Digital Memory & Informational Privacy: Reflecting on the EU’s ‘Right To Be Forgotten’- Working Paper by Ujwala Uppaluri

As part of a complete overhaul of European Union regulations concerning Internet information stored electronically, a proposal for a ‘General Data Regulation’ was been passed by the European Parliament. The Regulation is intended to be read with the existing law as to data protection in the European Union, specifically the Data Protection Directive and the E-Privacy Directive. Inter alia, this legislative attempt made reference at its Article 17 to a data subject’s right to be forgotten. The proposal sparked a staggering amount of debate around the consequences of the grant of such a right, with particular resistance arising out of the potential burden that such a right could impose on intermediaries online.

Since that proposal was made, a ‘right to be forgotten’ has been articulated by the Court of Justice of the Eurpoean Union (CJEU). It used existing data protection law, including portions of the Data Protection Directive of 1995 to read in a right to be forgotten for data subjects, and a corresponding obligation to takedown for intermediaries, and search engines in particular. As with Article 17, Costeja has been the subject of a great deal of criticism.

This paper will cursorily consider the history and nature of machine memory, make the case for digital forgetting, describe the legal and conceptual sources of the right to be forgotten, and evaluate Article 17 and the CJEU’s iteration of the right, with the intention of contributing to this debate. Particular emphasis will be placed, in the process, on informational privacy on the fundamentals of data protection and on the many concerns that the present iteration of the right raises not only for Europe but for data protection law generally.

The Complete Paper can be found here:

(Ujwala Uppaluri was a Fellow at CCG from June 2014 to April 2015 and will be joining Harvard Law School to pursue her LL.M. from August 2015.)  

Freedom of Speech & Google Search- Preliminary Notes for India: Working Paper by Ujwala Uppaluri

As the Internet progressively becomes a key means by which information is communicated and exchanged, there is a growing need to examine how the applications that facilitate access to these troves of information operate.

Search engines have come to play a critical role in the digital information landscape. In India the question of search is currently a subject of investigation and more recently a fine by the Competition Commission of India. More recently the question of what search engines can list in their results has come up before the Indian Supreme Court.


Google and other search engines have argued that their algorithm’s ranking of search results was an exercise in editorial discretion, available to all speakers as a First Amendment right. This has laid the groundwork for claims of search engines’ rights to freedom of speech. However, in the recent landmark judgment of Shreya Singhal v. Union of India, the Supreme Court had during the oral hearing stated that intermediaries do not have free speech rights.

Against this backdrop, this paper very briefly introduces comparative scholarship around search and the constitutional right to free speech and takes the first steps to making that the argument for the need to regulate important participants such as search engines in the information landscape, and for the need to construct and clarify Article 19(1)(a) frameworks to ensure rights adjudication to such regulation result in balanced outcomes.

The Complete Paper can be found here:

(Ujwala Uppaluri was a Fellow at CCG from June 2014 to April 2015 and will be joining Harvard Law School to pursue her LL.M. from August 2015.)  

Why is there a need to repeal 66A?: CCG’s submission to the Law Commission

We agree that the section 66A of the Information Technology Act is highly problematic. The government initially took the position that it was the misuse of the law rather than the law itself that was of concern. After the highly publicized Palghar arrests in 2012, the Department of Electronics and Technology, Government of India issued an advisory on January 9, 2013 to all State governments and Union territories, asking them not to arrest any persons under Section 66A without the prior approval from a seniorfs_59396fficer.

However, despite the government advisory, Jaya Vindhyala, from People’s Union for Civil Liberties, was arrested in May 2013 in Andhra Pradesh for posts critical of legislator Amanchi Krishna Mohan and Governor K. Rosaiah on her personal Facebook account. Kanwal Bharti a Uttar Pradesh based scholar was arrested in August 2013 for his comments on Facebook, blaming the Uttar Pradesh government for bias against Durga Shakti Nagpal, a civil servant who was suspended controversially for allegedly demolishing an illegal mosque. More recently, the application of Section 66A demonstrates a worrying intolerance for dissent. In the past month alone, Section 66A was invoked to arrest atleast 6 people (an engineer in Goa and five students in Bangalore including one activist of the Aam Aadmi Party) for content which was “Anti-Modi”.

