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All Posts | Sep 20,2019

Kerala High Court Declares ‘Right to Access Internet’ as a Fundamental Right

Kerala High Court Declares ‘Right to Access Internet’ as a Fundamental Right

The Kerala High Court in a monumental decision has held ‘Right to Internet Access’ as a fundamental right. The Court declared that the right to have access to Internet becomes the part of right to education as well as right to privacy under Article 21 of the Constitution of India.

The petition was filed by Faheema Shirin, a hostel resident and student of Sree Narayana College, Chelanur, Kozhikode against the discriminatory girls’ hostel rules, specifically banning use of mobile phones from 6 PM to 10 PM which restricted them from accessing internet. The petitioner was subsequently arbitrarily expelled from the hostel on protesting against the rules.

Delhi based not-for-profit legal services organisation SFLC.in (Software Freedom Law Centre, India), intervened in the matter for the petitioner. In the counter-affidavit filed, SFLC.in brought to Court’s notice the arbitrary, unlawful and unconstitutional restrictions imposed on the female residents by the hostel authorities, specifically violations of Articles 14, 19(1)(a) and 21 which provide rights to equality, information and personal liberty. Restricting use of digital devices hampered the girl students’ ‘ability to access and use digital resources to learn and communicate’, thus putting them at serious disadvantage compared to their male counterparts.

Further, the invasive practices of confiscating the digital devices of students as violative of their Right to Privacy which was acknowledged as a fundamental right by the Supreme Court in J. K.S. Puttaswamy V. Union of India in 2017. Further, various state and central government policies and initiatives to digitise educational resources like SWAYAM platform were also presented.

Further, on women empowerment and anti-discriminatory practices, the Court relied on UN General Assembly Resolution dated 24th June, 2013; the Beijing Declaration and Apex Court Judgment in Vishaka v. State of Rajasthan & Ors. The Court, vociferously, stated while referring to attempts to discipline students ‘...who attained majority and those who want to enforce discipline as their guardian angels should be conscious of the need of the hour to get the children armed with the modem technique(s)’. Finally, the Court directed the respondent hostel to re-admit the petitioner without further delay.

The Hon’ble single judge bench of Justice PV Asha said, “the enforcement of discipline shall not be by blocking the ways and means of the students to acquire knowledge. They should be left to choose the time for using mobile phones. The only restriction that can be imposed should not cause any disturbance to other students.” Court while discussing the benefits of internet access using mobile phones stated that, apart from the facilities to read e-news, e-books, etc. one can undergo online courses also sitting at home or hostel. While acknowledging the importance of technology expressed, ‘...it is pertinent to note that rules and regulations require reforms to cope up with the advancement of technology and the importance of modem technology in day to day life’ and ‘it should be left to the students to choose the time for using mobile phone’.

We intervened in the case because it was about protecting digital freedom, free speech and against censorship. I am glad that the court ruled in favour of the student and thus upheld the right to use the Internet as a fundamental right,” SFLC.in executive director Sundar Krishnan

The decision holds a significant bearing on promoting innovation and open access to knowledge and civil liberties for citizens in the digital world.

The judgement can be found below.

 

 

All Posts | Apr 04,2019

A Look at Party Manifestos for the 17th Lok Sabha Elections- Will Political Parties Defend Our Digital Freedom?

The 7-phase, 17th Lok Sabha elections will begin on April 11, 2019 and continue until May 19, 2019. Five major national parties – Indian National Congress, Bharatiya Janta Party, Communist Party of India (Marxist), Communist Party of India and All India Trinamool Congress have released their manifestos[fn]CPI (M) Election Manifesto, https://cpim.org/pressbriefs/cpim-election-manifesto-17th-lok-sabha;

CPI Election Manifesto, https://www.communistparty.in/blog/election-manifesto-of-the-communist-party-of-india-for-the-17th-lok-sabha-elections-2019;

TMC Election Manifesto, http://aitcofficial.org/wp-content/uploads/2019/03/TMC-MANIFESTO-Eng.pdf;

INC Election Manifesto, https://manifesto.inc.in/en/index.html

BJP Election Manifesto, http://www.documentcloud.org/documents/5798075-Bjp-Election-2019-Manifesto-English.html[/fn], outlining party priorities and future course of action the parties promise to take if voted to power. At of the time of publication of this post, Aam Aadmi Party has not released its manifesto. We will update this blog as and when it is published. Acknowledging the indispensable role of digital technology in society and its capacity to impact our human rights, most party manifestos have touched upon digital rights.

We studied these manifestos and have captured promises made by these five national parties on digital rights. Kindly refer to the following table for a comparison:

All Posts | Mar 07,2018

SFLC.in at the Internet Freedom Festival, 2018

The 2018 edition of the Internet Freedom Festival (IFF) is being held from March 5 - 9 in Valencia, Spain. IFF is an annual gathering that brings together those who defend digital rights around the world – journalists, activists, technologists, policy advocates, digital safety trainers, and designers – to build an inclusive space for knowledge sharing, increase diversity within the Internet freedom community, and collectively aid vulnerable communities by mapping censorship, surveillance and access obstacles. Read more about the IFF here.

This year at IFF, we are organizing a panel discussion to discuss how privacy and data protection norms must adapt to the advent and widespread use of biometric technology. The session is titled "Privacy and Data Protection in the Age of Biometrics", and will take place on Wednesday, March 7, 2018 from 12:15 - 1:15 PM in the theater at Las Naves Innovation Center. We have a great panel of experts from across the multi-stakeholder community sharing their views and experiences on the issue, so make sure to stop by if you're attending the IFF. Additional details regarding the session are available here.

