Guest Post: A Positive Obligation to Ensure and Promote Media Diversity

This post was authored by: Aishvarya Rajesh

A positive obligation with respect to a human right is one that requires States to put into effect both preventive measures against violations (through appropriate legislative, judicial or administrative measures) and remedial measures (access to judicial reform once violations have occurred). This piece examines whether ensuring media diversity can be considered a positive obligation on States under Article 19 of the International Covenant on Civil and Political Rights (“ICCPR”), and if yes, what the scope and nature of this obligation is.

Positive obligation on States to create a favourable environment for sharing diverse views  

The right to freedom of speech and expression enshrined under Article 19 of the ICCPR forms the cornerstone of democratic societies. It, along with its corollary freedom of opinion, is vital for the full development of a person and for the true participation in public debate. The ECtHR, in its landmark decision of Dink v. Turkey, has interpreted the right to freedom of expression to include a positive obligation on States to ensure the effective protection of free expression from being wrongfully interfered by private/non-state actors, and for the State itself to create “an enabling environment by allowing for everyone to take part in public debate and express their thoughts and opinions” (¶137). The Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression has also acknowledged that there has been an increasing recognition that States have positive regulatory obligations to promote free speech and expression in online spaces too. The Joint Declaration on Diversity of 2007, a document prepared by several eminent jurists appointed as Representatives or Rapporteurs by the UN, OSCE, OAS, and ACHPR has similarly identified States’ positive obligation to regulate private actors so as to promote diversity in the media and prevent the undue concentration of media ownership.

The requirement for media diversity as a positive obligation on States may also be seen as emanating from interpretations of different international instruments read together, an outcome that has also been reflected in the decisions of different human rights bodies. For instance, a conjunctive reading of Art.19 and Art.2 of the ICCPR (as with the parallel provisions in the UDHR and regional human rights instruments) can be interpreted to show the positive obligation on States to promote media diversity. This interpretation has been endorsed by the Inter-American Commission on Human Rights in inter alia Baruch Ivcher Bronstein v. Peru, (2001) which opined that “…consequently, it is vital that [media] can gather the most diverse information and opinions” (¶149); and by the European Court in Informationsverein  Lentia  and  Others  v.  Austria (1993) noting, “…Such an undertaking cannot be successfully accomplished unless it is grounded in the principle of pluralism, of which the State is the ultimate guarantor…” (¶38).

The positive obligation includes within its ambit an obligation to prevent undue concentration within media eco-systems

A positive obligation on the State to foster an environment where a diversity of ideas and opinions (media diversity) is available to the public can entail a very wide array of obligations on the State. For instance, this raises questions regarding the extent or the scope of this obligation in the regulation of social media intermediaries who have managed to accumulate significant control within the online media space. This sort of control could be seen as giving them the ability to behave in a near monopolistic manner. The Centre for Law & Democracy, in February, 2022 gave their submissions on the Practical Application of the Guiding Principles on Business and Human Rights to the Activities of Technology Companies where they opined inter alia that States can be obligated to undertake measures to promote diversity in an online space that has seen high market concentration by large social media companies.

Concentration within media eco-systems is antithetical to the idea of media diversity

Given that a positive obligation to promote media diversity exists, a necessary corollary of this would be the need to prevent undue concentration within media eco-systems. According to UNESCO, undue concentration in media refers to when one corporate body (or individual) “exercises overall control over an important part of an overall media market”. This would prevent and hinder the ability of people to receive information from multiple sources, which is crucial for the true exercise of the freedom of speech. This is because media monopoly can cloud the ‘marketplace of ideas’, and according to the Special Rapporteur for Freedom of Expression, “leads to the uniformity of the content that they produce or disseminate”. Furthermore according to UNESCO, a media monopoly poses a threat to not just the freedom of expression but by extension also to democracy as it hinders the ability of media to reflect the variety of opinions and ideas generated in the society as a whole.

Obligation to monitor and restrict M&As in the media space

In 2007, the Joint Declaration on Diversity (by the Special Rapporteurs of the UN, OAS and ACHPR and the OSCE Representative on freedom of the media) in broadcasting emphasized the requirement to put in place anti-monopoly (both horizontal and vertical) rules, including ‘stringent requirements’ of transparency enforced through active monitoring. This also covered the need to prevent powerful combinations as a result of merger activity in the media space. The Committee of Ministers of the Council of Europe has emphasized the need for licensing to be made contingent on media platform owners acting in harmony with the requirement to ensure media diversity. UNESCO’s Media Development Indicators, also acknowledge that States are required to prevent monopolies or oligopolies and must take this into account during the provision/renewal of license. The measures that States were required to take to promote media diversity and prevent monopoly were called ‘special measures’ (in the Joint Declaration on the Protection of Freedom of Expression and Diversity in the Digital Terrestrial Transition), going beyond those already existing in commercial sectors, which indicates a recognition of the need to secure media pluralism inter alia through ensuring competitiveness in the space.

Conclusion

A State’s positive obligations under the right to free speech and expression can be viewed as emanating directly from treaty obligations and has also been widely interpreted by a multitude of judicial decisions and eminent jurists. Acknowledging these as sources of international law under Articles 38(1)(a) and 38(1)(d) of the ICJ Statute we can argue that a State’s positive obligations under Art. 19 of the ICCPR and analogous free speech protections under international law must also include within their ambit obligations to ensure media diversity. This includes the protection of both, the rights of the speaker and the audience, under the right to freedom of speech and expression. Some ways in which this can be ensured is through allocation of funds specifically for public interest content and other at-risk sectors; establish holistic and functional market concentration monitoring systems; and also delegate, through co-regulation or self-regulation, a part of the State’s positive obligation directly to the media platforms itself to ensure diversity in its operations. The measures undertaken must be carefully designed and should fulfill the aims of promoting diversity, avoiding monopolistic behaviour, and not put at risk the independence of the media.

CCG’s Comments to the Department of Telecommunications on the Draft Telecommunication Bill, 2022

On 21st September 2022, the Department of Telecommunications (“DoT”) released the Draft Telecommunication Bill, 2022 for feedback and public comments. The draft is based on the consultation paper on ‘Need for a new legal framework governing Telecommunication in India’ which was published by the DoT in July 2022. The proposal aims to replace three laws: the Indian Telegraph Act, 1885, the Indian Wireless Telegraphy Act, 1933, and the Telegraph Wires (Unlawful Possession) Act, 1950.

CCG submitted its comments on the Bill, highlighting its feedback and key concerns. The comments were authored by Aishwarya Giridhar, Priyanshi Dixit, Sidharth Deb, reviewed and edited by Jhalak M. Kakkar, Shashank Mohan, Sachin Dhawan with research help from Shreenandini Mukhopadhyay and Shreya Parashar. 

