The Supreme Court’s Free Speech To-Do List

Written by the Civil Liberties team at CCG

The Supreme Court of India is often tasked with adjudicating disputes that shape the course of free speech in India. Here’s a roundup up of some key cases currently before the Supreme Court.

Kamlesh Vaswani vs. Union of India

A PIL petition was filed in 2013 seeking a ban on pornography in India. The petition also prayed for a direction to the Union Government to “treat watching of porn videos and sharing as non-bailable and cognizable offence.”

During the course of the proceedings, the Department of Telecommunications ordered ISPs to block over 800 websites allegedly hosting pornographic content. This was despite the freedom of expression and privacy related concerns raised before the Supreme Court. The Government argued that the list of websites had been submitted to the DoT by the petitioners, who blocked the websites without any verification. The ban was revoked after much criticism.

The case, currently pending before the Supreme Court, also presented implications for the intermediary liability regime in India. Internet Service Providers may claim safe harbor from liability for content they host, as long as they satisfy certain due diligence requirements under Sec. 79 of the IT Act, read with the Information Technology (Intermediaries Guidelines) Rules, 2011. After the Supreme Court read down these provisions in Shreya Singhal v. Union of India, the primary obligation is to comply with Court orders seeking takedown of content. The petition before the Supreme Court seeks to impose an additional obligation on ISPs to identify and block all pornographic content, or risk being held liable. Our work on this case can be found here.

Sabu Mathew George vs. Union of India

This is a 2008 case, where a writ petition was filed to ban ‘advertisements’ relating to pre-natal sex determination from search engines in India. Several orders have been passed, and the state has now created a nodal agency that would provide search engines with details of websites to block. The ‘doctrine of auto-block’ is an important consideration in this case -in one of the orders the Court listed roughly 40 search terms and stated that respondents should ensure that any attempt at looking up these terms would be ‘auto-blocked’, which raises concerns about intermediary liability and free speech.

Currently, a note has been filed by the petitioners advocate, which states that search engines have the capacity to takedown such content, and even upon intimation, only end up taking down certain links and not others. Our work on this case can be found on the following links – 1, 2, 3.

Prajwala vs. Union of India

This is a 2015 case, where an NGO (named Prajwala) sent the Supreme Court a letter raising concerns about videos of sexual violence being distributed on the internet. The letter sought to bring attention to the existence of such videos, as well as their rampant circulation on online platforms.

Based on the contents of the letter, a suo moto petition was registered. Google, Facebook, WhatsApp, Yahoo and Microsoft were also impleaded as parties. A committee was constituted to “assist and advise this Court on the feasibility of ensuring that videos depicting rape, gang rape and child pornography are not available for circulation” . The relevant order, which discusses the committee’s recommendations can be found here. One of the stated objectives of the committee was to examine technological solutions to the problem – for instance, auto-blocking. This raises issues related to intermediary liability and free speech.

 

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When the Empire SLAPPs Back

“Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined”

-Nicholas Colabella J. of the New York Supreme Court, in Gordon v Marrone.

The above statement vividly describes what has come to be called a SLAPP suit – Strategic Lawsuit Against Public Participation. The term was coined by University of Denver Professors Penelope Canan and George Pring in their book ‘SLAPPs: Getting Sued for Speaking Out’.[1] SLAPPs are generally characterized by deep-pocketed individuals or entities pursuing litigation as a way of intimidating or silencing their critics.

The suit likely may have no merit, but the objective is primarily to threaten or coerce critics into silence, or in the alternative, impose prohibitive costs on criticism. SLAPPs also have the effect of suppressing reportage about initial claims.  Even if defendants win a lawsuit on merits, it would be at an immense cost in terms of resources. This experience is likely to deter them, and others from speaking out in the future. Faced with an uncertain legal process, defendants are also likely to seek settlement. While this allows them to avoid an expensive process, it usually entails them having to abandon their opposition as well.  By in effect chilling citizen participation in government, SLAPP suits strike at the heart of participatory democracy.

SLAPPs have also come to be employed in India, in a number of instances. These are usually large corporates, powerful individuals, and even private universities, dragging media houses and journalists, or academics to Court for unfavorable reportage. Recent instances indicate that SLAPPs can also be employed by influential people accused of sexual assault or harassment. The aim appears to be to suppress media coverage, and deter victims from publically speaking out.

Defamation suits tend to be the weapon of choice for SLAPPs. In India, where defamation can also be a criminal offence, this can be a particularly effective strategy, especially since it may be pursued concurrently with a civil claim. Another tactic to make the process more punitive, is to file the suit in a remote, inconvenient location where the offending publication may have been made available. In the context of the internet, this could theoretically be anywhere.

