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The Legal Validity of Internet Bans: Part II
http://editors.cis-india.org/internet-governance/blog/the-legal-validity-of-internet-bans-part-ii
<b>In recent months, there has been a spree of bans on access to Internet services in Indian states, for different reasons. The State governments have relied on Section 144, Code of Criminal Procedure 1973 to institute such bans. Despite a legal challenge, the Gujarat High Court found no infirmity in this exercise of power in a recent order. We argue that it is Section 69A of the Information Technology Act 2000, and the Website Blocking Rules, which set out the legal provision and procedure empowering the State to block access to the Internet (if at all it is necessary), and not Section 144, CrPC.</b>
<p style="text-align: justify; "><span>As we saw earlier, the Gujarat High Court held that Section 144, CrPC empowers the State apparatus to order blocking of access to data services. According to the Court, Section 69A, IT Act can be used to block certain websites, while under Section 144, CrPC, the District Magistrate can direct telecom companies like Vodafone and Airtel, who</span><i> </i><span>extend the facility of Internet access. In effect, the High Court agreed with the State government’s argument that the scope of Section 69A, IT Act covers only blocking of </span><i>certain </i><span>websites, while Section 144, CrPC grants a wider power.</span></p>
<p style="text-align: justify; ">This is what the Court said (para 9 of the <a href="http://indiankanoon.org/doc/29352399/">order</a>):</p>
<p style="text-align: justify; ">“<i>If the comparison of both the sections in the field of operations is made, barring certain minor overlapping more particularly for public order </i>[sic]<i>, one can say that the area of operation of Section 69A is not the same as that of Section 144 of the Code. <span>Section 69A may in a given case also be exercised for blocking certain websites</span>, whereas under <span>Section 144 of the Code, directions may be issued to certain persons who may be the source for extending the facility of internet access</span>. Under the circumstances, we do not find that the contention raised on behalf of the petitioner that the resort to only Section 69A was available and exercise of power under Section 144 of the Code was unavailable, can be accepted.</i>” (emphases ours)</p>
<p style="text-align: justify; ">We submit that the High Court’s reasoning failed to examine the scope of Section 69A, IT Act thoroughly. Section 69A does, in fact, empower the government to order blocking of access to data services, and it is a special law. Importantly, it sets forth a procedure that State governments, union territories and the Central Governments must follow to order blocks on websites or data services.</p>
<h3 style="text-align: justify; ">I. Special Law Prevails Over General Law</h3>
<p style="text-align: justify; ">The IT Act, 2000 is a special law dealing with matters relating to the Internet, including offences and security measures. The CrPC is a general law of criminal procedure.</p>
<p style="text-align: justify; ">When a special law and a general law cover the same subject, then the special law supersedes the general law. This is a settled legal principle. Several decisions of the Supreme Court attest to this fact. To take an example, in <a href="http://www.asianlii.org/in/cases/cen/INSC/2010/526.html"><i>Maya Mathew </i>v. <i>State of Kerala</i></a>, (2010) 3 SCR 16 (18 February 2010), when there was a contention between the Special Rules for Kerala State Homoeopathy Services and the general Rules governing state and subordinate services. The Supreme Court held that when a special law and a general law both govern a matter, the Court should try to interpret them harmoniously as far as possible. But if the intention of the legislature is that one law should prevail over another, and this intention is made clear expressly or impliedly, then the Court should give effect to this intention.</p>
<p style="text-align: justify; ">On the basis of this principle, let’s take a look at the IT Act, 2000. <a href="http://cybercrime.planetindia.net/ch13_2008.htm">Section 81, IT Act</a> expressly states that the provisions of the IT Act shall have overriding effect, notwithstanding anything inconsistent with any other law in force. Moreover, in the <a href="http://cybercrime.planetindia.net/statement-objects-foritaa-2006.htm">Statement of Objects and Reasons</a> of the IT (Amendment) Bill, 2006, the legislature clearly notes that amendments inserting offences and security measures into the IT Act are necessary given the proliferation of the Internet and e-transactions, and the rising number of offences. These indicate expressly the legislature’s intention for the IT Act to prevail over general laws like the CrPC in matters relating to the Internet.</p>
<p style="text-align: justify; ">Now, we will examine whether the IT Act empowers the Central and State governments to carry out complete blocks on access to the Internet or data services, in the event of emergencies. If the IT Act does cover such a situation, then the CrPC should not be used to block data services. Instead, the IT Act and its Rules should be invoked.</p>
<h3 style="text-align: justify; "><strong>II. Section 69A, IT Act Allows Blocks on Internet Access</strong></h3>
<p style="text-align: justify; ">Section 69A(1), IT Act says:</p>
<p style="text-align: justify; ">“Where the Central Government or any of its officer specially authorised by it in this behalf is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above, it may subject to the provisions of sub-section (2) for reasons to be recorded in writing, by order, direct any agency of the Government or intermediary to block for <span>access</span> by the public or cause to be blocked for access by the public any<span> information </span>generated, transmitted, received, stored or hosted in any <span>computer resource</span>.” (<i>emphasis ours</i>)</p>
<p style="text-align: justify; ">Essentially, Section 69A says that the government can block (or cause to be blocked) for access by the public, any information<i> </i>generated, transmitted, etc. in any computer resource, if the government is satisfied that such a measure is in the interests of public order.</p>
<p style="text-align: justify; "><span>Does this section allow the government to institute bans on Internet access in Gujarat? To determine this, we will examine each underlined term from above.</span></p>
<p style="padding-left: 90px; text-align: justify; "><strong><i>Access</i></strong>: <a href="http://indiankanoon.org/doc/1890726/">Section 2(1)(a)</a>, IT Act defines access as “...<i><span>gaining entry into</span></i>, instructing or communicating with… resources of a <i><span>computer</span></i>, <i><span>computer system</span></i> or <i><span>computer network</span></i>”.</p>
<p style="padding-left: 90px; text-align: justify; "><strong><i>Computer resource</i></strong>: <a href="http://indiankanoon.org/doc/1768009/">Section 2(1)(k)</a>, IT Act defines computer resource as “computer, computer system, computer network...”</p>
<p style="padding-left: 90px; text-align: justify; "><strong><i>Information</i></strong>: <a href="http://indiankanoon.org/doc/146402352/">Section 2(1)(v)</a>, IT Act defines information as “includes… data, message, text, images, sound, voice...”</p>
<p style="text-align: justify; ">So ‘blocking for access’ under Section 69A includes preventing gaining entry or communicating with the resources of a computer, computer system or computer network, and it includes blocking communication of data, message, text, images, sound, etc. Now two questions arise:</p>
<p style="text-align: justify; ">(1) Do 2G and 3G services, broadband and Wifi fall within the definition of ‘computer network’?</p>
<p style="padding-left: 90px; text-align: justify; "><strong><i>Computer network</i></strong>: <a href="http://indiankanoon.org/doc/29924/">Section 2(1)(j)</a>, IT Act defines computer network as “inter-connection of one or more computers or computer systems <i><span>or communication device</span></i>…” by “...use of satellite, microwave, <i><span>terrestrial line, wire, wireless or other communication media</span></i>”.</p>
<p style="text-align: justify; ">(2) Do mobile phones that can connect to the Internet (we say smartphones for simplicity) qualify as fall within the definition of ‘computer resource’?</p>
<p style="padding-left: 90px; text-align: justify; "><strong><i>Communication device</i></strong><span>: </span><a href="http://indiankanoon.org/doc/59759075/">Section 2(1)(ha)</a><span>, IT Act defines communication device as “</span><i>cell phones</i><span>, personal digital assistance or combination of both or any other device </span><i>used to communicate, send or transmit any text, video, audio or image</i><span>”.</span></p>
<p style="text-align: justify; ">So a cell phone is a communication device. A computer network is an inter-connection of communication devices by wire or wireless connections. A computer network is a computer resource also. Blocking of access under Section 69A, IT Act includes, therefore, gaining entry into or communicating with the resources of a computer network, which is an interconnection of communication devices, including smartphones. Add to this, the fact that <i>any information</i> (data, message, text, images, sound, voice) can be blocked, and the conclusion seems clear.</p>
<p style="text-align: justify; "><span>The power to block access to Internet services (including data services) can be found within Section 69A, IT Act itself, the special law enacted to cover matters relating to the Internet. Not only this, the IT Act envisages emergency situations when blocking powers may need to be invoked.</span></p>
<h3 style="text-align: justify; ">III. Section 69A Permits Blocking in Emergency Situations</h3>
<p style="text-align: justify; ">Section 69A, IT Act doesn’t act in isolation. The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (“<strong>Blocking Rules</strong>”) operate together with Section 69A(1).</p>
<p style="text-align: justify; ">Rule 9 of the Blocking Rules deals with blocking of information in cases of emergency. It says that in cases of emergency, when “<i>no delay is acceptable</i>”, the Designated Officer (DO) shall examine the request for blocking. If it is within the scope of Section 69A(1) (i.e., within the grounds of public order, etc.), then the DO can submit the request to the Secretary, Department of Electronics and Information Technology (DeitY). If the Secretary is satisfied of the need to block during the emergency, then he may issue a reasoned order for blocking, in writing as an interim measure. The intermediaries do not need to be heard in such a situation.</p>
<p style="text-align: justify; ">After a blocking order is issued during an urgent situation, the DO must bring the blocking request to the Committee for Examination of Request constituted under Rule 7, Blocking Rules. There is also a review process, by a Review Committee that meets every two months to evaluate whether blocking directions are in compliance with Section 69A(1) [Rule 14].</p>
<p style="text-align: justify; ">We submit, therefore, that the Gujarat High Court erred in holding that Section 144, CrPC is the correct legal provision to enable Internet bans. Not only does Section 69A, IT Act cover blocking of access to Internet services, but it also envisages blocking in emergency situations. As a special law for matters surrounding the Internet, Section 69A should prevail over the general law provision of Section 144, CrPC.</p>
<p style="text-align: justify; "> </p>
<p style="text-align: justify; "><strong>Acknowledgements</strong><span style="text-align: justify; ">: We would like to thank Pranesh Prakash, Japreet Grewal, Sahana Manjesh and Sindhu Manjesh for their invaluable inputs in clarifying arguments and niggling details for these two posts.</span></p>
<hr size="1" style="text-align: justify; " width="33%" />
<p style="text-align: justify; ">Geetha Hariharan is a Programme Officer with Centre for Internet & Society. Padmini Baruah is in her final year of law at the National Law School of India University, Bangalore (NLSIU) and is an intern at CIS.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/the-legal-validity-of-internet-bans-part-ii'>http://editors.cis-india.org/internet-governance/blog/the-legal-validity-of-internet-bans-part-ii</a>
</p>
No publisherGeetha Hariharan and Padmini BaruahSocial MediaFreedom of Speech and ExpressionInternet Access69ASection 144Article 19(1)(a)Blocking2015-10-08T11:17:24ZBlog EntryThe Legal Validity of Internet Bans: Part I
http://editors.cis-india.org/internet-governance/blog/the-legal-validity-of-bans-on-internet-part-i
<b>In recent months, there has been a spree of bans on access to Internet services in Indian states, for different reasons. The State governments have relied on Section 144, Code of Criminal Procedure 1973 to institute such bans. Despite a legal challenge, the Gujarat High Court found no infirmity in this exercise of power in a recent order. We argue that it is Section 69A of the Information Technology Act 2000, and the Website Blocking Rules, which set out the legal provision and procedure empowering the State to block access to the Internet (if at all it is necessary), and not Section 144, CrPC.</b>
