Tag: freedom of speech in India

Editor's column November 14, 2020November 14, 2020

Arnab Goswami, Kunal Kamra and internet governance in India : Where do women victims of cybercrimes stand now? by Dr.Debarati Halder

In 2012 the then chief minister of West Bengal, Mamata Banerjee took a strong a note for Ambarish Mahapatra’s very bold, excessively strong post including a cartoon showcasing Didi and Mukul Roy, who was the then state minister for railways. The cartoon included the railway logo. Mahapatra was arrested in 2012 and later released. In 2015 the courts ordered that Mahapatra should be compensated for the wrongful arrest.[1] Clearly, the court gave a red signal to the West Bengal government for wanting to use executive power to shun critics of the government on internet media. Quite at this time, the courts accepted the arguments of Shreya Singhal for scrapping off S.66A of the Information Technology Act, 2000 (amended in 2008) which was considered as a draconian law for the bad drafting and equally bad usage of the same by the government. The Supreme Court could have strongly advised for amending the provision which could offer a wonder anti bullying law.[2] But the last stroke was given by the then UP government by arresting a juvenile for his post on internet just before the court could even consider on 66A. The court laid 66A to rest judicially. What lurked on was the issue of usage of government logo in criticism speech.

Why Attorney General of India has to give a consent for contempt of court proceeding for a criticizing speech? Armed by Shreya SInghal judgement in 2015, many started openly criticizing the government. This is indeed a healthy sign of a strong democracy. In the US the right to criticize the government had remained a celebrated right. Cases like New York Times Co. v. Sullivan, 376 U.S. 254, 283 (1964) or Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) has deeply influenced the speech rights which have been taken over by the internet companies including Facebook and Twitter post millennium. First Amendment right to speech and expression became broader over the years giving the internet companies extreme power to deny most of the (non- US) government-backed requests for taking down of contents because according to them such speech did not violate their policies which were based on US First Amendment guarantees.[3] Twitter however had remained a favorite platform for celebrities, right activists and politicians to express their opinion ‘in short’. This gave rise to use creative, expressive and bold languages to express opinions within 120 words plus ‘threads’. In late September and early November, 2020, social media platforms including Twitter saw a wave of sympathy, hatred and apathy towards the arrest of Arnab Goswamy and his release from the prison on interim bail by the Supreme Court. Goswamy, a journalist and managing director and editor-in –chief of Republic TV, was arrested for alleged abetment for suicide of a Mumbai based designer and his mother.[4] Kunal Kamra, a standup comedian, like many other non-supporters of Goswami had strongly objected for the interim bail of Goswami over Twitter.[5] But this could have been considered as a very normal ‘protest’ by Kamra, provided he would not have pulled in the integrity of Supreme Court of India. His post included a picture of the Supreme Court building covered with saffron color with the flag of the ruling BJP party atop it. What was wrong in this? (i) Using derogatory remarks towards the integrity and impartial nature of the supreme court while deciding the interim bail application of Goswami ? or (ii) using the picture of the Supreme Court colored in saffron which may indicate its loyalty to a particular community, political party or idealism? Or (iii) morphing the picture of the building by putting the political party’s flag atop the building instead of the tricolor?

If we take point number (i), we would see that even though the Supreme Court is not a protected entity which should be considered as above free speech especially related to criticism, it has taken strong note against those who had published, posted, uploaded, shared derogatory comments on the integrity of the institution, the judges, personal reputation of the judges and their family members. Justice Karnan’s case is a good example in this regard. This ex-judge of Madras High court was condemned not only by Madras High court, but also by several women lawyer’s associations in India for sharing sexually explicit and obscene remarks about the female judges and the wives of other judges.[6] The Madras High Court had also asked the social media platforms to remove the contents posted by justice Karnan in this regard. Second and third points definitely attract my attention here as the morphing of the building attracts penal provisions not only from Article 19 (2) of the Constitution of India, which discusses about restriction of free speech under Indian constitution, but also from The Emblems And Names (Prevention Of Improper Use) Act, 1950. The later statute in S. 3 prohibits improper use of certain names and ensembles[7] and this includes emblem and picture of Supreme Court building as well.[8] But we need to note that even though the morphing and re presentation of the building had taken place on Twitter, Information Technology Act, 2000 (amended in 2008) may not be attracted that effectively because of the absence of S.66A . The issue of Kamra publishing the ‘wrong’ image of Supreme Court is so heavy that it has attracted charges for criminal contempt of court for which the Attorney General of India has consented for initiating the proceedings against Kamra.[9] To a certain extent, this consent may depend on the discretionary power of the Attorney General as well especially when he sees the matter from the perspective of utter disrespect to the institution of Supreme Court. Kamra however maintained that he won’t apologies, neither would he remove his content from Twitter in this regard.[10]

