MEENA MENON, The Hindu, April 11,2013
First it was sexual harassment at workplace. Next comes a slanderous campaign on the Internet. For this former employee of auditing firm KPMG, life has become hell since 2007. Now Aditi (name changed) is fighting with the Mumbai cyberpolice who are doing little on her 2012 complaint seeking action against websites which hosted offensive and abusive comments against her.
Trial yet to begin
While the sexual harassment case led to the arrest of a KPMG partner in 2007 and the filing of a charge sheet in December that year, the trial is yet to begin. Aditi has little doubt that the defamation in the cyber realm is an extension of workplace harassment. She had to wage a fight to ensure that the defamatory comments were removed by the Department of Telecom after a magistrate’s order in December 2012, three years after her complaint. The cyberpolice are yet to complete their probe into a first information report registered against Google, a website 498a.org and an individual whose comments appeared on that website.
In September 2007, after a Mumbai daily revealed her name while reporting on the sexual harassment case, she was subjected to verbal abuse on the Internet. She filed a complaint with the cybercrime cell on October 9, 2007. While the comments were removed from public view soon after, they started appearing on other sites like 498a.org and Save the Indian Family (SIFS). She wrote to Google, which removed the links to websites like 498a.org. Later, when the comments reappeared, Google wrote to her saying it could not block the URLs.
A second complaint was filed at the cyberpolice station at Bandra in 2010. The police closed the earlier complaint terming it a civil one, without informing her, stating the accused was not identified. Aditi claims this is a complete lie as her 58-page complaint had given details of the websites that carried the comments. She filed a fresh complaint in April and May 2012 against Google and Nabble, on whose websites the offensive comments reappeared, and thereafter the links were removed from Nabble. She sent legal notice to Google for not deleting the links.
Thanks to the extensive cyberdefamation, Aditi now finds it difficult to get a new job and she is being termed a ‘legal terrorist’. “I am only fighting for my right to dignity but such baseless slander with no action by the police created lot of problems,” she says.
Police can block websites
Under Section 69 A of the Information Technology (IT) Act, the police have the power to block offensive websites, but they did nothing. She was made to file yet another complaint in May 2012 on the same issue. The defamatory comments were removed by the DoT after the Chief Metropolitan Court passed an order in November 2012 directing Cert-In (the Computer Emergency Response cell under the Ministry of Communications and Information Technology) to block 10 URLs. The police finally registered an FIR only in November 2012 against an individual whose name and email ID appeared with offensive comments on nabble.com, unidentified persons who wrote abusive remarks on google.com and 498a.org. They were charged under Section 500 of the IPC and Sections 34 and 66 A, B and C of the Information Technology Act. She filed a query under the Right to Information Act on the progress in the case, and the police replied in January 2013 that they could not give any detail since it would impede investigation. When The Hindu contacted senior inspector N.K. More of the cyberpolice station, who is investigating the case, he declined to comment.
The police claim they cannot make headway since 498a.org and other sites are not responding to their summons. However, The Hindu got detailed email responses from 498a.org and an organisation called Rakshak Foundation, which is connected to it. Piyush Singh, a volunteer from Rakshak, in response to emailed questions, called from the U.S. and admitted that the cyberpolice had sent the organisation a letter in July 2012. It called up the police last year to clarify that it would forward the police complaint to 498a.org.
Investigations reveal that a link on 498a.org marked ‘donate’ takes you to Rakshak saying: “We need your help and support to keep actively helping falsely implicated and stressed families for free. All Donations are made to Rakshak Foundation (registered NGO at California, USA), which supports 498a.org. Rakshak Foundation is 501(c)(3) certified and hence the donations are tax-exempt. Rakshak Foundation’s EIN # is 71-1033875.”
A phone call to a number listed on the 498a.org website in Mumbai elicited the response that they were volunteers only to help people and all administrative decisions were taken by the Rakshak Foundation in the U.S. Mr. Singh said Rakshak collected funds for 498a.org since it was a website and not an organisation. Rakshak started public policy research in 2006-07 and found out about 498a.org.