<p> </p>
<p> </p>
<p dir="ltr" style="text-align: justify; "><span>In recent months, there has been a spree of bans on access to Internet services in India states, for different reasons. In Gujarat, the State government banned access to mobile Internet (data services) citing breach of peace during the </span><a href="http://www.ibtimes.co.in/gujarat-rioting-reported-several-parts-ahmedabad-patel-rally-event-turns-violent-644192">Hardik Patel agitation</a><span>. In Godhra in Gujarat, mobile Internet was banned as a precautionary measure </span><a href="http://indianexpress.com/article/india/gujarat/gujarat-internet-services-in-godhra-suspended-for-24-hours/">during Ganesh <i>visarjan</i></a><span>. In Kashmir, mobile Internet was banned for three days or more because the government feared that people would share pictures of </span><a href="http://indianexpress.com/article/india/india-news-india/jk-govt-plans-three-day-mobile-internet-ban-in-valley/">slaughter of animals during Eid</a><span> on social media, which would spark unrest across the state.</span></p>
<p style="text-align: justify; ">Can State or Central governments impose a ban on Internet access? If the State or its officials anticipate disorder or a disturbance of ‘public tranquility’, can Internet access through mobiles be banned? According to a <a href="http://indiankanoon.org/doc/29352399/">recent order of the Gujarat High Court</a>: Yes; <a href="http://indiankanoon.org/doc/930621/">Section 144 of the Code of Criminal Procedure, 1973</a> (<strong>“CrPC”</strong>) empowers the State government machinery to impose a temporary ban.</p>
<p style="text-align: justify; ">But the Gujarat High Court’s order neglects the scope of Section 69A, IT Act, and wrongly finds that the State government can exercise blocking powers under Section 144, CrPC. In this post and the next, we argue that it is <a href="http://indiankanoon.org/doc/10190353/">Section 69A of the Information Technology Act, 2000</a> (“<strong>IT Act</strong>”) which is the legal provision empowering the State to block access to the Internet (including data services), and not Section 144, CrPC. Section 69A covers blocks to Internet access, and since it is a special law dealing with the Internet, it prevails over the general Code of Criminal Procedure.</p>
<p style="text-align: justify; ">Moreover, the blocking powers must stay within constitutional boundaries prescribed in, <i>inter alia</i>, Article 19 of the Constitution. Blocking powers are, therefore, subject to the widely-accepted tests of legality (foresight and non-arbitrariness), legitimacy of the grounds for restriction of fundamental rights and proportionality, calling for narrowly tailored restrictions causing minimum disruptions and/or damage.</p>
<p style="text-align: justify; "><span>In </span><strong>Section I </strong><span>of this post, we set out a brief record of the events that preceded the blocking of access to data services (mobile Internet) in several parts of Gujarat. Then in </span><strong>Section II</strong><span>, we summarise the order of the Gujarat High Court, dismissing the petition challenging the State government’s Internet-blocking notification under Section 144, CrPC. In the next post, </span><span>we examine the scope of Section 69A, IT Act to determine whether it empowers the State and Central government agencies to carry out blocks on Internet access through mobile phones (i.e., data services such as 2G, 3G and 4G) under certain circumstances. We submit that Section 69A does, and that Section 144, CrPC cannot be invoked for this purpose. </span></p>
<h2 style="text-align: justify; ">I. The Patidar Agitation in Gujarat:</h2>
<p style="text-align: justify; ">This question arose in the wake of agitation in Gujarat in the Patel community. The Patels or Patidars are <a href="http://indianexpress.com/article/explained/simply-put-who-are-gujarats-patidars-and-why-are-they-angry/">politically and economically influential</a> in Gujarat, with several members of the community holding top political, bureaucratic and industrial positions. In the last couple of months, the Patidars have been agitating, demanding to be granted status as Other Backward Classes (OBC). OBC status would make the community eligible for reservations and quotas in educational institutions and for government jobs.</p>
<p style="text-align: justify; ">Towards this demand, the Patidars organised <a href="http://indianexpress.com/article/cities/ahmedabad/demand-for-obc-status-patidars-stir-spreads-to-saurashtra/">multiple rallies</a> across Gujarat in August 2015. The largest rally, called the <i>Kranti Rally</i>, <a href="http://m.ibnlive.com/news/politics/turmoil-brewing-in-gujarat-as-patel-community-demands-obc-status-hardik-patel-begins-indefinite-hunger-strike-1051104.html">was held</a> in Ahmedabad, Gujarat’s capital city, on August 25, 2015. Hardik Patel, a leader of the agitation, reportedly went on hunger strike seeking that the Patidars’ demands be met by the government, and was arrested as he did not have permission to stay on the rally grounds after the rally. While media reports vary, it is certain that <a href="http://www.ibtimes.co.in/gujarat-rioting-reported-several-parts-ahmedabad-patel-rally-event-turns-violent-644192">violence and agitation broke out</a> after the rally. <a href="http://timesofindia.indiatimes.com/india/Patidar-agitation-Uneasy-calm-in-violence-hit-Gujarat-death-toll-rises-to-10/articleshow/48699151.cms">Many were injured</a>, some lost their lives, property was destroyed, businesses suffered; the army was deployed and curfew imposed for a few days across the State.</p>
<p style="text-align: justify; ">In addition to other security measures, the State government also imposed a ban on mobile Internet services across different parts of Gujarat. Reportedly, Hardik Patel had called for a state-wide <i>bandh </i>over Whatsapp. <a href="http://www.ndtv.com/india-news/after-clashes-over-hardik-patels-detention-no-whatsapp-in-gujarat-1211058?pfrom=home-lateststories">The police cited</a> “<i>concerns of rumour-mongering and crowd mobilisation through Whatsapp</i>” as a reason for the ban, which was instituted under <a href="http://indiankanoon.org/doc/930621/">Section 144, Code of Criminal Procedure, 1973</a> (<strong>“CrPC”</strong>). In most of Gujarat, the ban lasted six days, from August 25 to 31, 2015, <a href="http://www.ibtimes.co.in/gujarat-patel-agitation-ban-mobile-internet-whatsapp-lifted-ahmedabad-644924">while it continued</a> in Ahmedabad and Surat for longer.<span> </span></p>
<h2 style="text-align: justify; ">II. The Public Interest Litigation:</h2>
<p style="text-align: justify; ">A public interest petition was filed before the Gujarat High Court, challenging the mobile Internet ban. Though the petition was dismissed at the preliminary stage by Acting Chief Justice Jayant Patel and Justice Anjaria by an <a href="http://indiankanoon.org/doc/29352399/">oral order</a> delivered on September 15, 2015, the legal issues surrounding the ban are important and the order calls for some reflection.</p>
<p style="text-align: justify; ">In the PIL, the petitioner prayed that the Gujarat High Court declare that the notification under Section 144, CrPC, which blocked access to mobile Internet, is “void <i>ab initio</i>, <i>ultra vires </i>and unconstitutional” (para 1 of the <a href="http://indiankanoon.org/doc/29352399/">order</a>). The ban, argued the petitioner, violated Articles 14, 19 and 21 of the Constitution by being arbitrary and excessive, violating citizens’ right to free speech and causing businesses to suffer extensive economic damage. In any event, the power to block websites was specifically granted by Section 69A, IT Act, and so the government’s use of Section 144, CrPC to institute the mobile Internet block was legally impermissible. Not only this, but the government’s ban was excessive in that mobile Internet services were <i>completely blocked</i>; had the government’s concerns been about social media websites like Whatsapp or Facebook, the government could have suspended only those websites using Section 69A, IT Act. And so, the petitioner prayed that the Gujarat High Court issue a writ “<i>permanently restraining the State government from imposing a complete or partial ban on access to mobile Internet/broadband services</i>” in Gujarat.</p>
<p style="text-align: justify; ">The State Government saw things differently, of course. At the outset, the government argued that there was “<i>sufficient valid ground for exercise of power</i>” under Section 144, CrPC, to institute a mobile Internet block (para 4 of the <a href="http://indiankanoon.org/doc/29352399/">order</a>). Had the blocking notification not been issued, “<i>peace could not have been restored with the other efforts made by the State for the maintenance of law and order</i>”. The government stressed that Section 144, CrPC notifications were generally issued as a “last resort”, and in any case, the Internet had not been shut down in Gujarat; broadband and WiFi services continued to be active throughout. Since the government was the competent authority to evaluate law-and-order situations and appropriate actions, the Court ought to dismiss the petition, the State prayed.</p>
<p style="text-align: justify; ">The Court agreed with the State government, and dismissed the petition without issuing notice (para 9 of the <a href="http://indiankanoon.org/doc/29352399/">order</a>). The Court examined two issues in its order (very briefly):</p>
<ol style="text-align: justify; ">
<li>The scope and distinction between Section 144, CrPC and Section 69A, IT Act, and whether the invocation of Section 144, CrPC to block mobile Internet services constituted an arbitrary exercise of power;</li>
<li>The proportionality of the blocking notification (though the Court doesn’t use the term ‘proportionality’).</li>
</ol>
<p><span style="text-align: justify; ">We will examine the Court’s reading of Section 69A, IT Act and Section 144, CrPC, to see whether their fields of operation are in fact different.</span></p>
<p> </p>
<p><strong style="text-align: justify; ">Acknowledgements</strong><span style="text-align: justify; ">: We would like to thank Pranesh Prakash, Japreet Grewal, Sahana Manjesh and Sindhu Manjesh for their invaluable inputs in clarifying arguments and niggling details for these two posts.</span></p>
<hr size="1" style="text-align: justify; " width="33%" />
<p style="text-align: justify; "><span>Geetha Hariharan is a Programme Officer with Centre for Internet & Society. Padmini Baruah is in her final year of law at the National Law School of India University, Bangalore (NLSIU) and is an intern at CIS.</span></p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/the-legal-validity-of-bans-on-internet-part-i'>http://editors.cis-india.org/internet-governance/blog/the-legal-validity-of-bans-on-internet-part-i</a>
</p>
No publisherGeetha Hariharan and Padmini BaruahSocial MediaFreedom of Speech and ExpressionInternet Access69ASection 144Article 19(1)(a)Blocking2015-10-08T11:18:34ZBlog EntryNotes From a Foreign Field: The European Court of Human Rights on Russia’s Website Blocking
http://editors.cis-india.org/internet-governance/blog/notes-from-a-foreign-field-the-european-court-of-human-rights-on-russia2019s-website-blocking
<b>This blogpost summarises the human rights principles applied by the Court to website blocking, and discusses how they can be instructive to petitions in the Delhi High Court that challenge arbitrary censorship in India.</b>
<p class="has-text-align-justify"> </p>
<p class="has-text-align-justify">This blogpost was authored by Gurshabad Grover and Anna Liz Thomas. It was first published at the <a class="external-link" href="https://indconlawphil.wordpress.com/2021/02/05/notes-from-a-foreign-fieldthe-european-court-of-human-rights-on-russias-website-blocking-guest-post/">Indian Constitutional Law and Philosophy Blog</a> on February 5, 2021, and has been reproduced here with permission.</p>
<hr />
<p class="has-text-align-justify"> </p>
<p class="has-text-align-justify">From PUBG to TikTok, online services
are regularly blocked in India under an opaque censorship regime flowing
from section 69A of the Information Technology (IT) Act. Russia happens
to have a very similar online content blocking regime, parts and
processes of which were recently challenged in the European Court of
Human Rights (‘the Court’). This blogpost summarises the human rights
principles applied by the Court to website blocking, and discusses how
they can be instructive to petitions in the Delhi High Court that
challenge arbitrary censorship in India.</p>
<h3><strong>Challenges to Russia’s Website Blocking Practices</strong></h3>
<p class="has-text-align-justify">On 23 June 2020, the Court delivered <a href="https://strasbourgobservers.com/2020/08/26/the-strasbourg-court-establishes-standards-on-blocking-access-to-websites/">four judgements</a>
on the implementation of Russia’s Information Act, under which content
on the internet can be deemed illegal and taken down or blocked. Under
some of these provisions, a court order is not required, and the
government can send a blocking request directly to Roskomnadzor,
Russia’s telecom service regulator. Roskomnadzor, in turn, requests
internet service providers (ISPs) to block access to the webpage or
websites. Roskomnadzor also notifies the website owner within 24 hours.
