Guest Post: The 2021 Intermediary Guidelines and their impact on OTT Platforms

This post was authored by Radhika Roy

On 25 February 2021, the Central Government notified the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 (‘2021 Rules’). These Rules have been the subject of much controversy as social media intermediaries and media houses have challenged them in various High Courts across the country.  The Bombay High Court in AGIJ Promotion of Nineteenonea Media v Union of India stayed the operation of Rule 9(1) and Rule 9(3), the former provision mandating adherence to the ‘Code of Ethics’ and the latter creating a three-tiered structure to regulate online curated content. The High Court held that these rules contravened Article 19(1)(a) of the Constitution and transgressed the rule-making power delegated by the Information Technology Act, 2000 (‘IT Act’). This was affirmed by the Madras High Court in Digital News Publishers Association v Union of India, which noted that the order passed by the Bombay High Court had a pan-India effect.

While the Information Technology (Intermediary Guidelines), 2011 applied solely to intermediaries, the 2021 Rules cover both intermediaries and publishers of digital content, including OTT platforms (that fall under ‘publisher of online curated content). At the outset, the departure from utilising existing legislations such as the Cinematograph Act, 1952, or the Cable Television Networks (Regulation) Act, 1955, and invoking the IT Act to regulate publishers of film and television is curious. The aforementioned Bombay High Court judgement addressed this, observing that fields which stood occupied by independent legislations could not possibly be brought within the purview of the 2021 Rules.

The regulation of OTT platforms assumes particular significance given the recent controversies concerning web series that allegedly contain objectionable content or offend religious beliefs. For instance, FIRs were lodged against the makers of the web series Tandav, which led to Amazon Prime Video’s India head moving the Supreme Court for protection against arrest. Similarly, Netflix’s A Suitable Boy also triggered a police case after a political leader found the scene wherein the protagonist kissed a Muslim boy at a Hindu temple objectionable. FIRs have also been registered against the makers and producers of Mirzapur for offending religious beliefs, and a petition has been filed before the Supreme Court for portraying the Uttar Pradesh district in a negative manner.       

This blog will first set out how the 2021 Rules are applicable to OTT platforms. Second, it will examine whether the regulatory mechanisms conceived by the 2021 Rules provide unduly broad censorial powers to the Central Government, potentially threatening free speech and expression guaranteed by the Indian Constitution.

The 2021 Rules and OTT Platforms          
In February 2019, the Ministry of Electronics and Information Technology (‘MeitY’) told the Delhi High Court that the IT Act already provided stringent provisions for website blocking (under Section 69A) in case of illegal content on OTT Platforms and therefore, no mandamus could be issued to the Centre for framing general guidelines or separate provisions for OTT content. However, in February 2021, amidst rising controversies revolving around various shows, the Centre notified the 2021 Rules, Part III of which is titled “Code of Ethics and Procedure and Safeguard in Relation to Digital/Online Media”.

Rule 2(u) of the 2021 Rules defines “publisher of online curated content” as any publisher who makes available to users, on demand, audio-visual content (that is owned or licensed by the publisher) via a computer resource over the internet. OTT platforms such as Netflix, Amazon Prime Video, and Disney+Hotstar squarely fall within the ambit of such ‘publishers of online curated content’. Under Rule 8(2) of the 2021 Rules, such publishers are bound by Part III of the 2021 Rules, while Rule 9 requires such publishers to adhere to the ‘Code of Ethics’ found in the Appendix to the 2021 Rules. This Code lays down five broad principles, ranging from age classification of content to exercising due caution and discretion while depicting India’s multi-cultural background.  

Perhaps the most salient feature of Part III is its three-tier structure for redressal of grievances against content, which is applicable to both publishers of news and current affairs and publishers of online curated content. Any complaints that a publisher’s content violates the Code of Ethics or that the publisher is in breach of any rule in Part III of the 2021 Rules are addressed through the following structure:

Beyond the 2021 Rules, there will also be an establishment of an “Online Grievance Portal” by the Ministry of Information & Broadcasting (‘MIB’) where any person who objects to the content of a publisher can register their grievance. This grievance will be electronically directed to the publisher, the Ministry, as well as the self-regulating body.           

The impact of the 2021 Rules
Films released in theatres in India are subjected to pre-certification from the Central Board of Film Certification (‘CBFC’) as per the Cinematograph Act, 1952, and television programmes are governed as per the Cable Television Network (Regulation) Act, 1995. However, OTT platforms, till now, escaped the scrutiny of the law due to an absence of clarity as to which Ministry would regulate them, i.e., the MietY or the MIB. The matter was resolved in November 2020 when the Government of India (Allocation of Business) Rules, 1961 were amended to include “Films and Audio-Visual programmes made available by online content providers” within the ambit of the  MIB.     

Overregulation and independent regulatory bodies
The 2021 Rules pose a danger of overregulation vis-a-vis OTT platforms; they promote self-censorship and potentially increase government oversight over digital content.  Beginning with the second-tier of the mechanism established by the 2021 Rules, it requires a self-regulatory body to be set up which is to be headed by a Supreme Court or High Court Judge, or an independent eminent person from the field of media, broadcasting, entertainment, child rights, human rights or such other field; the members of this body, not exceeding six, are experts from various fields. Rule 12(3) dictates that the self-regulating body, after constitution, needs to register itself with the MIB. However, this registration is predicated upon the subjective satisfaction of the MIB that the body has been constituted according to Rule 12(2) and has agreed to perform functions laid down in sub-rules (4) and (5), which effectively hinders the independence of the body as the Rules fail to circumscribe the discretion that can be exercised by MIB in refusing registration to the body.

This self-regulating body can sit in appeal as well as issue guidance or advisories to the publishers, including requiring the issuance of apologies or inclusion of warning cards by publishers. However, decisions pertaining to the need to take action to delete or modify content, or instances where the publisher fails to comply with guidance or advisories of the body, are to be referred to the Oversight Mechanism under Rule 13 [Rules 12(5)(e) and 12(7)].   

Additional concerns arise at Level III – the Oversight Mechanism under Rule 13. This Oversight Mechanism requires the MIB to form an Inter-Departmental Committee (‘IDC’), which shall consist of representatives from various other Ministries; the Chairperson

of this Committee is an Authorised Officer appointed by the MIB. Rule 14(2) stipulates that the Committee shall meet periodically to hear complaints arising out of grievances with respect to decisions taken at Level I or II, or complaints referred to it directly by the MIB. This may pose certain challenges — as the IDC, which is constituted and chaired by the MIB, and consists of individuals from other Ministries, will effectively also preside over complaints referred to it by the MIB. Furthermore, the recommendations of the IDC are made to the MIB itself for issuance of appropriate orders and directions for compliance. This has the potential to create a conflict of interest, and it violates the principle of natural justice that one cannot be a judge in their own case.         

