This post analyses the likely effect of one of the key amendments to the Indecent Representation of Women Act, 1986 (IRW Act) which extends the law to online mediums. It argues that such an extension presents a real danger of prosecution of individuals and womens groups who rely increasingly on online activism to get their message out. (Full text of the IRW Act is available here)

 

“Pink Mafia” generously licensed by Andrew Brecaft under a CC BY-NC-SA 2.0 license

Background

This parliament session much debate was focused on improving womens safety. This saw the passage of the Criminal Law (Amendment) Act, 2013 making changes in various existing statutes related to sexual offenses.  (Click here for a background on the Criminal Law (Amendment) Act, 2013)

Predating this enactment was another legislative measure which sought to further the interests of women. This was in the form of amendments proposed to the IRW Act which did not pass legislative muster but remains pending in parliament. The reasons for the proposed amendments were contained in a statement put out in a Press Information Bureau release.

It stated that, “over the years, technological revolution has resulted in the development of newer forms of communication such as internet and satellite based communication, multi-media messaging, cable television etc. It has, therefore, become imperative to widen the scope of the law so as to cover such forms of media, on one hand, and to strengthen the existing safeguards to prevent indecent representation of women through any such form.”

It betrayed a certain nervousness when it went on to say, “extensive consultations have been held with stakeholders including lawyers and civil society organizations on the draft Bill, before its finalization.” (Full Press Release dated 11th October, 2012 available here)

Even if one does not attribute motives, this language did point to an obvious conflict between an extension of the IRW Act and civil liberties. It is my belief that these civil liberties, will in future involve prosecutions of persons and womens groups who challenge prevailing social mores.

Lets have a closer look at the provisions and changes suggested by the IRW Amendment Bill.

Proposed amendments

As the press release alludes the IRW Amendment Bill, 2012 aims to amend certain provisions of the IRW Act, 1986 to extend it to digital mediums. (Full Text of the IRW Amendment Bill, 2012 is available here)

The thrust of the IRW Act, 1986 has been to penalize advertisers and publishers who hope to profit from the objectification of women. Here it would seem only natural for the same law to apply to paper and webpages. Medium neutrality has been a consistent theme in the civil liberties debate, where much criticism from commentators has been as to the absence of agnosticism in the law. So its only natural for the IRW Act to be extended online for the regulation of content to remain consistent across mediums.

In keeping with this objective the IRW Amendment Bill, 2012 in the amendments proposed to Sec. 3 and Sec. 4 propose the addition of the terms, “electronic or in any form”. Sec. 3 contains the prohibition of advertisements containing indecent or derogatory representation of women and Sec. 4 contains the Prohibition of publication, transmission, distribution of materials containing indecent representation of women.

Over and above this, there are two other key additions proposed by the amendments. Firstly the definition of “indecent representation of women” is expanded, thereby bringing more content under the ambit of the law. This has been notably done by the addition of a traditional obscenity prong (such as one under Section 292 of the Indian Penal Code) to indecency. The law generally regarded, indecency and obscenity to be distinct offenses. However, the amendment proposes to insert obscenity under the existing definition of indecency thereby making it broader. Secondly, the penalties for contravention of Sec. 3 or 4, under the law have been hiked from a minimum period of imprisonment of two years to three years.

A question which arises is the law liable to abuse. Inextricably linked is the objection, aren’t all laws liable to abuse ? Whats so special here ?

Notable precedent

The history of prosecutions under the IRW Act has been vexed. The torrent of advertisements and newspaper supplements which objectify women shows that the Act has been inefficient in serving its purpose. Separate from its failure to morally fasten portrayals of women a bothersome pattern of its abuse has emerged.
This abuse has been apparent through several cases which demonstrate how broadly the law is framed and how it is invoked. Though given most of the cases are ultimately dismissed, the legal process, or as it is stated politely, the rigors of law are coercive. Ultimate vindication is often a Pyhrric victory obtained through years of exhausting an appeals process. Each one of the instances below demonstrates this point.

For instance take the case of Babban Prasad Mishra v. P.S. Diwan (2006 CriLJ 3263), where advertisements of a Kama Sutra Capsule were showed with a woman lying in the lap of a man. The judge quashing the criminal case which was filed against the Petitioner, noted that no obscenity or indecency was involved in the advertisement. The point to take away from this case is that a pictorial representation of a woman lying in the lap of a man was an adequate threshold for the commencement of a legal prosecution.

Now lets come to two cases of where the abuse of the IRW Act was noticed by the Courts. Both of them involve female actors.

The first case titled as Shilpa Shetty v. T. Dakshinamurthy, where the Madras High Court quashed two non bailable warrants issued against Shilpa Shetty on a complaint made by a advocate stating that certain pictures of her published in a local daily violated the IRW Act. The court stated that since the IRW Act applied to publishers, and not the models/actors in the picture the prosecution could not be sustained. Even while doing this the same benefit was not extended to the publisher of the local daily and the trial proceeded against him. Kindly consider the ease with which a non-bailable warrant can be issued by a district court acting under the IRW Act against a out of state defendant.

The second and the more sensational case is titled as Khusboo v. Kanniammal, where the actor, Khushboo, had to go up till the Supreme Court to get the multiple criminal complaints filed against her quashed. The complaints under the IRW Act arose from her comments advocating more bodily autonomy for women in the context of pre-maritial sex.

The Supreme Court quashing the charges against her stated that the IRW Act, “was enacted to punish publishers and advertisers who knowingly disseminate materials that portray women in an indecent manner. However, this statute cannot be used in the present case where the appellant has merely reffed to the incidence of pre-maritial sex in her statement which was published by a news magazine and subsequently reported in another periodical. It would defy logic to invoke the offenses mentioned in this statute to proceed against the appellant, who cannot be described as an ‘advertiser’ or ‘publisher’ by any means.”