Under the law, once the website owner notifies the Roskomnadzor that the
illegal content has been removed from the website, the Roskomnadzor
verifies the same and informs ISPs that access to the website may be
restored for users.</p>
<p class="has-text-align-justify">In the case of <a href="https://hudoc.echr.coe.int/eng#%7B%22itemid%22:%5B%22001-203177%22%5D%7D"><em>Vladimir Kharitonov</em></a><em>, </em>the
complainant’s website had been blocked as a result of a blocking order
against another website, which shared the same IP address as that of the
complainant. In <a href="https://hudoc.echr.coe.int/eng#%7B%22itemid%22:%5B%22001-203180%22%5D%7D"><em>Engels</em></a><em>, </em>the
applicant’s website had been ordered by a court to be blocked for
having provided information about online censorship circumvention tools,
despite the fact that such information was not unlawful under any
Russian law. <em><a href="https://hudoc.echr.coe.int/eng#%7B%22itemid%22:%5B%22001-203178%22%5D%7D">OOO Flavius</a></em>
concerned three online media outlets that had their entire websites
blocked on the grounds that some of their webpages may have featured
unlawful content. Similarly, in the case of <a href="https://hudoc.echr.coe.int/eng#%7B%22itemid%22:%5B%22001-203181%22%5D%7D"><em>Bulgakov</em></a><em>, </em>the
implementation of a blocking order targeting extremist content (one
particular pamphlet) had the effect of blocking access to the
applicant’s entire website. In both the cases of <em>Engels </em>and <em>Bulgakov, </em>where court proceedings had taken place, the proceedings had been concluded <em>inter se </em>the
Prosecutor General and server providers, without the involvement of the
website owner. In all four cases, appeals to higher Russian courts had
been summarily dismissed. Even in those cases where website owners had
taken down the offending content, their websites had not been restored.</p>
<p class="has-text-align-justify">The Court assessed the law and its
application on the basis of a three-part test on whether the censorship
is (a) prescribed by law (including foreseeability and accessibility
aspects of the law), (b) necessary (and proportionate) in a democratic
society, and (c) pursuing a legitimate aim.</p>
<p class="has-text-align-justify">Based on the application of these
tests, the Court ruled against the Russian authorities in all four
cases. The Court also held that the wholesale blocking of entire
websites was an extreme measure tantamount to banning a newspaper or a
television station, which has the collateral effect of interfering with
lawful content. According to the Court, blocking entire websites can
thus amount to prior restraint, which is only justified in exceptional
circumstances.</p>
<p class="has-text-align-justify">The Court further held that procedural
safeguards were required under domestic law in the context of online
content blocking, such as the government authorities: (a) conducting an
impact assessment prior to the implementation of blocking measures; (b)
providing advance notice to website owners, and their involvement in
blocking proceedings; (c) providing interested parties with the
opportunity to remove illegal content or apply for judicial review; and
(d) requiring public authorities to justify the necessity and
proportionality of blocking, provide reasons as to why less intrusive
means could not be employed and communicate the blocking request to the
owner of the targeted website.</p>
<p class="has-text-align-justify">The Court also referenced an earlier judgment it had issued in the case of <em>Ahmet Yildirim vs. Turkey, </em> acknowledging
that content creators are not the only ones affected; website blocking
interferes with the public’s right to receive information.</p>
<p class="has-text-align-justify">The Court also held that the
participation of the ISP as a designated defendant was not enough in the
case of court proceedings concerning blocking requests, because the ISP
has no vested interest in the proceedings. Therefore, in the absence of
a targeted website’s owner, blocking proceedings in court would lose
their adversarial nature, and would not provide a forum for interested
parties to be heard.</p>
<h3><strong>Implications for India</strong></h3>
<p class="has-text-align-justify">The online censorship regime in India
is similar to Russian terms of legal procedure, but perhaps worse when
it comes to the architecture of the law’s implementation. Note that for
this discussion, we will restrict ourselves to government-directed
blocking and not consider court orders for content takedown (the latter
may also include intellectual property infringement and defamatory
content).</p>
<p class="has-text-align-justify"><a href="https://indiankanoon.org/doc/10190353/">Section 69A</a>
of the Information Technology (IT) Act permits the Central Government
to order intermediaries, including ISPs, to block online content on
several grounds when it thinks it is “necessary or expedient” to do so.
Amongst others, these grounds include national security, public order
and prevention of cognisable offences.</p>
<p class="has-text-align-justify">In 2009, the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (‘<a href="https://cis-india.org/internet-governance/resources/information-technology-procedure-and-safeguards-for-blocking-for-access-of-information-by-public-rules-2009">blocking rules</a>’)
were issued under the Act. They lay out an entirely executive-driven
process: a committee (consisting entirely of secretaries from various
Ministries) examines blocking requests from various government
departments, and finally orders intermediaries to block such content.</p>
<p class="has-text-align-justify">As per Rule 8, the chairperson of this committee is required to “make all reasonable efforts identify the person <strong>or</strong>
intermediary who has hosted the information” (emphasis ours) and send
them a notice and give them an opportunity for a hearing. A plain
reading suggests that the content creator can then not be involved in
the blocking proceedings. Even this safeguard can be circumvented in
“emergency” situations as described in Rule 9, under which blocking
orders can be issued immediately. The rules ask for such orders to be
examined by the committee in the next two days, where they can decide to
continue or rescind the block.</p>
<p class="has-text-align-justify">The rules also task a separate committee, <a href="https://cis-india.org/internet-governance/resources/rule-419-a-indian-telegraph-rules-1951">appointed</a>
under the Telegraph Act, to meet every two months to review all
blocking orders. Pertinently, only ministerial secretaries comprise that
committee as well.</p>
<p class="has-text-align-justify">These are the limited safeguards
prescribed in the rules. Public accountability in the law is further
severely limited by a requirement of strict confidentiality (Rule 16) of
blocking orders. With no judicial, parliamentary or public oversight,
it is easy to see how online censorship in India operates in complete
secrecy, making it <a href="https://scroll.in/article/953146/how-india-is-using-its-information-technology-act-to-arbitrarily-take-down-online-content">susceptible</a> to wide abuse.</p>
<p class="has-text-align-justify">When the constitutionality of provision and the blocking rules was challenged in <a href="https://indiankanoon.org/doc/110813550/"><em>Shreya Singhal v. Union of India</em></a>,
the Supreme Court was satisfied with these minimal safeguards. However,
it saved the rules only because of two reasons. First, it noted that an
opportunity of a hearing is given “to the originator <strong>and</strong>
intermediary” (emphasis ours: notice how this is different from the
‘or’ in the blocking rules). It also specifically noted that the law
required reasoned orders that could be challenged through writ
petitions.</p>
<p class="has-text-align-justify">On this blog, Gautam Bhatia has earlier <a href="https://indconlawphil.wordpress.com/2015/03/25/the-supreme-courts-it-act-judgment-and-secret-blocking/">argued</a>
that the judgment then should be read as obligating the government to
mandatorily notify the content creator before issuing blocking orders.
Unfortunately, the reality of the implementation of the law has <a href="https://scroll.in/article/953146/how-india-is-using-its-information-technology-act-to-arbitrarily-take-down-online-content">not lived up</a> to this optimism. While intermediaries (ISPs when it comes to website blocking) <em>may</em>
be getting a chance to respond, content creators are also almost never
given a hearing. As we saw in the European Court’s judgment, ISPs do not
have any incentive to challenge the government’s directions.</p>
<p class="has-text-align-justify">Additionally, although the law states that “reasons [for blocking content are] to be recorded in writing”, <a href="https://internetfreedom.in/whistleblower-provides-website-blocking-orders-on-4000-websites/">leaked blocking orders</a>
suggest that even ISPs are not given this information. Apart from the
opacity around the rationale for blocking, RTI requests to uncover even
the <em>list</em> of blocked websites have been <a href="https://www.hindustantimes.com/analysis/to-preserve-freedoms-online-amend-the-it-act/story-aC0jXUId4gpydJyuoBcJdI.html">repeatedly</a> rejected (for comparison, Roskomnadzor at least maintains a <a href="https://blocklist.rkn.gov.ru/">public registry</a> of websites blocked in Russia). This lack of transparency and fair proceedings also means that <em>entire </em>websites
may be getting blocked when there are only specific web pages on that
website that serve content related to unlawful acts.</p>
<p class="has-text-align-justify">When it comes to the technical methods
of blocking, the rules are silent, leaving this decision to the ISPs.