There have not been many instances where the judiciary have demonstrated awareness of this phenomenon. In Crop Care Federation of India v. Rajasthan Patrika, reports had been published in the Rajasthan Patrika about the harmful effects of pesticides. Crop Care Federation of India, an industry body of pesticide manufactures, sued the newspaper and its employees for allegedly defaming its members. In response, the defendant filed an application for the rejection of plaint, under Order 7 Rule 11 of the Code of Civil Procedure, 1908. It was argued that the plaintiff was an association of manufacturers, and not a determinate body, which was a necessary requirement to constitute a cause of action in a defamation suit. Justice Ravindra Bhat dismissed the suit on the above ground but also explicitly called out the petitioner’s suit as a SLAPP, with a reference to Justice Nicholas Colabella’s dictum in Gordon v. Marrone. He went on to note that, “in such instances the plaintiff’s goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. A SLAPP may also intimidate others from participating in the debate.”

Several jurisdictions have enacted ‘anti-SLAPP’ legislations in an attempt to protect defendants from such practices. Broadly, such legislations provide the defendant an opportunity to seek dismissal of the suit early in the proceedings. In most anti-SLAPP statutes in the United States, if the defendant demonstrates that the statements were within the exercise of free speech, and on matters of legitimate public interest, the burden shifts onto the plaintiff to establish a probability of success of their claims. Failing to do so would lead to a dismissal, with the petitioner having to compensate the defendant’s legal costs. Typically, the discovery process is halted while the motion is being adjudicated upon. This further mitigates the financial toll that the proceedings might otherwise take.

In a similar vein, one of the recommendations in India has been to introduce procedure into Order 7 Rule 11 that allows suits that bear the mark of a SLAPP to be summarily dismissed. Broader reforms to the law of defamation may also limit the impact of SLAPPs. It has been proposed that Sections 499 and 500 of the Indian Penal Code, 1860, which criminalize defamation, should be repealed. It is widely held that, despite the Supreme Court’s contrary view, the imposition of penal consequences for defamation runs counter to the free speech ideals enshrined within our Constitution. There are also suggestions to codify civil defamation, with higher thresholds for statements regarding public officials or public figures, as well as a stricter requirement of demonstrating harm. There are also proposals to allow for corrections and apologies to be offered as remedy, and for damages designed to be primarily restorative, and not punitive.

According to Pring and Canan, SLAPPs are a way for petitioners to transform a “a public, political controversy into a private, legalistic one.”[2] Defamation, and SLAPP suits in general, have become a tool to deter public scrutiny and criticism of those in power. Drawing reasonable inferences from fact is essential to the functioning of the press, and the internet has provided citizens an avenue to express their opinions and grievances. Both are likely to limit the legitimate exercise of their free speech if they run the risk of being dragged to court to mount a legal defense for their claims. Our legal framework seeks to deliver justice to all, but must also be cognizant of how it may be subverted towards nefarious ends.

[1] Penelope Canan and George Pring, SLAPPs : Getting Sued for Speaking Out (Temple University Press, 1996).

[2] Id., at 10.

CCG on the Privacy Judgment

Written by the Civil Liberties team at CCG

A 9 judge bench of the Supreme Court of India passed a landmark judgment two weeks ago, which unanimously recognized the right to privacy as a fundamental right under the Constitution of India. The Court found the right to privacy to be a part of the freedoms guaranteed across fundamental rights, and an intrinsic aspect of dignity, autonomy and liberty.

In 2012, a petition was filed before the Supreme Court by Justice K. S. Puttuswamy (Retd.), challenging the validity of Aadhaar. During the course of the hearings, the Attorney General argued that the Supreme Court in M.P. Sharma v. Satish Chandra (1954) and Kharak Singh v. State of U.P. (1962) had found that there was no fundamental right to privacy in India, because of which its position in the Indian Constitution was debatable. As a consequence, the Court in its order on August 11, 2015 referred the question to a Constitution bench of the Supreme Court. Last month, the Constitution bench decided to refer the matter to a 9 judge bench, in view of M.P. Sharma and Kharak Singh being decided by an 8 judge bench, and a 6 judge bench respectively. A timeline of events, from the filing of the petition, to the constitution of the 9 judge bench, may be found here.

During the proceedings, the petitioners broadly argued that M.P. Sharma, and Kharak Singh were no longer good law; that privacy was an essential component of liberty, dignity and other core aspects of the Constitution; and the fundamental right to privacy could be located in a combined reading of the rights under Part III of the Constitution. Further, they argued that India’s international obligations presented an imperative to recognize the right. The respondents argued, among other things, that privacy was a vague concept, of which only certain aspects could be elevated to the status of a fundamental right, if at all. They argued that the right could be protected through the common law, or by statute, and did not need the protection of a fundamental right. Further, that the right to life, and the concomitant duty of the state to provide welfare, must trump privacy. An index of our posts reporting the arguments is also available below.

The petition and reference posed some critical questions for the Court. The Court had to evaluate whether privacy, as argued, was just an alien, elitist construct unsuitable to India, or a necessary protection in a digital age. It was further tasked with defining its safeguards and contours in a way that would not invalidate the right. Chinmayi Arun’s piece specifically addresses these concerns here.

Fortunately, the Supreme Court also has an illustrious history of recognizing and upholding the right to privacy. The Centre for Communication Governance recently published an infographic, illustrating the Court’s jurisprudence on the right to privacy across 63 years.

