1.1 Laws Relating to Blocking and Internet Shutdowns in India

There are, and have been, several bases for Internet shutdowns in India, including:

1. Section 144 of the Criminal Procedure Code;
2. Section 5 of the Telegraph Act, 1885, read with the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017;
3. Sections 20 and 21 of the Telecommunications Act, 2023 (yet to be notified);
4. State-level Police Acts.

Similarly, multiple legal provisions have been claimed for website blocking in India:

1. Section 67 of the (unamended) IT Act, 2000, read with Gazette Notification no. GSR. 181(E), dated February 27, 2003;
2. Indian Copyright Act;
3. The Civil Procedure Code and courts’ inherent powers;
4. Section 69A of the IT Act, 2000 (as amended in 2008), read with the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009;
5. Section 79(3)(b) of the IT Act;
6. State-level Police Acts.

It is not always clear what each provision is meant to cover. For instance, while the Telegraph Act is legally used for Internet shutdowns, and Section 69A of the IT Act is legally used to block access to thousands of specific websites and hundreds of mobile apps, the plain reading of the provisions doesn’t make it apparent why this should be so. Provisions relating to intermediary liability, thanks to some judgments, may also be used in conjunction with a court order to block websites. Thus, there’s a lot of ambiguity in the way that the laws are interpreted and applied. Some of these legal bases have been created by legislatures specifically for the purposes of blocking websites and access to the Internet, while others were evolved by the higher judiciary, and yet others evolved by police and magistrates.

2 International Human Rights Law

3 Conclusion

International human rights law provides an interesting framework for analysis of where to strike the balance between competing claims of rights and permissible restrictions—albeit usually limited, though sometimes useful. While Internet shutdowns and blocking of websites affect people’s civil and political rights as well as economic, social, and cultural rights (ESCR), there have not been any significant IHRL pronouncements on ESCR when it comes to Internet shutdowns, but there has been important IHRL analysis under civil and political rights frameworks.

This paper establishes that Indian laws relating to Internet shutdowns and content blocking fall short of the requirements imposed by IHRL in terms of legality, legitimate aims, necessity, proportionality, transparency, and provision of remedies.

1. Internet shutdowns orders and content blocking orders are often promulgated in violation of existing laws;
2. Indian laws and delegated legislation do not provide precise guidance to the executive on the circumstances under which they may legally restrict speech;
3. Such laws do not conform to the standards of necessity and proportionality, do not set time limits on website blocks, and even allow completely disproportionate actions such as Internet shutdowns which, as multiple international authorities have noted (La Rue 2011a; UN Special Rapporteur on Freedom of Opinion and Expression et al. 2015; Kaye 2016b), contravene IHRL;
4. They restrict transparency and do not make it known why any particular website is blocked nor allow ISPs and other intermediaries to make such information public; and
5. They do not provide remedies such as a right of reinstatement of content.

In order to bring these laws into conformity with IHRL, some of them need to be completely rewritten and others amended. In many cases, it is judicial overreach that needs to be curbed. Thus, laws such as the Copyright Act and the Civil Procedure Code need to be amended to lay down grounds for when the judiciary may and may not order the blocking of websites. Given the serious human rights concerns raised by suppression of speech via blocking of websites, the IT Act should be amended to require that ex parte blocking should not be ordered either by the judiciary or by the executive. Instead, it could be achieved either with the state attorney general’s office—or amicus curiae appointed by the court if the matter is before a court—being required to mount a defence against the blocking of websites, similar to the role performed by public defenders in criminal cases.

Requirements of necessity and proportionality need to be embedded into the legal process—for instance, by requiring time limits placed for each website block along with periodic reviews of each blocked website. Internet shutdowns should be expressly prohibited by law. To further transparency, orders for the blocking of websites should be published online, along with the minutes of the meetings in which the blocking has been discussed as well as the evidence presented before the committee to substantiate the need for blocking. The orders should contain information on each website with a justification of how its blocking is compliant with constitutional and IHRL obligations: more specifically whether and how the block falls under the grounds provided for under Indian law, whether there are no other means of countering the harm from the speech expressed, whether a block is the least restrictive means to counter the harm, and whether this will have undesirable consequences outside of Indian jurisdiction. This should apply both to the original block orders, as well as the periodic reappraisals. The government should not only proactively make public the orders that the executive has passed but also the orders the judiciary has passed (and passed on to the executive for enforcement).

Additionally, there need to be penalties for unlawful blocking of websites, apps, and internet access, which need to be enforced, along with remedies for those who have had their freedom to seek and impart information unlawfully denied, including monetary recompense.

IHRL is only as useful as its use in both popular and political discourse and judicial pronouncements: if IHRL is widely used, it is useful; conversely, if it is not widely used, it is not useful. Currently, the application of IHRL in India has been haphazard. While NGOs are quite fond of quoting IHRL, it isn’t clear whether lawyers are making arguments based on IHRL in the courtrooms. At any rate, it is apparent that courts aren’t making much use of IHRL. Arguably, a more systematic engagement with IHRL would benefit Indian statutory and constitutional interpretation.

References

UIDAI (nd): “Role of Biometric Technology in Aadhaar Enrollment,” Unique Identification Authority of India, Government of India, New Delhi, viewed on 18 August 2016, https://uidai.gov.in/images/FrontPageUpdates/role_of_biometric_technology

Related Links

• Flaws in the UIDAI Process http://www.epw.in/journal/2016/9/special-articles/flaws-uidai-process.html
• Erring on Aadhaar http://www.epw.in/journal/2016/11/discussion/erring-aadhaar.html
• Request for Specifics http://www.epw.in/journal/2016/36/documents/request-specifics-rebuttal-uidai.html
• Glaring Errors in UIDAI’s Rebuttal http://www.epw.in/journal/2016/36/documents/glaring-errors-uidais-rebuttal.html
• Overlooking the UIDAI Process http://www.epw.in/journal/2016/36/documents/response-hans-verghese-mathews-and-pranesh-prakashs-rebuttal.html

Defining censorship

The first question of “what is meant by censorship” can be answered along three observable axes: the justifications provided, the actors involved, and the methods used. Censors regularly offer justifications for censorship, ranging from preventing criticisms of the government, to protecting national security, to balancing speech against other rights such as privacy, or intellectual property, or personal dignity. Each case in this book addresses one or more of the justifications states give for creating censorship regimes. Some of these directly target expression, while for others restrictions on free expression is a collateral cost. Sometimes a technical regime that is built with one justification in mind — say, curbing online distribution of child pornography — may end up serving another — enforcement of maximalist interpretations of copyright law.

In identifying what is meant by censorship in each case study, the authors have paid close attention to which actors are involved. States increasingly do not regulate speech directly. They employ intermediaries, encourage private contracting, or permit private censorship. Censorship can involve multiple actors in different capacities. An actor-oriented categorization of censorship could divide it up as: direct state censorship, state-directed censorship, state-enabled censorship, state-independent private censorship, societal censorship, and self-censorship. In each of these categories — with the exception of societal and self-censorship — the act of censorship can be seen as being lawful, unlawful, or even extra-legal. Most laws protect against state censorship, but in mature democracies like the United States of America or India there is little naked state censorship, with state-directed, state-enabled, state-independent private, societal and self-censorship being the more important conceptual categories.

States also employ vastly different methods for censoring. Some go after communications infrastructure by employing broad ‘kill switches’, as in Egypt. Others engage in surveillance, thereby on occasion chilling the speech of journalists or activists or minorities, as in the USA and Myanmar. Some establish liability regimes, whether criminal or civil, directed at users or communication intermediaries, as in South Africa, India, and China. Others revise right to information laws to prevent journalists from accessing government information. Some continue to perpetuate old school censorship by employing the enforcement powers of the state, as has been done in Brazil through the judiciary. Each case study in this book addresses one or more censorship method chosen by the state, or in some cases private entities, to stop or shape some kind of speech, or that is chosen for other reasons, but structurally achieves the result of interfering with free expression. Importantly, by using the word ‘censorship’ we do not necessarily impute malicious motivations to the actor that is censoring. In some cases, it is a lack of understanding of the implications of their actions that leads to censorship, as we see in some of the case studies, for example, from South Africa and India.

Overview of Chapters

While there is no way of succinctly capturing all the different ideas contained in the various chapters of this book, we will briefly walk through the themes that they touch upon. Dr. Laura DeNardis’s chapter titled “The Privatization of Free Expression”, kicks off the book, and in it she explores the role of Internet governance, especially its technical governance and what she terms “private public policy”, in determining whether the “technical characteristics providing infrastructures of free expression” are preserved and promoted on the Internet.

In her chapter on the United States of America, Anjali Dalal looks at the evolution of the chilling effects doctrine in American free speech law, and some of the adverse consequences of domestic mass surveillance, especially on minority populations. In the second chapter to look at the USA, Prof. Christina Mulligan writes of the use of copyright law to remove non-copyright-infringing material, including political speech and cultural speech, through intermediary liability-linked content removal requests, and through “seizures” of domain names: a step unprecedented in other countries. She notes how our inherent sense that censorship ostensibly for copyright reasons bring forth lesser vigilance: “the public would likely have been up in arms”, she notes, if in the scenario she describes, “a magazine printing press” had been seized “instead of a domain name”.

