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All Posts | Jan 24,2013

Freedom after expression…

Sflc.in participated in the Third South Asian Meeting on the Internet and Freedom of Expression which was held in Dhaka, Bangladesh from 14-15 January 2013 . The focus of the meeting was on the increasing instances of hate speech and the issue of cyber security and surveillance. There were participants from Sri Lanka, Pakistan, Maldives, Nepal, India and the host country of Bangladesh.

It was an enlightening experience to learn about the experiences of those working in the area of Freedom of Expression in other countries in the region. The bottom line of the discussion was that in the region the issue was not Freedom of Expression, but Freedom after expression, or in other words, the security of the person who makes the expression. Unfortunately, the participants were in for a rude shock when in the late hours of the first day of the meeting, we came to know that Asif Mohiuddin, a popular Bangladeshi blogger was stabbed. The incident underlined the fact that true freedom of expression exists only when there is space for unpopular or diverging views.

Now let me give a brief overview of the topics discussed. The first two sessions focused on the issue of hate speech on the Internet. The report on hate speech by the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue was the basis for the discussion. Dixie Hawtin of Global Partners & Associates dwelt on the importance of the medium in protecting Freedom of Expression. There was also a discussion on the notion of harm and how that is an important element in devising whether expression can be classified as hate speech. It was pointed out that criticism of politicians will definitely not come under the definition of hate speech.

Professor K.S.Park from South Korea explained the 'clear and present danger' test for identifying hate speech. However, this may not be applicable in all countries and in India, the courts have held the test to be not applicable here. Tahmeena Rahman who works with the organisation called Article 19 explained the seven -tier test proposed by their organisation for identifying hate speech.

The session on cyber security and surveillance was interesting with tools like WireShark and technologies like Deep Packet Inspection being mentioned. I opined during the discussion that it is important to introduce encryption and privacy protection technologies to the public. I also introduced the Freedom Box project and explained how that could be the answer to many of our privacy worries.

A topic which evinced considerable interest from the participants and a lively discussion was the issue of anonymity. Pros and cons of user anonymity was discussed. Prof.Park explained the problem of user registration and privacy by showing how the user details of a large number of Koreans were compromised by a security breach and how the information was put up for sale. Rohan Samarajiva raised a contrary point and said that user details are often important in tracking criminals and many crimes are now solved using details of phone conversations.

Well, if you thought Section 66A of the Information Technology Act in India was bad, you have not seen the ICT Act of Bangladesh. Mohammad Shahriar Rahman introduced the provisions in the Act. Section 57 of the Act is produced below: 57. Punishment for publishing fake, obscene or defaming information in electronic form.--
(1) If any person deliberately publishes or transmits or causes to be published or transmitted in the website or in electronic form any material which is fake and obscene or its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, or causes to deteriorate or creates possibility to deteriorate law and order, prejudice the image of the State or person or causes to hurt or may hurt religious belief or instigate against any person or organization, then this activity of his will be regarded as an offence. (2) Whoever commits offence under sub-section (1) of this section he shall be punishable with imprisonment for a term which may extend to ten years and with fine which may extend to Taka one crore

It is interesting to note that in the case of defamation through any other medium the maximum term of imprisonment under the Penal code is two years. Treating the medium of Internet differently from other medium is not an India- specific issue and seems to be an issue in the entire region.

Aditya Prakash Rao introduced the issues related to jurisdiction in the case of cloud based data transfer and the importance of Mutual Legal Assistance Treaties(MLATs).

The meeting concluded with a public function attended by Hasanul Haq Inu, the Minister of Information in the Government of Bangladesh. The Minister made an interesting pronouncement where he said his Government plans to make the right to access to the Internet a fundamental right. The meeting issued a statement condemning the attack on Asif Mohiuddin and requesting the Government to bring the perpetrators of the crime to justice at the earliest.

 

All Posts | Jul 02,2012

When Copyright Tramples on the Right to Freedom of Expression

Vimeo, Pastebin, Piratebay and many other sites were blocked for over a month in India. There was lot of clamour in the twitterverse and social networking sites against the Internet Service Providers (ISPs) and the Department of Telecommunications (DOT) on this large scale website blocking. However, areply that SFLC.in has received from MTNL in response to an application under the RTI Act reveals the real picture. The reply shows how agents of copyright owners have misrepresented the Court order and forced ISPs to block these websites.