A bare perusal of the functions of Level II and Level III portrays that the powers bestowed upon the self-regulating body and the IDC overlap to a great extent. The self-regulating body may be rendered irrelevant as decisions regarding modification or removal of content or punishment of the publisher for failure to comply rest with the IDC. As the IDC is constituted by the MIB and its recommendations are referred to the MIB for issuance of orders to the publishers, for all intents and purposes, the Central Government has the final say in the online content that can be published by OTT platforms. This may make publishers wary and could have a chilling effect on freedom of speech and expression as content unfavourable to or critical of the government in power may be referred to the IDC/MIB and blocked.          

The IDC has considerable discretion when it comes to its position as an Appellate Authority. More importantly, Rule 16 allows the Authorised Officer to block content under Section 69A of the IT Act in any case of emergency may have potential for misuse. To confer upon one individual appointed by the MIB the power to block content, without providing an opportunity for hearing to the publisher, is excessive and does not provide sufficient procedural safeguards; an issue that had been glossed over by the Supreme Court while upholding the constitutionality of Section 69A and Information Technology (Blocking Rules), 2009, in Shreya Singhal v Union of India.  

In Hiralal M. Shah v The Central Board of Film Certification, Bombay,  an order of the Joint Secretary to the Government of India directing a Marathi feature film to not be certified for public exhibition was challenged andthe Bombay High Court held that the Joint Secretary was not qualified to judge the effects of the film on the public, nor did he have the experience in examination of films. The High Court observed that allowing a bureaucrat to sit in judgement over the same would make “a mockery of the substantive right of appeal conferred on the producer”. According to the Court, it was difficult to comprehend why an informed decision by an expert body, i.e. the Film Certification Appellate Tribunal constituted under the Cinematograph Act, 1952, was to be replaced with the moral standards of a bureaucrat. A similar mechanism for regulation is being constructed by way of the 2021 Rules. 

The three-tier mechanism stipulated by the 2021 Rules also raises the query as to why OTT platforms need to be regulated under the IT Act in the first place. If regulation is required, instead of adverting to the IT Act or the Cinematograph Act, 1952, which regulates traditional media, the regulatory system envisaged under the Cinematograph Act can be emulated to some extent in an alternate legislation solely governing OTT platforms. While the Cinematograph Act may be inadequate in terms of regulating new media, the current IT Rules stretch the boundaries of rule-making power of the Parliament by delving into an area of regulation that is not permissible under the IT Act.            

The 2021 Rules are subordinate legislation, and it remains contested whether Part III of the Rules could have been promulgated using the rule-making power conferred on the Central Government under the IT Act. In the case of State of Tamil Nadu v P. Krishnamoorthy, the Supreme Court held that delegated legislation could be challenged if there was failure to conform to the statute under which it was made or if it exceeded the limits of authority conferred by the enabling Act, or if there was manifest arbitrariness or unreasonableness (to an extent where the Court may say that the legislature never intended to give authority to make such rules). With respect to the 2021 Rules, when such broad and arbitrary powers are being conferred on entities which could restrict fundamental rights under Articles 19(1)(a) and 19(1)(g), it should stem from a parent Act that lays down the objective and purpose that drives such regulation. The IT Act only regulates content to the extent of specific offences under Sections 66F, 67, 67A, 67B etc. that are to be judicially assessed, and Section 79 lays down guidelines that must be followed by intermediaries to avail of safe harbour. However, by introducing a distinct class of entities that must adhere to “digital media ethics” and must constitute their own regulation bodies, there is prima facie overreach by the 2021 Rules.       

Are the IT Rules Violative of the Constitutional Rights of Free Speech and Expression?
The three-tier mechanism under the 2021 Rules may have a chilling effect on creators and producers who may be disincentivized from publishing and distributing content that could potentially be considered offensive to even a small section of society. For example, even in absence of the 2021 Rules, the makers of Tandav agreed to make voluntary cuts and tendered an apology. Similarly, despite the partial stay of the 2021 Rules by the High Courts of Bombay and Madras, OTT platforms have stated that they will play it safe and exercise restraint over potentially controversial content. After the 2021 Rules, criticism that offends the sensibilities of an individual could potentially result in a grievance under Part III, ultimately leading to content being restricted.       

In addition to this, the Code of Ethics appended to Part III states that a publisher shall “exercise due caution and discretion” in relation to content featuring the activities, beliefs, practices, or views of any racial or religious group. This higher degree of responsibility, which is ambiguous, may restrict the artistic expression of OTT Platforms. In Shreya Singhal v Union of India, the Supreme Court struck down Section 66A of the IT Act, holding that “where no reasonable standards are laid down to define guilt in a section which creates an offence and where no clear guidance is given to either law abiding citizens or to authorities and courts, a section which creates an offence and which is vague must be struck down as being arbitrary and unreasonable”. By stating that the Constitution did not permit the legislature “to set a net large enough to catch all possible offenders and leave it to the Court to step in and decide who could be held guilty”, the Supreme Court decisively ruled that a law which is vague would be void. Although a breach of the 2021 Rules does not have penal consequences, the Code of Ethics utilises open-ended, broad language whose interpretation could confer excessive discretion on the IDC in deciding what content to remove.     

Under India’s constitutional structure, free expression can only be limited to the extent prescribed by Article 19(2), and courts scrutinise any restrictions of expression stringently due to the centrality of free speech and expression to the continued maintenance of constitutional democracy. In S. Rangarajan v P. Jagivan Ram, the Supreme Court observed that the medium of a movie was a legitimate mode to address issues of general concern. Further, the producer had the right to ‘think out’ and project his own message despite the disapproval of others; “it is a part of democratic give-and-take to which no one could complain. The State cannot prevent open discussion and open expression, however hateful to its policies”. The Apex Court further stated that it was the duty of the State to protect the freedom of expression. In K.A. Abbas v Union of India, the Supreme Court upheld the constitutionality of censorship under the Cinematograph Act, but cautioned that the censorship could only be in the interest of society, and that if it ventured beyond this arena, it could be questioned on the ground that a legitimate power was being misused.  

In the aforementioned cases, the courts, while upholding censorship guidelines, acknowledged that the same had to be grounded within the four corners of Article 19(2), and the standard for censorship had to be that of an ordinary individual of common sense and prudence, and not that of a hypersensitive individual. However, in recent times, there have been regular outcries against films and web series which may offend the sensitivities of the certain sections of the public. It must be noted that the Government also has a duty to protect the speakers of unpopular opinions, and restrictions on the freedom of speech must only be a last resort when the situations provided for in Article 19(2) (e.g., public order or security of the State) are at stake. Such an approach would help allay the concerns of publishers who may otherwise either resist from creating content that could be potentially controversial or remove or modify scenes.