Here, I cannot hold myself back from mentioning about the plight of millions of women victims of trolling, morphing and revenge porn who may suffer endlessly because of long life of their fake avatars on internet. If only courts and civil society members were much aware about the issue, courts could have taken a strong note of cyber victimization of women as well. But here comes the key player: the web platform.

Twitter in the middle of the storm: Twitter is the platform for the alleged offence committed by Kamra. But quite simultaneously Twitter attracted another ref eye of the government and the courts: Leh, the joint capital of Union territory of Ladakh was recently shown as part of Jammu and Kashmir on Twitter.[11] This indeed attracts a huge public, political and constitutional sentiments after the recent scrapping of Article 370 by the present government of India which made Ladakh (of which Leh is the capital town) a union territory and no more part of Jammu and Kashmir. Twitter was notified and as the existing laws mandate, Twitter may even get suspended if it does not rectify the mistake. But not to forget, including Twitter all the US based social media companies have a wonderful trick to avoid the government and court notices by indicating that ‘they are looking into the matter’. There are hundreds of public interest litigations filed in the Supreme Court on the issue of women and child safety on internet and the responsibility of the internet companies. In almost all cases, all the companies escaped the clutches of S. 69 B (power to issue notice for blocking the website/contents etc) by the very slippery gateway of S.79 of the Information technology Act (exemption from liability of intermediary to certain cases).

Be it the case of Kunal Kamra or anyone else who may be victimizing anyone including private individuals or the highest courts of judicature, social media companies will remain as they have remained, being the chosen platform of the government to have a handle to encourage accessibility of justice, good governance etc.

Comes the decision of internet regulation by State made laws: Amidst all these pandemonium, the Indian government literally blew the bugle against millions of free speech activists when it announced about the decision for internet regulation by state made laws.[12] The ministry of Information and Broad casting may extend their jurisdiction to internet media if this decision is fructified. The free speech advocates fear that this decision may result in situations like the 1975-77 emergency period where the then prime minister tried to gag the free speech and expression rights of print and television media. Their apprehension is not baseless because this decision comes at a time when police is seen busy to manage issues related several fake news and fake avatars of the ruling and opposition political parties and net streaming which speak about sex . But this decision, if fructified, may also bring cheers to women victims of misogynist trolls, fake avatar, revenge porn, nonconsensual porn as well. While many may fear that such regulation may chock free flowing of adult contents, we must not forget that our courts once refused to provide a blanket ban on porn provided it is viewed by the viewer without offending anyone and the content is made legally with consenting adult actors. However the fear and apprehension weighs more than the cheers because the government may not always abide by the court rulings: the best example is, statutorily S.66A is in deep coma, but not dead.

Hope continues for women victims? But the tussle over the moral wrong of ‘to watch or to block the entire content’ or the heavy examples set by Attorney General of India for a morphed photograph of the building of Supreme Court and derogatory comments about the institution itself probably cannot minimize online victimization of women who undergo morphing and are targeted with hate speech on internet vigorously. I hope such strong actions touch the issue of cyber victimization of women and girls strongly. If internet is to be regulated, let it be so judiciously and for proper causes.