This judgment came after a similar non-bailable warrant was issued against Khushboo and she had to surrender before a court to take bail. One of the bail conditions imposed by the Court prevented her from talking to the media about the case. Even people who supported did not escape the legal process. Suhasini Mani Rathnam, who had defended Khushboo, had four cases filed against her.

Digital activism, not a hypothetical

Call it slacktivism or any other deprecatory term, the use of Internet as a medium for activism is increasing. The most recent instance is extensive use of social networks by millions of users to change their display pictures showing support for LGTB rights to coincide with the US Supreme Court hearings on gay marriage.

the gay marriage equality box image which has gone viral over social networks

Indian NGO’s and womens groups are not oblivious to this. Most of them maintain active twitter accounts and facebook pages. They often post images and content challenges the social bounds which dictate tight moral crosets for women. An effective way to get such a message is through pictures.

These pictures often contain partial nudity or images which would certainly run into trouble with mandates of IRW Act if it was to be extended online. If not an ultimate conviction, the threat of the pendency of a criminal case is a certainty.

Consider the following examples.

• The Delhi Slutwalk Facebook Page has a panned out picture of nude women protesting against AFSPA outside a Assam Rifles Barrack.
• The Feminist India Facebook Page has a picture of the same protest, however the protesting and partially nude women are this time covered by banner which protests AFSPA.
• The GotStared.At Facebook Page has a picture of a womans legs, questioning patriarchal male attitudes about the correlation skirt length and sexual consent.

Its not these pages in isolation or the extension of the IRW Act which poses a threat of prosecution. It is the growing constituency of the offended, many of whom are the self arrogated custodians of Indian values. This has deeper links with a resurgence of right wing nationalism which is as many say disproportionately represented in online media encouraging a slur of “internet hindus”. An extended IRW Act would certainly provide a ready powder keg to such an easily inflammable group.

The short of it can be summarized in two rhetorical questions.

Will the IRW Act with its 10 sections dent patriarchy and objectification of women? It might.

Will the same 10 sections pose a risk for groups and individuals espousing the rights of women ? They certainly will.

Not without prejudice

My natural disposition revolts against any form of regulation on pure speech. I state this bias since it will always be present in my writing.

I believe policing speech is often going after the lowest hanging fruit which leads to greater deprivations of liberty. Even when well intentioned, doing it through law is plucking the fruit even without waiting for it to ripen. There are limits to law. By itself it is merely a black letter printed on paper. Inefficiently enforced by the police and courts. The social mores stay even in the existence of laws which mandate to the contrary.

A law preventing patriarchal speech does not change patriarchy by itself.

However, I will not deal with the free speech right which deserves its own post. If I get time, I intend to do it in coming week. In the post I will object to the proposed amendments on broader grounds of them being obsolete/superfluous and endangering the level of freedom of speech enjoyed online. Not found of hyperbole, but the way the amendments to the IRW Act are framed presently, it may may be the progeny of 66A.

Finally, please point out if I am missing something. I am not saying this to be polite, I am unfamiliar with literature on gender studies and feminism. So by all means, criticize and correct me. I look forward to a discussion and gaining a better perspective on this.

Background

After lifting lifting the Gag Order on the press in the Chautala Case (subsequently stayed by the Supreme Court), the Delhi High Court has lifted the Gag Order on reporting the Delhi Gang Rape Case. This is as per a judgment dated 22.03.2013 given by Justice Rajiv Shakdhar in Vijay Singhal v. Govt. of NCT [WP(C) 195/2013].

The Delhi High Court Judgment dated 22.03.2013 set aside a police “advisory” dated 05.01.2013, as well as a lower court Order dated 22.01.2013 by which the Media was prevented from reporting on the court proceedings in the Delhi Gangrape Case.

Establishing Public Interest

The first few pages describe the debate which was spurred by the Delhi Gangrape. In many legal cases, such a background is given in a perfunctory manner. However, the background provided to the Delhi Gangrape Incident provides foundational support to the analysis which stretches till the last paragraph of the Judgment.

This is because the Court correctly reasons, for any reporting in such a criminal matter there should be an existent public interest and not a mere morbid curiosity. This factual narration contains a summary of the brutal incident as well as the public debate spurred by it. Protests and the legal measures proposed. In view of this, the court neatly concludes the overwhelming public interest which is present in the case.

Reasoning of the Court

There are three principal prongs which are examined and reasoned by the court.

The court first examines the legality of the police advisory, holding it to be illegal. This is due to the power which is present under the criminal law allowing for gag orders to be made only by Courts and not the police. Hence, any such police advisory which is issued without legislative backing is void ab initio.

The power to limit the constitutional guarantee to free speech can only be prohibited by a valid law passed by the legislature. Hence such extra legal “advisories”, which are not made pursuant to any legislative provisions but purely by the private fiat of the police are illegal and unenforceable.

Secondly the Court holds that discretion vests in a court in barring or permitting an open trial and publication in all cases under Section 327. The general rule under Section 327 being that an open trial will be held in all cases, with the judge having the discretion to restrict access and hold it in camera after recording reasons for it. However Section 327(2) inverts this rule, when the trial involves an offense of rape. It states that trials concerning rape shall be held in camera. Similarly Section 327(3) prohibits publication of court proceedings.

The Delhi High Court holds that even in the existence of such statutory bars, the Judge has discretion to permit limited access to the trial, and even publication. In reaching this conclusion, it interprets the words, “shall” as “may”, stating that the Court in ordering can always exercising its discretion record reasons for departing with the general rules. Following from this it sets aside the lower court order dated 22.01.2013.

Thirdly since the prosecutrix (consciously avoiding using the term “victim”) has passed away, much of the interest in holding the trial in camera as well as preventing reporting under Secs. 327(2) and 327(3) is eroded. These provisions are to ensure the safety and dignity of the prosecutrix in which she can freely depose and give testimony. Due to her death blanket gag orders under these provisions are naturally suspect.

