decryption) Rules 2009, for instance, permission must be obtained from the competent authority before an intermediary can be directed to provide access to its records and facilities while Rule 3 (7) makes intermediaries answerable to virtually any request from any government agency.</p>
<p align="left"><b> </b></p>
<hr align="left" size="1" width="33%" />
<p>[<a href="#fr1" name="fn1">1</a>]. Rule 3 (2) (a).</p>
<p>[<a href="#fr2" name="fn2">2</a>]. Rule 3 (2) (d).</p>
<p>[<a href="#fr3" name="fn3">3</a>]. Rule 3 (2) (b)</p>
<p>[<a href="#fr4" name="fn4">4</a>]. Section 499, Indian Penal Code, 1860 (“Defamation” is defined to include both written and spoken words).</p>
<p>[<a href="#fr5" name="fn5">5</a>]. AIR 1950 SC 124.</p>
<p>[<a href="#fr6" name="fn6">6</a>]. AIR 1958 SC 578.</p>
<p>[<a href="#fr7" name="fn7">7</a>]. AIR 1995 SC 1236.</p>
<p>[<a href="#fr8" name="fn8">8</a>].(2007) 1 SCC 170.</p>
<p>[<a href="#fr9" name="fn9">9</a>]. AIR 1973 SC 106.</p>
<p>[<a href="#fr10" name="fn10">10</a>]. (2011) 8 SCC 372.</p>
<p>[<a href="#fr11" name="fn11">11</a>]. AIR 1962 SC 305, ¶31.</p>
<p>[<a href="#fr12" name="fn12">12</a>]. <i>Supra, </i>n.5.</p>
<p>[<a href="#fr13" name="fn13">13</a>]. Centre for Internet & Society, <i>Intermediary Liability in India</i><i>: Chilling Effects on Free Expression on the Internet 2011</i> <i>available at</i> cis-india.org/internet-governance/chilling-effects-on-free-expression-on-internet/intermediary-liability-in-india.pdf.</p>
<p>[<a href="#fr14" name="fn14">14</a>]. UN Document no. A/HRC/17/27.</p>
<p>[<a href="#fr15" name="fn15">15</a>]. UN Document no. A/HRC/20/.13.</p>
<p>[<a href="#fr16" name="fn16">16</a>]. AIR 1997 SC 3011.</p>
<p>[<a href="#fr17" name="fn17">17</a>]. AIR 1997 SC 568.</p>
<p>[<a href="#fr18" name="fn18">18</a>]. (2005) 1 SCC 496.</p>
<p>[<a href="#fr19" name="fn19">19</a>]. 1978 SCR (2) 621.</p>
<p>[<a href="#fr20" name="fn20">20</a>]. AIR 1985 SC 1416.</p>
<p>[<a href="#fr21" name="fn21">21</a>]. AIR 1999 SC 2583.</p>
<p>[<a href="#fr22" name="fn22">22</a>]. AIR 1974 SC 555.</p>
<p>[<a href="#fr23" name="fn23">23</a>]. AIR 2002 SC<i> </i>322<i>.</i></p>
<p>[<a href="#fr24" name="fn24">24</a>]. AIR 1993 SC 935<i>.</i></p>
<p>[<a href="#fr25" name="fn25">25</a>]. (2001) 7 SCC 545, 548, ¶10.</p>
<p>[<a href="#fr26" name="fn26">26</a>].1980 AIR 1992.</p>
<p>[<a href="#fr27" name="fn27">27</a>]. <i>AIR</i> 1970 SC 150.</p>
<p>[<a href="#fr28" name="fn28">28</a>]. AIR 1986 SC 515.</p>
<p>[<a href="#fr29" name="fn29">29</a>]. AIR 1997 SC 2502.</p>
<p>[<a href="#fr30" name="fn30">30</a>]. (1983) 2 SCC 40.</p>
<p>[<a href="#fr35" name="fn31">31</a>]. AIR 1976 SC 1031.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/constitutional-analysis-of-intermediaries-guidelines-rules'>http://editors.cis-india.org/internet-governance/constitutional-analysis-of-intermediaries-guidelines-rules</a>
</p>
No publisherujwalaInternet GovernanceIntermediary LiabilityInformation Technology2012-10-31T08:44:41ZBlog EntryIndia: The New Front Line in the Global Struggle for Internet Freedom
http://editors.cis-india.org/news/india-the-new-front-line-in-the-global-struggle-for-internet-freedom
<b>The government tussles with Internet freedom activists in the world's largest democracy.</b>
<p><a class="external-link" href="http://www.theatlantic.com/international/archive/2012/06/india-the-new-front-line-in-the-global-struggle-for-internet-freedom/258237/">This article was published in the Atlantic on June 7, 2012</a></p>
<p>This Saturday, Indian Internet freedom advocates are planning to stage a nation-wide protest against what they see as their government's increasingly restrictive regulation of the Internet. An amorphous alliance of concerned citizens and activist hackers intend to use the streets and the Internet itself to make their opposition felt. </p>
<p>Over the last year, as Americans were focused on the domestic debates surrounding the <a class="external-link" href="http://www.forbes.com/fdc/welcome_mjx.shtml">Stop Online Piracy Act (SOPA) and the Protect Intellectual Property Act (PIPA)</a>, or on the more brazen displays of online censorship by mainstays of Internet restriction like China, Iran and Pakistan, India was rapidly emerging as a key battleground in the worldwide struggle for Internet freedom.</p>
<p>The confrontation escalated in April 2011, when the Ministry of Communications and Information Technology introduced sweeping new rules regulating the nature of material that Internet companies could host online. In response, civil liberties groups, Internet freedom supporters, and a growing assembly of online activist hackers have been fighting back, initiating street protests, organizing online petitions, and launching -- under the banner of the "Anonymous" hacker group -- a torrent of distributed denial of service (DDoS) attacks against Indian government and industry web sites. </p>
<p>The <a class="external-link" href="http://www.mit.gov.in/sites/upload_files/dit/files/GSR314E_10511%281%29.pdf">April 2011 rules</a>, an update to India's <a class="external-link" href="http://www.mit.gov.in/sites/upload_files/dit/files/downloads/itact2000/it_amendment_act2008.pdf">Information Technology Act</a> (IT Act) of 2000 (amended in 2008), popularly known as the "intermediary guidelines," instruct online "intermediaries" -- companies that provide Internet access, host online content, websites, or search services -- to remove, within 36 hours, any material deemed to be "grossly harmful, harassing, blasphemous," "ethnically objectionable," or "disparaging" by any Internet user who submits a formal objection letter to that intermediary. Under the guidelines, any resident of India can compel Google, at the risk of criminal and/or civil liability, to remove content from its site that the resident finds politically, religiously, or otherwise "objectionable." </p>
<p>Information Technology Minister Kapil Sibal -- the intermediary guidelines' most important government evangelist, and the head of the agency responsible for administering the guidelines -- even <a class="external-link" href="http://india.blogs.nytimes.com/2011/12/05/india-asks-google-facebook-others-to-screen-user-content/">instructed Internet companies</a> to go one step further and start pre-screening content for removal before it was flagged by concerned users. This requires companies like Facebook, in effect, to determine what material might offend its users and thus violate Indian law, and then remove it from the website. With <a class="external-link" href="http://articles.economictimes.indiatimes.com/2011-12-15/news/30520358_1_e-commerce-indian-internet-space-internet-and-mobile-association">over 100 million Internet users</a> in India, no company could possibly monitor all its content through human intervention alone; web companies would have to set up filters and other mechanisms to take down potentially objectionable content more or less automatically.</p>
<p>India's constitution, in large part crafted in response to the modern country's harrowing history of religious and communal violence, allows for "reasonable restrictions" on free speech. Indian officials have at times banned certain books, movies, or other materials touching on such sensitive subjects as religion and caste. </p>
<p>Left with little choice but to comply or risk legal action, Google, Yahoo!, and other Internet companies acquiesced and <a class="external-link" href="http://www.reuters.com/article/2012/02/06/india-internet-idUSL4E8D66SM20120206">began pulling down </a>webpages after receiving requests to do so. Yet many companies refused to remove all the content requested, prompting Mufti Aijaz Arshad Qasm, an Islamic scholar, and journalist Vinay Rai, respectively, to file civil and criminal suits against 22 of the largest Internet companies operating in India. The targets, including Google, Yahoo!, Facebook, and Microsoft, were accused of failing to remove material deemed to be offensive to the Prophet Mohammed, Jesus, several Hindu gods and goddesses, and various political leaders. </p>