In their joint chapter on Zimbabwe and South Africa, Prof. Caroline Ncube and Dr. Eve Gray paint a broad-brush overview of the law relating to access to information, official secrets, intermediary liability, and insult of the state by going through a wide assortment of instances of censorship. They examine different kinds of instances of censorship, ranging from direct (“old-school”) state censorship through arrest of journalists to self-censorship due to the atmosphere created by a political party.

Expanding on one of the threads that Dr. Gray touches upon in that chapter, Andrew Rens presents detailed analysis of the intermediary liability regime and its constitutionality. By doing so, he answers the question of whether “interdiction of the means of speech be characterized as censorship, when it is carried out by one non-state actor at the behest of another?”

In a markedly different take on the theme, the chapter by Rebecca Wexler looks not at direct state censorship, but at the environment required for informed political debate in a free society by focussing on standards when it comes to video forensic evidence, and its role in truth-making. They examine in depth the forensic examination of a set of videos that purportedly show the cold-blooded shooting of Tamil Tigers by the Sri Lankan armed forces during the civil war, and how opaque technical procedures go on to determine “truth” in political discourse.

The next chapter is that on India by Pranesh Prakash. In that chapter he presents an overview of online censorship in India since the mid-1990s, from direct state censorship to state-directed and private state-independent censorship, and then focusses on the new intermediary liability regime that brings about what he terms “invisible censorship”.

Prof. Hong Xue continues with the theme of intermediary liability in China, focussing on the hugely successful e-commerce ‘third-party platforms’. In it she traces the evolution of the Chinese law in this regard, thus explaining the difficulty that courts have faced of striking a fair balance between consumer protection, protection of trademark, and encouraging innovation in these online shopping malls.

Myanmar’s censorship and surveillance regimes form the basis of Erin Biel’s chapter, and she examines these regimes through the lens of the ethno-religious conflicts there. Her chapter shows the faultlines and the similarities between the regimes that regulate the traditional press and the digital public sphere — telecom surveillance is even easier to conduct than physical surveillance, hate speech is as readily disseminated online — using platforms like Facebook — as offline, and reporters can be arrested for challenging state corruption. It also shows that the existence of the digital sphere doesn’t accomplish much in countries where the Internet penetration is low and where ” government that is accustomed to maintaining state control over the media and telecommunications industries may have difficulty embracing all that freedom of the press and freedom of speech encompass.”

Profs. Mônica Steffen Guise Rosina and Alexandre Pacheco da Silva study the decidedly ‘old-school’ means employed in Brazil by corporations and state officials to prevent their critics from challenging them. In both the cases they examine, the defendants were critics who were ordered by the judiciary to refrain from using particular online social networks to communicate their message, leading the authors to look at the importance of the infrastructure of free expression.

Rounding off the book, Dr. Nagla Rizk explores a period of approximately a week in great detail: the period in January–February 2012 when access to the Internet and various telecom services were shut down in Egypt by the authorities. She presents one of the most detailed accounts of the actual mechanism through which the blocks took place, and then examines a part of the economic impact of this outage of communication channels.

Dangers of New School Censorship

A common theme that emerges out of this book as a whole is that in new school censorship, restrictions imposed on speech and expression, or on the infrastructures of speech and expression, do not constitute the entirety of the problem. Censorship never results in restrictions alone; it simultaneously results in the production of new discourses around the object of censorship, as well as its discursive limits.⁵ As film studies scholar Annette Kuhn notes, “Censorship is not reducible to a circumscribed and predefined set of institutions and institutional activities, but is produced within an array of constantly shifting discourses, practices and apparatuses . . . [it] is an ongoing process embodying complex and often contradictory relations of power.”⁶ The productive nature of censorship is seen in the fact that we often create satire with which to mock censorship,⁷ as well as the increased attention that which is sought to be censored gets, which on the Internet is often referred to as the “Streisand Effect”.⁸

Society will never be free of censorship, nor of resistance to censorship. Indeed, the very technologies that seem to liberate our communications and form the means of our modern self-expression are the selfsame technologies that enable states and corporations greater powers of censorship and surveillance.⁹ Old-school censorship, it would seem, is simultaneously both non-productive — since it often does not work well at being a restriction — as well as productive, since it often results in counter-speech, both directly critical and subversive. Citizens may not always have been able to legally challenge old-school censorship in non-democratic regimes, but they could very often see it and galvanize against it, and in many cases, subvert it in myriad ways.

There are indications that in many circumstances new-school censorship may be more effective than old-school censorship by making invisible the fact that speech regulation is happening, and thus depriving speakers and the audience of the ability to engage with the fact of censorship and to indulge in counter-speech. Even where new-school censorship is visible, it has not always received the same treatment with respect to principles of process and court access, due to it happening mostly through private parties, and not readily being seen as ‘censorship’. Thus, the constitutional safeguards that citizens in a democracy use to protect themselves against the state, are not as readily available against private entities such as internet service providers, domain name hosting services, web hosting services, and social media platforms. Given this, civic engagement with processes of censorship assumes the highest importance. However, such engagement with censorship must be studied not merely at the social and cultural levels, but must be accounted for in legal and procedural terms as well.¹⁰

This shift in relative importance of the actor that controls expression is also a shift that signifies the changes in state ownership of media and communications infrastructure — from the time when many governments exercised monopolies over telecommunications networks and radio stations and television channels, and some of which are still controlled by licensing regimes in many parts of the world. The advent of the Internet as a network of largely privately-owned networks, with a large part of people’s daily interactions being on servers owned by private corporations, without licensing requirements in most parts of the world, further reduces the opportunities for direct state censorship. States desirous of censoring material must, for it to be effective, seek the cooperation of these private entities, as police action is far less likely to be effective. Equally, the spectre of private censorship becomes omnipresent online since private corporations — especially the ones with millions of users — now often have the regulatory reach of state, but very often do not have restrictions placed upon them in the form of the freedom of expression or privacy rights that we often enjoy against the state.

The case studies that are contained in the rest of this book bring to the forefront the legal hurdles we currently encounter and must cross if we are to ever effectively safeguard ourselves against the harms of censorship.

Brief Chronology of Direct State Censorship of the Internet in India

India has had censorship of the Internet since the middle of the nineteen nineties.¹ At that time the only way of accessing the Internet was through Videsh Sanchar Nigam Limited (VSNL), the state monopoly internet service provider (ISP). During this period, access to websites of certain voice-over-IP (VoIP) providers (like Vocaltec, Net2Phone, etc.) was blocked alongside VoIP itself, leading to the first case filed on Internet censorship in Indian courts, in 1998.² VSNL argued that it had the authority to block access to regulate Internet telephony and block access to VoIP provider websites under the Indian Telegraph Act, 1885.³ It is unclear what statutory powers it was using to block access to the website of the hacker collective Cult of the Dead Cow in 1998,⁴ or to block access to the website of one of Pakistan’s leading newspapers, Dawn, during the Kargil war between Pakistan and India in 1999,⁵ even though it denied having taken such an action.⁶ In 2000, while a VSNL employee initially admitted having blocked e-mails from and to the ‘Middle East Socialist Network’ (MESN) mailing list,⁷ in an affidavit to the court in the Arun Mehta case, VSNL denied ever having blocked access to the eGroups.com website (which hosted the archives of the MESN list), but noted that “in view of the problem of spamming on the internet, temporarily the e-mail operations of egroups.com was stopped,” and later restored.⁸

Since 2000, the licence — provided under the Indian Telegraph Act — that ISPs in India must enter into to provide Internet services includes clauses that require the ISP to take measures to prevent “objectionable” content and “anti-national activities”,⁹ and take down websites that unspecified “enforcement agencies” ask them to remove.¹⁰ The Indian Telegraph Act is still in force, and it is still unclear what provision in it empowers the government to block websites.

Transparency around Website Blocking

In 2011, I submitted a right to information (RTI) request about what websites had been blocked since the new law came into force. The government of India’s reply to this RTI request was groundbreaking in a way, since it was the first time the government had provided an official list of URLs that it had blocked in India.³² Even the publication of this list did not result in much mainstream media coverage. All eleven blocked URLs had been ordered to be blocked by courts — constituting direct state regulation — however the courts and the attorneys had done an amazingly shoddy job: some of the URLs were for Google search results rather than the web pages themselves, the whole of the Indymedia portals for San Francisco and Arizona instead of just the pages the High Court found to be defamatory, and similarly all of Webs.com was blocked instead of a specific URL. The rationale for most of these was not clear even after circumventing the blocks and visiting those pages which continued to exist.

Later, in May 2012, the Internet collective Anonymous released a list of URLs blocked by Reliance Communications.³³ Since none of the blocks that CERT-In has ordered has been published by them, whether in the Gazette of India or on their website, this was the first time that a list of all websites blocked in India — and not just under the IT Act, since 2008 — was available in the public domain. Going through the list the same evening they were released, I found, as alleged by Anonymous, that there were more than a dozen links — mostly alluding to the involvement of a senior Reliance official, who was then in prison, in a telecommunications spectrum corruption scandal — that were blocked if one used a Reliance Communications connection but not on other ISPs.³⁴ However, by the next morning those links were working on Reliance networks too. This leak, even though it was reported on a prominent independent political blog, as also a blog run by a mainstream news magazine, did not get much traction in the wider mainstream media.