Another reason which is canvassed by the prosecution is the safety of the accused where a free flow of people may pose a risk to them. The Court here takes a balancing approach stating that a blanket ban as opposed to limited access, is excessive. It states that the lower court can always restrict access, reasonably.

Holding

Based on the above-mentioned reasoning the Delhi High Court finally orders that:

(i) The Court will allow access to one representative journalist of each of the accredited National dailies.

(ii) The reporting shall not include the name of the victim or those of the members of the family of the victim or the complainant or witnesses cited in the proceedings.

(iii) The reportage shall exclude that part of the proceedings, which the Court specifically so directs.

(iv) The reporters of UNI and PTI and other national dailies shall share their stories with representatives of other newspapers and members of the electronic media.

Parting Thoughts

The tests of “necessity” and “proportionality” which were alluded to in Sahara Real Estate v. SEBI (read more here) were not applied. The Court does state the need to apply them whenever press freedoms are involved however does not flesh them out. Personally, I was somewhat disappointed given that this was an opportunity for the court to provide some guidance on them.

Copyright Rules, 2013 and Internet Intermediaries

This post examines the issues which emerge from the recently notified Copyright Rules, 2013 for internet intermediaries in India.

Internet Intermediaries are essentially companies which provide online services which facilitate transmission of user generated data. Often this data is the subject of copyright owned by a person other than the User who initiates the transmission. Due to this there is often the concern that the internet intermediary may be held liable for copyright infringement which originates due to the illegality of the User.

In this context the recent amendments under the Copyright Act, 2012 provide for an exemption from liability. The procedure for this is defined under the Copyright Rules, 2013.

Copyright Amendment Act, 2012

As many know that the Copyright Amendment Act, 2012 amended the existing law to bring in a provision to exempt liability of internet intermediaries for copyright. The relevant provisions contained in the Amendment Act are Sections 52(1)(b) and 52(1)(c) which provide for a notice a takedown mechanism when an online service provider or an intermediary is providing for “transient or incidental storage”.`1`

This legal provision is formulated on the principle, that if the intermediary is passive and secondly it takes down the content when it is notified that it is infringing then it will not be held liable.

These text of Sections 52(1)(b) and 52(1)(c)  is available below:

You can even download it here.

These provisions set the high brow principles of exemption of liability for intermediaries but do not spell out the procedure and the specifics. These details which are often left to delegated legislation formed through rules are fleshed out in Rule 75 of the Copyright Rules, 2013.

Copyright Rules, 2013

As stated before Rule 75 of the Copyright Rules, 2013 define the procedure for intermediaries to avail this exemption. Rule 75 is available below:

You can even download it here.

How a Rule 75 takedown will work

On a broad level, the rules contemplate that the Copyright owner has to give a written notice to the Intermediary under Sub-Rule (2), after which the Intermediary has to take down the content within 36 hours. It is important to stress that the written notice should mention the location, i.e. the specific URL where the work is being made accessible from.

This take down of the content needs to be confirmed by the Copyright owner within 21 days of making the complaint. This confirmation is through by procuring a court order which mentions the infringement of the work.

If the Copyright owner fails to procure such a court order then the Intermediary can do two things. Firstly it can restore access to the content which was taken down. Secondly it is not obligated to respond to such further takedown notices for the work which is at a specific location.

By Martin Fisch, graciously licensed under a CC BY-SA 2.0)

Problems with the Amendment Act

Let me preface any criticism with a compliment to the Copyright Office which has drafted the rules. As per me, given that the Copyright Act itself set the boundaries within which the Rules (which are the delegated legislation could be made) could be made, the Rules reflect a balance between the competing interests of owners and users.

In many ways the inadequacies of the rules can be traced to the original sin of the parent enactment. The first and the most prominent is with respect to the scope of the exemption available to the different types of intermediaries. Rule 75 carries forward the language of Sections 52(1)(b) and 52(1)(c) whereby it allows the exemption from liability only available to, intermediaries who facilitate, “transient and incidental storage of work for providing electronic links, access or integration”.

The obvious problem is that the categorization is quite narrow. Many intermediaries even provide permanent storage of data based on user request. They would naturally fall outside the ambit of protection.

Then is the issue of semantics or as lawyers term it, interpretation. The terms, “transient” or “incidental” have not been defined in the enactment. By a lack of such statutory precision the results of application of this provision become unpredictable.

Practically, it may mean, that a copyright owner may assert that a Intermediary does not qualify for the statutory protection since the copyrighted work was not hosted in a “transient” or “incidental” capacity. This can now only be settled through litigation and judicial determination, which is not the most efficient way to determine legal rules.

Issues with Rule 75

Firstly, the biggest omission under Rule 75 is the absence of a counter notification system.  A counter notification system essentially allows the content to be accessible even after a notice has been received by the intermediary for copyright infringement. Under it on receiving a take down notice, the intermediary provides a copy of the notice to the User who uploaded the content. On receipt of the notice if the User does not respond, access to the content is disabled.

However, the User has the option to disputing the notice. On disputing the notice, the content stays up. Here the liability is shifted from the intermediary directly to the User and is consistent with the broader principles under Rule 75. The absence of such a system is clearly problematic and can lead to a chilling effect where the User has no option to dispute the notice from the very beginning.

Secondly, the mechanisms built to discourage frivolous take down notices by Copyright Owners deserves some comment. Rule 75 states that the take down notice will mention the place, i.e. the URL where the work is hosted. After the notice is sent the owner has 21 days to procure a court order confirming the veracity of the notice. If such an order is not produced then the Intermediary can put the content back up and is not obligated to respond to further requests to take down the content on that specific URL.

