Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India,If rule does not conform to parent statute, if it is contrary to other statutes or unreasonable, if“it offends Article 14 or Article 19 (1) (a) of the Constitution”.
India is pushing for the creation of a forum called ‘Committee for Internet Related Policies' (CIRP) to develop internet policies, oversee all internet standards bodies and policy organizations, negotiate internet-related treaties and sit in judgment when internet-related disputes come up
Internet censorship by ronak
By: Ronak Karanpuria LL.M. 1st year I.D. No. 534Under the guidance of S.B. N. Prakash
Internet censorship: Control or Suppression publishing of, or access to information on the InternetDone by:Governments or by private organizations atthe behest of government or by regulatorsReason: Political, Social & Conflict reasonsMoral, Religious, Business reasons or Legalconsequences
The basic idea of the Internet - to be able to communicate andconnect with people all over the world and say whatever we wantto say. This basic right is now severely at stake ……………………………….by Sir Tim Berners-Lee “FREEDOM” Economic - Business - marketing tool for companies Social - Relations - friends, relatives Political - Fame - politician – mass image
USA India People’s Republic of China• Federal Laws o Communications • Government Regulations on “Partially Free” Pornographic, offensive Decency Act content, violent and etc. o Childrens Internet • Information Protection Act • Internet Police Technology Act (ITA)• Censorship by • Comments, Blog and • Government institutions forums blocking requests o Schools • Watch out what o Libraries you say on the o Telecommunicatio Internet n Companies o Wikileaks
1999 — Dawn website blocked – after Kargil War website of Pakistani dailynewspaper Dawn was banned2007 — Orkut and Indian law enforcement agreement – to track defamatorycontent2011 — Websites like Typepad, Mobango, Clickatell, without warning toprevent piracy of the film Singham.2012 — 434 sites like Buydomains.com, Fabulous.com etc are blocked as aresult of government or court orders, some have been blocked by ISP.— Delhi Court issues summons to Google, Facebook for objectionablecontent.— File sharing sites Vimeo, Megaupload, Torrentz & other torrents sites etcwere banned— During Assam Violence – around 300 specific URL including websiteof Rashtriya Swayamsevak Sangh and in addition, articles from Wikipedia, andnews reports of violence in Assam on the websites of The Times of India,Firstpost, The Daily Telegraph and Al-jazeera were blocked.
Most Commonly Targeted Websites:• Pornography • Nazi and Similar Websites• Social Networks • Religious Websites• Wikipedia • Google• Wikileaks • Websites Associated• Political Blogs with Censorship Circumvention• YouTube
Indian Computer Emergency Response Team (CERT-In) constituted under IT act 2003 by executive order.“The task of oversight of the Indian cyberspace forenhancing cyber protection, enabling securitycompliance and assurance in Government andcritical sectors. ”CERT-IN is the agency that accepts and reviewsrequests to block access to specific websites. Noreview nor appeal.CERT-IN act as the sole authority for issuingblocking instructions to the Department ofTelecommunications (DOT)In 2004, CERT-In ordered to blockhttp://hinduunity.org on the grounds that itcontained anti-Islamic material that could beinflammatory
Government may not prohibit the expression of an idea simply becausesociety finds the idea itself offensive or disagreeable Section 69A IT Act, grants powers to the Central Government to "issue directions for blocking of public access to any information through any computer resource". Guidelines, per s.69A(2), "shall be such as may be prescribed". It has to be ensured that they are prescribed first, before any powers of censorship are granted to any body. Any law that gives unguided discretion on an administrative authority to exercise censorship is unreasonable (In re Venugopal, AIR 1954 Mad 901).
• Like Google, Facebook etc. and ISP responsible for the content their users upload(Intermediary liability)• Terms of service to remove content that is grossly harmful, harassing, blasphemous, defamatory, obscene, hateful, racially or ethnically objectionable, unlawful in any manner, etc.• When intermediary has the knowledge (either obtained on its own, or when it is informed by any person) that the content being hosted by the intermediary violates the Rules, it is required to initiate action for removal of such content within 36 hours or to terminate the access of the users.• Are phone operators responsible for "content" carried on their networks - or their CEOs arrested if someone made a terror threat over a phone call? No, they were simply asked to help with the investigation - into who made the call.
“intermediary” - Vague Definition – there are differentclasses of intermediary which control the architecture ofthe internet and the hardware which enables it to run.So liabilities must necessarily vary with the specific typeof service that each provides.Sube Singh v. State of Haryana that the state’s failure tosupport a classification on the touchstone ofreasonability, with the existence of intelligible differentiaor the rational basis of achieving a stated object, will beground for it to be held arbitrary and unreasonable.
Three grounds of attack: Rules made by government are ambiguous and undefined. Publication of certain categories of content over internet as mentioned in the Rules are not offences under any existing law. Article 19(1) of the Constitution guarantees the right to free speech and expression. Article 19(2) this right may be restricted in the interest of the State’s sovereignty, integrity, security and friendly relations with other States, public order, morality, decency, contempt of court, and for protection against defamation. Some of the categories of objectionable content under the Rules may not meet the requirements of Article 19(2) and may infringe the right to freedom of speech and expression. 2. Cybercafé owners: Cyber cafés are required to maintain a logcontaining personal details, such as address and photographs of theusers, and their internet usage. Provision to prevent or investigatecrime. Such provision could have negative implications on the rightto privacy and personal security of the user.
