Such responses will also be useful for lawyers thinking of approaching a Court to challenge the sorry state of affairs.

Click here for the sample RTI. 

Additionally, I also strongly urge users to send an email to customer care asking them to disclose the Order of the High Court under which the blocks are being carried out. Kindly also ask them to disclose the letter from the lawyers of the Plaintiff which asked for the website blocks. You can use the format below.Kindly note the information in brackets i.e. “[]“, has to be filled in by you.

To: response@airtelmail.in, 121@airtelindia.com

[Insert todays date]

Subject : Access to Vimeo.com

Dear Sir/Madam,

I am a subscriber with Airtel fixed line and broadband services holding account number ____________ in the name of ___________ at ____(insert address here)_. On _[insert date and time]_ I attempted to access the website www.vimeo.com from my above mentioned internet connection, however the I could not access the same and instead of the website a message was displayed which stated, “Access to this site has been blocked as per Court Orders”.

The denial of access to this website has caused me great inconvenience as I regularly access www.vimeo.com.

I kindly request you to provide me with the following information:

(a) The Case number, the name of the High Court and the date of the Order in compliance with which access to www.vimeo.com is being blocked.

(b) A copy of the Order in compliance with which access to www.vimeo.com is being blocked.

(c) Any letters or correspondences sent by lawyers or any other parties asking for the blocking of www.vimeo.com and any other websites.

Kindly provide such information at the earliest.

Kind Regards

[Insert your name]

[Insert your address]

now you see him

now you dont!

As of today Vimeo, Piratebay, Pastebin and many other websites have been blocked by indian ISPs. The blocking of such filesharing and video streaming websites has caused tremendous discomfort to internet users in India and even prompted Anonymous to begin denial of service attacks against websites of the Supreme Court (it has since ceased it), the All India Congress Committee and Copyright Studios. The blocks started out with users of Reliance internet services reporting blocks on the Pirate Bay where a message that stated, “the site has been blocked as per instructions from the Department of Telecom”. (Read on Medianama | Mint)

This was followed up with reports later in the week as to how Airtel was now blocking not only filesharing websites such a piratebay but also completely legitimate video streaming websites such as vimeo. Airtel users who attempted to visit these websites were informed that, “access to this site has been blocked as per Court Orders”. (Read on Medianama)

Medianama is compiling a list and reporting as to the status of these blocks.

The abuse of ashok kumars and john does

This is a dangerous trend which many pointed out last year when the first few john doe or ashok kumar orders were sought to be applied to entire websites as opposed to specific pages and links which contained copyrighted content posted without the authorisation of the owner. I stated that such orders are being abused by plaintiffs and broadly worded cease and desist notices are being sent by lawyers working for movie producers who have obtained these orders (ILTB Post extracting one such legal notice).

In a previous post, I stated that such orders only are anticipatory with regard to the potential infringement and the only laxity being allowed to the Plaintiff is the exemption from identifying the potential infringers. This is as the Plaintiff anticipates large scale sporadic infringement and it may be too late by the time it approaches a court and gets the injunction. Here it is reasonable for it to have the injunction already in hand and apply it when it sees an infringement.

A John Doe/AshokKumar injunction does not in any way allow the Plaintiff to ask parties to refrain from anything till the point they infringe. Hence, the Plaintiff may apply the injunction to any person, only after such a person becomes an infringer. Even then its right under the injunction only extends to the specific part of the activity which is infringing. Hence an entire website cannot be blocked for one offending link covered by the injunction. (ILTB Post on the analysis of john doe injunctions).

However now Plaintiffs have started making ISP’s themselves primary parties to such litigation’s. The latest blocks are the result of orders which emanate out of the Madras High Court which clearly list the ISP’s to be parties themselves. They are made as principal defendants and appear right up the ladder starting from Defendant No. 1. In effect, the primary infringement is now being complained against the ISP and not against the file sharing website or the user who ultimately may share the blame. Is this the result of the holding of the Hon’ble Delhi High Court in Myspace v. Super Casesstes Industries one does not know now, but I think that the ruling in the coming days will cause more headache for intermediaries who face issues of copyright compliance in India.

Whodunnit ?

Since Reliance displayed a message that it had blocked the webpage as per orders of the DOT apprehension the first apprehension which arose was that this was done as per an executive order or instructions from the DOT to Reliance. However, in the past the DOT has denied that it ever issued any such order for the blocks or it sent any communication to this effect. This has further been confirmed by newsreports which laid the blame on john doe orders recieved from courts (these were obtained by Reliance BIG Pictures, ILTB post on it here). Hence not only was this vague order leading users on a wild goose chase to know why their access had been stopped and which order DOT had passed, but on the other hand constituted misdirection.