However, a volunteer from 498a.org who wished to remain anonymous, said in an email interview that the website was not connected to the Rakshak Foundation. The website relied on volunteers to help those who are aggrieved by the misuse of 498a. Since 498a.org is a website, donations used to be collected through Rakshak. “Rakshak is not funding us. 498a.org and Rakshak are not connected.” At least this volunteer has not seen emails from the cyberpolice seeking information and said 498a.org did not have any interest in defaming anyone.
Aditi managed to obtain, on her own, a lot of details including of the people who had founded Rakshak. Her poser to the police: Whether a website registered outside India can carry out activities in India through volunteers and get away without complying with the law of the land?
Mumbai cyber police yet to act on her complaints against websites
Vol – XLVIII No. 09, March 02, 2013 | Sukumar Muralidharan, EPW
Constitutional guarantees of freedom of speech and expression in India today, seem a distant, almost illusory promise when the politics of the street — and a loud and seriously misinformed media – are final arbiters of fundamental rights and the defence of privilege is becoming the dominant motif of state policy.
Between February 14 and 15, the Department of Telecommunications (DoT) in the Government of India issued five separate orders to internet service providers (ISPs), blocking access to no fewer than 164 URLs or web addresses where specific content is hosted. All five were issued in seemingly unquestioning and unreserved compliance with ex parte orders emanating from courts. No reasons were given, though as things transpired, these were not very difficult to figure out.
Of the five orders, three were issued with clear intent to clamp down on protests in Kashmir after the February 9 execution of one-time militant Mohammad Afzal Guru. Physical movement in all of Kashmir had been blocked by a pre-emptive curfew imposed early that morning. As news of the execution filtered through, local news channels and newspapers were told to suspend operations. And though the internet remained available through broadband, the more widely used modes of access in the valley — mobile telephones and wireless datacards – were disabled. The information lockdown persisted five days in the case of newspapers and an entire week for internet users. For local TV news channels, it still continues. But through the pores in this blanket of censorship, the people of Kashmir were still managing to make their anger and bitterness heard. The DoT directive, calling specifically for the shutting down of a number of pages on the social networking site “Facebook” was obviously about shutting that source of dissent.
An information blockade imposed on a region where rights to life and liberty have been in suspension might seem a lesser injustice, though it is part of the same apparatus of repression that particularly targets any possibility that an occupied people may conduct a social dialogue that reaches beyond immediate constraints of location and space. Yet for all that, there was nothing really unusual about the effort to tighten the information blockade on Kashmir, a region that has long been in a state of exception in the Indian political map, where even the pretence of guaranteed rights and entitlements does not apply. Indeed, a similar blockade on mobile telephone services had been imposed in the valley just a fortnight prior, while the rest of India was celebrating the anniversary of its republican constitution.
A second category of website blocks ordered in DoT’s most recent round of sweeping censorship, applied against the mimicking or parodying of important public institutions, such as the Bombay High Court. Few dissenting voices were raised here. If anything, there may have been some reservations about the recourse to heavy-handed censorship, where the task of sifting between the authentic and the fake, might well have been left to the judgment of the internet user , worries that the DoT action may have cast the rare visitor to these sites as an infant in need of the guiding hand of a nanny state.
The IIPM related blocks
What really raised eyebrows and triggered a war of attrition on the internet was the third category of order issued by the DoT, blocking seventy-three specific web addresses ranging over a total of fifty websites. The formal order addressed to all ISPs, began with a peremptory, “it has been decided”, much like an edict issued from a sovereign that is beyond challenge. After listing the sites to be censored, it entered a plea for secrecy, uncharacteristic for a sovereign acting with absolute authority. Letters of compliance to be filed by all those at the receiving end of the edict were not to mention the identity of the blocked URLs.
If the intent of that caution was to conceal the identity of the guiding hand behind this extraordinary measure of information denial, it did not go far. The common element in the seventy-three web addresses that were blocked was soon discovered to be the Indian Institute of Planning and Management (IIPM), an establishment with a pervasive presence in the media, despite its uncertain provenance and rather anomalous status within the landscape of higher education, where it claims to belong. Indeed, the IIPM advertising budget, the envy of most other institutions in the same category, wins it a high degree of exemption from scrutiny in the mainstream media. No such privilege though, is granted within the alternate discourse of the social media. Indeed, that is where the problem was clearly seen to lie.