CCG’s key comments on the Government of India’s proposals under the Bill are divided into 6 parts –

Exclude digital/ internet based services from telecommunication regulation

The Information Technology Act, 2000 (“IT Act”) exclusively deals with issues pertaining to the internet and digital platforms, and provides corresponding regulation and user safeguards. The Bill’s proposed inclusion of digital services within telecommunications law may create a parallel legal regime and regulatory confusion that hinders innovation and the ease of doing business. Additionally, this Bill would likely subsist in parallel to the forthcoming Digital India Act which is under development at the Ministry of Electronics and Information Technology (“MeitY”). Therefore, we propose that the telecommunication regulation in India should not include digital services as it would create dual compliances for services which will negatively impact India’s overall internet ecosystem.

Revisit the Premise of Licensing Internet Based Digital and Software Services

Telecom Service Providers (“TSPs”) require a license to operate in the market since their operations are dependent on the use of spectrum, which is a limited natural resource. It is based on this scarcity that the Government grants exclusive licenses to access and use spectrum to select service providers. The Government’s privilege in this regard emerges from spectrum scarcity and the public trust doctrines. Conversely, internet based services do not function with the same scarcities and resource requirements as TSPs. Instead, they offer their services over the internet/ telecom network infrastructure. The internet is an ecosystem of abundance and thus digital service providers need not contend with the same infrastructural scarcities as network operators. Since OTTs services do not require exclusive allocation of a scarce public resource like spectrum, imposing strict licensing requirements on them would hinder innovation, consumer choice and user accessibility.

The Bill Should Avoid One Size Fits All Regulation

The Bill in its current form deploys overbroad definitions for several terms including “telecommunication services” and “message”. This particular definition will envelope all OTT communication services, data communication services, email, and other digital platforms within a common licensing regime as all telecom services. Aside from compromising the principle of legal certainty, this overbroad definition contributes to a one size fits all regulatory approach for both carriage and content providers. Such a broad approach is antithetical to the internet’s innate characteristics and heterogeneities across its network stack. It is also inconsistent with the growing international and domestic consensus that the internet requires differential regulations which are curated to the features and contextual harms which are native to specific types of platforms and services. 

The Bill’s Interception Proposals are Overbroad and may Violate Constitutional Rights

The Bill allows the State to order the interception of messages transmitted over telecommunication services or networks in specific situations. The broad definition in the Bill allows this provision to broadly apply to all messages communicated over all digital services, which may amount to a disproportionate restriction on users’ right to privacy. Under Indian jurisprudence, measures restricting privacy must: (a) be provided by law; (b) pursue a legitimate aim and be necessary in a democratic society; (c) be proportionate to the need for the interference with the right to privacy; and (d) contain procedural safeguards to prevent against abuse. Existing provisions permitting interception must be re-examined for conformity with these standards and recent Supreme Court jurisprudence. Additionally, interception provisions in the Bill overlap with those in the IT Act and risks creating a parallel regulatory regime over digital services. 

The Bill’s ID Verification Proposals may Violate Constitutional Rights to Privacy and Free Expression

The Bill requires service providers to identify users of their services, and also requires the identity of persons sending messages over telecommunication services to be made available to the recipient. Although these measures may have sought to target cyber-fraud, they will also serve to effectively remove anonymity in online communications. Online anonymity and encrypted services can however play a key role in protecting user privacy and the right to free expression, and mandated identity verification systems can significantly restrict these rights, particularly for minorities and vulnerable populations.

Provisions relating to the Suspension of Telecommunications Services Would Restrict the Right to Free Expression

The Bill authorises the State to direct the suspension of communications transmitted or received by telecommunication networks. It allows for the suspension of ‘telecommunication services’, which would include all digital services, along with phone calls, text messaging, etc. This provision would expand the ambit of suspension powers to allow states to restrict or blacklist specific services, in addition to restricting access to the internet as a whole. The internet plays a key role in exercising fundamental rights such as free expression and education, and in accessing essential services. Wide powers to restrict access to the internet as a whole, as well as specific services can therefore significantly restrict the fundamental rights of users.

You can read CCG’s full submission to the DoT here.

Guest Post: Unpacking the Supreme Court’s interim order on sedition

This post is authored by Dhruv Bhatnagar

On May 11, 2022, the Supreme Court issued a consequential interim order (“Order”) in a batch of petitions challenging Section 124A of the Indian Penal Code, 1860 (“IPC”), which penalises the offence of ‘sedition’. The Order grants the Central Government time to re-examine the validity of Section 124A, and whilst this process is underway, effectively suspends the provision’s operation through these directions:

1. it is “hop[ed] and expect[ed]” that the Central and State Governments will refrain from registering fresh ‘first information reports’, continuing investigations, and taking coercive measures under Section 124A;
2. persons subsequently charged with sedition can approach courts for appropriate relief and their plea must be considered in light of the Order; and
3. pending legal proceedings relating to sedition are to be kept in abeyance. However, proceedings under other penal laws can continue if no prejudice is caused to the accused.

After briefly explaining the offence of sedition and summarising the facts leading up to the current constitutional challenges, this post analyses the Order along three lines – its impact on fundamental rights; relevance for persons facing prosecution and incarceration for sedition; and possible hurdles to its effective implementation.

Sedition explained

Section 124A is a colonial law penalising (with up to life imprisonment) expression intended to incite hatred, contempt, or disaffection against the Government established by law. This offence is cognisable and non-bailable, meaning that the accused can be arrested without a warrant and grant of bail is not automatic, but rather subject to the discretion of the presiding court. Pertinently, the offences of ‘sedition’ and ‘seditious libel’ were abolished in the UK through the Coroners and Justice Act, 2009, pursuant to recommendations by UK’s Law Commission. Similarly, in furtherance of the Australian Law Reform Commission’s recommendations, in 201o the Australian Government replaced ‘sedition’ with ‘urging violence offences’ in the nation’s federal criminal law. This reform was introduced to modernise and clarify the elements of criminal offences. Thus, although multiple common law jurisdictions have long discarded sedition from their statute books, this archaic offence unfortunately remains in the IPC nearly 75 years after India’s independence. 

Section 124A’s constitutionality was tested in 1962 by a five-judge bench (i.e., a constitution bench) of the Supreme Court in Kedar Nath Singh (analysed here). The provision was declared valid since it was enacted “in the interest of… public order” (¶26). Acknowledging that a broad (or arguably even plain) interpretation of the offence may constitute an unreasonable restriction on free speech under Article 19(2), the Supreme Court limited Section 124A’s applicability to activities inciting violence or having the “tendency to create public disorder…” (¶27). Constitutional law scholars have pointed out that the Supreme Court’s interpretation of Section 124A in Kedar Nath is inconsistent with the provision’s text, which remains overbroad. This interpretative gap has been suggested as a reason for the provision’s misapplication.