This structure, is aimed at preventing the intermediary from exercising any determination and going by the representations of the owner. Hence, the URL as opposed to the work itself becomes important. Please consider, that the same work/content can be posted on multiple URLS’s.

Also important to bear is that a mandatory court order will enforce a check on frivolous and overbroad requests for take-down of content. However this check may not be as strict as it appears. Such a court order will be in the nature of a interim injunction and while a court may inquire as to the prima facia satisfaction of infringement it may not get into a deeper inquiry on issues such as fair use.

It is also important to consider that the Intermediaries are under no obligation to repost the content if such a court order is not produced by the owner. This is as, intermediaries are private platforms who have their own terms for users. Now even if the owner, does not send a Court Order, the intermediary may still keep the content down. This may not be due to a breach of its terms, but may just be a function of passivity. This will destroy the incentives built to check frivolous take down notices if there is a general pattern of not reinstating the content. The owners will no longer be forced to approach a court or to get an order.

Finally it would be out of place not to mention that there is a mismatch between the present rules and the Information Technology (Intermediary Guidelines) Rules, 2011. The Information Technology (Intermediary Guidelines) Rules, 2011 under Rule 3(2), state that an intermediary will not be liable if it takes down certain content. Such content includes a complaint for copyright infringement. Under these Intermediary Rules there is no obligation on the Intermediary to restore access to the content.

The Division Bench overturning this injunction in appeal in no uncertain terms held that there should be an exercise of restraint in granting such “gagging orders.” The formulation commences where the Court reasons that the case concerns a conflict between, “the right to tell” and “the right to free trail”. For the latter it extends the inherent contempt power of the court and states that a publication can be prohibited in two ways, first when it impacts the impartiality of a judge and secondly when it prejudices the ability of the court to ascertain the true facts of the case.

This decision is an exercise in good sense where it seeks to apply the right interpretation to the right law. When discussing the aspect of a judge being influenced by a publication, it puts the onus on the judge, saying they should train themselves not to be influence by portrayals in the media. On the point of the publication prejudicing court proceedings, the Court states that merely because a telecast is on a pending case, does not mean that such prejudice will be caused automatically. It states that the Court has to go through the contents of such a telecast and the transcript and has to make a factual determination which is limited to it.

In Chautalas case, since the injunction did not satisfy these requisites, not reasoning the actual prejudice which would be caused or the Court even evaluating the telecast contents and transcripts, the Division Bench holds that the injunction must be set aside.The Judgement is clearly progressive, it in no uncertain terms holds that publications on pending trials by themselves are not contemptuous and even aid in checking judicial malpractices. A copy of the judgement is can be downloaded from here.

The Order which is on the last two pages of the PDF is in Hindi and a translated copy of it is pasted below as well.

You can access the PDF here

A unauthenticated translation of the Order dated 28.01.2013 is given below. I would stress that the translation cannot be relied upon in court proceedings and may contain errors, it is only for the use of communicating the order to the general public.

Plaintiff: Shri Vallabh Tripathi, through Advocate

Defendant No. 1& 2: Shri H.B Gupta, Advocate

Defendant No. 4 : Shri NK Shrivastava, Advocate

Defendant No.3: None

The Plaintiff filed an Application under Order 6, Rule 17 and Order 1, Rule 10 of the Code of Civil Procedure( C.P.C)  and one more application under Order 39, Rule 1 and 2 of CPC. The Defendants 1, 2 and 4 seek time to file replies. This is objected by the Plaintiff on the ground that Defendant continues to publish the defamatory material against the Plaintiff. In this connection, the defamatory speech as in Schedule 3 and Schedule 4 which lists the documents have been presented in this Court.

The Plaintiff has submitted that the Hon’ble Delhi High Court in Civil Suit 2305/2009, E-2 Labs Information Security Pvt. Ltd. and Others Versus Robert Petroni and Others and Civil Suit 1077/2011, Narang Association Versus Pranay Gambhir and Others by Order dated 6^th November 2012, Order copies of which were presented in this Court, injuncted the publication of the defamatory materials and the Group Coordinator, Cyber Law Division, DIT, Ministry of IT has also been directed to block the defamatory websites till the next date of hearing.

In this matter, by Application dated 18.05.2012, the Plaintiff has submitted that despite the direction of the Court, the defamatory materials are being published. In the facts and circumstances of the case, till the next date of hearing, the defendants and the Group Coordinator be injuncted from publishing defamatory material and be directed to block the materials.

The Defendants shall file their Replies Under Order 6 , Rule17 and Order 1, Rule 10 and Order 39, Rule 1 and Rule 2 of CPC by 28^th February 2013.

T.N Chand

IInd Additional District Judge, Dabra, Gwalior

Given that Arindam Chaudhuri and IIPM have as early as 2011 obtained an injunction from a court in Silchar to similarly take down an article on the Caravan magazines web portal I anticipated that even these blocks were the result of an interim injunction. Subsequently, a MINT story confirmed that such an Order was indeed passed by a district court situated in Gwalior. Beyond the Caravan Case, there exist other instances where IIPM has taken to the legal process to prevent publications of content critical of the institute or its founder. Through this article I will examine such cases and the litigiousness of IIPM pointing towards certain trends.

Notices for Defamation

According to press reports IIPM has filed defamation notices however it has not followed it up with legal proceedings in some cases. A common feature of such notices is that they contain exceedingly high amounts claimed as damages for defamation for instance in the legal notice sent to Gaurav Sabnis the amount of damages claimed was Rs. 125 Crores. This is a regular feature of defamation notices these days with such high amounts often not corresponding with the eventual filing of the case. The amount in a sense pressures the author into compliance and also chills other speech. Its valuation in a sense is rationalized on the filing of a actual case since many State stamp duty enactments contemplate ad-volerm payment of fees. Higher the amount claimed in relief, higher the court fee. Hence there is some rationalization when parties eventually file civil cases.

