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    of 11
    y eddom of Speech and Expression and National Sovevignity oie pein’ to Indian service providers) whose servers af baved rnd ane dest tain blocking measures, they continue to thrive in cyberspace se either shift their location of servers or change the identity of ‘vcbsite ines sie owners On apes a foreigners, Without extradition trealy itis not possible (0 masecute tHeSe offenders despite prescriptive jurisdiction on foreign nationals under Beton 75 ‘of the IT Act, 2000, If Indian Government blacks its access in India, Sous spooring and hide IP measures ae used to onion route or bypass the firewalls a that ‘blocked content can be accessed in India by masking a foreign IP through use Synonymous proxy Servers and softwares. FREEDOM OF SPEECH AND EXPRESSION AND NATIONAL SOVERIGNITY sme Yahoo! France Case yahoo is a reputed Internet Service Provider that renders various services from different websites. It operates a search engine, e-mail services, shopping services or hat rooms on its online portals. Yahoo.com operates under the laws of United States. ‘There are several regional Yahoo sites such as Yahoo France or Yahoo India witl ‘country code’ specific TLD (http:/www.yahoo.fr; http://www.yahoo.co.in). The resional websites of Yahoo operate in the focal language of the region and offer services to the local residents of the region ee function under local laws. Yatioo's soetion site provides a service where any product can be put for sale and requests for bids from users. The Yahoo Services mails a notice the highest bidder and seller-to rovide their contact details so that the sale transaction can be materialized and the Mier and buyer can deliver the product on payment. "Although Yahoo is not a party to the transaction, to a limited extent, it regulates the transaction by prohibiting specific items from sale through its website for example, stolen goods, illegal drugs, Feapons. It also provides a rating system fo monitor transactional experience of payers and sellers on their websites. The wert ‘of Yahoo website are required to comply with the policies of Yahoo and to restrain from posting such items for buyers in particular jurisdiction where selling euch an item would infringe the governing Ine of the region, Yahoo does not monitor the ‘content of every posting and in one of the eases, popularly known as the Yahoo France c2Se objectionable Nazi propaganda was posted on the Yahoo Auction Site. ‘The Complaint in Yahoo! France Case La Ligue Contre Le Racisme Bt’ ‘Antisemitisme (The League Against Racism And i served a cease and desist notice to Yahoo alleging sale through Yahoo France Auction Site as violative of French Law. bby LICRA against Yahoo in the French Court. The French Court found that Nazi objects including ‘Adolf Hitler's book ‘Mein Kempf were being sold on Yahoo's auction site. French citizens could access these items on ica fr, The French Court held that Yahoo.com site is Yahoo.com or via a linking Yl violative of Section R64S-1 of the French Criminal Code that prohibits offering Nazi propaganda and items for sale. The court ppassed an order on 22” May, 2000 directing Yahoo France and Yahoo.Inc to remove ‘access through Yahoo.com to the Auction Site offering Nazi items for sale. of Nazi related items ‘A complaint was filed 329 © scanned with OKEN Scanner Promeeting Privacy and Data on the Internet Vahoo averted thit the neces to Yahoo.r can be blacked but blocking of Yahoo com ao that the Nazi objects being sold cannot be accessed is fA NG Wot Feasible An expet’s pinion was sought which was filed om the @ November 200%), According to the opinion of experts, the IP Address of French users that can be traced were only 70 pet cent, The court observed that Yahoo posted advertisin banners to track French cfticem and it was technically possible for Yahoo (o identify them. Also, Yahoo can even direct the users to declare their nationality, before usin, Therefore, on 29" November, 2000 the order of 22” May, 2000 ue against racism and Anti-Semitism - Liera and French Union of Jewish Students v Yahoo! Inc and Yahoo France was affirmed by Jean Jacques Gomez, the First Deputy Justice, Court of Paris. Yahoo was directed to abide by the order of 22" May, 2000 within three months or pay a penalty of Francs 100, 000 (Approximately USD 13, 330) for every day of non-observance of the order. The Court held that