While a recent study by the Centre for Internet and Society showed that
popular ISPs are <a href="https://arxiv.org/pdf/1912.08590.pdf">using methods</a> that target specific websites, there are some recent reports that <a href="https://theprint.in/judiciary/us-firm-one-signal-moves-delhi-hc-says-ip-address-blocked-in-india-without-intimation/587852/">suggest</a>
ISPs may be blocking IP addresses too. The latter can have the effect
of blocking access to other websites that are hosted on the same
address.</p>
<p class="has-text-align-justify">There are two challenges to the rules
in the Delhi High Court, serving as opportunities for reform of website
blocking and content takedown in India. The first was filed in December
2019 by <a href="https://internetfreedom.in/delhi-hc-issues-notice-to-the-government-for-blocking-satirical-dowry-calculator-website/">Tanul Thakur</a>,
whose website DowryCalculator.com (a satirical take on the practice of
dowry) was blocked without any notice or hearing. Tanul Thakur was not
reached out to by the committee responsible for passing blocking orders
despite the fact that Thakur has publicly claimed its ownership multiple
times, and has been interviewed by the media about the website. When
Thakur <a href="https://drive.google.com/file/d/0B2NvpMoZE5HGbGVCOG5TNVF6RDRGXzk5T3VNMlhTQ0E3QUlz/view">filed</a>
a RTI asking why DowryCalculator.com was blocked, the Ministry of
Electronics cited the confidentiality rule to refuse sharing such
information!</p>
<p class="has-text-align-justify">This month, an American company providing mobile notifications services, One Signal Inc., has <a href="https://theprint.in/judiciary/us-firm-one-signal-moves-delhi-hc-says-ip-address-blocked-in-india-without-intimation/587852/">alleged</a>
that ISPs are blocking its IP address, and petitioned the court to set
aside any government order to that effect because they did not receive a
hearing. Interestingly, the IP address belongs to a popular hosting
service provider, which serves multiple websites. Considering this fact
and the lack of transparency in blocking orders, one may question
whether One Signal was the intended target at all! The European Court’s
judgment in <em>Vladimir Kharitonov</em> is quite relevant here: ISPs
should not be blocking IP addresses that are shared amongst multiple
websites, because such a measure can cause collateral damage, and make
other legitimate expression inaccessible.</p>
<p class="has-text-align-justify">Given the broad similarities between
the Indian and Russian website blocking regimes, the four judgements by
the European Court of Human Rights will be instructive to the Delhi High
Court. Note that section 69A is used for content takedown in general,
i.e. censoring posts on Twitter, not just blocking websites): the right
to hearing must extend to all such content creators. The principles
applied by the European Court can thus provide for a more rights
respecting foundation for content blocking in India for the judiciary to
uphold, or for the legislature to amend.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/notes-from-a-foreign-field-the-european-court-of-human-rights-on-russia2019s-website-blocking'>http://editors.cis-india.org/internet-governance/blog/notes-from-a-foreign-field-the-european-court-of-human-rights-on-russia2019s-website-blocking</a>
</p>
No publishergurshabadContent takedown69AConstitutional Law2021-02-13T08:42:18ZBlog EntryList of Blocked 'Escort Service' Websites
http://editors.cis-india.org/internet-governance/blog/list-of-blocked-escort-service-websites
<b>Here is the full list of URLs that Indian ISPs were asked to block on Monday, June 13, 2016.</b>
<p>On April 20, 2016, DNA carried a report on <a href="http://www.dnaindia.com/india/report-pil-seeks-police-action-against-website-ads-on-escort-services-2204362">a PIL seeking action against advertisements for prostitution in newspapers and on websites</a>. That report noted that the Mumbai Police had obtained an order from a magistrates court to block 174 objectionable websites, and had sent a list to the "Group Coordinator (Cyber Laws)" within the Department of Electronics and IT. On June 13, 2016, some news agencies carried reports about <a href="http://www.business-standard.com/article/current-affairs/govt-bans-240-websites-offering-escort-services-116061400561_1.html">the Ministry of Communications and IT having ordered ISPs to block 240 websites</a>.</p>
<p>As far as we know, the Mumbai Police has not proceeded against any of the people who run these websites, whose phone numbers are available, and whose names and addresses are also available in many cases through WHOIS queries on the domain names.</p>
<p>Unfortunately, the government does not make available publicly the list of websites they have ordered ISPs to block. Given that knowledge of what is censored by the government is crucial in a democracy, we are publishing the entire list of blocked websites.</p>
<p>Those of these websites that use TLS (i.e., those with 'https'), still appear to be available on multiple Indian ISPs, and others can be accessed by using a proxy VPN from outside India or by using Tor.</p>
<p>Notes:</p>
<ul>
<li>The list circulated to ISPs has two sub-lists, numbered from 1-174 (but containing 175 entries, with a numbering mistake), and 1-64, for a total of 239 URLs.</li>
<li>4 URLs are repeated in the list ("www.salini.in/navi-mumbai-independent-escort-service.php", "exmumbai.in", "www.mansimathur.in/pinkyagarwal", "www.mumbaifunclubs.com")</li>
<li>For one website, both the domain name and a specific web page within it are listed (""www.mumbaiwali.in" and "www.mumbaiwali.in/navi-mumbai-escort-service.php")</li>
<li>One URL is incomplete (No. 214: "www.independentescortservicemumbai.com/mumbai%20escort%20servi..")</li>
<li>There are thus 235 unique URLs, targetting 234 websites and web pages.</li>
</ul>
<p><br />
<br />
<hr /></p>
<h2>Full List of Blocked URLs</h2>
<ol>
<li>www.sterlingbioscience.com</li>
<li>rawpoint.biz</li>
<li>www.onemillionbabes.com</li>
<li>www.mumbaihotcollection.in</li>
<li>simranoberoi.in</li>
<li>rubinakapoor.biz</li>
<li>talita.biz</li>
<li>www.mumbaiescortsagency.net</li>
<li>www.mumbaifunclubs.com</li>
<li>www.alishajain.co.in</li>
<li>www.ankitatalwar.co.in</li>
<li>https://www.jennyarora.ind.in</li>
<li>www.riya-kapoor.com</li>
<li>shneha.in</li>
<li>missinimi.in</li>
<li>www.mumbaiglamour.in</li>
<li>kalyn.in</li>
<li>www.saumyagiri.co.in/city/mumbai/</li>
<li>bookerotic.com</li>
<li>www.divyamalik.in</li>
<li>www.suhanisharma.co.in</li>
<li>www.ruhi.biz</li>
<li>umbaiqueens.in</li>
<li>www.aliyaghosh.com</li>
<li>priyasen.in</li>
<li>www.highprofilemumbaiescorts.co.in</li>
<li>charmingmumbai.com</li>
<li>www.poojamehata.in</li>
<li>kiiran.in/</li>
<li>mansikher.in</li>
<li>www.newmumbaiescorts.in</li>
<li>www.mumbaifunclubs.com</li>
<li>www.punarbas.in</li>
<li>www.discreetbabes.in</li>
<li>www.alisharoy.in</li>
<li>www.arpitarai.in</li>
<li>www.nidhipatel.in</li>
<li>navimumbailescort.com</li>
<li>www.zoyaescorts.com</li>
<li>www.juhioberoi.in</li>
<li>shoniya.in</li>
<li>panchibora.in</li>
<li>rehu.in</li>
<li>www.nehaanand.com</li>
<li>www.aditiray.co.in</li>
<li>www.rakhibajaj.in</li>
<li>www.alianoidaescorts.in</li>
<li>www.sobiya.in</li>
<li>www.alishaparul.in</li>
<li>mumbai-escorts.leathercurrency.com</li>
<li>ankita-ahuja.in</li>
<li>www.yamika.in</li>
<li>mumbailescort.co</li>
<li>www.ranjika.in</li>
<li>www.aditiray.com</li>
<li>www.alinamumbailescort.in</li>
<li>www.sonikaa.com/services/</li>
<li>riyamodel.in</li>
<li>mumbai-escorts.info</li>
<li>soonam.in</li>
<li>www.sejalthakkar.com</li>
<li>www.yomika-tandon.in</li>
<li>www.asika.in</li>
<li>www.siyasharma.org/</li>
<li>www.rubikamathur.in</li>
<li>www.mumbaiescortslady.com</li>
<li>www.sexyshe.in</li>
<li>www.indepandentescorts.com</li>
<li>www.saanvichopra.co.in</li>
<li>www.goswamipatel.in</li>
<li>ojaloberoi.in</li>
<li>www.naincy.in</li>
<li>www.sonyamehra.com</li>
<li>www.pinkgrapes.in</li>
<li>anjalitomar.in/</li>
<li>www.nishakohli.com/</li>
<li>sagentia.co.in</li>
<li>mumbai.vivastreet.co.in/escort+mumbai</li>
<li>www.deseescortgirls.in</li>
<li>guides.wonobo.com/mumbai/mumbai-escorts-service/.4299</li>
<li>jasmineescorts.com</li>
<li>www.shalinisethi.com</li>
<li>www.highclassmumbailescort.com</li>
<li>www.vipescortsinmumbai.com</li>
<li>www.mumbaiescorts69.co.in</li>
<li>monikabas.co.in</li>
<li>www.riyasehgal.com</li>
<li>onlycelebrity.in</li>
<li>www.greatmumbaiescorts.com/escort-service-mumbai.html</li>
<li>www.aishamumbailescort.com</li>
<li>www.jennydsouzaescort.com</li>
<li>www.desifun.in</li>
<li>www.siyaescort.co.in</li>
<li>masti—escort.in</li>
<li>www.sofya.in</li>
<li>www.mumbaiwali.in/navi-mumbai-escort-service.php</li>
<li>www.mumbaiwali.in</li>
<li>www.calldaina.com</li>
<li>www.mumbaiescortsservice.co.in</li>
<li>www.escortsgirlsinmumbai.com</li>
<li>www.passionmumbai.escorts.com</li>
<li>www.nehakapoor.in</li>
<li>meerakapoor.com</li>
<li>www.dianamumbaiescorts.net .in</li>
<li>www.allmumbailescort.in</li>
<li>www.rakhiarora.in</li>
<li>www.ritikasingh.com</li>
<li>www.rekhapatil.com</li>
<li>www.mumbaidolls.com</li>
<li>www.piapandey.com</li>
<li>www.mumbaicuteescorts.in</li>
<li>www.mumbaiescortssevice.com</li>
<li>www.onlycelebrity.com</li>
<li>www.meetescortservice.com</li>
<li>onlyoneescorts.com</li>
<li>simirai.org</li>
<li>www.riyamumbaiescorts.in</li>
<li>www.neharana.in</li>
<li>www.tanyaroy.com</li>
<li>www.mumbaihiprofilegirls.in</li>
<li>www.sexyescortsmumbai.in</li>
<li>www.sexymumbai.escorts.com</li>
<li>www.four-seasons—escort.in</li>
<li>www.mumbaiescortsgirl.com</li>
<li>www.vdreamescorts.com</li>
<li>www.passionatemumbaiescorts.in</li>
<li>www.payalmalhotra.in</li>
<li>www.shrutisinha.com</li>
<li>www.juliemumbaiescorts.com</li>
<li>www.indiasexservices.com/mumbai.html</li>
<li>www.mumbai-escorts.co.in</li>
<li>www.aliyamumbaiescorts.net.in</li>
<li>shivaniarora.co.in/escort–service-mumbai.html</li>
<li>www.pinkisingh.com</li>
<li>soyam.in</li>
<li>www.arpitaray.com</li>
<li>www.localescorts.in</li>
<li>www.jennifermumbaiescorts.com</li>
<li>www.yanaroy.com</li>
<li>escorts18.in/mumbai—escorts.html</li>
<li>www.tinamumbaiescorts.com</li>
<li>www.mumbaijannatescorts.com</li>
<li>www.deepikaroy.com</li>
<li>www.nancy.co.in</li>
<li>www.pearlpatel.in</li>
<li>30minsmumbaiescorts.in</li>
<li>www.datinghopes.com</li>
<li>https://www.riyaroy.com/services.html</li>
<li>www.sonalikajain.com</li>
<li>www.zainakapoor.co.in</li>
<li>kavyajain.in</li>
<li>www.kinnu.co.in</li>
<li>exmumbai.in/</li>
<li>www.mansimathur.in/pinkyagarwal</li>
<li>exmumbai.in</li>
<li>www.mansimathur.in/pinkyagarwal</li>
<li>www.devikabatra.in</li>
<li>katlin.in</li>
<li>riyaverma.in</li>
<li>escortsinindia.co/</li>
<li>www.snehamumbaiescorts.in</li>
<li>shimi.in</li>
<li>www.mumbaiescortsforu.com/about</li>
<li>www.chetnagaur.co.in/chetna-gaur.html</li>
<li>www.escortspoint.in</li>
<li>www.rupalikakkar.in</li>
<li>www.hemangisinha.co.in</li>
<li>1escorts.in/location/mumbai.html</li>
<li>www.salini.in/navi-mumbai-independent—escort-service.php</li>
<li>www.salini.in/navi-mumbai-independent-escort-service.php</li>
<li>www.mumbaibella.in</li>
<li>mohitescortservicesmumbai.com</li>
<li>www.anchu.in</li>
<li>www.aliyaroy.co.in</li>
<li>jaanu.co.in/mumbai-escorts-service-call-girls.html</li>
<li>www.andyverma.com</li>
<li>dreams-come-true.biz</li>
<li>feel–better.biz</li>
<li>jellyroll.biz</li>
<li>dreamgirlmumbai.com</li>
<li>role-play.biz</li>
<li>mansi—mathur.com</li>
<li>www.zarinmumbaiescorts.com</li>
<li>mymumbai.escortss.com</li>
<li>www.goldentouchescorts.com</li>
<li>www.mumbaipassion.biz</li>
<li>ishitamalhotra.com</li>
<li>happy-ending.biz</li>
<li>juicylips.biz</li>
<li>www.escortsmumbai.name</li>
<li>www.kirstygbasai.net</li>
<li>www.hiremumbaiescorts.com</li>
<li>www.meeraescorts.com/mumbai-escorts.php</li>
<li>3–5–7star.biz</li>
<li>www.pranjaltiwari.com</li>
<li>www.richagupta.biz</li>
<li>way2heaven.biz</li>
<li>piya.co/</li>
<li>pinkflowers.info</li>
<li>www.beautifulmumbaiescorts.com</li>
<li>www.bestescortsinmumbai.com/charges-html</li>
<li>www.mumbaiescorts.me</li>
<li>www.tanikatondon.com</li>
<li>www.escortsinmumbai.biz</li>
<li>www.escortgirlmumbai.com</li>
<li>www.mumbaicallgrils.com</li>
<li>www.quickescort4u.com</li>
<li>www.mayamalhotra.com</li>
<li>www.legal-escort.com</li>
<li>escortsbaba.com/mumbai-escorts.html</li>
<li>rupa.biz</li>
<li>www.mumbaiescorts.agency/erotic-service-mumbai.html</li>
<li>www.escortscelebrity.com</li>
<li>www.independentescortservicemumbai.com/mumbai%20escort%20servi..</li>