The ongoing trend of unreasonable arrests under section 66A clearly demonstrates that clarifications and advisories are insufficient. In addition, leaving the discretion with regards to when Section 66A should be applied to the police, an arm of the executive, is inconsistent with basic standards required under Article 19 of the International Covenant on Civil and Political Rights. The UN’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression opined that “legislation restricting the right to freedom of expression must be applied by a body that is independent of any political, commercial or other unwarranted influences in a manner which is neither arbitrary nor discriminatory, and with adequate safeguards against abuse, including the possibility of challenge and remedy against its abusive application.” It is therefore clear that the law is untenable in its present form.

Section 66A contain a number of deficiencies which render it unworkable and unconstitutional. These include the following:

  1. A number of operative terms (“grossly offensive” or “menacing character” or causing “annoyance or inconvenience”) in the section are incurably vague. The Thirty-first Report of the Committee on Subordinate Legislation draws attention in explicit terms to the absence of any definitions of these terms and to the mounting instances of the section’s consequent arbitrary application and misuse.
  2. The standards for merely inconveniencing another or causing offence or annoyance are both subjective and considerably lower than those ordinarily required in order to invite criminal sanction. As a result, section 66A discriminates against content online without clear justification in a manner inconsistent with Article 14 and is disproportionate and therefore unreasonable in its restriction of the Article 19(1)(a) right (even assuming that one of the pigeonholes in 19(2) can be applied to cover such imprecise terminology).
  3. The terminology used in section 66A does not afford any clarity as to which content specifically is prohibited and which is permissible. Given that it creates a criminal offense whose violation can mean three years’ imprisonment, by design, section 66A would have an unjustifiable chilling effect on speech.
  4. The use of the term “sending” rather than “publishing” extends the scope of the offence. Private sending of otherwise legal content on the Internet is criminalized, and as a result the same act of sending through media other than the Internet would be entirely legal.

The Supreme Court is seized of the matter of the section’s constitutionality in Shreya Singhal v. Union of India, where a number of the above arguments have been presented by the petitioner. In addition, it is important to note that Section 66A is not necessary in order to address problematic content. The Indian Penal Code, 1860 already covers “criminal intimidation” under Section 503, “insult” under section 504 and “enmity, hatred and ill-will” under section 153A(1)(a).

For the foregoing reasons, we would propose that Section 66A be repealed in its entirety.

India and the Internet at PP-14

The latest edition of ITU’s quadrennial meeting of the “supreme organ”, the Plenipotentiary Conference is well underway in Busan, South Korea. It appears that Internet-related issues and India’s position in relation to them will both be very interesting to watch as PP-14 progresses. (See here for one perspective on how the Indian government’s approach to issues at the ITU and to Internet Governance could be viewed.) While there has not been much discussion of the event in India as yet, it remains early days. Regular updates on the proceedings are officially reported here.

Here is a summary of the issues and events of note (a full schedule is available here):


PPs host important elections each time that they convene, for the subsequent four year period. Houlin Zhao from China has been elected to the position of the Secretary General (152 votes out of 152 countries present and voting, he was the only candidate). See here for a biography. Malcolm Johnson from the United Kingdom will serve as Deputy Secretary General (104 votes of 168 countries present and voting). See here for a biography. India also fielded a candidate for membership to the Radio Regulations Board. His bid was unsuccessful. Full results of the election are available here.

The first week also saw elections of member states to the 48 seats of the ITU Council, which governs the ITU in the period between PPs. India continues to hold its seat on the ITU Council. A full break down of the results, along with the vote counts, is here (India is listed under Region E).

India’s Policy Statement

India made a policy statement at PP-14 on the 21st of October. The statement discussed the digital divide and the barriers that language posed to widespread access to ICTs. It also discussed the new government’s priorities in relation to the Internet:

“Coming to internet services, India has over 300 Million users but the broadband penetration is around 5%. One of the main reasons for low Broadband penetration is also high cost of Broadband connection. Now India is poised to repeat the same growth story in Broadband by bringing down the cost.