Material facts

Against the backdrop of a sharp increase in the registration of sedition cases, several petitioners, challenged the constitutionality of Section 124A before the Supreme Court in 2021. Multiple petitioners (here and here) argued that:

1. Kedar Nath was incorrectly decided because the Supreme Court overlooked the legal standard to legitimately curb speech under Article 19(2). As espoused in Ram Manohar Lohia (decided two years earlier in 1960, analysed here), this standard was a “proximate relationship” (¶13) between speech and apprehended public disorder, not a mere “tendency to create public disorder” (¶27, Kedar Nath).
2. Section 124A is inconsistent with later Supreme Court decisions on free speech, including the seminal Shreya Singhal ruling (analysed here) wherein it was held that only incitement to public disorder, and not mere advocacy or discussion a particular cause can be curbed by law.
3. Charges under section 124A have been frequently filed against journalists, politicians, and artists (among others), leading to a chilling effect on free speech.
4. Section 124A’s broadness violates India’s international law commitments, particularly under Article 19 of the ICCPR, requiring restrictions on the freedom of expression to be necessary and unambiguous.  

These petitions were heard by different three-judge benches of the Supreme Court. However, as Section 124A’s constitutionality was upheld by five judges in Kedar Nath, according to the larger bench rule, only a constitution bench having a minimum of seven judges can invalidate Section 124A after conclusively overruling Kedar Nath. Thus, the preliminary question before the bench that passed the Order, comprising of Chief Justice N.V. Ramana, Justice Surya Kant and Justice Hima Kohli, was whether to refer the present-day challenges to a larger bench. The petitions were heard over the course of about a year:

Impact on fundamental rights

The Supreme Court’s intention to prevent unjustified curtailment of fundamental rights through the frequent use of Section 124A is both laudable and clearly represented in its Order. To this end, the Court’s first direction restraining the registration of fresh sedition cases is particularly significant. However, the deferential language used here (“We hope and expect…”) leaves room for ambiguity because:

1. As pointed out by a commentator, legally even softly worded requests in judicial orders must be mandatorily followed. However, the language used in the Order may create needless confusion regarding the binding nature of the Supreme Court’s direction amongst authorities required to abide by it, potentially hampering compliance. Pertinently, despite the purpose of this direction being to restrain Section 124A’s invocation, the word ‘stay’ is conspicuously absent. This contrasts with the univocal language previously used by the Supreme Court to stay the operation of contentious farm laws. Given the significance of this direction, the Supreme Court could have phrased the Order in clearer terms.
2. Admittedly, the absence of blanket top-down directions affords the State and lower courts discretion to evaluate situations on a case-to-case basis. However, the Supreme Court’s deference towards the State in operationalising its well-intentioned directions may not be beneficial given the periodic application of Section 124A, particularly in recent years. According to the online publication Article 14, there has been a 28% increase in sedition cases between 2014 and 2020, several of which were registered simply for criticising governments and politicians.

Additionally, the Supreme Court’s failure to record detailed reasons justifying its directions dilutes the Order’s precedential value. Had the Supreme Court provided legal reasoning for arriving at its “prima facie opinion” that Section 124A was unconstitutional – such as the provision’s vagueness or incompatibility with subsequent free speech standards – the Order could have been relied upon to buttress similar arguments in cases where other ambiguous penal laws have been challenged. Absent reasons, however, the Order remains highly contextual and neither clarifies nor expands India’s free speech protections.

Admittedly, the Supreme Court’s reluctance to elaborate on its reasons in the Order may be defensible since this was only an interim pronouncement and not a final verdict that reconsidered Section 124A’s constitutionality. However, a reasoned judgment conclusively invalidating Section 124A (as opposed to a government amendment or repeal) would have had a far more enduring impact on Indian free speech jurisprudence. The benefits of such a verdict could have been considered by the Supreme Court before granting the Government’s request for time to re-evaluate the validity of this offence. In light of the Supreme Court’s observations against Section 124A in the Order, it is hoped that the Court will consider issuing a detailed judgment disposing these challenges and conclusively striking-down Section 124A, in case the provision is not repealed by the Government within a reasonable duration.

Relevance for accused persons

The Order provides a strong basis for persons facing prosecution and incarceration for sedition to seek the suspension of legal proceedings and bail. This is evidenced by the Rajasthan High Court’s order directing the state police not to investigate sedition allegations against journalist Aman Chopra because of the Order, and a similar pronouncement by the Kerala High Court staying sedition proceedings against filmmaker Aisha Sultana.

However, for those charged with other offences in addition to sedition, especially under specialised penal statutes like the Unlawful Activities (Prevention) Act, 1967 (“UAPA”), grant of bail is still subject to the stringent conditions prescribed in these statutes. For instance, under Section 43D(5) of the UAPA, bail can be denied if the presiding court is satisfied that the prosecution’s allegations are “prima facie true”. While interpreting this provision in its Watali verdict (analysed here and here), the Supreme Court prohibited a detailed examination of even the prosecution’s evidence for deciding bail pleas, making it far easier to establish a prima facie case and significantly harder for the accused to be granted bail.   

Research by Article 14 suggests that in nearly 60% of sedition cases filed between 2010 to 2020, offences from other statutes, including the UAPA and the Information Technology Act, 2000 (“IT Act”), have been invoked alongside sedition. For individuals accused of more than just sedition, including journalist Siddique Kappan who is still in jail on charges under the UAPA, suspension of sedition alone might not bring much reprieve unless it is accompanied by wider reforms or stronger protections by courts.

Challenges in implementation

For effective implementation, the Order would have to be promptly communicated to grassroots-level law enforcement authorities spanning over 16,955 police stations. This is an uphill task considering India lacks a standardised framework for communicating judicial orders on constitutional issues to concerned authorities. The lack of such a framework has been cited by digital rights advocates as the primary reason behind the repeated invocation of the unconstitutional Section 66A of the IT Act, despite its invalidation in Shreya Singhal.

Given this context, the Supreme Court should have considered developing an ad hoc mechanism for ensuring compliance with its Order. It could potentially have directed concerned governments to communicate the Order to law enforcement authorities and to file compliance affidavits. Previously, in Prakash Singh v. UoI (analysed here), the filing of such affidavits was ordered to ensure adherence to the Supreme Court’s suggested police reforms.

The Court could also have included a contempt warning in its Order against non-compliant State authorities. It has  previously done so in an order restraining coercive action by the State against persons seeking medical aid online during the second wave of the COVID-19 pandemic. Although it is settled law that contempt proceedings can be initiated by any person aggrieved by the disobedience of general directions intended at achieving constitutional goals, the inclusion of a contempt warning in the Order could have potentially ensured a stronger incentive to comply and apprised those uninitiated in the law about their right to file contempt petitions, if necessary.   