Conclusion
A mechanism that risks the overregulation of content on OTT platforms, as well as grants significant discretion to the Ministry by way of formation of the IDC has the potential to dilute constitutional rights. Further, with India’s burgeoning influence as a producer of cultural content, such a rigid and subjective manner of regulation inhibits artistic expression and may have a chilling effect on the exercise of free speech and expression. Publishing of content on OTT platforms is different from traditional broadcasting in the way that it is made available to the public. Streaming of content on OTT platforms is based on an ‘on-demand’ principle where viewers actively choose the content they wish to consume, and thus it may require specialised regulation. A balanced approach should be adopted for regulation of OTT platforms which adhere to the values embedded in the Constitution as well as guidelines envisioned by the Supreme Court in judgements discussed above.

This blog was written with the support of the Friedrich Naumann Foundation for Freedom.

NDTV India Ban: A Case of Regulatory Overreach and Insidious Censorship?

By Kasturika Kaumudi 

In a highly contentious move, the Ministry of Information and Broadcasting (‘MIB’) issued an order banning the telecast of the Hindi news channel ‘NDTV India’ on 9^th November, 2016. The MIB imposed this ‘token penalty’ on NDTV India following the recommendation of an Inter-Ministerial Committee (‘IMC’). The IMC had found the channel liable for revealing “strategically sensitive information” during the coverage of Pathankot terrorist attacks on 4^th January, 2016. The ban has, however, been put on hold by the MIB after the Supreme Court agreed to hear a writ petition filed by NDTV India against the ban.

The order passed by the MIB raises some important legal issues regarding the freedom of speech and expression of the press. Since the news channels are constantly in the race for garnering Television Rating Points, they may sometimes overlook the letter of the law while covering sensitive incidents such as terrorist attacks. In such cases, regulation of the media becomes necessary. However, it is tricky to achieve an optimum balance between the various concerns at play here – the freedom of expression of the press and the people’s right to information, public interest and national security.

In this post, we discuss the background of the NDTV India case and the legal issues arising from it. We also analyze and highlight the effects of governmental regulation of the media and its impact on the freedom of speech and expression of the media.

NDTV Case – A Brief Background:

On January 29, 2016, the MIB had issued a show cause notice to NDTV India alleging that their coverage of the Pathankot military airbase attack had revealed vital information which could be used by terror operators to impede the counter-operations carried by the security forces. The notice also provided details regarding the alleged sensitive information revealed by NDTV India.

In its defence, the channel claimed that the coverage had been “balanced and responsible” and that it was committed to the highest levels of journalism. The channel also stated that the sensitive information allegedly revealed by the channel regarding critical defence assets and location of the terrorists was already available in the public domain at the time of reporting. It was also pointed out that other news channels which had reported on similar information had not been hauled up by the MIB.

However, the MIB, in its order dated January 2, 2016, held that NDTV India’s coverage contravened Rule 6(1)(p) of the Programme and Advertising Code (the ‘Programme Code’ or ‘Code’) issued under the Cable TV Network Rules, 1994 (‘Cable TV Rules’). In exercise of its powers under the Cable TV Networks (Regulation) Act, 1995 (‘Cable TV Act’) and the Guidelines for Uplinking of Television Channels from India, 2011, the MIB imposed a ‘token penalty’ of a day’s ban on the broadcast of the channel.

Rule 6(1)(p) of the Programme Code:

Rule 6 of the Code sets out the restrictions on the content of programmes and advertisements that can be broadcasted on cable TV. Rule 6(1)(p) and (q) were added recently. Rule 6(1)(p) was introduced after concerns were expressed regarding the real-time coverage of sensitive incidents like the Mumbai and Gurdaspur terror attacks by Indian media. It seeks to prevent disclosure of sensitive information during such live coverage that could act as possible information sources for terror operators.

Rule 6(1)(p) states that: “No programme should be carried in the cable service which contains live coverage of any anti-terrorist operation by security forces, wherein media coverage shall be restricted to periodic briefing by an officer designated by the appropriate Government, till such operation concludes.

Explanation: For the purposes of this clause, it is clarified that “anti-terrorist operation” means such operation undertaken to bring terrorists to justice, which includes all engagements involving justifiable use of force between security forces and terrorists.”

Rule 6(1)(p), though necessary to regulate overzealous media coverage especially during incidents like terrorist attacks, is vague and ambiguous in its phrasing. The term ‘live coverage’ has not been defined in the Cable TV Rules, which makes it difficult to assess its precise meaning and scope. It is unclear whether ‘live coverage’ means only live video feed of the operations or whether live updates through media reporting without visuals will also be considered ‘live coverage’.

Further, the explanation to Rule 6(1)(p) also leaves a lot of room for subjective interpretation. It is unclear whether the expression “to bring terrorists to justice” implies the counter operations should result in fatalities of the terrorists or if the intention is to include the coverage of the trial and conviction of the terrorists, if they were caught alive. If so, it would be highly impractical to bar such coverage under Rule 6(1)(p). The inherent vagueness of this provision gives wide discretion to the governmental authorities to decide whether channels have violated the provisions of the Code.

In this context, it is important to highlight that the Supreme Court had struck down Section 66A of the Information and Technology Act, 2000 in the case of Shreya Singhal vs. Union of India, on the ground of being vague and overboard. The Court had held that the vague and imprecise nature of the provision had a chilling effect on the freedom of speech and expression. Following from this, it will be interesting to see the stand of the Supreme Court when it tests the constitutionality of Rule 6(1)(p) in light of the strict standards laid down in Shreya Singhal and a spate of other judgments.

Freedom of Speech under Article 19(1)(a)

The right of the media to report news is rooted in the fundamental right to free speech and expression guaranteed under Article 19(1)(a) of the Constitution of India. Every right has a corresponding duty, and accordingly, the right of the media to report news is accompanied by a duty to function responsibly while reporting information in the interest of the public. The freedom of the media is not absolute or unbridled, and reasonable restrictions can be placed on it under Article 19(2).

In the present case, it can be argued that Rule 6(1)(p) fails to pass the scrutiny of Article 19(2) due to inherent vagueness in the text of the provision. However, the Supreme Court may be reluctant to deem the provision unconstitutional. This reluctance was demonstrated for instance, when the challenge to the constitutionality of the Cinematograph Act, 1952 and its attendant guidelines, for containing vague restrictions in the context of certifying films, was dismissed by the Supreme Court. The Censor Board has used the wide discretion available to it for placing unreasonable restrictions while certifying films. If the Supreme Court continues to allow such restrictions on the freedom of speech and expression, the Programme Code is likely to survive judicial scrutiny.

