The Centre for Internet and Society
http://editors.cis-india.org
These are the search results for the query, showing results 1 to 15.
You can still get into trouble for online posts: Digital law experts
http://editors.cis-india.org/internet-governance/news/times-of-india-march-30-2015-kim-arora-you-can-still-get-into-trouble-for-online-posts
<b>The internet in India is freer now, but individuals could still to get into trouble for online posts, say digital media and law experts. Hailing the Supreme Court judgment on Tuesday as a landmark verdict for free speech in India, experts who have closely read the judgment say there is much to be careful about too. </b>
<p style="text-align: justify; ">The article by Kim Arora was <a class="external-link" href="http://timesofindia.indiatimes.com/tech/tech-news/You-can-still-get-into-trouble-for-online-posts-Digital-law-experts/articleshow/46741580.cms">published in the Times of India</a> on March 30, 2015. Sunil Abraham is quoted.</p>
<hr />
<p style="text-align: justify; ">The scrapping of the contentious section doesn't mean that one has a free run, cautions Sunil Abraham, executive director, Centre for Internet and Society. An online comment can still land you in jail, he says.<br /><br />"The judgement in no way means that speech on online platforms will be unregulated now. You can still be charged for pornography or voyeurism under the IT Act. There are many provisions in the Constitution and Indian Penal Code that the government can use to target people it wants to go after. You can be still charged for hate speech or defamation - which is a criminal offence in India - for an online comment," says Abraham.</p>
<p style="text-align: justify; ">While lawyer Apar Gupta found the judgment to be forward-looking, he pointed to Para 98 of the 120 page judgment, which addresses Article 14 of the Constitution regarding "discrimination" and talks of the distinction between online and other media.</p>
<p style="text-align: justify; ">"We make it clear that there is an intelligible differentia between speech on the internet and other mediums of communication for which separate offences can certainly be created by legislation," says the judgment. "The court has indicated that special offences can be created for the internet. Constant vigilance is the price of liberty. We need to constantly engage with these issues to keep the internet free," says Gupta.</p>
<p style="text-align: justify; ">The judgment has been praised for making a distinction between online posts and messages that pertain to advocacy, discussion and incitement. "This is an excellent decision. The SC is saying that no matter what the medium, we stand for constitutional rights. The judges were ready to listen, and ready to share their experience of using the internet also," says Mishi Choudhary, legal director at Software Freedom Law Center, adding, "It was a lost opportunity for the Modi government. They should have gotten rid of section 66 A themselves."</p>
<p style="text-align: justify; ">Section 69A of the Act, which stands as is, allows non-transparent blocking of online content in the interest of "sovereignty and integrity of India, defense of India, security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence relating to above." However, Choudhary says that since it is a narrowly-drawn provision, it ensures more safeguards.</p>
<p style="text-align: justify; ">"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. Secondly, such necessity is relatable only to some of the subjects set out in Article 19(2). Thirdly, reasons have to be recorded in writing in such blocking order so that they may be assailed in a writ petition under Article 226 of the Constitution," she says.</p>
<p style="text-align: justify; ">Going forward, the government plan of action should focus on balancing safety and freedom on the internet, says Rajya Sabha MP Rajeev Chandrasekhar, who himself was one of the petitioners. "The final endgame has to be one where we have a new law or even a new IT Act which meets the twin objectives of a safe and free internet. The two need not be mutually exclusive," he says.</p>
<p style="text-align: justify; "><i>(With inputs from Anand J in Bengaluru) </i></p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/news/times-of-india-march-30-2015-kim-arora-you-can-still-get-into-trouble-for-online-posts'>http://editors.cis-india.org/internet-governance/news/times-of-india-march-30-2015-kim-arora-you-can-still-get-into-trouble-for-online-posts</a>
</p>
No publisherpraskrishnaIT ActCensorshipFreedom of Speech and ExpressionInternet GovernanceChilling Effect2015-04-02T01:44:32ZNews ItemWhy should we care about takedown timeframes?
http://editors.cis-india.org/internet-governance/blog/why-should-we-care-about-takedown-timeframes
<b>The issue of content takedown timeframe - the time period an intermediary is allotted to respond to a legal takedown order - has received considerably less attention in conversations about intermediary liability. This article examines the importance of framing an appropriate timeframe towards ensuring that speech online is not over-censored, and frames recommendations towards the same.
</b>
<p> </p>
<p> </p>
<p><em>This article first <a class="external-link" href="https://cyberbrics.info/why-should-we-care-about-takedown-timeframes/">appeared</a> in the CyberBRICS website. It has since been <a class="external-link" href="https://www.medianama.com/2020/04/223-content-takedown-timeframes-cyberbrics/">cross-posted</a> to the Medianama.</em></p>
<p><em>The findings and opinions expressed in this article are derived from the larger research report 'A deep dive into content takedown timeframes', which can be accessed <a class="external-link" href="https://cis-india.org/internet-governance/files/a-deep-dive-into-content-takedown-frames">here</a>.</em></p>
<p><strong>Introduction</strong></p>
<p>Since the Ministry of Electronics and Information Technology (MeitY) proposed the draft amendments to the intermediary liability guidelines in December of 2018, speculations regarding their potential effects have been numerous. These have included, <a class="external-link" href="http://www.medianama.com/2020/01/223-traceability-accountability-necessary-intermediary-liability/">mapping</a> the requirement of traceability of originators vis-a-vis chilling effect on free speech online, or <a class="external-link" href="http://cyberbrics.info/rethinking-the-intermediary-liability-regime-in-india/">critiquing</a> the proactive filtering requirement as potentially leading to censorship.</p>
<p>One aspect, however, that has received a lesser amount of attention is encoded within Rule 3(8) of the draft amendments. By the virtue of that rule, the time-limit given to the intermediaries to respond to a legal content takedown request (“turnaround time”) has been reduced from 36 hours (as it was in the older version of the rules) to 24 hours. In essence, intermediaries, when faced with a takedown order from the government or the court, would now have to remove the concerned piece of content within 24 hours of receipt of the notice.</p>
<p>Why is this important? Consider this: the <a class="external-link" href="http://indiacode.nic.in/bitstream/123456789/1999/3/A2000-21.pdf">definition</a> of an ‘intermediary’ within the Indian law encompasses a vast amount of entities – cyber cafes, online-marketplaces, internet service providers and more. Governance of any intermediary liability norms would accordingly require varying levels of regulation, each of which recognizes the different composition of these entities. In light of that, the content takedown requirement, and specifically the turnaround time becomes problematic. Let alone that the vast amount of entities under the definition of intermediaries would probably find it impossible to implement this obligation due to their technical architecture, this obligation also seems to erase the nuances existing within entities which would actually fall within its scope. </p>
<p>Each category of online content, and more importantly, each category of intermediary are different, and any content takedown requirement must appreciate these differences. A smaller intermediary may find it more difficult to adhere to a stricter, shorter timeframe, than an incumbent. A piece of ‘terrorist’ content may be required to be treated with more urgency than something that is defamatory. These contextual cues are critical, and must be accordingly incorporated in any law on content takedown.</p>
<p>While making our submissions to the draft amendments, we found that there was a lack of research from the government’s side justifying the shortened turnaround time, nor were there any literature which focussed on turnaround time-frames as a critical point of regulation of intermediary liability. Accordingly, I share some findings from our research in the subsequent sections, which throw light on certain nuances that must be considered before proposing any content takedown time-frame. It is important to note that our research has not yet found what should be an appropriate turnaround time in a given situation. However, the following findings would hopefully start a preliminary conversation which may ultimately lead us to a right answer.</p>
<p><strong>What to consider when regulating takedown time-frames?</strong></p>
<p>I classify the findings from our research into a chronological sequence: a) broad legal reforms, b) correct identification of scope and extent of the law, c) institution of proper procedural safeguards, and d) post-facto review of the time-frame for evidence based policy-making.</p>
<p><em>1. Broad legal reforms: Harmonize the law on content takedown.</em></p>
<p>The Indian law for content takedown is administered through two different provisions under the Information Technology (IT) Act, each with their own legal procedures and scope. While the 24-hour turnaround time would be applicable for the procedure under one of them, there would continue to <a class="external-link" href="http://cis-india.org/internet-governance/resources/information-technology-procedure-and-safeguards-for-blocking-for-access-of-information-by-public-rules-2009">exist</a> a completely different legal procedure under which the government could still effectuate content takedown. For the latter, intermediaries would be given a 48-hour timeframe to respond to a government request with clarifications (if any).</p>
<p>Such differing procedures contributes to the creation of a confusing legal ecosystem surrounding content takedown, leading to arbitrary ways in which Indian users experience internet censorship. Accordingly, it is important to harmonize the existing law in a manner that the procedures and safeguards are seamless, and the regulatory process of content takedown is streamlined.</p>
<p><em>2. Correct identification of scope and extent of the law: Design a liability framework on the basis of the differences in the intermediaries, and the content in question.</em></p>
<p>As I have highlighted before, regulation of illegal content online cannot be <a class="external-link" href="https://blog.mozilla.org/netpolicy/2018/07/11/sustainable-policy-solutions-for-illegal-content/">one-size-fits-all</a>. Accordingly, a good law on content takedown must account for the nuances existing in the way intermediaries operate and the diversity of speech online. More specifically, there are two levels of classification that are critical.</p>
<p><em>One</em>, the law must make a fundamental classification between the intermediaries within the scope of the law. An obligation to remove illegal content can be implemented only by those entities whose technical architecture allows them to. While a search engine would be able to delink websites that are declared ‘illegal’, it would be absurd to expect a cyber cafe to follow a similar route of responding to a legal takedown order within a specified timeframe.</p>
<p>Therefore, one basis of classification must incorporate this difference in the technical architecture of these intermediaries. Apart from this, the law must also design liability for intermediaries on the basis of their user-base, annual revenue generated, and the reach, scope and potential impact of the intermediary’s actions.</p>
<p><em>Two, </em>it is important that the law recognizes that certain types of content would require more urgent treatment than other types of content. Several regulations across jurisdiction, including the NetzDG and the EU Regulation on Preventing of Dissemination of Terrorist Content Online, while problematic in their own counts, attempt to either limit their scope of application or frame liability based on the nature of content targeted.</p>
<p>The Indian law on the other hand, encompasses within its scope, a vast, varying array of content that is ‘illegal’, which includes on one hand, critical items like threatening ‘the sovereignty and integrity of India’ and on the other hand, more subjective speech elements like ‘decency or morality’. While an expedited time-frame may be permissible for the former category of speech, it is difficult to justify the same for the latter. More contextual judgments may be needed to assess the legality of content that is alleged to be defamatory or obscene, thereby making it problematic to have a shorter time-frame for the same.</p>
<p><em>3. Institution of proper procedural safeguards: Make notices mandatory and make sanctions gradated</em>.</p>
<p>Apart from the correct identification of scope and extent, it is important that there are sufficient procedural safeguards to ensure that the interests of the intermediaries and the users are not curtailed. While these may seem ancillary to the main point, how the law chooses to legislate on these issues (or does not), nevertheless has a direct bearing on the issue of content takedown and time-frames.</p>
<p>Firstly, while the Indian law mandates content takedown, it does not mandate a process through which a user is notified of such an action being taken. The mere fact that an incumbent intermediary is able to respond to removal notifications within a specified time-frame does not imply that its actions would not have ramifications on free speech. Ability to takedown content does not translate into accuracy of the action taken, and the Indian law fails to take this into account.</p>
<p>Therefore, additional obligations of informing users when their content has been taken down, institutes due process in the procedure. In the context of legal takedown, such notice mechanisms also <a class="external-link" href="http://www.eff.org/wp/who-has-your-back-2019">empower</a> users to draw attention to government censorship and targeting.</p>
<p>Secondly, a uniform time-frame of compliance, coupled with severe sanctions goes on to disrupt the competition against the smaller intermediaries. While the current law does not clearly elaborate upon the nature of sanctions that would be imposed, general principles of the doctrine of safe harbour dictate that upon failure to remove the content, the intermediary would be subject to the same level of liability as the person uploading the content. This threat of sanctions may have adverse effects on free speech online, resulting in potential <a class="external-link" href="http://cis-india.org/internet-governance/intermediary-liability-in-india.pdf">over-censorship</a> of legitimate speech.</p>
<p>Accordingly, sanctions should be restricted to instances of systematic violations. For critical content, the contours of what constitutes systematic violation may differ. The regulator must accordingly take into account the nature of content which the intermediary failed to remove, while assessing their liability.</p>
<p><em>4. Post-facto review of the time-frame for evidence based policy-making: Mandate transparency reporting.</em></p>
<p>Transparency reporting, apart from ensuring accountability of intermediary action, is also a useful tool for understanding the impact of the law, specifically with relation to time period of response. The NetzDG, for all its criticism, has received <a class="external-link" href="https://www.article19.org/wp-content/uploads/2017/09/170901-Legal-Analysis-German-NetzDG-Act.pdfhttp://">support</a> for requiring intermediaries to produce bi-annual transparency reports. These reports provide us important insight into the efficacy of any proposed turnaround time, which in turn helps us to propose more nuanced reforms into the law.</p>
<p>However, to cull out the optimal amount of information from these reports, it is important that these reporting practices are standardized. There exists some international body of work which proposes a methodology for standardizing transparency reports, including the Santa Clara Principles and the Electronic Frontier Foundation’s (EFF) ‘Who has your back?’ reports. We have also previously proposed a methodology that utilizes some of these pointers.</p>
<p>Additionally, due to the experimental nature of the provision, including a review provision in the law would ensure the efficacy of the exercise can also be periodically assessed. If the discussion in the preceding section is any indication, the issue of an appropriate turnaround time is currently in a regulatory flux, with no correct answer. In such a scenario, periodic assessments compel policymakers and stakeholders to discuss effectiveness of solutions, and the nature of the problems faced, leading to <a class="external-link" href="http://www.livemint.com/Opinion/svjUfdqWwbbeeVzRjFNkUK/Making-laws-with-sunset-clauses.html">evidence-based</a> policymaking.</p>
<p><strong>Why should we care?</strong></p>
<p>There is a lot at stake while regulating any aspect of intermediary liability, and the lack of smart policy-making may result in the dampening of the interests of any one of the stakeholder groups involved. As the submissions to the draft amendments by various civil societies and industry groups show, the updated turnaround time suffers from issues, which if not addressed, may lead to over-removal, and lack of due process in the content removal procedure.</p>
<p>Among others, these submissions pointed out that the shortened time-frame did not allow the intermediaries sufficient time to scrutinize a takedown request to ensure that all technical and legal requirements are adhered to. This in turn, may also prompt third-party action against user actions. Additionally, the significantly short time-frame also raised several implementational challenges. For smaller companies with fewer employees, such a timeframe can both be burdensome, from both a financial and capability point of view. This in turn, may result in over-censorship of speech online.</p>
<p>Failing to recognize and incorporate contextual nuances into any law on intermediary liability therefore, may critically alter the way we interact with online intermediaries, and in a larger scheme, with the internet.</p>