We will also be at the expo area from 2:00 - 4:00 PM on Tuesday, March 6, 2018. You can say hello to Priyanka Chaudhuri from our team there, who will be happy to answer any questions about our work.

 

All Posts | Dec 23,2017

SFLC.in at Internet Governance Forum 2017

The twelfth annual meeting of Internet Governance Forum (IGF) was held in Geneva, Switzerland at the UN Office at Geneva (UNOG) from 18 to 21 December, 2017. The theme for the meeting this year was ‘Shape Your Digital Future!’

IGF is a global multi-stakeholder platform to facilitate inclusive, productive discussions on Internet related public policy issues from a general perspective. The purpose of IGF is to maximize the opportunity for open and inclusive dialogue and the exchange of ideas on Internet governance related issues; create opportunities to share best practices and experiences; identify emerging issues and bring them to the attention of the relevant bodies and the general public; contribute to capacity building for Internet governance.

SFLC.in was represented by Mishi Choudhary, President and Founding Director at the annual forum. She participated as a speaker at the following sessions:

  • WS 129: Making artificial intelligence (AI) work for equity and social justice (20th December, 15:00-16:30):
    This session was organised by Just Net Coalition in collaboration with Social Watch. This workshop discussed various pertinent issues such as what humans can expect from AI systems and how to control them, the ethical and regulatory commands that can be inculcated into upcoming technology, amongst others.
    The official transcript of the session can be accessed here.
  • WS 8: Open Source: Defending Freedoms in the Digital Future (20th December, 11:50-13:20):
    This session was co-organised by ISOC-TRV and FOSS Foundation for Africa. The session had detailed discussions in three breakout groups on following topics: (1) tools and technologies provided by FOSS; (2) methodologies, processes and best practices in dealing with the processes of content generation, validation and distribution; and (3) policy initiatives. The session comprised of following speakers:  Mishi Choudhary, Glenn Mcknight, Sarah Kiden, Olivier Crepin-Leblond, Panayotis Antoniadis, Oktavia Hrund and Nicolás Echániz.
    The official transcript of this session is available here.
  • WS 154: The Distributed Denial of Democracy: Threats to Democratic Processes Online (21st December, 10:40 - 11:40)
    Center for International Private Enterprise (CIPE) in collaboration with National Democratic Institute (NDI) organised this session.  This panel highlighted a number of threats to online democracy and effective solutions for addressing those threats. The panelists for this session included Hanane Boujemi, Martha Roldos, Chris Doten, Jehan Ara, Mishi Choudhary and Matt Chessen.
    The official transcript of this session is available here.

All Posts | Dec 03,2015

How Have Internet Shutdowns Impacted Your Life? – The Huffington Post

With the advent of the internet, the global communications landscape has undergone a number of dramatic changes. Not only has the internet made communications technology more universal and affordable, it has also provided a whole new platform for self-expression bundled with elements of decentralisation and anonymity, making it one of the most powerful tools for political discourse in the 21st century. This also means that the internet has been increasingly targeted for control, and complete regional shutdowns of the public internet are frequently resorted to in parts of the world.

Between 2013 and 2015, access to the public internet has been blocked nine times across four Indian states. Annual instances of shutdowns climbed from one in 2013 to two in 2014 and six in 2015. Jammu & Kashmir saw the highest number of shutdowns with four instances over 2013, 2014 and 2015, followed by Gujarat with three internet clampdowns over 2014 and 2015. Nagaland and Manipur had internet shutdowns enforced once each in 2015.

While most shutdowns were instituted in the interest of maintaining law and order under the threat of widespread violence, the process followed remains shrouded in uncertainty. Despite there being a detailed procedure laid down by India's Information Technology Act to block public access to online content under specified circumstances, this is often discarded in favour of blanket shutdowns, which may be easier to implement in the short term, but come with collateral damage in terms of non-access to essential services that depend on the internet for their functioning. In 2011, the Organisation for Economic Co-operation and Development (OECD) estimated that a complete five-day internet shutdown in Egypt resulted in direct costs of at least USD 90 million. A 2015 study by the Germany-based Centre of Internet and Human Rights on "The Impact of Mobile Network Shutdowns in Pakistan" stresses how "Network shutdowns are a fundamental risk, not just to freedom of expression, national or personal security or business operations, but also to the most fundamental of sustainable development challenges faced by all state.

We invite readers to narrate their stories of how the shutdowns impact their day to day lives and business. A record of such shutdowns can be found at the website of the Software Freedom Law Centre.

This article first appeared on The Huffington Post (India Edition) on 2nd November 2015.

Photo byStahlkocher / CC BY-SA 3.0 EDIT: And updated version of the Infographic is available here. [19/02/2016]

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 | Jun 11,2012

Vimeo Block Not Ordered by DOT

Many websites like Vimeo.com, pastebin.com and thepiratebay.se have been blocked in India for nearly a month now. The message shown on trying to access the blocked sites on the Airtel network is "This website/URL has been blocked until further notice either pursuant to Court orders or on the Directions issued by the Department of Telecommunications". Intrigued by this message which does not specify the reason for the block, SFLC.in filed an application under the Right to Information Act on May 14, 2012 to the Department of Telecommunications(DOT). We requested the information as to whether any orders have been issued by the DOT for blocking such websites.

We have received a response today from the DOT which states that "As per available information no blocking instruction to block websites like Pirate-bay and Vimeo etc. has been issued by the Department of Telecommunications to Internet Service Providers (sic)".News reportssuggest that these blocks have been carried out to comply with interim injunctions styled as John Doe orders issued by the Chennai High Court in a suit filed by the producers of the Tamil movie "3".

Watch this space for more information as the internet users continue to ask "Why this kolaveri di..."

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