The Court eventually decided on an expansive articulation of the fundamental right to privacy. However, the judgment raises a few crucial implications. We at the Centre for Communication Governance have presented our analysis of the judgment in various news media publications. Chinmayi Arun, our Research Director, has presented her views on the judgment as part of a panel of experts here, and in an interview, here. She also argues that the Court seems to have left a significant leeway, presumably for intrusion by the state. Smitha presents a detailed assessment of the implications of the right to privacy here. The judgment has also been lauded for its critique of the Suresh Kumar Koushal v. NAZ Foundation, which recriminalized consensual same-sex intercourse. As Arpita writes here, a strong formulation of the right to privacy, with its close connection to bodily integrity, can forge a more progressive expression of the rights of women and sexual minorities.

While the judgment is a step forward, its effect and implementation are yet to be seen. Recently, in the ongoing matter of Karmanya Singh v. Union of India (WhatsApp data sharing case), the Puttaswamy judgment was visited. Following from the judgment, the petitioners argued that the state should protect an individual’s right to privacy even when it is being infringed by a non-state actor.

 Reports of arguments made before the Supreme Court:

‘My Data, My Rules’ – The Right to Data Portability

Nandan Nilekani has recently made news cautioning against ‘data colonization’ by heavyweights such as Facebook and Google. He laments that data, which is otherwise a non-rival, unlimited resource, is not being shared freely, and is being put into silos. Not only does this limit its potential uses, users end up with very little control over their own data. He argues for ‘data democracy’ through a data protection law and particularly, one that gives users greater privacy, control and choice. In specific terms, Nilekani appears to be referring to the ‘right to data portability’, a recently recognized concept in the data protection lexicon.

In the course of using online services, individuals typically provide an assortment of personal data to service providers. The right to data portability allows a user to receive their data back in a format that is conducive to reuse with another service. The purpose of data portability is to promote interoperability between systems and to give greater choice and control to the user with respect to their data held by other entities. The aim is also to create a level playing field for newly established service providers that wish to take on incumbents, but are unable to do so because of the significant barriers posed by lock-in and network effects. For instance, Apple Music users could switch to a rival service without having to lose playlists, play counts, or history; or Amazon users could port purchasing history to a service that provides better recommendations; or eBay sellers to a more preferable platform without losing their reputation and ratings. Users could also port to services with more privacy friendly policies, thereby enabling an environment where services must also compete on such metrics.

The European Union’s General Data Protection Regulation (GDPR) is the first legal recognition of the right to data portability. Art. 20(1) defines the right as follows:

“The data subject shall have the right to receive the personal data concerning him or her, which he or she has provided to a controller, in a structured, commonly used and machine-readable format and have the right to transmit those data to another controller without hindrance from the controller to which the data have been provided”

Pursuant to this right, Art. 20(2) further confers the right to directly transmit personal data from one controller to another, wherever technically feasible.

The first aspect of the right to data portability allows data subjects to receive their personal data for private use. Crucially, the data must be a in a format necessarily conducive to reuse. For instance, providing copies of emails in pdf format would not be sufficient. The second aspect is the ability to transfer data directly to another controller, without hindrance.

There are certain prerequisites for the applicability of this right:

a) it applies only to personal data that the data subject ‘provided’ to the controller. This would include data explicitly provided (such as age, or address, etc., through online forms), as well as data generated and collected by the controller on account of the usage of the service. Data derived or inferred by the controller would not be within the scope of this right.

b) the processing must be pursuant to consent or a contract. Personal data processed for a task to be performed in public interest, or in the exercise of official authority is excluded.

c) the processing must be through automated means. Data in paper files would therefore not be portable.

d) the right must not adversely affect the rights and freedoms of others.

The GDPR does not come into force till May 2018, so there remain ambiguities regarding how the right to data portability may come to be implemented. For instance, there is debate about whether ‘observed data’, such as heartbeat tracking by wearables, would be portable. Even so, the right to data portability appears to be a step towards mitigating the influence data giants currently wield.

Data Portability is premised on the principle of informational self-determination, which forms the substance of the European Data Protection framework.  This concept was famously articulated in what is known as the Census decision of the German Federal Constitutional Court in 1983. The Court ruled it to be a necessary condition for the free development of one’s personality, and also an essential element of a democratic society.  The petitioners in India’s Aadhaar-PAN case also  explicitly argued that informational self-determination was a facet of Art. 21 of the Indian Constitution.

Data portability may also be considered an evolution from previously recognized rights such as the right to access and the right to erasure of personal data, both of which are present in the current Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011. TRAI’s recent consultation paper on Privacy, Security and Ownership of Data in the Telecom Sector also refers to data portability as a way to empower users. The right to data portability may be an essential aspect of a robust and modern data protection framework, and India is evidently not averse to taking cues from the EU in this regard. As we (finally) begin to formulate our own data protection law, it may serve us well to evaluate which concepts may be suitably imported.