Celebrating One Year of the Puttaswamy Judgment (August 24, 6.00 pm, IIC)

Celebrating One Year of the Justice K.S. Puttaswamy v. Union of India Judgment

August 24, 2018

6.00 pm onwards

organized by

Indian Council for Research on International Economic Relations

&

Centre for Communication Governance at National Law University Delhi

at

Conference Hall – 2 | India International Centre | Max Mueller Marg | New Delhi

#DelhiTechTalks

Background

In a landmark decision on August 24th last year, a nine-judge bench of the Supreme Court unanimously upheld the fundamental right to privacy.

More recently, a committee headed by Justice B.N. Srikrishna submitted a report and a draft bill on data protection. Public Comments on the bill are due by early next month. The Supreme Court’s judgment on the Aadhaar challenge is imminent. There have also been other developments in this context such as RBI’s data localisation directive, the DNA profiling bill, the draft information security in health care bill, data localisation provisions in the e-commerce policy and the government’s recently withdrawn proposal to create a social media communications hub.

To commemorate the anniversary of the judgment and discuss the recently released Data Protection Bill, and related issues we are hosting this discussion on privacy and data protection.

Timings Programme
6.00 – 6.15 pm Tea & Coffee
6.15 – 6.20 pm Initial Remarks
6.20 – 6.40 pm State of Privacy in India & the Challenges to Realising Puttaswamy’s Promise

Dr. Usha Ramanathan, Independent Law Researcher

6.40 – 7.30 pm Data Protection for a Free and Fair Digital Economy

The recently released draft data protection framework recognises the need to balance privacy and a free and fair digital economy. It articulates some of the benefits of big data and encourages its growth. However, it has been argued that compliance with such a framework will require the current business models to change. Additionally, stringent provisions mandating the jurisdiction for processing of personal data, and wide discretion given to the central government, and regulatory authority raise questions of its impact on the second largest online market in the world, home to nearly 500 million active Internet users and business located in it.

Moderated by: Mansi Kedia, Consultant, Indian Council for Research on International Economic Relations (ICRIER)

Madhulika Srikumar, Associate Fellow, Observer Research Foundation

Malavika Raghavan, Project Head – Future of Finance Initiative, Dvara Research

Nehaa Chaudhari, Public Policy Lead, TRA Law

Smriti Parsheera, Technology Policy Researcher, National Institute of Public Finance and Policy (NIPFP)

7.30 – 8.20 pm Legacy of the Justice K.S. Puttaswamy v. Union of India Judgment

The court pronounced a landmark judgment last year, however it still needs to be examined whether judicial and legislative developments in India over the past year have upheld the principles enumerated in it. This includes the proposed data protection framework, and ongoing hearings on the right to be forgotten, Aadhaar and Section 377 and adultery, among others.

Moderated by: Apurva Vishwanath, Special Correspondent, ThePrint

Kritika Bhardwaj, Lawyer, Supreme Court of India

Shweta Mohandas, Policy Officer, Centre for Internet & Society

Smitha K. Prasad, Civil Liberties Lead, Centre for Communication Governance at National Law University Delhi

Ujwala Uppaluri, Lawyer, Supreme Court of India

8.20 pm onwards Dinner
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11 Indian States have Shutdown the Internet 37 times since 2015

Mobile Internet services have been suspended in Kashmir for the past 87 days. There has been a sharp increase in both the frequency and duration of ICT shutdowns in the past two years. We have been tracking ICT shutdowns since 2012 as part of our research for the Freedom on the Net- India Report (2014 & 2015).

In 2012 there was only one incident of ICT shutdown (three including the Republic and Independence days). The Jammu & Kashmir government blocked telecom services in order to prevent users from uploading or downloading the film Innocence of Muslims. This is a rare instance of a shutdown in which the government order is publicly available. Most of the Internet shutdowns have been without any procedural transparency.

Jammu & Kashmir has been suspending mobile Internet on the Republic and Independence Days since 2005, with Republic Day 2015 being an exception. In 2013 there were three instances of ICT shutdowns (four including Republic Day) – all in the state of Jammu & Kashmir.