MTNL has furnished acopy of the letter that they received from Copyright Labs, the agents for M/s Creative Commercials Media & Entertainment Limited who are the the producers of the movie "Dammu". Copyright Labs have in the letter demanded that the ISPs block a long list of 272 websites including vimeo.com, pastebin.com and xmarks.com citing the Chennai High Court order. This is a clear misrepresentation of the court order as the order does not require blocking of websites. Earlier, areply that SFLC.in receivedfrom DOT showed that DOT had not issued any order to block websites.

 

A reply that SFLC.in has received from MTNL in response to an application under the RTI Act reveals the real picture.

The order in the suit filed by M/s Creative Commercials Media & Entertainment Limited restrains 38 Internet Service Providers (ISP) including MTNL, BSNL and Airtel and unknown persons named as "Ashok Kumar" from infringing the copyright by copying or communicating or allowing others to communicate or copying the movie. The orders with directions to unknown persons are often termed as John Doe orders or as Ashok Kumar orders in India. Such orders are issued when suspected offenders are unknown. This ensures that the copyright owner is not forced to approach the court to obtain an injunction every time the identity of an offender is known.

The Chennai High Court had also issued temporary injunctions in a suit filed by RK Productions, the producers of the movie "3". It is ironical that the movie "3" which derived maximum publicity from its song "kolaver di" having gone viral on social media and content sharing networks has now become the reason for blocking those very websites which ensured the wide distribution of the song and made it a roaring success. MTNL has stated in the reply that they received a letter from RK Productions, but they have enclosed the letter sent by Copyright Labs on behalf of Creative Commercials Media & Entertainment Limited.

Now, the question to be asked is whether such indiscriminate blocking of websites is mandated by the order of the Chennai High Court. The order restrains the ISPs as well as unknown persons from infringing the copyright or allowing others to infringe. The order does not have any direction on blocking of websites. SFLC.in contacted Mr.Harish Ram, CEO of Copyright Labs and he assured us that they have only asked the ISPs to block specific URLs that are infringing on their copyright. However, we filed this RTI request to verify this and the copy of the letter that they have sent to ISPs shows that what he said is not true. Their action in asking for blocking of entire websites is a mis-representation of a judicial order to cause indiscriminate blocking of these web-services through out the country.

The ISPs have chosen not to take a risk and have over-complied with the High Court order by blocking entire websites instead of taking down only the infringing content. The uncertainty that is prevailing about the safe harbour provisions, thanks to the problematic Information Technology (Intermediaries Guidelines) Rules, 2011 and the pending cases against Google and Facebook could have prompted them to take the safer option than to stand up for the rights of their users. This does not bode well for Internet freedom in India and is an ominous sign of things to come.

The Chennai High Court by a subsequent order dated June 15, 2012 clarified that the John Doe order issued to the producers of the movie "Dammu" is "only in respect of the particular URL where the infringing movie is kept and not in respect of the entire website". We hope that this clarification would stop further instances of indiscriminate blocking of websites. However, we find that the Piratebay is blocked even now in most networks.

The Supreme Court has held the right to receive information to be an ingredient of the fundamental right of freedom of speech and expression. When this right of the citizens are violated by such indiscriminate blocking of websites, it does not augur well for the largest democracy in the world.

This instance of blocking underlines the need for the law to prescribe penalties for sending such inappropriate blocking requests. This could be considered when the Government reviews the Information Technology (Intermediaries Guidelines) Rules, 2011 as promised by Kapil Sibal, the Minister for Communications & Information Technology in the Parliament.

Copyright owners need to understand the importance of the medium in popularising and monetising their work and should not take such ill advised action that affects this dynamic medium which is on an exponential growth path in India.

All Posts | Mar 28,2012

Dear Government, Please Go Back to the Drawing Board

Shri. P.Rajeeve, MP representing Kerala in the Rajya Sabha has moved a statutory motion to get the Information Technology (Intermediary Guidelines) 2011 annulled.This motion has been admittedand will be coming up before the Rajya Sabha soon. We thank Shri.P.Rajeev who took a keen interest in this issue by participating in discussionsinsideandoutsidethe parliament, spent time in understanding SFLC.in's submissions given to him explaining the need for moving an annulment and filed this motion.

The motion is reproduced below:

STATUTORY MOTION

The following Motion given notice of by Shri P.Rajeeve, M.P. has been admitted in the following form:

"That this House resolves that the Information Technology (Intermediaries Guidelines) Rules, 2011 issued under clause (zg) of sub-section (2) of Section 87 read with sub-section (2) of Section 79 of the Information Technology Act, 2000 published in the Gazette of India dated the 13th April, 2011 vide Notification No. G.S.R 314(E) and laid on the Table of the House on the 12th August, 2011, be annuled; and

That this House recommends to Lok Sabha that Lok Sabha do concur on this Motion."