[1] See for more in https://www.ndtv.com/india-news/double-the-compensation-of-jadavpur-professor-arrested-for-circulating-mamata-cartoons-court-tells-g-745593

[2] Halder, Debarati, A Retrospective Analysis of Section 66A: Could Section 66A of the Information Technology Act be Reconsidered for Regulating ‘Bad Talk’ in the Internet? (August 24, 2015). Halder Debarati (2015) A RETROSPECTIVE ANALYSIS OF SECTION 66 A: COULD SECTION 66 A OF THE INFORMATION TECHNOLOGY ACT BE RECONSIDERED FOR REGULATING “BAD TALK” IN THE INTERNET? Published in Indian Student Law Review (ISLR) 2015 (1) PP 99-128 ISSN 2249-4391, Available at SSRN: https://ssrn.com/abstract=2650239 or http://dx.doi.org/10.2139/ssrn.2650239

[3] For example, see https://in.reuters.com/article/us-singapore-politics-malaysia-scandal/facebook-refuses-singapore-request-to-remove-post-after-critical-website-blocked-idINKCN1NF05T, orhttps://www.wsj.com/articles/facebook-hate-speech-india-politics-muslim-hindu-modi-zuckerberg-11597423346

[4] https://www.ndtv.com/india-news/arnab-goswami-arrested-for-allegedly-abetting-suicide-of-interior-designer-say-police-news-agency-pti-2320301

[5] https://www.livelaw.in/top-stories/dont-intend-to-retract-my-tweets-or-apologize-kunal-kamra-responds-to-ags-consent-for-contempt-against-him-165857

[6] See https://www.newindianexpress.com/cities/chennai/2020/nov/10/madras-high-court-orders-removal-of-derogatory-videos-made-by-former-hc-judge-cs-karnan-2221987.html

[7] S.3 of The Emblems And Names (Prevention Of Improper Use) Act, 1950 states as follows: 3. Prohibition of improper use of certain emblems and names.—Notwithstanding anything

contained in any law for the time being in force, no person shall, except in such cases and under such

conditions as may be prescribed by the Central Government, use or continue to use, for the purpose of any

trade, business, calling or profession, or in the title of any patent, or in any trade mark or design, any

name or emblem specified in the Schedule or any colourable imitation thereof without the previous

permission of the Central Government or such officer of Government as may be authorised in this behalf

by the Central Government.

[8] See S.17 of the Schedule attached to The Emblems And Names (Prevention Of Improper Use) Act, 1950 , which includes the followings in the prohibited list: namely, “The name of the Parliament or the Legislature of any State, or the Supreme Court, or the High Court of any State, or the Central Secretariat, or the Secretariat of any State Government or any other Government Office or the pictorial representation of any building occupied by any of the aforesaid institutions”.

[9]See https://www.livelaw.in/top-stories/dont-intend-to-retract-my-tweets-or-apologize-kunal-kamra-responds-to-ags-consent-for-contempt-against-him-165857

[10] See ibid

[11] See https://timesofindia.indiatimes.com/india/twitter-risks-suspension-over-leh-map-error/articleshow/79201328.cms

[12] See https://www.theguardian.com/world/2020/nov/11/india-to-regulate-netflix-and-amazon-streaming-content?fbclid=IwAR11PXTEutFHo6VjsPy7tteOFyRweprK6vALKMNtNpBQZEF5tAeLIQyJejw

Please do not violate the copyright of this writeup. Please cite it as Halder Debarati (2020).Arnab Goswami, Kunal Kamra and internet governance in India: where do women victims of cybercrimes stand now? published in Gender & Internet : web magazine for cyber law for women @ https://internetlegalstudies.com/2020/11/14/arnab-goswami-kunal-kamra-and-internet-governance-in-india-where-do-women-victims-of-cybercrimes-stand-now-by-dr-debarati-halder/ on 14th November, 2020