<p> </p>
<p> </p>
<p> </p>
<div> </div>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/why-should-we-care-about-takedown-timeframes'>http://editors.cis-india.org/internet-governance/blog/why-should-we-care-about-takedown-timeframes</a>
</p>
No publisherTorSharkContent takedownIntermediary LiabilityChilling Effect2020-04-10T04:58:56ZBlog EntryWhat the experts said on live chat
http://editors.cis-india.org/internet-governance/news/the-hindu-march-25-2015-what-the-experts-said-on-live-chat
<b>Three eminent panellists shared their views and answered questions from readers on the Supreme Court verdict striking down Section 66 A of the IT Act that allowed the arrest of people posting “offensive content” on the Internet, in a live chat hosted by The Hindu. </b>
<p style="text-align: justify; ">The article was published in the <a class="external-link" href="http://www.thehindu.com/news/national/what-the-experts-said-on-live-chat/article7029320.ece">Hindu</a> on March 25, 2015. Geetha Hariharan was one of the panelists.</p>
<hr />
<p style="text-align: justify; ">Does this now mean anything goes on the Internet, asked one reader.</p>
<p style="text-align: justify; ">“No, the standard penal laws — against defamation, hate speech (S. 153A), religious incitement (S. 295A) — continue to apply,” said Gautam Bhatia, a practicing lawyer and author of forthcoming book “Offend, shock or disturb: Free Speech under the Constitution.” The argument that the Internet needed separate rules when it came to the content of speech was what was rejected by the Court, he said.</p>
<p style="text-align: justify; ">What was the rationale for the Court upholding Section 69 A, allowing the blocking of websites, asked another.</p>
<p style="text-align: justify; ">“One wishes that the court had paid as much attention to the blocking orders as they did to 66A,” said Lawrence Liang, lawyer and researcher at Alternative Law Forum working on free speech.</p>
<p style="text-align: justify; ">Geetha Hariharan, a Programme Officer at Centre for Internet and Society, focusing on Internet governance and freedom of expression, was the third expert on the panel.</p>
<p style="text-align: justify; "><i>Click <a href="http://www.thehindu.com/news/national/live-chat-hope-for-free-speech/article7028037.ece?homepage=true&theme=true">here</a> to read the full transcript of the chat</i></p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/news/the-hindu-march-25-2015-what-the-experts-said-on-live-chat'>http://editors.cis-india.org/internet-governance/news/the-hindu-march-25-2015-what-the-experts-said-on-live-chat</a>
</p>
No publisherpraskrishnaIT ActCensorshipFreedom of Speech and ExpressionInternet GovernanceChilling Effect2015-03-26T02:35:49ZNews ItemWhat 66A Judgment Means For Free Speech Online
http://editors.cis-india.org/internet-governance/blog/huffington-post-geetha-hariharan-march-26-2015-what-66-a-judgment-means-for-free-speech-online
<b>This week India's Supreme Court redefined the boundaries of freedom of speech on the internet. With the Court's decision in Shreya Singhal & Ors. v. Union of India, Section 66A of the Information Technology Act, 2000, has been struck down in entirety and is no longer good law.</b>
<p style="text-align: justify; ">Geetha Hariharan's article was originally published in the <a class="external-link" href="http://www.huffingtonpost.in/geetha-hariharan/what-66a-judgment-means-f_b_6938110.html">Huffington Post</a> on March 26, 2015.</p>
<hr />
<p style="text-align: justify; ">This week India's Supreme Court redefined the boundaries of freedom of speech on the internet. With the <a href="http://judis.nic.in/supremecourt/imgs1.aspx?filename=42510" target="_hplink">Court's decision</a> in <i>Shreya Singhal & Ors. v. Union of India</i>, Section 66A of the Information Technology Act, 2000, has been struck down in entirety and is no longer good law. Through a structured, well-reasoned and heartening judgment, the court talks us through the nuances of free speech and valid restrictions. While previously, intermediaries were required to take down content upon <i>suo moto</i> determination of lawfulness, Section 79(3)(b) of the Act -- the intermediary liability provision -- has been read down to require actual knowledge of a court order or a government notification to take down content. Section 69A of the Act and its corresponding Rules, the provisions enabling the blocking of web content, have been left intact by the court, though infirmities persist.</p>
<p style="text-align: justify; ">The Supreme Court's decision comes at a critical moment for freedom of speech in India. In recent years, the freedom guaranteed under <a href="http://indiankanoon.org/doc/1142233/" target="_hplink">Article 19(1)(a)</a> of the Constitution has suffered unmitigated misery: Wendy Doniger's <i>The Hindus: An Alternative History</i><a href="http://indianexpress.com/article/india/india-others/the-hindus-controversy-angry-wendy-doniger-says-indian-law-true-villain/" target="_hplink"> was banned</a> for hurting religious sentiments, publisher <a href="http://indianexpress.com/article/india/india-others/its-batra-again-book-on-sexual-violence-in-ahmedabad-riots-is-set-aside-by-publisher/" target="_hplink">Orient Blackswan</a> fearing legal action stayed its release of an academic work on sexual violence in Ahmedabad, the author Perumal Murugan <a href="http://www.caravanmagazine.in/vantage/why-perumal-murugans-one-part-woman-significant-debate-freedom-expression-india" target="_hplink">faced harsh criticism</a> for his novel <i>One Part Woman</i> and chose to slay his authorial identity.</p>
<blockquote class="pullquote" style="text-align: justify; ">"The Supreme Court's decision comes at a critical moment for freedom of speech in India. In recent years, the freedom guaranteed under Article 19(1)(a) of the Constitution has suffered unmitigated misery."</blockquote>
<p style="text-align: justify; ">The tale of free speech on the Internet is similar. In response to takedown requests, intermediaries <a href="http://cis-india.org/internet-governance/chilling-effects-on-free-expression-on-internet" target="_hplink">prefer to tread a safe path</a>, taking down even legitimate content for fear of triggering penalties under Section 79 of the IT Act. The government has <a href="http://cis-india.org/internet-governance/blog/analysing-blocked-sites-riots-communalism" target="_hplink">blocked websites</a> in ways that transgress the bounds of 'reasonable restrictions' on speech. Section 66A alone has gathered astounding arrests and controversy. In 2012, <a href="http://www.hindustantimes.com/mumbai/outrage-after-arrest-of-2-women-for-facebook-post-on-mumbai-shutdown/article1-961377.aspx" target="_hplink">Shaheen Dhada and her friend</a> were arrested in Maharashtra for observing that Bal Thackeray's funeral shut down Mumbai, <a href="http://timesofindia.indiatimes.com/city/goa/Chargesheet-against-Devu-Chodankar-likely-soon/articleshow/43452449.cms" target="_hplink">Devu Chodankar</a> in Goa and <a href="http://tech.firstpost.com/news-analysis/facebook-youth-arrested-anti-modi-message-whatsapp-224422.html" target="_hplink">Syed Waqar</a> in Karnataka were arrested in 2014 for making posts about PM Narendra Modi, and <a href="http://indiatoday.intoday.in/story/man-arrested-for-tweet-on-chidambarams-son-months-after-swamy-targeted-karti/1/227022.html" target="_hplink">a Puducherry man was arrested</a> for criticizing P. Chidambaram's son. The misuse of Section 66A, and the inadequacy of other provisions of the IT Act, were well-documented.</p>
<h3 style="text-align: justify; ">Section 66A: No longer draconian</h3>
<p style="text-align: justify; ">In a writ petition filed in 2012, the law student Shreya Singhal challenged the constitutionality of <a href="http://cis-india.org/internet-governance/resources/section-66A-information-technology-act" target="_hplink">Section 66A</a> on grounds, <i>inter alia</i>, of vagueness and its chilling effect. More petitions were filed challenging other provisions of the IT Act including Section 69A (website blocking) and Section 79 (intermediary liability), and <a href="http://cis-india.org/internet-governance/blog/overview-constitutional-challenges-on-itact" target="_hplink">these were heard jointly</a> by justices Rohinton F. Nariman and G. Chelameshwar. Section 66A, implicating grave issues of freedom of speech on the internet, was at the centre of the challenge.</p>
<blockquote class="pullquote" style="text-align: justify; ">"It is difficult -impossible, in fact - to foresee or predict what speech is permitted or criminalised under Section 66A. As a result, there is a chilling effect on free speech online, resulting in self-censorship."</blockquote>
<p style="text-align: justify; ">Section 66A makes it a criminal offence to send any online communication that is "grossly offensive" or "menacing", or false information sent for the purposes of causing "annoyance, inconvenience, insult, injury, obstruction, enmity, hatred, ill will", etc. These terms are not defined. Neither do they fall within one of the eight subjects for limitation under Article 19(2). It is difficult -impossible, in fact - to foresee or predict what speech is permitted or criminalised under Section 66A. As a result, there is a chilling effect on free speech online, resulting in self-censorship.</p>
<p>With yesterday's decision, the Supreme Court has struck down Section 66A on grounds of vagueness, excessive range and chilling effects on speech online. What is perhaps most uplifting is the court's affirmation of the value of free speech. In the midst of rising conservatism towards free speech, the Court reminds us that an "informed citizenry" and a "culture of open dialogue" are crucial to our democracy. Article 19(1)(a) shields us from "occasional tyrannies of governing majorities", and its restriction should be within Constitutional bounds enumerated in <a href="http://indiankanoon.org/doc/493243/" target="_hplink">Article 19(2)</a>.</p>
<h3>What speech is protected?</h3>
<p style="text-align: justify; ">There are three types of speech, the court says: Discussion, advocacy and incitement. Discussion and advocacy are at the heart of Article 19(1)(a), and are unquestionably protected. But when speech amounts to incitement - that is, if it is expected to cause harm, danger or public disorder- it can be reasonably restricted for any of these reasons: public order, sovereignty and integrity of India, security of the State and friendly relations with foreign states.</p>
<p style="text-align: justify; ">" The Union of India argued that Section 66A is saved by the clauses "public order", "defamation", "incitement to an offence" and "decency, morality". But as the court finds that these are spurious grounds."</p>
<p style="text-align: justify; ">Section 66A, however, does not meet the legal standards for any of the limitation-clauses under Article 19(2), and so is unconstitutional. The Union of India argued that Section 66A is saved by the clauses "public order", "defamation", "incitement to an offence" and "decency, morality". But as the court finds that these are spurious grounds. For instance, Section 66A covers "all information" sent via the Internet, but does not make any reference (express or implied) to public order. Section 66A is not saved by incitement, either. The ingredients of "incitement" are that there must be a "clear tendency to disrupt public order", or an express or implied call to violence or disorder, and Section 66A is remarkably silent on these. By its vague and wide scope, Section 66A may apply to one-on-one online communication or to public posts, and so its applicability is uncertain. For these grounds, Section 66A has been struck down.</p>
<p style="text-align: justify; ">For freedom of speech on the internet, this is fantastic news! The unpredictability and threat of Section 66A has been lifted. Political commentary, criticism and dialogue are clearly protected under Article 19(1)(a). Of course, the government is still keen to regulate online speech, but the bounds within which it may do so have been reasserted and fortified.</p>
<h3 style="text-align: justify; ">Section 69A and website blocking</h3>
<p style="text-align: justify; ">Section 69A empowers the government and its agencies to block websites on any of six grounds: "in the interest of sovereignty and integrity of India, defense of India, security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence relating to above". The blocking procedure is set out in the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009. It requires that a Committee for Examination of Request (CER) examines each blocking request, and gives the content-generator or host 48 hours to make a representation. The Secretary of the Department of Electronics and Information Technology then issues the blocking direction to the intermediary.</p>
<blockquote class="pullquote" style="text-align: justify; ">"[The court has] failed to consider the impact of Section 69A and its Rules. Our free speech rights as listeners are equally affected when legitimate websites containing information are blocked. Transparency, blockpage notifications and judicial review are essential to determine whether each blocking direction is valid."</blockquote>
<p style="text-align: justify; ">Now, the Supreme Court decision has left Section 69A and its Rules intact, stating that it is a "narrowly drawn provision with several safeguards". However, the Court has overlooked some crucial details. For instance, no judicial review is available to test the validity of each blocking direction. Moreover, Rule 14 of the Blocking Rules requires that all blocking requests and directions are kept confidential. This means that neither the content-generator, nor the reader/listener or general public, will have any idea of how many blocking directions have been issued or why. There is no standard blockpage display in India, either, and this further aggravates the transparency problem.</p>
<p style="text-align: justify; ">Lamentably, the Supreme Court has not considered this. Though the court has recognised and upheld the rights of viewers, readers and listeners in its decision on Section 66A, it failed to consider the impact of Section 69A and its Rules on readers and listeners. Our free speech rights as listeners are equally affected when legitimate websites containing information are blocked. Transparency, blockpage notifications and judicial review are essential to determine whether each blocking direction is valid.</p>
<h3 style="text-align: justify; ">Section 79 and the intermediary as a judge</h3>
<p style="text-align: justify; ">Section 79 provides a safe harbour for intermediaries: if they abide by the requirements of Section 79(2), they retain immunity. But under Section 79(3)(b), intermediaries can lose their immunity from prosecution if, after receiving a takedown notice, they do not take down content in three circumstances: (1) if they have actual knowledge that third-party information within their control is being used to commit an unlawful act (i.e., by suo moto deciding the lawfulness of content); (2) if a court order requires takedown of content; (3) if a government notification requires takedown. Rule 3(4) of the Intermediaries Guidelines Rules, 2011 has a similar provision.</p>
<blockquote class="pullquote" style="text-align: justify; ">"The Supreme Court has wisely put an end to private adjudication of lawfulness. Section 79(3)(b) and Rule 3(4) have been read down to mean that the intermediary must have actual knowledge of a court order or government notification."</blockquote>
<p style="text-align: justify; ">This leads to a situation where a private intermediary is responsible for deciding what constitutes lawful content. <a href="http://cis-india.org/internet-governance/chilling-effects-on-free-expression-on-internet" target="_hplink">Previous studies</a> have shown that, when placed in such a position, intermediaries prefer overbroad blocking to escape liability. As readers, we can then only access uncontroversial content. But the freedom of speech includes, as the European Court of Human Rights emphasised in <i><a href="http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57897" target="_hplink">Otto-Preminger Institut</a></i>, the freedom to "offend, shock and disturb".</p>
<p style="text-align: justify; ">In <i>Shreya Singhal</i>, the Supreme Court has wisely put an end to private adjudication of lawfulness. Section 79(3)(b) and Rule 3(4) have been read down to mean that the intermediary must have actual knowledge of a court order or government notification. Even if an intermediary chooses not to act in response to a private takedown notice, it will retain its immunity under Section 79.</p>
<p style="text-align: justify; ">With <i>Shreya Singhal</i>, India has reaffirmed its protections for freedom of speech on the internet. One may now freely speak online without fear of illegitimate and unconstitutional prosecution. However, a re-examination of the blocking procedure, with its infirmities and direct impact on speech diversity, is essential. But today, we celebrate!</p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/huffington-post-geetha-hariharan-march-26-2015-what-66-a-judgment-means-for-free-speech-online'>http://editors.cis-india.org/internet-governance/blog/huffington-post-geetha-hariharan-march-26-2015-what-66-a-judgment-means-for-free-speech-online</a>
</p>
No publishergeethaIT ActCensorshipFreedom of Speech and ExpressionInternet GovernanceChilling Effect2015-03-27T16:50:43ZBlog EntryWe the goondas
http://editors.cis-india.org/news/bangalore-mirror-shyam-prasad-august-4-2014-we-the-goondas
<b>You can now be arrested in Karnataka even before you commit an offence under the IT Act. You could be in jail under the Goonda Act even if not guilty under the Indian Copyright Act. If govt thinks you are planning to send a 'lascivious' photo to a WhatsApp group, or forwarding a copyrighted song, you can be arrested.</b>
<p style="text-align: justify; ">The article by Shyam Prasad <a class="external-link" href="http://www.bangaloremirror.com/Bangalore/Cover-story/We-the-goondas/articleshow/39564603.cms">was published in the Bangalore Mirror</a> on August 4, 2014. Sunil Abraham gave his inputs.</p>
<hr />
<p style="text-align: justify; "><span id="advenueINTEXT">Have a smartphone? Run for cover. Bizarre as this might sound, the cops are going to come after you if you so much as forward a song to a friend. Forget actually doing it, any plans to do so could land you in serious trouble too. You could be labelled a 'goonda' in the eyes of the State and find yourself behind bars.</span></p>