<li>garimachopra.com</li>
<li>kajalgupta.biz</li>
<li>lipkiss.site</li>
<li>aanu.in</li>
<li>bombayescort.in</li>
<li>hotkiran.co.in</li>
<li>khushikapoor.in</li>
<li>joyapatel.in</li>
<li>rici.in</li>
<li>aaditi.in</li>
<li>andheriescorts.org.in</li>
<li>www.jiyapatel.in</li>
<li>spicymumbai.in</li>
<li>rimpyarora.in</li>
<li>lovemaking.co.in</li>
<li>riyadubey.co.in</li>
<li>escortservicesmumbai.in</li>
<li>mumbaiescorts.co.in</li>
<li>midnightprincess.in/</li>
<li>vashiescorts.co.in/</li>
<li>angee.in/</li>
<li>www.rozakhan.in/</li>
<li>www.mumbaiescortsvilla.in/</li>
<li>kylie.co.in/</li>
<li>escortservicemumbai.co.in</li>
</ol>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/list-of-blocked-escort-service-websites'>http://editors.cis-india.org/internet-governance/blog/list-of-blocked-escort-service-websites</a>
</p>
No publisherpraneshFreedom of Speech and Expression69ABlockingCensorship2016-06-15T08:33:31ZBlog EntryGoverning Speech on the Internet: From the Free Marketplace Policy to a Controlled 'Public Sphere'
http://editors.cis-india.org/raw/blog_governing-speech-on-the-internet
<b>This post by Smarika Kumar is part of the 'Studying Internets in India' series. Smarika is a consultant with Alternative Law Forum, Bangalore. She is interested in issues concerning law and technology. In this essay, Smarika explores how through the use of policy and regulation, the private marketplace of the internet is sought to be reined in and reconciled to the public sphere, which is mostly represented through legislations governing the internet.</b>
<p> </p>
<h2>Introduction</h2>
<p>The internet is widely thought to be unprecedented and radically different from the media which preceded it. Interestingly, the internet has been unlike other media, in that it does not have a history of being monopolised by governments. True, certain States have tried to regulate the internet in a manner which allows them to exercise an increased control over it, some others have a greater control over the internet root given the history of development of the internet, but nevertheless no one State can be said to “own” the internet in any jurisdiction, in the manner of telephone or broadcast monopolies. Internet as it stands now, at its essence, is a largely private of networks connecting privately-owned, and occasionally publicly-funded platforms.</p>
<p>This feature of the internet poses an interesting problem when one tries to think about speech. In law and policymaking, an important question remains: Should internet be treated as the marketplace of privately managed avenues for speech, or should speech on the internet be treated within the bigger concept of the public sphere? Moreover, how are law and policy in India currently disposed towards speech on the internet? In the present essay, I hope to discuss some of these issues by looking at the judgement in <em>Shreya Singhal v. Union of India</em> [1], which was pronounced by the Supreme Court of India in March 2015. The judgement is most widely recognised as a culmination of several challenges to Section 66A of the Information Technology Act, 2000 which criminalised a wide range of speech on the internet on the grounds of very broad terms like “grossly offensive”, “causing annoyance” and “inconvenience, danger, and obstruction.” Section 66A was challenged along with Sections 69A and 79 of the Act, which lay down the rules for blocking of content on the internet, and for intermediary liability and responsibility to take down internet content, respectively. This challenge was made on grounds of being in violation of the Right to Freedom of Speech and Expression and Right to Equality guaranteed by the Constitution of India among others. However, while the judgement struck down Section 66A as unconstitutional, it upheld the constitutionality of the State-directed Internet blocking Rules as well as Intermediary Liability Guidelines. This may pose a paradox if one accounts for the fact that at the heart of it, all—Section 66A, Section 69A and Section 79, were actually legislations regulating speech. Then why strike one down and uphold others? To seek an answer in the present essay, I broadly look at the philosophical origins of regulation of speech on the internet. Two theories in philosophy—John Stuart Mill’s The Marketplace of Ideas and Jurgen Habermas’ Public Sphere have been very influential in liberal democratic traditions and jurisdictions in thinking about the governance of speech. Scholarly work concerning media law in other jurisdictions has also elaborated on how each of these theories can be implicitly used differently in judicial interpretations to serve different ends [2]. In this, the Marketplace of Ideas approach tends to treat speech and platforms for speech as part of the competition within a market context, whereby different kinds of ideas or speech compete with each other to find an avenue for expression. The Public Sphere approach on the other hand, treats different kinds of speech as part of a larger democratic concept of discussion and speech, whereby the aspiration is for representation of diverse kinds and sources of speech, rather than competition between them.</p>
<p>With the utilisation of these different underlying philosophical assumptions, legal implications can be so vastly different. And when that happens, it becomes essential to trace the process of how these philosophical approaches themselves work in legal argumentation. For these reasons, it becomes critical to probe the thinking in <em>Shreya Singhal</em> judgement to understand which philosophical attitude to speech it actually inheres: the Marketplace of Ideas conception, or the Public Sphere approach? I argue in this essay that while traces of both the Marketplace of Ideas and the Public Sphere approach are present in <em>Shreya Singhal</em>, neither of these philosophies actually govern the rationale of the judgement. An analysis of <em>Shreya Singhal</em> along with the judgement in <em>Cricket Association of Bengal</em> (1995) [3] which it refers to, shows that it is in fact, a third philosophy, rooted in the impulse of colonial control, which gives <em>Shreya Singhal</em> its philosophical consistency.</p>
<p> </p>
<h2>The Marketplace of Ideas in <em>Shreya Singhal</em></h2>
The judgement in <em>Shreya Singhal</em> actually employs the idea of the marketplace in its approach to discuss the implications of Section 66A. It begins by referring to the 2010 Supreme Court judgement of <em>S. Khushboo v. Kanniamal and Anr</em> [4] which had spoken about the concept of the marketplace of ideas, and how employing it is essential to safeguard “unpopular speech” under the Right to Freedom of Speech and Expression in the Article 19(1)(a) of the Constitution of India. The Court marks out this reference to the marketplace of ideas, tracing this concept back to the 1919 American judgement of <em>Abrams v. United States</em> [5]. The Supreme Court states, talking about the Khushboo case:
<p> </p>
<blockquote>This last judgement is important in that it refers to the “market place of ideas” concept that has permeated American Law. This was put in the felicitous words of Justice Holmes in his famous dissent in Abrams v. United States, 250 US 616 (1919), thus: “But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.” (para 11)</blockquote>
<p>The Supreme Court judgement goes onto trace the history of Marketplace of Ideas in American jurisprudence, and understand its place within the Indian Constitution. The Court holds:</p>
<blockquote>This leads us to a discussion of what is the content of the expression “freedom of speech and expression”. There are three concepts which are fundamental in understanding the reach of this most basic of human rights. The first is discussion, the second is advocacy, and the third is incitement. Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. (para 13)</blockquote>
<p>The Marketplace of Ideas then becomes the philosophical tenet which pivots the judgement around its unique jurisprudential concept: the distinction between discussion, advocacy and incitement. This conception of the marketplace holds that State interference in speech on the internet has to be kept off as long as the condition of such speech being incitement is not fulfilled. In a way, this is a hands-off approach to the governance of speech which is solidified in the Court’s declaration of the unconstitutionality of Section 66A. The Court refers to the American judgement of Reno, Attorney General of <em>United States v. American Civil Liberties Union</em> [6] to bring this logic to speech on the internet as well. Citing the district court judgement in this case, it holds:</p>
<blockquote>[I]t is no exaggeration to conclude that the Internet has achieved, and continues to achieve, the most participatory marketplace of mass speech that this country – and indeed the world – as yet seen. The plaintiffs in these actions correctly describe the ‘democratizing’ effects of Internet communication: individual citizens of limited means can speak to a worldwide audience on issues of concern to them. Federalists and Anti-federalists may debate the structure of their government nightly, but these debates occur in newsgroups or chat rooms rather than in pamphlets. Modern-day Luthers still post their theses, but to electronic bulletins boards rather than the door of the Wittenberg Schlosskirche. More mundane (but from a constitutional perspective, equally important) dialogue occurs between aspiring artists, or French cooks, or dog lovers, or fly fishermen. 929 F. Supp. At 881. (at page 425) (para 60)</blockquote>
<p><em>Shreya Singhal</em>’s striking down of 66A then becomes founded in the idea that the State need not interfere in what kind of speech is made in the marketplace of the internet, as long as such speech does not amount to incitement. In a particular sphere of speech which is “not incitement” then, the logic of the Marketplace of Ideas approach seems to work in the <em>Shreya Singhal</em> judgement.</p>
<p> </p>
<h2>Recognition of the Limitations of the Marketplace of Ideas and a Move towards Public Sphere</h2>
<p>One would then surmise that the use of the Marketplace of Ideas approach is what makes <em>Shreya Singhal</em> such a pro-freedom of speech pronouncement. But interestingly, the judgement also cites the matter of <em>The Secretary, Ministry of Information & Broadcasting v. Cricket Association of Bengal and Anr</em> [3] which has been remarkable for outlining the limitations of the marketplace in the governance and production of a diversity of opinions and sources in speech. The <em>Cricket Association of Bengal</em> case was brought forth before the Supreme Court in 1995, after the liberalisation regime in media, to challenge the constitutionality of preventing a private broadcaster to use Indian airwaves in order to exclusively broadcast a cricket match.</p>
<p>The Court, while holding that there was no such exclusive right inhering in a private broadcaster since airwaves had to be allocated and used in public interest, also held that the limitations on a private broadcaster’s right to broadcast also could not extend beyond Article 19(2). In doing so, the Court recognises that the marketplace in a free and competitive system may not always be sufficient enough to make use of the media to generate and represent speech which is in the democratic public interest of discussion and advocacy. <em>Shreya Singhal</em> cites this portion of the judgement in support of its own rationale of striking down Section 66A. It holds:</p>
<blockquote>The right to use the airwaves and the content of the programmes, therefore, needs regulation for balancing it and as well as to prevent monopoly of information and views relayed, which is a potential danger flowing from the concentration of the right to broadcast/telecast in the hands either of a central agency or of few private affluent broadcasters. That is why the need to have a central agency representative of all sections of the society free from control both of the Government and the dominant influential sections of the society. This is not disputed. But to contend that on that account the restrictions to be imposed on the right under Article 19(1)(a) should be in addition to those permissible under Article 19(2) and dictated by the use of public resources in the best interests of the society at large, is to misconceive both the content of the freedom of speech and expression and the problems posed by the element of public property in, and the alleged scarcity of, the frequencies as well as by the wider reach of the media. (para 29)</blockquote>