Cryptic in its content and opaque in terms of its legal basis, the DoT order was traced by the small but vigorous community of free speech advocates on the internet, to emanate from an order by a court in the city of Gwalior in Madhya Pradesh. For the most part, it applied to blogs and independent initiatives by consumer groups and civil society actors to promote a dialogue on issues of public concern: such as the quality of service offered by various civic and commercial institutions. The IIPM, unsurprisingly for an institution with a high media profile, had come in for some searching scrutiny and been found wanting: several of the postings on these sites, drawing on first-hand experiences of the services (or lack of it) that it offered, were trenchant in tone and content.
It emerged soon afterwards that the Gwalior court had issued its order under provisions of the Indian Penal Code (IPC, section 499) dealing with the offence of defamation and the Information Technology Act (IT Act, section 69) which enabled government authorities to demand the blocking of certain sites by ISPs and intermediaries such as Google and Facebook. Evidence that the court had applied the tests of intent, accuracy and public interest that are thepreliminaries mandated by law before sanctions are imposed for defamation, was conspicuously lacking. And what literally leapt out in the DoT edict was the very first URL on the list, which belonged to a public institution, the University Grants Commission (UGC). In a notice issued in July 2012, ostensibly in compliance with a directive issued by the Delhi High Court in ongoing litigation, the UGC had recorded its finding that the IIPM was not a university under applicable law. It was in other words, not empowered to grant degrees in business management or any other discipline of study.
In holding the UGC liable for defamation, the Gwalior court obviously omitted any serious engagement, either with the history of litigation involving the IIPM, or with the law. Section 499 of the IPC is explicit about certain exceptions where in circumstances to be judged by the courts, the offence of defamation would not apply: these include, the “imputation of truth which public good requires to be made or mentioned,” the “public conduct of public servants” and the “conduct of any person touching any public question”. Clearly, any assessment that the UGC may have made about the academic credentials of the IIPM, when communicated to the public, would potentially fall within the scope of these exceptions. That the Gwalior court overlooked these aspects of the law points towards an egregious omission.
Internet activists were quick to wreak vengeance. On Friday 16, the website of the IIPM was hacked and put out of service for a limited period of time. And under pressure from a growing chorus of outrage, the owner and executive head of the institution, Arindam Chaudhuri, took to the social network to explain his actions. The court order applied only to website content that was defamatory in an explicit sense, he pleaded. Satirical sites may have been included in an over-broad sweep of content pertaining to the IIPM, but remedies would be quickly instituted once a closer examination was made. As for the UGC and one other public institution in the education sector – the All India Council for Technical Education (AICTE) – Chaudhuri was scathing in his assessment: “I should say UGC and AICTE are organisations full of bribe-seeking corrupt officials where, even at the top, they have a track record of being caught red-handed and being jailed. … I suspect that UGC – at the behest of some of our petty competitors with dirty past records of filth and cheating, and public notices against them – had been deliberately spreading misleading information about IIPM to hurt its business interests and had even gone to the extent of falsely calling IIPM a fake university”.
There is much that is specious in the IIPM explanation and a great deal that the judiciary has to explain about its manifestly perverse order. Within days of the DoT implementing its blocking order, the Department of Information Technology (DIT) – a partner department under the Ministry of Communications – resolved on appealing it at the appropriate judicial forum. That may well have been too little too late. As the senior advocate and legal scholar Rajeev Dhavan has pointed out, in all such matters “the real mischief takes place right at the beginning … when injunctions are freely granted to prevent the publication or dissemination of an existing or proposed publication”.
The IIPM is a practised hand in censorship through legal injunction. In June 2011, it filed suit against Caravan, a monthly magazine of political and cultural commentary, for the sum of Rs 50 crore (INR 500 million), after the magazine had in its February 2011 issue, featured an article titled “Sweet Smell of Success: How Arindam Chaudhuri Made a Fortune Off the Aspirations — and Insecurities — of India’s Middle Classes”. The article was a substantive pre-publication excerpt from a book by U.S.-based journalist Siddhartha Deb, due for publication in July 2011. The IIPM lawsuit named the author, the publisher Penguin Books (India) and the internet search portal Google (India) as respondents, other than Caravan, accusing them of “grave harrassment and injury”. The lawsuit was filed not in Delhi, where both the IIPM and Caravan are based, but in Silchar town in the north-eastern state of Assam. IIPM was the second petitioner, the first being a Silchar businessman known to be associated with the institute as a recruiter.