Uncategorized March 11, 2016

Risky private talks: what women must be aware of

CYBER CRIME AGAINST WOMEN BY DEBARATI HALDER

Gone are the days when young women preferred to secretly seek information from friends, cousins or aunties residing in neighbouring houses about periods, sexual behaviour of men on nuptial nights or about pregnancy and related issues. Hush hush talks about delayed periods, sex etc slowly shifted to digital communication mediums and gradually women are now talking about these issues openly, breaking gender based myths that periods make women ‘untouchable’ or delayed periods may signify obvious pregnancy. This would not have been possible without the social media as a positive platform for letting women express their feelings and seek information from various groups , pages, websites etc. This is the main reason that social media is also called infotainment as well, which signifies information-entertainment. While this is the worldwide trend now, in India women are still gathering courage to speak about these issues openly on social media platforms. For many women, it is still a matter to be shared either by phone calls or by way of Facebook, Yahoo, Gmail chat messengers, or by way of WhatsApp, Vibe, WeChat etc. Often women may not only seek to gain information on these information by sharing ‘private secrets’, they may also like to know about fellow women’s sexual relationship with their husbands or boyfriends. There was this report by Porno-Hub which showed that women in India are no less porno viewers compared to their male counter parts (http://www.telegraphindia.com/1160103/jsp/7days/story_61762.jsp#.Voj9msLUnQ0.facebook). Women, like men are inquisitive to know about the sexual behavior of other couples and truely speaking, there is no wrong is sharing such secrets.

But wait!

There are risks involved in sharing sex-secrets with other women even in closed groups. The language used by women inquisitive to know about sexual behaviour of friends may not always be comfortable for others; such communications are supposed to be ‘not serious’ and women may tend to use ‘sex jokes’ which are supposed to be exclusively meant for men. But do remember, women have equal right to expression: then where is the problem? Many a times, women friends may pester each other to share private photos on WhatsApp or similar mobile messaging platforms. These are not typical sexting, but clearly photos in a compromising position with the male partners , or simple photos of embracing or hugging each other on bed . While the earlier may be extremely risky since it may attract legal liabilities of creating sexually explicit images and distributing the same (if not kept in the owner’s own possession for private viewing), the later may look perfectly safe to create and distribute. But when seen from the perspective of online safety of women, distribution of both sorts of images may be risky. This is because, the recipient of the message asking to share the photographs, may never know whether the message was generated by the friend whom she knew since her childhood or she is truly her best friend. The sender may be the adolescent child of the friend who helps the ‘cyber illiterate mom’ to send messages, may be her husband who wishes to monitor her and her friends or may be any other stranger who may have gained illegal access to the phone either physically or digitally. The caution note for sharing sex-secrets by plain texting is also similar. The information that is sent out may be misused if the same is shared with public by others who may want to harass or blackmail the sender of the information. It takes a few seconds to text a sex joke or share the ‘bed secrets’ with friends, but may take huge time to remove the unwanted information from public viewing and manage reputation damage. Women who may pester their friends to get indulged in such secret talks through digital communication platforms may not be fully aware of safety risks. It is therefore better to be aware than to be ‘less serious’ and ‘popular’ only to attract more danger for oneself and her friends. Let us keep our secrets to ourselves and let us enjoy real life socialising for the sake of online safety of us, the women.

Please Note: Do not violate copyright of this blog. If you would like to use informations provided in this blog for your own assignment/writeup/project/blog/article, please cite it as “Halder D. (2016), “Risky private talks: what women must be aware of”