Who should regulate?

Another important issue that the Supreme Court should decide in the present case is whether the MIB had the power to impose such a ban on NDTV India. Under the current regulatory regime, there are no statutory bodies governing media infractions. However, there are self-regulatory bodies like the News Broadcast Standards Authority (NBSA) and the Broadcasting Content Complaint’s Council (BCCC).The NBSA is an independent body set up by the News Broadcasters Association for regulating news and current affairs channels. The BCCC is a complaint redressal system established by the Indian Broadcasting Foundation for the non-news sector and is headed by retired judges of the Supreme Court and High Courts. Both the NBSA and the BCCC regularly look into complaints regarding violations of the Programme Code. These bodies are also authorized to issue advisories, condemn, levy penalties and direct channels to be taken off air if found in contravention of the Programme Code.

The decision of the MIB was predicated on the recommendation made by IMC which comprises solely of government officials with no journalistic or legal background. The MIB should have considered referring the matter to a regulatory body with domain expertise like the NBSA that addresses such matters on a regular basis or at least should have sought their opinion before arriving at its decision.

Way Forward

Freedom of expression of the press and the impartial and fair scrutiny of government actions and policies is imperative for a healthy democracy. Carte blanche powers with the government to regulate the media as stipulated by Cable TV Act without judicial or other oversight mechanisms pose a serious threat to free speech and the independence of the fourth estate.

The imposition of the ban against NDTV India by the MIB under vague and uncertain provisions can be argued as a case of regulatory overreach and insidious censorship. The perils of such executive intrusion on the freedom of the media will have a chilling effect on the freedom of speech. This can impact the vibrancy of the public discourse and the free flow of information and ideas which sustains a democracy. Although the governmental decision has been stayed, the Supreme Court should intervene and clarify the import of the vague terms used in the Programme Code to ensure that the freedom of the press is not compromised and fair and impartial news reporting is not stifled under the threat of executive action.

Kasturika Kaumudi is a Programme Officer with the Centre for Communication Governance at National Law University Delhi

Google de-platforms Taliban Android app: Speech and Competition implications?

Written by Siddharth Manohar

About a few weeks ago, Google pulled an app from its online application marketplace the Google Play Store, which was developed by the Taliban for propagating violently extremist views and spreading hateful content. Google has stated that its reason for doing this is that the app violated its policy for Google Play Store.

Google maintains a comprehensive policy statement for any app developer who wishes to upload an app for public consumption on the Play Store. The policy, apart from setting up a policy for the Play Store as a marketplace, also places certain substantive conditions on developers using the platform to reach users.

Amongst other restrictions, one head reads ‘Hate Speech’. It says:

We don’t allow the promotion of hatred toward groups of people based on their race or ethnic origin, religion, disability, gender, age, veteran status, or sexual orientation/gender identity.

Google found the Taliban app to violate this stipulation in the Play Store policy, as confirmed by a Google spokesperson, who said that the policies are “designed to provide a great experience for users and developers. That’s why we remove apps from Google Play that violate those policies.” The app was first detected by an online intelligence group which claims to monitor extremist content on social media. It was developed to increase access to the Taliban’s online presence by presenting content in the Pashto language, which is widely spoken in the Afghan region.

The application itself of course still being available for download on a number of other regular websites, the content of its material led to its removal from a marketplace. This is an interesting application of the restriction of hateful speech, because the underlying principle in Google’s policy itself pays heed to the understanding that development and sale of apps forms a kind of free speech.

A potentially interesting debate in this area is the extent to which decisions on the contours of permissible speech can be decided by a private entity on its public platform. The age-old debate about the permissible restrictions on speech can find expression in this particular “marketplace of ideas” of Google Play Store. On one hand, there is the concern of protecting users from harmful and hateful content, speech that targets and vilifies individuals based on some factor of their identity, be it race, gender, caste, colour, or sexual orientation. On the other hand, there will also ever be the concern that the monitoring of speech by the overseeing authority becomes excessive and censors certain kinds of opinions and perspectives from entering the mainstream.

This particular situation provides an easy example in the form of an application developed by an expressly terrorist organisation. It would however still be useful to keep an eye out in the future for the kind of applications that are brought under the ambit of such policies, and the principles justifying these policies.

The question of what, if any, kind of control can be exercised over this kind of editorial power of Google over its marketplace is also a relevant one. Google can no doubt justify its editorial powers in relatively simple terms – it has explicit ownership of the entire platform and can the basis on which to allow developers onto it. However, the Play Store forms an overwhelmingly large percentage of how users access any application on a daily basis. Therefore, Google’s policies on the Play Store have a significant impact on how and whether applications are accessed by users in the context of the entire marketplace of applications and users. The policy implications of this are that the principles of Google’s Play Store policies need to be placed under the scrutiny of how it impacts the entire app development ecosystem. This is evidenced by the fact that the European Commission about a year ago pulled up Google for competition concerns regarding its Android operating system, and has also recently communicated its list of objections to Google. The variety of speech and competition concerns applicable to this context make it one to watch closely for developments of any kind for further analysis.

Image Source: ‘mammela’, Pixabay.

Right to Criticise: Urdu writers and the Curious Case of the ‘Loyalty form’

By Aishwarya Ayushmaan

Recently, reports emerged in the media regarding the requirement of a ‘loyalty form’ from Urdu authors and editors whose works were acquired for bulk purchase by the National Council for Promotion of Urdu Language (NCPUL). The NCPUL, which operates under the Ministry of Human Resource Development and is chaired by Central HRD Minister Smriti Irani, purchases books in bulk orders from select Urdu authors as part of its monetary assistance scheme. However, for the past few months, the authors have claimed that they have been asked to sign a form declaring that the content of their book is not against the government or its policies. The nature of the declaration raises concerns regarding its implications on the freedom of speech and expression. Moreover, this controversial requirement is unique to Urdu authors and editors, which makes it questionable in the context of right to equality and equal treatment under law.

Right to Criticise

The right to criticise the government or its policies is an integral aspect of the right to free speech and expression. In Express Newspapers Pvt. Ltd. v. Union of India[1],   the court reiterated that, “Central to the concept of a free press is freedom of political opinion and at the core of that freedom lies the right to criticise the Government, because it is only through free debate and free exchange of ideas that Government remains representation to the will of the people and orderly change is effected.” Such a conception of the right to criticise has been further sustained in Sakal newspapers[2].