<p>The recognition in <em>Shreya Singhal</em> that unregulated, the marketplace can lead to “a monopoly of information and views relayed” flowing from the hands of “either a central agency or a few private affluent broadcasters” points to the limitation of the Marketplace of Ideas approach itself. Such recognition culminated into a more participation-focused idea of what it means to live in a democracy: the idea of a Public Sphere where regulation and governance of media is done in order to expand participation of different kinds of ideas and people within public speech. The Court again cites <em>Cricket Association of Bengal</em> in this regard to state:</p>
<blockquote>When, however, there are surplus or unlimited resources and the public interests so demand or in any case do not prevent telecasting, the validity of the argument based on limitation of resources disappears. It is true that to own a frequency for the purposes of broadcasting is a costly affair and even when there are surplus or unlimited frequencies, only the affluent few will own them and will be in a position to use it to subserve their own interest by manipulating news and views. That also poses a danger to the freedom of speech and expression of the have-nots by denying them the truthful information on all sides of an issue which is so necessary to form a sound view on any subject. (para 29)</blockquote>
<p>In background of this, it could be said that the Marketplace of Ideas, while it forms an important part of the backbone in the striking down of Section 66A, it is not all there is to it. The idea of participation in a Public Sphere is recognised as well, and to an extent it is the barrier to participation in this Public Sphere, which enables the declaration of Section 66A as unconstitutional.</p>
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<h2>Public Sphere or the Marketplace? : (N)either, but a Dynamics of Control</h2>
<p>Much of the discourse around <em>Shreya Singhal</em>’s discussion on Sections 69A and 79, has seen it as divorced from the discussion around Section 66A. The discussion on Section 69A and 79 in the judegment has been seen as regressive, or ambiguous, while the portion of the judgement dealing with Section 66A has been largely been pronounced progressive and liberal. It has also been argued that the discussion on Section 66A in <em>Shreya Singhal</em> departs from a myriad previous judgements and their approach towards the governance of free speech [7]. I would like to argue on the contrary, that there is in fact, a deep continuity in the judgement on various provisions, as well as with prior judgements on speech, as far as the approach which is taken towards the governance of speech generally, and speech on the internet, specifically, is concerned.</p>
<p>To understand this continuity, it is of critical importance to note how the approaches of Public Sphere and the Marketplace of Ideas are contrasted in <em>Cricket Association of Bengal</em>, and by reference in <em>Shreya Singhal</em> as well—while the former is used to justify regulation for participation of a larger public in reception of information from the media, and the latter to keep off excessive interference by the Government. Moreover, the judgement also seems to conflate the Marketplace of Ideas and the Public Sphere conceptions of speech governance when it states:</p>
<blockquote>It is clear, therefore, that the petitioners are correct in saying that the public’s right to know is directly affected by Section 66A. Information of all kinds is roped in – such information may have scientific, literary or artistic value, it may refer to current events, it may be obscene or seditious. That such information may cause annoyance or inconvenience to some is how the offence is made out. It is clear that the right of the people to know – the market place of ideas – which the internet provides to persons of all kinds is what attracts Section 66A. (para 20)</blockquote>
<p>One notes in the abovementioned extract that the right to know is seen to emerge from the Marketplace of Ideas rather than through participation in the Public Sphere. In light of these observations, one can then ask the question: What is really at the philosophical heart of <em>Shreya Singhal</em> judgement when it can employ both these approaches? One can argue that the focus of the judgement is to balance these two approaches for the governance of speech. But what is the aim of such an attempt to “balance”? Where is it really leading to? The answer may lie in analysing the rest of <em>Shreya Singhal</em>, including its pronouncements on Executive Rules under Section 69A and Section 79, both of which while being regressive, were upheld as constitutional.</p>
<p>The issue under Section 69A concerned the constitutional validity of the Blocking Rules of the internet, while that under Section 79 concerned the liability of intermediaries on the internet. What is interesting is that the Court in its analysis of Rules under both these sections does not go into the grounds which have been prescribed for the blocking of websites, or for pinning intermediary liability. Commenting on the Rules under Section 69A, the judgement holds:</p>
<blockquote>Merely because certain additional safeguards such as those found in Section 95 and 96 CrPC are not available does not make the Rules constitutionally infirm. We are of the view that the Rules are not constitutionally infirm in any manner. (para 111)</blockquote>
<p>Additionally it places emphasis on the premise the satisfaction of the Central Government that it is necessary to block a website, is a valuable assumption to proceed with the blocking of such website within the tenet of Article 19(2). It holds:</p>
<blockquote>It will be noticed that Section 69A unlike Section 66A is a narrowly drawn provision with several safeguards. First and foremost, blocking can only be resorted to where the Central Government is satisfied that it is necessary so to do. (para 109)</blockquote>
<p>Similarly, for the Rules under Section 79, the Court strikes down the premise that private censorship of internet content based on the judgement of intermediaries is constitutionally permissible. (see para 117) However, it upholds constitutionality of removal of content by an intermediary upon knowledge of a court order to this effect, as well as knowledge of notification by the appropriate government. It states:</p>
<blockquote>Section 79(3)(b) has to be read down to mean that the intermediary upon receiving actual knowledge that a court order has been passed asking it to expeditiously remove or disable access to certain material must then fail to expeditiously remove or disable access to that material. This is for the reason that otherwise it would be very difficult for intermediaries like Google, Facebook etc. to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not. We have been informed that in other countries worldwide this view has gained acceptance, Argentina being in the forefront. Also, the Court order and/or the notification by the appropriate Government or its agency must strictly conform to the subject matters laid down in Article 19(2). (para 117)</blockquote>
<p>In this manner while the power of speech regulation is taken away from private intermediaries existing in the Marketplace of Ideas, it is restored within the organs of the State—the Judiciary and the Executive. This may not necessarily be repressive, as long as these powers of regulations are used to actually expand the Public Sphere, rather than limiting or controlling it. But the architecture of the regulations under both Sections 69A, and 79 suggest that they have been designed for control, rather than promoting discussion in the Public Sphere, as is evident from the strong censorship models they employ.</p>
<p>Such type of speech regulation aimed at creating a State-controlled “Public Sphere” has a long history: It has been additionally opined that the First Amendment to the Constitution which expanded the grounds under Article 19(2) embodies this colonial continuity within the Constitution framework itself [8]. Eminent lawyer, Rajeev Dhavan has analysed the colonial history of laws governing speech in India to observe continuity from the administration then, to the post-independence orientation of speech laws, to point out that an inherent distrust of the media has always existed in the legal structure, be it before or after the Indian Constitution. He traces such form of legal structure to a desire to control, rather than enable the “public” rooted in the context of colonial rather than democratic pressures [9].</p>
<p>This trend also links back to what happens in the case of <em>Cricket Association of Bengal</em> which is cited in support of the striking down of Section 66A in <em>Shreya Singhal</em>. In <em>Cricket Association of Bengal</em>, while there is a recognition of the limitations of Marketplace of Ideas in how it can concentrate participation in democratic discussions only to the hands of those with adequate purchasing power,9 it also fails to amend this through a process of greater participation and representation of diverse public on media. What it broadly does instead is conflate the public to the State, holding that it is only through State-administered public broadcasting that greater participation and representation of diverse public on media can happen. Accordingly, Justice B.P. Jeevan Reddy in his judgement states:</p>
<blockquote>Public good lies in ensuring plurality of opinions, views and ideas and that would scarcely be served by private broadcasters, who would be and who are bound to be actuated by profit motive. There is a far greater likelihood of these private broadcasters indulging in misinformation, disinformation and manipulation of news and views than the government-controlled media, which is at least subject to public and parliamentary scrutiny. (para 181, emphasis added)</blockquote>
<p>Such architecture of Government regulation in the governance of speech, visible both in <em>Cricket Association of Bengal</em>, and by extension in the 66A discussion in <em>Shreya Singhal</em>, but also in the Sections 69A and 79 discussion in the latter judgement, aspires not at expanding and creating a Habermasian Public Sphere of unlimited lively discussion, but rather, a pre-defined, controlled sphere of the “public” which behaves in congruence with the interests of the State. While on the surface it may seem to recognise the limits of the Marketplace of Ideas approach in speech governance and aim for reform of the same, in the bigger scheme of things, the criticism of the marketplace is really directed towards putting more control of public speech in the hands of the State machinery [9].</p>
<p>In such a background of the control trend, even a judgement like <em>Shreya Singhal</em> with such a progressive outcome, appears like a flash in the pan. It might allow for some seemingly liberal advancements in free speech, but it does so only within the larger structure of control mechanisms created for speech ingrained within a pre-independence, undemocratic form of governance which was disrespectful of an independent Public Sphere. The question which then needs to be asked is this: While judgements like <em>Shreya Singhal</em> strike down the really repressive, do they actually bring about a structural change in legal assumptions about public speech? Or is the same colonial desire of control which is permeating the most progressive pronouncements of our jurisdiction? Is it moving towards a participatory, diverse and independent Public Sphere, or something which appears close enough to free discussion, but really is carefully monitored to produced “socially relevant” content, whereby what is relevant is defined through a complicated State apparatus? As our speech laws move to the Internet Age, these are some questions we must ask if the hope for the law is to enable involved, democratic citizenry, rather than a colonial-flavoured Internet public.</p>
<p> </p>
<h2>References</h2>
<p>[1] Judgement accessed from <a href="http://supremecourtofindia.nic.in/FileServer/2015-03-24_1427183283.pdf">http://supremecourtofindia.nic.in/FileServer/2015-03-24_1427183283.pdf</a>.</p>
<p>[2] Stein, Laura. 2006. <em>Speech rights in America: The First Amendment, Democracy, and the Media</em>. Chicago: University of Chicago Press.</p>