11^th March, 2016, published in http://debaraticyberspace.blogspot.com/

Uncategorized March 24, 2015

66A on the judgement day

CYBER CRIME AGAINST WOMEN BY DEBARATI HALDER

When you read about S.66A of the Information technology Act, 2000(inserted through amended Act, 2008), the first thing you may note is its broad scope on censoring freedom of speech. The provision is named as “punishment for sending offensive messages through communication services etc.” I had been an ardent fan of it since it came into effect in 2008 especially because it promised to prohibit harassment, threatening, defamation (call whatever name you wish to) not only against all netizens, but especially against women. in 2008 India did not see Nirbhaya uproar, which finally gave birth to some meaningful laws including anti-stalking (which included cyber stalking) law in the form of S.354D of the Indian Penal Code. India neither had Protection of women from sexual harassment at work place Act, which was ‘born’ in 2013. This law while grouping certain behaviours as ‘penal’, also included conveying of harassing messages through emails or other communication services as offensive behaviour. Most notable of the present laws which penalises sending offensive messages through communication services is obviously the protection of children from sexual offences Act, 2012. Each time I go through these provisions, I find the shadow of S.66A. Consider the first category of offensive message that has been laid down by 66A: “any information that is grossly offensive or has menacing character”, send by ‘any person’ send by computer resource or communication device. While this has attracted most of the controversies and has created shock waves for those who oppose S.66A, the second categorisation is contrarily more focussed. It categorises “any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently makes by making use of such computer resource or a communication device” as offensive communication, liable to be penalised. I call it ‘more focussed’ because it has mentioned certain human emotions which can be triggered due to sending of particular messages and which the sender sends with particular malicious purposes. But still, this categorisation also attracted controversies due to linguistically twisted presentation of the provision. The third and the last categorisation of offensive messages create even more ‘shock’: it includes “any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages”. This is not the repetition of the earlier paragraphs or categorisation, but it is actually for broadening the scope of 66A to mail or messages and not just only ‘information’. People who oppose 66A, take up the defence of its almost open-ended scope which can involve anything and everything as offensive speech. Since the internet has offered anonimity or no initial policing by the service providers while generating the message, sects of people have started to use internet as a platform to express their opinion. One of the very first oppositions for 66A came up when Aseem Trivedi , the political cartoonist was nabbed by the crime branch for his politically satirist cartoons depicting anti-corruption movement in early 2012; soon it followed by more oppositions due to the arrest of Palghar girls Shaheen Dhada and her friend for their post in Facebook on Mumbai shutdown on the occasion of the death of Balasaheb Thakre. Needless to say, such arrests were made by the police on the instigation of political people who took full liberty to (mis)use 66A for curtailing the freedom of speech of common individuals. The latest being the arrest of a school boy on the alleged post targeting another political big shot in Uttarpradesh. Unfortunately 66A always found a slippery way in the hands of police who were ‘instigated’ by some people who wished to take the law in their hands in literal meaning. Added with it, s.66A being a provision which proscribes punishment which may extend to three years, also attracts the issues of cognizance and bailability. S.77B says any offence which is punishable with three years imprisonment or more, is a cognizable offence and bailable. It becomes an obvious fact that if and when any one intends to misuse the law, may use the penal objective of the same with fullest meaning so that the ‘accused’ gets a life time lesson. This is exactly what happens each time 66A is used for curtailing free speech especially in cases of opinions regarding political matters or consumer matters. I say this, because these arrests were also challenged by Markendeya Katzu, who was a former Supreme Court judge.

But 66A also offers a wonderful safeguard against defamation and other harassment if it is read properly. Consider Article 19(2) of the Indian constitution which lays down reasonable restrictions for freedom of speech. I see 66A in that light shredding those ambiguous categorisations. it is accepted that 66A lacks clear definitions which is extremely important for any restrictive law. But needless to say, we still do not have any provision to regulate online bullying, trolling or even harassment to women by way of insulting posts. S.509 of the Indian Penal Code may fulfil the gap since it punishes any word, gesture etc to insult the modesty of women. But again, when applying 509, many women may face the problem of ‘what is modesty’ types of questions by the police itself. I have known many victims who have been blamed by the police on this very basis. Police still depends upon related laws to book the offender and many a times the case becomes extremely complicated due to misunderstanding of the issues. 66A may provide a wonderful solace in such cases. But still, 66A has been used in many cases of harassment of women in the internet and it proved fruitful as well.

When I write this blog, I understand that within a few minutes or a couple of hours, the Supreme court of India may take its landmark decision on 66A on the grounds thus presented by the defenders and supporters of 66A. I remember seeing a very meaningful observation in Twitter by none other than Pavan Duggal who mentioned that scrapping of 66A would not serve the purpose. I am an ardent fan of 66A and I would continue to support restrictive laws such as this one(off course when it is read and used in positive lights) if at all Supreme Court shows lenience towards 66A’s opponents. I really wish that 66A comes back, but not in its old form. It should be re-born with clear language and purposes. 66A may then mother many other laws which may be beneficial to not only women and children, but also groups of persons including racial minority, gender minority etc.