<p>The companies have had some success in the litigation: Google India, Yahoo!, and Microsoft have all <a class="external-link" href="http://online.wsj.com/article/SB10001424052702304356604577341101544076864.html">been dropped</a> from the civil case after the court heard preliminary arguments; the Delhi High Court recently dismissed Microsoft from the criminal case. Otherwise, both cases are still ongoing.</p>
<p>India has taken its Internet regulation internationally, <a class="external-link" href="http://www.thinkdigit.com/Internet/India-asks-US-to-remove-objectionable-content_9366.html">asking</a> the United States government to ensure that India-specific objectionable content is removed from sites such as Facebook, Google, and YouTube, and suggesting that these companies should be asked to relocate their servers to India in to order better to regulate the content locally.</p>
<p>The Indian government's state-centric view of Internet regulation and governance is also clear in their approach to international governance. Citing the need for more governmental input in the Internet's development and what happens online, India formally <a class="external-link" href="http://content.ibnlive.in.com/article/21-May-2012documents/full-text-indias-un-proposal-to-control-the-internet-259971-53.html">proposed the creation</a> of the Committee for Internet Related Policies (CIRP) at the 2011 United Nations General Assembly. The CIRP would be an entirely new multilateral UN body responsible for coordinating virtually all Internet governance functions, including multilateral treaties. </p>
<p>To be fair, some Indians see these as efforts not to impose censorship but to allow a greater degree of Indian and international control over a system considered by many in India and elsewhere to be <a class="external-link" href="http://www.thehindu.com/opinion/op-ed/article3426292.ece">under the thumb of the U.S. government</a>. </p>
<p>Yet some Internet experts in both India and the West are criticizing the CIRP proposal as part of "<a class="external-link" href="http://articles.timesofindia.indiatimes.com/2012-05-21/internet/31800574_1_governance-cyber-security-internet">thinly masked efforts to control or shape the Internet</a>," as one Indian official put it. They<a class="external-link" href="http://www.huffingtonpost.com/joe-waz/internet-governance-at-a-_b_1203125.html"> warn</a> that a state-centric system of Internet governance could lead to serious restrictions on the type of information available online, and damage the Internet's potential for innovation.</p>
<p><img src="http://editors.cis-india.org/home-images/IndiaAnonymous.jpg/image_preview" alt="India Anonymous" class="image-inline image-inline" title="India Anonymous" /></p>
<p>India's Internet freedom advocates are straining to keep up with the rapid pace of the last year. But, now, they're gathering some steam. Online petitions against the intermediary guidelines, the IT Act, and censorship in India in general have appeared on <a class="external-link" href="https://www.change.org/petitions/mps-of-india-support-the-annulment-motion-to-protect-internet-freedom-stopitrules">Change.org</a> and <a class="external-link" href="https://www.facebook.com/saveyourvoice">Facebook</a>; <a class="external-link" href="http://www.youtube.com/watch?v=HtA194jig3s">protest videos</a> are popping up on Youtube. The Centre for Internet and Society, a web-focused think tank, released an <a href="http://editors.cis-india.org/internet-governance/chilling-effects-on-free-expression-on-internet" class="external-link">extensive report highlighting</a> the intermediary guidelines' effects on freedom online. The Internet Democracy Project <a class="external-link" href="http://lighthouseinsights.in/bloggers-against-internet-censorship.html">organized a day-long training program</a> on freedom of expression and censorship for bloggers entitled "Make Blog not War." FreeSoftware Movement Karnataka organized a protest of hundreds of students in Bangalore, India's IT hub. And Save Your Voice activists <a class="external-link" href="http://kafila.org/2012/04/22/freedom-in-the-cage-photos-from-a-protest-against-internet-censorship-in-delhi/">held a sit in</a> outside Delhi's Jantar Mantar monument to pressure lawmakers.</p>
<p>Yet, not all the opposition has been so civil. Hackers, operating under the umbrella of the techno-libertarian hacker community, "Anonymous," are waging their own, less lawful fight against the government as well as the Internet companies that have, in their view, too readily complied with the government's censorship demands. </p>
<p>On May 17, Anonymous hackers attacked a number of Indian <a class="external-link" href="http://tech2.in.com/news/web-services/supreme-court-website-hacked-in-response-to-tpb-vimeo-block/307532">government websites</a>, including the Indian Supreme Court, the Reserve Bank of India, the ruling Congress Party and its <a class="external-link" href="http://windowsera.com/anonymous-india-hacks-aitmc-mizoram-government-website-redirects-to-twitter">coalition partners</a>, as well as the opposition Bhartiya Janata Party (BJP), making them all inaccessible for several hours. </p>
<p>Moreover, just this past week, Anonymous broke into the websites and servers of a number of Internet Service Providers, including <a class="external-link" href="http://www.firstpost.com/tech/anonymous-strikes-rcom-to-protest-india-net-censorship-322241.html">Reliance Communications</a>, seemingly to punish them for complying with government orders to block file-sharing hosts such as Pirate Bay and Vimeo. Once in the ISPs' servers, the hackers accessed their lists of <a class="external-link" href="http://tech2.in.com/news/general/anonymous-india-releases-blocked-sites-list-plans-peaceful-protest/310682">blocked sites</a> -- which they then distributed to media outlets. They also redirected people who tried to reach Reliance's site to an Anonymous <a class="external-link" href="http://www.cio.in/sites/default/files/topstory/2012/05/reliance_network_hacked.JPG">protest page</a>. </p>
<p>Building on the momentum of these attacks, and on the anti-censorship outrage growing across India, Anonymous <a class="external-link" href="http://articles.timesofindia.indiatimes.com/2012-05-31/internet/31920036_1_occupy-protests-government-sites-website">has called for a national day of protest</a> in 11 Indian cities this Saturday, and an additional series online attacks against government and industry websites. The occupy-style protests -- which Anonymous insists will be non-violent -- are to include awareness campaigns on Facebook and other social networking sites. Protesters are being asked to don the <a class="external-link" href="http://en.wikipedia.org/wiki/File:Anonymous_at_Scientology_in_Los_Angeles.jpg">Guy Fawkes mask</a>, a symbol now associated with Anonymous, among other protest movements, both in the streets and on their Facebook profiles. </p>
<p>It's unclear how much support the June 9 protest will receive, or how serious the planned Anonymous attacks with be, but given the attention that the announcement has attracted in the Indian media, it seems likely that people will at least be paying attention. And even if this weekend the protest fails to attract the type of large and vocal response protest organizers are hoping it will, that it's come so far is an indication that neither side looks ready to back down.</p>
<p>Still, the government has given some small signs recently that it is reconsidering its position on the "intermediary guidelines," if not on Internet regulation more generally. Information Technology Minister Sibal, under pressure from the political opposition and after Parliament Member P. Rajeeve tabled a motion to seek rescission of the new rules,<a class="external-link" href="http://indiatoday.intoday.in/story/kapil-sibal-promises-to-rethink-on-internet-censorship/1/189265.html"> indicated</a> that he would reconsider his previous positions, and the government has agreed to <a class="external-link" href="http://articles.economictimes.indiatimes.com/2012-05-18/news/31765682_1_internet-rules-arun-jaitley-information-technology-rules">reexamine the rules</a>. </p>