posting Nazi objects in France is contrary to Article R 645-1 of the Penal Code and could lead to disturbance of public harmony and safety. The Court held that Yahoo was technically sound to identify a French user on its website who its website since it would advertise banners containing market ads in French Language when a user from France visits its website, Therefore, it determined that it has jurisdiction to decide this matter and its decision should be executed in United States. Yahoo Inc. and Yahoo France did not appeal in France against this judgment but filed a case before the California Court seeking a summary judgment that the order passed by the French Court should not be enforced in United States as it would clearly be contrary to the First Amendment right that guarantees to its citizens the right to free speech and expression.” Yahoo alleged that the order passed by the French Court cannot be complied in totality till Nazi objects are removed from Yahoo.com. If Yahoo Inc did the same it would infringe the First Amendment right guaranteed by the US Constitution, Yahoo prayed for a declaratory order that declares that the judgment of the French Court is not enforceable under United States’ laws. The LICRA et al responded by challenging the absence of personal jurisdiction over the defendants which was rejected. The court ruled that the main question in the matter was whether another country can pass an order to curtail the right of freedom of speech guaranteed by the US Constitution on the ground that such matter which is illegal under the laws of that country can be accessed by internet users in that country. The court found that the French Courts had the right to monitor and govern what content is legal in France, But the United States’ Court shall not enforce an order passed by a foreign court that violates the United States’ Constitution by regulating the content that appears within United States for access to its users within United States. Therefore, the ground of technical feasibility which was adopted by Yahoo in the French Court alleging that it is technically not feasible to block Nazi objects for sale on ‘Yahoo.com auction site by identifying French users is no more relevant, The fact that the compliance with the French Court's order will violate the First Amendment by itself was a ground to reject its enforcement." the website concerning the §3. Yahoo France cas, hp:llww.cdtorggrandchilyahoo-rance-case (accessed on 3 July, 2012). 64. For more discussion on Yahoo! France case See Vakul Sharma, information Technology Law & Practice, Universal Law Publishing, pp. 297-302, 330 © scanned with OKEN Scanner Freedom of Spee Speech and Expression and the indian Const ist yjsuch a website would operate i sitive religious propaganda or eee by a foreign service provider that contains spt Sdaharmony. han cours oltesl sentiments of is etzens and stirs i Nernment fo block such harmful websi uphold any action of the Central ote IT Acts 2000. Such process i = from access in India under Section 694 ays before a civil court as the fore 2 casier than filing a ca for injunction sting juisditon ofthe ni ign sevice provider is most likely to object t0 aps afl materials that ace an co fon the other hand an Indian website cat courts ban the website and I matory to a foreign county, such as UK and i eons of UK courts, India will mae owal approached 10 enforce the vation with the country and milled ements jateral arrangements Of copetublc policy of India or examine if sch enforcement will be against laws of it, Civil Procedure Code, Secon i. of any fundamental right ofits citizens» Unie sive ofthese not given on mens Provides that foreign judgments will not te fon an incorrect View of international law or refs olen ind iyhere such law applies, and if judgment was ecivauall cae ns Siained % Lae 7 ee ae Lee of any law in force in India. In a criminal case, lettet 1 of req y of concemed state will be sent to Central Government and such request is forwarded to the concerned court for arrest of person, attachment of | roperty or otherwise and such execution depends on reciprocal arrangements India has with another country in question. India imposes reasonable restrictions through | jaw on the right to freedom of speech under Article 19(2) including on grounds of i) frendly relations with foreign States, public order, decency om ‘morality or in relation | contempt of court, defamation, which