Why Annulment?

The Intermediary rules have resulted in a mechanism whereby intermediaries like Google and Facebook receive protection from legal liability in return for trading away the freedom of expression and privacy of users. The rules require the intermediaries to initiate action for taking down the content within 36 hours of receiving a complaint. The rules also require the intermediaries to provide the Government agencies information of users without any safeguards.

 

The rules in the current form are ultra-vires of the parent Act and are also violative of the Constitution of India. The rules violate the right to freedom of speech and expression and the right to privacy of citizens guaranteed by the Constitution of India. The rules are also ambiguous and arbitrary. The rules are disjointed, legislate on disparate areas and are beyond the rule-making power of the Government. The piecemeal drafting of various important issues clubbed together under one heading make it impossible to amend the rules and come with anything which clear, workable and operational either for the public or the Industry. Thus, leaving annulment as our only option. The Government needs to introduce new rules which are in line with the parent act, the Constitution as well as other legislations. This can be achieved by holding a true multi-stakeholder discussion. The Government while coming out with new rules should restrict themselves to prescribing guidelines for the intermediaries in relation to their duties as laid down by the parent act

The following documents explain the issue in detail:

FAQ on IT Intermediary Rules eBook - "Intermediaries, users and the law - Analysing intermediary liability and the IT Rules "

We appeal to everyone to petition their parliamentarians to support the motion.

Links to media stories on the rules:

Concern over impact of Internet control rules on free speech

India Puts Tight Leash on Internet Free Speech

Indian web rules risk curbing info flow-Google India Asks Google, Facebook to Screen User Content Indian Govt. Readies Battle Against "Offensive" Content on Web Google, Facebook fight offensive content lawsuit New rules reinforce Internet control and surveillance That’s the unkindest cut, Mr Sibal

All Posts | Dec 12,2011

RTI Reply Reveals Delhi Government’s Plans to Monitor the Internet

Sflc.in after a long procedure involving multiple RTI applications and complaint before the Central Information Commissioner could get access to a copy of the draft Regulation (Control and management of internet information) 2010(sic) of the State Government of Delhi. This draft reveals the attempt of the government to legalise monitoring of information on the the Internet and this raises serious questions of surveillance in the light of therecent reports in the mediabased on spy-files released by Wikileaks.

Under this regulation the Secretary, Department of IT is authorised to issue orders regarding monitoring of information. The regulation provides for an Advisory Board that will approve the permissions issued pertaining to interception, monitoring and decryption of information. Also, it gives power to the Secretary (IT) to order the intermediaries to provide certain information for welfare of people. The regulation also gives the state government the power to install Internet content monitoring system.

After going through the Bill (yes, that is what the first page of the draft says), we have identified following irregularities and shortcomings -

1. The draft empowers the Secretary, Department of IT to issue orders regarding monitoring of information. However as per theInformation Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules 2009, in the case of a state government the Secretary in charge of the home department is the 'Competent Authority' to issue such orders and this competent authority may authorize an agency of the government to intercept, monitor or decrypt information. The Rules also provide for a review committee constituted under rule 419 A of the Indian Telegraph Rules, 1951. As per these rulesthe review committee to be constituted by a State Government shall consist of the following ; namely;


a) Chief Secretary. b) Secretary Law/ Legal Remembrance In charge, Legal Affairs,

c) Secretary to the State Government ( other than the Home Secretariat).

Thus, the state government's draft regulation contradicts the rules issued by the central government. As theInformation Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules 2009specifically provide for a competent authority in the case of a state government as well as procedure and safeguards to be followed in monitoring, the need for such a legislation by the state government itself is unclear. Moreover, when the rules have a specific provision for a review committee, there is no requirement for the draft regulation to have a provision for constituting an advisory board.

The Hon'ble Supreme Court has held in Addl. District Magistrate (rev.) v. Siri Ram,(2000) 5 SCC 451,thatthe conferment of rule making power by an act does not enable the rule making authority to make a rule which travels beyond the scope of the enabling act or which is inconsistent there with or repugnant thereto. The draft regulation goes beyond the scope of the parent Act as Section 87 (2)(y) empowers only the central government to make rules regarding theprocedure and safeguards for interception, monitoring and decryption of information.

2. The provision in section (sic) 6 which mentions installation of contempt (sic) control solution with respect to chat room indices on the internet is a clear violation of a person's privacy because in the modern day chat is the quickest and one of the most effective medium of communication on which users share their personal and sensitive information and putting a tap on that is like tapping phones of each and every mobile phone user. Such a monitoring mechanism will be a clear violation of the right to privacy and against the Supreme Court's dicta on monitoring telephone conversations in the PUCL case.