<p style="text-align: justify; "><span><span id="advenueINTEXT">In a completely unfathomable move, Karnataka has brought most offences under the Information Technology Act, 2000, and Indian Copyright Act, 1957, under the ambit of the Goonda Act. Until now, people with a history of offences like bootlegging, drug offences and immoral trafficking could be taken into preventive custody. But the government, in its enthusiasm, while adding acid attackers and sexual predators to the law, has also added 'digital offenders'. While it was thought to be against audio and video pirates, Bangalore Mirror has found it could be directed at all those who frequent FB, Twitter and the online world, posting casual comments and reactions to events unfolding around them.</span></span></p>
<p style="text-align: justify; "><span><span><span id="advenueINTEXT">So if you are planning a digital 'offence' — which could be an innocuous opinion like the young girls' in Mumbai after the bandh declared on Bal Thackeray's death — that could attract the provisions of the Information Technology Act. You can even be taken into preventive custody like a 'goonda'. Even those given exceptions under the Indian Copyright Act can find themselves in jail for a year without being presented before a magistrate. Technically, if you are even planning to forward 'lascivious' memes and images to a WhatsApp group or forwarding a song or 'copyrighted' PDF book, you can be punished under the Goondas Act.</span></span></span></p>
<p style="text-align: justify; "><span><span><span><span id="advenueINTEXT">The law-makers clearly did not dwell much on the implications while bringing the majority of the populace within the ambit of this law. On July 28, the Karnataka Legislature passed (it took barely a minute from tabling to voice vote), 'The Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum-grabbers and Video or Audio Pirates, (Amendment) Bill, 2014'. The amendment adds, "Acid attackers, Depradator of Environment, Digital Offenders, Money Launderers and Sexual Predators", to the title. In common parlance, this law is known as the 'Goonda Act'.</span></span></span></span></p>
<p style="text-align: justify; "><span><span><span><span><span id="advenueINTEXT">The move has come as a shock to the legal community which has slammed it, terming it an attempt by the state to usurp central powers. The government had earlier included 'piracy' under the Goonda Act. But it was applicable only to those pirating film DVDs. Now, this will include books, film songs, music, software or anything big corporates and multinationals claim they have copyright on.</span></span></span></span></span></p>
<p style="text-align: justify; "><span><span><span><span><span><span id="advenueINTEXT">Sunil Abraham, executive director, Centre for Internet and Society, is left in no doubt that the new law is "a terrible thing". "It is a sad development. It is not just bringing the provisions of the IT Act, but also the Copyright Act, that will hurt the common man," he said.</span></span></span></span></span></span></p>
<p style="text-align: justify; "><span><span><span><span><span><span><span id="advenueINTEXT">'Digital Offenders' means "any person who knowingly or deliberately violates, for commercial purposes, any copyright law in relation to any book, music, film, software, artistic or scientific work and also includes any person who illegally enters through the identity of another user and illegally uses any computer or digital network for pecuniary gain for himself or any other person or commits any of the offences specified under sections 67, 68, 69, 70, 71, 72, 73, 74 and 75 of the Information Technology Act, 2000."</span></span></span></span></span></span></span></p>
<p style="text-align: justify; "><span><span><span><span><span><span><span><span id="advenueINTEXT">Section 67 of the IT Act will be the most dangerous for the common man with a smartphone in hand now. The section, "Publishing of information which is obscene in electronic form," includes "any material which is lascivious or appeal to the prurient interest." This could have a very broad interpretation.</span></span></span></span></span></span></span></span></p>
<p style="text-align: justify; "><span><span><span><span><span><span><span><span><span id="advenueINTEXT">Advocate Nagendra Naik says, "The Goonda Act provides for preventive arrest. In the Information Technology Act and The Copyright Act, you have to commit the offence to be arrested. But here, you can be taken into preventive custody even before you commit the said offences. In normal arrests, you can straightaway apply for bail. But under the Goonda Act, you cannot. There is a long process of review and you will be in custody at least till then. The third impact is, you can have a history sheet started against you by the police. Technically, your slips on WhatsApp will attract the Goonda Act against you."</span></span></span></span></span></span></span></span></span></p>
<p style="text-align: justify; "><span><span><span><span><span><span><span><span><span><span id="advenueINTEXT">Supreme Court advocate KV Dhananjay said the Goonda Act is a draconian piece of legislation and it necessarily mocks at the institution of courts and lawyers. "After the passage of the various amendments to the Goonda Act, Karnataka now looks like a mini North Korea where police mood swings will decide whether the ordinary citizen has any right at all," he said.</span></span></span></span></span></span></span></span></span></span></p>
<p style="text-align: justify; "><span><span><span><span><span><span><span><span><span><span><span id="advenueINTEXT">Advocate Shyam Sundar, says, "What if your smartphone has a list of repeated material sent out over days or weeks. Most people do not even know if their phones are affected by viruses which could be sending out such material. Another example is of Facebook. There are so many FB pages with pornographic content. If someone who has subscribed to such a page sends you a friend request and you accept it, that content will surface on your page. It will have a history of repetition. The amendment clearly opens up huge problems for the common people. There is no doubt of the law being grossly misused and the amendment to include provisions of the IT Act has been done without application of mind. What is lascivious appeal in the first place? A porn star has been made a film star in India. Is this not lust? Are there enough filters in place to secure your smartphone from online abuse?"</span></span></span></span></span></span></span></span></span></span></span></p>
<p style="text-align: justify; "><span><span><span><span><span><span><span><span><span><span><span><span id="advenueINTEXT">The new law will in all probability create more corruption than anything else, say experts. Dhananjay says, "Until last week, police postings in Bangalore and other bigger cities were selling for tens of lakhs. Thanks to these amendments, some postings that enforce the Goonda Act will now sell for a couple of crores. The public will not feel safe due to this draconian legislation. Those who enforce the Goonda Act, however, will become richer through corruption, thanks to the fear created by these new amendments."</span></span></span></span></span></span></span></span></span></span></span></span></p>
<h3><span><span><span><span><span><span><span><span><span><span><span><span>One year in jail for the innocent too</span></span></span></span></span></span></span></span></span></span></span></span></h3>
<p style="text-align: justify; "><span><span><span><span><span><span><span><span><span><span><span><span><span id="advenueINTEXT">Sunil Abraham gives two examples by which the amended Goonda Act will become a ruthless piece of legislation. "If I publish an image of a naked body as part of a scientific article about the human body, is it obscene or not? It will not be obscene and, if I am arrested under the IT Act, I will be produced before the magistrate within 24 hours and can explain it to him. But now, I will be arrested under the Goonda Act and need not be produced before a magistrate for 90 days. It can be extended to one year. So for one year, I will be in jail even if I have not committed any wrong. Another example pertains to bringing offences under the Copyright Act under the Goonda Act. In the Copyright Act, there is an exception for reporting, research, educational and people with disability. A visually impaired person, for example, can, without paying royalty, convert a book into another format like Braille or audio and share it with another visually impaired person on a non-profit basis. But if he is arrested under Goonda Act, he will be in jail for one year, even before he does it."</span></span></span></span></span></span></span></span></span></span></span></span></span></p>
<p style="text-align: justify; "><span><span><span><span><span><span><span><span><span><span><span><span><span>HAVE THEY READ STATUTE?<br /><i>Supreme Court advocate KV Dhananjay says, "The definition of a 'digital offender' is simply laughable. I do not think that whoever asked the state government to include 'digital offence' under the Goonda Act has carefully read the Constitution of India. Under the Constitution, both copyright and telecommunications are exclusive central subjects. This means that states simply cannot make any law on these subjects." Dhananjay gives the example of payment of income tax. "You know already that only the central government can demand and collect your income taxes. Can any state government say that it will create a new law to punish its resident who defaults in payment of income tax? You would simply laugh at any such law. This new definition of 'digital offender' is no less amusing. Offences under the Information Technology Act, 2000, are exclusively punishable by the central government only. State governments have no power to say that an Act shall become an offence when it does not even have the power to regulate such an Act."</i></span></span></span></span></span></span></span></span></span></span></span></span></span></p>
<p style="text-align: justify; "><span><span><span><span><span><span><span><span><span><span><span><span><span>CRIMINAL LAW EXPERTS SAY<br /><i>Senior designate advocate, MT Nanaiah: "This law will be too harsh. There are MLAs who do not know the meaning of cyber crime. We (advocates) will be kept busy at the cost of innocent people because of this step. It provides for arresting anyone who would allegedly be planning to do something. Finding him guilty or otherwise comes later. What happens if your phone is lost or somebody sends something from your phone without your knowledge? For the first few years, innocents will go to jail. Then the courts will probably intervene and call for modifying what is at best a bad law. A similar situation arose with Section 498(A) of IPC and Sections 3 and 4 of Dowry Prohibition Act. It was misused to such an extent that courts had to step in." Senior designate advocate and former State Public Prosecutor HS Chandramouli : "Even social legislations have been misused. And, in this case, most people are illiterate about what cyber crime is. It is mostly teenagers and college students who will feel the heat. These are the people who mostly forward material considered obscene. It is necessary to educate people through discussions, workshops in the bar associations, law college and with experts. The amendment has been passed in the Legislature without discussion, which is a tragedy. At least now, before it is gazetted, people should be warned about what is being brought into the Goonda Act. I do not know how fair adding 'digital offenders' in the Goonda Act will be to the public, but the chances of misuse are more. There are no riders or prosecution for misuse. And how many policemen know about cyber crimes? During the infamous 'kidney' case (where people were cheated and their kidneys removed) many policemen did not know the difference between kidneys and testicles."</i></span></span></span></span></span></span></span></span></span></span></span></span></span></p>
<p style="text-align: justify; "><span><span><span><span><span><span><span><span><span><span><span><span><span>ONE YEAR IN JAIL WITHOUT CHANCE OF BAIL FOR..<br /></span></span></span></span></span></span></span></span></span></span></span></span></span></p>
<ol>
<li><span><span><span><span><span><span><span><span><span><span><span><span><span>Forwarding a song from your phone</span></span></span></span></span></span></span></span></span></span></span></span></span></li>
<li>Forwarding an e-book from your email</li>
<li>A nude photo which the govt thinks is obscene</li>
<li>Any software that a company says it owns</li>
<li>A movie which a company says it has copyright on</li>
</ol>
<p>
For more details visit <a href='http://editors.cis-india.org/news/bangalore-mirror-shyam-prasad-august-4-2014-we-the-goondas'>http://editors.cis-india.org/news/bangalore-mirror-shyam-prasad-august-4-2014-we-the-goondas</a>
</p>
No publisherpraskrishnaIT ActCensorshipSocial MediaInternet GovernanceChilling Effect2014-08-04T15:06:18ZNews ItemThree reasons why 66A verdict is momentous
http://editors.cis-india.org/internet-governance/blog/times-of-india-march-29-2015-pranesh-prakash-three-reasons-why-66a-is-momentous
<b>Earlier this week, the fundamental right to freedom of expression posted a momentous victory. The nation's top court struck down the much-reviled Section 66A of the IT Act — which criminalized communications that are "grossly offensive", cause "annoyance", etc — as "unconstitutionally vague", "arbitrarily, excessively, and disproportionately" encumbering freedom of speech, and likely to have a "chilling effect" on legitimate speech.</b>
<p style="text-align: justify; ">The article was <a class="external-link" href="http://timesofindia.indiatimes.com/home/sunday-times/all-that-matters/Three-reasons-why-66A-verdict-is-momentous/articleshow/46731904.cms">published in the Times of India</a> on March 29, 2015.</p>
<hr />
<p style="text-align: justify; ">It also struck down Sec 118(d) of the Kerala Police Act on similar grounds. This is a landmark judgment, as it's possibly the first time since 1973's Bennett Coleman case that statutory law was struck down by the Supreme Court for violating our right to free expression.</p>
<p style="text-align: justify; ">The SC also significantly 'read down' the draconian 'Intermediary Guidelines Rules' which specify when intermediaries — website hosts and search engines — may be held liable for what is said online by their users. The SC held that intermediaries should not be forced to decide whether the online speech of their users is lawful or not. While the judgment leaves unresolved many questions — phrases like "grossly offensive", which the SC ruled were vague in 66A, occur in the Rules as well — the court's insistence on requiring either a court or a government order to be able to compel an intermediary to remove speech reduces the 'invisible censorship' that results from privatized speech regulation.</p>
<p style="text-align: justify; ">The SC upheld the constitutional validity of Sec 69A and the Website Blocking Rules, noting they had several safeguards: providing a hearing to the website owner, providing written reasons for the blocking, etc. However, these safeguards are not practised by courts. Na Vijayashankar, a legal academic in Bengaluru, found a blogpost of his — ironically, on the topic of website blocking — had been blocked by a Delhi court without even informing him. He only got to find out when I published the government response to my RTI on blocked websites. Last December, Github, Vimeo and some other websites were blocked without being given a chance to contest it. As long as lower courts don't follow "principles of natural justice" and due process, we'll continue to see such absurd website blocking, especially in cases of copyright complaints, without any way of opposing or correcting them.</p>
<p style="text-align: justify; ">There are three main outcomes of this judgment. First is the legal victory: SC's analysis while striking down 66A is a masterclass of legal clarity and a significant contribution to free speech jurisprudence. This benefits not only future cases in India, but all jurisdictions whose laws are similar to ours, such as Bangladesh, Malaysia and the UK.</p>
<p style="text-align: justify; ">Second is the moral victory for free speech. Sec 66A was not merely a badly written law, it became a totem of governmental excess and hubris. Even when political parties realized they had passed 66A without a debate, they did not apologize to the public and revise it; instead, they defended it. Only a few MPs, such as P Rajeev and Baijayant Panda, challenged it. Even the NDA, which condemned the law in the UPA era, supported it in court. By striking down this totem, the SC has restored the primacy of the Constitution. For instance, while this ruling doesn't directly affect the censor board's arbitrary rules, it does morally undermine them.</p>
<p style="text-align: justify; ">Third, this verdict shows that given proper judicial reading, the Indian constitutional system of allowing for a specific list of purposes for which reasonable restrictions are permissible, might in fact be as good or even better in some cases, than the American First Amendment. The US law baldly states that Congress shall make no law abridging freedom of speech or of the press. However, the US Supreme Court has never held the opinion that freedom of speech is absolute. The limits of Congress's powers are entirely judicially constructed, and till the 1930s, the US court never struck down a law for violating freedom of speech, and has upheld laws banning obscenity, public indecency, offensive speech in public, etc. However, in India, the Constitution itself places hard limits on Parliament's powers, and also, since the first amendment to our Constitution, allows the judiciary to determine if the restrictions placed by Parliament are "reasonable". In the judgment Justice Nariman quotes Mark Antony from Julius Caesar. He could also have quoted Cassius: "The fault, dear Brutus, is not in our stars, but in ourselves." Judges like Justice Nariman show the constitutional limits to free speech can be read both narrowly and judiciously: we can no longer complain about the Constitution as the primary reason we have so many restrictions on freedom of expression.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/times-of-india-march-29-2015-pranesh-prakash-three-reasons-why-66a-is-momentous'>http://editors.cis-india.org/internet-governance/blog/times-of-india-march-29-2015-pranesh-prakash-three-reasons-why-66a-is-momentous</a>
</p>
No publisherpraneshIT ActCensorshipFreedom of Speech and ExpressionInternet GovernanceChilling Effect2015-03-29T16:22:51ZBlog EntryThe Supreme Court Judgment in Shreya Singhal and What It Does for Intermediary Liability in India?