In 2014, Jammu & Kashmir blocked ICT services four times (including on Republic Day and Independence Day) and the State of Gujarat once. Gujarat ordered the block after 2 people were stabbed in Vadodara in clashes between two communities subsequent to the circulation of an image on Facebook which was considered offensive to Islam.

Since 2014 there has been a massive spike in the incidents of ICT shutdowns in India. We found that 11 Indian states have shutdown the Internet 37 times since 2015 with 22 of those instances in the first nine months of 2016.

We have written extensively on Internet Shutdowns in the past year. For an analysis of the legal issues in case of Internet shutdowns please see:

Demarcating a safe threshold

The Anatomy of Internet Shutdowns – I (Of Kill Switches and Legal Vacuums)

The Anatomy of Internet Shutdowns – II (Gujarat & Constitutional Questions)

The Anatomy of Internet Shutdowns – III (Post Script: Gujarat High Court Verdict)

Internet Shutdowns: An Update

EU Code of Conduct on Countering Illegal Hate Speech Online: An Analysis

By Rishabh Bajoria

The Code

On 31st May, the European Commission (EC) announced a new Code of Conduct for online intermediaries. This Code was formulated after mutual agreement between the EC and Facebook, Microsoft, Google (including YouTube) and Twitter.[1] It targets the prompt removal of hate speech online through intermediaries. The EC stated:

While the effective application of provisions criminalising hate speech is dependent on a robust system of enforcement of criminal law sanctions against the individual perpetrators of hate speech, this work must be complemented with actions geared at ensuring that illegal hate speech online is expeditiously acted upon by online intermediaries and social media platforms, upon receipt of a valid notification, in an appropriate time-frame.”[2]

It later clarifies that a notification must not be “insufficiently precise” or “inadequately substantiated”. Intermediaries are obliged “to review the majority of valid notifications” in “less than 24 hours and remove or disable access” to the content. They must review the notifications against the touchstone of their community rules and guidelines, and “national laws”, wherever necessary.

Reasons

The Code is understood to be in response to rising anti-Semitic and pro-Islamic State commentary on social media. Vĕra Jourová, EU Commissioner for Justice, Consumers and Gender Equality, said, “The recent terror attacks have reminded us of the urgent need to address illegal online hate speech. Social media is unfortunately one of the tools that terrorist groups use to radicalise young people and racist use to spread violence and hatred.[3]

It is noteworthy that the intermediaries are American. This could be a way to avoid any jurisdictional conflict. For example, in Licra et UEJF v Yahoo! Inc and Yahoo! France, Yahoo! refused to comply with a French Court’s order. The order imposed liability on Yahoo! for its failure to disable access to sale of Nazi memorabilia on its website. This was a crime in France. However, Yahoo! contended that because its servers were located in the United States, the order was inapplicable. Subsequently, the U.S. District Court for the Southern District of New York in Yahoo! Inc. v. La Ligue Contre Le Raisme et L’Antisemitisme held Yahoo! to be a mere distributor. Hence, it could only be held liable if it had notice of the content.[4] This Code will supplement Articles 12-14 of the E-Commerce Directive 2000/31/EC. These Articles preclude intermediaries from liability if they disable content “expeditiously”, after receiving a “notice” of it. However, standards are not provided for “expeditious” or “notice. This Code clarifies these ambiguous terms for the intermediaries, which are otherwise defined by domestic legislatures[5]. Moreover, because such intermediaries have agreed to abide by the E-Commerce Directive and the Code of Conduct, such a jurisdictional issue will not arise.