3. Section(sic) 7 of the draft regulation makes it lawful for the state government to install internet content monitoring system. This is a dangerous situation that empowers the state government to listen to any transaction on the internet. This is all the more scary on account of therecent reports in the mediaregarding wire tapping of the internet by governments.

The draft regulations show the attempt of the Delhi government to have an Internet monitoring system which could pose a grave danger to the fundamental rights of citizens. The draft could be unconstitutional as it affects the right to privacy of citizens and could also be ultra vires of the parent Information Technology Act, 2000. The Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules 2009 provides sufficient powers to state governments to monitor internet and these rules also have adequate safeguards to protect the interests of the citizens. The attempt of the Delhi Government to introduce these regulations is an unwarranted exercise and is an intrusion on citizens' digital freedom .

All Posts | Dec 12,2011

Backdoor Censorship Alias Intermediary Pre-Screening

Kapil Sibal's diktat to social networking sites to pre-screen user generated content has generated a fresh debate on the issue of freedom of expression. The Minister in an interview to the Hindu clarified that the intention was to block incendiary communal material posted on these sites. The minister further insists on the need to have standards on content that will be considered acceptable. sflc.in has the following observations on the issue.

1. Why the government is not above the law?
The Minister's demand for pre-screening of user generated content is not supported in any way by any Act or Rule. The demand is nothing other than bullying these social media sites to submit to the Government's demands and is plainly illegal. Such an action by the Government will not be a "procedure established by law", be clearly arbitrary and will not stand judicial scrutiny. In an interview given to IBNlive on December 9, 2011, the minister clarified that " I want the solution today and not wait for a long legal procedure. Any legal remedy will be absolutely impractical." Seriously, when it becomes onerous, let's resort to bullying? He further insisted that "The platforms are failing to live up to the law that they are themselves enforcing in their own country," Exactly Mr Minister, which country's law are we subject to?

2. The act is against international norms and standards. Almost all democratic countries, from the members of the European Union to the US(DMCA & Communications Decency Act) follow the principle of providing intermediaries protection from liabilities arising out of user generated content. This is also the principle behind Section 79 of the Information technology Act, 2000. Frank La Rue, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression in his report to the General Assembly states that "censorship measures should never be delegated to a private entity, and that no one should be held liable for content on the Internet of which they are not the author".

3. Technical impossibility Social media sites like Facebook and Twitter and blogging sites like Blogspot and Wordpress have millions of users and is humanly impossible to pre-screen each and every post on these sites. A report on Economic times states the number of users of Facebook in India at 43 million while Twitter and Google + have 3.5 million users each. The content uploaded by this user base on these sites ranging from text to images to video is so huge that it would require a huge work force to monitor and pre-screen this content. It is estimated that there are 140 million tweets posted on twitter per day, 250 million photos are uploaded per day on Facebook and 48 hours of video are uploaded every minute on on Youtube. The pre-screening process will also require these sites to modify the software running them to provide for a monitoring mechanism. Thus, mandating pre-screening of content is a technical impossibility and making the intermediaries liable for non-compliance with such directives is highly arbitrary.

4. Pre-screening is unconstitutional
A major concern here is the direct effect that such a pre-screening will have on freedom of speech and expression of citizens. The Supreme Court has held in Bennett Coleman case that while considering the constitutionality of a statue "The true test is whether the effect of the impugned action is to take away or abridge fundamental rights". It is true that freedom of speech is not absolute in India when compared to the 1st Amendment provision in the US, and reasonable restrictions can be imposed on it under Article 19(2) of the constitution. However the Courts have held that'if any limitation on the exercise of the fundamental right under Art. 19(1)(a) does not fall within the four corners of Art. 19(2) it cannot be upheld'. Pre-screening of user generated content with its wide discretion of what could be considered unacceptable content will surely result in violation of the fundamental rights of free speech. The Supreme Court has held in Brij Bbhushan v State of Delhi 1950 AIR 129 that pre-censorship of news paper content is unconstitutional. This would hold true in the case of online media too as the Internet is now a medium for public debate and discourse.

5. Private entities cannot be saddled with adjudicative functions Asking Facebook or Google to decide whether any content is unacceptable is akin to asking them to adjudicate on a legal dispute. These entities are least equipped to decide what constitutes defamation or hate speech and hence there is every chance that they will err on the side of caution and censor content which could be perfectly legal. This will have a chilling effect on free speech as evidenced by the sting operation carried out by CIS.

