ILTB

Websites to install mechanisms for pre-screening objectionable content

Ashwini Sharma — Fri, 13 Jan 2012 05:57:32 PST

On the heels of Friday the 13^th, breaks a very pleasant story on several news websites regarding a very technologically comprehensive order of the Delhi High Court. The legal sanction against certain online websites enrolled in that order comes strongly on them for containing “obscene, derogatory and defamatory” materials on their sites.

"Free Facebook" has taken an altogether different meaning.

This follows closely in the aftermath of Kapil Sibal’s protest against web 2.0 websites for harbouring content that was doctored and wholly derogatory to the “ruling government’s icons.” Among those websites, Facebook especially to a more greater extent contains several of such kind of material that is “vulgar, obscene, derogatory and blasphemous” and which can effectively scar the weak-hearted. For the protection of those, has emerged, this new wave in India’s politico-legal circles to rein in these websites that do not pre-screen user content at all, before users post anything that they like on their servers.

s.3(2) of the Intermediaries Guidelines, which was brought in by way of an amendment to the I.T Act in 2008 as these web 2.0 sites were becoming increasingly popular and were getting utilised more for posting “vulgar, obscene, derogatory and blasphemous” material, places an obligation on these websites to inform users to not upload material that is “grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever.”

This new initiative of the “powers that be”, of course understands the workings of web 2.0 extremely well. These websites are nothing but similar to any other analogue newspaper or magazine where the owner/editor pre-screens content before publishing them and is therefore solely responsible for its publication. This is so because the big internet giants in question, have the necessary resources and the technological werewithal to similarly and even more effectively monitor and pre-screen user content and thus allow
users to only post content that is NOT “grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever.”

While this Order may be implemented by Facebook and Google what happens to the smaller guy? Smaller entrepreneurs and enterprising websites will now have to install mechanisms after licensing costly softwares to monitor and pre-screen user content. I think, such mechanisms can be fed in with algorithms that work perfectly to match with concepts of obscenity, decency, vulgarity, defamation and “blasphemy”. Such softwares will prove too costly for small entrepreneurial efforts and they might even stutter at the altar of the “break-even” point. This will cause an unintended benefit to Google, Facebook and other internet giants who will come to enjoy complete competitive advantage over the world wide web.

And you fellow user, remember that it means you cannot criticise Sachin Tendulkar tomorrow since Sachin is my god and cricket is my religion. Try as you may, Facebook and Google will not let you update anything “blasphemous” like that. Yay!!

Our inherent desire to match our aspirations with those of China in every field understandably has spilled over to this arena as well and blocking websites will be just a few clicks away…….just like in China.

(p.s – please read this post with “that” which is in less quantity among our countrymen these days and also please do not drag me to court. Thank you. I thought a disclaimer is in order since I have to be in mortal fear of someone somewhere who might find anything objectionable in this.)

Cartoons Against Corruption : how the law aids web censorship

Apar Gupta — Fri, 13 Jan 2012 05:55:08 PST

Last week, cartoonist Aseem Trivedi’s website www.cartoonsagainstcorruption.com was blocked by its domain registrar Bigrock which also acts as its web host. Let us try to understand how was this done and whether it is legal.

How Cartoons Against Corruption was taken down

The actions seems to have originated on a notice sent to the Mumbai Crime Branch by a Bombay based lawyer R.P. Pandey. The notice complained that several of the cartoons violated provisions of the Indian Penal Code, 1860 and the State Emblem of India (Prohibition of Improper Use) Act, 2005.

This notice seems to have been forwarded by the Mumbai Crime Branch to Big Rock, which then took down the domain. This process is explained by the following quote from the WSJ Blog, India Real Time which first broke this story.

A spokesman for the cyber cell in Mumbai’s Crime Branch, which received Mr. Pandey’s complaint, noted that he did not “particularly recall this case.” But he added that such complaints were usually forwarded to web domains to screen content based on prescribed regulations.

Following this, Aseem Trivedi, received an email from Bigrock, the text of which is contained in a news story carried out by the Times of India. I am quoting it below.

It was only on Dec 27th, the next day, when he received an email from BigRock, the domain name registrar with which his website was registered, that he realized what was wrong. “We have received a complaint from Crime Branch, Mumbai against domain name ‘cartoonsagainstcorruption.com’ for displaying objectionable pictures and texts related to flag and emblem of India. Hence we have suspended the domain name and its associated services,” the mail read.

