Internet censorship by ronak

By: Ronak Karanpuria
LL.M. 1st year I.D. No. 534
Under the guidance of S.B. N. Prakash

Internet censorship:
Control or Suppression
publishing of, or access
to information on the
Internet

Done by:
Governments or by private organizations at
the behest of government or by regulators

Reason: Political, Social & Conflict reasons
Moral, Religious, Business reasons or Legal
consequences

The basic idea of the Internet - to be able to communicate and
connect with people all over the world and say whatever we want
to say. This basic right is now severely at stake
……………………………….by Sir Tim Berners-Lee

“FREEDOM”
Economic - Business - marketing tool for companies
Social - Relations - friends, relatives
Political - Fame - politician – mass image

USA India
People’s Republic of China
• Federal Laws
o Communications • Government Regulations on
“Partially Free” Pornographic, offensive
Decency Act
content, violent and etc.
o Children's Internet
• Information
Protection Act • Internet Police
Technology Act
(ITA)
• Censorship by • Comments, Blog and
• Government
institutions forums
blocking requests
o Schools
• Watch out what
o Libraries
you say on the
o Telecommunicatio
Internet
n Companies
o Wikileaks

1999 — Dawn website blocked – after Kargil War website of Pakistani daily
newspaper Dawn was banned
2007 — Orkut and Indian law enforcement agreement – to track defamatory
content
2011 — Websites like Typepad, Mobango, Clickatell, without warning to
prevent piracy of the film Singham.
2012 — 434 sites like Buydomains.com, Fabulous.com etc are blocked as a
result of government or court orders, some have been blocked by ISP.
— Delhi Court issues summons to Google, Facebook for objectionable
content.
— File sharing sites Vimeo, Megaupload, Torrentz & other torrents sites etc
were banned
— During Assam Violence – around 300 specific URL including website
of Rashtriya Swayamsevak Sangh and in addition, articles from Wikipedia, and
news reports of violence in Assam on the websites of The Times of India,
Firstpost, The Daily Telegraph and Al-jazeera were blocked.

Most Commonly Targeted Websites:
• Pornography • Nazi and Similar
Websites
• Social Networks
• Religious Websites
• Wikipedia
• Google
• Wikileaks
• Websites Associated
• Political Blogs with Censorship
Circumvention
• YouTube

Indian Computer Emergency Response Team (CERT-
In) constituted under IT act 2003 by executive order.
“The task of oversight of the Indian cyberspace for
enhancing cyber protection, enabling security
compliance and assurance in Government and
critical sectors. ”
CERT-IN is the agency that accepts and reviews
requests to block access to specific websites. No
review nor appeal.
CERT-IN act as the sole authority for issuing
blocking instructions to the Department of
Telecommunications (DOT)
In 2004, CERT-In ordered to block
http://hinduunity.org on the grounds that it
contained anti-Islamic material that could be
inflammatory

Government may not prohibit the expression of an idea simply because
society finds the idea itself offensive or disagreeable

Section 69A IT Act, grants powers to the
Central Government to "issue directions for
blocking of public access to any information
through any computer resource".

Guidelines, per s.69A(2), "shall be such as
may be prescribed". It has to be ensured that
they are prescribed first, before any powers of
censorship are granted to any body.

Any law that gives unguided discretion on an
administrative authority to exercise censorship
is unreasonable (In re Venugopal, AIR 1954
Mad 901).

• Like Google, Facebook etc. and ISP responsible for the content their
users upload(Intermediary liability)
• Terms of service to remove content that is grossly harmful, harassing,
blasphemous, defamatory, obscene, hateful, racially or ethnically
objectionable, unlawful in any manner, etc.
• When intermediary has the knowledge (either obtained on its own,
or when it is informed by any person) that the content being hosted
by the intermediary violates the Rules, it is required to initiate action for
removal of such content within 36 hours or to terminate the access of
the users.
• Are phone operators responsible for "content" carried on their networks
- or their CEOs arrested if someone made a terror threat over a phone
call? No, they were simply asked to help with the investigation - into
who made the call.

“intermediary” - Vague Definition – there are different
classes of intermediary which control the architecture of
the internet and the hardware which enables it to run.
So liabilities must necessarily vary with the specific type
of service that each provides.

Sube Singh v. State of Haryana that the state’s failure to
support a classification on the touchstone of
reasonability, with the existence of intelligible differentia
or the rational basis of achieving a stated object, will be
ground for it to be held arbitrary and unreasonable.

Three grounds of attack:
 Rules made by government are ambiguous and undefined.
 Publication of certain categories of content over internet as
mentioned in the Rules are not offences under any existing law.
 Article 19(1) of the Constitution guarantees the right to free speech
and expression. Article 19(2) this right may be restricted in the
interest of the State’s sovereignty, integrity, security and
friendly relations with other States, public
order, morality, decency, contempt of court, and for protection
against defamation. Some of the categories of objectionable
content under the Rules may not meet the requirements of Article
19(2) and may infringe the right to freedom of speech and
expression.

2. Cybercafé owners: Cyber cafés are required to maintain a log
containing personal details, such as address and photographs of the
users, and their internet usage. Provision to prevent or investigate
crime. Such provision could have negative implications on the right
to privacy and personal security of the user.