An article in Mint confimed this, a day after the blocks were first reported:

Sanjay Tandon, vice-president, music and anti-piracy, Reliance Entertainment, said the company has got a so-called John Doe order from the Delhi high court which directs all Internet service providers (ISPs) to block video-sharing websites, this time not just for a single release but for most big-budget films this year.

After this news report came out I searched on the Delhi High Court website, for any filings by Reliance Big Pictures or Reliance, no recent filings or orders showed up. This was strange considering that such injunctions are granted on the day the case is first filed and heard by the Court. It was also surprising for me that as per Sanjay Tandon, they got the Order not only for one movie but, “his time not just for a single release but for most big-budget films this year.” This way such orders are being applied this would mean a perpetual block order.

After this the Airtel blocks started. Medianana quickly reported that they were emanating from an order passed by the Madras High Court. The post stated that:

We have been informed that the block has been imposed following a John Doe order taken byCopyright Labs, Chennai, from the Madras High Court, for preventing piracy of Tamil Films Dammu and 3. Copyright Labs CEO, Harish Ram, has confirmed the same to MediaNama and we’ve requested him for a copy of the order. We had reported about the John Doe order taken by the producers of 3.

I quickly checked up the Madras High Court website for the party names of Copyright Labs, quickly realized that the Plaintiffs in such suits are usually the producers so I quickly searched for the producers of Dammu and it showed up the case of M/s Creative Commercials v. Bharat Sanchar Nigam Limited (Case Number 358/2012, last listed on 28th April, 2012). I thought I hit the jackpot, but I could not be sure since the orders passed in the case were not available on the court website.

Later on the in the day, an order dated 29.03.2012 issued for the movie 3, in a case titled as R.K. Productions v. Bharat Sanchar Nigam Limited (Case No. 230/2012) appeared online. Since the Order was available in this case, I thought probably the blocks were in this case.

I am still not sure. The Creative Commercial Case has been filed later in time when the blocks started. Moreover if the plaintiffs allready had the John Doe injunction in R.K. Productions since 6 weeks why did the blocks only start this week ? was i missing something ? was I in one of Frank Kafka’s unfinished manuscripts, one which had a thousand doors leading to the same dark cellar.

The point I am making is that blocking a website is as much as a function of safeguarding a private right as much as it is interfering with the right to access of the general public. (ILTB Post on how injunctions cause public loss). There is certainly a public interest in content which is blocked by the state. Which is why blocks or bans when done by an executive order is done by the authority some authority under a provision of law and published and made publicly available in the official gazette. However, no such limitations are presently prescribed when ISP’s block websites pursuant to court Orders.

Reliance has said it blocked as per a DOT order, Airtel says its blocked it as per a High Court Order. Airtel does not even reveal which state High Court passed the Order. When one of my friends wrote to them asking for details of the Order, they refused to provide any details on it. Is this a super injunction ? What are they afraid of ?

The rules which exist with regard to Blocking of Websites namely the Information Technology (Procedure And Safeguards For Blocking For Access of Information By Public) Rules, 2009 state that websites can be blocked by judicial orders however do not mention any further formalities as to disclosure by the DOT or ISPs to Users.

Is this fair ? Is this reasonable ?

Things are certainly getting out of hand. Interim injunctions are meant to preserve the status of the parties and prevent the frustration of the result of a legal proceeding. Interim injunctions are not meant to create a new status and provide the Plaintiff with protection with which it can bully our timid and cowering ISP’s into meek compliance under the threat of contempt of court for not obeying court orders. Its time they challenged these Ashok Kumar choke-a-blocks injunctions.

An interesting development related to the use of social media for spamming is a recent lawsuit filed by Twitter against spammers and spam tool providers using the service. The basis of the law suit is the violation of Twitter’s Terms of Service (ToS).

In the simplest sense ‘Terms  of Service’ (ToS) is a set of rules that a user must agree to in order to use any service. This agreement creates a binding contract, the terms of which the user must comply with.

Traditionally social media “platforms have utilized federal laws such as CAN-SPAM, which prohibits sending misleading electronic communications, to punish the most egregious spammers”.

What makes this current lawsuit notable is that Twitter is suing each of the spammers for a breach of contract by violating the terms of the Twitter ToS and is additionally seeking damages for the breach. That said, in the past there have been other tech and media platforms that have filed suit against spammers. Facebook, Google and Craigslist are some of the leading examples.