Problems

This Code forces intermediaries to judge the legality of content. Once intermediaries are notified of the content, they are obliged to investigate and determine if the speech should be deleted. Twitter’s Head of Public Policy for Europe, Karen White, commented: “Hateful conduct has no place on Twitter and we will continue to tackle this issue head on alongside our partners in industry and civil society. We remain committed to letting the Tweets flow. However, there is a clear distinction between freedom of expression and conduct that incites violence and hate.[6] Such a notice and takedown regime is problematic because this distinction is not always “clear”. There remains no universal consensus on the definition of hate speech. To evaluate if speech comes under this category, Courts across jurisdictions look at a number of factors:

  1. Severity of the speech
  2. Intent of the speaker
  3. Content or form of the speech
  4. Social context in which the speech is made
  5. Extent of the speech (its reach and the size of its audience)
  6. Likelihood or probability of harm occurring[7]

The last two criteria are not analysed for speech which incites hatred. Hate speech, per se, is an inchoate crime. These factors are analysed cumulatively. Courts look to balance the value of the speech against the State’s positive obligations of maintaining public order or protecting the rights of others. Former UN Special Rapporteur for Freedom of Expression Frank La Rue has argued that private intermediaries should not be forced to carry out censorship. They are not equipped to account for the various factors involved in determining the legality of speech.[8] Unlike a judiciary, evaluations by private intermediaries are often opaque. They provide none of the legal safeguards a trial does, such as a right to appeal.[9] The mandate to censor speech within 24 hours of notification exacerbates this problem.

Proponents of this code might argue that intermediaries engage in self-censorship according to their Community Guidelines in status quo.[10] Therefore, an extension of this obligation to domestic legislation is not harmful. However, intermediaries are profit oriented private corporations. The legal obligation placed by the code of conduct is accompanied by liability if breached. This threat of liability will cause them to err on the side of caution and over censor speech. Professor Seth Kreimer, a Constitutional and Human Rights Law expert, argues that intermediaries know that potential liability will outweigh additional revenue offered by a user.[11] This is likely to have a chilling effect on online speech[12]. Hence, the Indian Supreme Court in Shreya Singhal v Union of India[13] rejected the “private notice and takedown” standard. It held that an intermediary will only be liable if it fails to comply with a judicial order stating the illegality of content.

For example, assume someone posts a controversial tweet. Presumably, this would be flagged by users for removal. Even if the notice is “valid”, and not “insufficiently precise”, Twitter will still have to investigate this before taking it down. In status quo, big corporations like Twitter usually have a legal team for this. However, this legal team will have to evaluate, within 24 hours, if the speech is inciting violence or hatred. For this, it will have to analyse its content and severity, the intent of the speaker and the social context. It will also have to scrutinize the causality between the speech and potential violence. This is a nearly impossible task. Moreover, it does not know if the judiciary will render the same verdict. So, if it continues to disseminate the speech in good faith, and the judiciary later deems it illegal, it can be held liable. This threat will make it remove speech, wherever the “distinction between freedom of expression and conduct that incites violence[14] is not “clear[15]. In the face of millions of such requests, intermediaries cannot be expected to make a sound legal evaluation. As a result, society may be deprived of potentially valuable speech.

Thus, this Code effectively mandates private censorship. Intermediaries will not be able to make nuanced evaluations of whether the speech incites hatred or violence within 24 hours. However, they can be liable, even if they do not delete content in good faith if a Court later finds it impermissible. The fear of this liability will make intermediaries err on the side of caution and over-censor. Hence, this Code is a recipe for a chilling effect online. Thus, while preventing terrorist propaganda is a legitimate aim, this response will disproportionately restrict freedom of speech and expression online.

[1] Code of Conduct on Countering Illegal Hate Speech Online, available at http://ec.europa.eu/justice/fundamental-rights/files/hate_speech_code_of_conduct_en.pdf; “European Commission’s Hate Speech Deal With Companies Will Chill Speech”, available at https://www.eff.org/deeplinks/2016/06/european-commissions-hate-speech-deal-companies-will-chill-speech.

[2] “European Commission and IT Companies announce Code of Conduct on illegal online hate speech”(Press Release) , available at http://europa.eu/rapid/press-release_IP-16-1937_en.htm,.

[3]Ibid.