6. Destroying the crops while clearing the weeds The act of curbing the freedom of citizens in the light of a few isolated alleged instances of defamation against the Congress president or the Prime Minister is unacceptable and goes against the basic ideals cherished by the framers of our Constitution. It has been held in Romesh Thappar vs The State Of Madras, 1950 AIR 124 that ..

"Thus, very narrow and stringent limits have been set to permissible legislative abridgement of the right of free speech and expression, and this was doubtless due to the realisation that freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible. A freedom of such amplitude might involve risks of abuse. But the framers of the Constitution may well have reflected, with Madison who was "the leading spirit in the preparation of the First Amendment of the Federal Constitution," that "it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits.".

7. The right to have a dissenting view is important in a democracy.
The question of whether some content could be considered incendiary should not be based on how it could affect a person who is easily swayed. In the Tamas case the Supreme court held that the "effect of the words must be judged from the standards of reasonable, strong minded, firm and courageous men, and not those of weak and vacillating". The Government, here, instead of taking a firm stand on the issues of communal posting has in fact acted in a weak, yielding manner in trying to stifle freedom of expression altogether. Recently, there have been many instances of banning books or films on the flimsy reason that these could create law and order problems.

8. The intermediary rules are bad and this is worse The intermediary rules notified in April 2011 have resulted in back-door censorship of user generated content by its broad list of descriptions of unacceptable content that includes disparaging, blasphemous, grossly harmful and harassing. Various civil society organisation including sflc.in have been campaigning to get the rules amended and it is surprising to find that the Government has now gone one step ahead and come out with a proposal to pre-screen content. The rules by using vague expressions like blasphemous, grossly harmful, hateful and disparaging, without any legal basis in the parent act or other statutes, results in broadening of what is considered unacceptable content and forces the intermediaries to censor even legitimate content. The rules also affect the privacy of citizens by including provisions for government agencies to gain access to user information on a mere written request, without any safeguards against misuse, as mandated by the Supreme Court in the PUCL telephone tapping case. sflc.in has submitted a representation to the Parliamentary Committee on Sub-ordinate legislation which would review the rules.

We hope that the Government would reconsider the proposal and engage with various stake-holders to keep the Internet free and open.

All Posts | Jul 08,2011

FAQ on Intermediary Rules

The Central Government notified the Information Technology (Intermediaries Guidelines) Rules, 2011 in April, 2011. The rules which seek to control the intermediaries end up controlling the actions of users. As these rules attempt to cover a wide range of activities through a duplicate, complicated structure, neither the industry nor the end users are able to understand the boundaries of their rights and duties. This FAQ aims at making these rules easy to understand and at sensitising the beneficiaries to the problems that the rules raise.

Who are intermediaries?

Intermediaries are entities that provide services enabling the delivery of online content to the end user Let us look at the players involved in this chain:

Internet Service Providers(ISP) - ISPs like Airtel and MTNL help users to get connected to the internet by means of wired or wireless connections.

Search engines - These are web sites like Google and Bing that help users to search for specific information on the web and provide links to web-sites having content relevant to the search terms given bye the user.

DNS providers - These service providers translate the domain names(eg. www.sflc.in) to addresses (eg. 64.202.189.170) that can be understood by computers.

Web hosts - These are service providers like Godaddy.com that provide space on server computers to place files for various web sites so that these sites can be accessed by users

Interactive websites: This includes social media sites like Facebook and Twitter that act as platforms to store and retrieve content, blogging platforms like Blogspot and Wordpress, auction sites like eBay, and payment gateways like PayPal. The pictorial representation gives an overview of the intermediaries involved in a common internet transaction.

Cyber Cafes - It means any facility from where access to the internet is offered by any person in the ordinary course of business to the members of the public. The Information Technology Act, 2000 includes cyber cafes also under the ambit of the definition of intermediaries.

What is intermediary liability?

Interactive websites like blogging platforms, social media and e-auction sites host user-generated content. Sometimes content posted by users could be illegal like content infringing on someone's copyright or pornographic content. Some acts/laws impose liability on these platforms for hosting /publishing such "illegal" content , irrespective of the fact that the content was not generated by them. This is called "intermediary liability".

For example, the Delhi High Court, in the case of Avnish Bajaj, the CEO of Baazee.com, the e-auction site where a user had put a pornographic MMS for sale, found that the website which hosted the MMS could be held to be liable for 'Sale etc... of obscene books' under Section 292 of IPC as well as Section 67 of IT Act, 2000 relating to publishing of information which is obscene in electronic form.