If Twitter succeeds in this law suit it will set a clear precedent that (i) Terms of Service of a media platform form a binding agreement and a user is liable for any breach (ii) Violation of the terms can result in the user being liable for monetary damages.

As the world wide web and related services/companies grow, so will the proliferation of spam and other such activities. In this environment, having clear policies and legal documentation regarding the use of services by the end user, is a good start towards the protection of company interests.

All of this however puts the onus on the users to proactively read all the policies. Go on then, read the many pages before you click “I Accept”.

Last week Medianama and Mint reported that following the injunction granted to Nirmal Baba which we wrote on here, the Delhi High Court has passed a similar ex-parte ad-interim injunction restraining certain defendants from publishing content alleged to be defamatory about Sri Sri Ravi Shankar and the Art of Living.

The Injunction has been passed in case for civil defamation titled as Vyakti Vikas Kendra,India Public vs Jitender Bagga. The other parties to the case include Google, since the content which was alleged to be defamatory is published on blogspot.com, which is a blogging platform owned by it.

The Order dated 09.05.2012 which granted the injunction again makes substantial reliance on the Terms of Service of Blogger and the Information Technology (Intermediaries Guidelines) Rules, 2011.

The is the second reported injunction which has relied substantially on the Information Technology (Intermediary Guidlines) Rules, 2011. Through repeated practice we may see a trickle down effect with the rules being reinforced through successive court decisions.

We have seen a similar pattern in John Doe Injunctions, where now virtually every major Bollywood release coincides with a john doe order and the blocking of file sharing websites.

The High Court Decision

Avnish Bajaj to quash the proceedings had originally approached the Delhi High Court. His petition was partly allowed by the High Court, which quashed proceedings under Sections 262 and 264 of the IPC however maintained the charges under Sec. 67 readwith Sec. 81 of the IT Act.

The Delhi High Court reasoned that the IPC does not recognise the concept of automatic criminal liability attaching to the director where the company is not made an accused. The Court noted that not even a prima facie case for the offences under Sections 292/294 of the IPC was made out against Avnish Bajaj, with the charge sheet only seeking to implicate him in his designation as MD of Bazee and not in his individual capacity.

However, with regard to Sec. 67 which contains the substantive offense for publishing pornography, the Court reasoned that since it had a deeming provision for corporate liability under Sec. 81, the trial with regard to this charge could proceed.

It categorically noted that:

“(e) A prima facie case for the offence under Section 67 read with Section 85 IT Act is made out against the petitioner since the law as explained by the decisions of the Supreme Court recognises the deemed criminal liability of the directors even where the company is not arraigned as an accused and particularly since it is possible that BIPL (EIPL) may be hereafter summoned to face trial.”

Appeal to the Supreme Court

As it turns out BIPL (Bazee Internet Private Limited), which is the company who owned Bazee.com before it was transferred to eBay was never arraigned as an accused. Hence, the limited issue which the appeal in the Supreme Court came to be concerned with is the finding of the High Court on deemed criminal liability. Put another way the question which was posed in the Case was, whether an official of a company can be made an accused without the company itself being made an accused.

In reaching its decision the Supreme Court first studied previous holdings in C.V. Parekh, Anil Hada, Sherotaan Aggarwal. It noted that the holdings in Anil Hada and Sherotaan Aggarwal could not be sustained as they were 2 bench judgments and were contrary to the purport of C.V. Parekh which is a 3 bench judgement. In a sense the court noted both of them as per incuriam.

Then the Court held that the 3 bench judgment in C.V. Parekh is the correct proposition of law inasmuch when the principal offence has been alleged against a company and it is not made an accused then the directors and the employees to whom the vicarious liability cannot be tried. Interestingly much of the analysis of the court was based on interpretation of Secs. 141 and 142 of the Negotiable Instruments Act, which is then supplanted to Sec. 81 of the IT Act.This was possible because these provisions were similarly worded, or as lawyers like to call it mutatis mutandis.

Some Thoughts

Firstly, why was no cross appeal filed by the Government against the Order of the High Court under which the prosecution under secs. 262/264 of the Indian Penal Code was quashed ? Certainly there does not seem to be any good reason for not appealing the decision given how enthusiastically and without any inhibitions of propriety the State locked up the petitioner in jail.