The contentious declaratory form states that:

”I, son/daughter of __________ do hereby declare that my book/journal/booklet _______________ , which has been accepted by the National Council for Promotion of Urdu Language’s scheme for financial assistance for bulk purchase, does not contain anything which goes against the policies of the Indian government, or anything that is against national interest, or anything which promotes disharmony between the various communities.”

Clearly, the declaration is worded in very general terms and is open to a liberal interpretation. The authors have to certify that the content of their books does not contain anything which goes against the policies of the Indian government, against national interest or promotes disharmony between different communities. Moreover, this declaration is backed by a warning that legal action may be pursued against the writers if they do not abide by the declaration. In such cases, monetary assistance might have to be returned.

This precludes any form of critique of the government or its policies, and in effect quells the right to criticise, recognised as an integral part of the right to the freedom of speech and expression by the Indian judiciary.

Executive Overreach

Safeguards against the misuse of freedom of speech and expression are embedded within the Constitution, in the form of Article 19(2). These grounds are comprehensive and include protecting the sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. The current declaration extends beyond these restrictions, and appears to be a case of executive overreach.

Moreover, the motivations for such a requirement seems unclear. As reported, the NCPUL has clarified that the move was brought about because of a book which was found to contain incorrect information about Dr. APJ Abdul Kalam. However, in such case a simple declaration regarding the veracity of content might be enough, and is usually part of the process in the publishing business.

The NCPUL has defended this requirement on the grounds as that the government provides financial assistance to these authors, therefore the content of their books cannot be against the government.  However, the fundamental right to freedom and speech and expression cannot be curtailed in lieu of government aid, in the absence of a specific provision to that effect in the Constitution of India. Additionally, there is no evidence of a similar requirement from authors of other languages, to which the government provides aid.

The ambiguity surrounding the nature and exact purpose of this declaration, indicates that it may not be sustainable if challenged on constitutional grounds. But, in its present form, the declaration clearly inhibits an integral aspect of the right to free speech, the right to criticise.

[1] Express Newspapers Pvt. Ltd. v. Union of India , AIR 1986 SC 872

[2] Sakal Papers (P) Ltd. and Ors. vs. The Union of India (UOI).

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 28^th March 2016.

The PornBan debate: our archived pieces on the subject

Sadly, the debate on banning pornography has not moved very far over the last two years. Here are pieces that CCG has published on the subject over time:

1. The problem with blanket bans of  online pornography: filtering online content
2. Blocking online pornography: who should make constitutional decisions about speech
3. Porn and keyword filters, and how we will be sacrificing our public discourse (within this piece on the AIB petition)

IT Ministry’s Response to Questions in Rajya Sabha (includes Blocking of Content, Net Neutrality, Amendments to IT Act, Website Accessibility)

The Ministry of Communication and Information Technology recently (8th May) provided answers to a number of questions (here and here), which were raised by the parliamentarians in the Rajya Sabha. We have extracted a set of 10 questions below, that deal with a number of issues including IAMAI’s role in blocking of content, Net Neutrality, proposals for amendment to the IT Act and accessibility of government website among others.

Question 1: (Monitoring and blocking of offensive online content) 

(a) Whether it is a fact that the Cyber Regulation Advisory Committee, in its meeting held on 5th September, 2014, has delegated the task of preparing a list of pornographic sites for blocking, to the Internet and Mobile Association of India (IAMAI), an industry organization.

(b) If so, the reasons for entrusting a private entity with a function that ought to be discharged by Government agencies in public interest; and

(c) The measures being taken by Government to enhance and strengthen the capacity and technical expertise of Government agencies for monitoring and blocking of offensive online content?

Answer:

(a) and (b) In Writ Petition in the matter of Kamlesh Vaswani vs. Union of India, the Hon’ble Supreme Court in its order dated 29.8.2014 directed that it would be appropriate if the Government places the copy of the writ petition and interlocutory applications before the Cyber Regulation Advisory Committee (CRAC), which has members from all sections of the Society including Government, Industry, Civil Society and Academy, for its consideration. The constitution of the Committee (CRAC) was revised and notified in Oct. 2010. The last CRAC meeting was held on 5th September 2014 to discuss issues relating to availability of pornography material on the Internet and filtering of the same by the service providers in the country. CRAC requested Internet and Mobile Association of India (IAMAI), an association of members from content providers to lead the effort as part of Social responsibility, to collect and maintain the repository of blacklisted pornography sites from various sources including list of child pornography sites maintained by other countries. Further, IAMAI was requested to set up help lines and web portal for reporting of such sites through Crowd sourcing mechanism. IAMAI would regularly provide the list of such sites to Government for further appropriate action. Similar approach is adopted by other countries like Australia, United Kingdom and Unites States of America, where the Governments are working with Non – Government Organizations (NGOs) to filter pornography sites.

(c) The filtering of web sites with obscene / objectionable content poses significant technical challenge. These websites keep on changing the names, domain addresses and hosting platforms from time to time making it difficult to filter or block such websites using technical tools available in the market. Further “https” websites with encrypted content are used to transmit the pornographic content which makes filtering difficult as the data is encrypted. Therefore, the tools provide filtering to a limited extent only. The tools, in the process may also filter genuine content and degrade the performance of systems.

To address the issues effectively, Government is in regular touch with Internet Service Providers to upgrade their infrastructure and technology to effectively address the shortcomings with regard to identifying and blocking encrypted websites /URLs. Further, Social Networking sites are monitored by the security agencies in order to check / remove objectionable contents from the web sites in consultation with Indian Computer Emergency Team (CERT-In) in accordance with the provisions of Information Technology Act, 2000. Government is in regular touch with Social Networking sites, having their offices in India, to disable objectionable contents at the source from their websites. Government has also initiated Research and Development programmes to deal with technical issues relating to encrypted communications from the point of monitoring and blocking.

Question 2: (Secure flow of public and private communications)

(a) The steps Government has taken or proposes to take to protect privacy and security of our citizens and elected leaders in view of recent global incidents of tapping of communications by US and UK agencies;

(b) Whether Government will control foreign agencies handling internal communications of our citizens and Government; and

(c) Whether Government will take initiative in this respect to bring together various Governments to ensure secure flow of public and private communications and protect exchange of communications of national interest among Government officials?

Answer:

(a) and (b) Sir, taking note of the disclosure by foreign media reports in June, 2013 about extensive electronic surveillance programmes deployed by the U.S. agencies to collect internet and telephony data, Government has expressed concerns over reported U.S. monitoring of internet traffic of India. Concerns with regard to violation of any of Indian laws relating to privacy of information of Indian citizens as well as intrusive data capture deployed against Indian citizens or Government infrastructure have been conveyed to the U.S. Government. In addition, the issue of U.S. cyber surveillance activities was discussed during the India-US Strategic Dialogue meeting held in New Delhi on 24 June 2013.