Reliance on Criminal Law

The recent web blocks in the Gwalior and even the case against Caravan in Silchar, Assam was a result of a civil case for defamation. However Sections 499 and 500 of the Indian Penal Code, 1860 also recognize the offence of defamation where it can lead to criminal sanctions, IIPM has explored this legal route as well. My analysis below is limited due to the limited data set, where there is no centralized database for criminal complaints and often decisions in criminal matters is only reported in legal journals when the accused approaches a State High Court, seeking quashing of a criminal proceeding or bail. Hence, even the data and the takeaways from them are at best, only representative.

IIPM v. Outlook (Delhi)

The first criminal case to which is relevant is that of Mr. Rajan Bihari Lal Raheja v. Planman Consulting India (reported as 185 (2011) DLT 154), in which the Respondent, i.e. Planman Consulting India (which is described as the sister concern of IIPM), filed a criminal complaint aggrieved by an article titled as “Racket Game Lobs” which was published on 30th June, 2008 in Outlook Magazine. Since the proceedings were preferred not only against the authors and the editors of the magazine but also the owners of the magazine, the Owners approached the Delhi High Court asking for them to be quashed.

The Delhi High Court while making references to established principles of criminal liability quashed the proceedings against the owners of the magazine. It is important to note that this was in exercise of an extraordinary power, where the criminal trial itself had not begun. The law treats this as an exceptional remedy and hence in the same proceedings it refused to interfere which the pending criminal proceedings against the Publisher and the Author. There are some other criminal proceedings as well including SLP (Criminal) 9655/2011 which are related to these proceedings and are pending in the Supreme Court of India however due to an absence of pleadings available publicly I do not know which Order/Judgment they are challenging.

IIPM v. Careers 360 (Dehradhun)

The second criminal case titled as, Pathfinder Publishing Pvt. Ltd. v. The State and Anr. (MANU/UC/1013/2010) concerned a series of articles run by Careers 360, titled as, “IIPM makes yet another claim – Over to you Mr. Sibal”, “IIPM best only in claims” etc. The articles concerned the alleged tie up of IIPM with the University of Buckingham whereby on the basis of inputs from the University, the articles debunked the claims by IIPM. The second article also contained a reference to the UGC notice dated 31.07.2010 which stated that IIPM is not recognized to grant degrees by the UGC. Aggrieved by such publication a criminal defamation complaint was filed against the Publication, the Editor and the Author in Dehradhun. To avoid the rigors of criminal trial, the Accused approached the Uttaranchal High Court, with a much tougher plea.

Rather than seeking to quash the case on a technicality they argued on the pith and substance of the articles was not defamatory. This is a much harder plea to make since even if there is an element of doubt as to the satisfaction of legal ingredients of defamation the court directs the accused to go through a process of trial and evidence. However, in the instant case the court categorically held that the impugned articles were not defamatory and fell within the public interest. I am quoting below two paragraphs of the stinging rebuke to IIPM:

“26. The entire edifice of our justice system rests on the principle of truth! The exercise in a Court is nothing if it is not a pursuit for truth and justice. The common expression in a Court room is “Satyamev Jayate” – Truth shall triumph. Truth is also the best defence in a case of defamation. A truth spoken for public good can never be called defamatory. When the author of the disputed article stated in the article itself, in no ambiguous terms, that what he has stated is true and has been verified from Buckingham University and the Berkeley University that they have no arrangements with IIPM, then the first question the learned Magistrate should have asked the complainant was – “Do you have the authority to grant this degree from Buckingham University? If yes, show the proof? This was not done. In fact even this Court not once but repeatedly asked this question to the counsel for the Respondent Sri Manoj Desai, as to his authority to grant such degree and if they have they must show it to the Court, the petition would then be liable to be dismissed. But no such evidence was shown, even to this Court! The learned Counsel kept on repeating that the complainant has “arrangements” with Buckingham University and that they send their students to Buckingham and that they outsource lecturers from Buckingham, etc., etc., but no proof of their claim that they grant degree from Buckingham University!

28. On these facts, this Court is of the opinion that the criminal proceedings, which are presently pending against the Petitioners are nothing but an abuse of process and in order to meet the ends of justice, summoning order dated 12.10.2009 are liable to be set aside and are therefore set aside. The proceedings in Criminal Complaint Case No. 5020 of 2009 which is pending before the A.C.J.M, 3rd Dehradun are also set aside.”

It is important to note that URL No. 30 of the Blocking Order dated 14.02.2013 contains the article titled, “IIPM best only in claims” which was held prima facia not even capable of defamation by the Uttaranchal High Court. Seems as if IIPM is taking a second shot at abusing legal process.

Civil Suits

Indian Institute of Planning and Management v. Outlook Publishing (High Court of Delhi)

The first of the civil suits concerns the same article titled as, “Racket Game Lobs” published in Outlook in which a civil case for defamation was filed by IIPM against the Publisher. The reliefs which are requested in such civil cases are towards requiring specific conduct to be affected through an act or omission which is termed as a mandatory injunction or through monetary damages. We all know it takes quite sometime for a court to make such a determination and even courts recognize this. Hence. to prevent any further damage to the Plaintiff (the aggrieved party) while the case is pending in court, an order is passed to prevent the Defendant from engaging in certain conduct which would lead to damage or loss to the Plaintiff in the interim. This is called an interim injunction and this is what is at play in the civil cases before us.

The civil suit which came to be filed by IIPM v. Outlook in the Delhi High Court numbered as 442/2009 is presently pending adjudication. However, there appears to be an interim injunction in place which has been modified by an Order dated May 01, 2009. This modification is to another exotic type of interim injunction termed as an ex-parte ad-interim injunction. This is one in which even a notice is not sent to the Defendant and the injunction is passed for a limited time period till the defendant appears till the next date. Interestingly in all the cases IIPM presses for an ex-parte ad-interim injunction. Since the original copy of the interim injunction is not available the Order dated May 01, 2009 which modifies it cannot be relied on fully. In any case the modification is natural and allows further comment by Outlook giving a right to IIPM for rebuttal.