Apart from detailing private censorship, that leak also made it clear that BuyDomains, Fabulous Domains and Sedo.co.uk — domain name marketplaces — were being blocked on orders of the Indian government. What is less clear is whether the government had any legal authority to do so.³⁵

By far the largest category of blocked websites is entertainment and files-sharing websites. One set of those (104 domains) were blocked by an interim order of the Calcutta High Court.³⁶ The rest of them, however, were blocked by private requests by entertainment companies subsequent to generic “John Doe” orders from courts. There is a strong case to be made that this private extension of John Doe orders is unlawful and far beyond the scope of the orders themselves.³⁷ Further, even if one were to argue that they were lawful, there are numerous clear examples of indefensible overreach — where sites that are clearly not engaging in copyright infringement of music or films have been blocked.³⁸ Thus, it is plain to see that perfectly lawful and non-infringing websites are being censored in the guise of copyright infringement.

Importantly, these private blocks defeat currently-available means of transparency. Thanks to the Right to Information Act, 2005, the list of blocked websites under section 69A is available to the public upon request, even if the IT Act does not require proactive publication of the list, as it should. This provides the opportunity for a constant vigil against direct state-ordered censorship, even if through less-than-ideal means. However, a right to information request would not cover the sites that were blocked through private requests by entertainment companies. For access to those, we had to count on leaks to the press and civil society organizations by industry insiders and unauthorized access to ISP servers.

So far in this brief history, I’ve covered mostly direct state censorship, and one instance of state-allowed private censorship undertaken by some entertainment companies. In the next section, I will deal with the regulations made under the intermediary liability law in India, and focus on how those regulations greatly expand the scope of state-enabled private censorship, and undermine the possibility of challenging censorship.

Indirect Censorship: Intermediary Liability

In India, section 79 of the IT Act is the provision that provides Internet intermediaries³⁹ protection from liability for their users’ actions. Before the 2008 amendment, it covered “network service providers”, but then was expanded and re-drafted quite extensively,⁴⁰ with the jailing of Avnish Bajaj, the CEO of Bazee.com, — for one of its users offering an illegally-obtained pornographic CD for sale — being a major impetus for the provision’s amendment.

On February 7th 2011, the Department of Information Technology under the Ministry of Communications and Information Technology published draft regulations under section 70 on its website (initially titled “Information Technology (Due Diligence Observed by Intermediaries Guidelines) Rules, 2011” and “Information Technology (Guidelines for Cyber Cafe) Rules, 2011”) in exercise of the powers conferred by section 87(2)(zg), IT Act, read with section 79(2). Comments were invited from the public till February 25, 2011.

The Centre for Internet and Society submitted comments noting, inter alia, that the proposed rules were ultra vires the parent statute, and that some of the provisions of the draft Intermediaries Guidelines rules were plainly unconstitutional since they enabled the government to require Internet intermediaries to remove content on grounds that were far beyond those contained in Article 19(2) of the Constitution of India,⁴¹ while the draft Cyber Cafe rules greatly encroached upon the right to privacy.⁴² At that point, the draft of the Intermediaries Guidelines rules allowed only an “authority mandated under the law for the time being in force” to complain to intermediaries and require them to “remove access” to the offending material.

The government not only ignored the problems that were highlighted by civil society organizations, but introduced far greater ones. The final version of the Information Technology (Intermediary Guidelines) Rules (hereinafter ‘Intermediary Guidelines’), which have been in effect since April 2011, give not only an “authority mandated under the law”, but all “affected persons”⁴³ great powers to censor the Internet!

Conclusion

While the concerns with the Intermediary Guidelines were covered by the press, they mostly ignored the nuances involved in it — such as the fact that it did not require the complainee to be told, that it could lead to undetectable and invisible censorship, and other such procedural matters.⁶⁰ By contrast, the publicity provided to instances of direct state censorship has been far greater. The four instances where the press provided the most coverage for Internet censorship over the past few years were instances of direct state censorship, state-directed private censorship, and state-enabled private censorship.

Example 1: In December 2011, the Minister for Communications and Information Technology told Indiatimes, Google, Yahoo, Facebook, and Microsoft, in closed-door meetings that they should come up with a code of self-regulation using which they should pre-screen certain kinds of objectionable content, noting that the government would come up with a ‘self-regulation’ code for them if they didn’t do so on their own.⁶¹ This was leaked to the New York Times, and that led to constant coverage that month.⁶²

Example 2: In December 2011, a journalist named Vinay Rai filed a criminal complaint against Google, Yahoo, Microsoft, and a number of other companies for hosting content that “promoted enmity between communities”, as well as for hosting obscene content,⁶³ while former journalist named Aijaz Ashraf Qasmi filed a civil lawsuit against them. These two court cases, following soon on the heels of the government’s attempts to muzzle those companies, allegedly for similar kinds of content, led to a great deal of mainstream media coverage.⁶⁴

Example 3: In the aftermath of the violence that erupted in southern Assam in July and August 2012,⁶⁵ and a rumour-fuelled panic that spread in Bangalore and elsewhere as to the physical safety of residents from the north-east of India,⁶⁶ the government of India placed curbs on SMSes, and over a period of four days ordered 309 specific items (those being URLs, Twitter accounts, HTML tags,⁶⁷ blog posts, blogs, and a handful of websites) to be blocked.⁶⁸ This was the first time that such a large number of websites and web pages were ordered to be blocked by the government, and this led to plenty of mainstream news media coverage.

Example 4: In September 2012, a little-known cartoonist named Aseem Trivedi was charged under multiple statutes, including under section 66A of the IT Act, and arrested, followed two months later by the arrest of two girls from Mumbai for posting and ‘liking’ a comment on Facebook about the city-wide bandh (general strike) observed in Mumbai after the politician Bal Thackeray’s death.⁶⁹ These outrageous arrests in September and November 2012 led to widespread condemnation of section 66A of the IT Act, which penalizes the sending of offensive messages through communication services.⁷⁰

Instances of state-directed censorship, like those mentioned above, which can be observed much more easily, and conform to more traditional ideas of what constitutes censorship, get a fair amount of media coverage than state-enabled private censorship through the Intermediary Guidelines or through copyright infringement claims by entertainment companies, though in actuality the latter might be far more widespread than the former and affect much greater amounts of speech, and may affect far greater range of speech.

While private actors have always been involved in speech regulation, the centrality of the role that they now occupy is something new, but is also inevitable. Those who believe that all speech regulation must be done by the state, following due process, are trying to prop up the procedural standards of a bygone world. Instead of harking back to the procedures that exist for censorship of books, and demanding that they be followed in all cases of online content, we must find new ways of countering the complete lack of transparency and accountability of private actors. We must find a way to appropriately extend the civil and political rights we enjoy against the state — which were writ when the state was the predominant actor in the silencing of speech — to act as guarantees against certain kinds of private action as well. And central to that endeavour would be the shining of light and removing the cloak of invisibility under which most forms of private censorship, whether conducted at the behest of governments, subsequent to enabling laws, or otherwise, occur. Not doing so immediately will undoubtedly make it more difficult to counter this brave new world of invisible censorship that we are transitioning into.

Independence of international news services

The largest news agencies, newspapers, and news channels have all been governed by different models although there has been a trend towards state-owned international media since 2006 and online volunteer news collectives [see Pluralism: Global]. Among the models are Agence France-Presse, which is owned by the State and media professionals, the Spanish-language Agencia EFE that is privately owned, Associated Press collectively owned by its subscribers, Bloomberg privately owned, Reuters privately owned (since 2008 as part of Thomson Reuters), and Xinhua which is state-owned. Different degrees of editorial independence from owners have been operational within these media companies. Within the state-owned global news broadcasters – the larger ones being Al Arabiya, Al Jazeera, BBC (via a trust), CCTV, China Radio International, Deutsche Welle, France24, RT (formerly Russia Today), and Voice of America (VOA) – there have been different frameworks both legally and in practice, as well as by platform. Given this range, broad trends have been difficult to pinpoint, although it has been observed that the performance of international broadcasting has been related to complexities of foreign policy and their relationship to the geopolitical environment. As such, some international and foreign broadcasting has tended to reflect the interests of the respective governments. The reliance on government funding by many international broadcasters has raised questions about their ability to provide neutral and impartial reporting. Public institutions with multi-year charters and ownership by an independent trust (BBC, SVT) have helped insulate some global media outlets from governmental pressures.¹ In another case, outlets have been legally guaranteed editorial independence and statutes have set out the government’s policies conduct, with audiences perceiving the news as credible. Audience perceptions are important if a foreign news service is to be seen as credible, and this factor has been seen to counterbalance some of the influence from governments. At different times, some international state-owned networks have been accused of avoiding stories that are critical of their backing State; however, there has been a lack of comparative studies in this area, and it is difficult to confirm alleged bias with detailed evidence, nor is there sufficient material to suggest specific trends.

Internationally, political influence and commercial pressure have been seen at times also to have compromised independence in both domestic and international media. Corporate ownership, as distinct from state-ownership and strict government regulation, is not a guarantee of editorial independence. A 2011 study by two scholars at New York University of public media in 14 developed countries suggested that commercial pressures have been far more deleterious there than partisan political meddling. Commercial pressures have impacted also on state-owned media, encouraging these outlets to appeal to a middle-class urban audience, potentially at the expense of public service values and rural, poor or minority audiences. Private news broadcasters (both international and domestic) especially have turned to entertainment programming to boost ratings.