Government keeps on taking appropriate protective measures by way of an integrated approach with a series of legal, technical and administrative steps to ensure that necessary systems are in place to address the growing threat of cyber attacks. In this direction, Government has approved a framework for cyber security, including protection of critical sectors in country that envisages a multi-layered approach for ensuring defence-in-depth with clear demarcation of responsibilities among various agencies and departments. Government is also engaged with world community towards promoting the evolution of better international Internet governance-norms, through ongoing discussions at international fora.

(c) Government is promoting Indian players in the IT field to develop and offer Internet Services by having the servers located in India, in order to protect the interests and secrecy of communication of Indian citizens. Already Rediff and Indiatimes have set up Servers and accessories in the country to provide email and other services to Indian citizens.

Further, Government has notified email policy of Government of India on 19^th Feb. 2015 to protect exchange of communications of National interest among Government officials. The policy mandates that only Government of India email service shall be used for official correspondence, the objective of the policy includes sensitizing the Government officials regarding protection of critical Government data and mandating the use of Government mail service for official communication. Government has also planned to install Secure & Dedicated Communication Network (SDCN) for Intra-Government Classified Communication.

Question 3: (Net Neutrality on the use of Internet)

(a) Whether TRAI has come out with a discussion paper on the use of internet particularly the Net Neutrality in the country

(b) If so, the details thereof

(c) Whether it is a fact that many people in the country are in favour of Net Neutrality and have given their comments to TRAI in this regard; and

(d) The stand of Government on Net Neutrality?

Answer:

(a) and (b) Telecom Regulatory Authority of India (TRAI) has released a consultation paper on “Regulatory Framework for Over-the-top services” on 27th March, 2015 for inviting comments from various stakeholders. This consultation paper also covers the issues related to Net Neutrality. The last date for receiving comments and counter comments is 24th April, 2015 and 8th May, 2015 respectively. Further, this consultation paper is available on TRAI website http://www.trai.gov.in.

(c) TRAI has received a large number of comments (more than 10 Lakh) in response to the consultation paper on “Regulatory Framework for Over-the-top services”. This consultation paper also covers the issues related to Net Neutrality. These comments are uploaded in TRAI website http://www.trai.gov.in.

(d) Government notes with assurance the growth of internet in India and wide platform it has offered for innovation, investment and creativity. Government is committed to the fundamental principles and concept of net neutrality and strives for non-discriminatory access to Internet for all citizens of the country.
At present the issues pertaining to net neutrality are in consultation stage. Department of Telecommunications has constituted a committee in January, 2015 to examine various aspects of net neutrality and recommend overall policy and technical response to net neutrality. The committee has already held stakeholder consultation meetings with Over the Top (OTT) players, Telecom Service Providers/Internet Service Providers, Civil Society Member & Consumer groups, Multi stakeholder Advisory Group (MAG) of Department of Electronics & Information Technology (DeitY) and various Associations/Industry bodies.
Based on the report of committee and TRAI recommendations Government will take a considered decision.

Question 4: (Resolving Net Neutrality Issue)

(a) How does Government proposes to address and resolve the Net Neutrality issue; and

(b) How does Government plans to ensure that telecom operators won”t pass on to the customers the burden of high spectrum price paid by them to the Government?

Answer:

(a) Government notes with assurance the growth of internet in India and wide platform it has offered for innovation, investment and creativity. Government is committed to the fundamental principles and concept of net neutrality and strives for non-discriminatory access to internet for all citizens of the country.

At present the issues pertaining to net neutrality are in consultation stage. Telecom Regulatory Authority of India (TRAI) has released a consultation paper on “Regulatory framework for Over-the-top services” on 27th March 2015. This consultation paper covers the views of the service providers and OTT providers and related issues including net neutrality. The last date for receiving comments and counter comments is 24th April, 2015 and 8th May, 2015 respectively.

Department of Telecommunications has constituted a committee in January,2015 to examine various aspects of net neutrality and recommend overall policy and technical response to net neutrality. The committee has already held stakeholder consultation meetings with Over the Top (OTT) players, Telecom Service Providers/Internet Service Providers, Civil Society Member & Consumer groups, Multi stakeholder Advisory Group (MAG) of Department of Electronics & Information Technology (DeitY) and various Associations/Industry bodies.

Based on the report of committee and TRAI recommendations Government will take a considered decision.

(b) Tariff for telecom services falls under purview of Telecom Regulatory Authority of India (TRAI). As per the existing tariff framework, tariff for telecommunication access service is under forbearance except for National Roaming and Rural Fixed Line Services. The service providers have the flexibility to decide various tariff components for different service areas of their operation. Tariffs are offered by service providers taking into account several factors including input costs, level of competition and other commercial considerations.

Question 5: (Position on Net Neutrality)

Whether in view of the fact that a committee has been formed within the Ministry to evolve its position on Net Neutrality, Government would ensure that the position on Net Neutrality is discussed in the Parliament and with the public, the details thereof?

Answer:

Government notes with assurance the growth of internet in India and wide platform it has offered for innovation, investment and creativity. Government is committed to the fundamental principles and concept of net neutrality and strives for non-discriminatory access to Internet for all citizens of the country.
At present, the issues pertaining to net neutrality are in consultation stage. Telecom Regulatory Authority of India (TRAI) has released a consultation paper on “Regulatory Framework for Over-the-top services” on 27^th March, 2015 for inviting comments from various stakeholders. This consultation paper also covers the issues related to Net Neutrality. The last date for receiving comments and counter comments is 24^th April, 2015 and 8th May, 2015 respectively. Further, this consultation paper is available on TRAI website http://www.trai.gov.in.

Department of Telecommunications has constituted a committee in January, 2015 to examine various aspects of net neutrality and recommend overall policy and technical response to net neutrality. The committee has already held stakeholder consultation meetings with Over the Top (OTT) players, Telecom Service Providers/Internet Service Providers, Civil Society Member & Consumer groups, Multi stakeholder Advisory Group (MAG) of Department of Electronics & Information Technology (DeitY) and various Associations/Industry bodies. The committee has been asked to submit its report by May, 2015 end.

Further, Statement on Calling Attention Notice by Sh. Derek O’ Brien Hon’ble MP, Rajya Sabha on ‘Issue of safeguarding Net Neutrality in the country’ was made by Hon’ble Minister of Communications & IT on 05.05.2015 and he replied on various queries, issues and aspects raised by Hon’ble Members of Rajya Sabha. (Copy of statement is annexed).

Based on the report of committee and TRAI recommendations Government will take a considered decision.