Kishorendu Gupta v. Delhi Press Publishing (Silchar District Court & Supreme Court of India)

This was another case for defamation and mandatory injunction filed in the district court Silchar which by its order dated 12.04.2011 passed an ex-parte ad-interim injunction against the Caravan Magazine and its publishers. The case titled is titled as Kishorendu Gupta v. Delhi Press Patra Prakashan, and as it suggests was not filed by IIPM directly but through one Kishorendu Gupta, who was in some way shown to be an affiliate of IIPM. In this case, the most problematic article beyond the egregious injunction was the of a territorial nexus between the party which was defamed, i.e. IIPM and Arindam Chaudhuri, and the forum in which the case was instituted. Both IIPM, Arindam Chaudhuri as well as the Defendants were ordinarily resident in Delhi however to make matters a little difficult the case was filed in a remote district which naturally lacked territorial jurisdiction.

Aggrieved by this Order the Publishers approached the Supreme Court in a Transfer Petition titled as M/s Delhi Press Patra Prakashan v. Kishorendu Gupta numbered as TP (Civil) 837/2011. As per statements of the Publishers, the Supreme Court has stayed the interim injunction and even transferred the case to Delhi. These links have been blocked as per the latest order which emanates from a Gwalior District Court. However, on the Supreme Court website the case is shown as pending. There are no orders available online to verify its status.

Anon IIPM Channel Partner v. John Doe (Gwalior District Court)

We now come to the case at hand which has resulted in the block orders. Not much is known about it except that it has not been filed by IIPM but by one of its affiliates and the forum of choice is Gwalior.

Procedurally, the actual block orders which were issued by the Department of Telecom under Rule 10 of the Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules, 2009 were in pursuance to an interim injunction issued by a district court in Gwalior.

Again the choice of forum is quite exotic and again there was no notice which was given to the owners of the websites. Since a copy of the Order is not yet available online I will refrain specific comment on it. However, I would be interested in knowing who are the lawyers who wrote the compliance letter to the DOT. Also, whether in the pleadings whether the defamatory URL’s were identified alongwith the alleged defamatory content or this determination was left up to the Plaintiff as well. This case is also presently pending adjudication.

In my view the above cases are problematic. They push the boundaries of law and show the fallings of established procedure. Above all they demonstrate how pendency and interim orders can be combined to chill speech.

Background

The 23rd of January saw the release of the awaited report of the Justice JS Verma Committee on Amendments to Criminal Laws (the full report can be accessed here). The Committee recommends the insertion certain offences in the Penal Code, which would create offences for breaching the privacy of women in physical spaces.The section dealing with recommendations to amend the Criminal Law Amendment Bill, 2012 (Appendix 4, pp. 437-38) envisages two new offences of voyeurism (s. 354 B) and stalking (s. 354 C(1)) under the Indian Penal Code. Moreover, the Bill of Rights of Women (Appendix 3, p. 432) discusses a right to secured spaces even within the public domain demonstrating a shift in the conception of privacy.

These offences are properly concerned with intrusion of physical places, which is considered the starting point for privacy rights. The privacy movement has its conception in an article in 1890 because people intruded into the private wedding ceremony of the daughter of one of the authors. As a right privacy had its beginning in physical spaces and with the rise of the Internet even this right had to adapt as did many other aspects of our lives. Even though today most of us are concerned with privacy with digital spaces, much of the narrative on privacy commences from the proverbial walls of a castle. And as the Warren and Brandeis metaphor goes even a woman’s house is her castle. In the digital age where we only think of privacy as a right to control personal information,which seems to be one of the limitations of the Report on Privacy by the Justice Shah Committee (summary of the report available here)) the protection provided by the right as encapsulated by the recommendations of the Verma Committee in physical spaces should not be overlooked.

Privacy, has been looked at by the Supreme Court as a right to be free from State interference, however, the Committee’s report looks at privacy in tandem with other jurisdictions where the right to privacy is looked at as a right to personal development and autonomyoffering a zone of interaction even in public spaces [SeePG and JH v The United Kingdom App no 44787/98 (ECtHR, 25 September 2001)].

Voyeurism

“354B. Voyeurism -

Whoever watches a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator, or by any other person at the behest of the perpetrator shall, be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but may extend to three years, and with fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but may extend to seven years, and also with fine.

Explanation 1: ‘Private act’, in the context of this provision, is an act carried out in a place which, in the circumstances, would reasonably be expected to provide privacy, and where the victim’s genitals, buttocks or breasts are exposed or covered only in underwear; or the victim is using a lavatory; or the person is doing a sexual act that is not of a kind ordinarily done in public.

Explanation 2: If the victim consented to capture of the images or other material, but not to their dissemination to third persons, such dissemination shall be considered an offence within this section.”

This proposed section seems to be an extension of section 66E of the IT Act, which prohibits capturing, publishing or transmitting of image of private area of any person without their consent thereby, disallowing online voyeurism. The recommendation of the Committee goes further than the aforementioned section and also prohibits and punishes the viewing of woman engaged in private acts. It should also be noted that this section acknowledges the aspect of recidivism in persons engaging in such activities. The recommendation is an attempt to punish ‘peeping toms’ and punishes watching women engaging in private act where a ‘legitimate expectation of privacy’ ensues. An act would come within the confines of the definition of a ‘private act’ if a reasonable expectation of privacy exists and the victim’s genitals, buttocks or breasts are exposed or covered only in underwear. Further, the usage of a lavatory by a victim or sexual acts which are ordinarily not done in public are also classified as private acts

The section affirms the proposition that the right to privacy protects people and not places, as the section prohibits voyeurism regardless of public or private sphere as long as the woman has a ‘legitimate expectation of privacy’. However, one is left to ponder why this section is not worded in a gender-neutral manner.