http://editors.cis-india.org/internet-governance/blog/sc-judgment-in-shreya-singhal-what-it-means-for-intermediary-liability
<b>Even as free speech advocates and users celebrate the Supreme Court of India's landmark judgment striking down Section 66A of the Information Technology Act of 2000, news that the Central government has begun work on drafting a new provision to replace the said section of the Act has been trickling in.</b>
<p style="text-align: justify; ">The SC judgement in upholding the constitutionality of Section 69A (procedure for blocking websites) and in reading down Section 79 (exemption from liability of intermediaries) of the IT Act, raises crucial questions regarding transparency, accountability and under what circumstances may reasonable restrictions be placed on free speech on the Internet. While discussions and analysis of S. 66A continue, in this post I will focus on the aspect of the judgment related to intermediary liability that could benefit from further clarification from the apex court and in doing so, will briefly touch upon S. 69A and secret blocking.</p>
<h3 style="text-align: justify; ">Conditions qualifying intermediary for exemption and obligations not related to exemption</h3>
<p align="JUSTIFY">The intermediary liability regime in India is defined under S. 79 and assosciated rules that were introduced to protect intermediaries for liability from user generated content and ensure the Internet continues to evolve as a <i>“marketplace of ideas”</i>. But as intermediaries may not have sufficient legal competence or resources to deliberate on the legality of an expression, they may end up erring on the side of caution and takedown lawful expression. As a study by Centre for Internet and Society (CIS) in 2012 revealed, the criteria, procedure and safeguards for administration of the takedowns as prescribed by the rules lead to a chilling effect on online free expression.</p>
<p align="JUSTIFY"><span><span><span>S. 69A grants powers to the Central Government to </span></span></span><span><i><span>“issue directions for blocking of public access to any information through any computer resource”.</span></i></span><span><span><span> The 2009 </span></span></span><span><span><span>rules </span></span></span><span><span><span>allow the blocking of websites by a court order, </span></span></span><span><span><span>and </span></span></span><span><span><span>sets in place a review committee to review the decision to block websites </span></span></span><span><span><span>a</span></span></span><span><span><span>s also establishes </span></span></span><span><span><span>penalt</span></span></span><span><span><span>ies </span></span></span><span><span><span>for the intermediary </span></span></span><span><span><span>that fails to extend cooperation in this respect. </span></span></span></p>
<p align="JUSTIFY"><span><span><span>There are two key aspects of both these provisions that must be noted:</span></span></span></p>
<p align="JUSTIFY">a) S. 79 is an exemption provision that qualifies the intermediary for conditional immunity, as long as they fulfil the conditions of the section. The judgement notes this distinction, adding that “<i>being an exemption provision, it is closely related to provisions which provide for offences including S. 69A.”</i></p>
<p align="JUSTIFY"><span><span><span>b) S. 69A does not contribute to immunity for the intermediary rather places additional obligations on the intermediary and as the judgement notes </span></span></span><span><i><span>“intermediary who finally fails to comply with the directions issued who is punishable under sub-section (3) of 69A.”</span></i></span><span><span><span> The provision though outside of the conditional immunity liability regime enacted through S. 79 contributes to the restriction of access to, or removing content online by placing liability on intermediaries to block unlawful third party content or information that is being generated, transmitted, received, stored or hosted by them. Therefore restriction requests must fall within the contours outlined in Article 19(2) and include principles of natural justice and elements of due process.</span></span></span></p>
<h3 align="JUSTIFY">Subjective Determination of Knowledge</h3>
<p align="JUSTIFY">The provisions for exemption laid down in S. 79 do not apply when they receive <i>“actual knowledge” </i>of illegal content under section 79(3)(b). Prior to the court's verdict actual knowledge could have been interpreted to mean the intermediary is called upon its own judgement under sub-rule (4) to restrict impugned content in order to seek exemption from liability. Removing the need for intermediaries to take on an adjudicatory role and deciding on which content to restrict or takedown, the SC has read down <i>“actual knowledge”</i> to mean that there has to be a court order directing the intermediary to expeditiously remove or disable access to content online. The court also read down <i>“upon obtaining knowledge by itself”</i> and <i>“brought to actual knowledge”</i> under Rule 3(4) in the same manner as 79(3)(b).</p>
<p align="JUSTIFY"><span><span><span>Under S.79(3)(b) the intermediary must comply with the orders from the executive in order to qualify for immunity. Further, S. 79 (3)(b) goes beyond the specific categories of restriction identified in Article 19(2) by including the term </span></span></span><span><i><span>“unlawful acts”</span></i></span><span><span><span> and places the executive in an adjudicatory role of determining the illegality of content. The government cannot emulate private regulation as it is bound by the Constitution and the court addresses this issue by applying the limitation of 19(2) on unlawful acts, </span></span></span><span><i><span>“the court order and/or the notification by the appropriate government or its agency must strictly conform to the subject matters aid down in Article 19(2).”</span></i></span><span><span><span> </span></span></span></p>
<p align="JUSTIFY"><span><span><span>By reading down of S. 79 (3) (b) the court has addressed the issue of intermediaries </span></span></span><span><span><span>complying with tak</span></span></span><span><span><span>edown requests from non-government entities and </span></span></span><span><span><span>has </span></span></span><span><span><span>made government notifications and court orders to be consistent with reasonable restrictions in Article 19(2). This is an important clarification from the court, because this places limits on the private censorship of intermediaries and the invisible censorship of opaque government takedown requests as they must </span></span></span><span><span><span>and should </span></span></span><span><span><span>adhere, to </span></span></span><span><span><span>the </span></span></span><span><span><span>boundaries set by Article 19(2).</span></span></span></p>
<h3><span><span><span>Procedural Safeguards</span></span></span></h3>
<p style="text-align: justify; "><span><span><span>The SC does not touch upon other parts of the rules and in not doing so, has left significant procedural issues open for debate. It is relevant to bear in mind and as established above, S. 69A blocking and restriction requirements for the intermediary are part of their additional obligations and do not qualify them for immunity. The court ruled in favour of upholding S. 69A as constitutional on the basis that blocking orders are issued when the executive has sufficiently established that it is absolutely necessary to do so, and that the necessity is relatable to only some subjects set out in Article 19(2). Further the court notes that reasons for the blocking orders must be recorded in writing so that they may be challenged through writ petitions. The court also goes on to specify that under S. 69A the intermediary and the 'originator' if identified, have the right to be heard before the committee decides to issue the blocking order. </span></span></span></p>
<p style="text-align: justify; "><span><span><span>Under S. 79 the intermediary must also comply with government restriction orders and the procedure for notice and takedown is not sufficiently transparent and lacks procedural safeguards that have been included in the notice and takedown procedures under S. 69. For example, there is no requirement for committee to evaluate the necessity of issuing the restriction order, though the ruling does clarify that these restriction notices must be within the confines of Article 19(2). The judgement could have gone further to directing the government to state their entire cause of action and provide reasonable level of proof (prima facie). It should have also addressed issues such as the government using extra-judicial measures to restrict content including collateral pressures to force changes in terms of service, to promote or enforce so-called "voluntary" practices. </span></span></span></p>
<h3><span><span><span>Accountability</span></span></span></h3>
<p style="text-align: justify; "><span><span><span>The judgement could also have delved deeper into issues of accountability such as the need to consider 'udi alteram partem' by providing the owner of the information or the intermediary a hearing prior to issuing the restriction or blocking order nor is an post-facto review or appeal mechanism made available except for the recourse of writ petition. Procedural uncertainty around wrongly restricted content remains, including what limitations should be placed on the length, duration and geographical scope of the restriction. The court also does not address the issue of providing a recourse for the third party provider of information to have the removed information restored or put-back remains unclear. Relatedly, the court also does not clarify the concerns related to frivolous requests by establishing penalties nor is there a codified recourse under the rules presently, for the intermediary to claim damages even if it can be established that the takedown process is being abused.</span></span></span></p>
<h3><span><span><span>Transparency</span></span></span></h3>
<p style="text-align: justify; "><span><span><span>The bench in para 113 in addressing S. 79 notes that the intermediary in addition to publishing rules and regulations, privacy policy and user agreement for access or usage of their service has to also inform users of the due diligence requirements including content restriction policy under rule 3(2). However, the court ought to have noted the differentiation between different categories of intermediaries which may require different terms of use. Rather than stressing a standard terms of use as a procedural safeguard, the court should have insisted on establishing terms of use and content restriction obligations that is proportional to the role of the intermediary and based on the liability accrued in providing the service, including the impact of the restriction by the intermediary both on access and free speech. By placing requirement of disclosure or transparency on the intermediary including what has been restricted under the intermediary's own terms of service, the judgment could have gone a step further than merely informing users of their rights in using the service as it stands presently, to ensuring that users can review and have knowledge of what information has been restricted and why. The judgment also does not touch upon broader issues of intermediary liability such as proactive filtering sought by government and private parties, an important consideration given the recent developments around the right to be forgotten in Europe and around issues of defamation and pornography in India. </span></span></span></p>
<p style="text-align: justify; "><span><span><span>The judgment, while a welcome one in the direction of ensuring the Internet remains a democratic space where free speech thrives, could benefit from the application of the recently launched Manila principles developed by CIS and others. The Manila Principles is a framework of baseline safeguards and best practices that should be considered by policymakers and intermediaries when developing, adopting, and reviewing legislation, policies and practices that govern the liability of intermediaries for third-party content. </span></span></span></p>
<p style="text-align: justify; "><span><span><span>The court's ruling is truly worth celebrating, in terms of the tone it sets on how we think of free speech and the contours of censorship that exist in the digital space. But the real impact of this judgment lies in the debates and discussions which it will throw open about content removal practices that involve intermediaries making determinations on requests received, or those which only respond to the interests of the party requesting removal. As the Manila Principles highlight a balance between public and private interests can be obtained through a mechanism where power is distributed between the parties involved, and where an impartial, independent, and accountable oversight mechanism exists. <br /></span></span></span></p>
<p><span><span><span><br /></span></span></span></p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/sc-judgment-in-shreya-singhal-what-it-means-for-intermediary-liability'>http://editors.cis-india.org/internet-governance/blog/sc-judgment-in-shreya-singhal-what-it-means-for-intermediary-liability</a>
</p>
No publisherjyotiIT ActCensorshipFreedom of Speech and ExpressionInternet GovernanceIntermediary LiabilityChilling Effect2015-04-17T23:59:34ZBlog EntryThe noose tightens on freedom of speech on the Internet
http://editors.cis-india.org/internet-governance/news/digital-news-asia-gabey-goh-march-26-2015-noose-tightens-on-freedom-of-speech-on-internet
<b>A WORRYING trend has emerged in the last few years, where intermediaries around the world are being used as chokepoints to restrict freedom of expression online, and to hold users accountable for content.</b>
<p style="text-align: justify; ">The blog post by Gabey Goh was published by <a class="external-link" href="https://www.digitalnewsasia.com/digital-economy/the-noose-tightens-on-freedom-of-speech-on-the-internet">Digital News Asia</a> on March 26, 2015. Jyoti Panday gave her inputs.</p>
<hr />
<p style="text-align: justify; ">“All communication across the Internet is facilitated by intermediaries: Service providers, social networks, search engines, and more,” said Electronic Frontier Foundation (EFF) senior global policy analyst Jeremy Malcolm.<br /> <br /> “These services are all routinely asked to take down content, and their policies for responding are often muddled, heavy-handed, or inconsistent.<br /> <br /> “That results in censorship and the limiting of people’s rights,” he told Digital News Asia (DNA) on the sidelines of <a href="https://www.rightscon.org/" target="_blank">RightsCon</a>, an Internet and human rights conference hosted in Manila from March 24-25.<br /> <br /> This year, the government of France is moving to <a href="http://www.bloomberg.com/news/articles/2015-01-27/france-seeks-to-sanction-web-companies-for-posts-pushing-terror" target="_blank">implement regulation</a> that makes Internet operators ‘accomplices’ of hate-speech offences if they host extremist messages.<br /> <br /><a href="http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/03/09/icann-copyright-infringement-and-the-public-interest/" target="_blank">In February</a>, the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA) urged ICANN (the Internet Corporation for Assigned Names and Numbers) to ensure that domain name registries and registrars “investigate copyright abuse complaints and respond appropriately.”<br /> <br /> Closer to home, the Malaysian Government passed a controversial amendment to the Evidence Act 1950 – Section 114A – back in 2012.<br /> <br /> Under <a href="http://www.digitalnewsasia.com/digital-economy/govt-stealthily-gazettes-evidence-act-amendment-law-is-now-in-operation" target="_blank">Section 114A</a>, an Internet user is deemed the publisher of any online content unless proven otherwise. The new legislation also makes individuals and those who administer, operate or provide spaces for online community forums, blogging and hosting services, liable for content published through their services.</p>
<p style="text-align: justify; ">Due to the potential negative impact on freedom of expression, a roadmap called the <i><a href="https://www.manilaprinciples.org/" target="_blank">Manila Principles on Internet Liability</a></i> was launched during RightsCon.<br /> <br /> The EFF, Centre for Internet Society India, Article 19, and other global partners unveiled the principles, whose framework outlines clear, fair requirements for content removal requests and details how to minimise the damage a takedown can do.<br /> <br /> For example, if content is restricted because it’s unlawful in one country or region, then the scope of the restriction should be geographically limited as well.<br /> <br /> The principles also urge adoption of laws shielding intermediaries from liability for third-party content, which encourages the creation of platforms that allow for online discussion and debate about controversial issues.<br /> <br /> “Our goal is to protect everyone’s freedom of expression with a framework of safeguards and best practices for responding to requests for content removal,” said Malcolm.<br /> <br /> Jyoti Panday from the Centre for Internet and Society India noted that people ask for expression to be removed from the Internet for various reasons, good and bad, claiming the authority of myriad local and national laws.<br /> <br /> “It’s easy for important, lawful content to get caught in the crossfire. We hope these principles empower everyone – from governments and intermediaries, to the public – to fight back when online expression is censored,” she said.</p>
<p style="text-align: justify; ">The Manila Principles can be summarised in six key points:</p>
<ul style="text-align: justify; ">
<li> Intermediaries should be shielded by law from liability for third-party content.</li>
</ul>
<ul style="text-align: justify; ">
<li> Content must not be required to be restricted without an order by a judicial authority.</li>
</ul>
<ul style="text-align: justify; ">
<li> Requests for restrictions of content must be clear, be unambiguous, and follow due process.</li>
</ul>
<ul style="text-align: justify; ">
<li> Laws and content restriction orders and practices must comply with the tests of necessity and proportionality.</li>
</ul>
<ul style="text-align: justify; ">
<li> Laws and content restriction policies and practices must respect due process.</li>
</ul>
<ul style="text-align: justify; ">
<li> Transparency and accountability must be built in to laws and content restriction policies and practices.</li>
</ul>
<p style="text-align: justify; ">“Right now, different countries have differing levels of protection when it comes to intermediary liability, and we’re saying that there should be expansive protection across all content,” said Malcolm <b><i>(pic)</i></b>.<br /> <br /> “In addition, there is no logic in distinguishing between intellectual property (IP) and other forms of content as in the case in the United States for example, where under Section 230 of the Communications Decency Act, intermediaries are not liable for third party content but that doesn’t apply to IP,” he added.<br /> <br /> The Manila Principles have two main targets: Governments and intermediaries themselves. The coalition, led by EFF, will be approaching governments to present the document and discuss the recommendations on how best to establish an intermediary liability regime.<br /> <br /> This includes immunising intermediaries from liability and requiring a court order before any content can be taken down.<br /> <br /> With intermediaries, the list includes companies such as Facebook, Twitter and Google, to discuss establishing transparency, responsibility and accountability in any actions taken.</p>
<p style="text-align: justify; ">“We recognise that a lot of the time, intermediaries are not waiting for a court order before taking down content, and we’re telling them to avoid removing content unless there is a sufficiently good reason and users have been notified and presented that reason,” said Malcolm.<br /> <br /> The overall aim with the Manila Principles is to influence policy changes for the better.<br /> <br /> Malcolm pointed out that by coincidence, some encouraging developments have taken place in India. On the same day the principles were released, the <a href="http://time.com/3755743/india-law-free-speech-section-66a-struck-down/" target="_blank">Indian Supreme Court struck down</a> the notorious Section 66A of the country’s Information Technology Act.<br /> <br /> Since 2009, the law had allowed both criminal charges against users and the removal of content by intermediaries based on vague allegations that the content was “grossly offensive or has menacing character,” or that false information was posted “for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will.”<br /> <br /> Calling it a “landmark decision”, Malcolm noted that the case shows why the establishment and promotion of the Manila Principles are important.<br /> <br /> “Not only is the potential overreach of this provision obvious on its face, but it was, in practice, misused to quell legitimate discussion online, including in the case of the plaintiffs in that case – two young women, one of whom made an innocuous Facebook post mildly critical of government officials, and the other who ‘liked’ it,” he said.<br /> <br /> The court however, upheld section 69A of the Act, which allows the Government to block online content; and Section 79(3), which makes intermediaries such as YouTube or Facebook liable for not complying with government orders for censorship of content.</p>