Global media independence of a news organization has been impacted upon by the relatively recent demise of many existing media business models, leading to a re-evaluation across the industry of where the ‘value’ in media content lies and an increase in government development programmes, corporate benefactors and other ‘special interests’ funding or cross-funding media content. This kind of funding has by no means been uncommon historically in international broadcasting, and it may influence actual media content, framing, and the ‘red lines’ that reporters feel unable to cross.

While larger media companies have relied on attracting their own advertisers online, many online intermediaries like Google Ads now exist, which effectively has meant that small online media companies can get by without having to have dedicated facilities. While a large advertiser can threaten independent reporting by a news organization, the advertiser loses this leverage if the online news service uses an intermediary; but this has also meant that the organization concerned can no longer control what advertisements are shown.

Professionalism and the broader media ecosystem

International governmental and non-governmental organizations have generally played an important role in media research, bringing attention to issues, and providing support, training, etc. Their activities contribute to a global environment for independence. The International Federation of Journalists, a global federation of journalists’ trade unions, has been one of the more influential professional bodies, with more than 600,000 members.² While some transnational press ethics bodies have existed, such as the World Association of Press Councils and the Organization of News Ombudsmen (which concerns self-regulation at an enterprise-level), they have not appeared to exert much influence over the larger media.³ Most of the more influential international and regional institutions dedicated to journalists and journalism have continued to be headquartered either in Europe or North America. In the global internet intermediary space, a voluntary embryonic self-regulatory system has emerged in the form of the Global Network Initiative.⁴ Another relevant development that appears indicative of the trend towards self-regulation at this level was the European Commission’s 2013 publication ICT Sector Guide on Implementing the UN Guiding Principles on Business and Human Rights. The majority of the large media donors have also continued to be located in the West, and were, more often than not, governments.

While there have been a number of codes of ethics for journalists that aspire to universal status, and even some for ‘online journalists’ and bloggers, most transnational news agencies and broadcasters have had their own codes. Notably among the larger news agencies and broadcasters, Al Arabiya, CCTV, CNN, and Xinhua have not appeared to publish specific codes of ethics online.

Over the past six years, one notable trend has been the increase in online training material for journalism. For instance, UNESCO has published extensive guides for journalists on a range of topics from conflict-sensitive reporting to investigative reporting and produced online curricula, including a model curricula for journalism education and an online media and information literacy course. In 2013, UNESCO began exploring with ORBICOM, the network of UNESCO chairs in communication, a Global Initiative for Excellence in Journalism Education, as a framework to group together and deepen international work in this area. The BBC has launched initiatives to provide journalism and social media training to members of local communities, while its ‘College of Journalism’ website includes resources for aspiring citizen journalists. Such initiatives add to the online materials and courses offered by the Centre for International Media Assistance, the European Journalism Centre, International Center for Journalists (ICFJ) Anywhere, Knight Center for Journalism in the Americas, Poynter Online, and others.

Teil 1

Es gab Berichte darüber, dass die indische Regierung seit 2009 die Einrichtung eines zentralisierten Überwachungssystems (CMS) vorantreibt”¹. Aber das hat keine große Debatte über Privatsphäre ausgelöst. Selbst Nachrichten über die Inbetriebnahme des CMS im April 2013 haben keine große Aufmerksamkeit erfahren. Nachdem ein Kollege am CIS darüber geschrieben hat und es von Human Rights Watch scharf kritisiert wurde”², begannen mehr Reporter, es als Problem für die Privatsphäre anzuerkennen. Aber es waren letztlich die Enthüllungen von Edward Snowden, die dazu geführt haben, dass die Menschen, zumindest für einen kurzen Zeitraum, aufgehorcht haben und sich gefragt haben: Wie funktionieren Indiens Geheimdienste? Und haben wir ähnliche Systeme zur Massenüberwachung?

Teil2

History of spam in India

Spam was not a major problem in India till the introduction of TCP/IP based connectivity. The usual problem in those days was that slow UUCP links to Indian universities would often be saturated by just a few students exchanging email and usenet posts with their friends in the United States.

The first usenet and email spam campaigns worldwide date back to 1994-95⁶, more or less coinciding with the introduction of TCP/IP internet connectivity in India, and the consequent widespread availability of email addresses from local as well as foreign email providers.

This was a particularly bad situation for Indian Internet users, who were faced with the problem of downloading large amounts of spam on slow, noisy and expensive dialup lines.

Indian ISPs initially operated usenet servers to provide NNTP access, but quickly withdrew such services and, in some cases, firewalled access to the NNTP port 119 to block usenet access from their service, because of massive amounts of abuse originated by a unknown but probably New Delhi based Internet vandal and author of Usenet and email spam software, who was only known by the moniker “HipCrime ”⁷.

HipCrime’s activities⁸, such as forged cancel floods and “sporgeries”⁹ (spam forgeries) with steganographic / Markov Chain generated random gibberish content caused widespread havoc on usenet newsgroups in the mid to late 1990s. This led to several Usenet operators refusing to peer (that is, exchange traffic) with NNTP servers operated by Indian providers, or in some cases, even refusing to accept usenet posts originating from IP addresses controlled by Indian ISPs VSNL and SILNET – a so-called “UDP” or “Usenet Death Penalty”¹⁰.

Indian email marketers quickly saw the economies of scale they could achieve with email spam, Commercial spam originating from India was then, and still is, primarily used to advertise legitimate goods and services, advertising everything from used computers to real estate and holiday timeshares.

Spamming Indian users was quite simple in the early days of dialup connectivity in India, as the monopoly ISP VSNL had set up an “allusers” alias¹¹ that mapped to all users on their service. This “allusers” alias existed, presumably from the beginning of VSNL’s service, till 1998, when it was disabled following a hoax email sent out to all VSNL users by an unknown student, offering VSNL TCP/IP accounts at INR 2000 (about USD 34 at current exchange rates) for 500 hours, compared to the actual cost of a 500 hour account at that time – INR 10,000 (USD 165) – which, at the time, was a whole month’s salary for a fresh graduate entering an engineering or computer related job.

By the time the allusers account was disabled, it, and other vulnerabilities in VSNL’s email system, had allowed various spammers to download a copy of their complete user database. A wide variety of indigenously produced bulk mailers¹² and email harvesters¹³ were released within a few years of the VSNL POP3/SMTP based email service. Several of these included filter avoidance techniques such as “direct to MX mail relay”, which would avoid detection by using a mailserver installed on the spammer’s desktop rather than routing mail through the ISP’s smtp servers, as well as header forgery and the use of open mail relays and HTTP and SOCKS proxies to anonymize the spammer’s identity.

Ironically, such software was generally used to advertise legitimate goods and services, with the spam including the advertiser’s full contact information including phone numbers as well as postal, website and email addresses.

These bulk mailers’ features, as well as their intended use of spamming violated the acceptable use policies of the mostly US based providers the bulk mail vendors’ and their customers’ websites were hosted on, which lead to several bulk mailer vendor and customer websites getting suspended¹⁴ by their providers. Additionally, marketers hiring a spammer to promote their product faced vitriolic hostility from internet users, who would often call or email them back with abusive comments, when they were not using free tools such as Spamcop¹⁵ to report the spam to the spam vendor and spammers’ ISPs.

This mirrored a growing trend among US-based Internet users, so that US spammers increasingly began to include a so- called “Murkowski Disclaimer”¹⁶ or “Murk” for short, at the bottom of their spam emails, citing a bill that was introduced in the 105th US congress by Senator Frank Murkowski to claim that their emails should not be considered spam.

In accordance with Bill S.1618 Title III passed by the 105th U. S. Congress, this letter can not be considered spam as long as we include: (1) Contact information and (2) a way to be removed from future mailings.

Indian bulk mailers introduced a variant of this disclaimer that they began to include in their spam templates, and text like this was found in Indian origin spam till the mid- to late-2000s:

Since India has no anti-spamming law,¹⁷ we follow the US directive passed in Bill.1618 Title III by the 105th US Congress, which states that mail cannot be considered spam if it contains contact information.

Not too surprisingly, the presence of such a disclaimer became a popular rule deployed in various spam filters, which would classify any email containing such a disclaimer, or even the URL of Senator Murkowski’s website, as spam. For example, early versions of the popular open source filter, SpamAssassin, had a rule called “MURKOWSKI_CRUFT”¹⁸.

Indian unsolicited email marketing has evolved since then, with several local¹⁹ vendors²⁰ allegedly providing “snowshoe” spam services that use a succession of randomized domains and continuously switch from one cheap colocation service to another, as and when their existing IP addresses and domains get listed in widely used DNS block lists such as Spamhaus²¹ and SURBL²², or suspended by their providers.

Even legitimate Indian email marketers face spam related issues due to a widespread lack of awareness of industry best practices²³, as well as a reluctance to audit paying customers’ mailing lists, let alone suspend service to a paying customer for spamming. The same issues – lack of awareness of best practices²⁴ and a reluctance to penalize paying customers, have plagued local ISPs, for whom the effect of a DNS blocklist or ISP listing their IP space may actually last long after the spammer that caused the issue has been removed. Large, legitimate Indian ISPs and online marketers are members of nationwide industry associations such as ISPAI²⁵ and IAMAI²⁶, which are working on promoting best practices among their members. Some Indian ISPs and marketers are also joining the broader community of email marketers in international industry associations such as M3AAWG²⁷, and/or participating in M3AAWG’s India outreach²⁸ initiatives.