Stalking

“354C(1). Stalking -

Whoever follows a person and contacts, or attempts to contact such person to foster personal interaction repeatedly, despite a clear indication of disinterest by such person, or whoever monitors the use by a person of the internet, email or any other form of electronic communication, or watches or spies on a person in a manner that results in a fear of violence or serious alarm or distress in the mind of such person, or interferes with the mental peace of such person, commits the offence of stalking.

Provided that the course of conduct will not amount to stalking if the person who pursued it shows:

i. that it was pursued for the purpose of preventing or detecting crime and the person accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the state; or,

ii. that it was pursued under any enactment or rule of law, or to comply with any condition or requirement imposed by any person under any enactment; or,

iii. that in the particular circumstances the pursuit of the course of conduct was reasonable

(2) Whoever commits the offence described in Section 354C(1) shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to three years, and shall also be liable to fine.”

As a right, privacy is an intrinsically individual right, allowing for each person to define for themselves what is private and what is not. Essentially, this is embodied in the theory of control. The Internet has made the right to privacy extremely susceptible to erosion by diminishing the control over personal information. The recommendation dealing with the offence of stalking specifically takes this into consideration and states “[…] whoever monitors the use by a person of the internet, email or any other form of electronic communication… will be guilty of the offence of stalking”.The manner, in which this offence is worded, clearly shows the intention of the Committee to indicate the value of control over personal information.

In the digital age where individuals engage in numerous activities via social media taking this into account is a welcome recommendation on behalf of the Verma Committee.

Conclusion

The codification of these offences is an example of the recognition of the right to privacy in the absence of any enactment specifically granting this right. Once codified, these offences will mark a shift in the role of the State when it comes to the right of privacy. Privacy in India has been looked at as a right that entails a negative obligation on part of the State i.e. minimum intrusion into the private lives of individuals. However, in keeping with different conceptions of privacy there is also a positive obligation on the State (as noted by General Comment no. 16 to Art. 17 of the ICCPR)that can be noted in the recommendations of the Committee. The right to secured spaces coupled with the codification of the offences of voyeurism and stalking increases the obligation of the State to ensure that individuals are protected from being unwantedly pursued, be it through electronic media or in physical spaces.

In the digital age whennumerous people engage in various activities online, leading to the generation of large amounts of personal information, these proposed amendments (especially stalking, with relation to the internet) are commendable developments.However, there is also an urgent need of a single legislation addressing the right to privacy in as recommended by the Shah Committee (available here).

[Image taken off this NDTV Article]

There are two classes of cases which are pitted against each other in the debate surrounding Section 66A of the Information Technology Act, 2000. Amongst other things, the section contains an offence for any electronic communication which is “grossly harmful” or has “menacing character”. The punishment for such an offence is three years; it is also extended to false communications which cause, “annoyance” or “inconvenience”.

The first case concerns an issue of free speech and the second concerns the boundaries that should be placed on them. A recent example of the first is the arrest of a person in Puducherry for tweeting on Mr Karthi Chidambaram allegedly amassing more wealth than Mr Robert Vadra. There are other instances of such use, with the provision being used against cartoonist Aseem Trivedi for posting his cartoons that supposedly lampooned national symbols online, against Heena Bakshi for allegedly using abusive language on the Facebook page of the Chandigarh Police,  and against Jadavpur University professor Dhananjay Mohapatra for parodying Sonar Kella to poke fun at Ms Mamata Banerjee. The latest in the list is the recent arrest of two girls in Palghar, one for posting a status message protesting the bandh enforced due to the death of Bal Thackeray and another for liking it. All these cases show a tremendous intolerance of the state towards speech or of people who have a handle on the levers of power.

However, this concern for protecting the Constitutional guarantee towards free speech and expression is often called into question by the ostensible benefit the provision extends. The benefit is often made out by referring to a set of cases generally involving online abuse and harassment, which is directed towards women. One such instance is the prosecution which was launched against several people who allegedly directed abuse on Twitter at Tamil singer Chinmayi Sripad. Online abuse and harassment of women is widespread and disgusting, and there is no quarrel with the proposition that more criminal prosecutions need to be made for them. However, to use such cases to defend Section 66A is plainly disingenuous.

Section 66A, which is broadly framed, has offences without any definition, and that its application can be stretched to infinity was never intended to apply to cases of online harassment or abuse which is directed towards women. There is no mention of this in the deliberations of the parliamentary committee which made a report on the Amendment Act, 2008, by which Section 66A was inserted. This is further confirmed by the language of the provision itself, which does not contain any term that suggests the provision is intended to apply to such cases. Hence, if you, by the intention of the legislature, which is quite hazy, even though it can apply to every form of speech which may be little more than inconvenient to someone it has nothing which suggests it is for the benefit of women.

It is also relevant to state that many such debates cite such prosecutions as recognition of our Constitution’s qualified guarantee towards free speech, which is limited by the reasonable restrictions contained under Article 19(2). This is incorrect, as Section 66A is so broadly framed that it easily flows outside the grounds articulated as reasonable restrictions. In fact, it is an established judicial doctrine to strike down vague laws which are inherently open to arbitrary application.

Even now the Section 66A apologists will clutch onto the defense of provision by countering that in the absence of it, cases of online abuse and harassment will go unabated. Such a defence demonstrates a woeful ignorance of existing criminal statutes which have ample penal provisions for the protection of women. Just look at Section 509 of the Indian Penal Code which specifically deals with any word, gesture or act intended to insult the modesty of a woman. It can quite easily be applied to online harassment and abuse, and this makes Section 66A completely superfluous to the cause of protecting women online.