I wish to inform that the new government led by the H.E. Prime Minister Mr. Narendra Modi launched an ambitious ‘Digital India’ programme, aimed at empowering more than one billion people with the power of technology and broadband highways. An ambitious project of laying the optical fiber to connect all the villages with the support of Government funding of about $4 billion has been initiated. We plan to make available broadband services to all the villages of India, which are about 600,000 in number, in a phased manner in the coming years.   The object is to ensure digital platform for all applications such as e-health, e-commerce, e-education, e- governance etc through Broadband highways. This ‘Digital India’ Programme will unleash the hidden strength of India by providing people centric innovative applications and services bringing in inclusive development. The ‘Digital India’ Programme, therefore, has all four goals envisaged by ITU viz. growth, inclusiveness, sustainability, innovation & partnership.”

The full text of the statement is here.

Internet-related issues

It appears that the Working Group of the Plenary (WGPL) will work, through ad hoc groups on the bulk of Internet-related issues. On the whole, WGPL will review 81 proposals and 334 pages of text in 15 sessions, and cover a range of issues including some relating to ICTs.  See here for a quick summary of the work. In addition, Committees 5 will be of relevance.

The following work is relevant:

  1. Proposals concerning the Internet-related resolutions

The WGPL formed an ad-hoc group to consider the proposals (all accessible here) relating to the following:

  • Resolution 101 concerning Internet Protocol-based networks
  • Resolution 102 concerning the ITU’s role in international internet related public policy issues & management of internet resources, including domain names and addresses
  • Resolution 133 concerning the role of Member States in the management of internationalised (multilingual) domain names
  • Resolution 180 concerning the transition from IPv4 to IPv6
  • Proposed resolution titled “ITU’s role in realizing Secure Information Society” [IND-1]
  • Proposed resolution titled “Voluntary guidelines and best practices for designing, installing and operating Internet exchange points” (IAP-7)
  • Proposed resolution titled “Bridging the international connectivity divide” (PRG-1)
  • Proposed resolution titled “Preserving and promoting multilingualism on the Internet for an integrating and inclusive information society” (IAP-1)

It appears that the Indian proposal (titled “ITU’s role in realizing Secure Information Society”, available as a standalone document here), called Proposal 98 will be controversial. See here and here for critical takes on the proposal.

  1. Ad-hoc group on WSIS-related resolutions

An ad hoc group led by Russia will look at Resolution140 (Rev. Guadalajara, 2010) concerning ITU’s role in implementing the outcomes of the World Summit on the Information Society (available here) and Resolution  172  (Guadalajara, 2010) concerning an Overall review of implementation of the outcomes of the  World Summit on the Information Society (available here). 

  1. Amendments to Resolution 136 (Antalya, 2006) (ICTs during emergency and disaster situations)

Along with the Bahamas and Vietnam, India has proposed amendments (IAP/34R1-A1/30ACP/67A1/12 and IND/85/1) to Resolution 136 (Antalya, 2006) concerning “The use of telecommunications/information and communication technologies for monitoring and management in emergency and disaster situations for early warning, prevention, mitigation and relief”. An ad-hoc group will revise Resolution 136 and report back to WGPL on Friday, 24 October (afternoon).

  1. Amendments to Resolution 130 130 (Rev. Guadalajara 2010) (strengthening ITU’s roe in builing security and confidence in ICTs)

Seven proposals (available here.) have been submitted in relation to Resolution 130 (Rev. Guadalajara 2010) concerning “Strengthening the role of ITU in building confidence and security in the use of information and communication technologies” (USA/27R1A3/4, CUB/70/2,RCC/73A1/16B/75/4ARB/79A2/13EUR/80A1/14 and INS/82/2). The need for any amendment is itself disputed, and an ad-hoc group will consider the question.

  1. Amendments to Resolution 174 (Rev. Guadalajara 2010) (illicit use of ICTs)

Seven proposals have been submitted in relation to Resolution 174 (Rev. Guadalajara 2010) concerning ITU’s role with regard to international public policy issues relating to the risk of illicit use of information and communication technologies (CUB/70/3B/75/6 and ARB/79A4/4). Concerns around this resolution related to ensuring thet there privacy is preserved, even as security concerns are addressed. The matter will be discussed by an ad-hoc group.