are well reflected in Section 69A of IT Act, M000. Therefore, in’ my view the Indian courts would allowing blocking of such indian websites which could harm India’s relations with forse states irrespective of reciprocal arrangement exists with UK, as its own Jaw prohibits such activity. If its fave did not prohibit such harmful or defamatory ‘websites that injure religious i sentiments of UK nationals, then reciprocal arrangements would be examined to find \ solution based on terms agreed in that pilateral/multilateral arrangement, if any. | FREEDOM OF SPEECH AND JEXPRESSION AND THE INDIAN CONSTITUTION In India, the Constitution grants fandamental right to freedom of speech and expression in Article 19 of the Constitution “article 19(1)(a) states that the citizens of This have the right to freedom of speech ‘and expression. This right is read with sub-Article (2) that places reasonable Pstrictions that the state has power to impose. ‘The grounds on which ‘reasonable restrictions can be imposed include when speech leads to defamation, contempt of court, offends decency or morality, security of state, friendly relations with foreign states, provides incitement to an offence, threat to public order, or sovereignty and integrity of India, Any law made on the basis of Article 19(2) of the ‘Constitution is presumed to be valid and reasonable. According it is complicated to interpret the words ‘reasonable restrictions’ to HM. Seervai, and the test of “clear and personal danger’, which is explained by the US Supreme GE. Sex Section A4A of the Code of Civil Procedure, Section 13 of CPC, Chapter VIIA of Code of Cfimial Procedure 1973. og, Sina Prose nal Law af Ii: A Creal Commentans Voll NM. Tripathy, Bombay, 1975. 331 © scanned with OKEN Scanner the Internet__ Protecting Priva Court on matters related to First Amendment. Justice Douglas ee, Corporation v Regents of the University of New York, Se Ey the aliferences cinema films is constitutionally void, Justice Douglas explaines i ines between Indian and U.S. approach onthe freedom of speech in the SUDHA lin “If we had a provision in our Constitution for ‘reasonable eee press such as India has included in hers there would be room fo 8 Censorship in the interest of morality would be permissible”. In M.H. Devendrappa v Karnataka State Small Leis Development Corporation,® the court held that the fundamental right to freedom of speech an a cle 19 ‘must be harmoniously construed so that expression and other rights under Article 19 ‘mt Sd een they are properly promoted with the minimum restictions" In x Narayanan v State,” the court held that the freedom i speech and expression conferred by Article 19(1)(a) separately incorporated within it the freedom to read any book or literature subject to reasonable restrictions imposed by the state. For these reasons, therefore, Sections 67, 67A & B of the IT Act, 2000 prohibits publishing or transmitting obscene materials electronically (Section 67), publishing or transmitting material containing sexually explicit act in electronic form (Section 67A). This is a reasonable restriction imposed on publishing and transmitting obscene matter on the internet. It is important to note that Sections 67 and 67A do not prohibit browsing, down loading, collecting or creating any obscene matter which is, prohibited under Section 67B of the IT Act, 2000, that prescribes that child pornography which is published or transmitted, created, collected, browsed, down loaded, advertised through electronic form is a punishable offence. The Explanation to Section 67B of the IT Act, 2000 explains that children mean a person who is not 18 years of age. Further, Section 69 of the IT Act, 2000 confers power on the Central Government or the State Government to issue directions for interception, monitoring or decryption of any information through any computer resource. Section 69A confers power on the Central Government to issue directions for blocking for public access of any information through a computer resource. Likewise, Section 69B empowers the Central Government to monitor and collect traffic data or information through any computer Section 69A empowers the Central Government to block any site that it considers necessary to block in the ‘interest, sovereignty and integrity of India, defence of India, security of the state, friendly relations with foreign state or public order or for preventing incitement to the commission of any cognizable offence.’ Before Section 69A was added by the Information Technology (Amendment) Act, 2008 for blocking of websites the Gazette Notification (Extraordinary) No. GSR 181(e) dated 27° February, 2003 designated the Indian Computer Emergency Response Team as the Single Authority for issuing orders for blocking of websites. According to the Ministerial Order on blocking of websites 67, 360 US 684 (1959). 68, M.H. Devendrappa v Karnataka State Small Industries Development Corporation, Mt Doendape » lopment Corporation, (1998) 3 SCC 69. Ibid. 70. K. Narayanan v State of Kerala and another, AIR 1973 Ker 91, 1972 C1LJ 1637. 332 © scanned with OKEN Scanner Phone Tappii ‘hone Tapping Law in India the the Ministry of Communi < nica Pes that promote hate speech, stan echicrad ey Technology.” ‘i rrorism, Pornogral ee ation, gambl id promotin: sity ee this webs on petading child pornography ne easonably ve Ge the Ministerial in constitutional right of freedom of speech. cotF flow of information’ and locking of such websites may be equated (0 salt gmendment) Act, Son ,not ‘censorship’ However, withthe pas o! eed in Section 69A which onl oon of reasonable restrictions have been re Constitution under Article 190), mentions grounds that are described in the oxE TAPPING LAW IN INDIA a, in the famous PUCL case,” petitioner challenged the State’s power to laP es under Section 5(2) of Telegraph Act. The court laid due Emphasis. om sowing phone tapping in serious situations that require protection of national Hveignty and interest, public order, incitement to ‘commission of an offence friendly relations with states, or security of state.” At the same time it observed that jaqute mechanism to safeguard privacy should be in place through framing proper Mp avoid its misuse. The Section contains safeguards for intercept through ales ipjrement of documentary formalities and placing various checks and balances raigh maintenance of records,” appointment of a review OS and aromatic — 419 (F)(3) ok, expiry of interception order on expiry of 90 days from order date.” These rules oe ier Section 69” and 69B” of the fodian Teles reflect mes oa enacted _unde IT Act, 3000. Since then many instances of phone tapping have been reported such as Poles + TATA’ controversy” where newspapers published transcripts of Nasli Wadia’s re vessation about extortion money paid to ULFA leaders ‘and tapping of phones of politicians was also reported. Ge question whether phone tapping constitutes Pasion of privacy was considered by the ‘Supreme Court in RM. Malkani v State of AFB (NSCS Maharashtra” wherein the court held that telephone conversations ‘of an innocent at). een shall be protected against unlawful tapping ‘but the said protection is not TL vide GSR) dated 7 Sly, 2003 published in Gaze of India, Extra, Pt. Il, Section 3) dated July, 2003, 1 Det unio of India, (2008) 4 SCC 399, AIR 2003 SC 2363. FE Scion 419(A) G3) Indian Telegraph Act, 195) | 8 Section 4100 (6) and (7) Indian Telegraph Res, 195%, M0 St vy Mohd. Afeal, 107 (2003) DLT $35, (2003) T1 DRI 178 (Per Usha Mehra & Prstcep ‘Nandrajog, J.) (permission was taken from 385,200) 71 ormation and broadcasting 00 13 Desires "2001 for interception which were jeter na sealed cover which was opened and Tead out to accused in presence of his counsel and then esealed). Rule 419-A(5) of Indian Te Rules, 1951. 7 1 ‘Monitoring, and 1 R200 nada tape, Teta may more SC, 29, NovenOer 0, utp sibalivein.com/news! stung by-tadiatapetta-may-move-se/13607 Sihuml (accessed 3" July, 2012), Times of India, stung bya peo ere! conversations” 297 November, 2010, Ci) Singh accused Re Gandhi government of unauthorized phone f@PPin ‘and for the phone tapping Ram Krishna Hegde vas forced to resign as a CM. 79, (1973) 1 SCC 471. See also State ‘of Maharashtra v Bharat ‘Shanti Lal Shah & Ors, (2008) 13 SCC so Sa of yb ob jstiied for prevention ofan organized crime or 5, 2008) 12 SCR 1083 (Pl 5.2008) Jone relating such crimes and cried out sper procedure ‘established by law). B n 333 © scanned with OKEN Scanner net Protecting Privacy and Data on the } Intern itiatives directed at preventing the court took the view that ent in AWailable to a guilty citizen against law enforcement ‘ dure adopted to obtain a © aforesaid cast Comuption among public officials. In the oe tn pt There was no unlawful interception or irregularity {ape-recordings of conversation under