Additionally, several best practice documents published by industry associations such as M3AAWG²⁹, as well as international organizations such as the OECD³⁰, London Action Plan³¹ (in association with CAUCE and M3AAWG), APECTEL (in association with the OECD)³² and ITU³³, are widely available online.

The challenge remains – as it does around the world, for multistakeholder cooperation between governments, Internet service providers, email marketers and the business community to work together and put in place on the ground implementations of these best practices, suitably customized to suit varying local conditions.

Malware, hacker wars and cybercrime

An increasing number of viruses originating in South Asia began to emerge, beginning with the first known PC virus, the fully stealthed “Brain”³⁴ written by two Pakistani brothers Basit and Amjad Alvi³⁵ in January 1986. In May 1990, the first Indian virus “Happy Birthday Joshi”³⁶ was discovered. Both these viruses were mostly harmless with data loss, if any, being entirely accidental. Brain did no intentional damage beyond making an infected PC run slowly, and Joshi was a harmless “joke” that did not do much more than make infected PC users wish its creator, Manav Joshi, a happy birthday. The Joshi virus actually prevented PCs that it infected from being infected with the much more damaging “Stoned”³⁷ virus, which was also prevalent on floppy discs circulating in India at the time.

The first well publicized instance in India of the potential damage caused by cybercrime was in 1998, when members of an anti-nuclear collective of hackers called milw0rm³⁸ compromised servers belonging to the Bhabha Atomic Research Centre (BARC), and downloaded classified documents about India’s nuclear weapons program, some pages of which they published along with a detailed description of the method they used to break into BARC’s servers. The milw0rm crew was apparently later approached by a terrorist calling himself Khalid Ibrahim³⁹.

With an active hacker community in India and Pakistan, and with a decades old enmity between the two countries dating back to from when they were partitioned from colonial India when it became independent in 1947, it was not long before, in 2002, the first hostile virus targeted at Pakistan was released by a group of Indian hackers and spread worldwide - a worm called “Yaha”⁴⁰, which was sent out as spam that pretended to offer you a free screensaver, and would rebroadcast itself from infected machines.

Pakistani government websites and the Karachi stock exchange were severely affected by DoS attacks triggered by this worm, and Yaha variants were, in 2002, consistently on the worldwide top 10 virus charts by volume. A Belgian hacker, in fact, released a counter-worm called “Yahasux”⁴¹, which spread by much the same method and would remove the Yaha worm on any PC that it infected.

Malware with political or geostrategic goals is extremely common in the region, with hackers from different countries being accused, and trading mutual accusations of installing malware on computers owned by government agencies⁴², industries⁴³⁴⁴ and religious or politically sensitive groups⁴⁵.

There are also reports of the Indian government recruiting a “cyber army”⁴⁶ to breach systems in hostile countries, and promising immunity against prosecution to volunteer hackers hired to do so, and sponsoring a hacking contest⁴⁷ with cash awards for breaking into the command and control server of a hostile Advanced Persistent Threat that was targeted at Indian government agencies.

Under normal conditions, this would be immediately seen as unethical and would be widely condemned. However, the situation is much more complicated, given similar policies adopted by other countries, including the alleged use of malware to damage critical infrastructure in hostile countries, such as nuclear power plants⁴⁸ and water utility companies⁴⁹. The difference between state and non-state actors is much thinner in online cyberattacks. Further, plausible deniability is much easier to achieve, and much more difficult to trace back and attribute to a government source, than when a regime uses non state actors (such as civilian armed militant groups and terrorist splinter cells) for a physical attack on a hostile country’s soil and citizens.

On the surface, there is not much difference between recruiting a civilian militant group armed with army surplus weaponry, and recruiting a group of independent hackers driven by patriotic or monetary considerations, whose only weapons are computers and the Internet. The latter is much easier to achieve, and much more difficult to defend against. Digging deeper, the differences are in the targeted nature of the attack, the executive control and chain of command over the attackers, and the avoidance of harm to civilians and innocent parties. The first two are easy enough to achieve, but on the Internet, the third – avoidance of collateral damage – is extremely difficult if not impossible.

A lot of malware is hosted on compromised servers that have other innocent users on them. Other malware is hosted on sites that have lots of legitimate users, but are also lax in enforcing their acceptable use policies against Internet abuse. Taking down such resources can have, and has had, significant amounts of collateral damage⁵⁰. Attacks targeted at critical infrastructure such as electricity and water utility plants can cause radioactive incidents or floods if the malware goes out of control, or spread into the wild and affect utilities in countries the worm was never targeted at in the first place⁵¹. The situation becomes even more precarious when the country adopting such tactics has millions of malware infected machines and poorly secured government and critical infrastructure within its own borders, making it vulnerable to retaliatory or first strike cyberattacks.

The malware threat to India is exacerbated by the fact that a large number of PCs in India use old and unsupported operating system versions, and frequently use pirated software and operating systems. This threat, coupled with poor implementation of security architecture and policies at ISPs, and a rapid growth in India’s broadband penetration, has led to India being listed by the widely used Spamhaus CBL⁵² blocklist as the world #1, ahead of China and Iran, in terms of the amount of malware infected devices as well as virus-generated spam. This is based on the absolute number of infected IPs, and countries in the CBL statistics page⁵³ that have a far lower number of blocked IP addresses may emit much more spam per infected IP. When measured on a pure volume basis, India moves down to #11 in the list⁵⁴ and #13 based on the number of infections per capita⁵⁵.

This may be due to a wide variety of reasons - local ISPs not implementing port 25 filtering on their dynamic IP addresses and reassigning IP addresses frequently with short lease times, ISPs providing relatively slower connectivity (such as older 2G cellular networks in small town and rural India) The graphs on the next page are provided courtesy of the Spamhaus CBL.

Crime and Punishment

The Information Technology Act, a law based primarily on the UNCITRAL Model Law on Electronic Commerce was passed by the Indian legislature in 2000. While that statute had no provisions directly relating to spam, it did have provisions on hacking and on ’damage to computer, computer system, etc.’ that were remarkably broad.

Section 66 of the IT Act 2000, a criminal provision relating to ‘hacking’, provided that any person who ‘diminishes [any information residing on a computer resource’s] value or utility or affects it injuriously by any means, commits hack’. Further, Section 43 of the Act provided that a person who unauthorizedly ‘disrupts or causes disruption of any computer, computer system or computer network’ is liable under that provision, with no definition having been provided of what would constitute a ‘disruption’. These provisions, which could potentially be stretched to include spam, have never, at the time of writing, been tested against spam. In 2005, efforts were underway to overhaul the Information Technology Act, and to shift its focus from being mainly a law on e-commerce and digital signatures to including many aspects of online crime. An ‘Expert Committee’ was constituted, which in August 2005 proposed amendments to the Information Technology Act. The committee did not propose any amendments specifically on spam, despite there having been software industry representation on the committee. It did however propose that the extant Section 66, which provided for the criminal offence of ‘diminishing the value’ of any information residing on a computer resource be replaced by another similar to the extant Section 43. Based in part on the recommendations of the Expert Committee, in 2006 the government introduced a bill amending the Information Technology Act. The Parliamentary Standing Committee reviewing that bill noted that:

While examining the Information Technology (Amendment) Bill, 2006, the Committee were apprised by the industry representatives/legal experts that ‘spam’ or the issue of receiving unwanted and unwarranted e-mails have not been addressed under the proposed amendments. In the above context, the Committee asked whether it would not be prudent to incorporate specific provisions in the proposed law to protect the e-mail account holders from unwarranted mails. In reply, the Department of Information Technology stated that Sub-Section (b) of Section 66A and Clause (i) of Section 43 of the IT Act addressed the issues pertaining to spam. As a close scrutiny of the above said two Sections revealed that the issue of spam had not been adequately covered, the Committee in evidence desired to know how could the menace of spam be appropriately tackled with. In response, the Secretary, DIT replied that unwarranted e-mails could be generated from anywhere in the world.

The sections that the Department of Information Technology was referring to — Sections 66A (b) and 43(i) — had been newly introduced in the amending bill, and they read as follows:

43. If any person without permission of the owner or any other person who is in-charge of a computer, computer system or computer network —

1. destroys, deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means, he shall be liable to pay damages by way of compensation not exceeding one crore⁵⁶ rupees to the person so affected.

and

66A. Any person who sends, by means of a computer resource or a communication device, —

2. any content 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 use of such computer resource or a communication device, shall be punishable with imprisonment for a term which may extend to two years and with fine.

Apparently in response to the Standing Committee’s comment that “the issue of spam had not been adequately covered”, the government, when introducing the Information Technology (Amendment) Bill, 2008 added a new subclause (c) to Section 66A, and increased the maximum punishment to three years:

66A. Any person who sends, by means of a computer resource or a communication device, —

3. 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, shall be punishable with imprisonment for a term which may extend to three years and with fine.

The terms “electronic mail” and “electronic mail message” were defined in such a manner as to include all electronic communications and not just those that happen over SMTP, which we normally refer to as e-mail.