Question 6: (Amendment to IT Act, 2000)

(a) Whether Government is planning to amend the Information and Technology (IT) Act 2000 in the aftermath of the recent Supreme Court judgement that struck down Section 66A as unconstitutional, with a view to de-criminalize posting of offensive content on the Internet;

(b) If so, whether Government is planning to include procedural safeguards in such a provision to ensure that such provision is not misused by fundamentalist elements in Society to harass law-abiding citizens; and

(c) if so, the details thereof and if not, the reasons therefor?

Answer:

(a), (b) and (c) Presently, there is no proposal with the Government to amend the Information Technology (IT) Act 2000. However, Ministry of Home Affairs has constituted a Committee to examine the implications of the Hon’ble Supreme Court’s judgment quashing Section 66A of the Information Technology Act 2000 and to suggest appropriate legal remedy to fill gaps in the legal regime, if any, in the wake of the aforesaid judgment.

Also, an Expert Committee under the Chairmanship of Shri T.K. Vishwanathan, former Secretary, Law Commission & Secretary General has been set up by Ministry of Home Affairs to study and examine the existing domestic cyber laws and International Cyber legislations and recommend a road map with measures and amendments to the present laws for consideration of the Government.
Further, in order to comprehensively address the issues of Cyber Crimes, Ministry of Home Affairs has set up an Expert Group consisting of Academicians and Professionals of repute to prepare a roadmap for effectively tackling the Cyber Crimes in the country and give suitable recommendations on all facets of cyber crime. The five-member Expert Study Group comprises of Dr. Rajat Moona, Director General Centre for Development of Advanced Computing (CDAC), Professor Balakrishnan, Indian Institute of Science, Bengaluru, Dr. Gulshan Rai, then Director General Indian Computer Emergency Response Team (Cert-In), Professor Manindra Aggarwal, Indian Institute of Technology (IIT), Kanpur and Professor D. Dass, International Institute of Information Technology (IIIT), Bengaluru. Shri Kumar Alok, Joint Secretary, Ministry of Home Affairs is the Convenor of the Expert Group. The Terms of Reference of the Expert Group are:

i) To prepare a Road Map for effectively tackling the Cyber Crime in the country and give suitable recommendations on all its facets.

ii) Recommend possible partnerships with Public and Private Sector, NGOs, International Bodies and International NGOs.

iii) Any other special measures / steps the Expert Group may like to recommend with regard to tackling Cyber Crimes.

Question 7: (Broadband penetration in the county)

(a) Whether it is a fact that our country is ranked below Bhutan and Sri Lanka in terms of broadband penetration and ranks 125th in the world for fixed broadband penetration;

(b) Whether Telecom Regulatory Authority of India (TRAI) has suggested that the multi-layered structure involved in the decision making for the sector needs to be overhauled;

(c) If so, the details thereof;

(d) Whether it is also a fact that TRAI has also suggested that the licence fee on the revenue earned from fixed line should be exempted for five years; and

(e) If so, the view of Government in this regard?

Answer:

(a) As per ‘The State of Broadband 2014: Broadband for All’ report, published by the Broadband Commission of the International Telecommunication Union (ITU) and the United Nations Educational, Scientific and Cultural Organization (UNESCO) which was published in September 2014, the ranking of Bhutan, Sri Lanka and India with respect to Fixed Broadband penetration for 2013 are as under:

Fixed Broadband Penetration

                     (per 100 inhabitants)     Rank

Bhutan                       2.7                     108

Sri Lanka                    2.0                     115

India                            1.2                    125

(b) to (e) Telecom Regularity Authority of India (TRAI) in its recommendations “Delivering Broadband Quickly: What we need to do?”, dated 17.04.2015 has inter alia, recommended the following

(i) Overhauling of multi-layered structure involved in the decision making in respect to National Optical Fibre Network (NOFN) project

(ii) Exemption of the license fee on the revenues earned on fixed line Broadband for at least 5 years.

A committee has been constituted on 29.04.2015 in Department of Telecommunications to examine the TRAI recommendations.

Question 8: (Law with the concept of Net Neutrality)

(a) Whether Government is bringing a law with the concept of Net Neutrality for consumers; and

(b) if so, by when?

Answer:

(a) and (b) Government notes with assurance the growth of internet in India and wide platform it has offered for innovation, investment and creativity. Government is committed to the fundamental principles and concept of net neutrality and strives for non-discriminatory access to internet for all citizens of the country.
The issues pertaining to net neutrality are in consultative stage. Telecom Regulatory Authority of India (TRAI) has released a consultation paper on “Regulatory Framework for Over-the-top services” on 27th March, 2015 for inviting comments from various stakeholders. This consultation paper also covers the issues related to Net Neutrality. The last date for receiving comments and counter comments is 24th April, 2015 and 8th May, 2015 respectively.

Department of Telecommunications has constituted a committee in January, 2015 to examine various aspects of net neutrality and recommend overall policy and technical response to net neutrality. Committee has been asked to submit its report by May, 2015 end.

Based on the report of committee and TRAI recommendations Government will take a considered decision, in the best national interest.

Question 9: (Regulation of Over the Top services)

(a) The stand of Government in protection of Net Neutrality;

(b) Whether Government proposes to regulate Over-the-Top (OTT) services;

(c) The argument for and against for regulation of OTT services;

(d) The details of the growth of internet traffic and internet users over the years;

(e) The details of the revenue generated by different telecom companies over the years; and

(f) Whether the move to regulate OTT services will affect the growth of start-ups in the country?

Answer:

(a),(b),(c) & (f) Government notes with assurance the growth of internet in India and wide platform it has offered for innovation, investment and creativity. Government is committed to the fundamental principles and concept of net neutrality and strives for non-discriminatory access to internet for all citizens of the country.
At present the issues pertaining to net neutrality are in consultation stage. Telecom Regulatory Authority of India (TRAI) also has released a consultation paper on “Regulatory framework for Over-the-top services” on 27th March 2015 for inviting comments from various stakeholders. This consultation paper also covers the issues related to Net Neutrality. The last date for receiving comments and counter comments is 24th April, 2015 and 8th May, 2015 respectively. This consultation paper covers the views of the service providers and OTT providers and related issues including net neutrality.

The main arguments in favour of OTT regulation is loss of traditional revenues from data and voice to telecom service providers, telecom service providers are subjective to all licensing and regulatory conditions whereas the OTT providers are not subjected to similar restrictions and that large scale OTT service in traditional services could significantly hampered the TSPs investment capability and growth. The TSPs are insisting on ‘Same Service Same Rules’ to maintain regulatory balance.

The main argument against OTT regulation is that the OTT players offer services through internet provided by TSPs and the TSPs are paid for internet services consumed by end users and OTT service lead to increase data usages and revenue to TSPs.