  1. Consolidation of proposals relating to Resolution 179 (Rev. Guadalajara 2010) (child online protection)

Four proposals on Resolution 179(Rev. Guadalajara 2010) concerning the ITU’s role in child online protection have been submitted (IAP/34R1-A1/3RCC/73A1/26ARB/79A3/6 and EUR/80A1/11) to a unanimous consensus. The United Kingdom, one of the proposers, will consolidate these proposals into a single text.

  1. Ad-hoc working group on Resolution 177 (conformance and interoperability) and a proposed resolution on counterfiet devices

Committee 5 set up an ad-hoc working group to consider revisions to Resolution 177 (Guadalajara,          2010) concerning Conformance          and            interoperability (see here) and a new draft resolution concerning counterfeit devices (available in consolidated form here).

Openness & Access

The work of the PP is divided by Committee, and all of these proceedings will be webcast here. However, text will be negotiated and prepared by ad hoc working groups whose proceedings will not be webcast. Proposals to open ITU meetings to non-members are slated to be discussed at PP-14.

A proposal to make texts of the ITU, such as PP resolutions and decisions, permanently available to the public online has been approved. The language of the amended text of Decision 12 does not cover working documents.

Reforming India’s Contempt Law

This post excerpts CCG’s submissions to the Law Commission of India on the subject of reforming contempt law. They deal in particular with the case for repealing the offence of scandalizing the court.

Colonial Origins of the ‘Scandalizing the Court’ offence

The first use of the terminology of “scandalizing the court” was in R v. Almon[1] which held that “[t]o be impartial, and to be universally thought so, are both absolutely necessary for the giving justice that free, open, and uninterrupted current, which it has, for many ages, found all over this kingdom, and which so eminently distinguishes and exalts it above all nations upon the earth[2]. That case based its reasoning in the fact that imputations concerning judges would ultimately affect the Crown, as the latter appointed the former.[3] The Court went on to hold that “the principle upon which attachments issue for libels upon courts is of a more enlarged and important nature it is to keep a blaze of glory around them, and to deter people from attempting to render them contemptible in the eyes of the public.”[4]

In R v. Gray[5], the Court defined the offence as “any act done or writing published calculated to bring a Court or a judge of the Court into contempt, or to lower his authority.” This understanding of the offence prevails today and is codified by Section 2(c) of the Contempt of Courts Act, 1971.

By 1899, the Privy Council had acknowledged that the offence was obsolete,[6] but found that it has utility in only context, holding that “in small colonies, consisting principally of coloured populations, the enforcement in proper cases of committal for contempt of Court for attacks on the Court may be absolutely necessary to preserve in such a community the dignity of and respect for the Court.”[7] For India, then, the offence is part of a repressive colonial legacy.

Almon’s rationale, that the mere imputation of partiality, whether borne out in fact or not, impedes the course of justice, and that keeping “a blaze of glory” around the judiciary is a valuable end in itself is a clearly problematic one, given that modern democratic, rule of law societies do not treat governments as ipso facto beyond reproach. The scandalizing the court offence is therefore a clearly “anachronistic form of contempt”.[8]

Untenability of the Public Confidence Rationale

However, the rationale that the Supreme Court continues to offer when employing its contempt powers to quell criticism or dissent is that the power is necessary in order to preserve public confidence in the judiciary, which is necessary to the proper administration of justice.[9] The Supreme Court has itself acknowledged that the law of contempt is intended to preserve the integrity of the adjudicatory process rather than judges’ reputations and that it should only be used as such.[10] It has also recognized the need for public scrutiny of the judiciary.[11] However, the scandalizing the court offence does not make that distinction.