The flaws of covering spam with the above provision are obvious. The generally agreed-upon characteristics of spam include that it be (i) unsolicited, and (ii) sent in bulk⁵⁷. Less- agreed upon characteristics that are sometimes associated with spam include that it be (i) commercial, and (ii) anonymous⁵⁸.

However, Section 66A(c) does not address any of those characteristics, and instead focuses on a message having been sent for the purpose of “causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages”. Very few spam e-mails are sent with any of those as a purpose. Most are sent with the purpose of direct marketing, to defraud people of money, and various other purposes that the law does not address.

The elements of Section 66A(c) are disjunctive, (that is, because they use ‘or’, any of them is sufficient to constitute an offence) and not conjunctive (using ‘and’ to ensure that all the elements in the section need to be satisfied). This leaves people who send individual, one to one email that is seen as annoying or inconvenient potentially liable to a heavy fine and a prison term of upto three years. Thus, this provision is undoubtedly unconstitutional.⁵⁹

In fact, the provision has never been used for prosecution of spam, while it has been prolifically used for what can be termed suppression of political and free speech. People recently arrested under this provision include a college professor who received and forwarded an email with a cartoon of a chief minister⁶⁰ and two young women who questioned, on their facebook pages, the shutdown of the city of Mumbai after the recent death of a regional politician⁶¹. Charges filed against the two young women⁶² and the professors⁶³ were subsequently dropped. It is also proving to be popular among campaigners for women’s rights as a means of attacking sexist remarks online⁶⁴.

All in all, the supposed anti-spam provision in the Indian law does not appear to cover spam, but is overbroad and subject to abuse that goes against the original intent of the provision.

Interestingly, in November 2012, a legislator from Odisha, Baijayant Panda, moved a private member’s bill to repeal the extant Section 66A,⁶⁵ and replace it with a provision much more narrowly targeted at spam:

66A. Any person who sends, by means of a computer resource or a communication device,- a. any unsolicited commercial electronic message; or b. any commercial electronic message where the the identity of the person on whose behalf the communication has been sent has been disguised or concealed, or where a valid address to which the recipient of the communication may send a request that such communications cease has not been provided, shall be liable to a penalty not exceeding one crore rupees.

The Telecom Regulatory Authority of India (TRAI) has sought to tackle SMS spam and unsolicited telemarketing through its regulatory powers, rather than using the Information Technology Act.

TRAI has used multiple means to deter SMS spam and unsolicited telemarketing, including mandatory registration for telemarketing and SMS marketing – which includes provisions requiring marketers to respect a nationwide “Do Not Call” list, the Telecom Commercial Communications Customer Preference Portal (NCCP)⁶⁶. TRAI additionally approaches this from a pricing perspective, levying higher termination charges for ‘transactional SMSes’ to raise the costs of bulk SMS and make it uneconomical to send unsolicited SMS campaigns.

Recent TRAI regulations⁶⁷ provide strong disincentives to all players in the unsolicited telemarketing and bulk SMS ecosystem, from telecom operators who structure bulk SMS plans that are heavily abused by marketers, to telemarketers as well as the advertisers who hire them for spam campaigns.

TRAI will, going forward, levy a fine of five thousand rupees per complaint, for successive incidents of spam SMS originating from bulk SMS plans allotted to unregistered telemarkters. In addition, all telephone numbers allocated to both the telemarketer as well as the advertiser that hired the telemarketer are subject to disconnection, in an attempt to target the widespread use of throwaway prepaid phone numbers in telemarketing and SMS campaigns.

TRAI earlier attempted to enforce a blanket limit the number of SMSes that could be sent each day, which was halted by the courts stepping in to disallow such a restriction⁶⁸.

While the telecom regulator has, over a period of years, been able to come upon a reasonably functional solution against SMS spam, there still continue to be no useful legislative or regulatory provisions against email spam, and substantial work is required on enforcement against other forms of cybercrime.

Cross border mechanisms for Indian regulators and law enforcement to deal with their foreign counterparts on cybercrime prosecutions are limited.

Though India is not currently a member of the Budapest Convention on Cybercrime⁶⁹, India currently has Mutual Legal Assistance Treaties (MLATs) with thirty countries⁷⁰. These are, in general, limited by a requirement for dual criminality (where the request must be on a matter that is a crime under the laws of both the requestor country and the country from which legal assistance is requested).

However, it is not unknown for information to be requested through an MLAT⁷¹, particularly from US based messaging and social networking providers, in cases where political or other speech that may fall under US First Amendment protections is sought to be prosecuted.

Such requests have been routinely made, and rejected in the past, and more importantly, are a drain on already scarce resources that might be better focused on cross border cybercrime and spam related prosecutions. Clarifying the current lacunae in the Indian IT act (supra) will go a long way towards remedying this situation.

Acknowledgment

Suresh Ramasubramanian thanks his fellow moderators of the India-GII mailing list, Arun Mehta, Vickram Crishna and Udhay Shankar for reviewing and fact checking the section on Internet history in India. He also thanks the staff of CIS India for their reviewing and commenting on the paper, and in particular, Pranesh Prakash of CIS India for consenting to act as a co-author.

Independence of International News Services

The largest news agencies, newspapers, and news channels are all governed by different models although there has been a trend towards state-owned international media since 2006² and online volunteer news collectives [see Pluralism:Global]. Agence-France Presse is state-owned, Reuters is privately owned (since 2008 as part of Thomson Reuters), Associated Press is collectively owned by its subscribers, Agencia EFE is privately owned, Bloomberg is privately owned, and Xinhua is state-owned. Different degrees of editorial independence from owners are operational within these media companies. Within the state-owned global news broadcasters — the larger ones being BBC, CCTV, China Radio International, China Russia Today, Voice of America, Al Arabiya, Al Jazeera, Deutsche Welle, and France24 — there are different frameworks both legally and in practice, as well as by platform.³ Given this, broad trends are difficult to pinpoint, although it has been observed that the performance of international broadcasting is related to complexities of foreign policy and their relationship to the current geopolitical environment.⁴ As such, Chinese foreign broadcasting reflects the geopolitical interests of the Chinese government, Al Jazeera has given Qatar a more prominent voice in global policy arenas, while Voice of America (VOA) continues to advance the geopolitical interests of the United States.⁵

It is almost inevitable that the government funding received by many international broadcasters has caused some to question their ability to provide neutral and impartial reporting.⁶ Public institutions with multi-year charters (BBC, SVT) and ownership by an independent trust (SVT) help insulate state-owned media outlets from governmental pressures.⁷ Another case is the VOA. This broadcaster is required by statute to engage in ‘clear and effective presentation of the policies of the United States Government and responsible discussion and opinion on those policies, including editorials […] which present the views of the United States Government.’⁸ At the same time, VOA is also legally guaranteed editorial independence,⁹ and one study has found the broadcaster to be a credible source of news in its Asian news broadcast.¹⁰ This study went on to point out that audience perceptions of objectivity are important for a foreign news service to be seen as credible, and that this may help counter interference from governments. At different times, international state-owned networks have been accused of being uncritical of their backing state (including Al Jazeera, BBC, CCTV, and Russia Today); however, there is a lack of good comparative studies in this area, and it is therefore difficult to confirm alleged bias with detailed evidence, nor is there any material to suggest any specific trends.

Separate from the issue of editorial independence, although with a bearing on it, the finances of state-owned international broadcasters are often tied to the foreign policy objectives of the state. The interdependence of funding for foreign language broadcasts and foreign policy objectives can be seen from the cuts faced by Voice of America¹¹, the BBC's World Service¹², and Radio Netherlands¹³ in the past decade which have led to many languages being dropped at the same time that Arabic-language news services were launched by those and other governments, most of these in the past six years.¹⁴ Meanwhile Iran and Qatar have launched English-language news stations and several global broadcasters started news services in Spanish in same period.¹⁵

Political influence and commercial pressure also compromise independence in both local and international media, and thus corporate ownership as distinct from state-ownership and strict government regulation is not a guarantee of press freedom or editorial independence.¹⁶ A study of public media in 14 democratic and developed states suggests that commercial pressures have been far more deleterious than partisan political meddling.¹⁷ Commercial pressures have impacted also on state-owned media, encouraging these outlets to appeal to a broad audience at the expense of public service values and rural, poor or minority audiences.¹⁸ Especially private news broadcasters (both international and domestic) have turned to entertainment programming to boost ratings.¹⁹

Funding models impact on the financial independence of a news organization.²⁰ The relatively recent demise of many existing media business models has led to a re-evaluation across the industry of where the ‘value’ in media content lies and an increase in government development programs, corporate benefactors and other ‘special interests’ funding or cross-funding media content.²¹ This kind of funding is historically by no means uncommon in international broadcasting, and it may influence actual media content, framing, and the ‘red lines’ which reporters feel unable to cross.²² While larger media companies rely on attracting their own advertisers online, many online intermediaries like Google Ads exist which effectively mean that small online media companies can get by without having to do so. While a large advertiser can threaten independent reporting by a news broadcaster, the advertiser no longer has such powers if the online news service uses an intermediary like Google Ads; but this also means that the media house can no longer control what advertisements are shown.