Wish you good luck 66A!

Please Note: Do not violate copyright of this blog. If you would like to use informations provided in this blog for your own assignment/writeup/project/blog/article, please cite it as “Halder D. (2015), “66A on the judgement day” 24th March, 2015, published in http://debaraticyberspace.blogspot.com/

Uncategorized November 20, 2011

No more slangs: it may land you in jail…….……….really?

CYBER CRIME AGAINST WOMEN BY DEBARATI HALDER

The last page of the newspaper The Hindu always offers some amusing news for me . Today was no exception. I was pleasantly “surprised” when I read the news “Pakistan bans 1,695 words on cellphone” ( see http://www.thehindu.com/news/international/article2642848.ece). The news report gave a strong suggestion that activists within Pakistan have condemned it. True, in any democratic country the government can not ban the freedom of expression unless it falls within the strict criteria of constitutionally frame-worked “banned words”. Further, the government can not suomotu shut the mouth of citizens unless it has been proved that some one/group of people are really hurt and such activities will bring in huge chaos in the country. But the news report further suggested that Pakistangovernment has taken this decision after a series of court orders came out “favoring reasonable restrictions on the freedom of speech” . The Pakistantelecom authority (PTA) has ordered for content filtering for all the mobile phone service providers of some words including words like “Jesus Christ”. Well, if this act is done to prevent mobile harassment especially for women, I am for it ( off course not for curbing other words which do not carry offending or sexually harassing or obscene motives). But one needs to see that whether this act of the government resulted from huge complaints from women regarding this. In Indiasending offensive communications via digital media is considered as an offence under section 66A. Along with this Section 509 of the IPC is also used in some cases when modesty of women are targeted, i.e, they are targeted with words which actually sounds very nasty. Not to forget the power of sections 69 and 69A of the Information Technology Act, 2008, which gives enough power to the government for intercepting, monitoring and even blocking the free flowing of informations through digi-tech services; India can also probably take up such action as her neighbor to prevent individuals from using slangs targeting women.

Now, coming to the arguments against such government acts, I will sum up my points as below:

1. women are targeted with slang words, men are neither spared. It has become a new fashion among some people to use abusive words, including slangs while texting or even speaking with friends……forget about the heated up arguments which often carry ‘unwanted words’.

2. How far the government can check? Checking the usage of words with double meaning will become a huge task. Probably for this a new academic course would be needed to study the changing trend of words with black and white meanings. Don’t forget, we in this peninsula speak both English and vernacular language and majority have excellent ability to use “Hinglish” to express thoughts.

3. We get to see so much ***ing words/images in popular social networking sites which are hugely shared and also enjoyed by many of us… would government go ahead with banning these social networking sites too? Well, once Pakistan did ban Facebook for insulting Islam. But in India no such act was taken except the 2006 ban on an Orkut community which triggered tension for insulting the great Maratha king Chatrapati Shivaji. But note that Orkut as a site was not banned.

It is no wonder that the concept of unprotected speech and expression, seen from the aspect of Article 19(2)(v) under Indian constitution is becoming more narrowed. This provision speaks about curbing right to speech on the ground of morality and indecency. But at the same time, it lies upon the users of the free speech guarantee to use it in a proper fashion, so that the government need not step in to curb the right. Once the individual users, irrespective of their gender, decide the level of decency for usage of language themselves, the problem of objectionable words and government’s “Big Brother” attitude towards free speech guarantee may be set at rest to a certain extent…..if not fully.

Please Note: Do not violate copyright of this blog. If you would like to use informations provided in this blog for your own assignment/writeup/project/blog/article, please cite it as “Halder D. (2011), “No more slangs: it may land you in jail…….……….really?”20^th November,2011, published in http://debaraticyberspace.blogspot.com/