[4] Omer, Corey. “Intermediary Liability for Harmful Speech: Lessons from Abroad.” Harv. J. Law & Tec 28 (2014): 289-593.

[5] Verbiest, Thibault, Gerald Spindler, and Giovanni Maria Riccio. “Study on the liability of internet intermediaries.” Available at SSRN 2575069 (2007).

[6] “European Commission and IT Companies announce Code of Conduct on illegal online hate speech”(Press Release) , available at http://europa.eu/rapid/press-release_IP-16-1937_en.htm.

[7] Toby Mendel, Study on International Standards Relating to Incitement to genocide or Racial Hatred, a study for the UN Special Advisor on the prevention of Genocide, April 2006, available at http://www.concernedhistorians.org/content_files/file/TO/239.pdf; “Towards an interpretation of Article 20 of the ICCPR: Thresholds for the prohibition of incitement to hatred”, available at http://www.ohchr.org/Documents/Issues/Expression/ICCPR/Vienna/CRP7Callamard.pdf..

[8] HRC, ‘Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression’ by Frank La Rue available at http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf.

[9] Jack M. Balkin, ‘Old-School/New-School Speech Regulation”, (2014) 127 Harvard Law Review 2296.

[10] Freiwald, Susan. “Comparative Institutional Analysis in Cyberspace: The Case of Intermediary Liability for Defamation.” Harv. JL & Tech. 14 (2000): 569; MacKinnon, Rebecca, et al. Fostering Freedom online: the role of internet intermediaries. UNESCO Publishing, 2015.

[11] Seth F. Kreimer, ‘Censorship by Proxy: The First Amendment, Internet Intermediaries, and the Problem of the Weakest Link’ (2006) 155 (11) U. Pa. L. Rev 2-33.

[12] Chinmayi Arun & Sarvjeet Singh, NoC Online Intermediaries Case Studies Series: Online Intermediaries in India 24, 25 (2015), available at http://ccgtlr.org/wp-content/uploads/2015/02/CCG-at-NLUD-NOC-Online-Intermediaries-Case-Studies.pdf (last visited on July 4, 2015).

[13] (2013) 12 SCC 73 (India).

[14] “European Commission and IT Companies announce Code of Conduct on illegal online hate speech”(Press Release) , available at http://europa.eu/rapid/press-release_IP-16-1937_en.htm.

[15] Ibid.

(Rishab is a students at Jindal Global Law School and currently an intern at CCG)

Supreme Court to pronounce judgment on Criminal Defamation tomorrow

Tomorrow in Supreme Court’s Room no. 4 at 10.30 am a bench of Justices Dipak Misra and Prafulla Pant will pronounce the judgment regarding the constitutional validity of criminal defamation (Sections 499 and 500 of IPC and section 199 of CrPC).

The CCG Blog

A Supreme Court bench of Justices Dipak Misra and Prafulla Pant is hearing a set of at least thirty petitions challenging the constitutional validity of criminal defamation (Sections 499 and 500 of IPC and section 199 of CrPC).

The summary of hearings from the first six days can be found here.

View original post

SC hears the Aadhaar #NotAMoneyBill Challenge

A Supreme Court bench of the Chief Justice and Justices R. Banumathi and UU Lalit took up a petition by Mr. Jairam Ramesh, Member of Parliament (Rajya Sabha) challenging the certification of the Aadhaar Act as a money bill by the Lok Sabha Speaker today.

Senior Advocates Mr. P. Chidambaram, Mr. Kapil Sibal and Mr. Mohan Parasaran represented the petitioner and the Attorney General and Additional Solicitor General Ms. Pinky Anand represented the Government.

Mr. Chidambaram stated that the Aadhaar Bill is not a money bill, as it does not meet the criteria laid down in Article 110 of the Constitution. The bench inquired whether the question of certification is open to judicial review? Mr. Chidambaram stated that it is their stand that it is open for review whereas the AG stated that it was not open for judicial review.