<p>This is an encouraging sign, although it's unlikely that any government action will come in time to forestall this weekend's protests. But even if the intermediary guidelines are ultimately rescinded, India will likely continue its soul-searching on how it deals with the Internet.</p>
<p>As the world's largest democracy and a model for much of the developing world, and with an Internet population anticipated to surpass that of the United States in the next few years, India is an important, maybe the most important, test case for the future of Internet freedom globally. Should India continue down a course of restriction, other nations eager to restrict online speech could see precedent to impose their own technical and political barriers to free expression online. It would be a tragic irony if India, as one of the developing world's greatest beneficiaries of the information revolution, ended up curbing those same free flows of information and ideas.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/news/india-the-new-front-line-in-the-global-struggle-for-internet-freedom'>http://editors.cis-india.org/news/india-the-new-front-line-in-the-global-struggle-for-internet-freedom</a>
</p>
No publisherpraskrishnaFreedom of Speech and ExpressionInternet GovernanceIntermediary LiabilityCensorship2012-06-18T07:10:21ZNews ItemDo IT Rules 2011 indirectly leads to Censorship of Internet
http://editors.cis-india.org/news/do-it-rules-indirectly-lead-to-censorship-of-internet
<b>Pranesh Prakash along with Dr. Arvind Gupta, National Convener, BJP IT Cell and Ms.
Mishi Choudhary, Executive Director, SFLC participated in a panel discussion on censorship of the Internet on May 8, 2012.
</b>
<p>The discussion was broadcast on Yuva iTV. See the video below:</p>
<h2>Video</h2>
<p><iframe src="http://www.youtube.com/embed/KRIJRhpW-Bc" frameborder="0" height="315" width="320"></iframe></p>
<p><a class="external-link" href="http://www.youtube.com/watch?v=KRIJRhpW-Bc">Click for the video on YouTube</a></p>
<p>
For more details visit <a href='http://editors.cis-india.org/news/do-it-rules-indirectly-lead-to-censorship-of-internet'>http://editors.cis-india.org/news/do-it-rules-indirectly-lead-to-censorship-of-internet</a>
</p>
No publisherpraskrishnaIT ActInternet GovernanceVideoIntermediary LiabilityCensorship2012-05-31T09:00:41ZNews ItemGoogle Policy Fellowship Programme: Call for Applications
http://editors.cis-india.org/internet-governance/google-policy-fellowship
<b>The Centre for Internet & Society (CIS) is inviting applications for the Google Policy Fellowship programme. Google is providing a USD 7,500 stipend to the India Fellow, who will be selected by August 15, 2012.</b>
<p>The <a class="external-link" href="http://www.google.com/policyfellowship/">Google Policy Fellowship</a> offers successful candidates an opportunity to develop research and debate on the fellowship focus areas, which include Access to Knowledge, Openness in India, Freedom of Expression, Privacy, and Telecom, for a period of about ten weeks starting from August 2012 upto October 2012. CIS will select the India Fellow. Send in your applications for the position by June 27, 2012.</p>
<p>To apply, please send to<a class="external-link" href="mailto:google.fellowship@cis-india.org"> google.fellowship@cis-india.org</a> the following materials:</p>
<ol><li><strong>Statement of Purpose</strong>: A brief write-up outlining about your interest and qualifications for the programme including the relevant academic, professional and extracurricular experiences. As part of the write-up, also explain on what you hope to gain from participation in the programme and what research work concerning free expression online you would like to further through this programme. (About 1200 words max).</li><li><strong>Resume</strong></li><li><strong>Three references</strong></li></ol>
<h2>Fellowship Focus Areas</h2>
<ul><li><strong>Access to Knowledge</strong>: Studies looking at access to knowledge issues in India in light of copyright law, consumers law, parallel imports and the interplay between pervasive technologies and intellectual property rights, targeted at policymakers, Members of Parliament, publishers, photographers, filmmakers, etc.</li><li><strong>Openness in India</strong>: Studies with policy recommendations on open access to scholarly literature, free access to law, open content, open standards, free and open source software, aimed at policymakers, policy researchers, academics and the general public. </li><li><strong>Freedom of Expression</strong>: Studies on policy, regulatory and legislative issues concerning censorship and freedom of speech and expression online, aimed at bloggers, journalists, authors and the general public.</li><li><strong>Privacy</strong>: Studies on privacy issues like data protection and the right to information, limits to privacy in light of the provisions of the constitution, media norms and privacy, banking and financial privacy, workplace privacy, privacy and wire-tapping, e-governance and privacy, medical privacy, consumer privacy, etc., aimed at policymakers and the public.</li><li><strong>Telecom</strong>: Building awareness and capacity on telecommunication policy in India for researchers and academicians, policymakers and regulators, consumer and civil society organisations, education and library institutions and lay persons through the creation of a dedicated web based resource focusing on knowledge dissemination.<br /></li></ul>
<h2>Frequently Asked Questions</h2>
<ul><li><strong>What is the Google Policy Fellowship program?</strong><br />The Google Policy Fellowship program offers students interested in Internet and technology related policy issues with an opportunity to spend their summer working on these issues at the Centre for Internet and Society at Bangalore. Students will work for a period of ten weeks starting from July 2012. The research agenda for the program is based on legal and policy frameworks in the region connected to the ground-level perceptions of the fellowship focus areas mentioned above.<br /></li></ul>
<ul><li><strong>I am an International student can I apply and participate in the program? Are there any age restrictions on participating?</strong><br />Yes. You must be 18 years of age or older by January 1, 2012 to be eligible to participate in Google Policy Fellowship program in 2012.<br /></li></ul>
<ul><li><strong>Are there citizenship requirements for the Fellowship?</strong><br />For the time being, we are only accepting students eligible to work in India (e.g. Indian citizens, permanent residents of India, and individuals presently holding an Indian student visa. Google cannot provide guidance or assistance on obtaining the necessary documentation to meet the criteria.<br /></li></ul>
<ul><li><strong>Who is eligible to participate as a student in Google Policy Fellowship program?</strong><br />In order to participate in the program, you must be a student. Google defines a student as an individual enrolled in or accepted into an accredited institution including (but not necessarily limited to) colleges, universities, masters programs, PhD programs and undergraduate programs. Eligibility is based on enrollment in an accredited university by January 1, 2012.<br /></li></ul>