Conclusion

Although the Supreme Court’s Order will likely bring some reprieve to persons facing sedition charges, unfortunately, the Order has limited precedential value given the lack of detailed legal reasoning. Further, the Supreme Court’s direction restraining registration of fresh sedition cases, though binding, should have been worded clearly to avoid ambiguity regarding its mandatory nature. Lastly, in the absence of a framework for communicating the Order to law enforcement authorities, implementing it would be challenging. As a mitigant, petitioners may consider requesting the Supreme Court to direct concerned governments to expeditiously communicate the Order to law enforcement authorities across the country and subsequently file affidavits demonstrating compliance.

[July 29- August 5] CCG’s Week in Review: Curated News in Information Law and Policy

Internet services suspended in Kashmir; The unrest over the passage of the RTI bill continues as the president gives assent to the RTI Amendment bill. Rajya Sabha passes Unlawful Activities (Prevention) Amendment bill on Friday after days of deadlock — presenting this week’s most important developments in law and tech.

Data Protection Bill

• [July 30] India to seek ‘adequacy’ status with GDPR after Data Protection Bill is passed, The Economic Times report; Medianama report.
• [Aug 1] India should adopt strong data protection laws to improve data flows with EU, says envoy, The Economic Times report.
• [Aug 2] Data Protection Law: Mahua Moitra alleges conflict of interests against lawyers working with govt, India Today report; The Wire report.
• [Aug 5] Critical’ data list will be revised with time; move may trouble firms, ET Tech report.

Right to Information

• Aug 1] Activists urge President to not give assent to RTI Bill; detained by police, Deccan Herald report; The New Indian Express report; Outlook report.
• [Aug 2] ‘Use RTI to save RTI’ movement begins across the country as president Kovind gives assent to the RTI Amendment Bill, Money Life report.

National Security Law

• [Aug 2] UAPA Bill passed in Rajya Sabha with 147 votes in favour, 42 against, India Today report; India Today report; The Hindu report; The Tribune analysis.
• [Aug 2] CDS or NSA: A bone of contention in India’s strategic affairs, The Economic Times report.
• [Aug 3] Trader arrested under National Security Act for alleged milk adulteration, NDTV report.

National Security and Free Speech

• [Aug 2] Facebook takes down accounts and pages from UAE, Egypt, and Saudi Arabia, Medianama report.
• [Aug 3] NIA for media gag in ‘sensitive’ Malegaon trial, The Times of India report.
• [Aug 5] Omar Abdullah, Mehbooba put under house arrest, internet services snapped as Kashmir remains tense, News 18 report.
• [Aug 5] Kashmir on edge: Security beefed up, restrictions imposed, Internet services suspended, many leaders ‘detained or arrested’. The Economic Times report. 

Digital India

• [July 31] Amend law to regulate ride-hailing firms like Ola and Uber: SC tells Govt, Entrackr report.
• [July 31] Bring a law to regulate Ola, Uber: SC asks Govy, ET Tech report
• [July 31] CCI dismisses abuse of dominance complaint against OYO, ET Tech report; Entrackr report.
• [July 31] Lok Sabha to become paperless from next session: Speaker, Times of India report.
• [Aug 1] Delhi HC hears out petition demanding ban on online websites; ‘What makes you special?’ Chief Justice asks AIGF, Medianama report.
• [Aug 1] EC announces revision of electoral rolls,. The Tribune report.
• [Aug 5] Government to formulate broad set of rules for Ola, Uber soon, Entrackr report.

Data Privacy and Breaches

• [July 29] EU court rules companies liable for data protection with Facebook ‘Like’ button, Telecom paper report.
• [July 29] European Commission takes Spain, Greece to court for failing to enact data protection rules for police, Medianama report.
• [July 31] Analysts flag data privacy concerns over FaceApp, ET Telecom report.
• [July 31] Data breach discovered in financial services platforms Chqbook, Credit Fair by vpnMentor (full report), ET Tech report.
• [July 31] Truecaller fixes bug after facing flak from users for automatic UPI signup, Entrackr report.
• [Aug 1] Google halts Assistant speech data transcription in EU, The Economic Times report; POLITICO report.
• [Aug 3] Apple contractors will stop listening to your Siri recordings – for now, Wired report.

Aadhaar

• [Aug 3] PIB Press release error made Aadhaar mandatory for driving license, The Quint report.
• [Aug 4] Aadhaar updation centre comes up at BSNL office, The Tribune report.
• [Aug 5] National Population register to include Aadhaar details, The Economic Times report; Entrackr report.

E-Commerce

• [Aug 1] Amazon may shop for stake in Reliance retail, ET Tech report; Entracke report.
• [Aug 2] Biz in China not easy: IT cos tell Piyush Goyal, ET Tech report.

Digital Payments/FinTech

• [Aug 1] UPI processed 822 million transactions in July, ET Tech report; Entrackr report; Medianama report.
• [Aug 1] 50% dip in India’s fintech investments in H1 2019, ET Tech report.
• [Aug 3] Fin-tech players enabling payment through Aadhaar card, Deccan Chronicle report.

Cryptocurrencies

• [July 29] Facebook and Libra are looming large over tomorrow’s crypto hearing in Congress, Forbes report.
• [July 30] You could be fined or jailed for holding crypto, Livemint report.
• [July 31] NASSCOM says banning cryptocurrencies ‘not constructive’ regulate them instead, Medianama report, The Economic Times report; Livemint report; The Hindu Business Line report.
• [July 31] UK Finance watchdog issues guidance on regulation for bitcoin and crypto assets, Coin Desk report.
• [July 31] Indian Finance Minister addresses crypto proposal – industry responds, Bitcoin.com news report.
• [July 31] Watch out cryptocurrency owners, the IRS is on the hunt, Forbes report.
• [Aug 1] Bitcoin has ‘no intrinsic value’, as UK ‘moves towards’ crypto ban, Forbes report.
• [Aug 1] ‘Crypto rogue’ nations want to use blockchains to undermine the US dollar, MIT Tech review report.
• [Aug 2] Indian government updates parliament on crypto plans, Bitcoin News report.
• [Aug 2] South Korea declares partial regulation-free zone for crypto companies, Coin Desk report.
• [Aug 3] Apple card can’t be used to buy crypto, Tech Crunch report.

Cybersecurity

• July 30] Over half of enterprise firms don’t have a clue if their cybersecurity solutions are working, ZD Net report.
• [July 31] Emerson sets up cybersecurity lab in Pune, ET Rise report.
• [Aug 1] CISCO whistleblower gets first False Claims payout over cybersecurity, Reuters report.
• [Aug 1] Financial services cybersecurity still porous, Forbes report.
• [Aug 2] How to jumpstart your career in cybersecurity, Forbes report.
• [Aug 2] US GAO blasts cybersecurity efforts of Federal agencies, watchdog points to numerous risk management shortcomings, Bank Info Security report.
• [Aug 3] Cyber Workshop held for Shanghai Cooperation Organization Delegation, The Hans India report.