At the first hearing of the case, the civil court in Silchar granted the IIPM a preliminary injunction, enjoining Caravan to remove the impugned article from its website. This decree was issued ex parte, without any pre-hearing notice to the magazine. The article was since taken off the Caravan magazine website, though it has been retained in the Internet Archive. In the most recent round of court-ordained censorship, the magazine’s July 2011 announcement that it intended to fight the injunction was blocked, but then republished under a different URL.
In October 1972, India’s Supreme Court heard a case brought by Bennett Coleman and Company Ltd (BCCL), publishers of the Times of India – and a number of other large newspaper enterprises – challenging a newsprint rationing order introduced to deal with a situation of acute scarcity. The official plea entered on behalf of the rationing was that the larger newspaper groups would, if allowed unfettered access to the market, buy up all the supplies available, depriving smaller players – and with this, large sections of the Indian population – of the means to speak and be informed. The judgment in the case of Bennett Coleman and Co Ltd v Union of India is one of historic significance, since it remains the most authoritative statement yet, on how the constitutional guarantees of free speech devolve into the narrower construct of media freedom. Yet this is a judgment that remains strangely inconclusive, since in addressing the issue of the free speech right, the majority opinion of the Court seemed to oscillate rather indecisively, between a notion of free speech as a privilege enjoyed by the few, and a broader conception of the unreserved exercise of the right by all.
In deciding the case, Justice A.N. Ray spoke for the majority and observed that the “individual rights of freedom of speech and expression of editors, directors and shareholders, are all expressed through their newspapers”. But then a few pages on, the majority opinion effectively widened the ambit of the right: “It is indisputable that by freedom of the press is meant the right of all citizens to speak, publish and express their views. The freedom of the press embodies the right of the people to read. The freedom of the press is not antithetical to the right of the people to speak and express”.
Having elevated media freedom to a higher plane and rendered it into an entitlement enjoyed by all citizens, the majority in the Bennett Coleman case had little difficulty striking down newsprint rationing as a violation of article 19 guarantees on free speech. The rest of the majority judgment in the matter clung very closely to the liberal orthodoxy on the right to free speech: that governmental regulation is an evil more invidious than private monopolies. When it looked at the prospect of “monopolistic combination” in the press, it was only to rule it out. And even if the likelihood did arise, newsprint allocation could not be a feasible “measure to combat monopolies”.
Of special significance in this context is the lone dissenting judgment delivered from a bench of five judges, by Justice K.K. Mathew, who explicitly conceded the possibility of a conflict between the public interest and the profit motivations of the press. Using a “theory of the freedom of speech” that essentially viewed it in terms of twin entitlements — to speak and be informed – Justice Mathew observed that “the distribution of newsprint for maintenance of (newspaper) circulation at its highest possible level .. (would).. only advance and enrich that freedom”. As a constitutional principle, “freedom of the press” was “no higher than the freedom of speech of a citizen”. The problem at hand was one of bringing “all ideas into the market (to) make the freedom of speech a live one having its roots in reality”. In pursuit of this ideal, it was necessary as a first step, to recognise “that the right of expression is somewhat thin if it can be exercised only on the sufferance of the managers of the leading newspapers”.
Freedom of expression in other words, also involved the right of access to media space. And this requirement would be met only through the “creation of new opportunities for expression or greater opportunities to small and medium dailies to reach a position of equality with the big ones”. This was as important, in Justice Mathew’s judgment, “as the right to express ideas without fear of governmental restraint”. What was required was an interpretation of the free speech right which recognised that “restraining the hand of the government is quite useless in assuring free speech, if a restraint on access is effectively secured by private groups”.