What is meant by safe harbour protection?

The intermediaries like ISPs, web hosts, social networking sites and blogging platforms provide important tools and platforms that allow users to access the Internet, host content, share files and transact business. Websites like Blogspot, Youtube and Facebook only provide a platform for users to post their content, and do not have any editorial control over this content.

Governments across the world realised that these intermediaries must be given protection from legal liability that could arise out of illegal content posted by users, considering the importance of these intermediaries in the online space and the fact that their mode of operation was quite different from the traditional brick-and-mortar business. Countries like the US and members of the European Union, and India now provide protection to intermediaries from such user generated content. Such protection is often termed as a 'safe harbour' protection.

Do intermediaries enjoy safe- harbour protection in India?

Yes, Section 79 of the Information Technology Act, 2000 gives the intermediaries protection from liabilities that could arise out of any legal action initiated on the basis of user generated content.

The safe harbour protection available to intermediaries is conditional upon their observing "due diligence" while discharging their duties and observing guidelines issued by the Government in this regard. These guidelines have now been issued in the form of the Information Technology (Intermediary Guidelines) Rules, 2011. Hence these rules are very important from the standpoint of liability of intermediaries.

How do the intermediary rules operate?

The new intermediary rules mandate the intermediaries to impose a set of rules and regulations on users like you and me, the terms of such regulations include a broad list of categories of content which are prohibited from posting online.
Now, any person aggrieved by any content on the internet can ask the intermediaries to take down such content. Intermediaries are obliged to remove access to such content within a period of 36 hours from the time of receipt of the complaint.
The rules do not provide for the creator of the content to respond to this complaint.
In fact, the rules do not even provide for the intermediaries to inform the user who posted the content regarding the complaint.
The intermediaries which do not comply with a take-down notice loses the protection from any legal liability that could arise over the content.
If the intermediaries do not comply with these requests, they lose the safe harbour provisions of Section 79. Just like shooting the messenger for bringing bad news! The process of operation of the rules is explained in this diagram.

What is the kind of content that is restricted under the rules?

You cannot host information that is a
grossly harmful,
harassing,
blasphemous,
defamatory,
obscene,
pornographic,
paedophilic,
libellous,
invasive of another's privacy,
hateful, or racially, ethnically objectionable,
disparaging,
relating or encouraging money laundering or gambling,
or otherwise unlawful in any manner whatever,
harm minors in any way or
infringes any patent, trademark, copyright or other proprietary right.
These terms are so confusing. Are they defined anywhere?
That's a little complicated! The terms describing unlawful content are very ambiguous and are not defined either in the rules or in the IT Act, 2000. In fact most of these terms are not defined in any statute for that matter.

So, you are saying that we do not know what these terms mean? Doesn't the normal english language meaning apply to them?

The basic principle of law is that it requires certainty. We need to be told exactly what is allowed and what is prohibited in our country. This list includes terms like obscene, harrassing or infringes any patent, trademark, copyright or other proprietary right amongst others. These terms can mean different things to different people. What is obscene to a certain set of persons may be art to another. What is defamatory for one person may be political satire for others. And proving infringement of proprietary rights is decided by the Judiciary with the help of experts and businesses cannot be closed down merely on the basis of suspicion or whims.

O.K. I am bored and I am not sure if these rules affect me any way?

Well! Watch out what you post next time as your status update, it might offend someone; but in addition to regulating content the rules also deal with government's power to access user information from the intermediary and the power of the intermediary to disconnect user access.
The Rules mandate intermediaries to co-operate with government agencies and provide information to them for the purpose of verification of identity, or for prevention, detection, investigation, prosecution etc when a request has been made by the agency in writing. This power granted to the Government agencies do not have any system of checks and balances to safeguard the interests of users. The rules also mandate the intermediaries to inform the users that their services can be terminated if they violate the terms of service. So you are left to the mercy of the intermediaries , whether they want you to access the internet or not is their prerogative not yours! This provision could have far serious consequences than the three strikes legislation that has been introduced in countries like France, South Korea and Taiwan.

Will these guidelines affect interactive websites like the ones I spend most of my day on?

Definitely! The guidelines are skewed entirely against the creator of the content i.e. YOU!The rules do not place any burden on the complainant to produce evidence in support of the complaint and do not provide for any penalty on sending frivolous complaints.
The rules could soon result in intermediaries being flooded with complaints burdening them with the task of examining these.And why should they spend their precious time, money and work force on this when its easy to just take down the content or deny access to the user. Also, they are not judicial bodies who know how laws apply.
Another example, there are certain kinds of websites like online forums and service rating where the major purpose of running that website is to provide a platform to the user to express her view. Frivolous complaints could make the operation of such sites unviable.