<ul><li><strong>I am an International student can I apply and participate in the program?</strong><br />In order to participate in the program, you must be a student (see Google's definition of a student above). You must also be eligible to work in India (see section on citizen requirements for fellowship above). Google cannot provide guidance or assistance on obtaining the necessary documentation to meet this criterion.</li><li><strong>I have been accepted into an accredited post-secondary school program, but have not yet begun attending. Can I still take part in the program?</strong><br />As long as you are enrolled in a college or university program as of January 1, 2012, you are eligible to participate in the program.</li><li><strong>I graduate in the middle of the program. Can I still participate?</strong><br />As long as you are enrolled in a college or university program as of January 1, 2012, you are eligible to participate in the program.</li></ul>
<h2>Payments, Forms, and Other Administrative Stuff</h2>
<h3>How do payments work?*</h3>
<p>Google will provide a stipend of USD 7,500 equivalent to each Fellow for the summer.</p>
<ul><li>Accepted students in good standing with their host organization will receive a USD 2,500 stipend payable shortly after they begin the Fellowship in August 2012.</li><li>Students who receive passing mid-term evaluations by their host organization will receive a USD 1,500 stipend shortly after the mid-term evaluation in September 2012.</li><li>Students who receive passing final evaluations by their host organization and who have submitted their final program evaluations will receive a USD 3,500 stipend shortly after final evaluations in October 2012.</li></ul>
<p>Please note: <em>Payments will be made by electronic bank transfer, and are contingent upon satisfactory evaluations by the host organization, completion of all required enrollment and other forms. Fellows are responsible for payment of any taxes associated with their receipt of the Fellowship stipend</em>.</p>
<p><strong>*</strong>While the three step payment structure given here corresponds to the one in the United States, disbursement of the amount may be altered as felt necessary.</p>
<h3>What documentation is required from students?</h3>
<p>Students should be prepared, upon request, to provide Google or the host organization with transcripts from their accredited institution as proof of enrollment or admission status. Transcripts do not need to be official (photo copy of original will be sufficient).</p>
<h3>I would like to use the work I did for my Google Policy Fellowship to obtain course credit from my university. Is this acceptable?</h3>
<p>Yes. If you need documentation from Google to provide to your school for course credit, you can contact Google. We will not provide documentation until we have received a final evaluation from your mentoring organization.</p>
<h2>Host Organizations<br /></h2>
<h3>What is Google's relationship with the Centre for Internet and Society?</h3>
<p>Google provides the funding and administrative support for individual fellows directly. Google and the Centre for Internet and Society are not partners or affiliates. The Centre for Internet and Society does not represent the views or opinions of Google and cannot bind Google legally.</p>
<h2>Important Dates<br /></h2>
<h3><strong>What is the program timeline?</strong></h3>
<table class="plain">
<tbody>
<tr>
<td>June 27, 2012</td>
<td>Student Application Deadline. Applications must be received by midnight.</td>
</tr>
<tr>
<td>July 18, 2012</td>
<td>Student applicants are notified of the status of their applications.</td>
</tr>
<tr>
<td>August 2012</td>
<td>Students begin their fellowship with the host organization (start date to be determined by students and the host organization); Google issues initial student stipends.</td>
</tr>
<tr>
<td>September 2012</td>
<td>Mid-term evaluations; Google issues mid-term stipends.</td>
</tr>
<tr>
<td>October 2012</td>
<td>Final evaluations; Google issues final stipends.</td>
</tr>
</tbody>
</table>
<p> </p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/google-policy-fellowship'>http://editors.cis-india.org/internet-governance/google-policy-fellowship</a>
</p>
No publisherpraskrishnaAccess to KnowledgeFreedom of Speech and ExpressionPublic AccountabilityInternet GovernanceResearchTelecomIntermediary LiabilityCensorshipOpenness2012-05-24T15:38:28ZBlog EntryMPs oppose curbs on internet; Sibal promises discussions
http://editors.cis-india.org/news/mps-oppose-curbs-on-internet
<b>With MPs raising concerns over open-ended interpretations of restrictive terms in the rules seeking to regulate social media and internet, the government promised to evolve a consensus on points of contention.</b>
<p><a class="external-link" href="http://goo.gl/MCXLB">Pranesh Prakash is quoted in this article published by the Times of India on May 18, 2012</a></p>
<p>Telecom minister Kapil Sibal's assurance came at the end of an engrossing debate in Rajya Sabha on a motion moved by CPM MP P Rajeeve who said the rules violated freedom of expression and free speech.</p>
<p>He found support from leader of opposition <a class="external-link" href="http://timesofindia.indiatimes.com/topic/Arun-Jaitley">Arun Jaitley</a> who picked several examples to point out that terms or descriptions like "harmful", "blasphemous" and "defamatory" did not lend themselves to precise legal definitions.</p>
<p>Jaitley said what the government may find defamatory may not be seen in similar light by its critics. He also pointed to the difficulties of controlling technology and asked if it was desirable to do so.</p>
<p>Assuring MPs who sought the annulment of 'rules' which are aimed at regulating internet content, <a class="external-link" href="http://timesofindia.indiatimes.com/topic/United-Company-RUSAL">Sibal</a> said, "My assurance to the House is that I will request the MPs to write letters to me objecting to any specific words. I will then call a meeting of the members as well as the industry and all stakeholders. We will have a discussion and whatever consensus emerges, we will implement it."</p>
<p>The move to put rules in place flows from the government's annoyance with what it sees as scurrilous and disrespectful comments about senior Congress leaders. It had suggested pre-screening of content which service providers were reluctant to consider.</p>
<p>The motion for annulling the Information Technology (Intermediaries Guidelines) Rules notified in April 2011 was, however, defeated by a voice vote. Justifying the rules, the minister said "these are sensitive issues" as most internet companies were registered abroad and not subjected to Indian laws.</p>
<p>TOI was first to report about the new rules that put a lot of the onus on intermediaries like internet service providers, Facebook and Twitter, to manage and monitor content produced by their users. Web activists believe the IT rules are open to arbitrary interpretation and can be misused to silence freedom of speech.</p>
<p>Google, which participated in the public consultative process before the rules were framed, had told TOI, "If Internet platforms are held liable for third party content, it would lead to self-censorship and reduce the free flow of information."</p>
<p>Moving the motion, Rajeeve said, "I am not against any regulation on internet but I am against any control on internet... In control, there is no freedom... These rules attempt to control internet and curtail the freedom of expression."</p>
<p>Complimenting the CPM member, Jaitley said, "I think he (Rajeeve) deserves a compliment for educating us on this rule that Parliament has a supervisory control as far as subordinate legislations are concerned, and, if need be, we can express our vote of disapproval to the subordinate legislations."</p>
<p>MPs felt the government should consider a regime where offensive content can be removed immediately after being posted rather than trying to sieve it out.</p>
<p>Noting that it is extremely difficult, if not impossible, to defy technology and that the days of withholding information have gone, Jaitley urged the minister to "reconsider the language of restraints" to prevent its misuse. He pointed to certain words - harmful, harassing, blasphemous, defamatory - used in the rules, explaining how these could be interpreted/misinterpreted at any stage.</p>