Indian Media – An Echo Chamber for the elite
For all the appearances of growth and diversification that it presents, there is increasing worry that the Indian media with its advertisement-driven revenue model is becoming an echo chamber where those with economic clout and purchasing power talk among themselves, leaving out the voices of the vast majority. Citizens who happen to inhabit the zones of exception, such as Kashmir and he north-east, are excluded from participation by virtue of their infirm commitment to what is by elite consensus, deemed the “mainstream” ethos of Indian nationalism. And the socially and economically disadvantaged in other parts, are inconsequential because they are of no interest to the advertiser who sustains the media industry bottomline.
In this context, the growing number of social media users offers a potent challenge to the hegemonic narrative that emanates from the mainstream media. The most articulate voices here emerge from the top two or three percentiles of the population, who have access to the estimated 14 million broadband internet connections. But within this narrow stratum, there is already more dissent against the news priorities and editorial policies of the mainstream media, which in terms of reach addresses a multiple – though not a very large multiple – of broadband users.
More worrying for those who believe media freedom is a great idea as long as a few wise men control the message, is the rapid growth of internet and social media users through the mobile phone network. This is a growing constituency in Kashmir, the north-east and indeed, in several regions of the most bitter political contestation in India: territories where the promise of the minority judgment in the Bennett Coleman case is actually being sought, that media freedom is not just a right to be exercised on “sufferance” of those who own newspapers or the airwaves, but a right that all citizens have to speak and be heard, even beyond limitations of location and space.
There is a long history of repression of this manner of free speech, but few instances where sanctions have been imposed on speech that meets every authentic criterion of “hate”. This is unsurprising, since this category of speech usually emanates in the Indian context, from Hindutva and other such supposedly “mainstream” participants in the national consensus. The February crackdown on websites is probably just a minor punctuation mark in the long-term evolution of the doctrine of “legitimate” repression of basic rights, when exceptions to the rule of free speech could be decreed. It is nonetheless, a point at which some clarity is imparted. Constitutional guarantees seem a distant, almost illusory promise when the politics of the street — and a loud and seriously misinformed media – are final arbiters of fundamental rights and the defence of privilege is becoming the dominant motif of state policy. This most recent information blockade targets political dissent from the fringes of “mainstream” nationalism and also a prospective challenge to the commercial calculus of the “mainstream” media. It shows how close the convergence is, between the propaganda needs of the national security state and the commercial compulsions of the mainstream media. Finally though, what is most apparent about this new effort at controlling the message is its utter futility, since the avenues through which people can speak and be heard are multiplying in such diverse ways, that information repression no longer is an option for states anxious to preserve control.
November 5, 2012
by Ranjit Sur, sanhati.com
India is probably heading for enactment of an Individual Privacy Law. On 16 October, the fourteen member committee headed by Justice(Rtd) A P Shah submitted its report to the Planning Commission, which had initiated the process by forming this committee. In its 90 page report, the committee tried to address the complexities of the issue. Justice Shah in his forwarding letter wrote, “So we can expect an initiative for enactment of the law soon”. At the same time, the Prime Minister Manmohan Singh also expressed his desire to have such a law while expressing his concern for misuse of RTI act by “frivolous and vexatious use of the Act”. “The citizens’ right to know should definitely be circumscribed if disclosure of information encroaches upon someone’s personal privacy. The issue of a separate legislation on privacy is under consideration of an expert group under Justice AP Shah.” He said this while addressing a convention of Information Commissioners recently.
The day Manmohan Singh’s speech was reported, the New Delhi edition of The Hindu published an interesting report with the heading “10,000 phones, 1,000 e-mail IDs under the scanner” . The report informed, “Today, various law enforcement agencies are tapping almost 10,000 phones across India, while over 1,000 e-mail accounts are under the scanner, after clearance from the union Home Secretary. …In August this year, the maximum number of phones were being tapped by the Intelligence Bureau (5,966) of which 2,135 were fresh interceptions, while 3,831 were in continuation. Similarly, the State Intelligence units were tapping 1,104 phones (577 fresh and 527 in continuation) followed by the Andhra Pradesh Police with 863 phone interceptions (399 fresh and 464 in continuation) and the Delhi Police with 757 phones (738 fresh and 19 in continuation). ………. In the case of e-mails, the IB was snooping on 1,043 IDs in August — 460 under fresh sanction and 583 in continuation, while the State Intelligence units were tracking 136 (94 fresh and 42 in continuation); the DRI took permission from the Union Home Secretary to track 5 accounts….. Notably, to avoid any leaks, the Department of Telecommunications (DoT) has developed capabilities to intercept phones without keeping telephone operators in the loop. Called the “Central Monitoring System”, its trials are currently on and the system is likely to be in place early next year.”