In sum, the “our sisters, our mothers” argument is little more than a crude attempt to divert the contours of the debate. If you want to open your mouths freely online then open your eyes to such obfuscation and resist it.

Just because of a few stray incidents, where our moral compass aligns with prosecutions under section 66A does not mean the provision is not vague and inherently prone to arbitrary exercise. As a general rule, beware of an argument which uses the concern of women and children to breach your civil liberties.

Since the medium was global, the job to draft a model law which could be applied across national boundaries fell to the United Nations which drafted the Model Law on Electronic Commerce which India adapted to the Information Technology Act, 2000. The objective of this law was primarily to ensure the sanctity of the online world and remove the sense of anarchy which would have made online transactions unenforceable. However, along with the legal provisions to ensure the smooth flow of electronic commerce there were substantial derogations in the Act by which a separate chapter for penal provisions was inserted. These provisions, made amidst growing fears that the internet would ease under age users’ access to pornographic sites, essentially targeted sexually explicit content.

Along with it, there was a growing sense that the internet was not merely a medium for accessing information and a platform for building consensus, but also an instrument for voicing opinion and outraging against systematic failings of the State. To counter this tide of dissent, there was a growing trend to block websites that carried sensitive content that had the potential to “hurt  religious sentiments,” “spark riots” or contained criticism leveled directly at political parties and politicians. This concern though not expressly mentioned in government documents, is clearly documented in the number of requests (2319) for content removal made by Indian government (second only to the US) to Google which publishes this data in its annual Transparency Report.

Against this backdrop, a study was commissioned in 2006 to review the working of the Information Technology Act, 2000 that suggested certain amendments. The main concern was to update the law and prevent a repeat of a case that led to the arrest of the Baazee.com’s chief executive officer. This was a watershed case in the history of cyber laws. In 2004, Avnish Bajaj, the then CEO of Baazee.com, an online marketplace was taken to court because someone had used the site to auction a pornographic MMS. The seller remained anonymous but when the Act was invoked Bajaj was the only person who could be held liable.

Yet the amendment that was finally proposed to the parliamentary standing committee lamented that the law was too liberal and there was need not only to increase the jail terms in existing offences but to increase the number of offences as well! This led to the enactment of the controversial Section 66A that ironically finds no mention in the parliamentary report which spanned over 200 pages.

However Section 66A was still not made into law, which happened two years later, after Mumbai terror attacks in 2008. A Bill got passed in unseemly haste, in just seven minutes with eight other Bills, without any preliminary discussion. The illegality of Sec. 66A would have been apparent had the legislature in its wisdom paused and discussed the amendment which contained this draconian provision.

Even after Section 66A was notified into law in 2009 there it took time before its full impact unfolded. In retrospect, probably the constituency of the ‘easily-offended’ that exercises influence in the corridors of power had yet to discover Section 66A’s full potential. Even then, this section was being selectively used in cases of dowry harassment, financial fraud and even copyright infringement! Although not many such cases came to light during that period, these prosecutions demonstrated that Section 66A had infinite elasticity, promising a criminal remedy even if there was pin prick to someone’s delicate sense of proprietary.

Gradually, the worrying provisions of the Section 66A started to become apparent. Not only was it vaguely framed but this controversial piece of legislation, for the first time introduced several novel criminal offences that due to the absence of a definition could be applied with incredible subjectivity. Many a time, these criminal offences overlapped with existing criminal provisions that not only contained ingredients for the offences but also carried a smaller penal provision. For instance, the punishment for defamation which only carried a jail term of two years now became a jail term for three years, if such a communication offended or annoyed a person. Since one single piece of content or speech can lead to multiple offences, police officers started bunching together existing penal offences with Section 66A.

Though this may seem solely as one more criminal charge to an FIR, the effects were much more repressive given the procedure of criminal adjudication. Given India’s poor conviction rate, it is no surprise that the muzzling of speech is in the process of investigation by police and prosecution by the court as opposed the ultimate finding of guilt or innocence by a court. With the increase of jail term to three years under Sec. 66A many existing FIRs that contained penal provisions for lesser jail terms, suddenly became cognisable. In cognizable offence the police can arrest you without a court warrant. All of sudden, the police could arrest you for speech which it could not before.

The government’s defense to mounting criticism was that though Sec. 66A was a cognisable offence, it was bailable. Hence even though the police could arrest the accused, he or she still had the opportunity to seek bail from the court as a matter of right. However, is that a sufficient remedy or an adequate safeguard against an incredibly vague statute?

Another point to note is that Section 66A applies only to online communications. So a speech which can be considered legal in physical communications such as pamphlets or in addressing public gatherings can be called “illegal” simply because it is published online.

A batch of recent cases has demonstrated all these legal deficiencies and the vast abuse this provision. No doubt, these cases have spurred a public interest petition in the Supreme Court, seeking to challenge the constitutionality of Section 66A. The challenge does not only represent a continuance with the best traditions of freedom of speech protected by the Constitution but also  acknowledges the new-found democratisation and empowerment made available to young Indian population.  This is best put in a submission by the petitioners’ counsel when a query to her status and interest in filing the petition was raised by the bench. The learned senior counsel stated with a wistful expression, “Your lordships, the petitioner is a law student. She is also a user of Facebook. Unlike most of us…”

This article was originally written for the Financial World on November 30, 2012 before I appeared in the matter titled as Shreya Singhal v. Union of India which challenges the constitutionality of Sec. 66A. Though this article makes a passing reference to the case, the thrust of it is concerned with the implications of Sec. 66A and its legislative background. I believe a fair comment on Sec. 66A is in the public interest and I will continue with that, though in future I will not comment on the specifics of the case since that will be improper during the pendency of the proceedings.