Organizational ecosystem

International organizations normally play an important role in research, bringing attention to issues, providing support, training, etc. The predominant way these organizations exert influence appears to be through pedagogy.

Most of the more important international and regional institutions dedicated to journalists and journalism continue to be headquartered either in Europe or the United States of America. The majority of the large media donors continue to be located in the West, and are, more often than not, governments.²³ The International Federation of Journalists is a global union federation of journalists' trade unions, and is one of the more influential bodies, with more than 600,000 members. While some transnational press ethics bodies exist, such as the World Association of Press Councils and the Organization of News Ombudsmen, they do not possess much influence over the larger media. In the global internet intermediary space, a voluntary embryonic self-regulatory system has emerged in the form of the Global Network Initiative. Another relevant development is the publication in 2013 by the European Commission of the “ICT Sector Guide on Implementing the UN Guiding Principles on Business and Human Rights”.

While there are a number of codes of ethics for journalists and even some for ‘online journalists’ and bloggers, most transnational news agencies and broadcasters have their own codes. Notably among the larger new agencies and broadcasters, CNN, Xinhua, and CCTV do not appear to publish specific code of ethics online.

Over the past six years, one notable trend is the increase in online training material for journalism. For instance, the BBC has now launched initiatives to provide journalism and social media training to members of local communities, while its 'College of Journalism' website includes resources for the aspiring citizen journalists,²⁴ adding to the online materials and courses offered by ICFJ Anywhere, Poynter Online, Centre for International Media Assistance, European Journalism Centre, the Global Forum for Media Development, Knight Center for Journalism in the Americas, and others. In 2013, UNESCO began exploring a Global Initiative for Excellence in Journalism Education as a framework to group together and deepen its international work in this area.

Structural Issues

The systematic study of pan-regional and transnational news media outlets task is now more difficult due to the breakdown of traditional barriers to the dissemination of news. While before the advent of the Internet, it would have been comparatively easier to study international newswire services and satellite news channels, given the growth of the Internet it has become more difficult to separate 'pan-regional and transnational media outlets' from others. While a few years ago, ‘global’ or ‘transnational’ would have been identified primarily by geographic reach of a channel/newspaper/news agency, etc, now it is defined more by the cross-national and cross-regional focus and the linguistic reach of the content. As an example, according to a study performed by the Pew Research Center's Project for Excellence in Journalism, RT (formerly Russia Today) was the most popular news distributor on YouTube over a period of 15 months from January 2011 to March 2012, managing to supplant more well-established like the BBC, Deutsche Welles, and Voice of America.

While some of the changes cannot yet be called trends, but consolidation and the increase in size of those agencies offering of news as part of a financial package is noticeable, with Reuters merging with Thomson in 2008, and the financial services company Bloomberg increasing its original news gathering as well as the expansion of Dow Jones. There is also an increase in the influence of relatively newer entrants like Telesur, Al Jazeera, RT, CCTV, and CNC World, while the older, traditional state-backed broadcasters like VOA and BBC World Service (Heil Alan Jr., 2011; Voice of America, 2013; BBC, 2011) have been cutting staff and languages, while still broadcasting in far more languages than any of their competitors. One possible reason for this is that newer entrants like Al Jazeera and RT aggressively using social media to establish themselves, and are often succeeding against their larger competitors. Al Jazeera, for instance, licenses many of its broadcast-quality videos, high-resolution photos, and blog articles under a Creative Commons licence, allowing people to re-use them without requiring permission, with only attribution being required.

As noted above, an important trend is the usage of online social media platforms by news agencies and transnational news outlets. As on June 6, 2013, RT is the most popular news broadcaster on YouTube with 865,644 subscribers. (The BBC doesn’t have a dedicated news channel on YouTube, though its general programming attracts more than 1 million subscribers.) Importantly, the most popular social media accounts are the BBC’s Breaking News account on Twitter, which has 6,053,980 followers, Xinhua Viewpoint, which has 5,413,895 fans on Sina Weibo (with CCTV News having 4,040,000 fans), Al Jazeera Arabic, which has 3,543,400 ‘likes’ on Facebook, and on YouTube there is a clear lead by RT. This is leading to ‘disintermediation’ of news agencies, some of whom are increasingly, as the social media statistics of Reuters and AP show, communicating directly with readers and viewers (who become their subscribers) by using social media platforms as intermediaries in addition to their traditional subscribers who are newspapers, television, and radio broadcasters, whose role as intermediaries is on the decline. This ‘disintermediation’ through the introduction of online intermediaries also creates new potential gatekeepers, each with their own standards (expressed in ‘terms of use’) for what kinds of speech are acceptable.

Because of the Internet, the existence of community/volunteer-run global media outlets is now a possibility, though it is not a dominant practice currently and the landscape is still dominated by corporate and state media. While the Independent Media Centre (IndyMedia) did not become as large or as effective a network as its founders had hoped, it did provide the impetus for much participatory journalism efforts, including Global Voices and Wikinews, which aim to be truly global in their reach. There is also a trend towards co-optation of such participatory news reporting into traditional corporate media, as seen by iReport.com by CNN, in which citizen journalism becomes corporate-mediated (Kperogi, 2011). The usage by journalists of Twitter and other platforms to query readers about stories led to the observation that “news is no longer gathered exclusively by reporters and turned into a story but emerges from an ecosystem in which journalists, sources, readers and viewers exchange information.” (The Economist, 2011).

Organizational ecosystem

[A list of media organizations and associations is provided in Appendix 1.]

The list provided in Appendix 1 is only an attempt at indexing the most important international and regional institutions dedicated to journalists and journalism. Thus national-level organizations (Albanian Media Institute, Mediacentar Sarajevo, Bahrain Center for Human Rights, etc.), have been left out. However, a quick inspection of the international organizations listed will show that they are mostly headquartered either in Europe or the United States of America, and the majority of the large donors are also located in the West, and are, more often than not, Western governments. This has not changed much in the recent past, since most of the funding has gone to create and strengthen national-level organizations.

These international organizations normally play an important role in research, bringing attention to issues, providing support, training, etc., but seem to have little norm-setting powers on issues relating to the profession. The predominant way these organizations exert influence appears to be through pedagogy and in the kind of work that UNESCO does.

While some transnational press ethics bodies (such as the World Association of Press Councils and the Organization of News Ombudsmen) exist, they do not possess much influence over the larger press. The International Federation of Journalists is a global union federation of journalists' trade unions, and is one of the more influential bodies, with more than 600,000 members.

While there are a number of codes of ethics for journalists, including the International Principles of Professional Ethics in Journalism prepared under the auspices of Unesco, and even some for ‘online journalists’ and bloggers, most transnational news agencies and broadcasters have their own codes. Notably among the larger new agencies and broadcasters, CNN, Xinhua, and CCTV don’t seem to publish specific code of ethics online.

Recommendations

Unesco could:

• convene a meeting on code of ethics for bloggers and online journalists
• collate and popularise different online training courses in multiples languages for journalists through its website

Appendix 1

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Sedition and social harmony

The Indian Penal Code criminalises sedition; speech intended to cause enmity between communities; speech intended to ‘outrage religious feelings of any class’; selling, singing or displaying anything obscene; and defamation. It also prohibits ‘causing someone, by words or gestures, to believe they’re the target of divine displeasure’. Each of these provisions has been misused, as there are indeed many catagories of speech that are not seen as being protected under thw US constitution, and even speech that is protected may be restrained in a number of ways.

In recent years, sedition charges have been brought against human rights activists (Binayak Sen and Arundhati Roy), journalists (Seema Azad), cartoonists (Aseem Trivedi) and protesters (thousands of villagers in Koodankulam and neighbouring villages who demonstrated against a nuclear reactor in their area). It is usually the higher judiciary that dismisses such cases, while the lower judiciary seems to be supplicant to the bizarre claims of government, the police and complainants. Similarly, the higher judiciary has had to intervene in cases where books and films have been banned for ‘causing enmity between communities’ or for intentionally hurting the sentiments of a religious group.

Of the last six books banned by the Maharashtra government, all but one (RV Bhasin’s Islam: A Concept of Political World Invasion by Muslims) have been overturned by the Mumbai High Court. In one case, the court criticised the government for using a violent protest (organised by the Sambhaji Brigade, one of many right-wing political groups that frequently stage demonstrations) as reason enough for banning an academic book on the Maratha king Shivaji. In its decision, the judge pointed out that it is the government’s job to provide protection against such violence. Given India’s history of communal violence there is indeed a need for the law to address incitement to violence – but these laws should be employed at the actual time of incitement, not after the violence has already taken place. But, as recent events have shown, the government is willing to censor ‘harmful’ books and films and less likely to take action against individuals who incite violence during demonstrations.

Online speech and the law

There are regular calls for the government to introduce legislation that deals specifically with online behaviour, despite the fact that the vast majority of the laws regarding sedition and social harmony apply online as well as offline. One example is the recent move to introduce amendments to the Indecent Representation of Women Act (1986) so that it applies to ‘audiovisual media and material in electronic form’.

But the government’s attempts to control online speech began long before the introduction of any internet-specific legislation. Indeed, when state-monopoly internet service provider VSNL censored content, it did so under the terms of a contract it had entered with its customers, not under any law. In 1998, a mailing list called Middle East Socialist Network was blocked on national security grounds. In 1999, Pakistani newspaper Dawn’s website was blocked during the Kargil conflict. In both of the latter cases, the government relied on the Indian Telegraph Act (1885) to justify its actions, though that act contains no explicit provisions for such censorship.