<p>The MPs did note that the internet had a risk of inciting hate speech and frenzy in society and therefore it needed to be restrained but the device could be swift identification of objectionable content.</p>
<p>Pranesh Prakash of Centre for Internet and Society, an organization that has been advocating withdrawal of the rules, said he was sad with the outcome in Rajya Sabha. "The IT minister has promised to hold consultations but the ideal way to do so would have been to scrap the rules and start from scratch," he said.</p>
<p>"It's not only about language in these rules. There is a problem with provisions like the one that empowers intermediaries to remove content without notifying the user who had uploaded the content or giving users a chance to explain themselves."</p>
<p> </p>
<p>
For more details visit <a href='http://editors.cis-india.org/news/mps-oppose-curbs-on-internet'>http://editors.cis-india.org/news/mps-oppose-curbs-on-internet</a>
</p>
No publisherpraskrishnaInternet GovernanceIntermediary LiabilityCensorship2012-05-24T10:25:35ZNews ItemAnalysis of the Copyright (Amendment) Bill 2012
http://editors.cis-india.org/a2k/blogs/analysis-copyright-amendment-bill-2012
<b>There are some welcome provisions in the Copyright (Amendment) Bill 2012, and some worrisome provisions. Pranesh Prakash examines five positive changes, four negative ones, and notes the several missed opportunities. The larger concern, though, is that many important issues have not been addressed by these amendments, and how copyright policy is made without evidence and often out of touch with contemporary realities of the digital era.</b>
<p>The <a class="external-link" href="http://164.100.24.219/BillsTexts/RSBillTexts/PassedRajyaSabha/copy-E.pdf">Copyright (Amendment) Bill 2012</a> has been passed by both Houses of Parliament, and will become law as soon as the President gives her assent and it is published in the Gazette of India. While we celebrate the passage of some progressive amendments to the Copyright Act, 1957 — including an excellent exception for persons with disabilities — we must keep in mind that there are some regressive amendments as well. In this blog post, I will try to highlight those provisions of the amendment that have not received much public attention (unlike the issue of lyricists’ and composers’ ‘right to royalty’).</p>
<h2>Welcome Changes</h2>
<h3>Provisions for Persons with Disabilities</h3>
<p>India now has amongst the most progressive exception for persons with disabilities, alongside countries like Chile. Under the amendments, sections 51(1)(zb) and 31B carve out exceptions and limitations for persons with disabilities. Earlier s.52(1)(zb) dealt only with formats that were “special designed only for the use of persons suffering from visual, aural, or other disabilities”. Thanks to a campaign mounted by disability rights groups and public interest groups such as CIS, it now covers “any accessible format”. Section 52(1)(zb) allows any person to facilitate access by persons with disabilities to copyrighted works without any payment of compensation to the copyright holder, and any organization working the benefit of persons with disabilities to do so as long as it is done on a non-profit basis and with reasonable steps being taken to prevent entry of reproductions of the copyrighted work into the mainstream. Even for-profit businesses are allowed to do so if they obtain a compulsory licence on a work-by-work basis, and pay the royalties fixed by the Copyright Board. The onerousness of this provision puts its utility into question, and this won’t disappear unless the expression “work” in s.31B is read to include a class of works.</p>
<p>Given that the Delhi High Court has — wrongly and <a class="external-link" href="http://en.wikipedia.org/wiki/Per_incuriam">per incuriam</a>, since it did not refer to s.14(a)(ii) as it was amended in 1994 — held parallel importation to be barred by the Copyright Act, it was important for Parliament to clarify that the Copyright Act in fact follows international exhaustion. Without this, even if any person can facilitate access for persons with disabilities to copyrighted works, those works are restricted to those that are circulated in India. Given that not many books are converted into accessible formats in India (not to mention the costs of doing so), and given the much larger budgets for book conversion in the developed world, this is truly restrictive.</p>
<h3>Extension of Fair Dealing to All Works</h3>
<p>The law earlier dealt with fair dealing rights with regard to “literary, dramatic, musical or artistic works”. Now it covers all works (except software), in effect covering sound recordings and video as well. This will help make personal copies of songs and films, to make copies for research, to use film clips in classrooms, etc.</p>
<h3>Creative Commons, Open Licensing Get a Boost</h3>
<p>The little-known s.21 of the Copyright Act, which deals with the right of authors to relinquish copyright, has been amended. While earlier one could only relinquish parts of one’s copyright by submitting a form to the Registrar of Copyrights, now a simple public notice suffices. Additionally, s.30 of the Act, which required licences to be in writing and signed, now only requires it to be in writing. This puts Creative Commons, the GNU Public Licence, and other open licensing models, on a much surer footing in India.</p>
<h3>Physical Libraries Should Celebrate, Perhaps Virtual Libraries Too</h3>
<p>Everywhere that the word “hire” occurs (except s.51, curiously), the word “commercial rental” has been substituted. This has been done, seemingly, to bring India in conformance with the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). The welcome side-effect of this is that the legality of lending by non-profit public libraries has been clarified. The amendment states:</p>
<p class="discreet">"2(1)(fa) “commercial rental” does not include the rental, lease or lending of a lawfully acquired copy of a computer programme, sound recording, visual recording or cinematograph film for non-profit purposes by a non-profit library or non-profit educational institution."</p>
<p>Even after this, the overwhelming majority of the ‘video lending libraries’ that you see in Indian cities and towns continue to remain illegal.</p>
<p>Another welcome provision is the amended s.52(1)(n), which now allows “non-commercial public libraries” to store an electronic copy of a work if it already has a physical copy of the work. However, given that this provision says that the storage shall be “for preservation”, it seems limited. However, libraries might be able to use this — in conjunction with the fact that under s.14 of the Copyright Act lending rights of authors is limited to “commercial rental” and s.51(b) only covers lending of “infringing copies” — to argue that they can legally scan and lend electronic copies of works in the same manner that they lend physical copies. Whether this argument would succeed is unclear. Thus, India has not boldly gone where the European Commission is treading with talks of a European Digital Library Project, or where scholars in the US are headed with the Digital Public Library of America. But we might have gone there quietly. Thus, this amendment might help foster an Indian <a class="external-link" href="http://internetarchive.org/">Internet Archive</a>, or help spread the idea of the <a class="external-link" href="http://openlibrary.org/">Open Library</a> in India.</p>
<p>On a final note, different phrases are used to refer to libraries in the amendment. In s.2(1)(fa), it talks about "non-profit library"; in s.52(1)(n) and (o), it refers to "non-commercial public library"; and in s.52(1)(zb), it talks of "library or archives", but s.52(1)(zb) also requires that the works be made available on a "non-profit basis". The differentiation, if any, that is sought to be drawn between these is unclear.</p>