challenge. at does not restrict tc d trend that does not ace procedural checks to check fom the recent case of State of t dealt with a matter challenging ‘The precedents in India on phone tapping indi government's power to intercept but in tum pl Proper interception, This trend. is ion aeae Maharashtra v Bharatilal Shak” wherein the sed Crime Act the constituiona validity of the Maharashtra Control of onthe pugned act 1999 and provisions contained under Section 13 to 16 of ihe Impnhe act authorizing interception of communication and assessed if these Were Wolds of the right to privacy. The court observed that interception i fade in accordance to invasion of privacy and such interceptions shall only be ios uired that “the with procedure established by law. The Court held that it che fanciful procedure itself must be fair, just and reasonable and non arbitrary, fanciful or oppressive." ‘The Department of Telecommunications, Government of India recently proposed Rs 540 crore project for creating a centralized surveillance and interception system across communication media for national security concerns, The monitoring system is reported to include development activities for authorized interception, monitoring, analysis and detection using updated intelligence techniques and biometric devices) The existing system of phone tapping involves individual operators and is activafed once a warrant is issued by law enforcement agencies. The system is decentralized and raises many security concerns.” Also, in April, 2011, SEBI has sought permission from the government for phone tapping powers.” It is settled that certain surveillance for protecting national interest is required but the abuse of these powers needs to be checked. This becomes even more important as the amended IT Act, 2000 allows greater powers for intercepting, monitoring and decrypting internet traffic as discussed hereinbefore. To add to this several spyware such as Trojans, bugs and sophisticated devices are being used by private agencies to even unauthorisedly spy the internet traffic which poses @ serious threat to privacy rights of individuals, Another linked issue is that of convergence. Interception law applicable to fixed telephone lines is inconsistent 80. (2008) 13 SCC 5, 2008] 12 SCR 1083. See also District Registrar and Collector » Canara Bank, (2005) (1) SCC 496, AIR 2005 SC 186 (state cannot make roving inquiries and have “umecriora) Sf pect die or snake roving inguires into all bank documents....unlss thre are some probable causes or basis to be recorded in writing or material 1¢ author ing or area i oF material before the authority making 81. See Neera Agarwal v Matender Kumar Agarwal, 2009 (5) ALT 518; 5 L s Surupsingh Naik v State of ‘Maharashtra, AIR 2007 Bom 121, (2007) 3 Bom Ci im LR Bs hak bpm te ra ) 3 Bom CR 134, (2007) 109 Bom LR 844; Rajesh Kumar 82, Singh, Shalini, DOT propose 11" November, 2010) at hit permission for phone tapping, The Statesman, ‘ndex.php?option=com_contentéview=articledid= © scanned with OKEN Scanner vy Internet Censorship in India yt tas under ae ‘and rules and requires « Ganivergent law as internet enabled are col Ny ay poverty TTA 2000 communication device’) and also are ‘ine 4 ri r aspect is discusses prea a vapter Hrnering issues On internet later inthis botk, ee on NTERNET CENSORSHIP IN INDIA 2001, a Committee was appoi in ‘ | appointed by the Bombay High Court to lace Jeommmendations On combating cyber pomography ad ce ‘The Commitee recommended licensing of cyber café, creation of ID Card system (0 ensiie the Mhenticity of the users that avail is services. The Report also recommended that the qntemet Service Providers maintain user logs. It also recommended that the minors should not be allowed to access adult websites and suggested that Internet Service providers make available such software that protects minors. The training of cyber wlice personnel and establishment of special cyber crime investigation cells was F-commended. Many of these recommendations are being gradually implemented. Many states have established cyber crime cells within the states and rules for proper functioning of cybercafé have also been recently passed, known as the IT (Guidelines for Cyber Café) Rules, 2011 that prohibit use of eybercafé for pornography and other illegal purposes.” However, many lacunas still exist in cyberlaw framework such as vpeence of prescribed data retention period for