<p style="text-align: justify; "><b><i>Gabey Goh reports from RightsCon in Manila at the kind invitation of the South-East Asian Press Alliance or <a href="http://www.seapa.org/" target="_blank">Seapa</a>.</i></b></p>
<ul style="text-align: justify; ">
</ul>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/news/digital-news-asia-gabey-goh-march-26-2015-noose-tightens-on-freedom-of-speech-on-internet'>http://editors.cis-india.org/internet-governance/news/digital-news-asia-gabey-goh-march-26-2015-noose-tightens-on-freedom-of-speech-on-internet</a>
</p>
No publisherpraskrishnaIT ActCensorshipFreedom of Speech and ExpressionInternet GovernanceChilling Effect2015-03-27T01:06:52ZNews ItemThe Internet Has a New Standard for Censorship
http://editors.cis-india.org/internet-governance/blog/the-wire-jyoti-panday-january-29-2016-internet-has-a-new-standard-for-censorship
<b>The introduction of the new 451 HTTP Error Status Code for blocked websites is a big step forward in cataloguing online censorship, especially in a country like India where access to information is routinely restricted.</b>
<p style="text-align: justify; ">The article was published in the Wire on January 29, 2016. The original can be <a class="external-link" href="http://thewire.in/2016/01/29/the-internet-has-a-new-standard-for-censorship-20386/">read here</a>.</p>
<hr />
<p style="text-align: justify; ">Ray Bradbury’s dystopian novel Fahrenheit 451 opens with the declaration, “It was a pleasure to burn.” The six unassuming words offer a glimpse into the mindset of the novel’s protagonist, ‘the fireman’ Guy Montag, who burns books. Montag occupies a world of totalitarian state control over the media where learning is suppressed and censorship prevails. The title alludes to the ‘temperature at which book paper catches fire and burns,’ an apt reference to the act of violence committed against citizens through the systematic destruction of literature. It is tempting to think about the novel solely as a story of censorship. It certainly is. But it is also a story about the value of intellectual freedom and the importance of information.<br /><br />Published in 1953, Bradbury’s story predates home computers, the Internet, Twitter and Facebook, and yet it anticipates the evolution of these technologies as tools for censorship. When the state seeks to censor speech, they use the most effective and easiest mechanisms available. In Bradbury’s dystopian world, burning books did the trick; in today’s world, governments achieve this by blocking access to information online. The majority of the world’s Internet users encounter censorship even if the contours of control vary depending on the country’s policies and infrastructure.</p>
<h3 style="text-align: justify; ">Online censorship in India</h3>
<p style="text-align: justify; "><span>In India, information access blockades have become commonplace and are increasingly enforced across the country for maintaining political stability, for economic </span><a href="http://www.indiantelevision.com/regulators/high-court/delhi-hc-restrains-200-websites-from-illegally-showing-balajis-kyaa-kool-hain-hum-3-160123" target="_blank"><span>reasons</span></a><span>, in defence of national security or preserving social values. Last week, the Maharashtra Anti-terror Squad </span><a href="http://www.abplive.in/india-news/maharashtra-ats-blocks-94-isis-websites-brainwashing-the-youth-280192"><span>blocked</span></a><span> 94 websites that were allegedly radicalising the youth to join the militant group ISIS. Memorably, in 2015 the NDA government’s ham-fisted </span><a href="http://thewire.in/2015/08/03/the-government-does-not-want-you-accessing-porn-on-the-internet-anymore-7782/"><span>attempts</span></a><span> at enforcing a ban on online pornography resulted in widespread public outrage. Instead of revoking the ban, the government issued yet another vaguely worded and in many senses astonishing order. As reported by </span><i><a href="http://www.medianama.com/2015/08/223-porn-india-ban/"><span>Medianama</span></a></i><span>, the revised order delegates the responsibility of determining whether banned websites should remain unavailable to private intermediaries. </span></p>
<p style="text-align: justify; "><span>The state’s shifting reasons for blocking access to information is reflective of its tendentious attitude towards speech and expression. Free speech in India is messily contested and normally, the role of the judiciary acts as a check on the executive’s proclivity for banning. For instance, in 2010 the Supreme Court </span><a href="http://timesofindia.indiatimes.com/india/Supreme-Court-lifts-ban-on-James-Laines-book-on-Shivaji/articleshow/6148410.cms"><span>upheld</span></a><span> the Maharashtra High Court’s decision to revoke the ban on the book on Shivaji by American author James Laine, which, according to the state government, contained material promoting social enmity. However, in the context of communications technology the traditional role of courts is increasingly being passed on to private intermediaries. </span></p>
<p style="text-align: justify; "><span>The delegation of authority is evident in the government notifying intermediaries to proactively filter content for ‘child pornography’ in the revised </span><a href="http://cis-india.org/internet-governance/resources/dot-morality-block-order-2015-07-31/view"><span>order</span></a><span> issued to deal with websites blocked as result of its crackdown on pornography. Such screening and filtering requires intermediaries to make a determination on the legality of content in order to avoid direct liability. As international best practices such as the </span><a href="https://www.manilaprinciples.org/"><span>Manila Principles on Intermediary Liability</span></a> <span>point out, such screening is a slow process and costly and intermediaries are incentivised to simply limit access to information. </span></p>
<h3 style="text-align: justify; "><span>Blocking procedures and secrecy</span></h3>
<p style="text-align: justify; "><span>The constitutional validity of Section 69A of the Information Technology Act, 2008 which grants power to the executive to block access to information unchecked, and in secrecy was challenged in Shreya Singhal v. Union of India. Curiously, the Supreme Court upheld S69A reasoning that the provisions were narrowly-drawn with adequate safeguards and noted that any procedural inconsistencies may be challenged through writ petitions under Article 226 of the Constitution. Unfortunately as past instances of blocking under S69A reveal the provisions are littered with procedural deficiencies, amplified manifold by the authorities responsible for interpreting and implementing the orders.</span></p>
<p style="text-align: justify; "><span>Problematically, an </span><a href="http://cis-india.org/internet-governance/blog/is-india2019s-website-blocking-law-constitutional-2013-i-law-procedure"><span>opaque</span></a><span> confidentiality criteria built into the blocking rules mandates secrecy in requests and recommendations for blocking and places written orders outside the purview of public scrutiny. As there are no comprehensive list of blocked websites or of the legal orders, the public has to rely on ISPs leaking orders, or media reports to understand the censorship regime in India. RTI applications requesting further information on the implementation of these safeguards have at best provided</span> <a href="http://cis-india.org/internet-governance/blog/response-deity.clarifying-procedures-for-blocking.pdf"><span>incomplete</span></a><span> information. </span></p>
<p style="text-align: justify; "><span>Historically, the courts in India have </span><a href="http://www.livemint.com/Politics/hDIjjunGikWywOgSRiM7NP/SC-has-set-a-high-threshold-for-tolerance-Lawrence-Liang.html"><span>held</span></a><span> that Article 19(1)(a) of the Constitution of India is as much about the right to receive information as it is to disseminate, and when there is a chilling effect on speech, it also violates the right to receive information. Therefore, if a website is blocked citizens have a constitutional right to know the legal grounds on which access is being restricted. Just like the government announces and clarifies the grounds when banning a book, users have a right to know the grounds for restrictions on their speech online. </span></p>
<p style="text-align: justify; "><span>Unfortunately, under the</span><a href="http://cis-india.org/internet-governance/blog/deity-says-143-urls-blocked-in-2015"> <span>present</span></a><span> blocking regime in India there is no easy way for a service provider to comply with a blocking order while also notifying users that censorship has taken place. The ‘</span><a href="http://cis-india.org/internet-governance/resources/information-technology-procedure-and-safeguards-for-blocking-for-access-of-information-by-public-rules-2009"><span>Blocking Rules</span></a><span>’ require notice “person </span><span>or</span><span> intermediary” thus implying that notice may be sent to either the originator or the intermediary. Further, the confidentiality clause </span><a href="https://indconlawphil.wordpress.com/2015/03/25/the-supreme-courts-it-act-judgment-and-secret-blocking/"><span>raises</span></a><span> the presumption that nobody beyond the intermediaries ought to know about a block. </span></p>
<p style="text-align: justify; "><span>Naturally, intermediaries interested in self-preservation and avoiding conflict with the government become complicit in maintaining secrecy in blocking orders. As a result, it is often difficult to determine why content is inaccessible and users often mistake censorship for technical problem in accessing content. Consequently, pursuing legal recourse or trying to hold the government accountable for their censorious activity becomes a challenge. In failing to consider the constitutional merits of the confidentiality clause, the Supreme Court has shied away from addressing the over-broad reach of the executive. </span></p>
<p style="text-align: justify; "><span>Secrecy in removing or blocking access is a global problem that places limits on the transparency expected from ISPs. Across </span><a href="https://books.google.co.in/books?id=s1LBBwAAQBAJ&pg=PA88&lpg=PA88&dq=transparency+and+blocking+orders&source=bl&ots=8kJ5LNJU5s&sig=gB9E01_gQ3QsjwFtnpa5KdIL8oA&hl=en&sa=X&ved=0ahUKEwirzr7ZlMzKAhXEt44KHdxkBxQQ6AEIOzAF#v=onepage&q=transparency%20and%20blocking%20orders&f=false"><span>many</span></a><span> jurisdictions intermediaries are legally </span><a href="https://books.google.co.in/books?id=s1LBBwAAQBAJ&pg=PA88&lpg=PA88&dq=transparency+and+blocking+orders&source=bl&ots=8kJ5LNJU5s&sig=gB9E01_gQ3QsjwFtnpa5KdIL8oA&hl=en&sa=X&ved=0ahUKEwirzr7ZlMzKAhXEt44KHdxkBxQQ6AEIOzAF#v=onepage&q=transparency%20and%20blocking%20orders&f=false"><span>prohibited</span></a><span> from publicising filtering orders as well as information relating to content or service restrictions. For example in United Kingdom, ISPs are prohibited from revealing blocking orders related to terrorism and surveillance. In South Korea, the </span><a href="http://www.singo.or.kr/eng/01_introduction/introduction.php"><span>Korean Communications Standards Commission</span></a><span> holds public meetings that are open to the public. However, the sheer v</span><a href="https://www.eff.org/deeplinks/2011/08/south-korea-only-thing-worse-online-censorship"><span>olume</span></a><span> of censorship (i.e. close to 10,000 URLs a month) makes it </span><a href="https://www.eff.org/deeplinks/2011/08/south-korea-only-thing-worse-online-censorship"><span>unwieldy</span></a><span> for public oversight. </span></p>
<p style="text-align: justify; "><span>As the Manila Principles </span><a href="https://www.eff.org/files/2015/07/08/manila_principles_background_paper.pdf"><span>note</span></a><span>, providing users with an explanation and reasons for placing restrictions on their speech and expression increases civic engagement. Transparency standards will empower citizens to demand that companies and governments they interact with are more accountable when it comes to content regulation. It is worth noting, for conduits as opposed to content hosts, it may not always be technically feasible for to provide a notice when content is unavailable due to filtering. A new standard helps improve transparency standards for network level intermediaries and for websites bound by confidentiality requirements. The recently introduced HTTP code for errors is a critical step forward in cataloguing censorship on the Internet. </span></p>
<h3 style="text-align: justify; "><span>A standardised code for censorship</span></h3>
<p style="text-align: justify; "><span>On December 21, 2015, the Internet Engineering Standards Group (IESG) which is the organisation responsible for reviewing and updating the internet’s operating standards approved the publication of 451-’An HTTP Status Code to Report Legal Obstacles’. The code provides intermediaries a standardised way to notify users know when a website is unavailable following a legal order. Publishing the code allows intermediaries to be transparent about their compliance with court and executive orders across jurisdictions and is a huge step forward for capturing online censorship. HTTP code 451 was introduced by software engineer Tim Bray and the code’s name is an homage to Bradbury’s novel Fahrenheit 451. </span></p>
<p style="text-align: justify; "><span>Bray began developing the code after being inspired by a blog post by Terence Eden calling for a censorship error code. The code’s official status comes after two years of discussions within the technical community and is a result of campaigning from transparency and civil society advocates who have been pushing for clearer labelling of internet censorship. Initially, the code received pushback from within the technical community for reasons enumerated by Mark Nottingham, Chair of the IETF HTTP Working Group in his </span><a href="https://www.mnot.net/blog/2015/12/18/451"><span>blog</span></a><span>. However, soon sites began using the code on an experimental and unsanctioned basis and faced with increasing demand for and feedback, the code was accepted. </span></p>
<p style="text-align: justify; "><span>The HTTP code 451 works as a machine-readable flag and has immense potential as a tool for organisations and users who want to quantify and understand censorship on the internet. Cataloguing online censorship is a challenging, time-consuming and expensive task. The HTTP code 451 circumvents confidentiality obligations built into blocking or licensing regimes and reduces the cost of accessing blocking orders. </span></p>
<p style="text-align: justify; "><span>The code creates a distinction between websites blocked following a court or an executive order, and when information is inaccessible due to technical errors. If implemented widely, Bray’s new code will help </span><a href="http://www.theverge.com/2015/12/21/10632678/http-status-code-451-censorship-tim-bray"><span>prevent</span></a><span> confusion around blocked sites. The code addresses the issue of the ISP’s misleading and inaccurate usage of </span><a href="https://en.wikipedia.org/wiki/HTTP_403"><span>Error 403</span></a><span> ‘Forbidden’ (to indicate that the server can be reached and understood the request, but refuses to take any further action) or 404 ‘</span><a href="https://en.wikipedia.org/wiki/HTTP_404"><span>Not Found</span></a><span>’ (to indicate that the requested resource could not be found but may be available again in the future). </span></p>
<p style="text-align: justify; "><span>Adoption of the new standard is optional, though at present there are no laws in India that prevent intermediaries doing so. Implementing a standardised machine-readable flag for censorship will go a long way in bolstering the accountability of ISPs that have in the </span><a href="http://www.medianama.com/2014/12/223-india-blocks-imgur/"><span>past</span></a><span> targeted an entire domain instead of the specified URL. Adoption of the standard by ISPs will also improve the understanding of the burden imposed on intermediaries for censoring and filtering content as presently, there is no clarity on what constitutes compliance. Of course, censorious governments may </span><a href="https://nakedsecurity.sophos.com/2015/12/23/welcome-to-http-error-code-451-unavailable-for-legal-reasons/"><span>prohibit</span></a><span> the use of the code, for example by issuing an order that specifies not only that a page be blocked, but also precisely which HTTP return code should be used. Though such sanctions should be </span><a href="https://cdt.org/blog/censorship-transparency-comes-to-the-web/"><span>viewed</span></a><span> as evidence of systematic rights violation and totalitarian regimes. </span></p>
<p style="text-align: justify; "><span>In India where access to software code repositories such as Github and Sourceforge are routinely </span><span><a href="http://cis-india.org/internet-governance/resources/2014-12-17_DoT-32-URL-Block-Order.pdf">restricted</a>,</span><span> the need for such code is obvious. The use of the code will improve confidence in blocking practices, allowing users to understand the grounds on which their right to information is being restricted. Improving transparency around censorship is the only way to build trust between the government and its citizens about the laws and policies applicable to internet content.</span></p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/the-wire-jyoti-panday-january-29-2016-internet-has-a-new-standard-for-censorship'>http://editors.cis-india.org/internet-governance/blog/the-wire-jyoti-panday-january-29-2016-internet-has-a-new-standard-for-censorship</a>
</p>
No publisherjyotiFreedom of Speech and ExpressionInternet GovernanceChilling EffectCensorship2016-01-30T09:17:54ZBlog EntryThe block heads
http://editors.cis-india.org/internet-governance/news/hindu-businessline-april-3-2015-sibi-arasu-the-block-heads
<b>An entire government department is on the job, but can it really take down ‘offending’ online content?</b>
<p class="body" style="text-align: justify; ">The article by Sibi Arasu was <a class="external-link" href="http://www.thehindubusinessline.com/features/blink/know/bl-ink-the-task-of-blocking-and-unblocking-websites/article7064563.ece">published in the Hindu Businessline</a> on April 3, 2015. Sunil Abraham gave his inputs.</p>
<hr />
<p class="body" style="text-align: justify; ">The Department of Electronics and Information Technology’s (Deity) offices are as layered as its official website. From inside ‘Electronics Niketan’ at the Central Government Offices (CGO) complex in south Delhi, Deity’s army of director-generals, joint secretaries, department heads, scientists, clerks and staff of various grades and ranks keep an eye on how the country engages with the world wide web.</p>
<p class="body" style="text-align: justify; ">One set of cubicles is dedicated to the Computer Emergency Response Team (CERT), the nodal agency meant to combat hacking, phishing and generally fortify the internet in India. This includes the task of blocking and unblocking websites. A rather complicated job in a country where, according to one senior government official, “it’s technically infeasible to completely block content. If it’s at the gateway level, then we can filter it out. But for videos and other similar content, it is just not possible to completely block them.”</p>
<p class="body" style="text-align: justify; "><b>No bandwidth</b></p>
<p class="body" style="text-align: justify; ">Be it the AIB roasts that were taken down from YouTube or the controversial documentary India’s Daughter, which was blocked within eight hours of going online, the CERT and other allied departments have been kept busy over the past few months.</p>
<p class="body" style="text-align: justify; ">In a classic example of how blocking can go wrong, more than 36 websites were taken down in December last year to “prevent the spread of ISIS propaganda” only to be unblocked within weeks. Like elsewhere in the world, the attempt to “protect” citizens had unwittingly ended up hurting legitimate websites, including video sharing sites vimeo.com, dailymotion.com and the reference site archive.org. It was embarrassingly similar to the Chinese government’s actions in 2010 when it blocked all images of empty chairs, stools and tables as it attempted to staunch discussions about Liu Xiabo, the Nobel Peace Prize winner that year, who was missing from the awards ceremony as he was incarcerated in China.</p>