<h3>Limited Protection to Some Internet Intermediaries</h3>
<p>There are two new provisions, s.52(1)(b) and 52(1)(c), which provide some degree of protection to 'transient or incidental' storage of a work or performance. Section 52(1)(b) allows for "the transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public", hence applying primarily to Internet Service Providers (ISPs), VPN providers, etc. Section 52(1)(c) allows for "transient or incidental storage of a work or performance for the purpose of providing electronic links, access or integration, where such links, access or integration has not been expressly prohibited by the right holder, unless the person responsible is aware or has reasonable grounds for believing that such storage is of an infringing copy". This seems to make it applicable primarily to search engines, with other kinds of online services being covered or not covered depending on one’s interpretation of the word 'incidental'.</p>
<h3>Compulsory Licensing Now Applies to Foreign Works Also</h3>
<p>Sections 31 ("compulsory licence in works withheld from public") and 31A ("compulsory licence in unpublished Indian works") used to apply to Indian works. Now they apply to all works, whether Indian or not (and now s.31A is about "compulsory licence in unpublished or published works", mainly orphan works). This is a welcome amendment, making foreign works capable of being licensed compulsorily in case it is published elsewhere but withheld in India. Given how onerous our compulsory licensing sections are, especially sections 32 and 32A (which deal with translations, and with literary, scientific or artistic works), it is not a surprise that they have not been used even once. However, given the modifications to s.31 and s.31A, we might just see those starting to be used by publishers, and not just radio broadcasters.</p>
<h2>Worrisome Changes</h2>
<h3>Term of Copyright for Photographs Nearly Doubled</h3>
<p>The term of copyright for photographs has now gone from sixty years from publication to sixty years from the death of the photographer. This would mean that copyright in a photograph clicked today (2012) by a 20 year old who dies at the 80 will only expire on January 1, 2133. This applies not only to artistic photographs, to all photographs because copyright is an opt-out system, not an opt-in system. Quite obviously, most photoshopping is illegal under copyright law.</p>
<p>This has two problems. First, there was no case made out for why this term needed to be increased. No socio-economic report was commissioned on the effects of such a term increase. This clause was not even examined by the Parliamentary Standing Committee. While the WCT requires a ‘life + 50′ years term for photographs, we are not signatories to the WCT, and hence have no obligation to enforce this. We are signatories to the Berne Convention and the TRIPS Agreement, which require a copyright term of 25 years for photographs. Instead, we have gone even above the WCT requirement and provide a life + 60 years term.</p>
<p>The second problem is that it is easier to say when a photograph was published than to say who the photographer was and when that photographer died. Even when you are the subject of a photograph, the copyright in the photograph belongs to the photographer. Unless a photograph was made under commission or the photographer assigned copyright to you, you do not own the copyright in the photographs. (Thanks to <a href="http://deviantlight.blogspot.com">Bipin Aspatwar</a>, for pointing out a mistake in an earlier version, with "employment" and "commission" being treated differently.) This will most definitely harm projects like Wikipedia, and other projects that aim at archiving and making historical photographs available publicly, since it is difficult to say whether the copyright in a photograph still persists.</p>
<h3>Cover Versions Made More Difficult: Kolaveri Di Singers Remain Criminals</h3>
<p>The present amendments have brought about the following changes, which make it more difficult to produce cover versions:</p>
<ol>
<li> Time period after which a cover version can be made has increased from 2 years to 5 years.</li>
<li>Requirement of same medium as the original. So if the original is on a cassette, the cover cannot be released on a CD.</li>
<li>Payment has to be made in advance, and for a minimum of 50000 copies. This can be lowered by Copyright Board having regard to unpopular dialects.</li>
<li>While earlier it was prohibited to mislead the public (i.e., pretend the cover was the original, or endorsed by the original artists), now cover versions are not allowed to "contain the name or depict in any way any performer of an earlier sound recording of the same work or any cinematograph film in which such sound recording was incorporated".</li>
<li>All cover versions must state that they are cover versions.</li>
<li>No alterations are allowed from the original song, and alteration is qualified as ‘alteration in the literary or musical work’. So no imaginative covers in which the lyrics are changed or in which the music is reworked are allowed without the copyright owners’ permission. Only note-for-note and word-for-word covers are allowed.</li>
<li>Alterations were allowed if they were "reasonably necessary for the adaptation of the work" now they are only allowed if it is "technically necessary for the purpose of making of the sound recording".</li>
</ol>
<p>This ignores present-day realities. Kolaveri Di was covered numerous times without permission, and each one of those illegal acts helped spread its popularity. The singers and producers of those unlicensed versions could be jailed under the current India Copyright Act, which allows even non-commercial copyright infringers to be put behind bars. Film producers and music companies want both the audience reach that comes from less stringent copyright laws (and things like cover versions), as well as the ability to prosecute that same behaviour at will. It is indeed ironic that T-Series, the company that broke HMV’s stranglehold over the Indian recording market thanks to cover versions, is itself one of the main movers behind ever-more stringent copyright laws.</p>
<h3>Digital Locks Now Provided Legal Protection Without Accountability</h3>
<p>As I have covered the issue of Technological Protection Measures (TPM) and Rights Management Information (RMI), which are ‘digital locks’ also known as Digital Rights Management (DRM), <a href="http://editors.cis-india.org/a2k/blogs/tpm-copyright-amendment" class="external-link">in great detail earlier</a>, I won’t repeat the arguments at length. Very briefly:</p>
<ol>
<li>It is unclear that anyone has been demanding the grant of legal protection to DRMs in India, and We have no obligation under any international treaties to do so. It is not clear how DRM will help authors and artists, but it is clear how it will harm users.</li>
<li>While the TPM and RMI provisions are much more balanced than the equivalent provisions in laws like the US’s Digital Millennium Copyright Act (DMC), that isn’t saying much. Importantly, while users are given certain rights to break the digital locks, they are helpless if they aren’t also provided the technological means of doing so. Simply put: music and movie companies have rights to place digital locks, and under some limited circumstances users have the right to break them. But if the locks are difficult to break, the users have no choice but to live with the lock, despite having a legal right.</li>
</ol>
<h3>Removal of Parallel Importation</h3>