The AG also raised an objection to the petitioner filing the petition under Article 32 of the Constitution. Mr. Chidambaram stated that rule of law is a fundamental right and if that is violated by the Parliament a cause of action arises. He also stated that there are judgments of the Court, which state that if there is a substantial question of constitutional law arising in a particular case a person can come to the Court under Article 32.

The AG reiterated his objection on the locus and the Chief Justice asked if the AG was saying that the rule of law is not a fundamental right? The AG stated that the rule of law is a fundamental right, however, the definition of rule of law is too broad and cases are admitted for violation of rule of law there will not be any difference between the remedies provided by Articles 32 and Article 226 of the Constitution. He stated that a matter relating to seniority of a person may involve a question of rule of law but the person cannot approach the court under Article 32.

Mr. Chidambaram stated that equating the current case to a case of seniority would be making a caricature of the argument. He stated that both the houses of the Parliament have equal status and power and in this case the decision of the presiding officer of one house has deprived the other house of its powers.

He added that in the present case the presiding officer of the Lok Sabha violated the basic rule of law and this is too grave a matter to be rejected on the argument of locus. He stated that there is a clear violation of Article 14 among others, which contains the rule of law.

On the question of judicial review, the AG stated that if a bill is certified by the Speaker as money bill that decision cannot be examined. In response, Mr. Chidambaram argued that immunity extends only to matters of procedural irregularity and not an illegality citing the Raja Ram Pal case of 2007. (For a detailed analysis of why the Supreme Court has the power to judicially review the Speaker’s decision to classify the AADHAR Bill as a Money Bill please see: Aadhaar Act as a Money Bill – Judicial Review of Speaker’s Determination Concerning Money Bills)

The Court asked both the parties to submit a list of relevant cases and listed the matter for 20th July.

Aadhaar Act as a Money Bill — Judicial Review of Speaker’s Determination Concerning Money Bills

By Dr. Anup Surendranath

The primary hurdle in determining the constitutional validity of introducing the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, (hereinafter, “the Aadhaar Act”) as a money bill is whether courts can judicially review the decision of the Lok Sabha Speaker that it was a money bill. If the Supreme Court does not have the power to judicially review the decision of the Speaker in this context, then it is irrelevant whether the Aadhaar Act is in substantive compliance with Article 110. Without such a power for the Supreme Court, the Speaker’s determination that the Bill before her was a Money Bill would be final and binding without any scope for legitimate judicial review.

This note, however, argues that the Supreme Court has the power to judicially review the Speaker’s decision in this regard and it is essential to lay down that foundation before the court examines the substantive compliance with Article 110 (the non-compliance with the terms of Article 110(1) is relatively an easier case to make).

The entire note can be accessed here: http://ccgdelhi.org/doc/(CCG-NLU)%20Aadhaar%20Money%20Bill.pdf

Find ways to curb Child Pornography: SC

Today in Court Room no. 4 of the Supreme Court the porn ban petition filed by Kamlesh Vaswani was taken up by the bench of Justices Dipak Mishra and Shiva Kirti Singh.

Mr. Vijay Panjwani, advocate for Mr. Vaswani stated that it has been two years since the petition was filed and the Court issued notices, yet some respondents have not filed their replies.

Ms. Pinky Anand, the Additional Solicitor General of India was representing the Union of India. Ms. Anand submitted that the Court should confine itself to the issues of child pornography as anything beyond that will involve issues of privacy and other rights (in May 2014 the Government had submitted to the Court that a blanket ban on pornography will violate Articles 19 and 21 of the Constitution).

However, Justice Mishra in response to that stated that ‘what is the privacy argument? I do not understand what is the privacy issue?’ no one wants to be seen doing this and that if there is any issue the Court can interpret it and deal with it during the arguments.

Subsequently, Justice Shiva Kirti Singh stated that ‘the State should not interfere in every matter’ but only in cases where a crime has been committed.