Dangers of private adjudication

Rather than looking at the Indian Penal Code, 1860, the law on intermediary liability springs from Section 79 of the Information Technology Act, 2000. The rules made under it in April last year, titled as the Intermediaries Rules, 2011 further supplement it. The Rules are a marked departure from the approach of the principal enactment under which they are made. Whereas Sec. 79 as a general principal aims to prevent liability for an intermediary, the Rules prescribe incredibly stringent criteria for a intermediary to avail such an immunity.

Rule 3(2) of the Intermediaries Rules, 2011 contains a wide body of grounds which have to be incorporated by an intermediary such as Bigrock in its customers terms of service. This provision contains incredibly broad grounds under which almost all types of user generated content may be taken down representing a threat to freedom of expression. One of the better drafted grounds is, “violates any law for the time being in force”.

Further Rule 3(4), states that an intermediary on receiving knowledge of a contravention of one of the grounds under Rule 3(2) should, “act within 36 hours”. Even though Rule 3(4), does not explictly say “take down within 36 hours”, “act within” is nothing but a eumphemism for it. The reasons are that if the intermediary does not take down the content within 36 hours it will risk loosing its exemption from third party liability.

Last year in a criminal defamation case titled as Google India Pvt. Ltd., v. M/S.Visaka Industries Limited the Andhra Pradesh High Court refused to quash proceedings initiated against Google on the ground that Google did not take down the offending content after receiving a complaint on it. The judge remarked,

“the petitioner did not move its little finger to block the said material or to stop dissemination of the unlawful and objectionable material. Therefore, the petitioner cannot claim any exemption either under Section 79 of the Act as it stood originally or Section 79 of the Act after the amendment which took effect from 27.10.2009.”

This is before the Intermediaries Rules, 2011 were made. However, rather than providing respite to intermediaries the rules have tightened the noose on them. Not only does an intermediary have to act within 36 hours but it has to make the determination of the legality or illegality of the content itself. Hence, in a lot of ways it is acting as a entity making legal determinations on the the nature of the content within 36 hours. Though many have questioned the constitutionality of the Intermediaries Rules, 2011, till the time it is on the statute books it represents valid law. Hence, though the actions by BigRock may have resulted in censorship they appear to be within the bounds law.

Intermediaries Rules as a proxy for blocking websites ?

All this also begs the question why was a complaint not made to block the website as per the the specific rules available for blocking websites. These rules which are called the Information Technology (Procedure And Safeguards For Blocking For Access Of Information By Public) Rules, 2009 allow the blocking of websites in India. The rules provide for a a Designated Officer of the Department of Information Technology (currently Mr. Gulshan Rai) to block websites on receiving a complaint.

I sense action under these rules was not taken because it is easier to write to a private intermediary which under the fear of liability will put down the content. Proceeding under the Information Technology (Procedure And Safeguards For Blocking For Access Of Information By Public) Rules, 2009 will require a reasoned order, a review of the order and several other safeguards. Hence, the Intermediaries Rules, 2011 are being used as a proxy for website blocking.

What about the cops ?

Before parting the practice of the Mumbai Crime Branch also needs to be called into question. The qouted press reports indicate that they forward such complaints to service providers. Now even if these complaints are carried with a forwarding letter I doubt they disclose substantive offences. In all probability they will be making reference to the complaint, stating when it was received and calling on the intermediary to act on it.

This is being said because there are no reports that a FIR was registered on the legal notice which was originally sent to the Mumbai Crime Branch. The Mumbai Crime Branch has all the authority and even a legal obligation to register an FIR if offences under the Indian Penal Code, 1860 are disclosed. Having not done so, not only did it not prima facia express an opinion as to the legality of the content, it left the decision to a private intermediary with its covering letter. The covering letter would obviously coerce the intermediary into putting down the content.

Hundreds of Cartoons Against Corruption

On a broader note, this case was connected to the Anna Hazare campaign and generated enough interest to be mentioned in the press. However, there may be hundreds of cases where content may be taken down daily without even a whisper. This is due to the defective design of the Intermediaries Rules, 2011 under which all such enforcement does not require an executive or judicial order or even the registration of a FIR.

Two asides

if one looks at Big Rock’s Customer Agreements they refer to themselves as “Parent”. Given how they acted, I found this funny.
Cartoons against corruption has now shifted to blogger, which is a google property. Given how Google is resistant to web censorship this is hardly surprising.