<p>In past blog posts I have covered <a href="http://editors.cis-india.org/a2k/blogs/parallel-importation-of-books" class="external-link">why allowing parallel imports makes sense in India</a>. And as explained above, the Delhi High Court acted per incuriam when holding that the Copyright Act does not allow parallel importation. The Copyright Act only prohibits import of infringing copies of a work, and a copy of a book that has been legally sold in a foreign country is not an “infringing copy”. The government was set to introduce a provision making it clear that parallel importation was allowed. The Parliamentary Standing Committee heard objections to this proposal from a foreign publishers’ association, but decided to recommend the retention of the clause. Still, due to pressure from a few publishing companies whose business relies on monopolies over importation of works into India, the government has decided to delete the provision. However, thankfully, the HRD Minister, Kapil Sibal, has assured both houses of Parliament that he will move a further amendment if an<a class="external-link" href="http://www.ncaer.org/"> NCAER</a> report he has commissioned (which will be out by August or September) recommends the introduction of parallel imports.</p>
<h3>Expansion of Moral Rights Without Safeguards</h3>
<p>Changes have been made to author’s moral rights (and performer’s moral rights have been introduced) but these have been made without adequate safeguards. The changes might allow the legal heir of an author, artist, etc., to object to ‘distortion, mutilation, modification, or other act’ of her ancestors work even when the ancestor might not have. By this amendment, this right continues in perpetuity, even after the original creator dies and even after the work enters into the public domain. It seems Indian policymakers had not heard of <a class="external-link" href="http://en.wikipedia.org/wiki/Stephen_James_Joyce">Stephen Joyce</a>, the grandson of James Joyce, who has “brought numerous lawsuits or threats of legal action against scholars, biographers and artists attempting to quote from Joyce’s literary work or personal correspondence”. Quoting from his Wikipedia page:</p>
<p class="callout">In 2004, Stephen threatened legal action against the Irish government when the Rejoyce Dublin 2004 festival proposed public reading of excerpts of Ulysses on Bloomsday. In 1988 Stephen Joyce burnt a collection of letters written by Lucia Joyce, his aunt. In 1989 he forced Brenda Maddox to delete a postscript concerning Lucia from her biography Nora: The Real Life of Molly Bloom. After 1995 Stephen announced no permissions would be granted to quote from his grandfather’s work. Libraries holding letters by Joyce were unable to show them without permission. Versions of his work online were disallowed. Stephen claimed to be protecting his grandfather’s and families reputation, but would sometimes grant permission to use material in exchange for fees that were often "extortionate".</p>
<p>Because in countries like the UK and Canada the works of James Joyce are now in the public domain, Stephen Joyce can no longer restrict apply such conditions. However now, in India, despite James Joyce’s works being in the public domain, Stephen Joyce’s indefensible demands may well carry legal weight.</p>
<h3>Backdoor Censorship</h3>
<p>As noted above, the provision that safeguard Internet intermediaries (like search engines) is very limited. However, that provision has an extensive removal provision:</p>
<p class="callout">Provided that if the person responsible for the storage of the copy has received a written complaint from the owner of copyright in the work, complaining that such transient or incidental storage is an infringement, such person responsible for the storage shall refrain from facilitating such access for a period of twenty-one days or till he receives an order from the competent court refraining from facilitating access and in case no such order is received before the expiry of such period of twenty-one days, he may continue to provide the facility of such access;</p>
<p>There are two things to be noted here. First, that without proof (or negative consequences for false complaints) the service provider is mandated to prevent access to the copy for 21 day. Second, after the elapsing of 21 days, the service provider may 'put back' the content, but is not mandated to do so. This would allow people to file multiple frivolous complaints against any kind of material, even falsely (since there is no penalty for false compalaints), and keep some material permanently censored.</p>
<h2>Missed Opportunities</h2>
<h3>Fair Dealing Guidelines, Criminal Provisions, Government Works, and Other Missed Opportunities</h3>
<p>The following important changes should have been made by the government, but haven’t. While on some issues the Standing Committee has gone beyond the proposed amendments, it has not touched upon any of the following, which we believe are very important changes that are required to be made.</p>
<ul>
<li> Criminal provisions: Our law still criminalises individual, non-commercial copyright infringement. This has now been extended to the proposal for circumvention of Technological Protection Measures and removal of Rights Management Information also.</li>
<li>Fair dealing guidelines: We would benefit greatly if, apart from the specific exceptions provided for in the Act, more general guidelines were also provided as to what do not constitute infringement. This would not take away from the existing exceptions, but would act as a more general framework for those cases which are not covered by the specific exceptions.</li>
<li>Government works: Taxpayers are still not free to use works that were paid for by them. This goes against the direction that India has elected to march towards with the Right to Information Act. A simple amendment of s.52(1)(q) would suffice. The amended subsection could simply allow for “the reproduction, communication to the public, or publication of any government work” as being non-infringing uses.</li>
<li>Copyright terms: The duration of all copyrights are above the minimum required by our international obligations, thus decreasing the public domain which is crucial for all scientific and cultural progress.</li>
<li>Educational exceptions: The exceptions for education still do not fully embrace distance and digital education.</li>
<li>Communication to the public: No clear definition is given of what constitute a ‘public’, and no distinction is drawn between commercial and non-commercial ‘public’ communication.</li>
<li>Internet intermediaries: More protections are required to be granted to Internet intermediaries to ensure that non-market based peer-production projects such as Wikipedia, and other forms of social media and grassroots innovation are not stifled. Importantly, after the terrible judgment passed by Justice Manmohan Singh of the Delhi High Court in the Super Cassettes v. Myspace case, any website hosting user-generated content is vulnerable to payment of hefty damages even if it removes content speedily on the basis of complaints.</li>
</ul>
<h2>Amendments Not Examined</h2>
<p>For the sake of brevity, I have not examined the major changes that have been made with regard to copyright societies, lyricists and composers, and statutory licensing for broadcasters, all of which have received considerable attention by copyright experts elsewhere, nor have I examined many minor amendments.</p>
<h2>A Note on the Parliamentary Process</h2>
<p>Much of the discussions around the Copyright Act have been around the rights of composers and lyricists vis-à-vis producers. As this has been covered elsewhere, I won’t comment much on it, other than to say that it is quite unfortunate that the trees are lost for the forest. It is indeed a good thing that lyricists and composers are being provided additional protection against producers who are usually in a more advantageous bargaining position. This fact came out well in both houses of Parliament during the debate on the Copyright Bill.<br /><br />However, the mechanism of providing this protection — by preventing assignment of “the right to receive royalties”, though the “right to receive royalties” is never mentioned as a separate right anywhere else in the Copyright Act — was not critically examined by any of the MPs who spoke. What about the unintended consequences of such an amendment? Might this not lead to new contracts where instead of lump-sums, lyricists and music composers might instead be asked to bear the risk of not earning anything at all unless the film is profitable? What about a situation where a producer asks a lyricist to first assign all rights (including royalty rights) to her heirs and then enters into a contract with those heirs? The law, unfortunately at times, revolves around words used by the legislature and not just the intent of the legislature. While one cannot predict which way the amendment will go, one would have expected better discussions around this in Parliament.</p>