In general, Supreme Court precedent does not appear to have taken a speech-sensitive approach in practice. In M.S. Namboodiripad v. T.N. Nambiar,[12] for instance, where the Chief Minister of Kerala accused the judiciary of class bias, the Supreme Court upheld the conviction for contempt, on the grounds that his words had “the effect of lowering the prestige of Judges and Courts in the eyes of the people.”[13] Again, in In Re: Arundhati Roy[14], the Court argued that it was justified in its finding of contempt (and particularly of scandalizing the court) on the ground that Roy had “tried to cast an injury to the public by creating an impression in the mind of the people of this backward country regarding the integrity, ability and fairness of the institution of judiciary” by criticizing the Court. The Court acknowledged that the judges who were the subject of the criticism faced had not been injured, and that the “wrong” had been done to the public.[15]

These approaches create an almost paternalistic justification of preventing criticism, and given that “public interest” alone is not a ground under Article 19(2), would be unjustifiable incursions into the freedom of speech.

While the stated end of the contempt power and particularly of the power to punish for “scandalizing the court” (of preserving public confidence in the judiciary) is undoubtedly a valid one, we submit that suppressing criticism would not achieve that end. The United States Supreme Court has recognized that the assumption that respect for the judiciary can secured through enforced silences rather than through open debate and criticism of courts, decisions and judges in good faith is a faulty one.[16] In fact, the opposite outcome could result. Especially given the fact that contempt proceedings are summary in nature, there is a palpable risk that they would be viewed as self-serving instead.[17] We would also submit that, at any event, the Indian judiciary, as an institution, is a resilient one, fully capable of withstanding the effects of vigorous public debate concerning its functioning.

Checking Value & Chilling Effect

Broadly, the application of the contempt power in order to secure compliance with court orders or to respond to instances of contempt in the face of the court is consistent with Article 19(2) because such activity would adversely affect the administration of justice if left unchecked. Where the contempt power is applied in order to curtail public debate concerning court proceedings and judicial integrity, however, no countervailing interest would be served.

In addition to the dissonance between the intended object and the actual outcome of the application of the scandalizing the court offence, this approach of stifling criticism of the courts also fails to account for the need for judicial accountability in their conduct and in their decision making. Given the possibility (however slim) of bias or impropriety in judges’ conduct (as other public officials) exists, public perceptions of the existing standards of judicial integrity at our courts would only be burnished through healthy debate concerning our courts and judges. The same rationale that would apply with regards to the other arms of government would apply to the judiciary as well: criticism, particularly of those in positions of political, corporate social or other power (and judges are powerful actors in any democracy’s establishment), serves an important checking function.

If scandalizing the court refers to any standard it would be an excessively subjective one, which operates on a strict liability basis. In addition to the fact of the arguably realized propensity for overuse, attaching summary procedure and criminal sanctions to such a vague offense is extremely problematic. A direct consequence of this vagueness would be the chilling of speech concerning courts and judges.

Remedies for Reputational Injuries to Judges

We do not suggest that untruths concerning judicial conduct and decision making should be allowed to circulate unchecked. Where this is the case, defamation law would allow for reputational injury to judges to be addressed adequately. In addition, other measures, such as instituting a mandatory right to reply where such allegations are made could be considered.

Therefore, we would propose that measures, including the repeal of the scandalizing the court offence, be taken so that unless some clear impediment to administering justice would arise otherwise. Where the “dignity of the court” or the reputation of particular judges is in question in particular, special care would need to be taken to ensure that it is not all criticism of the court, but only instances where criticism is based in untruths is treated as actionable.

The ‘Fairness’ Requirement

In the interests of open justice and the freedom of speech, we would also propose the removal of the requirement of ‘fairness’ in Section 5 of the Contempt of Courts Act, 1971 as it relates to the criticism.

We acknowledge that the fairness requirement may be useful where the criticism would disadvantage a party at trial, and would agree that it is a necessary component of Section 4, provided it is read in parties’ In the context of criticism of judges, however, we would advocate its removal.