Event : Privacy Matters | Jan. 21, 2012 | IIT, Bombay

Apar Gupta — Sat, 07 Jan 2012 01:44:27 PST

Logistics

Date : Jan. 21, 2012

Where : IIT, Bombay

Time : 9:30 A.M. till 6:00 P.M.

RSVP : natasha@cis-india.org

Conference Theme

The conference will focus on the questions and dilemmas posed by privacy in
India today, with a concentration on the “Right to Privacy Bill”. The right to
privacy in India has been a neglected area of study and engagement.
Although sectoral legislation deals with privacy issues, India does not as yet
have a horizontal legislation that deals comprehensively with privacy across
all contexts. The absence of a minimum guarantee of privacy is felt most
heavily by marginalized communities, including HIV patients, children,
women, sexuality minorities, prisoners, etc. – people who most need to know
that sensitive information is protected.

Privacy India was established in 2010 with the objective of raising
awareness, sparking civil action and promoting democratic dialogue around
privacy challenges and violations in India. One of our goals is to build
consensus towards the promulgation of comprehensive privacy legislation in
India through consultations with the public, legislators and the legal and
academic community.

Speakers

Speakers for the event include, Danish Sheikh, Menaka Guruswamy, N . Nappinai, Na . Vijayashankar, Prashant Iyengar, R. Ramkumar and Sudhir Krishnaswamy.

I will also be speaking on whether an expanded privacy right may be harmful to freedom of expression as public figures may try to limit debate and discussion under the guise of privacy.

3G: DoT questions TDSAT jurisdiction to hear telcos’ plea

Saptak Sanyal — Tue, 03 Jan 2012 07:04:04 PST

Further development in a case where the Telecom Ministry has asked service providers to discontinue their 3G roaming agreements. The telecom ministry on Tuesday questioned the jurisdiction of telecom tribunal TDSAT on entertaining the petitions of five telecom operators, including Bharti Airtel and Vodafone, challenging the government’s directive to stop 3G roaming agreements.

Additional Solicitor General A S Chandiok appearing for the Department of Telecom (DoT) told the tribunal that it has no jurisdiction to entertain the petitions which are altering the terms of telecom licence. For further reading click here

Justice S.K. Krishna appointed as Judicial Member of the Cyber Appellate Tribunal

Apar Gupta — Mon, 02 Jan 2012 05:13:21 PST

A press release dated 23.12.2012 on the Cyber Appellate Tribunal website states that:

Justice S K Krishnan, a retired and eminent Judge of Madras High Court assumed charge as Member (Judicial) of Cyber Appellate Tribunal, New Delhi on December 21, 2011. His appointment has been made under Section 49(1) of the Information Technology (Amendment) Act, 2008 vide Notification No. 2(5)/2011-Pers. 1 dated 21/12/2011.

The press release is accessible here.

Widespread blocks to filesharing websites reported after a John Doe Order is issued for Don 2

Apar Gupta — Wed, 28 Dec 2011 01:36:31 PST

Image, “Act of Sharing” licensed by Frits Ahlefeldt-Laurvig under a CC BY-ND 2.0 license.

In previous posts (here and here), we have extensively analysed the dangers posed by expansionary john doe orders on access to file sharing websites. Last week only proved a continuation of this trend when an Order issued by the Hon’ble Delhi High Court in Reliance Big Entertainment v. Multivision Network and Ors (CS(OS) 3207/2011) on 19.12.2011 was widely applied.

Blocks on Filesharing Websites

News reports by the Bussiness Standard, the Times of India and Torrentfreak state that:

The John Doe Order was most enthusiastically applied by Reliance Telecom which acts as an ISP and is a sister concern of Reliance Big Entertainment which obtained the Order for preventing piracy of the upcoming release of a movie produced by it.
The compliance by Reliance Telecom resulted in widespread blocks of filesharing websites such as, Megaupload, Filesonic and even bittorrent websites such as BtJunkie. These blocks were for entire domains rather than specific URL’s. When an user visited one of the blocked domains, the following notice was displayed, “This site has been blocked”; “Copyright Reliance Entertainment, All Rights Reserved.”
This is not the first time such blocks have been applied by Reliance Telecom and it has been blamed by its users for widespread blocks to entire domains rather than specific file URL’s in the past.

the John Doe Order

The operative portion of the Order dated 19.12.2011 states that:

In the facts of this case as detailed above, in my view plaintiff has succeeded in making a, prima facie, case in its favour. Plaintiff has exclusive copyright over the film “DON2″ which is yet to be released.
In case, CDs/ DVDs/Blue-ray discs/VCDs are made and the film is copied by using any other device and uploaded on internet by the defendant Nos. 1 to 15 and other unidentified persons and distributed and shown on cable TV, DTH, internet, MMS, Tapes and CAS, plaintiff will indubitably suffer irreparable loss and injury.
For the forgoing reasons, defendants and other unnamed and undisclosed persons, are restrained from copying, recording or allowing camcording or communicating or making available or distributing, or duplicating, or displaying, or releasing, or showing, or uploading, or downloading, or exhibiting, or playing, and/or defraying the movie “DON2″ in any manner without a proper license from the plaintiff or in any other manner which would violate/infringe the plaintiff’s copyright in the said cinematograph film “DON2″ through different mediums like CD, DVD, Blue-ray disc, VCD, Cable TV, DTH, Internet services, MMS, Pen drives, Hard drives, Tapes, CAS or in any other like manner.

Whats the way out ?

Its quite clear that the Order does not expressly authorize a widespread domain block. Here when seeking application of the Order the letter from the Plaintiff’s addressed to the ISP’s seeking compliance of the Order becomes a material document. Since, a wide block on file sharing websites will be in the interest of the Plaintiff, it will attempt to seek application of the Order as widely as possible. At the same time the ISP in order to avoid liability and getting dragged into the litigation will not dispute the claims of the Plaintiff. In such a scenario it becomes essential to revisit the issuance of such John Doe Orders and to examine ways to limit their application. In a previous post when commenting on the Singham John Doe Order, I stated that,

…specificity as to the infringement is the least we can hope from a john doe order. Here, the injunction may clearly contain, (a) the article in which the infringement is alleged; (b) the anticipated source based on prior experience of infringement; (c) limited steps which can be taken by the plaintiff to enforce the injunction. According to me, the direction (c), becomes incredibly important when injunctions are granted for websites.

Also…

While I remain critical of the practice of applying such orders widely to block entire domains in itself, this criticism is moderated by the impossibility of policing content online. Though the burden to police the property rights are placed on the rights holder, the incessant ability of users to upload more copies and spring new links when earlier ones are identified and removed makes an absolute application the duty to police seem onerous.

Here even though it may sound fair and reasonable to make a large conglomerate like Reliance to police every such link, such a rule is not in the best interests of small and independent film makers. Of course they may explore alternative modes of revenue generation, but revenues through sales of tickets and DVD’s remain their mainstay. It may also be difficult for them to police their own content or even to outsource it third parties given their limited resources.

Another issue which brings a shade of grey to this entire debate is the response by foreign file hosting websites. Many of them respond to attorney emails and notices to take down content in a manner which is not considered expeditious by the rights holders. Some of them are also known to refuse compliance stating they are not bound by Indian Law. All this complicates this mix of internet policy and intellectual property law.

Keeping in mind that more bollywood production houses are likely to take john doe orders in future, what’s the best way to limit the extent and application of such orders ? what are your thoughts on this ?

NYT interviews Sachin Pilot on Internet Censorship

Apar Gupta — Fri, 23 Dec 2011 01:53:18 PST

In what seems like an exercise to clean up the air on the governments plan to regulate online content, Mr. Sachin Pilot has given an interview to NYTanswering several direct questions posed by them. While I do not agree with much of his opinion and comments, the attempt to answer direct questions posed by NYT is a good confidence building measure. It also helps us understand the concerns of the government and its plan for content regulation.

Having said this, my major point of disagreement is with Mr. Pilot’s assessment of the Intermediaries Rules. In the interview when asked as to whether the Intermediaries Rules, 2011 which were passed in April lead to censorship and have chilling effect on online speech, the Minister for State answers:

I don’t think that assessment is fair at all. We have free speech and we respect it, I think it is one of the greatest things we have in this country. People are allowed to say exactly what they want.

People may be allowed to say what they want, but now with the intermediaries rules, others who are offended by such speech are allowed to pressure an intermediary to take down such content as well. I have written at length on this and even an empirical study carried out by CIS confirms it.

Govt asks Bharti, Vodafone, Idea to stop 3G roaming pacts

Saptak Sanyal — Thu, 22 Dec 2011 09:41:31 PST

Coming down heavily on operators for violating license norms, the Telecom Ministry has asked service providers to discontinue their 3G roaming agreements and is also contemplating imposing penalty on them.