Also, the verdict wherein it omits a discussion of Sec. 67 of the IT Act or Sec. 79 which deals with intermediary liability comes as a disappointment for many who would have wanted clarity on intermediary liability. This is given that the Avnish Bajaj was the first high profile case on intermediary law before the Supreme Court. However, seeing at how the case was decided by the High Court, the grounds of challenge before the Supreme Court would understandably and fairly be limited.

In my view this case would have a limited impact on the Vinay Rai-Google/FB High Court litigation. This is because I anticipate that the companies themself have been made an accussed. If not then the holding in this case should in all likelyhood may assist the quashing petitions filed by Google and Facebook.

While we are discussing the Vinay Rai case, there is one more case pending in the Supreme Court which in my view should ivolve a study of intermediary liability. The case titled as Google India Pvt. Ltd., vs M/S.Visaka Industries Limited, involves a high court refusing to quash charges against Google. I have previously blogged about this here.

Whatever be said, given the amount of litigation on intermediary liability its only a matter of time before we have some authoritative pronouncements on the subject.

The issue before the Court was exactly the one which we had raised in our previous post. To the best of our knowledge, this is the first case which has been ruled against Google regards the Adwords Programme.

Google shall in all probability challenge the ruling before the High Court of Australia.  

The Delhi High Court Bar Association’s website was attacked by Pakistani hackers yesterday. The attack was executed by [thec7crew], a Hacker’s crew from Pakistan, that has been in the news before also for carrying out “defacement” of Indian websites as well as several porn websites. They have been regularly engaged in defacing several low-profile Indian websites over the last few months. The crew has posted information about almost all its defacement activities on the crew’s facebook page – CuLpRitZ_7 (haCkeRz). Other Indian websites hacked by the crew, can also be looked up on the posts at their facebook page. In all its attempts, the crew has repeated its message (asking no one in particular), “to Release Waqar, Free All Prisoners and to Free Kashmir”. [Update] The defacement messages have been removed now, however the site is currently not available.

These cyber-attacks are a part and parcel of an on-going online warfare between Indian and Pakistani hackers. This cyber warfare is believed to have begun around 1998 after India’s Pokhran-II blasts and was intensified during the Kargil war in 1999. Hackers from both sides of the Indo-Pak border have been regularly perpetrating cyber-atrocities on each other’s national websites ever since. Nowadays, these attacks usually peak around days that carry emotional value for the two nations such as the Independence Day (14/15 August), Republic Day(26 January) and 26/11. Few months before, more than 400 websites were defaced by another crew from Pakistan, the “Zcompany hacking crew”, on 26 January 2012. The crew claimed that it was done in response to the defacement of Pakistani websites by Indian hackers.

Motivations for hackers?

So far, no attacks have been carried out with serious consequences for either of the countries as these attacks have not ventured beyond website defacements. Therefore, one wonders, if these cyber attacks have a method to their madness or if these are mere exhibition of hacking prowess by hacking crews from both the nations. There exists a range of motivations for hackers to indulge in hacking related activities. While some do it to merely get kicks out it, some may utilize their technical skills for a very nefarious end viz., stealing money, or crashing entire computer networks. Some indulge in hacking, more as a practical application of what they have learnt with or without the intention to gain a deeper understanding of computer security infrastructure. Some enjoy learning more about how computers work and consider computer hacking an “art” form. Whereas for some, hacking may be undertaken pursuant to issues that are of emotional appeal and value to hackers, who then may rally together as “crews” to execute hacking as a “team” in furthering issue-based agendas. Hackers may also be motivated by anger or hatred towards an entity, and therefore might deploy resources or undertake activities to harm that entity. Rogers(2000)[1] had termed those who maliciously deface web pages and send viruses, worms and junk mails as “Cyber Punks”. Upon a glance through the otherwise lightly analyzed history of cyber-warfare between India and Pakistan, one cannot fail to notice that the trademark mode of operation resorted to by hackers involved in all these cases, is “defacement” of websites. This is done in most cases by replacing a website’s landing or home page with the hacker’s own content with or without a politically motivated message.

Hacking and the Indian Legal Framework: Is India prepared yet?