So it is clear that the Government of India is tapping and hacking hundreds and thousands of phones and emails; thus violating individual privacy of hundreds and thousands of citizens. It is known to all that the unofficial figures of tapped-phones/hacked-emails are perhaps much higher than what The Hindu reported. Almost all the State Governments tap phones of innumerable opposition leader and activists. Even the Chief Minister of Bengal Ms Mamata Banerjee recently complained that her phone was being tapped by the Central Government. Hundreds of activists in Bengal paradoxically also complain of their phone being tapped by WB Government. So the question is, for whom the privacy law will be enacted?
In August 2011, Mr. Milind Deora, the Central Minister of State for Communication in a written statement in the Rajya Sabha, informed that the Central Government has started full surveillance of Facebook and Twitter walls and friend circles. All the comments, write-ups on walls are under full scanner of investigative agencies. Not only that, the Government has acquired technology to block and monitor websites and blogs, locally and centrally. On many occasions, The Hoot has reported many such misdeeds of the government. Recently Facebook, Twitter and You Tube were blocked in Jammu and Kashmir. Sites of cartoonist Asim Trivedi and Kamayani Bali were also blocked. Section 66(A) of the IT ACT has become a source of tension for many activists. Many mobile phones of Bengal activists have been disconnected for alleged misuse of this Act. Actually any one can be sent to jail for violation of this section on ‘Offensive SMS’ where ‘offensive’ is defined in such a manner. So again a question arises – do lakhs of Facebook-Twitter users not have the right to privacy? Don’t they have the freedom of expression and right to information and communication as enshrined in Indian constitution? For whom will the Individual Privacy Law be enacted? Who are these individuals?
One more Act which is waiting in queue, as reported in DNA dated 16 May 2012, needs serious attention of the Civil Society. The report, DNA profiling: Very soon, govt will know you inside out reported, “In a controversial move that threatens to increase the intrusion by the state into the lives of ordinary citizens, the UPA government is set to introduce a DNA Profiling Bill in the winter session of Parliament. Once it becomes a law, the bill will grant the authority to collect vast amount of sensitive DNA data of citizens even if they are “suspects” in a criminal case. The data will be held till the person is cleared by court…The bill has already raised the hackles of many groups working on privacy issues who are worried that if it becomes a law, it would empower the government to create intrusive databases.”
Moreover, there is the UID Project, which would cost approximately 45 thousand crores of Rupees. The Biometric card AADHAAR containing the unique number will store all information of an individual and will have to be used in all purposes of life. Information pertaining to all individuals will be centrally maintained in a server. An “enter” will give all the details of an individual’s movements, sales and purchases, financial details, readings, medical bills etc. It will be an all-pervasive unique instrument of state vigilance on an individual for 24×7, 365 days. So the question once again, for whom will the Privacy Law be enacted?
The A P Shah committee was formed after the episode of the Tata- Radia tape leaks. Ratan Tata himself raised the question of Individual’s right to privacy. Members of different chambers of commerce also raised the issue of right to privacy. So the Government rushed to form the AP Shah Committee. This time Manmohan Singh himself is not at all ambiguous and clearly announced for whom the law is needed and for whom he is concerned. In the above-mentioned meeting of Information Officers, he clearly noted that industrialists should be kept out of RTI purview so that their individual privacy is not violated. One more indication was clearly there when he mentioned “frivolous and vexatious use of the act ” – he was referring the DLF-Vadra deals and it seems that he is willing to save people like son-in- law of the Nation, Robert Vadra, from public scrutiny. So, while 10 lakh applications were filed in a single year under RTI act last year, the men in power and those surrounding them are actively seeking a law of individual privacy. Similarly, civil society and rights activists also wish to have a privacy law to save the citizen’s every day life from continuous state intrusion. But how far they will be able to get the interests of the common people reflected in the new law is a million rupee question and to be seen in the near future.
[ The writer is a Kolkata based Rights activist ]