The decision comes after the unanimous view of telecom regulator TRAI, Law Ministry and DoT that such roaming agreement was in violation of the telecom licenses.

Please click here to read it.

delhi court orders 22 social networking websites to pull down content

Apar Gupta — Wed, 21 Dec 2011 12:14:57 PST

Press reports indicate that 22 social networking websites have been asked to put down content by a District Court in Delhi. I am relying on the information reported in the Economic Times and DNA to quote the Order, since it is not showing up on the Delhi District Court website (believe me, i tried for half an hour).

The factual details

The proceedings appear to be a Civil Suit for Damages and Mandatory Injunction on grounds on defamation. Though this has not been quoted in the press reports, I am quite sure that this is the kind of proceeding which has been filed. As per both publications the Suit has been filed in the Court of the Ld. Additional Civil Judge Mukesh Kumar who sits in the Rohini District Courts.
As per both publications an Order dated 20.12.2011 has been passed in the Suit ordering the take down of content. The Order is an ex-parte order. It is directed against 22 social networking websites and compliance has to be filed in court by 24.12.2011.

The Order

I am quoting excerpts from the Order as they appear in the press reports below:

“I have gone through the record carefully wherein the plaintiff has also filed a CD containing all the defamatory articles and photographs. In my considered opinion the photographs shown by the plaintiff having content of defamation and derogation against the sentiments of every community.
“In such circumstances I am of the view that plaintiff has a prima facie case in his favour. Moreover, the balance of convenience is also against the defendants (websites) and in favour of the plaintiff.”
“Moreover, if the defendant will not be directed to remove the defamatory articles and contents from the social networking websites, not only the plaintiff but every individual who is having religious sentiments would suffer irreparable loss and injury and cannot be compensated in terms of money”

Concerns

Even though I have not had a chance to check the veracity of excerpts against the Order itself or even looked at impugned content I am hazarding some broad comments subject to future correction.

The proceeding appears to be against social networking websites. Now it is a given that social networking websites perform the function of intermediaries when they facilitate the posting, transmission and hosting of user generated content. For this the law contains a specific exemption under Sec. 79 of the IT Act. For this exemption to be availed the intermediaries, i.e. the social networking websites have to take down content on actual notification. Even the much critisised Intermediaries Rules, 2011 follow on this basic premise. Having said all this, if the Plaintiff has not sent a notification to the Social Networking Websites there may be grounds to file a Order 7, Rule 11 application and have the suit dismissed as it is barred by law.

Also if these steps for prior-notification have not been taken by the Plaintiff before the institution of the Suit, the ex-parte order would immediately appear to be onerous.

This appears to be one of the first times that a Plaintiff has alleged defamation not only personally on the basis of content but also for the community. These claims may be tough to sustain on grounds of defamation (though other substantive civil wrongs may succeed). The law on defamation does not allow claims on general communities and requires specific imputations. Hence lawyers cannot file defamation suits even though they cringe when they see Govinda as an unethical lawyer in Kyunki Mien Kabhi Jhooth Nahee Bolta.

Finally the Order heavily quotes, “religious sentiments” as one of the grounds for the ex-parte order. I am left to wonder if such a ground is available in a Suit for Damages and Manadatory Injunction. A Suit is essentially a private right of action and though trusts and associations of persons can file them it has to involve a private right. I am not quite sure if “religious sentiments” are taken into account in such a private action and in suit jurisdiction.

Having said all this, I will again like to draw a caveat that I am commenting on the news reports and not the order itself. Also all my comments above are rather off the cuff reactions in which I am searching for answers rather than offering a categorical opinion.

UMG claims right to block videos it does not own

Apar Gupta — Tue, 20 Dec 2011 05:52:02 PST

Last month saw frantic activity over the pre-censorship comment which was subsequently withdrawn after widespread public outcry and derision. Even though pre-censorship made an obvious impression and brought the internet censorship debate to prime time news, one of its most disturbing aspects are already existing in law.

The law is the Intermediaries Rules, 2011 and the feature which is causing the content-burn is the power and the incentive created for private intermediaries to censor. It also allows a person to complain to an intermediary which is hosting any content on grounds of copyright, trademark infringement etc., even if that person is not the owner of the content.

In this background the Ars Technica story on UMG’s claims that it is entitled to claim blocks on videos posted on youtube for which it does not own copyrights serves as a cautionary tale. UMG’s claims that its rights to claim such block’s arises from an agreement with Youtube.