3. Privacy & Survellience : Sec- 69 of the new amended act, it is possible for the police to snoop through one’s emails, phone calls, texts and other personal communication over the Internet without any warrant for the same from the magistrate.The intermediary is no position to decide whether a painting ofwomen is obscene or not, since that requires judicial applicationof mind.Restriction that does not provide the affected persons a right to beheard is procedurally unreasonable (Virendra v. State of Punjab,AIR 1957 SC 896).Q1. How intermediary can decide which content is harmful……orunlawful?Q2. Executive function of government delegated to private agenciesis abuse of power? No review ? No Appeal?Q3. Principle of Natural justice is violated as the content uploaderis not given the opportunity to speak about its content?
Word “grossly harmful”,“harassing”, “disparaging”, Not Legal Standards subjective“grossly offensive” Vague Terms indicators ofor “menacing”, “hateful”, personal sensitivitiesBlasphemous, defamatory Do Not Fit in A.19(2)“Void for Vagueness” Doctrine. [SC 1994 SCC (3) 569]“It is the basic principle of legal jurisprudence that an enactment is voidfor vagueness if its prohibitions are not clearly defined. Vague lawsoffend several important values. It is insisted or emphasised that lawsshould give the person of ordinary intelligence a reasonable opportunityto know what is prohibited. Vague laws may trap the innocent by notproviding fair warning”Express Newspapers (Private) Ltd. v. Union of India - Limitations onthe exercise of the Article 19(1)(a) right which do not fall within Article19(2) cannot be upheld.
Under Rule 3 (4) IT guidelines 2011: Intermediary Guidelines violatethe author’s right to notice and consequently affect his/her right toprepare and present a defence at all. In Sec-79 - limited time withinwhich action must be taken –intermediary will lost the immunity if noaction is taken - Guidelines presume and rule in favour of thecomplainants and in favour of (private) censorship.Union of India v. Tulsiram Patel Supreme Court held that the principleof natural justice required the satisfaction of the audi alteram partemrule, which consisted of several requirements, including the requirementthat a person against whose detriment an action is taken be informed ofthe case against him and be afforded a full and fair opportunity torespond.M.C. Mehta v. Union of India: Supreme Court held that the absence ofdue notice and a reasonable opportunity to respond would vitiate anyholding to the rights holders detriment.
1. Rule 3(3) ultra vires section 79 of the IT Act.Rule expressly prohibits the hosting, publication or initiation of transmission ofcontent while sec- 79 does not intend any prohibition.2. Rule 3(4) inconsistent with section 69BRule states Intermediaries to take steps to disable access to within 36 hoursof receiving a complaint while sec- 69B which lays down in detail, theprocedure to be followed to disable access to information. Sec- 69B isstatutory law, Rule 3(4), being mere delegated legislation3. Rule 3(7) is ultra vires sections 69 and 69B, and falls outside the scope of section 79(2).Rule 3(7) provides that intermediaries must comply with requests forinformation or assistance when required to do so by appropriate authorities.This provision has no relation to the contents of sec- 79(regulatesintermediaries’ liability for content) & not consistent with the rules under sec-69 and 69B.4. Information Technology (Procedure and Safeguards for Interception, Monitoring, and Decryption) Rules 2009Permission must be obtained from the competent authority to access recordswhile Rule 3(7) makes intermediaries answerable to virtually any request fromany government agency.
Internet is inherently DEMOCRATIC, suspending internet is violate the democraticprinciples1. Article 19 of the Universal Declaration of Human Rights states:Everyone has the right to freedom of opinion and expression; this right includesfreedom to hold opinions without interference and to seek, receive and impartinformation and ideas through any media and regardless of frontiers.2. Special Rapporteur’s Report & UN Internet Freedom Resolution2012Recognize the need for special efforts to be undertaken by states to preserve freespeech on the internet. The former document justifies censorship only in themost limited circumstances and makes specific mention of the commercialinterests that may be implicated in delivering free speech3. Article 19(1) of Constitution of India, 1950 All citizens shall have the right— (a) to freedom of speech and expression; (c) to form associations or unions;4. Article 21 of Constitution of India, 1950 No person shall be deprived of hislife or personal liberty expect according to the procedure established by law
• Internet censorship affects everyone. Environmental activists, HIV lobbyists, human rights supporters, bloggers with opinions• When information is controlled, censored or blocked there is no transparency.• Free flow of information restricted.• Speed of internet will be restricted User-generated content be filtered: That would slow down the global Internet to a crawl, with posts appearing after days• Everyone has the right to express an opinion and to access information without fear• Thats freedom of opinion and freedom of expression. And it doesnt matter whether you live in Australia or in China your rights are the same.• Human rights are not just ideas and concepts – they affect the lives of real people.
Google on this matter has also said that:"When content is legal and does not violateour policies, we will not remove it just becauseit is controversial, as we believe that peoplesdiffering views, so long as they are legal,should be respected and protected."
1. To what extent do you believe “information should be free”?2. Will you obey the government’s regulation of not reporting some certain news, or will you insist to reveal the truth to the public?3. What do you think about it with regard to the internet censorship and the influence of social network such as Twitter and Facebook?