How will these rules affect me?

back-door censorship mechanism on the internet.
curtailment of your freedom to express opinions
violation of your right to privacy as the intermediaries could be forced to part with user information without any checks and balances.
arbitrary disconnection of services to users based on frivolous complaints.
Back to where we started from, no convenient place to voice your opinions, say anything against anyone or face the ire of the authorities and watch every step you take.

Enough of this technical and legal jargon, just tell me what can I do, if I need to do anything?

Well, the Government can annul these rules and come out with new rules which will be in line with the Constitution and the Information Technology Act, 2000. Sflc.in and other organisations have already submitted their representations before the Parliamentary Committee on Subordinate legislation that can give recommendations to the Government to amend the rules. You could also send representations to the Government and the Committee requesting for an amendment to the rules.
The rules are tabled before the Parliament and you could talk to your MPs to move/support motions to get the rules annulled/amended. However, this has to be done in this budget session.
You could also blog about the rules, write articles in media and be involved in activities that would raise awareness about the issue.

All Posts | Jun 23,2011

The Caravan Injunction And How the New IT Rules Could Make It Easier for the Arindams of the World

The Caravan magazine issued a press release yesterday on the defamation suit filed by Indian Institute of Planning & Management(IIPM) against it for publishing a cover story on Arindam Chaudhury, Director of IIPM, in the February 2011 issue. The suit is filed against the magazine, Siddhartha Deb, the author of the story, Google and Penguin, the publisher of the forthcoming book, from which the article is extracted.

The magazine had to remove the article from its web site as an injunction order was passed by the Civil Court in Silchar, Assam restraining the magazine from maintaining the article in their website. The case is interesting, particularly in view of the article by Arindam Chaudhuri in "the Sunday Indian" titled "Internet Hooliganism", in which he welcomes the new Information Technology (Intermediaries guidelines) Rules, 2011 notified by the Government as it seeks to control the intermediaries and blogs. The author says "...it is not just bloggers with malicious intent, who will get dragged to the table of interrogation. Even intermediaries like all search engines and websites (which would include Google, Wikipedia, or even online payment & auction sites, social networking sites and hosted blogs), Telecom and Internet Service Providers (ISPs) and even cyber cafes, will be held liable for all harm caused to the party - individual or a body of individuals - which has lodged a complaint..."

In the Caravan case, IIPM had to approach a Court and obtain an injunction to get the article taken off from the website. The new IT rules make it so much easier for any person to get any content, which is not in his interest, to be removed from the web. The intermediary, who could be a hosting provider, a blog platform, a social networking site or an ISP will have to remove the content within 36 hours of receiving a complaint from any person regarding content posted online. In the current case, IIPM could have approached the hosting provider to get the content removed. This could soon become a censorship mechanism by which anybody who is not happy with a report on corruption, malpractice or a business fraud reported in any online magazine or blog or even a forum, could soon get it removed by filing a complaint with the intermediary. The user who posted the content does not have a remedy to get the content restored, and this makes the rules biased against the content creator. The provision for removal of content without the involvement of any judicial process has strong possibility of misuse and could severely affect the freedom of speech and expression of citizens in online media.

The quote attributed to Voltaire - "I detest what you write, but I would give my life to make it possible for you to continue to write" - encapsulates the spirit of democracy and freedom of speech. Freedom of speech and expression as well as the freedom of press are the basic foundations of a democracy and as India experienced during the period of emergency, curtailment of this freedom, could have grave consequences for a democracy. Posting of defamatory content or any unlawful matter online cannot be allowed, but at the same time, whether an act is unlawful or not has to be decided by a court of law and cannot be decided by an intermediary. Censorship of content, in any form, does not augur well for a democracy, and has to be resisted, especially when carried out by non-state actors.

All Posts | Apr 28,2011

Censored by the Intermediary

The Indian Express, during the time of emergency, published its newspaper with a blank editorial page to protest against the censorship policies of the Government. The Internet as we know in India today, will soon have a lot of blank pages, thanks to the intermediaries being forced to censor content. The Information Technology (Intermediaries guidelines) Rules, 2011 notified under the provisions of the Information Technology Act, 2000 lays downs stringent guidelines for intermediaries and threatens freedom of speech and expression on the internet.