Telecom/5G

• [July 30] 5G: Telecoms lobby demands access to high-band spectrum for 5G, ET Telecom report.
• [July 30] BSNL, MTNL merger may take two years, ET Telecom report.
• [July 30] DoT starts issuing telecom equipment test certificates, ET Telecom report.
• [July 30] Jio to raise $1 bn via offshore loans to buy telecom gear, ET Telecom report.
• [July 31] Swadeshi Jagran Manch objects to DoT team to attend 5G conference, writes to PMO, India Today report; Business Today report; The New India Express report.
• [July 31] TRAI moots KYC norms for cable TV, DTH connections, The Hindu report.
• [July 31] US warns of implications of adopting 5G tech from ‘totalitarian states’, The Economic times report.
• [Aug 1] Anshu Prakash takes over as new telecom secretary today, ET Telecom report.
• [Aug 1] ET 5G Congress; Huawei India CEO says high spectrum costs a big challenge, The Economic Times report.
• [Aug 2] Govt calls in industry to make robust investments in 5 G tech, The Economic Times report.
• [Aug 5] Security concerns should be addressed before adopting 5G: Airtel, The Economic Times report.

More on Huawei

• [July 29] Huawei row may escalate, hit Modi-Xi Jinping meet, The Asian Age report
• [July 29] Huawei’s first 5G phone goes on sale in China next month, Tech Crunch report.
• [July 30] Huawei’s sales jump despite trump’s blacklisting, The New York Times report.
• [Aug 2] The US-China trade war is back on, that’s bad news for Huawei, CNN Business report.
• [Aug 3] Huawei wins bid to build 4G network in Kiev subway, Xinhua News report.

Tech and Law Enforcement

• [July 29] RS Prasad: Traceability will be WhatsApp’s job, WhatsApp demurs, Medianama report.
• [July 30] Call for backdoor access to WhatsApp as Five Eyes nations meet, The Guardian report.
• [July 31] Facebook fact-checker says company must share more data to fight misinformation, ET Telecom report.
• [Aug 1] FBI seeks tools to help track criminals and terrorists via social media, Defense One report.
• [Aug 3] The Pentagon is testing powerful mass-surveillance balloons above six US states., Quartz report. 
• [Aug 5] Hyderabad: Rs. 149 crore lost to fraud, netizens still unwary, Deccan Chronicle report.

Tech and National Security

• [July 29] American tech shudders as China cyber rules are expected to get tougher, The Wall Street Journal report.
• [July 29] India rethinking buying US $6 bn drone after Iran’s downing of Global Hawk, DefenseWorld.net report.
• [Aug 2] Balakot lessons: India needs to upgrade its fighter fleet, gain tech advantage, The Economic Times report.
• [Aug 2] India, US to ink two key defence pacts this week, The Hindustan Times report.; Deccan Herald report.
• [Aug 4] Rs. 25,000 crore tenders cancelled or modified to promote ‘Make in India’, The Hindu Business Line report.

Big Tech

• [July 31] Govt considering directly taxing non-resident Big Tech companies, The Economic Times report; Medianama report.
• [July 31] Google researchers find 6 iOS security flaws, ET Telecom report.
• [Aug 1] FTC Antitrust probe of Facebook scrutinizes its acquisitions, The Wall Street Journal report.

Emerging Tech/AI

• [July 30] StradVision unveils autonomous vehicles camera tech, ET Auto report.
• [July 31] AI could reshape work environment by 2030, says Dell study, Tech Circle report
• [July 31] Alphabet’s AI might be able to predict kidney disease, Wired report.
• [July 31] Another US city moves to ban face recognition, citing threats to free speech and civil rights. Gizmodo report.
• [July 31] This autonomous bicycle shows China’s rising expertise in AI chips, Technology Review report.
• [Aug 1] AI bar system makes sure patrons are served in the right order, Engadget report.
• [Aug 1] How this startup is using AI, IoT to deliver smart solutions for power shortages, Tech Circle report.
• [Aug 1] The ripple effects of Artificial Intelligence, Money Control report.
• [Aug 1] How AI can support cybersecurity leader, Tech Radar report.

Opinions and Analysis

• [July 26] Patrick Tucker, Defense One, When Trump threatens Google, here’s what he doesn’t get.
• [July 28] Livemint Opinion, A China that hides its strength no longer.
• [July 29] Aarthi Shridhar, Money Control, The privacy of environmental crimes.
• [July 29] Air Marshal SBP Sinha, Bharat Shakti, Prioritising threat-based expenditure.
• [July 29] PK Balachandran, TheCitizen.in, China’s White Paper on Defense is soft on India and hard on Taiwan.
• [July 29] Sayantan Bera, Livemint, Five ways to save the spirit of RTI.
• [July 30] Alexian Chiavegato, Forbes, One-year reflection on the GDPR: Who really benefits from data protection?
• [July 30] Amba Kak, Times of India (blog), Privacy law needs public debate: Data protection law must guard against internal as well as external threats to citizen privacy.
• [July 30] Brian G Chow, Defense One, Two ways to ward off killer spacecraft: One is diplomatic, the other, technological.
• [July 30] Fredrik Bussler, Forbes, The future of crypto: security tokens as a ‘boring’ reality.
• [July 30] TK Arun, The Economic Times, Don’t rob the states to fund defence, the Centre should modernise the armed forces and defence production instead.
• [July 30] Vikram Kumar, The Economic Times, Three reasons why IoT is the biggest innovation in the tracking industry.
• [July 31] Amna Mirza, The New Indian Express, Changing gears for industry 4.0.
• [July 31] Anmdrew Burt, Harvard Business Review, New laws on data privacy and security are coming. Is your company ready?
• [July 31] Harshajit Sarmah, Analytics India Magazine. 6 challenges using open source cybersecurity tools.
• [July 31] Kalvakuntla Kavitha, The Print, India must rethink strategies on national security if it wants to join ranks with US, China.
• [July 31] Klint Finley, Wired, When Open Source software comes with a few catches.
• [July 31] Reetika Khera, The Hindu, The makings of a digital kleptocracy.
• [Aug 1] Leo Kelion, BBC News, AI system ‘should be recognized as an inventor’.
• [Aug 1] Varun Kannan, The Wire, Aadhaar Amendment Bill: Is expanding the use of UID legally sustainable?
• [Aug 2] Saad Masood, The Daily Times (Pakistan), Doctrine, policy and strategy: Is freedom of expression compatible with national security?
• [Aug 3] John Desimone, The Hill, A cyber solution to secure our networks and close the workforce gap.
• [Aug 3] Sputnik International, The Pentagon does not want to give up Chinese technology.
• [Aug 4] Akhil Kumar, The Wire, Chargesheet against JNU teachers will have a ‘chilling effect on free speech’.