internet service providers and Jaws ° employee surveillance and data mining. Further, in ease cyber café breaches the prescribed laws and fails to render assistance in a law enforcement initiative in Pe ation of Section 67C of the IT Act, 2000, the punishment is only upto 3 years and Tne but constitutes a bailable offence. This does not prove a deterrent law ‘and thus, cyber cafes continue to violate the Taws. We need stricter laws to enforce the provisions effectively under IT Act, 2000. Cases of Censorship During Kargil War in 1999, the Internet Website of a newspaper named ‘Dawn’ was blocked from access in India by BSNL. Rediff is known to have published technical sxategis to circumvent the ban. Late, in 2003 Kynhon, 2 ‘Yahoo group connected with ‘Hynniewtrep National Liberation Council’ a separsh gh, from Meghalaya eae ee jocked from access. On the 1" November, 2007, the Economic Times reported that the Government of India may impose a ban on “posting of private and personal videos on internet ‘and mobiles” to combat cybercrimes.” However such a reson Mill be clearly censoring the internet beyond what is required if it exceeds Tegitimate grounds of censorship mentioned in Section 69B. In a recent case weave Delhi High Court, E2Labs v Zone H, the court ordered blocking of domain Zone-H.com by an ex parte interim injunction, order.” This decision invokes debate canttsof feespeech and censorship as the site remains blocked due to the interim orders that remained uncontested by respondents. It reminds me of the firewall of Aggie) io tou | GE Section 21)(ha) IT Act, 2000. aoe le 6) of information Technology (Guideline for Cyber Cae) Rules, 291. eae oe hart, TNR, Gowt Weighs Ban On Posing Videos On Net, The Beononnc Vines, Nianan ra tails econo ndtimes.com/2007-11-/news/27672675_1_vas- 3¢ (accessed on 3° July, 2012). mobile-revenues-cyber-crim 81. Bo ube s Roberto Preatoni, CS (OS) 2305/2009 (Delhi High Court (unreported). 335 © scanned with OKEN Scanner Protecting Privacy and Data on the Internet ee follows as a matter of policy. governed by Section 95 of Code of a publication will be an offence ina and excessive filtering of content Chi Also, censoring of a newspaper or book that is £0 riminal Procedure, 1973 requires determination i under Section T24A/11S3A/295A of Indian Penal Code, 1860 and then declare by public notice in official gazette, These provisions have been used to ban publications that publish terrorist mater, content that will invoke religious enmity and such matter that creates public disharmony." However, Section 69B does not require such declaration of public notice to be passed as in case of other means of communication stich as books, newspapers. This presents greater powers of blocking in the internet space as even online newspaper and books and periodicals which depend on internet for circulation will be directly affected. In another case, a school student created fake profile of the chief minister of Madhya Pradesh, Shivraj Singh Chouhan on facebook \d controversial materials on it from a cybercafé was arrested by the Indore police.” In another case, two men were imprisoned for writin defamatory remarks about Sonia Gandhi on Orkut, a social networking site. Recently, the Government required internet service providers to block 55 Facebook pages relating to Afzal Guru. The notice was issued by the Department of Telecom after Afzal Guru was hung.” Also, cartoonist Aseem Trivedi was arrested for sedition charges. This was slammed by Mumbai High Court, which took the view that such action violated his right to freedom of speech and expression. National Intelligence Grid (NATGRED) to Track Netizens Recently, the Indian Home Ministry also declared ‘its proposal to set up a National Intelligence Grid (NATGRID) to track individuals who surf the internet. The system would be implemented in three phases within two years and involve 11 central agencies including Central Bureau of Investigation, IB, RAW, Enforcement Directorate, National Investigation Agency, Directorate of Revenue Intelligence and ‘Narcotics Control Bureau which will have access to the data as and when required. Unless such a system gives due consideration to privacy concems of citizens and and placing cartoons 88. Mohammad Khalid v Chief Commissioner, Delhi, AIR 1968 Del 18, (order passed by state {government prohibiting publication of book ‘Khilafat I Meawia wa Yazid" was struck down), Gopal