The legal framework to address various types of cyber crimes including attacks like the one being written about herein, was given shape for the first time in the Information Technology Act, 2000 as amended up to 2008. The Act as initially legislated in 2000 contained a very wide definition for hacking. The definition for hacking as had been laid down in the earlier s. 66(1) was inherently problematic because of the usage of a very broad language therein, which could potentially cause misapplication of the section. The amendments that were made to the Act in 2008, could have been inter alia an attempt to more define various types of cyber offences, more accurately and narrowly. Those amendments introduced into the Act, several new categories of hacking related offences such as punishment for identity theft (s. 66C), punishment for cheating by personation by using computer resource (s. 66D), punishment for cyber terrorism (s. 66F).  Section 66 as amended also penalizes commission of any of the acts as are mentioned in s. 43. Thus, in the instant case of defacement, the sections of the I.T Act that shall be applicable will be the following:-

• s. 43(a)-  accesses or secures access to such computer, computer system or computer network or computer resource. (for breaking into the web server of the victim site)
• s. 43(i) -destroys, deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means. (for altering the web server’s home page)

Even though the I.T. Act was amended in order to provide for and penalize more specific forms of cyber-attacks, the actual implementation and enforcement of the same remains a mirage. This is essentially due to the gap between the legal provisions as laid down and the capabilities of the enforcement machinery on ground that has to actually trace the perpetrators and bring them to account as per those provisions.

The Amendments in 2008 had also introduced provisions for the creation of a National Nodal Agency in respect of Critical Information Infrastructure Protection. S. 70B of the Act in turn empowers the “Indian Computer Emergency Response Team” (CERT-IN) as the national nodal agency in respect of “cyber security incidents”. CERT-IN is mandated to scan the Indian Cyber Space to detect traces of any untoward incident that pose a threat to the Indian cyber space. As part of its responsibilities CERT-in performs both proactive and reactive roles in computer security incident prevention, identification of solution to security problems, analyzing product vulnerabilities, malicious codes, web defacements, open proxy servers and in carrying out relevant research and development. CERT-IN also has been obligated to publish guidelines, advisories, vulnerability notes and whitepapers relating to information security practices, procedures, prevention, response and reporting of cyber incidents. As of now CERT-IN has published white papers related to analyses of cyber-defacement incidents that occurred uptill 2007 only. Each of those white papers demonstrates the vulnerabilities that were exposed as a result of defacements by hackers. But, how far have those vulnerabilities improved upon yet or how far the computer security infrastructure has been made more robust, pursuant to the conclusions made in those white papers, is currently not known. Also such an exercise does not appear to have been carried out for cyber defacement incidents after 2007. Analyses and assessment of vulnerabilities from 4 year and older incidents will hardly prove useful as hackers continually evolve and improvise upon their techniques.

 Agreed, changes such as I.T Act’s 2008 amendments and establishment of CERT-IN are important clogs emerging in the wheel of cyber laws in India, but lack of adequately trained police professionals and an almost nil utilization of India’s hacker community significantly sets behind, the prevention of, and enforcement against such cyber crimes. It is only now that cyber forensic training and investigation labs have been setup at some states. A Computer Forensics Lab has been set up to impart training in the collection and analysis of digital evidence at CBI’s Training Academy. It is equipped with imaging software, acquisition & seizure tools, hashing software, E-mail tracers, password recovery kit and latent data recovery tools. These are tools that are hardly sufficient to deal with the sophistication involved in hacking related offences. Due to these reasons, India’s legal and technical infrastructure for dealing with cyber-attacks is best described as sleepy and passive. 

“Defacements” – do these things affect anybody?

While these “defacement” attacks may be harmless when assessed economically/commercially, there is a great possibility that hackers may discover additional weaknesses in India’s cyber infrastructure through these harmless attempts, and may consequently then proceed to venture into cybercrimes hitherto not yet committed. Moreover, these defacement attempts can even be used to place malicious softwares, viruses or provide wrong and misleading data to visitors after making changes in the database of the victim server. The extent of damage caused by these attacks has been minimal so far, but nothing prevents these hackers from perpetrating defacements with much more dangerous consequences. As described above India is far from being adequately prepared with respect to technical skills, know-how and sufficiently trained human resources in our enforcement agencies. Even where training is being imparted, such is hardly sufficient to handle sophisticated cyber crimes.

Perhaps, bringing the vast pool of our police force and enforcement agencies upto speed with digital developments and technical know-how in respect of cyber crimes under discussion, might be a logistical challenge. In that respect, the government may consider an initiative to utilize the already existing resource pool of Indian hackers and benefit from their knowledge in tracing offenders and helping make Indian cyber infrastructure safer and more robust. At the same time, Indian hackers can be involved in constructive activities and can be made to feel useful towards the cyber security climate in India.

[1]See  Rogers, Marcus (2000), “Psychological Theories of Crime andHacking”. Available at http://homes.cerias.purdue.edu/~mkr/