<p class="body" style="text-align: justify; ">Terming such government actions as dangerous and Orwellian, Apar Gupta, a cyber law specialist in Delhi who appeared for the People’s Union for Civil Liberties (PUCL) in the PIL against Section 66A of the IT Act, says, “Any piece of content is contained within several file formats and obscured through technical devices like encryption, making its complete removal and eradication impossible.”</p>
<p class="body" style="text-align: justify; ">Internet freedom campaigners have maintained that Section 66A, which prescribed “punishment for sending offensive messages through a communication service”, was created solely to muzzle dissent and differences of opinion.</p>
<p class="body" style="text-align: justify; ">Although Section 66A was recently struck down, the law authorising blocking of content — namely, Section 69A — remains intact. The Central Government can block content it believes threatens the security of the State; the sovereignty, integrity or defence of India; friendly relations with foreign States; public order; or incites committing a cognisable offence related to any of the above. The government must, however, adhere to a set of procedures and safeguards, known as Blocking Rules.</p>
<p class="body" style="text-align: justify; ">“Larger, overbroad technical blocks can impede the functioning of the internet,” says internet policy analyst Raman Chima. “When a large website ‘blacklist’ and internet filter was proposed for Australia in 2009-10, research established that it would likely result in double-digit reductions in the internet’s speed and efficiency in that country.”</p>
<p class="body" style="text-align: justify; ">The ‘Streisand effect’, named after the Hollywood actress, is another common consequence of blocking. As Chima says, “Specific bans tend to be counterproductive and, more often than not, result in more awareness and interest in the banned content.”</p>
<p class="body" style="text-align: justify; "><b>Political manoeuvres</b></p>
<p class="body" style="text-align: justify; ">‘Ethical hacktivist’ and Hackers Hat founder Satish Ashwin sees banning and blocking as purely vote bank politics.</p>
<p class="body" style="text-align: justify; ">“Technically anything can be blocked or banned and it’s not a big deal, but the sheer volume of data uploaded makes it next to impossible to monitor and censor,” he says.</p>
<p class="body" style="text-align: justify; ">To those heralding the striking down of 66A as a victory for free speech, Sunil Abraham, executive director of the Bengaluru-based Centre for Internet and Society, points to the larger picture. “Nobody is really aware of the scale of censorship in India. Thousands of websites are blocked under Section 69A, mostly due to the maximalist enforcement of Intellectual Property Rights (IPR). While 66A is gone, there are many other provisions within the IT Act that still regulate speech online. It is important to have quality laws drafted through an open, participatory process, where all stakeholders are consulted and responded to before bills are introduced in Parliament."</p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/news/hindu-businessline-april-3-2015-sibi-arasu-the-block-heads'>http://editors.cis-india.org/internet-governance/news/hindu-businessline-april-3-2015-sibi-arasu-the-block-heads</a>
</p>
No publisherpraskrishnaInternet GovernanceChilling EffectCensorship2015-05-07T11:51:48ZNews ItemSupreme Court Strikes Down Section 66A Of IT Act
http://editors.cis-india.org/internet-governance/news/huffington-post-indrani-basu-betwa-sharma-march-24-2015-supreme-court-strikes-down-section-66a-of-it-act
<b>In a major boost to freedom of speech online in India, the Supreme Court on Tuesday struck down Section 66A of the Information Technology Act, reading down a draconian law that was poorly conceived, tragically worded and caused ordinary citizens to be jailed for so much as a comment on Facebook that annoyed just about anyone. </b>
<p>The article by Indrani Basu and Betwa Sharma <a class="external-link" href="http://www.huffingtonpost.in/2015/03/24/section-66-a_n_6928864.html">published in the Huffington Post </a>on March 24, 2015 quotes Sunil Abraham.</p>
<hr />
<p>In its <a href="http://supremecourtofindia.nic.in/FileServer/2015-03-24_1427183283.pdf" target="_hplink">122-page judgment</a>, the court struck down the entire section, refusing to heed the government's plea that it will not be misused.</p>
<p style="text-align: justify; ">"The apex courts in India have consistently protected the rights of its citizens. And the Supreme Court has once again upheld that great tradition with this decision. There are constitutional exceptions to free speech that exist.</p>
<blockquote class="pullquote">But this judgment will protect against the abuse of this vague and badly drafted law," said Sunil Abraham, executive director at the Centre for Internet and Society.</blockquote>
<p style="text-align: justify; ">The section was passed without discussion in Parliament by the UPA government in 2008, adding an amendment to the original 2002 Act. While Narendra Modi supported the repealing of the Act during his prime ministerial campaign, after the BJP came to power, the government defended the provision, <a href="http://timesofindia.indiatimes.com/india/Sec-66A-draconian-but-is-needed-Govt/articleshow/46125733.cms" target="_hplink">even while admitting it was draconian</a>.</p>
<p style="text-align: justify; ">The government argued that the provision was necessary to prevent people from posting inflammatory content offending religious or political sentiments, leading to violence.</p>
<p style="text-align: justify; ">"I''m so happy with the decision. They have completely struck down the whole section. This is a victory for the country," said Shreya Singhal, the 24-year-old law student on whose petition the Supreme Court was hearing the case. "I don't have a political agenda — both the Congress government and the BJP have misused the section earlier. Section 66A was a blanket provision which was very vague. There are many IPC sections that could be used in its place."</p>
<p>"No one should fear putting anything up on the internet. It is very important for us to protect this right today," she said.</p>
<p>But there are sections in the Indian Penal Code that can deal with such situations.</p>
<p>And the broad and vague wording of 66A meant that it effectively became a tool that muzzled all speech online.</p>
<p style="text-align: justify; ">In 2012, Shaheen Dada, a 21-year old Mumbai girl, posted on Facebook comments about Shivsena leader Bal Thackerey. Annoyed <a href="http://www.bbc.com/news/world-asia-india-20490823" target="_hplink">party members went to the cops and Dada was arrested</a>. Her friend Rinu Srinivasan, who had 'liked' the comment on Facebook, was also arrested.</p>
<p style="text-align: justify; ">The same year, <a href="http://www.hindustantimes.com/india-news/professor-arrested-for-poking-fun-at-mamata/article1-839847.aspx" target="_hplink">Jadavpur University professor Ambikesh Mahapatra</a> was arrested for sharing a cartoon poking fun at West Bengal chief minister Mamata Banerjee.</p>
<p style="text-align: justify; ">Mumbai cartoonist <a href="http://www.ndtv.com/india-news/outrage-over-cartoonist-aseem-trivedis-arrest-on-sedition-charges-for-mocking-the-constitution-498901" target="_hplink">Aseem Trivedi was also arrested</a> under the provision for his cartoons during the Anna Hazare anti-corruption agitation.</p>
<p style="text-align: justify; ">Here is what the section said:</p>
<blockquote class="quoted">66A. Punishment for sending offensive messages through communication service, etc.<br />Any person who sends, by means of a computer resource or a communication device,—<br />(a) any information that is grossly offensive or has menacing character; or<br />(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device,<br />(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages,<br />shall be punishable with imprisonment for a term which may extend to three years and with fine.</blockquote>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/news/huffington-post-indrani-basu-betwa-sharma-march-24-2015-supreme-court-strikes-down-section-66a-of-it-act'>http://editors.cis-india.org/internet-governance/news/huffington-post-indrani-basu-betwa-sharma-march-24-2015-supreme-court-strikes-down-section-66a-of-it-act</a>
</p>
No publisherpraskrishnaFreedom of Speech and ExpressionInternet GovernanceChilling EffectCensorship2015-03-25T16:43:53ZNews ItemShreya Singhal and 66A
http://editors.cis-india.org/internet-governance/blog/economic-and-political-weekly-sunil-abraham-april-11-2015-shreya-singhal-and-66a
<b>Most software code has dependencies. Simple and reproducible methods exist for mapping and understanding the impact of these dependencies. Legal code also has dependencies --across court orders and within a single court order. And since court orders are not produced using a structured mark-up language, experts are required to understand the precedential value of a court order.</b>
<div class="field-field-articlenote field-type-text field" style="text-align: justify; ">
<div class="field-items">
<div class="odd field-item">
<p>The article was published in the Economic and Political Weekly Vol-L No.15. Vidushi Marda, programme officer at the Centre for Internet and Society, was responsible for all the research that went into this article. <a href="http://editors.cis-india.org/internet-governance/blog/shreya-singhal-judgment.pdf" class="external-link">PDF version here</a>.</p>
<hr />
<p style="text-align: justify; ">As a non–lawyer and engineer, I cannot authoritatively comment on the Supreme Court’s order in <i>Shreya Singhal vs Union of India </i>(2015) on sections of the Information Technology Act of 2000, so I have tried to summarise a variety of views of experts in this article. The <i>Shreya Singhal</i> order is said to be unprecedented at least for the last four decades and also precedent setting as its lucidity, some believe, will cause a ripple effect in opposition to a restrictive understanding of freedom of speech and expression, and an expansiveness around reasonable restrictions. Let us examine each of the three sections that the bench dealt with.</p>
<h3 style="text-align: justify; ">The Section in Question</h3>
<p>Section 66A of the IT Act was introduced in a hastily-passed amendment. Unfortunately, the language used in this section was a pastiche of outdated foreign laws such as the UK Communications Act of 2003, Malicious Communications Act of 1988 and the US Telecommunications Act, 1996.<sup>1</sup> Since the amendment, this section has been misused to make public examples out of innocent, yet uncomfortable speech, in order to socially engineer all Indian netizens into self-censorship.<sup>2</sup></p>
<p><b>Summary: </b> The Court struck down Section 66A of the IT Act in its entirety holding that it was not saved by Article 19(2) of the Constitution on account of the expressions used in the section, such as "annoying," "grossly offensive," "menacing,", "causing annoyance." The Court justified this by going through the reasonable restrictions that it considered relevant to the arguments and testing them against S66A. Apart from not falling within any of the categories for which speech may be restricted, S66A was struck down on the grounds of vagueness, over-breadth and chilling effect. The Court considered whether some parts of the section could be saved, and then concluded that no part of S66A was severable and declared the entire section unconstitutional. When it comes to regulating speech in the interest of public order, the Court distinguished between discussion, advocacy and incitement. It considered the first two to fall under the freedom of speech and expression granted under Article 19(1)(a), and held that it was only incitement that attracted Article 19(2).</p>
<p><b>Between Speech and Harm</b></p>
<p>Gautam Bhatia, a constitutional law expert, has an optimistic reading of the judgment that will have value for precipitating the ripple effect. According to him, there were two incompatible strands of jurisprudence which have been harmonised by collapsing tendency into imminence.<sup>3</sup> The first strand, exemplified by <i>Ramjilal Modi vs State of </i>UP<sup>4</sup> and <i>Kedar Nath Singh vs State of Bihar,</i><sup>5</sup> imported an older and weaker American standard, that is, the tendency test, between the speech and public order consequences. The second strand exemplified by<i>Ram Manohar Lohia vs State of </i>UP<i>,</i><sup>6</sup><i> S Rangarajan vs P Jagjivan Ram</i>,<sup>7</sup> and<i>Arup Bhuyan vs Union of India,</i><sup>8</sup> all require greater proximity between the speech and the disorder anticipated. In <i>Shreya Singhal, </i>the Supreme Court held that at the stage of incitement, the reasonable restrictions will step in to curb speech that has a tendency to cause disorder. Other experts are of the opinion that Justice Nariman was doing no such thing, and was only sequentially applying all the tests for free speech that have been developed within both these strands of precedent. In legal activist Lawrence Liang's analysis, "Ramjilal Modi was decided by a seven judge bench and Kedarnath by a constitutional bench. As is often the case in India, when subsequent benches of a lower strength want to distinguish themselves from older precedent but are unable to overrule them, they overcome this constraint through a doctrinal development by stealth. This is achieved by creative interpretations that chip away at archaic doctrinal standards without explicitly discarding them."<sup>9</sup></p>
<p><b>Compatibility with US Jurisprudence</b></p>
<p>United States (US) jurisprudence has been imported by the Indian Supreme Court in an inconsistent manner. Some judgments hold that the American first amendment harbours no exception and hence is incompatible with Indian jurisprudence, while other judgments have used American precedent when convenient. Indian courts have on occasion imported an additional restriction beyond the eight available in 19(2)-the ground of public interest, best exemplified by the cases of <i>K A Abbas</i><sup>10</sup><i> </i>and <i>Ranjit Udeshi.</i><sup>11</sup> The bench in its judgment-which has been characterised by Pranesh Prakash as a masterclass in free speech jurisprudence<sup>12</sup>-clarifies that while the American first amendment jurisprudence is applicable in India, the only area where a difference is made is in the "sub serving of general public interest" made under the US law. This eloquent judgment will hopefully instruct judges in the future on how they should import precedent from American free speech jurisprudence.</p>
<p><b>Article 14 Challenge</b></p>
<p>The Article 14 challenge brought forward by the petitioners contended that Section 66A violated their fundamental right to equality because it differentiated between offline and online speech in terms of the length of maximum sentence, and was hence unconstitutional. The Court held that an intelligible differentia, indeed, did exist. It found so on two grounds. First, the internet offered people a medium through which they can express views at negligible or no cost. Second, the Court likened the rate of dissemination of information on the internet to the speed of lightning and could potentially reach millions of people all over the world. Before <i>Shreya Singhal</i>, the Supreme Court had already accepted medium-specific regulation. For example in <i>K A Abbas</i>, the Court made a distinction between films and other media, stating that the impact of films on an average illiterate Indian viewer was more profound than other forms of communication. The pessimistic reading of <i>Shreya Singhal</i> is that Parliament can enact medium-specific law as long as there is an intelligible differentia which could even be a technical difference-speed of transmission. However, the optimistic interpretation is that medium-specific law can only be enacted if there are medium-specific harms, e g, phishing, which has no offline equivalent. If the executive adopts the pessimistic reading, then draconian sections like 66A will find their way back into the IT Act. Instead, if they choose the optimistic reading, they will introduce bills that fill the regulatory vacuum that has been created by the striking down of S66A, that is, spam and cyberbullying.</p>
<p><b>Section 79 </b></p>
<p>Section 79 was partially read down. This section, again introduced during the 2008 amendment, was supposed to give legal immunity to intermediaries for third party content by giving a quick redressal for those affected by providing a mechanism for takedown notices in the Intermediaries Guidelines Rules notified in April 2011. But the section and rules had enabled unchecked invisible censorship<sup>13</sup> in India and has had a demonstrated chilling effect on speech<sup>14</sup> because of the following reasons:</p>
<p>One, there are additional unconstitutional restrictions on speech and expression. Rule 3(2) required a standard "rules and regulation, terms and condition or user agreement" that would have to be incorporated by all intermediaries. Under these rules, users are prohibited from hosting, displaying, uploading, modifying, publishing, transmitting, updating or sharing any information that falls into different content categories, a majority of which are restrictions on speech which are completely out of the scope of Article 19(2). For example, there is an overly broad category which contains information that harms minors in any way. Information that "belongs to another person and to which the user does not have any right to" could be personal information or could be intellectual property. A much better intermediary liability provision was introduced into the Copyright Act with the 2013 amendment. Under the Copyright Act, content could be reinstated if the takedown notice was not followed up with a court order within 21 days.<sup>15</sup> A counter-proposal drafted by the Centre for Internet and Society for "Intermediary Due Diligence and Information Removal," has a further requirement for reinstatement that is not seen in the Copyright Act.<sup>16</sup></p>
<p>Two, a state-mandated private censorship regime is created. You could ban speech online without approaching the court or the government. Risk-aversive private intermediaries who do not have the legal resources to subjectively determine the legitimacy of a legal claim err on the side of caution and takedown content.</p>
<p>Three, the principles of natural justice are not observed by the rules of the new censorship regime. The creator of information is not required to be notified nor given a chance to be heard by the intermediary. There is no requirement for the intermediary to give a reasoned decision.</p>
<p>Four, different classes of intermediaries are all treated alike. Since the internet is not an uniform assemblage of homogeneous components, but rather a complex ecosystem of diverse entities, the different classes of intermediaries perform different functions and therefore contribute differently to the causal chain of harm to the affected person. If upstream intermediaries like registrars for domain names are treated exactly like a web-hosting service or social media service then there will be over-blocking of content.</p>
<p>Five, there are no safeguards to prevent abuse of takedown notices. Frivolous complaints could be used to suppress legitimate expressions without any fear of repercussions and given that it is not possible to expedite reinstatement of content, the harm to the creator of information may be irreversible if the information is perishable. Transparency requirements with sufficient amounts of detail are also necessary given that a human right was being circumscribed. There is no procedure to have the removed information reinstated by filing a counter notice or by appealing to a higher authority.</p>
<p>The judgment has solved half the problem by only making intermediaries lose immunity if they ignore government orders or court orders. Private takedown notices sent directly to the intermediary without accompanying government orders or courts order no longer have basis in law. The bench made note of the Additional Solicitor General's argument that user agreement requirements as in Rule 3(2) were common practice across the globe and then went ahead to read down Rule 3(4) from the perspective of private takedown notices. One way of reading this would be to say that the requirement for standardised "rules and regulation, terms and condition or user agreement" remains. The other more consistent way of reading this part of the order in conjunction with the striking down of 66A would be to say those parts of the user agreement that are in violation of Article 19(2) have also been read down.</p>