The imposition of a fairness requirement would ignore the fact that the freedom of speech and opinion under Article 19(1)(a) does not discriminate between viewpoint-based and viewpoint-neutral speech[18] and that the Indian press has historically presented content with biases of ideology and opinion. Further, the term ‘fairness’ is a subjective one. If the intended outcome is to preserve public confidence in the courts, it would remain unrealized where a determination of fairness needs to be made by courts. The UK’s Law Commission has recognized that the application of contempt powers would place courts in the position of judges in their own cause, and would create the impression in the minds of the public of a self-serving judiciary.[19]

As a result, while the requirement for accuracy, which for test for factual errors or misrepresentations is a defensible one in the context of criticisms of the judiciary, we would submit that the requirement for fairness is not.

[1] (1765) Wilm 243, 97 ER 94.

[2] Id., at 255 and 256.

[3] Id.

[4] Almon, at 270.

[5] [1900] 2 QB 36.

[6] McLeod v. St. Aubyn, [1899] AC 549.

[7] Id., at 561.

[8] George Robertson and Andrew Nicol, Media Law, paragraph 7-054 (2007).

[9] Bal Kishan Giri v. State of U.P., CRIMINAL APPEAL NO. 555 OF 2010 (Judgment dated May 28, 2014).

[10] In Re: S. Mulgaonkar, (1978) 3 SCC 339 at paragraph 40, quoting with approval from R. v. Metropolitan Police Commissioner ex. p. Blackburn, (1968) 2 WLR 1204. (“Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.”)

[11] Brahma Prakash Sharma v. State of U.P., AIR 1954 SC 10, quoting with approval from Ambard v. AG for Trinidad, Tobago, (1936) 1704 PC (“Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.”)

[12]AIR 1970 SC 2015.

[13] Id., at 2024.

[14] (2002) 3 SCC 343.

[15] Id.

[16] Bridges v. California, 314 US 252.

[17] ATH Smith, Reforming the New Zealand Law of Contempt of Court: An Issues/Discussion Paper (2011) at paragraph 3.72.

[18] Printers (Mysore) Ltd. v. Assistant Commercial Tax Officer, (1994) 2 SCC 434, 441-2 at paragraph 13 (agreeing that a function of free speech is to “invite dispute”); Anand Chintamani v. State of Maharashtra, (2002) 2 Mah L.J. 14, 32-3 at paragraph 19 (holding that “[t]olerance of a diversity of view points” is a “cardinal value which lie[s]” at the very foundation of democratic government”); Terminiello v. Chicago, 337 US 1 (1949) (quoted in Printers (Mysore) Ltd. with approval).

[19] Law Commission, Contempt of Court: Scandalising The Court (Law Com No. 335) (UK) at paragraph 63-4.

Applying Multistakeholder Approaches: Threshold Debates at the IGF

The multistakeholder approach to governance (or the notion of multistakeholderism) has emerged as an important and much contested idea in the context of Internet governance debates. This year’s edition of the IGF demonstrated clearly that questions as to the meaning, scope and efficacy (or capacity for efficacy) of these terms remain to be settled.

The notion of a multistakeholder approach was introduced into the Internet governance vocabulary in the outcomes of the second round of the World Summit on the Information Society (WSIS-II). Paragraph 34 of the Tunis Agenda for the Information Society adopted a definition proposed by the Working Group on Internet Governance in its 2005 Report for the term internet governance. That definition runs as follows:

A working definition of Internet governance is the development and application by governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet.

There is no real definition of the ‘multistakeholder approach’ or of the term ‘MSism’. Nevertheless, Paragraph 34 is understood to embody a multistakeholder approach to governing the Internet. It would appear to suggest a decentralized, inclusive and participatory approach to making policy, formulating rules and to decision making more generally.

But a key concern is with the plasticity of the term. There is not even a broad consensus in practice or the academic literature around the language that would be most appropriate to capture the type of approach that Paragraph 34 describes. So there has even been some discussion around whether it is appropriate to characterize the notion as a ‘structure’ or ‘model’, as a ‘regime’ on or as an ‘–ism’ or ‘principle’ (see here, for e.g.).

Additionally, there are important questions as to how we must work the approach in practice, absent the clarity that a firm definition would have provided.