Facebook and its (dis)contents

By Adhitya Singh Chawla

In 2016, Norwegian writer Tom Egeland, uploaded a post on Facebook, listing seven photographs that “changed the history of warfare”. The post featured the Pulitzer-winning image, ‘The Terror of War’, which depicts a naked nine-year-old running from a napalm attack during the Vietnam War. Facebook deleted the post, and suspended Egeland’s account.

A Norwegian newspaper, Aftenposten, while reporting on the suspension, used the same image on its Facebook page. The newspaper soon received a message from Facebook demanding that the image be either removed, or pixelated. The editor-in-chief refused to comply in an open letter to Mark Zuckerburg, noting his concern at the immense power Facebook wielded over speech online. The issue escalated when several Norwegian politicians, including the Prime Minister, shared the image on Facebook, and were temporarily suspended from Facebook as well.

Facebook initially stated that it would be difficult to create a distinction between instances where a photograph of a nude child could be allowed. However, due to widespread censure, the platform eventually decided to reinstate the image owing to its “status as an iconic image of historical importance.”

This incident brought to light the tricky position Facebook finds itself in as it attempts to police its platform. Facebook addresses illegal and inappropriate content through a mix of automated processes, and human moderation. The company publishes guidelines about what content may not be appropriate for its platform, called its ‘Community Standards.’ Users can ‘flag’ content that they think does not meet the Community Standards, which is then reviewed by moderators. Moderators may delete, ignore, or escalate flagged content to a senior manager. In some cases, the user account may be suspended, or asked to submit identity verification.

As evident from the ‘Terrors of War’ incident, Facebook has often come under fire for supposed ‘wrong’ moderation of content, as well as opacity in how its community review process comes to be applied. It has been argued that content that is evidently in violation of Community Standards is often not taken down, while content that should be safe is censored. For instance, Facebook courted controversy again, when it was accused of blocking content and accounts documenting persecution of the Rohingya Muslim community in Myanmar.

Closer home as well, multiple instances of Facebook’s questionable moderation practices have come to light. In October 2017, Raya Sarkar, a law student based out of the United States, had created what came to be called, the List. The List named over 70 prominent academics that had been accused of sexual harassment. The approach proved extremely controversial, sparking debates about due process, and the failure of institutional mechanisms to address harassment. Facebook blocked her account for seven days, which proved equally contentious. Sarkar’s account was restored only after Facebook staff in Palo Alto were contacted directly. Similar instances have been reported of seemingly arbitrary application of the Community Standards. In many cases accounts have been suspended, and content blocked without notice, explanation or recourse.

Content moderation inherently involves much scope for interpretation and disagreement. Factors such as context, as well as cultural differences, render it a highly subjective exercise. Algorithms don’t appear to have reached sufficient levels of sophistication, and there exist larger issues associated with automated censoring of speech. Human moderators are by all accounts burdened by the volume and the psychologically taxing nature of the work, and therefore prone to error. The way forward should therefore be first, to ensure that transparent mechanisms exist for recourse against the removal of legitimate speech.

In light of the ‘Terror of War’ incident, Facebook responded by updating its community standards. In a statement, it said that it would allow graphic material that would be “newsworthy, significant, or important to the public interest — even if they might otherwise violate our standards.” Leaked moderator guidelines in 2017 opened the company up to granular public critique of its policies. There is evidently scope for Facebook to be more responsive and consultative in how it regulates speech online.

In June 2017, Facebook reached 2 billion monthly users, making it the largest social network, and a platform for digital interaction without precedent. It has announced plans to reach 5 billion. With the influence it now wields, it must also embrace its responsibility to be more transparent and accountable to its users.

Aditya is an Analyst at the Centre for Communication Governance at National Law University Delhi

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).

TRAI releases Regulations enforcing Net Neutrality, prohibits Differential Pricing

Written by Siddharth Manohar

The Telecom Regulatory Authority of India (TRAI) has come out with a set of regulations explicitly prohibiting differential pricing for data services in India.

3. Prohibition of discriminatory tariffs.— (1) No service provider shall offer or charge discriminatory tariffs for data services on the basis of content.

(2) No service provider shall enter into any arrangement, agreement or contract, by whatever name called, with any person, natural or legal, that has the effect of discriminatory tariffs for data services being offered or charged to the consumer on the basis of content

TRAI recently concluded a public consultation process regarding differential pricing in data services (resources). The consultation paper covered all differently-priced or zero-rated services offered through data. The process has witnessed tremendous public participation, with a spirited campaign by Internet activists (Savetheinternet.in) and a counter-campaign by Facebook where it garnered support through users by using the narrative of connecting those who have no access (https://www.facebook.com/savefreebasics).

CCG submitted a formal response as part of this process, which you can read here, and filed an additional counter-comment signed by ten different civil society and research organizations.

The consultation process also involved a public discussion on the questions raised, where the usual suspects were all present – telecom companies arguing for differential pricing, and internet activists against. Also present were startup- and user- representatives.

Facebook’s telecom partner for carrying the Free Basics platform in India —Reliance Communications — was then instructed by TRAI to put a hold on rolling out Free Basics until they came up with a clear position on differential pricing and net neutrality. The regulator later confirmed that they received a compliance report to this effect as well. Facebook had been aggressively pursuing its campaign to collect support in favour of its platform for the entire duration of the public consultation.

TRAI has clarified that these regulations ‘may’ be reviewed after a two year period, or at an earlier time as decided by the Authority. An exception to the prohibition has also been included, to account for emergency services and services offered during ‘times of grave public emergency’. An additional exception is that of closed networks which charge a special tariff for their usage.

[We will shortly update the piece with more analysis of the regulations] 

A Constitutional Right against Free Basics? The Link between Article 19 and Zero Rating

Written by Siddharth Manohar

The past month has witnessed a rise in tide of public debate surrounding net neutrality once more, accompanying the release of another Consultation Paper by TRAI, and another AIB video urging public participation in the ongoing consultation process. To add to this mix there has also been an effort from Facebook to build consensus amongst its userbase regarding the effect of ‘Free Basics’ on net neutrality. The crux of one set of arguments put forth in these debates consists of the harm that a differentially priced platform can cause to competition in the market for Internet applications, along with the related concern of monopolization of a section of the country’s userbase. The other side places emphasis on the need to increase the accessibility of the Internet, and both have disagreements as to the interpretation of the term ‘net neutrality’.

An important issue that gets missed out in the rhetoric is the Fundamental right of Internet users to access a diverse set of media sources on any given platform whose nature is that of a public utility. Media diversity implies that the information stream reaching the public through any public medium must be prevented from being unduly influenced by one or a few entities with a controlling effect on the market for these media content providers. It also rules against any role for the carriers of content (known usually as intermediaries or service providers) in choosing whose or what kind of content is allowed on the medium. The usage and allocation of the medium as a public resource is subject to certain Constitutional principles as well, and these are also ignored while discussing how to regulate (or not) Internet-related services in India.