Vinayak Godse v UOI, (1970) 72. Bom LR 871 (court held book “Gandhi Assasination and 2” is not likely to promote feelings of enmity between muslims and hindus), Anand Chintamani Dighe and Anr. v State of Maharashtra, 2002 (1) Bom CR 57 (court held play “Mee Nathuram Godse Boltoy” does not contain defamatory statements about Mahatma Gandhi and should not be banned under Section 96, Code of Criminal Procedure, 1973) 89. Facebook: Boy held for creating fake profile of MP CM, 25° July, 2011 hitp:/artclestimesofindia. indiatimes.com/201 1-07-25/social-media/29812194_1_fake-profile-teenaged-boy-social-networking -site (accessed on 3" July, 2012), 90. Gurgaon techie held for posting derogatory messages against Sonia Gandli on Orkut, Express india.com, 18° May, 2008, http:/www.expressindia.comv/latest-news/Gurgaon-techie-held-for- ‘posting-derogatory-messages-against-Sonia-Gandhi-on-Orkut/3 1 1070/ (accessed on 3” July, 2012). 91. “Govt moves to block 55 Facebook pages on Afeal Guru", The Times of India, February 19, 2013 at ‘itp://artcles timesofindia.indiatimes.com/2013-02-19/social-media/371791189_l_afeal-guru-facebook- pages-block-notices (accessed on 29° May, 2013), 92. "Tomorrow, you will atack a filmmaker and a writer”, Rediffnews, edif.com, 14° September, 2012, ‘See also: TIPM was brought under a scanner when several pages were blocked by ISPs on government orders. The sites containing defamatory material about IIPM or its head were directed to be blocked by a Gwalior court on a complaint filed by IIPM's representative. "Free speech controversy rages around Arindam Chaudhari", NDTV at hitp:www.ndtv.comv/artcle/india/iree- speech-controversy-rages-around-arindam-chaudhari-332404 (accessed on 28" May, 2013). mY 336 © scanned with OKEN Scanner Internet Censorship in India —————- aaa ensure adequate steps to protect confidential information about individuals, it will be open to misuse, and lead to invasion of privacy and loss of personal information of Indian citizens Pre-Filtering Internet Content Of late the issue of precensoring the third party information posted on social networking sites like facebook and twitter came into limelight, The Hon'ble Minister for Information Technology, Mr. Kapil Sibal, had urged social networking sites to monitor the third party content they published on their sites as defamatory content existed on social networking sites which was damaging as the reach of internet is pervasive beyond. The extant IT laws in India required such sites to take off such illegal content within 36 hours from actual notice or knowledge of the content if they do not monitor or edit content posted by third parties. Social networking sites contended that due to magnitude of content posted on daily basis such filters and precensoring was not possible on technical and administrative standpoint. If government proposes to precensor such third party content, then as proposed hereinbefore clear rules that define ambit and scope of such regulation, including due diligence process for filtering by intermediaries ought to be passed and its technical and administrative feasibility also should be considered.” The scope of ambit of terms “harmful to minors", “harassing” “hateful” found in Rule 3 of IT (Intermediaries Guidelines) Rules, 2011 may be clarified with help of illustrations as found in the Indian Penal Code, 1860. For example, on consumer blogs complaining about deficient services of a service provider is protected by free speech so long as it does not use abusive language or becomes defamatory. The meaning of terms used in Rule 3 can either be clarified by judicial decisions or explained by Parliament through illustrations as in case of Indian Penal Code, 1860 or through Government's clarifications. Further, netiquette needs to evolve in cyberspace so that users are aware and are able to distinguish form of freespeech that is protected and content that becomes illegal.” In a recent case a civil judge of a court in Delhi granted ex parte injunction against social networking sites that published defamatory content about gods and allegedly hurt the religious sentiments of Indian community. The court had the power to grant such injunction orders in order to maintain ‘public order’ as Article 19(2) of the Constitution of India allows reasonable restrictions on right to freedom of speech and expression. Social networking sites are under an obligation to.remove the objectionable content since the same has been brought to their actual notice and by virtue of Section 79 such content ought to be removed by an Intermediary on receiving actual knowledge.” 