3. Privacy & Survellience : Sec- 69 of the new amended act, it is
possible for the police to snoop through one’s emails, phone
calls, texts and other personal communication over the Internet
without any warrant for the same from the magistrate.

The intermediary is no position to decide whether a painting of
women is obscene or not, since that requires judicial application
of mind.

Restriction that does not provide the affected persons a right to be
heard is procedurally unreasonable (Virendra v. State of Punjab,
AIR 1957 SC 896).

Q1. How intermediary can decide which content is harmful……or
unlawful?
Q2. Executive function of government delegated to private agencies
is abuse of power? No review ? No Appeal?
Q3. Principle of Natural justice is violated as the content uploader
is not given the opportunity to speak about its content?

Word “grossly harmful”,
“harassing”, “disparaging”, Not Legal Standards subjective
“grossly offensive” Vague Terms indicators of
or “menacing”, “hateful”, personal sensitivities
Blasphemous, defamatory

Do Not Fit in A.19(2)
“Void for Vagueness” Doctrine. [SC 1994 SCC (3) 569]
“It is the basic principle of legal jurisprudence that an enactment is void
for vagueness if its prohibitions are not clearly defined. Vague laws
offend several important values. It is insisted or emphasised that laws
should give the person of ordinary intelligence a reasonable opportunity
to know what is prohibited. Vague laws may trap the innocent by not
providing fair warning”

Express Newspapers (Private) Ltd. v. Union of India - Limitations on
the exercise of the Article 19(1)(a) right which do not fall within Article
19(2) cannot be upheld.

Under Rule 3 (4) IT guidelines 2011: Intermediary Guidelines violate
the author’s right to notice and consequently affect his/her right to
prepare and present a defence at all. In Sec-79 - limited time within
which action must be taken –intermediary will lost the immunity if no
action is taken - Guidelines presume and rule in favour of the
complainants and in favour of (private) censorship.

Union of India v. Tulsiram Patel Supreme Court held that the principle
of natural justice required the satisfaction of the audi alteram partem
rule, which consisted of several requirements, including the requirement
that a person against whose detriment an action is taken be informed of
the case against him and be afforded a full and fair opportunity to
respond.

M.C. Mehta v. Union of India: Supreme Court held that the absence of
due notice and a reasonable opportunity to respond would vitiate any
holding to the rights holder's detriment.

1. Rule 3(3) ultra vires section 79 of the IT Act.
Rule expressly prohibits the hosting, publication or initiation of transmission of
content while sec- 79 does not intend any prohibition.
2. Rule 3(4) inconsistent with section 69B
Rule states Intermediaries to take steps to disable access to within 36 hours
of receiving a complaint while sec- 69B which lays down in detail, the
procedure to be followed to disable access to information. Sec- 69B is
statutory law, Rule 3(4), being mere delegated legislation
3. Rule 3(7) is ultra vires sections 69 and 69B, and falls outside the
scope of section 79(2).
Rule 3(7) provides that intermediaries must comply with requests for
information or assistance when required to do so by appropriate authorities.
This provision has no relation to the contents of sec- 79(regulates
intermediaries’ liability for content) & not consistent with the rules under sec-
69 and 69B.
4. Information Technology (Procedure and Safeguards for Interception,
Monitoring, and Decryption) Rules 2009
Permission must be obtained from the competent authority to access records
while Rule 3(7) makes intermediaries answerable to virtually any request from
any government agency.

Internet is inherently DEMOCRATIC, suspending internet is violate the democratic
principles
1. Article 19 of the Universal Declaration of Human Rights states:
Everyone has the right to freedom of opinion and expression; this right includes
freedom to hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers.
2. Special Rapporteur’s Report & UN Internet Freedom Resolution2012
Recognize the need for special efforts to be undertaken by states to preserve free
speech on the internet. The former document justifies censorship only in the
most limited circumstances and makes specific mention of the commercial
interests that may be implicated in delivering free speech
3. Article 19(1) of Constitution of India, 1950 All citizens shall have the right—
(a) to freedom of speech and expression;
(c) to form associations or unions;
4. Article 21 of Constitution of India, 1950 No person shall be deprived of his
life or personal liberty expect according to the procedure established by law

• Internet censorship affects everyone. Environmental activists, HIV
lobbyists, human rights supporters, bloggers with opinions
• When information is controlled, censored or blocked there is no
transparency.
• Free flow of information restricted.
• Speed of internet will be restricted User-generated content be filtered: That
would slow down the global Internet to a crawl, with posts appearing after
days

• Everyone has the right to express an opinion and to access information
without fear
• That's freedom of opinion and freedom of expression. And it doesn't
matter whether you live in Australia or in China your rights are the same.
• Human rights are not just ideas and concepts – they affect the lives of
real people.

Google on this matter has also said that:

"When content is legal and does not violate
our policies, we will not remove it just because
it is controversial, as we believe that people's
differing views, so long as they are legal,
should be respected and protected."

1. To what extent do you believe
“information should be free”?
2. Will you obey the government’s
regulation of not reporting some certain
news, or will you insist to reveal the truth
to the public?
3. What do you think about it with regard to
the internet censorship and the influence
of social network such as Twitter and
Facebook?

Thank you
ronak.karanpuria@gmail.com

Internet censorship by ronak

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