In return for offering the intermediaries a safe harbour, the new rules demand the intermediaries to don the roles of a judge and censor. As per the Act, intermediaries include telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, on-line payment sites, on-line auction sites, on-line market places and cyber cafes. This wide list of services included in the list of intermediaries will result in a more controlled (read censored) internet. The new rules laying down guidelines for intermediaries expect the intermediaries to disable information within 36 hours, upon obtaining knowledge by itself or been brought to actual knowledge by an affected person that the information:

(a) belongs to another person and to which the user does not have any right to;
(b) is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever;
(c) harm minors in any way;
(d) infringes any patent, trademark, copyright or other proprietary rights;
(e) violates any law for the time being in force;
(f) deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;
(g) impersonate another person;
(h) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource; (i) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation.

In short, the intermediary is expected to act as the super-judge deciding what is:

Blasphemous– I thought only our western neighbour(No names, lest the web hosting company be forced to take this site off as violative of Rule 3.(2)(j) - insulting any other nation) had such rules. The Indian Penal Code does not define blasphemy. The closest offence one can find is Section 295A that deals with deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs. Defamatory, libellous– Deciding defamation/libel is no easy business for a Court of law, and the intermediary is expected to do that now. Infringement of Patent, trademark, copyright– The intermediary will soon need to have experts in every possible field to decide on infringement of intellectual property rights. Belongs to another person– any investigative reports quoting communications could come under this.

The DMCA, that governs online copyright violation in the US, provides a put-back provision to protect the interest of the user who posts the content online. The new rules do not have any put-back provision to protect the interests of the user and is thus heavily skewed against the creator of online content. In practice, the intermediaries, instead of deciding whether an information is in contravention of sub-rule(2) of rule 3, will end up disabling access to any information on receiving a take-down request, to ensure that they are not held liable. The rules, by putting restrictions on intermediaries will, in effect, would result in self-censorship and will have a chilling effect on online speech.

Although, reference to the term blogger, that was introduced in the draft rules, is not included in the notified rules, a blogger will squarely come under the definition of the term "user" and will be subject to restrictions imposed on content that can be posted on blogs and websites provided by intermediaries. The removal of content created by a blogger or any user could be a clear restriction of his freedom of speech and expression and such curtailment of freedom can only be done if it falls under reasonable restrictions imposed under Art. 19(2) of the Constitution .

The rules by forcing the intermediary to provide details of users to government agencies without any judicial order, puts the user at a risk of harassment by law enforcement agencies. The rules that mandate providing of information to government agencies on a mere written request will have major ramifications on the privacy of a citizen and will amount to "wire-tapping of the internet"

Let us consider a few instances were an intermediary could be forced to disable information posted:
Posts on Wikipedia - Many posts on Wikipedia could be considered obscene or defamatory
Wikileaks - Content posted on Wikileaks could be considered as belonging to another person and defamatory or libellous or disparaging. Intermediaries ranging from hosting providers to on-line payment sites could be forced to disable such information.
Online citizen journalism - Many topics touching on corruption could be noted to be defamatory and libellous or disparaging. Blogs - Blog posts on controversial topics ranging from insurgency to corruption could be considered violative of the rules.

The rules in the current form may be beyond the rule making power of the Government and could be unconstitutional as well as ultra-vires of the Act. The 2008 Amendment of the IT Act was a reaction to the 26/11 Mumbai attacks and these rules seem to be the result of a paranoia that seems to have gripped the Government after the developments in Tunisia and Egypt and the Wikileaks phenomenon.

Justice V.R.Krishna Iyer, while deciding a matter on the power of Government to seize a book written by Periyar EVR , a political figure and rationalist, inState of Uttar Pradesh Vs. Lalai Singh Yadav, AIR 1977 SC 202, 1976(4) SCC 213, observed:

"India is a land of cultural contrarities, co-existence of many religions and anti-religions, rationalism and bigotry, primitive cults and materialist doctrines. The compulsions of history and geography and the assault of modern science on the retreating forces of medieval ways-a mosaic like tapestry of lovely and unlovely strands-have made large and liberal tolerance of mutual criticism, even though expressed in intemperate diction, a necessity of life. Governments, we are confident, will not act in hubris, but will weigh these hard facts of our society while putting into operation the harsh directives for forfeiture. From Galileo and Darwin, Thoreau and Ruskin to Karl Marx, H.G. Wells, Barnard Shaw and Bertrand Russel, many great thinkers have been objected to for their thoughts and statements-avoiding for a moment great Indians from Manu to Nehru. Even today, here and there, die-hards may be found in our country who are offended by their writings but no Government will be antediluvian enough to invoke the power to seize their great writings because a few fanatics hold obdurate views on them."