93, Vishwa Mohan, MHA To Make Security Data Tamper Free, The Times of India, 2 October, 2009, http//anticles.timesofindia.indiatimes.com/2009- 10-02/india/28064726_1_national-intlligence-grid- natgrid-agencies (accessed on 3° July, 2012). Sibal snaps at social networks, says code of conduct coming, The Times of India, 7” December, 011, _ http:/timesofindiaindiatimes.com/tech/news/interneVKapil-Sibal-snaps-at-social-networks- says-code-of-conduct-coming/artcleshow/1 1012467.cms (accessed on 3° July, 2012). 95, Sibal snaps at social networks, says code of conduct coming, The Times of India, 7 December, 2011, _ http:/himesofindia.indiatimes.com/tech/newsfintemnet/Kapil-Sibal-snaps-at-social-networks- says-code-of-conduct-coming/articleshow/1 1012467.cms (accessed on 3° July, 2012). 7 96. City court bars networking sites from webcasting ‘offensive’ content, Indian express.com, 22" December, 2011, httpz/ivww.indianexpress.com/news/ity-court-bars-networkingsites-from-web casting-offensive-content’890609/(accessed on 3" Iuly, 2012). The Supreme Court recently dealt (Footnote No. 96 contd.) 337 ; © scanned with OKEN Scanner Protecting Privacy and Data on the Internet CONCLUSION In this chapter, we discussed the diverse legal approaches and regulatory framework adopted by different jurisdictions for protection of fundamental rights of free speech and privacy on internet. The freedom of speech and expression on the internet in India is guaranteed by Article 19 of the Constitution of India and is regulated by le restrictions permitted by the Constitution of India and the IT Act, 2000. The law on privacy of personal data guaranteed by Article 21 of the Constitution of India and data protection is an area which is still evolving in India and the legal framework is being strengthened to enhance data security and privacy in the online space through enacting appropriate rules under the IT Act, 2000. Despite being free, the internet in many ways is still territory specific when it pertains to freedom of speech and privacy law on the internet. In this setting, legal framework, enforcement provisions, jurisdiction issues, and role of e-crime conventions become indispensable, particularly in cross border issues. Another emerging challenge in internet space is growing convergence in technologies, in form of VOIP, internet messaging to mobile handsets, IPTV where telecommunications and broadcasting Jaws will need to be reanalyzed and aligned with laws for internet communications including law of interception, law against spamming, and other laws to protect privacy and data of netizens Recognizing this state, a new concept of net neutrality is gaining importance, Net Neutrality advocates that intemet transmissions and law relating thereto should remain neutral imespective of content and origin of communications flowing over internet. This debate addresses the pros and cons of net neutrality, related issues of surveillance powers and censorship of the internet and ISP liability and its impact on further growth of internet. A homogenized internet or convergence law will eventually be required to govern the cyberspace. Yet at this point, it remains to be tested how much net neutrality can be de facto achieved!” Having discussed the law on privacy and free speech protection, it is pertinent to discuss implications of breach of these rights, which leads us to the directly important subject of e-crimes. In the next chapter we will deal with cyber crime issues followed by electronic evidence in Chapter 11, which is required to be produced as evidence for prosecution of e-crimes. (Footnote No. 96 contd.) with a PIL filed by a company Mouthshut.com (India) Pvt, which runs a portal mouthshutcom, challenging the validity of Information Technology (Intermediaries Guidelines) Rules, 2011, which makes it mandatory for a website owner to pre filter and screen content and. implement online ~ censorship of contents on its webpages. A bench of Justices T'S Thakur and S J Mukhopadhaya, issued the notice to the Cente and all the states. See "Supreme Court 10 examine validity of Information Technology rules’, The Times of India, 30" Apr, 2013 at http:/aticles economictimes indiatimes.

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