<p>[3] Judgement accessed from <a href="http://indiankanoon.org/doc/539407/">http://indiankanoon.org/doc/539407/</a>.</p>
<p>[4] Judgement accessed from <a href="http://indiankanoon.org/doc/1327342/">http://indiankanoon.org/doc/1327342/</a>.</p>
<p>[5] 250 US 616 (1919).</p>
<p>[6] 521 U.S. 844 (1997).</p>
<p>[7] Bhatia, Gautam. 2015. At the Heart of the Landmark 66A Ruling: The Crucial Distinction between Advocacy and Incitement. Scroll. March 25. Accessed from <a href="http://scroll.in/article/716034/at-the-heart-of-the-landmark-66a-ruling-the-crucial-distinction-between-advocacy-and-incitement">http://scroll.in/article/716034/at-the-heart-of-the-landmark-66a-ruling-the-crucial-distinction-between-advocacy-and-incitement</a>.</p>
<p>[8] See: Liang, Lawrence. 2011. Reasonable Restrictions and Unreasonable Speech. InfoChange. Accessed from <a href="http://infochangeindia.org/agenda/freedom-of-expression/reasonable-restrictions-and-unreasonable-speech.html">http://infochangeindia.org/agenda/freedom-of-expression/reasonable-restrictions-and-unreasonable-speech.html</a>. Also see: Acharya, Bhairav. 2015. Free Speech Policy in India: Community, Custom, Censorship, and the Future of Internet Regulation. May 06. Accessed from <a href="http://notacoda.net/2015/05/06/free-speech-policy-in-india-community-custom-censorship-and-the-future-of-internet-regulation/">http://notacoda.net/2015/05/06/free-speech-policy-in-india-community-custom-censorship-and-the-future-of-internet-regulation/</a>.</p>
<p>[9] Dhavan, Rajeev. 2009. Moral Consensus in a Law and Order Society. In Aravind Rajagopal (ed.), <em>The Indian Public Sphere</em>. Oxford University Press. Pp. 92-93.</p>
<p>[10] See the discussion in the previous section of this essay.</p>
<p> </p>
<p><em>The post is published under <a href="https://creativecommons.org/licenses/by/4.0/">Creative Commons Attribution 4.0 International</a> license, and copyright is retained by the author.</em></p>
<p> </p>
<p>
For more details visit <a href='http://editors.cis-india.org/raw/blog_governing-speech-on-the-internet'>http://editors.cis-india.org/raw/blog_governing-speech-on-the-internet</a>
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No publisherSmarika KumarFreedom of Speech and ExpressionJudiciaryRAW Blog69ACensorshipSection 66AResearchers at Work2015-08-28T05:57:55ZBlog EntryDeitY says 143 URLs have been Blocked in 2015; Procedure for Blocking Content Remains Opaque and in Urgent Need of Transparency Measures
http://editors.cis-india.org/internet-governance/blog/deity-says-143-urls-blocked-in-2015
<b>Across India on 30 December 2014, following an order issued by the Department of Telecom (DOT), Internet Service Providers (ISPs) blocked 32 websites including Vimeo, Dailymotion, GitHub and Pastebin.</b>
<p style="text-align: justify;">In February 2015, the Centre for Internet and Society (CIS) requested the Department of Electronics and Information Technology (DeitY) under the Right to Information Act, 2005 (RTI Act) to provide information clarifying the procedures for blocking in India. We have received a response from DeitY which may be <a href="http://editors.cis-india.org/internet-governance/blog/response-deity.clarifying-procedures-for-blocking.pdf" class="external-link">seen here</a>.</p>
<p style="text-align: justify;">In this post, I shall elaborate on this response from DeitY and highlight some of the accountability and transparency measures that the procedure needs. To stress the urgency of reform, I shall also touch upon two recent developments—the response from Ministry of Communication to questions raised in Parliament on the blocking procedures and the Supreme Court (SC) judgment in Shreya Singhal v. Union of India.</p>
<h2 style="text-align: justify;">Section 69A and the Blocking Rules</h2>
<p align="JUSTIFY" class="western">Section 69A of the Information Technology Act, 2008 (S69A hereinafter) grants powers to the central government to issue directions for blocking of access to any information through any computer resource. In other words, it allows the government to block any websites under certain grounds. The Government has notified rules laying down the procedure for blocking access online under the Procedure and Safeguards for Blocking for Access of Information by Public Rules, 2009 (Rules, 2009 hereinafter). CIS has produced a poster explaining the blocking procedure (<a href="http://cis-india.org/internet-governance/blog/blocking-websites.pdf/at_download/file">download PDF</a>, 2.037MB).</p>
<p align="JUSTIFY" class="western">There are <em>three key aspects</em> of the blocking rules that need to be kept under consideration:</p>
<h3 align="JUSTIFY" class="western">Officers and committees handling requests</h3>
<p style="text-align: justify;"><strong>Designated Officer (DO)</strong> – Appointed by the Central government, officer not below the rank of Joint Secretary.<br /><strong>Nodal Officer (NO)</strong> – Appointed by organizations including Ministries or Departments of the State governments and Union Territories and any agency of the Central Government. <br /><strong>Intermediary contact</strong>–Appointed by every intermediary to receive and handle blocking directions from the DO.<br /><strong>Committee for Examination of Request (CER)</strong> – The request along with printed sample of alleged offending information is examined by the CER—committee with the DO serving as the Chairperson and representatives from Ministry of Law and Justice; Ministry of Home Affairs; Ministry of Information and Broadcasting and representative from the Indian Computer Emergency Response Team (CERT-In). The CER is responsible for examining each blocking request and makes recommendations including revoking blocking orders to the DO, which are taken into consideration for final approval of request for blocking by the Secretary, DOT. <br /><strong>Review Committee (RC) </strong>– Constituted under rule 419A of the Indian Telegraph Act, 1951, the RC includes the Cabinet Secretary, Secretary to the Government of India (Legal Affairs) and Secretary (Department of Telecom). The RC is mandated to meet at least once in 2 months and record its findings and has to validate that directions issued are in compliance with S69A(1).</p>
<h3 style="text-align: justify;">Provisions outlining the procedure for blocking</h3>
<p>Rules 6, 9 and 10 create three distinct blocking procedures, which must commence within 7 days of the DO receiving the request.</p>
<p style="text-align: justify;">a) Rule 6 lays out the first procedure, under which any person may approach the NO and request blocking, alternatively, the NO may also raise a blocking request. After the NO of the approached Ministry or Department of the State governments and Union Territories and/or any agency of the Central Government, is satisfied of the validity of the request they forward it to the DO. Requests when not sent through the NO of any organization, must be approved by Chief Secretary of the State or Union Territory or the Advisor to the Administrator of the Union Territory, before being sent to the DO.</p>
<p style="text-align: justify;">The DO upon receiving the request places, must acknowledge receipt within 24 four hours and places the request along with printed copy of alleged information for validation by the CER. The DO also, must make reasonable efforts to identify the person or intermediary hosting the information, and having identified them issue a notice asking them to appear and submit their reply and clarifications before the committee at a specified date and time, within forty eight hours of the receipt of notice.</p>
<p style="text-align: justify;">Foreign entities hosting the information are also informed and the CER gives it recommendations after hearing from the intermediary or the person has clarified their position and even if there is no representation by the same and after examining if the request falls within the scope outlined under S69A(1). The blocking directions are issued by the Secretary (DeitY), after the DO forwards the request and the CER recommendations. If approval is granted the DO directs the relevant intermediary or person to block the alleged information.</p>
<p style="text-align: justify;" class="western">b) Rule 9 outlines a procedure wherein, under emergency circumstances, and after the DO has established the necessity and expediency to block alleged information submits recommendations in writing to the Secretary, DeitY. The Secretary, upon being satisfied by the justification for, and necessity of, and expediency to block information may issue an blocking directions as an interim measure and must record the reasons for doing so in writing.</p>
<p style="text-align: justify;" class="western">Under such circumstances, the intermediary and person hosting information is not given the opportunity of a hearing. Nevertheless, the DO is required to place the request before the CER within forty eight hours of issuing of directions for interim blocking. Only upon receiving the final recommendations from the committee can the Secretary pass a final order approving the request. If the request for blocking is not approved then the interim order passed earlier is revoked, and the intermediary or identified person should be directed to unblock the information for public access.</p>
<p style="text-align: justify;" class="western">c) Rule 10 outlines the process when an order is issued by the courts in India. The DO upon receipt of the court order for blocking of information submits it to the Secretary, DeitY and initiates action as directed by the courts.</p>
<h3 style="text-align: justify;" class="western">Confidentiality clause</h3>
<p style="text-align: justify;">Rule 16 mandates confidentiality regarding all requests and actions taken thereof, which renders any requests received by the NO and the DO, recommendations made by the DO or the CER and any written reasons for blocking or revoking blocking requests outside the purview of public scrutiny. More detail on the officers and committees that enforce the blocking rules and procedure can be found <a href="http://cis-india.org/internet-governance/blog/is-india2019s-website-blocking-law-constitutional-2013-i-law-procedure">here</a>.</p>
<h2>Response on blocking from the Ministry of Communication and Information Technology</h2>
<p style="text-align: justify;">The response to our RTI from E-Security and Cyber Law Group is timely, given the recent clarification from the Ministry of Communication and Information Technology to a number of questions, raised by parliamentarian Shri Avinash Pande in the Rajya Sabha. The questions had been raised in reference to the Emergency blocking order under IT Act, the current status of the Central Monitoring System, Data Privacy law and Net Neutrality. The Centre for Communication Governance (CCG), National Law University New Delhi have extracted a set of 6 questions and you can read the full article <a href="https://ccgnludelhi.wordpress.com/2015/04/24/governments-response-to-fundamental-questions-regarding-the-internet-in-india/">here</a>.</p>
<p align="JUSTIFY" class="western">The governments response as quoted by CCG, clarifies under rule 9—the Government has issued directions for emergency blocking of <em>a total number of 216 URLs from 1st January, 2014 till date </em>and that <em>a total of 255 URLs were blocked in 2014 and no URLs has been blocked in 2015 (till 31 March 2015)</em> under S69A through the Committee constituted under the rules therein. Further, a total of 2091 URLs and 143 URLs were blocked in order to comply with the directions of the competent courts of India in 2014 and 2015 (till 31 March 2015) respectively. The government also clarified that the CER, had recommended not to block 19 URLs in the meetings held between 1<sup>st</sup><sup> </sup>January 2014 upto till date and so far, two orders have been issued to revoke 251 blocked URLs from 1st January 2014 till date. Besides, CERT-In received requests for blocking of objectionable content from individuals and organisations, and these were forwarded to the concerned websites for appropriate action, however the response did not specify the number of requests.</p>
<p align="JUSTIFY" class="western">We have prepared a table explaining the information released by the government and to highlight the inconsistency in their response.</p>
<table class="grid listing">
<colgroup> <col width="331"> <col width="90"> <col width="91"> <col width="119"> </colgroup>
<tbody>
<tr>
<td rowspan="2">
<p align="LEFT"><strong>Applicable rule and procedure outlined under the Blocking Rules</strong></p>