Department of Telecommunications has constituted a committee to examine various aspects and recommend overall policy and technical response to net neutrality.
Based on the report of committee and TRAI recommendations Government will take a considered decision in the best national interest

(d) Details of Internet subscribers are as under

For the period ending      Dec-2013          Dec-2014 Internet subscribers (in Crores)

As per TRAI                       23.87                  26.74

As per IAMAI-IMRB report ‘Internet in India 2014’  > 30

(e) The trend of revenue from data usage from full mobility service (GSM+CDMA) segment is given below:

                       Quarter ending Revenue from data usage (in Rs. crore)

June 2013           3057.83

September 2013 3594.83

December 2013 4240.01

March 2014        4637.89

June 2014           5259.18

September 2014 5911.05

December 2014  6457.06

Question 10: (Government websites meeting international standards of web accessibility)

(a) Whether any survey has been conducted by Government regarding the number of Government websites that meet the international standards of web accessibility;

(b) if so, the details thereof;

(c) Whether it is a fact that in an accessibility survey conducted by National Centre for Promotion of Employment for Disabled People (NCPEDP), not a single Government website was accessible; and

(d) The steps taken to improve web accessibility?

Answer:

(a) Yes, Sir.

(b) The Guidelines for Indian Government Websites (GIGW) have been adopted by the Department of Administrative Reforms & Public Grievances (DARPG) and have become a part of the Central Secretariat Manual of Office Procedure (CSMOP). The GIGW accessibility guidelines are based on W3C”s Web Content Accessibility Guidelines (WCAG) 2.0. These are internationally accepted guidelines on web accessibility and cover a wide range of recommendations for making web content more accessible.

DeitY has initiated the Website Quality Testing project which is being executed by Standardization Testing and Quality Certification (STQC) for testing and certifying the government websites. Under this project, 1000 websites have been undertaken for testing. Currently, around 950 websites of various Ministries/Departments, attached offices, societies have already been tested by STQC and test reports have been sent to the concerned Ministries/Departments for addressing the issues of non-compliance.

(c) and (d) No, Sir. However, as per the Web Accessibility Survey Report for Indian Government websites – 2012 of National Centre for Promotion of Employment for Disabled People (NCPEDP), none of 10 Government websites were able to meet even the basic accessibility standards. The Government has undertaken following steps in this regard:

(i) The Guidelines for Indian Government Websites (GIGW) have been adopted by the Department of Administrative Reforms & Public Grievances (DARPG). The GIGW guidelines adhere to the requirements of persons with disabilities and ensure compliance with level A of Web Content Accessibility Guidelines (WCAG) 2.0 as laid down by World Wide Web Consortium (W3C). GIGW has incorporated all the level A success criteria and a few success criteria from level AA. This is sufficient to make the websites accessible.

(ii) Department of Electronics and Information Technology (DeitY) has had three rounds of meetings with the Website Information Managers (WIMs) of various Government departments to sensitize the departments regarding addressing the non-conformance issues of their websites with GIGW. STQC along with e-Governance division of DeitY and NIC has conducted one-to-one discussion with the concerned departments and ministries to close the non-conformance areas.

(Sarvjeet is a Project Manager and Research Fellow at the Centre for Communication Governance at National Law University, Delhi)

Launch of Freedom on the Net India Report

Freedom House, an independent watchdog organization dedicated to the expansion of freedom around the world has been published the latest Freedom on the Net Report, which assesses the degree of Internet, and digital media freedom around the world. Freedom House’s methodology is listed here.

The entire 2014 Report is available here and the India Country report is available here. Indian has had the largest increase in Internet freedom over the past year. India scored 42 points this year, which is an improvement of 5 points over the previous reporting period.

The Indian report is authored by Centre for Communication Governance‘s Research Director- Chinmayi Arun, Research Fellow Sarvjeet Singh and Research Assistants Parul Sharma and Medha Vikram.

The Centre is organising a panel discussion to launch the India Country Report and discuss the implications of the data contained in the report.

LAUNCH EVENT

for

‘FREEDOM ON THE NET: INDIA REPORT 2014’

6:00 p.m., 9^th December 2014

Organised by

Freedom House, Washington DC

&

Centre for Communication Governance at National Law University, Delhi

at

Lecture Room – II | India International Centre Annexe | Joseph Stein Lane, Lodhi Estate, Max Muller Marg | New Delhi

Timings	Programme
6:00 p.m. – 6:20 p.m.	Tea
6:20 p.m. – 6:30 p.m.	Welcome address by Prof. (Dr.) Ranbir Singh, Vice- Chancellor, National Law University, Delhi
6:30 p.m. – 6:40 p.m.	Launch of the Freedom on the Net India Country Report
6:45 p.m. – 7:30 p.m.	Panel Discussion on ‘Freedom on the Net in India’ Madeline Earp, Research Analyst, Freedom House Dr. Ajay Kumar, Joint Secretary, DeitY, Ministry of Communication & Information Technology Vikram Tiwathia, Deputy Director General, Cellular Operators Association of India Chinmayi Arun, Co-author, Freedom on the Net India Report & Research Director, CCG
7:30 p.m. – 7:50 p.m.	Discussion
7:50 p.m.	High Tea

Panel Discussion on ‘Intermediary Liability & Freedom of Expression in India’

Panel Discussion on ‘Intermediary Liability & Freedom of Expression in India’

6:00 p.m., 26th March 2014

Organised by

The Global Network Initiative, Washington DC

&

Centre for Communication Governance at National Law University, Delhi

at

Lecture Room – I | India International Centre Annexe | Joseph Stein Lane, Lodhi Estate, Max Muller Marg | New Delhi

The panel will focus on the Indian legal framework governing Internet platforms, especially with regard to online content and its implications for citizens rights. India has seen significant debate with respect to Internet intermediaries and the balance that should be involved in regulations affecting user-generated content. It has been argued that the current legal framework creates incentives for online intermediaries to take down content even when no substantive notice or legitimate reasons have been offered, and despite the fact that this content may actually be highly relevant for public communication and proper democratic functioning.

The panel will explore these questions in the context of the civil liberties that are key to democracy, especially free expression and privacy. It will draw connections between this ostensibly Internet-related issue, and the traditional media, tohighlight recurring issues and useful perspectives.

Welcome Address:

– Prof. (Dr.) Ranbir Singh, Vice Chancellor, NLU, Delhi

Panelists:

–       Jermyn Brooks, Outgoing Independent Chair, Global Network Initiative, Washington DC

–       Shyam Divan, Senior Advocate, Supreme Court of India

–       Siddharth Varadarajan, Journalist & Senior Fellow, Centre for Public Affairs and Critical Theory, New Delhi