Agreeing with Justice Singh, Ms. Anand stated that the Centre is concerned about child pornography. She stated that various agencies including Interpol, CBI, the Departments of Electronics and Information Technology (DeitY) and Telecom (DoT) of the Ministry of Communications and Information Technology and various Internet Service Providers (ISPs) are working together to come up with mechanisms to deal with child pornography. She explained one of ways to address this. She stated that the CBI will procure a list of child pornography sites from Interpol (more details available here) and pass it to DeitY (more details available here). DeitY will provide a list to DoT which will direct the ISPs to block all these sites. She further stated that most of these materials are generated outside India and it is not possible to have a blanket ban.

She further stated that most of these materials are generated outside India and it is not possible to have a blanket ban.

Mr. Panjwani interjected stating that the ISPs keep raising the argument of free speech but an illegal act cannot be protected under the garb of free speech. He raised the recent JNU example and stated that the Finance Minister stated yesterday in the Parliament that such speech cannot be protected under Right to Freedom of Expression and that his argument is similar to that and pornography cannot be protected under the Right to Freedom of Expression.

Justice Singh asked Mr. Panjwani, how he will define pornography? He subsequently added that it is difficult to define pornography and that someone can find even a picture of Monalisa pornographic.

Mr. Panjwani stated that there is a difference between obscenity and pornography and that there are videos of humans and animals engaging in sexual activities and that it is a cruelty to animals.

Ms. Anand reiterated her point of focusing on child pornography as it may be difficult to find mechanisms for other issues. However, Justice Mishra stated that petitioner’s case is not just about child pornography but all kinds of pornography. He further added that what is not permissible under the India law should not be allowed and the mechanisms to prevent those things can be evolved. He subsequently asked the Government if they were making a distinction between child pornography and adult pornography and to find out from the Ministry if porn can be blocked.

Ms. Anand reiterated the Union’s stand that it is not possible to block porn (the Government has made similar arguments in the past; see here and here). However, Justice Mishra responded that they can block it and that there are means to do it. He added that other countries have not accepted defeat on this issue on the basis of technology and there are ways to deal with it. He added that in a different affidavit filed by the Solicitor General for an authority, it has been stated that this can be blocked. He stated that misogyny, sadism and voyeurism should be prevented online.

Ms. Anand stated that we need to enquire whether the State should in the first place enter this discussion and a personal decision of what a person should watch or not. Whether the State should decide what the moral code of the society is? She said all these are subjective issues and what is pornography and what is not is also subjective.

Justice Mishra said that the there I no subjectivity in it. He stated that obscenity is recognised and punishable by the law. Pornography may or may not be obscene in some contexts, but in videos it will be obscene. Obscenity is linked to misogynism, perversion, sadism, voyeurism. These are the acts depicted in pornography which have a direct nexus with obscenity as crime punishable under Section 292 of the Indian Penal Code. He said there is no subjectivity where it affects the moral code.

Justice Singh added that we should examine what is allowed in public spaces and private spaces. Ms. Anand added to this stating the State cannot interfere with what people consume in the privacy of their homes.

Senior advocate Mahalakshmi Pavani Rao, who was representing the Supreme Court Women Lawyers Association stated that porn is spreading like a moral cancer. She stated that in school bus driver and conductors have porn on their phones and force children to watch it and molest and sodomise them.

Ms. Anand agreed that child pornography is a serious issues and needs to be looked into. However, it may be difficult to look into other issues.

Justice Mishra stated that everyone can start by looking at issues of child pornography first. He said that freedom of speech and expression under Article 19(1)(a) is not absolute and liberty is not absolute. He said that innocent children cannot be subjected to such painful situations. He added that a nation cannot afford to experiment with its children in the name of liberty and these moral assaults may bring physical disasters with them.

Justice Singh commented that there is a fine line between what is pornography and what is permissible and the Government should try coming up with something to address this. The Bench also asked the ASG to explore whether a ban on consuming pornography in public places can be explored?

The Bench directed the petitioners to provide suggestions to the Government to come up with schemes to tackle child pornography and also allowed the Union to take suggestions from the National Commission of Women. The matter has now been listed for 28th March 2016.