The Right to be Informed

Article 19 of the Constitution guarantees the right to freedom of expression, but this right also includes the right of citizens to a plural media. As discussed by the Supreme Court in Secretary, Ministry of Information & Broadcasting, Govt. of India v. Cricket Association of Bengal, the debate and opinions sought to be protected by Article 19 need to be informed by a plurality of views and an ‘aware citizenry’. What does this mean for regulation of access to the Internet? It translates into ensuring the possibility of a wide array of options in terms of media consumer choices being made available to the public. Any communication platform cannot remain restricted in its control by one or a few parties. This restricts the nature of the content available through that media, leading to narrowing of the ideas views available to citizens on any public platform.

It is far from difficult to balance this concern with the free market. The principle encourages a competitive atmosphere between content providers, and seeks to avoid a situation where there is a disproportionately dominant player in the market exerting undue influence over the functioning of that market. The presence of a single or few dominant entity(ies) enjoying a magnified impact on the market makes it difficult for newer entrants to make a dent in the market-share of the dominant player, thus reducing the possibility of any competition being provided by these smaller players.

This Constitutional requirement comes in conflict with the concept of zero-rated plans at its core: can we really have a telecom company deciding the exact specific pieces of content that we receive in preference to all other content? Are we willing to hand them this power of shaping consumer choice, public access and opinion simply by choosing the right business partners? If we can conclusively answer these questions in the affirmative, zero-rating plans would have no quarrel with Article 19. Indeed, such an affirmation would even successfully dispense with one of the core tenants of the idea of net neutrality – that all data be treated in the same manner irrespective of its content.

Spectrum as a Public Resource

The Cricket Association of Bengal judgment also discusses the regulation of spectrum as a public resource. This is arguably an even more fundamental question, addressing the question of what qualifies as legitimate usage and allocation of spectrum. The Court characterized airwaves as a scarce public resource, which ought to be used in the best interests of the public, and in a manner that prevents any infractions on their rights. Justice Reddy’s opinion in the judgment even acknowledges the requirement of media plurality as part of the required policy approach for regulating spectrum.

Another SC judgment arguing in a similar vein, Association of Unified Tele Services Providers & Ors. v. Union of India & Ors., ruled that the State is bound to use spectrum resources solely for the enjoyment of the general public. Applying the public trust doctrine, it explained that the resources are prohibited from being used or transferred for any kind of private or commercial interest.

What the available jurisprudence effectively lays down can be encapsulated in the following: Spectrum is a public resource that can only be used and/or allocated by the state for general public benefit, and cannot be used in any manner for private or commercial interests. This public interest contains various concerns, one of them being the right to a diverse set of media content sources, so as to avoid interested parties having any kind of power or control over the content available to consumers. What this means for the State is that spectrum must be used in order to maximise the variety of media available to end-users and prohibit control over the medium of transmission being controlled by a single or few player(s).

This creates a tricky situation for TRAI, who have asked for public comments on the desirability of differential pricing in data services. There is a glaring lack of clarity on the exact mandate provided to the state regarding how to use spectrum resources to achieve TRAI’s officially cited objective of providing ‘free’ Internet access to consumers. Without discussion focusing on the exact nature of what we want to achieve, we will continue to be forced take reactionary positions regarding most issues and developments. Forming a concrete policy to connect India’s billion can only get a whole lot easier once we are able to agree upon a common goal and a set of principles regarding how to get there.

Image Credit: Everybody Loves Eric Raymond: http://geekz.co.uk/lovesraymond/

Information Gatekeepers and Article 19(1)(a) of the Indian Constitution

I have put a draft of my paper titled ‘Gatekeeper Liability and Article 19(1)(a) of the Indian Constitution on SSRN. You can read it here. It will eventually be published in the NUJS Law Review.

Alternatively, this essay (written for a UPenn/ CIS/ ORF publication) based on the paper sets out my argument briefly.

Introduction

The press was once the most important medium of mass communication. Indira Gandhi understood this well and used the gatekeeping function of large media houses to prevent citizens from accessing critical information. The press’s function as an information gatekeeper is protected by jurisprudence, but this protection is articulated as ‘freedom of the press’, making it a medium-specific protection. As the Internet increasingly replaces the press as the most important source of information for citizens, structural protections need to extend online. The online intermediary may be the new avatar of the information gatekeeper, third parties who perform an essential function in transmitting information from speakers to audiences – they are potential choke points that the state can use to cut off flows of information.

Aside from the press freedom norms, much of our freedom of expression jurisprudence deals with the state’s relationship with the speaker. The contours of our freedom of expression rights have formed in this context. It is relatively easy for the judiciary to grasp how statutory provisions like section 66A of the Information Technology Act impact freedom of expression. Here the law targets the speaker directly and any unjust application or chilling effect is more visible. It is also more likely to be resisted by the target of regulation, since the speaker is always interested in her own right to speak.

Indirect regulation of speech is quite different. The law is aimed at information gatekeepers, who may choose not to publicise censorship and who may not be as interested in protected the speech as the original speaker. Scholars have described these gatekeepers as the ‘weakest link’, through which speech is most vulnerable to state excesses.

Information gatekeepers and Indian law

It is common enough for states to use ‘middle-men’ to enforce change in behaviour when it is difficult to control the primary offender’s conduct directly. For example, since it is difficult to directly compel minors to avoid drinking, the law targets alcohol-sellers, leveraging their gatekeeping function to cut off the supply of alcohol to minors.

Information gatekeepers were used to regulate the flow of information even in the pre-digital world. Publishers and booksellers were held liable for circulating banned publications in many countries including India. India has a particularly pernicious rule criminalizing the circulation of obscene content. This comes from the Supreme Court’s judgment in Ranjit Udeshi v. State of Maharashtra, that is well known for its interpretation of obscenity law in the context of D.H. Lawrence’s ‘Lady Chatterley’s Lover’. The other critical element of this judgment received almost no attention – the liability of a bookseller for the circulation of obscene content.

D.H. Lawrence was never prosecuted in India for his book. The ‘Lady Chatterley’s Lover’ case in the Supreme Court was about the liability of the owners of Happy Book Stall, a bookshop at which ‘Lady Chatterley’s Lover’ was sold. The Supreme Court said the booksellers were liable for circulation of the obscene content even if they argued that they were unaware that a book contained such content. Consider what this means: booksellers cannot plead ignorance of obscene content within any of the books they sell, and will be liable nonetheless. The state only has to prove that the booksellers circulated obscene content, and not that they did so knowingly. It is lucky that this part of the Supreme Court judgment went largely unnoticed since it could easily be used by the intolerant file criminal complaints that shut down large bookstores all over the country – all they need to do is look for a few books that the law would categorise as obscene. Booksellers would then have to scour every page and paragraph of each book they sell to weed it out content that might get them arrested – this would make it very difficult to do business.