<p>Much of the discussion (in both <a class="external-link" href="http://164.100.47.5/newdebate/225/17052012/Fullday.pdf">the Rajya Sabha</a> and <a class="external-link" href="http://164.100.47.132/newdebate/15/10/22052012/Fullday.pdf">the Lok Sabha</a>) was rhetoric about the wonders of famous Indian songwriters and music composers and the abject penury in which some not-so-famous ones live, and there was very little discussion about the actual merits of the content of the Bill in terms of how this problem will be overcome. A few MPs did deal with issues of substance. Some asked the HRD Minister tough questions about the Statement of Objects and Reasons noting that amendments have been brought about to comply with the WCT and WPPT which were “adopted … by consensus”, even though this is false as India is not a signatory to the WCT and WPPT. MP P. Rajeeve further raised the issue of parallel imports and that of there being no public demand for including TPM in the Act, but that being a reaction to the US’s flawed Special 301 reports. Many, however, spoke about issues such as the non-award of the Bharat Ratna to Bhupen Hazarika, about the need to tackle plagiarism, and how the real wealth of a country is not material wealth but intellectual wealth.</p>
<p>This preponderance of rhetoric over content is not new when it comes to copyright policy in India. In 1991, when an amendment was presented to increase term of copyright in all works by ten years (from expiring 50 years from the author’s death to 60 years post-mortem), the vast majority of the Parliamentarians who stood up to speak on the issue waxed eloquent about the greatness of Rabindranath Tagore (whose works were about to lapse into the public domain), and how we must protect his works. Little did they reflect that extending copyright — for all works, whether by Tagore or not — will not help ‘protect’ the great Bengali artist, but would only make his (and all) works costlier for 10 additional years. Good-quality and cheaper editions of Tagore’s works are more easily available post-2001 (when his copyright finally lapsed) than before, since companies like Rupa could produce cheap editions without seeking a licence from Visva Bharati. And last I checked Tagore’s works have not been sullied by them having passed into the public domain in 2001.</p>
<p>Further, one could find outright mistakes in the assertions of Parliamentarians. In both Houses, DMK MPs raised objections with regard to parallel importation being allowed in the Bill — only in the version of the Bill they were debating, parallel importation was not being allowed. One MP stated that “statutory licensing provisions like these are not found anywhere else in the world”. This is incorrect, given that there are extensive statutory licensing provision in countries like the United States, covering a variety of situations, from transmission of sound recordings over Internet radio to secondary transmission of the over-the-air programming.</p>
<p>Unfortunately, though that MP did not raise this issue, there is a larger problem that underlies copyright policymaking in India, and that is the fact that there is no impartial evidence gathered and no proper studies that are done before making of policies. We have no equivalent of the Hargreaves Report or the Gowers Report, or the studies by the Productivity Council in Australia or the New Zealand government study of parallel importation.</p>
<p>There was no economic analysis conducted of the effect of the increase in copyright term for photographs. We have evidence from elsewhere that copyright terms <a class="external-link" href="http://williampatry.blogspot.in/2007/07/statute-of-anne-too-generous-by-half.html">are already</a> <a class="external-link" href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2024588">too long</a>, and all increases in term are what economists refer to as <a class="external-link" href="http://en.wikipedia.org/wiki/Deadweight_loss">deadweight losses</a>. There is no justification whatsoever for increasing term of copyright for photographs, since India is not even a signatory to the WCT (which requires this term increase). In fact, we have lost precious negotiation space internationally since in bilateral trade agreements we have been asked to bring our laws in compliance with the WCT, and we have asked for other conditions in return. By unilaterally bringing ourselves in compliance with WCT, we have lost important bargaining power.</p>
<h2>Users and Smaller Creators Left Out of Discussions</h2>
<p>Thankfully, the Parliamentary Standing Committee went into these minutiae in greater detail. Though, as I have noted elsewhere, the Parliamentary Standing Committee did not invite any non-industry groups for deposition before it, other than the disability rights groups which had campaigned really hard. So while changes that would affect libraries were included, not a single librarian was called by the Standing Committee. Despite comments having been submitted <a href="http://editors.cis-india.org/a2k/publications/copyright-bill-submission" class="external-link">to the Standing Committee on behalf of 22 civil society organizations</a>, none of those organizations were asked to depose. Importantly, non-industry users of copyrighted materials — consumers, historians, teachers, students, documentary film-makers, RTI activists, independent publishers, and people like you and I — are not seen as legitimate interested parties in the copyright debate. This is amply clear from the the fact that only one MP each in the two houses of Parliament raised the issue of users’ rights at all.</p>
<h2>Concluding Thoughts</h2>
<p>What stands out most from this process of amendment of the copyright law, which has been going on since 2006, is how out-of-touch the law is with current cultural practices. Most instances of photoshopping are illegal. Goodbye Lolcats. Cover versions (for which payments have to be made) have to wait for five years. Goodbye Kolaveri Di. Do you own the jokes you e-mail to others, and have you taken licences for quoting older e-mails in your replies? Goodbye e-mail. The strict laws of copyright, with a limited set of exceptions, just do not fit the digital era where everything digital transaction results in a bytes being copied. We need to take a much more thoughtful approach to rationalizing copyright: introduction of general fair dealing guidelines, reduction of copyright term, decriminalization of non-commercial infringement, and other such measures. If we don’t take such measures soon, we will all have to be prepared to be treated as criminals for all our lives. Breaking copyright law shouldn’t be as easy as breathing, yet thanks to outdated laws, it is.</p>
<p><a class="external-link" href="http://infojustice.org/archives/26243">This was reposted in infojustice.org on May 25, 2012</a></p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/analysis-copyright-amendment-bill-2012'>http://editors.cis-india.org/a2k/blogs/analysis-copyright-amendment-bill-2012</a>
</p>
No publisherpraneshAccess to KnowledgeFair DealingsPiracyIntellectual Property RightsEconomicsIntermediary LiabilityFeaturedTechnological Protection Measures2013-11-12T14:13:04ZBlog Entry