One set of concerns relates to the role of governments: Does the approach imply equal footing of actors, so that governments are only one of several actors at a round table, and all actors are equal in status? As a concern with implementation, how will this be achieved given the realities of disparate degrees of power? Does the approach suggest (through the use of the language “in their respective roles” in Tunis Agenda’s Paragraph 34) that there is some hierarchy of actors, such that governments continue as the main policy and rule formulating bodies, but that they are under a duty to consult?

One former diplomat argues that the language is unclear because there was no real agreement as to its meaning at the very inception: “Worse, the wording “in their respective roles” was a perfect example of what diplomats usually describe as constructive ambiguity: an agreement on terms that conceal a disagreement on substance.

This “disagreement as to substance” played in fairly visible terms at this edition of the IGF.

Ambassador Benedicto Fonseca Filho of Brazil spoke directly to the question of equal footing:

for government, the basic framework under which we work and we try to be consistent with in everything, at least this is an attempt to try to do in Brazil, is to be consistent with the framework that was established by the Tunis Agenda, which is our basic parameter.  So Tunis Agenda recognizes there are different roles, responsibilities for stakeholders that all of those stakeholders have legitimate concerns and interests. … So that’s does not mean equal role.  Equal role in the context of Tunis Agenda applies specifically to the notion of even enhanced cooperation, in the context referring to public policies, governments should have equal role in designing those. Of course there is an effort in the maximum extent possible. … I think there is a need to maybe have an understanding and, again, I think mutual recognition, mutual respect.

Mr. RS Sharma, Secretary,  Department of Electronics and Information Technology, Ministry of Communications & Information Technology agreed, and seemed also have some concerns with the ‘multistakeholderism’ label:

Essentially everyone has a role to play in this game, and this is not a game which is played at one level.  This is a multilevel situation….  It is something role‑based situation, which is happening.  And therefore, it should continue to happen that way.  …. So essentially I think labeling it as multi‑stakeholder is not really the right way to go about it, but really understanding that each component, what does each component of the whole system requires?  And which are the best parties to deal with that problem?  Essentially, that should be the approach.  And if that approach is recognized and accepted, I think we’ll certainly have a very harmonious way of doing things and we should also then be able to have not only a discussion forum that does not lead us anywhere, but a system which can really contribute toward the decision‑making and finally lead to some conclusions.  That’s our approach.  And that’s, I think, what should be pursued.

The civil society voice at the IGF’s Closing Ceremony presents an interesting, if stark, juxtaposition to Brazil and India’s approach. That speech also demonstrated an unease with the idea of multistakeholderism and with the role of states in the process. Multistakeholderism was a useful device to the degree that it “elevates transnational non-state actors to the same status as governments”. But the multistakeholderism label “misleads”, and results in a problematic framing of the global Internet governance debate. While states, to borrow the WGIG’s language, “in their respective roles” did have a function to perform, they were “the wrong political units for doing global Internet governance”. Multistakeholder processes did implicate state sovereignty and the tensions in the status quo could be addressed by helping elevate present conversation to stage where an independent political community for the Internet, an ‘Internet Nation’, could emerge.

Mr. Sharma, at the same IGF event at which he discussed multi-stakeholder approaches and equal footing, announced an India IGF for November 2014. In theory, the Indian Internet governance process also follows multistakeholder formats. But, given the latent defects in the theory that this post details, its success in practice will depend on, at a minimum, acting with the “mutual recognition” and “mutual respect” that Mr. Sharma endorsed as being necessary. For present, there is little, in the way of empirical information, that allows us to arrive at any conclusions about the success or failure of the multistakeholder approach for Internet governance. Time will have to tell.

CCG Talks: Felix Wu on Intermediary Liability

CCG has curated short talks on a range of issues in media law. Over the coming weeks we will be introducing them here.

As the first of these, we present Felix Wu’s talk on intermediary liability. Wu makes the case for a considered, narrowly defined space for immunity and diminished liability for intermediaries online. His talk touches on important threshold questions such as who would qualify as an intermediary for the purposes of safe harbour protections, the differing costs and benefits to speech and takedowns that original speakers and intermediaries face, and the degree of protection that it would be justifiable to grant intermediaries in light of the nature of the content in question. He discusses the intermediary liability problem more fully in a 2011 article, available here.