Online intermediaries as information gatekeepers

Intermediary liability first received attention in India after the infamous ‘DPS-MMS’ explicit video, featuring two minors, ended up being sold on Baazee.com. The Managing Director of the company that owned the website was arrested. The fact that he had no knowledge that this content was shared on the website was irrelevant thanks to the Supreme Court’s ‘Lady Chatterley’s Lover’ verdict. This situation made it clear that if the law applicable to bookshops continued to apply to online intermediaries, online platforms would not be able to function in India. A platform like Facebook or Youtube hosts too much user content to be able to sift through it and proactively filter out everything obscene.

Fortunately, the amendment of the Information Technology Act (IT Act) gave Internet intermediaries immunity from this liability for third party content. The immunity was conditional. Intermediaries that edit or otherwise have knowledge of the content that they transmit are not immune from liability. To remain immune from liability, intermediaries must comply with certain legal obligations to take down content or block it in response to government orders or court orders. These obligations also leverage the gate-keeping function of these intermediaries to regulate online content – internet service providers and online platforms can ensure that certain kinds of content are inaccessible in India.

Why gatekeepers matter

Although information intermediaries existed in the pre-internet information ecosystem, their role is critical in the context of online content – several intermediaries mediate our access to online content. Some of these, like the gateways through which the Indian network connects to the global network, are located in India and are easy for the government to control since they are subject to onerous licenses and are few enough in number for the state to be able to control all of them successfully. Other intermediaries like Facebook or Google, are online platforms, and most of these have offices outside Indian jurisdiction.

Discussions about freedom of expression that focus on the direct relationship between the state and the speaker are not helpful in this context. This kind of reasoning tends to ignore the collateral effects of certain kinds of regulation of speech – the ‘Lady Chatterley’s Lover’ case case is a classic illustration of this with its tremendous impact on the liability of all booksellers and later on Baazee.com and other web based platforms.

As the new media make gatekeepers and intermediaries more critical to the controlling the flow of information, we need to focus on other dimensions of freedom of expression if we are ensure that effective safeguards are put in place to protect speech. Our jurisprudence on freedom of the press offers some degree of protection to newspapers so that regulation of their business structure cannot be used to influence their content, but this form of gatekeeper protection is limited to the press. There are information gatekeepers other than the press in India, and it is time that we think carefully about protecting the information ecosystem. Free speech principles need to accommodate themselves to a media ecosystem that is increasingly dependent on information gatekeepers.

Freedom of expression and access to information

It is time that our jurisprudence started focusing more on citizens’ rights to access information. Although this right that has been recognized in India, it needs to be outlined in more detail. In the well-known judgment in Shreya Singhal v. Union of India, which struck down section 66A of the Information Technology Act, the Supreme Court failed to deal with intermediary liability adequately because it did not use the lens of access to information and gatekeeper liability. Using traditional jurisprudence that focuses on the direct impact of regulation of speech, the court gave content-creators the right to a hearing and a right to appeal blocks and removals of their content wherever possible. However, it completely disregarded the rights of citizens to access online content.

The content blocking system in India makes all government blocking orders confidential. This means that when an intermediary is required to block content under the IT Act, users might imagine that the decision was a private decision made by the intermediary. Since the intermediary is unlikely to be willing to spend resources battling for the various kinds of content it hosts, any blocking process that counts on the intermediary to offer up sufficient resistance to unconstitutional blocking orders errs egregiously. The law must offer those who are actually affected – the publishers and the readers of the information – a chance to fight for content that they have the right to circulate and access. Of these, the publishers of information do have some right to make their case before the government committee making the blocking decision thanks to the Supreme Court’s decision in Shreya Singhal v. Union of India. But this judgment does nothing for citizens who could lose access to a wealth of information if the government might unreasonably blocks content created by someone in another country. The content publisher would not be in a position to defend its content in India, and citizens have not been given any avenue to defend their rights to view the content before the government committee making the decision.

The focus on access to information has been discussed many scholars, from Alexander Meiklejohn onwards. Amartya Sen has written about the salience of public discourse in a democracy. Robert Post and Jack Balkin have articulated in the detail the importance of focusing on the free flow of information or access to information, rather than on the right of individual speakers. The right we refer to as ‘freedom of expression’ is about much more than the freedom to say what one pleases. It is the foundational principle from which our rules about free flow of information have been built.

Conclusion

Section 66A was an example of what Jack Balkin characterises as ‘old school’ regulation of speech. This consists of criminal penalties, injunction and damages aimed directly at the speaker or publisher. The Supreme Court’s treatment of section 66A reflects its comfort with this form of regulation and its implications for freedom of expression.

Intermediary liability, and the use of Internet gatekeepers to control the flow of online information follows a different system: it uses control over the infrastructure or platforms of speech to exercise control over speech. Jack Balkin characterizes this as ‘new school’ regulation. Through ‘collateral censorship’, a third party is made to block or remove a primary speaker or publisher’s speech. For example, a government order or a court order requiring that certain online content be blocked, does this by requiring and internet service provider or online platform to censor the information. New school regulation works necessitates co-operation of these third party intermediaries like internet service providers and online platforms with the government, and this can be achieved by compelling them to co-operate through the law or by using softer means to co-opt them.

New school regulation must be assessed in terms of the collateral harm that it causes. It is not a question of whether online pornography should be blocked or not anymore. It is a question of whether the process used to get intermediaries to block the pornography can be abused to block constitutionally protected speech. We have already recognized the collateral effects of structural regulation in the context of press freedom, and the Supreme Court has barred certain kinds of structural interference with the media that might impact their reporting. It is time to create a version of this principle for online speech, and to think in terms of access and free flow of information.

References

Ranjit Udeshi v. State of Maharashtra

Shreya Singhal v. Union of India

Secretary, Ministry of Information & Broadcasting, Govt. of India v. Cricket Association of Bengal, (1995) 2 SCC 161.

Sakal Papers v Union of India

Amartya Sen, Idea of Justice, 321-337 (2009)

Chinmayi Arun, Gatekeeper Liability and Article 19(1)(a) of the Constitution of India, NUJS Law Review [forthcoming-2015]

Jack Balkin, ‘Old School/ New-School Speech Regulation’, 127 Harv. L. Rev. 2296

Jack Balkin, ‘The first amendment is an information policy’, Hofstra Law Review 41 (2013)

Robert Post, Participatory Democracy and Free Speech, 97 Virginia L. Rev. 3 (2011).

Seth Kreimer, Censorship by Proxy: the First Amendment, Internet Intermediaries, and the Problem of the Weakest Link, Penn Law: Legal Scholarship Repository (2006)

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)