<p>This would have also been an excellent opportunity to raise the transparency requirements both for the State and for intermediaries: for (i) the person whose speech is being censored, (ii) the persons interested in consuming that speech, and (iii) the general public. It is completely unclear whether transparency in the case of India has reduced the state appetite for censorship. Transparency reports from Facebook, Google and Twitter claim that takedown notices from the Indian government are on the rise.<sup>17</sup> However, on the other hand, the Department of Electronics and Information Technology (DEITY) claims that government statistics for takedowns do not match the numbers in these transparency reports.<sup>18</sup> The best way to address this uncertainty would be to require each takedown notice and court order to be made available by the State, intermediary and also third-party monitors of free speech like the Chilling Effects Project.</p>
<p><b>Section 69A</b></p>
<p>The Court upheld S69A which deals with website blocking, and found that it was a narrowly-drawn provision with adequate safeguards, and, hence, not constitutionally infirm. In reality, unfortunately, website blocking usually by internet service providers (ISPs) is an opaque process in India. Blocking under S69A has been growing steadily over the years. In its latest response to an RTI (right to information)<sup>19</sup> query from 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. On 30 December 2014 alone, the centre blocked 32 websites to curb Islamic State of Iraq and Syria propaganda, among which were "pastebin" websites, code repository (Github) and generic video hosting sites (Vimeo and Daily Motion).<sup>20</sup> Analysis of leaked block lists and lists received as responses to RTI requests have revealed that the block orders are full of errors (some items do not exist, some items are not technically valid web addresses), in some cases counter speech which hopes to reverse the harm of illegal speech has also been included, web pages from mainstream media houses have also been blocked and some URLs are base URLs which would result in thousands of pages getting blocked when only a few pages might contain allegedly illegal content.<sup>21</sup></p>
<p><b>Pre-decisional Hearing</b></p>
<p>The central problem with the law as it stands today is that it allows for the originator of information to be isolated from the process of censorship. The Website Blocking Rules provide that all "reasonable efforts" must be made to identify the originator or the intermediary who hosted the content. However, Gautam Bhatia offers an optimistic reading of the judgment, he claims that the Court has read into this "or" and made it an "and"-thus requiring that the originator <i>must also</i> be notified of blocks when he or she can be identified.<sup>22</sup></p>
<p><b>Transparency</b></p>
<p>Usually, the reasons for blocking a website are unknown both to the originator of material as well as those trying to access the blocked URL. The general public also get no information about the nature and scale of censorship unlike offline censorship where the court orders banning books and movies are usually part of public discourse. In spite of the Court choosing to leave Section 69A intact, it stressed the importance of a written order for blocking, so that a writ may be filed before a high court under Article 226 of the Constitution. While citing this as an existing safeguard, the Court seems to have been under the impression that either the intermediary or the originator is normally informed, but according to Apar Gupta, a lawyer for the People's Union for Civil Liberties, "While the rules indicate that a hearing is given to the originator of the content, this safeguard is not evidenced in practice. Not even a single instance exists on record for such a hearing."<sup>23</sup> Even worse, block orders have been unevenly implemented by ISPs with variations across telecom circles, connectivity technologies, 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.</p>
<p>Rule 16 under S69A requires confidentiality with respect to blocking requests and complaints, and actions taken in that regard. The Court notes that this was argued to be unconstitutional, but does not state their opinion on this question. Gautam Bhatia holds the opinion that this, by implication, requires that requests cannot be confidential. Chinmayi Arun, from the Centre for Communication Governance at National Law University Delhi, one of the academics supporting the petitioners, holds the opinion that it is optimism carried too far to claim that the Court noted the challenge to Rule 16 but just forgot about it in a lack of attention to detail that is belied by the rest of the judgment.</p>
<p>Free speech researchers and advocates have thus far used the RTI Act to understand the censorship under S69A. The Centre for Internet and Society has filed a number of RTI queries about websites blocked under S69A and has never been denied information on grounds of Rule 16.<sup>24</sup> However, there has been an uneven treatment of RTI queries by DEITY in this respect, with the Software Freedom Law Centre<sup>25</sup> being denied blocking orders on the basis of Rule 16. The Court could have protected free speech and expression by reading down Rule 16 except for a really narrow set of exceptions wherein only aggregate information would be made available to affected parties and members of the public.</p>
<p><b>Conclusions</b></p>
<p>In <i>Shreya Singhal</i>, the Court gave us great news: S66A has been struck down; good news: S79(3) and its rules have been read down; and bad news: S69A has been upheld. When it comes to each section, the impact of this judgment can either be read optimistically or pessimistically, and therefore we must wait for constitutional experts to weigh in on the ripple effect that this order will produce in other areas of free speech jurisprudence in India. But even as free speech activists celebrate <i>Shreya Singhal</i>,<i> </i>some are bemoaning the judgment as throwing the baby away with the bathwater, and wish to reintroduce another variant of S66A. Thus, we must remain vigilant.</p>
<p><b>Notes</b></p>
<p>1 G S Mudur (2012): "66A 'Cut and Paste Job,'" <i>The Telegraph, </i>3 December, visited on 3 April, 2015, <a href="http://www.telegraphindia.com/1121" title="http://www.telegraphindia.com/1121">http://www.telegraphindia.com/1121</a> 203/jsp/frontpage/story_16268138.jsp</p>
<p>2 Sunil Abraham (2012): "The Five Monkeys and Ice Cold Water," Centre for Internet and Society, 26 September, visited on 3 April 2015, <a href="http://cis-india.org/internet-governance/www-deccan-chronicle-sep-16-2012-sunil-abraham-the-five-monkeys-and-ice-cold-water" title="http://cis-india.org/internet-governance/www-deccan-chronicle-sep-16-2012-sunil-abraham-the-five-monkeys-and-ice-cold-water"> http://cis-india.org/internet-governance/www-deccan-chronicle-sep-16-201... </a></p>
<p>3 Gautam Bhatia (2015): "The Striking Down of 66A: How Free Speech Jurisprudence in India Found Its Soul Again," Indian Constitutional Law and Philosophy, <i> </i>26 March, visited on 4 April 2015, <a href="https://indconlawphil.wordpress.com/2015/03/26/the-striking-down-of-section-66a-how-indian-free-speech-jurisprudence-found-its-soul-again/" title="https://indconlawphil.wordpress.com/2015/03/26/the-striking-down-of-section-66a-how-indian-free-speech-jurisprudence-found-its-soul-again/"> https://indconlawphil.wordpress.com/2015/03/26/the-striking-down-of-sect... </a></p>
<p>4 <i>Ramjilal Modi vs State of UP</i>, 1957, SCR 860.</p>
<p>5 <i>Kedar Nath Singh vs State of Bihar</i>, 1962, AIR 955.</p>
<p>6 <i>Ram Manohar Lohia vs State of UP</i>, AIR, 1968 All 100.</p>
<p>7 <i>S Rangarajan vs P Jagjivan Ram, </i>1989, SCC(2), 574.</p>
<p>8 <i>Arup Bhuyan vs Union of India, </i>(2011), 3 SCC 377.</p>
<p>9 Lawrence Liang, Alternative Law Forum, personal communication to author, 6 April 2015.</p>
<p>10 <i>K A Abbas vs Union of India, </i>1971 SCR (2), 446.</p>
<p>11 <i>Ranjit Udeshi vs State of Maharashtra,</i>1965 SCR (1) 65.</p>
<p>12 Pranesh Prakash (2015): "Three Reasons Why 66A Verdict Is Momentous"<i>/ Times of India</i>/(29 March). Visited on 6 April 2015, <a href="http://timesofindia.indiatimes.com/home/sunday-times/all-that-matters/Three-reasons-why-66A-verdict-is-momentous/articleshow/46731904.cms" title="http://timesofindia.indiatimes.com/home/sunday-times/all-that-matters/Three-reasons-why-66A-verdict-is-momentous/articleshow/46731904.cms"> http://timesofindia.indiatimes.com/home/sunday-times/all-that-matters/Th... </a></p>
<p>13 Pranesh Prakash (2011): "Invisble Censorship: How the Government Censors Without Being Seen," The Centre for Internet and Society, 14 December, visited on 6 April 2015, <a href="http://cis-india.org/internet-governance/blog/invisible-censorship" title="http://cis-india.org/internet-governance/blog/invisible-censorship"> http://cis-india.org/internet-governance/blog/invisible-censorship </a></p>
<p>14 Rishabh Dara (2012): "Intermediary Liability in India: Chilling Effects on Free Expression on the Internet," The Centre for Internet and Society, 27 April, visited on 6 April 2015, <a href="http://cis-india.org/internet-governance/chilling-effects-on-free-expression-on-internet" title="http://cis-india.org/internet-governance/chilling-effects-on-free-expression-on-internet"> http://cis-india.org/internet-governance/chilling-effects-on-free-expres... </a> .</p>
<p>15 Rule 75, Copyright Rules, 2013.</p>
<p>16 The Draft Counter Proposal is available at <a href="http://cis-india.org/internet-governance/counter-proposal-by-cis-draft-it-intermediary-due-diligence-and-information-removal-rules-2012.pdf/view" title="http://cis-india.org/internet-governance/counter-proposal-by-cis-draft-it-intermediary-due-diligence-and-information-removal-rules-2012.pdf/view"> http://cis-india.org/internet-governance/counter-proposal-by-cis-draft-i... </a></p>
<p>17 According to Facebook's transparency report, there were 4,599 requests in the first half of 2014, followed by 5,473 requests in the latter half. Available at <a href="https://govtrequests.facebook" title="https://govtrequests.facebook">https://govtrequests.facebook</a>. com/country/India/2014-H2/ also see Google's transparency report available at http: //www.google. com/transparencyreport/removals/government/IN/?hl=en and Twitter's report, available at https:// transparency.twitter.com/country/in</p>
<p>18 Surabhi Agarwal (2015): "Transparency Reports of Internet Companies are Skewed: Gulashan Rai," <i>Business Standard, </i>31 March, viewed on 5 April 2015, <a href="http://www.business-standard.com/article/current-affairs/transparency-reports-of-internet-companies-are-skewed-gulshan-rai-115033000808_1.html" title="http://www.business-standard.com/article/current-affairs/transparency-reports-of-internet-companies-are-skewed-gulshan-rai-115033000808_1.html"> http://www.business-standard.com/article/current-affairs/transparency-re... </a> .</p>
<p>19 <a href="http://sflc.in/deity-says-2341-urls-were-blocked-in-2014-refuses-to-reveal-more/" title="http://sflc.in/deity-says-2341-urls-were-blocked-in-2014-refuses-to-reveal-more/"> http://sflc.in/deity-says-2341-urls-were-blocked-in-2014-refuses-to-reve... </a></p>
<p>20 "32 Websites Go Blank<i>,</i>"<i> The Hindu, </i>1 January 2015, viewed on 6 April 2015, <a href="http://www.thehindu.com/news/national/now-modi-govt-blocks-32-websites/article6742372.ece" title="http://www.thehindu.com/news/national/now-modi-govt-blocks-32-websites/article6742372.ece"> http://www.thehindu.com/news/national/now-modi-govt-blocks-32-websites/a... </a></p>
<p>21 Pranesh Prakash (2012): "Analysing Latest List of Blocked Sites (Communalism and Rioting Edition)," 22 August, viewed on 6 April 2015, <a href="http://cis-india.org/internet-governance/blog/analysing-blocked-sites-riots-communalism" title="http://cis-india.org/internet-governance/blog/analysing-blocked-sites-riots-communalism"> http://cis-india.org/internet-governance/blog/analysing-blocked-sites-ri... </a> . Also, see Part II of the same series at <a href="http://cis-india.org/internet-governance/analyzing-the-latest-list-of-blocked-sites-communalism-and-rioting-edition-part-ii" title="http://cis-india.org/internet-governance/analyzing-the-latest-list-of-blocked-sites-communalism-and-rioting-edition-part-ii"> http://cis-india.org/internet-governance/analyzing-the-latest-list-of-bl... </a> and analysis of blocking in February 2013, at <a href="http://cis-india.org/internet-governance/blog/analyzing-latest-list-of-blocked-urls-by-dot" title="http://cis-india.org/internet-governance/blog/analyzing-latest-list-of-blocked-urls-by-dot"> http://cis-india.org/internet-governance/blog/analyzing-latest-list-of-b... </a></p>
<p>22 Gautam Bhatia (2015): "The Supreme Court's IT Act Judgment, and Secret Blocking," Indian Constitutional Law and Philosophy, 25 March, viewed on 6 April 2015, <a href="https://indconlawphil.wordpress.com/2015/03/25/the-supreme-courts-it-act-judgment-and-secret-blocking/" title="https://indconlawphil.wordpress.com/2015/03/25/the-supreme-courts-it-act-judgment-and-secret-blocking/"> https://indconlawphil.wordpress.com/2015/03/25/the-supreme-courts-it-act... </a></p>
<p>23 Apar Gupta (2015): "But What about Section 69A?," <i>Indian Express, 27 </i>March, viewed on 5 April 2015, <a href="http://indianexpress" title="http://indianexpress">http://indianexpress</a>. com/article/opinion/ columns/but-what-about-section-69a/</p>
<p>24 Pranesh Prakash (2011): DIT's Response to RTI on Website Blocking, The Centre for Internet and Society, 7 April, viewed on 6 April 2015, <a href="http://cis-india.org/internet-governance/blog/rti-response-dit-blocking" title="http://cis-india.org/internet-governance/blog/rti-response-dit-blocking"> http://cis-india.org/internet-governance/blog/rti-response-dit-blocking </a> ). Also see <a href="http://cis-india.org/internet-governance/blog/analysis-dit-response-2nd-rti-blocking" title="http://cis-india.org/internet-governance/blog/analysis-dit-response-2nd-rti-blocking"> http://cis-india.org/internet-governance/blog/analysis-dit-response-2nd-... </a> and <a href="http://cis-india.org/internet-governance/resources/reply-to-rti-application-on-blocking-of-website-and-rule-419a-of-indian-telegraph-rules-1951" title="http://cis-india.org/internet-governance/resources/reply-to-rti-application-on-blocking-of-website-and-rule-419a-of-indian-telegraph-rules-1951"> http://cis-india.org/internet-governance/resources/reply-to-rti-applicat... </a></p>
<p>25 <a href="http://sflc.in/wp-content/uploads/2015/04/RTI-blocking-final-reply-from-DEITY.pdf" title="http://sflc.in/wp-content/uploads/2015/04/RTI-blocking-final-reply-from-DEITY.pdf"> http://sflc.in/wp-content/uploads/2015/04/RTI-blocking-final-reply-from-... </a></p>
</div>
</div>
</div>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/economic-and-political-weekly-sunil-abraham-april-11-2015-shreya-singhal-and-66a'>http://editors.cis-india.org/internet-governance/blog/economic-and-political-weekly-sunil-abraham-april-11-2015-shreya-singhal-and-66a</a>
</p>
No publishersunilIT ActCensorshipFreedom of Speech and ExpressionInternet GovernanceChilling Effect2015-04-19T08:09:42ZBlog EntrySECTION 66A: DELETE
http://editors.cis-india.org/internet-governance/news/open-magazine-march-27-2015-kumar-anshuman-section-66a-delete
<b>The Supreme Court has killed a law that allowed the Government to control social media. What’s the Net worth of freedom hereafter? </b>
<p style="text-align: justify; ">The article by Kumar Anshuman was published in the <a class="external-link" href="http://www.openthemagazine.com/article/nation/section-66a-delete">Open Magazine</a> on March 27, 2015. Sunil Abraham gave his inputs.</p>
<hr />
<p style="text-align: justify; ">It was in 2009 that Section 66A was added as an amendment to India’s IT Act by the then UPA Government, but it took three years before it came to the notice of Shreya Singhal, a student of Law at Delhi University. By then, the Section had already earned itself a fair amount of notoriety for how much leeway it provided for the police and politicians to abuse the law.</p>
<p style="text-align: justify; ">The first time was in September 2011 when Musafir Baitha, a famous poet and government employee in Bihar, was suspended from his job because he criticised the state government on Facebook. An uproar followed, as people realised that freedom of speech in social media could now be construed as a criminal activity. Ambikesh Mahapatra, a professor at Jadavpur Unversity, became a target of the Mamata Banerjee government in April 2012 when he made cartoons of her. In September 2012, cartoonist Aseem Trivedi was arrested in Mumbai for a caricature of corruption under the UPA. But the case that caught Shreya Singhal’s attention was perhaps the most shocking of all. In November 2012, after Shiv Sena founder Bal Thackeray’s death, Shaheen Dhada, a Thane resident, posted a comment on her Facebook page criticising the near-total shutdown of Mumbai for the funeral. She wrote that Mumbai was shut not in respect, but fear, and that a leader should earn respect instead of forcing it out of people. Her friend Renu Srinivasan ‘liked’ this post. Hours later, both were arrested and booked under Section 66A. "I was shocked when I heard of this news," Singhal says, "I went and checked the post and there was nothing which could have provoked such an outrage." Her mother, Manali Singhal, a lawyer at the Supreme Court, advised her to file a Public Interest Litigation (PIL) against the Section.<br /><br />The case continued for two years in the Supreme Court, while arbitrary arrests continued to be made. The UPA Government first defended 66A in court, taking the position that the current NDA Government took as well. It argued that the law would be used only in extreme cases where a person overreaches his or her online freedom to curtail the rights of others. Unconvinced, on 24 March, the apex court struck 66A down, saying that it could not allow such a law to exist on mere government assurances. The Court found several terms in the Act, such as ‘grossly offensive’ and ‘insult’, that were not clearly defined and could be interpreted arbitrarily to suit one’s convenience. ‘It is clear that Section 66A is unconstitutionally vague and it takes away a guaranteed freedom,’ observed the bench of Justice J Chelameswar and Justice Rohinton Nariman.</p>
<p style="text-align: justify; ">"We can celebrate the scrapping of Section 66A, but with caution," says Sunil Abraham, executive director at The Centre for Internet & Society in Bangalore. "[As for] those who are booked under Section 66A, the police also imposes different sections of the Indian Penal Code to justify their arrest." There are examples to support his statement, a recent one being the arrest of a Bareilly-based student, Gulrez Khan, who had posted a picture on Facebook of UP minister Azam Khan along with some derogatory comments about Hindus that he allegedly made. Gulrez Khan denied the comments, saying that his image was being maligned. The boy was arrested and booked. "People are making it out as a moment of triumph against the UP government. The fact is this boy had been arrested under Section 153A and 504 of the IPC along with Section 66A of the IT Act. We have said this even in the Supreme Court," says Gaurav Bhatia, a spokesperson of the Samajwadi Party and also a senior advocate.</p>
<p style="text-align: justify; ">But the import of scrapping Section 66A is that there is now one less law that can be misused, one that specifically stifles online freedom. "It’s an excellent judgment," says Lawrence Liang of Alternative Law Forum, Bangalore. “It couldn’t have been better than this. The fact that the apex court termed it ‘vague and overreaching’ signifies how important it was to scrap this."</p>
<p style="text-align: justify; ">Once the 122-page judgment arrived, there was a rush to welcome it—even by those who were responsible for Section 66A to begin with. Former Congress minister Kapil Sibal was one of them. "The Supreme Court has scrapped Section 66A to allow freedom of speech in cyberspace and we should welcome it,” he said. His former cabinet colleague P Chidambaram went to the extent of saying that it was poorly drafted. But the Congress as a party also warned of the possible misuse of this freedom, saying that it had woven various safeguards into Section 66A, including the condition that an arrest could only be made after an officer of the level of Inspector General or Superintendent of Police had okayed it. "The Supreme Court, it appears, has not found the safeguards sufficient," says Congress spokesperson and senior lawyer Abhishek Manu Singhvi. “It is now up to the current Government [to decide] how to strike the right balance between freedom of speech on one hand and [prevention of] abuse and hounding of groups or individuals through obscene or incorrigibly false information [on the other] to deter unbridled defamation in cyberspace." The Left parties, which were supporting the UPA Government back when Section 66A was imposed, have expressed happiness over the verdict. “The draconian provision of 66A was used to arrest people who express dissenting views against the Government and the State and to suppress criticism of those in power,” says senior CPM leader Sitaram Yechury.</p>