</td>
<td colspan="3">
<p align="CENTER"><strong>Number of websites</strong></p>
</td>
</tr>
<tr>
<td>
<p align="CENTER"><em>2014</em></p>
</td>
<td>
<p align="CENTER"><em>2015</em></p>
</td>
<td>
<p align="CENTER"><em>Total</em></p>
</td>
</tr>
<tr>
<td>
<p align="LEFT">Rule 6 - Blocking requests from NO and others</p>
</td>
<td>
<p align="CENTER">255</p>
</td>
<td>
<p align="CENTER">None</p>
</td>
<td>
<p align="CENTER">255</p>
</td>
</tr>
<tr>
<td>
<p align="LEFT">Rule 9 - Blocking under emergency circumstances</p>
</td>
<td>
<p align="CENTER">-</p>
</td>
<td>
<p align="CENTER">-</p>
</td>
<td>
<p align="CENTER">216</p>
</td>
</tr>
<tr>
<td>
<p align="LEFT">Rule 10 - Blocking orders from Court</p>
</td>
<td>
<p align="CENTER">2091</p>
</td>
<td>
<p align="CENTER">143</p>
</td>
<td>
<p align="CENTER">2234</p>
</td>
</tr>
<tr>
<td>
<p align="LEFT">Requests from individuals and orgs forwarded to CERT-In</p>
</td>
<td>
<p align="CENTER">-</p>
</td>
<td>
<p align="CENTER">-</p>
</td>
<td>
<p align="CENTER">-</p>
</td>
</tr>
<tr>
<td>
<p align="LEFT">Recommendations to not block by CER</p>
</td>
<td>
<p align="CENTER">-</p>
</td>
<td>
<p align="CENTER">-</p>
</td>
<td>
<p align="CENTER">19</p>
</td>
</tr>
<tr>
<td>
<p align="LEFT">Number of blocking requests revoked</p>
</td>
<td>
<p align="CENTER">-</p>
</td>
<td>
<p align="CENTER">-</p>
</td>
<td>
<p align="CENTER">251</p>
</td>
</tr>
</tbody>
</table>
<p>In a <a href="http://sflc.in/deity-says-2341-urls-were-blocked-in-2014-refuses-to-reveal-more/">response </a>to an RTI filed by the Software Freedom Law Centre, DeitY said that 708 URLs were blocked in 2012, 1,349 URLs in 2013, and 2,341 URLs in 2014.</p>
<h2>Shreya Singhal v. Union of India</h2>
<p style="text-align: justify;">In its recent judgment, the SC of India upheld the constitutionality of 69A, stating that it was a narrowly-drawn provision with adequate safeguards. The constitutional challenge on behalf of the People’s Union for Civil Liberties (PUCL) considered the manner in which the blocking is done and the arguments focused on the secrecy present in blocking.</p>
<p style="text-align: justify;">The rules may indicate that there is a requirement to identify and contact the originator of information, though as an expert <a href="http://indianexpress.com/article/opinion/columns/but-what-about-section-69a/">has pointed out</a>, there is no evidence of this in practice. The court has stressed the importance of a written order so that writ petitions may be filed under Article 226 of the Constitution. In doing so, the court seems to have assumed that the originator or intermediary is informed, and therefore held the view that any procedural inconsistencies may be challenged through writ petitions. However, this recourse is rendered ineffective not only due to procedural constraints, but also because of the confidentiality clause. The opaqueness through rule 16 severely reigns in the recourse that may be given to the originator and the intermediary. While the court notes that rule 16 requiring confidentality was argued to be unconstitutional, it does not state its opinion on this question in the judgment. One expert, holds the <a href="https://indconlawphil.wordpress.com/2015/03/25/the-supreme-courts-it-act-judgment-and-secret-blocking/">view</a> that this, by implication, requires that requests cannot be confidential. However, such a reading down of rule 16 is yet to be tested.</p>
<p style="text-align: justify;">Further, Sunil Abraham has <a href="http://cis-india.org/internet-governance/blog/economic-and-political-weekly-sunil-abraham-april-11-2015-shreya-singhal-and-66a">pointed</a> out, “block orders are unevenly implemented by ISPs making it impossible for anyone to independently monitor and reach a conclusion whether an internet resource is inaccessible as a result of a S69A block order or due to a network anomaly.” As there are no comprehensive list of blocked websites or of the legal orders through which they are blocked exists, the public has to rely on media reports and filing RTI requests to understand the censorship regime in India. CIS has previously <a href="http://cis-india.org/internet-governance/blog/analysing-blocked-sites-riots-communalism">analysed</a> the leaked block lists and lists received as responses to RTI requests which have revealed that the block orders are full of errors and blocking of entire platforms and not just specific links has taken place.</p>
<p style="text-align: justify;">While the state has the power of blocking content, doing so in secrecy and without judical scrutiny, mark deficiencies that remain in the procedure outlined under the provisions of the blocking rules . The Court could read down rule 16 except for a really narrow set of exceptions, and in not doing so, perhaps has overlooked the opportunities for reform in the existing system. The blocking of 32 websites, is an example of the opaqueness of the system of blocking orders, and where the safeguards assumed by the SC are often not observed such as there being no access to the recommendations that were made by the CER, or towards the revocation of the blocking orders subsequently. CIS filed the RTI to try and understand the grounds for blocking and related procedures and the response has thrown up some issues that must need urgent attention.</p>
<h2>Response to RTI filed by CIS</h2>
<p align="JUSTIFY" class="western">Our first question sought clarification on the websites blocked on 30<sup>th</sup><sup> </sup>December 2014 and the response received from DeitY, E-Security and Cyber Law Group reveals that the websites had been blocked as “they were being used to post information related to ISIS using the resources provided by these websites”. The response also clarifies that the directions to block were issued on <em>18-12-2014 and as of 09-01-2015</em>, after obtaining an undertaking from website owners, stating their compliance with the Government and Indian laws, the sites were unblocked.</p>
<p align="JUSTIFY" class="western">It is not clear if ATS, Mumbai had been intercepting communication or if someone reported these websites. If the ATS was indeed intercepting communication, then as per the rules, the RC should be informed and their recommendations sought. It is unclear, if this was the case and the response evokes the confidentiality clause under rule 16 for not divulging further details. Based on our reading of the rules, court orders should be accessible to the public and without copies of requests and complaints received and knowledge of which organization raised them, there can be no appeal or recourse available to the intermediary or even the general public.</p>
<p align="JUSTIFY" class="western">We also asked for a list of all requests for blocking of information that had been received by the DO between January 2013 and January 2015, including the copies of all files that had accepted or rejected. We also specifically, asked for a list of requests under rule 9. The response from DeitY stated that since January 1, 2015 to March 31, 2015 directions to block 143 URLs had been issued based on court orders. The response completely overlooks our request for information, covering the 2 year time period. It also does not cover all types of blocking orders under rule 6 and rule 9, nor the requests that are forwarded to CERT-In, as we have gauged from the ministry's response to the Parliament. Contrary to the SC's assumption of contacting the orginator of information, it is also clear from DeitY's response that only the websites had been contacted and the letter states that the “websites replied only after blocking of objectionable content”. </p>
<p align="JUSTIFY" class="western">Further, seeking clarification on the functioning of the CER, we asked for the recent composition of members and the dates and copies of the minutes of all meetings including copies of the recommendations made by them. The response merely quotes rule 7 as the reference for the composition and does not provide any names or other details. We ascertain that as per the DeitY website Shri B.J. Srinath, Scientist-G/GC is the appointed Designated Officer, however this needs confirmation. While we are already aware of the structure of the CER which representatives and appointed public officers are guiding the examination of requests remains unclear. Presently, there are 3 Joint Secretaries appointed under the Ministry of Law and Justice, the Home Ministry has appointed 19, while 3 are appointed under the Ministry of Information and Broadcasting. Further, it is not clear which grade of scientist would be appointed to this committee from CERT-In as the rules do not specify this. While the government has clarified in their answer to Parliament that the committee had recommended not to block 19 URLs in the meetings held between 1st January 2014 to till date, it is remains unclear who is taking these decisions to block and revoke blocked URLs. The response from DeitY specifies that the CER has met six times between 2014 and March 2015, however stops short on sharing any further information or copies of files on complaints and recommendations of the CER, citing rule 16.</p>
<p align="JUSTIFY" class="western">Finally, answering our question on the composition of the RC the letter merely highlights the provision providing for the composition under 419A of the Indian Telegraph Rules, 1951. The response clarifies that so far, the RC has met once on 7th December, 2013 under the Chairmanship of the Cabinet Secretary, Department of Legal Affaits and Secretary, DOT. Our request for minutes of meetings and copies of orders and findings of the RC is denied by simply stating that “minutes are not available”. Under 419A, any directions for interception of any message or class of messages under sub-section (2) of Section 5 of the Indian Telegraph Act, 1885 issued by the competent authority shall contain reasons for such direction and a copy of such order shall be forwarded to the concerned RC within a period of seven working days. Given that the RC has met just once since 2013, it is unclear if the RC is not functioning or if the interception of messages is being guided through other procedures. Further, we do not yet know details or have any records of revocation orders or notices sent to intermediary contacts. This restricts the citizens’ right to receive information and DeitY should work to make these available for the public.</p>
<p align="JUSTIFY" class="western">Given the response to our RTI, the Ministry's response to Parliament and the SC judgment we recommend the following steps be taken by the DeitY to ensure that we create a procedure that is just, accountable and follows the rule of law.</p>
<p align="JUSTIFY" class="western">The revocation of rule 16 needs urgent clarification for two reasons:</p>
<ol>
<li>Under Section 22 of the RTI Act provisions thereof, override all conflicting provisions in any other legislation.</li>
<li style="text-align: justify;">In upholding the constitutionality of S69A the SC cites the requirement of reasons behind blocking orders to be recorded in writing, so that they may be challenged by means of writ petitions filed under <a href="http://indiankanoon.org/doc/1712542/">A</a><a href="http://indiankanoon.org/doc/1712542/">rticle 226</a> of the Constitution of India.</li></ol>
<p style="text-align: justify;">If the blocking orders or the meetings of the CER and RC that consider the reasons in the orders are to remain shrouded in secrecy and unavailable through RTI requests, filing writ petitions challenging these decisions will not be possible, rendering this very important safeguard for the protection of online free speech and expression infructuous. In summation, the need for comprehensive legislative reform remains in the blocking procedures and the government should act to address the pressing need for transparency and accountability. Not only does opacity curtial the strengths of democracy it also impedes good governance. We have filed an RTI seeking a comprehensive account of the blocking procedure, functioning of committees from 2009-2015 and we shall publish any information that we may receive.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/deity-says-143-urls-blocked-in-2015'>http://editors.cis-india.org/internet-governance/blog/deity-says-143-urls-blocked-in-2015</a>
</p>
No publisherjyotiCensorshipFreedom of Speech and ExpressionRTIIntermediary LiabilityAccountabilityFeatured69AInternet GovernanceChilling EffectTransparencyHomepageBlocking2015-04-30T07:37:40ZBlog Entry