<p style="text-align: justify; ">The NDA Government has also welcomed the verdict. "The Government absolutely respects the right to freedom of speech and expression on social media and has no intention of curbing it," says Ravi Shankar Prasad, Union Minister for Information Technology.</p>
<p style="text-align: justify; ">But the scrapping of the Section leaves the Government with very little power to act against real abuse of online freedoms. Like Congress leader Milind Deora says, "An unregulated internet can be more dangerous than a regulated one." This argument is easily countered: there are enough provisions in existing laws that prevent a person from misusing freedom of speech. Says Apar Gupta, a senior lawyer, “Section 66A was a bailable section and arrests were made only with further imposition of IPC acts." While Article 19 (1) of the Constitution guarantees freedom of expression, at the same time Article 19 (2) provides a list of reasonable restrictions on freedom of speech. This is enough, experts believe, to curtail misuse of the internet. The court judgment also grants the Centre the freedom to enact any other law specific to the internet, provided it does not violate the provisions of freedom of speech as laid down by the Constitution of India.</p>
<p style="text-align: justify; ">This does, however, put a question mark on the necessity of Section 66A to begin with, if existing laws were quite enough to address freedom-of- speech abuses. "Section 66A of the IT Act, 2000, was enacted to prevent online abuse and hounding of groups and individuals, check the propagation of obscene or incorrigibly false information with the intent to create social divides and unrest, and deter unbridled defamation in cyberspace. This Act came into effect in 2008 when social media was yet evolving," says Singhvi. But experts disagree with this argument. "It is a perfect case of confusion and mixing up of facts,” says Sunil Abraham. “The purpose of this law was to curb unsolicited messages, spamming and harassing someone through fake identities in the internet space." He says that the Government claimed to borrow law provisions from the US, Canada and other countries, but the legislation was so poorly drafted that it didn’t have any teeth for action against spammers. "Even words like ‘unsolicited commercial mails’ were not included in the Act and that is the reason not a single person has been arrested in India for spam mails even after this Act came into being."</p>
<p style="text-align: justify; ">A section of the Indian legal fraternity believes that the country’s apex court should also have made a statement about the problem of spamming and harassment on the internet.</p>
<p style="text-align: justify; ">But there is bad news too. The same judgment that struck down Section 66A has upheld Section 69A of the IT Act as constitutionally valid. This allows the Government to block any website which it deems a direct threat to public order and security that might spread propaganda.</p>
<p style="text-align: justify; ">"In this case, the Government [can decide] to block a website without notifying [it with any] reason for it. If I am an internet user who wants to visit this site, I am also not notified why that website has been taken down. It is just the whims and fancies of a few officials in the Government, what to block and what not," says Apar Gupta. Using the section, the Union Government had blocked 32 websites just this January, saying that anti- national groups were using these websites for ‘jihadi propaganda’.</p>
<p style="text-align: justify; ">All major democracies have some form of legal net regulation. "Laws in foreign jurisdictions vary widely as per the guarantees of civil rights afforded to citizens in any legal system," adds Gupta. "The legislations of the United States, which borrowed certain phrases in Section 66A, have already been declared unconstitutional. In the United Kingdom, similar phrases have come under fierce critique and have been limited by guidelines issued by the office of prosecutions. In these jurisdictions, as in India, existing criminal law applies equally to online speech as much as to offline."</p>
<p style="text-align: justify; ">Also, while social media enthusiasts rejoice over their first big victory against restrictions on online freedom of speech, the internet is still a matter of great concern for any government, thanks to its reach and influence. The Union Government walks a thin line while dealing with instances of abuse on social media, and many believe India needs an IT Act drafted in proper consultation with all stakeholders.</p>
<p style="text-align: justify; ">For now, a young law student has found a place in the legal history of India. "It will always be remembered as Shreya Singhal vs Union of India," says Singhal.</p>
<h3 style="text-align: justify; ">INFORMATION TECHNOLOGY ACT</h3>
<p style="text-align: justify; ">‘66A. Punishment for sending offensive messages through communication service, etc. Any person who sends, by means of a computer resource or a communication device:</p>
<ol style="text-align: justify; ">
<li>Any information that is grossly offensive or has menacing character; or</li>
<li>Any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device;</li>
<li>Any electronic mail or message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages...</li>
</ol>
<p style="text-align: justify; ">shall be punishable with imprisonment for a term which may extend to three years and with fine’</p>
<h3 style="text-align: justify; ">SUPREME COURT ORDER</h3>
<p style="text-align: justify; ">‘In conclusion, we may summarise what has been held by us: Section 66A of the Information Technology Act, 2000 is struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2)’</p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/news/open-magazine-march-27-2015-kumar-anshuman-section-66a-delete'>http://editors.cis-india.org/internet-governance/news/open-magazine-march-27-2015-kumar-anshuman-section-66a-delete</a>
</p>
No publisherpraskrishnaIT ActCensorshipFreedom of Speech and ExpressionInternet GovernanceChilling Effect2015-03-30T01:32:18ZNews ItemSC has set a high threshold for tolerance: Lawrence Liang
http://editors.cis-india.org/internet-governance/news/livemint-dhamini-ratnam-march-28-2015-sc-has-set-a-high-threshold-for-tolerance
<b>Lawyer-activist Lawrence Liang on why SC upheld section 69A and the implications of striking down section 66A.
</b>
<p style="text-align: justify; ">The article by Dhamini Ratnam was published in <a class="external-link" href="http://www.livemint.com/Politics/hDIjjunGikWywOgSRiM7NP/SC-has-set-a-high-threshold-for-tolerance-Lawrence-Liang.html">Livemint</a> on March 28, 2015. Lawrence Liang gave his inputs.</p>
<hr />
<p style="text-align: justify; ">Tuesday marked a landmark in the fight for free speech in our country, as the Supreme Court struck down the contentious section 66A of the Information Technology Act of 2000. The section, which was introduced through an amendment in 2009, penalized those who wrote messages online that could be deemed as being false or grossly offensive. However, the apex court turned down a plea to strike down sections 69A (procedure for blocking websites) and 79 (exemption from liability of intermediaries) of the same law. Lawrence Liang, a lawyer who co-founded the Alternative Law Forum in Bengaluru, a fellow at the Centre for Internet and Society, and author of The Public is Watching: Sex, Laws and Videotape and A Guide to Open Content Licenses, spoke in an interview on the wide-ranging implications of the judgement. Edited excerpts:</p>
<div>
<h3>What was the impetus to fight section 66A?</h3>
<p style="text-align: justify; ">Over the past few years, there have been numerous cases in which section 66A has been used in bad faith against individuals online. One of the cases that became well-known by virtue of just how ridiculous it was involved the arrest of Shaheen Dhada and her friend Renu Srinivasan (which led petitioner Shreya Singhal to file a public interest litigation in the Supreme Court that eventually led to this judgement), but there have been more, so it was inevitable that a law as draconian as section 66A would be challenged for its constitutional validity.</p>
<p style="text-align: justify; ">The judgement begins by noting a distinction between three forms of speech—discussion, advocacy and incitement—and says discussion and advocacy of a particular cause, howsoever unpopular, is at the heart of Article 19(1)(a) of the Constitution (all citizens shall have the right to freedom of speech and expression). Only when they reach the level of incitement can they be legitimately prohibited. While the judgement does not provide a new definition of incitement, it affirms what was laid down in the Rangarajan test (1989), in which the courts had established that for censorship to be justified, the “expression of thought should be intrinsically dangerous to the public interest”. There should be an immediate and direct relation between speech and effect.</p>
<p style="text-align: justify; ">The court said that section 66A is “cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net”. The courts have also historically held that Article 19(1)(a) is as much about the right to receive information as it is to disseminate, and when there is a chilling effect on speech, it also violates the right to receive information. However, I would say that the court missed an opportunity to consider the blocking of websites under section 69A.</p>
<h3 style="text-align: justify; ">Why did the court uphold section 69A, and which other parts of the IT Act did it examine?</h3>
<p style="text-align: justify; ">If section 66A was found to be arbitrary, then the procedure for blocking websites, as laid out in section 69A, is also beset with similar problems. The court, however, upheld this section and the rules under the IT Act on the grounds that there are internal safeguards and reasonable procedures. This section allows the government to block any site or information that violates Article 19(2) of the Constitution (which enables the legislature to impose certain restrictions on free speech).</p>
<p style="text-align: justify; ">The problem is that often there is no hearing or notice given to the owner of information, there is no transparency since blocks can happen on a confidential basis and these can have serious implications for the right to receive information.</p>
<p style="text-align: justify; ">The court read down section 79, which used to provide an intermediary exemption from liability with the exception that if it received “actual knowledge” of any illegal content, it was obliged to act within 36 hours. A study by the Centre for Internet and Society showed that even on sending frivolous takedown notices, intermediaries tended to comply to be on the safe side. The court’s decision has read down section 79 now to mean that “actual knowledge” means either an order of a court or the government. It moves it away from a subjective determination by intermediaries.</p>
<p style="text-align: justify; ">The court could have, like it did with section 79, retained section 66A while clarifying a procedure that would maintain a balance between the need sometimes to block and public interest, and transparency.</p>
<h3 style="text-align: justify; ">What does the judgement open up for the free speech debate?</h3>
<p style="text-align: justify; ">The judgement speaks of chilling effects, because if one is not careful, one runs the risk of endangering political discourse through self-censorship. This is terrible for a democratic culture, which is premised on the ability to debate and dissent. Much of the use of section 66A has been politically motivated to silence criticism, and the judgement goes a long way towards promoting a culture of critique.</p>
<p style="text-align: justify; ">As the first major Supreme Court case on free speech in the 21st century, it sets the tone on how we think of free speech in a context where every individual with a smartphone is potentially a writer, a publisher and a distributor. By setting a high threshold for what is tolerated in online speech, it ensures that the online space is not doomed to be infantilized.</p>
<h3 style="text-align: justify; ">What position must the law take to protect rights and minority identities?</h3>
<p style="text-align: justify; ">I think it is important to distinguish between different effects of speech. The court has merely reaffirmed a position that has been held in India for a long time (such as through the Ram Manohar Lohia judgement of 1960, which interpreted what “restriction made in the interests of public order” in Article 19(2) means). In other words, if someone is inciting violence, especially if they have the power to effect such violence (such as a politician), then their speech can be regulated, but the court also held that the idea of threat to public order is often imaginary.</p>
<p style="text-align: justify; ">For instance, in what way would Shaheen Dhada’s post on Facebook have incited violence? (In November 2012, Dhada, then a student and based in Palghar, Maharashtra, had written a post on Facebook commenting on the state of shutdown that followed politician Bal Thackeray’s death. Her comment was liked by her friend Srinivasan, and both of them were charged under section 66A.) So, the court is distinguishing between speech that is critical and speech that is dangerous. There are laws that deal with the latter, such as 153A and 295A of the IPC (Indian Penal Code).</p>
<p style="text-align: justify; ">It must be noted, however, that provisions also suffer from the same vice of vagueness. What we need is a more nuanced understanding of hate speech that addresses speech that incites violence or hatred against a community, but one in which the test is not of subjective hurt sentiment. The problem with hate speech laws is that they collapse questions of law and order with questions of subjective hurt, and we run the risk of becoming a republic of hurt sentiments where anyone can claim that their sentiments are hurt, especially their religious sentiments.</p>
<h3 style="text-align: justify; ">What happens to existing cases that are being tried under section 66A, such as the one against the organizers and participants of the All India Bakchod Roast?</h3>
<p style="text-align: justify; ">Court judgements do not necessarily have retrospective effect, so cases that have been filed will continue. We must also remember that the cases filed under section 66A were also accompanied by other provisions. Of course, a judgement as significant as this, which completely delegitimizes section 66A, will have a profound impact on the ongoing cases insofar as they relate to the offence under the section, but the other charges remain.</p>
</div>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/news/livemint-dhamini-ratnam-march-28-2015-sc-has-set-a-high-threshold-for-tolerance'>http://editors.cis-india.org/internet-governance/news/livemint-dhamini-ratnam-march-28-2015-sc-has-set-a-high-threshold-for-tolerance</a>
</p>
No publisherpraskrishnaIT ActCensorshipFreedom of Speech and ExpressionInternet GovernanceChilling Effect2015-03-28T16:18:18ZNews ItemRuling in India shields Web posts
http://editors.cis-india.org/internet-governance/news/boston-globe-march-25-2015-annie-gowen-ruling-in-india-shields-web-posts
<b>The Supreme Court in India struck down a section of its country’s information technology act Tuesday that had made it illegal for anyone to spread ‘‘offensive messages’’ on electronic devices and resulted in arrests over posts on Facebook and other social media.</b>
<p style="text-align: justify; ">This is the modified version of the article originally published by <a class="external-link" href="http://www.washingtonpost.com/world/indias-supreme-court-strikes-down-law-that-led-to-facebook-arrests/2015/03/24/9ca54e3c-608f-46d7-a32a-57918fdd9c35_story.html">Washington Post</a> and mirrored in <a class="external-link" href="http://www.bostonglobe.com/news/world/2015/03/24/india-supreme-court-strikes-down-law-that-led-facebook-arrests/ssYxzhVXjSEkYgS8W4qwDN/story.html">Boston Globe</a>. Sunil Abraham is quoted. <i>Picture by Manjunath Kiran, AFP.</i></p>
<hr style="text-align: justify; " />
<p style="text-align: justify; ">The Supreme Court in India struck down a section of its country’s information technology act Tuesday that had made it illegal for anyone to spread ‘‘offensive messages’’ on electronic devices and resulted in arrests over posts on Facebook and other social media.</p>
<p style="text-align: justify; ">Supreme Court Judge Rohinton Fali Nariman wrote in the ruling that the section of the law, known as 66A, was unconstitutional, saying the vaguely worded legislation had wrongly swept up innocent people and had a ‘‘chilling’’ effect on free speech in the world’s most populous democracy.</p>
<p style="text-align: justify; ">‘‘Section 66A is cast so widely that virtually any opinion on any subject would be covered by it,’’ the judge wrote. ‘‘If it is to withstand the test of constitutionality, the chilling effect on free speech would be total.’’</p>
<p style="text-align: justify; ">India had first passed its Information Technology Act in 2000, but stricter provisions were added in 2008 and ratified in 2009 that gave police sweeping authority to arrest citizens for their personal posts on social media, a crime punishable for up to three years in jail and a fine.</p>
<p style="text-align: justify; ">Sunil Abraham, the executive director of the Center for Internet and Society in Bangalore, said that the section was originally intended to protect citizens from electronic spam, but it did not turn out that way.</p>
<p style="text-align: justify; ">‘‘Politicians who didn’t like what people were saying about them used it to crack down on online criticism,’’ he said.</p>
<p style="text-align: justify; ">In the end, there were more than 20 high-profile arrests, including a professor who posted an unflattering cartoon of a state political leader and an artist who drew a set of cartoons lampooning the government and Parliament.</p>
<p style="text-align: justify; ">The most well-known was the case of two young women arrested in the western town of Palghar after one of them posted a comment on Facebook that argued that the city of Mumbai should not have been shut down for the funeral of a famous conservative leader. A friend, who merely ‘‘liked’’ the post, was also arrested. After much outcry, the two were released on bail and the charges eventually dropped.</p>
<p style="text-align: justify; ">The case of the ‘‘Palghar Girls’’ inspired a young law student, Shreya Singhal, to take on the government’s law. Singhal became the chief petitioner for the case, along with other free speech advocates and an Indian information technology firm.</p>
<p style="text-align: justify; ">‘‘It’s a big victory,’’ Singhal said after the ruling. ‘‘The Internet is so far-reaching and so many people use it now, it’s very important for us to protect this right.’’</p>
<p style="text-align: justify; ">Singhal and other petitioners had also argued that another section of India’s technology act that allowed the government to block websites containing questionable material were also unconstitutional, but the court disagreed, saying there was a sufficient review process in place to avoid misuse.</p>
<p style="text-align: justify; ">Free speech in India is enshrined in the country’s constitution but has its limits. Books and movies are often banned or censored out of consideration for religious and minority groups.</p>
<p style="text-align: justify; ">In 2014, a conservative Hindu group persuaded Penguin India to withdraw a book on Hinduism by Wendy Doniger, a professor of religion at the University of Chicago, from the Indian market. And more recently, the government of India blocked a planned television debut of a documentary film on a 2012 gang rape case, ‘‘India’s Daughter.’’</p>
<p style="text-align: justify; ">Along with India, other nations have sharply increased monitoring and crackdowns on perceived insulting Web posts in recent years.</p>
<p style="text-align: justify; ">Across the Gulf Arab states, dozens of activists have been arrested for social media posts considered insulting to the country’s rulers or tarnishing the national image.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/news/boston-globe-march-25-2015-annie-gowen-ruling-in-india-shields-web-posts'>http://editors.cis-india.org/internet-governance/news/boston-globe-march-25-2015-annie-gowen-ruling-in-india-shields-web-posts</a>
</p>
No publisherpraskrishnaIT ActCensorshipFreedom of Speech and ExpressionInternet GovernanceChilling Effect2015-03-27T00:38:34ZNews Item