In 2000, the Information Technology (IT) Act was passed and the Indian Computer Emergency Response Team (CERT-In) was created, which (unlawfully) assumed the role of official online censor. Importantly, while the IT Act did make the publication of obscene content online illegal (though it already was under the IPC), it did not grant permission for authorities to block websites. Despite this, an executive order passed on 27 February 2003 granted CERT-In the power to block. Had this been challenged in a court, it may well have been deemed unconstitutional since, in the absence of a statutory law, an executive order cannot reverse the freedom granted under Article 19. And although the telecommunications sector in India was being liberalised around this time, as part of their licence agreements, all internet service providers (ISPs) have to agree to block links upon being requested to do so by the government. In 2008, when the IT Act was amended, it clearly stated that the government can block websites not only when it deems it necessary to do so but also when it is deemed expedient in relation to matters of public interest, national security and with regard to maintaining friendly relations with foreign states. The power to block does not, however, extend to obscenity or defamation offences.

At the same time, further categories of speech crimes were introduced, along with other new offences, including the electronic delivery of ‘offensive messages through communication services’ or anything ‘for the purpose of causing annoyance or inconvenience’. This has often been abused, including by the chief minister of West Bengal, who issued proceedings against a professor for forwarding an email containing a cartoon that mocked him. Under this draconian and unconstitutional provision, the police do not need an arrest warrant and the punishment can be as much as three years’ imprisonment, longer than even the punishment for causing death by negligence. The amendment also granted the government extensive powers to monitor and intercept online speech and data traffic, greatly extending the powers provided under colonial laws such as the Indian Telegraph Act (1885).

As legislation has been introduced, the penalties for online offences have increased significantly. For example, the penalty for the first-time publication of an obscene ebook is up to five years in prison and a 1,000,000 rupee (US$18,800) fine, compared with two years’ imprisonment and a 2,000 rupee (US$38) fine as stipulated in the IPC for publishing that same material in print version. New laws introduced in 2009 pertain specifically to blocking (section 69a), interception, decryption and monitoring (69 and 69b) and are in accordance with the constitution. However, the amendments were brought in without any attempt at transparency or accountability.

Power in the hands of intermediaries

In April 2011, despite critical submissions received during its public consultation, the government announced new ‘intermediary guidelines’ and ‘cyber cafe rules’, both of which have adverse effects on freedom of expression.

The rules, which were issued by the Department of Information and Technology (DIT), grant not only the government but citizens significant powers to censor the internet. They require all intermediaries – companies that handle content, including web hosts, telecom companies, domain name providers and other such intermediaries – to remove ‘disparaging’ content that could ‘harm minors in any way’. They prohibit everything from jokes (if the person sharing the joke does not own copyright to it) to anything that is disparaging. In a recent case, in December 2011, thousands of people used the hashtag #=IdiotKapilSibal on Twitter to criticise the minister of communications and information technology, Kapil Sibal, who had requested that officials from Google, Microsoft, Yahoo! and Facebook in India pre-screen online content.

These guidelines and rules are badly drafted and unconstitutional, as they go beyond the limits allowed under Article 19 in the constitution. And do so in a manner that lacks any semblance of due process and fairness. They are inconsistent with offline laws, too: for example, because the guidelines also refer to gambling, the government of Sikkim can publish advertisements for its PlayWin lottery in newspapers but not online.

It’s far easier to persuade officials to remove online material than it is to persuade them to remove books from a bookstore or artwork from a gallery. Police are only empowered to seize books if the government or a court has been persuaded that it violates a law and issues such an order. This fact is always recorded, in government or legal records, police files or in the press. By contrast, web content can be removed on the basis of one email complaint; intermediaries are required to ‘disable’ the relevant content within 36 hours of the complaint. A court order is not required, nor is there a requirement to notify the owner of the content that a complaint has been received or that material has been removed. The effect is that of almost invisible censorship.

This assertion – that it only takes one complaint – may seem far-fetched. But a researcher from the Centre for Internet and Society sent complaints to several intermediaries on a number of occasions, resulting in content being removed in a majority of cases. If intermediaries choose not to take action, they risk losing their immunity against punishment for content. In essence, the law is the equivalent of punishing a post office for the letters that people send via the postal service.

The amendments were brought in without any attempt at transparency or accountability

In 1984, Indira Gandhi was forced to sue Salman Rushdie for defamation in a London court in order to ensure one sentence was expurgated from his novel Midnight’s Children. Today Gandhi wouldn’t need to win a lawsuit against publishers. She would merely have to send a complaint to websites selling the book and it would have to be removed from sale. It is easier to block Akbari.in – the online newspaper run by Vinay Rai, who filed a criminal complaint against multiple internet companies in December 2011 for all manner of materials – than it is to prevent its print publication.

There is no penalty for frivolous complaints, such as those sent by researchers from the Centre for Internet and Society, nor is there any requirement for records to be kept of who has removed what. Such great powers of censorship without any penalties for abuse of these powers are a sure-fire way of moving towards greater intolerance, with the internet – that republic of opinions and expressions – being a casualty.

Biographies

Pranesh Prakash is programme manager at the Centre for Internet and Society in Bangalore. Part of this article appeared in a blog by the author on the centre’s website, cis-india.org, in January 2012

Article first published online: November 30, 2012

Issue published: December 2012

I. Can foreign works be copyrighted works?

Section 13(2) of the Indian Copyright Act states that insofar as published works go, copyright only subsists if “the work is first published in India” or if the work is by an Indian citizen. It does except the application of this section to all those works to which ss.40 and 41 of the Act apply. Section 40 allows for the provisions of the Act to be extended to foreign works and foreign authors by special order of the government. The government is required to do so, being a member of the Berne Convention, the Universal Copyright Convention as well as the TRIPS Agreement, and has fulfilled its requirement via International Copyright Order, the latest such order having been issued in 1999.

Thus, for purposes of our law, we protect not only Indian works, but foreign works as well. It expressly places foreign authors and works published in a foreign country in the same shoes as Indian authors and works published in India, respectively.

II. Import of copyrighted works

Thus having established that foreign books enjoy protection under Indian law, we now turn to the question of whether import of foreign works into India is permissible under Indian law. There is no provision of the Copyright Act by which the owner or licensee of copyright given the exclusive right to import a copyrighted work into India. Section 51(b)(iv) does, however, make it illegal to import infringing copies of a work.¹ It is clear that illegally published copies are infringing copies, and thus cannot be imported. But are legally published copies that are legally purchased outside of India also ‘infringing copies’ and is their import also prohibited by the section 51?

This question is laid out in :

We now arrive at one of the most difficult topics in copyright law. It is our ambition to expound this subject as clearly as possible but inevitably this involves exposing some troublesome problems which lurk not far beneath the surface. The basic idea is simple. It has long been the policy of copyright law in the UK and other countries which follow our system that as a rule, mere selling or other secondary dealings with articles manufactured in the home market shall not be treated as copyright infringement unless their marking was piratical in the first place. Further, it is policy that traders should be free to buy and sell goods without getting involved in copyright proceedings, so long as they do so in good faith. “Don’t deal in pirate copies where you can tell they are probably such” is a law anyone can understand. Dealing in pirate copies where you know or have reason to believe that they are such is called secondary infringement in contrast to primary infringement (e.g., manufacturing) where liability is strict.

*This idea works fine as long as one does not need to examine too closely what one means by pirate copies; it is usually pretty obvious. However, when it comes to parallel imports it is not so obvious, and one has to know precisely what is meant. It is plain that the test cannot be **whether the copy was made piratically in its country of origin because the copyright laws of foreign states are irrelevant so far as rights in the UK are concerned, and in some cases these laws may not even exist. Since foreign copyrights are separate and distinct rights, and since it is commonplace for these to be assigned so as to be exploited by different hands, it cannot matter whether a copy imported from Britannia was lawfully made in its country of origin; this principle has been recognized from an early date.”*

According to s.2(m) of the Act, a reproduction of a literary, dramatic, musical or artistic work , a copy of a film or sound recording is an ‘infringing copy’ “if such reproduction, copy or sound recording is made or imported in contravention of the provisions of this Act”. So s.2(m) does not clarify matters either, because it applies only to that importation that is “in contravention of the provisions of” the Copyright Act. So we look to s.14 which lays down the meaning of copyright and is read with s.51 when determining what does and does not constitute infringement. Nowhere in s.14 of the Act is a right to import granted to the copyright owner. However, s.14 does clearly lays down that insofar as literary, dramatic or musical works go, it is the copyright owner’s exclusive right “to issue copies of the work to the public not being copies already in circulation”. The explanation to this section goes to clarify that “for the purposes of this section, a copy which has been sold once shall be deemed to be a copy already in circulation.” What this means and how this has been construed by various courts shall be seen in the following sections.

III. Judicial history on importation

IV. Export of copyrighted works

Now that we have dealt with the traditionally contentious part on imports, we may now examine the rare, but even more contentious issue of exports. Barring a few exceptions, notably the United States, the copyright law in no country regulates exports. Even in the United States, s.602 of their Copyright Act regulates only the export of infringing copies (i.e., works that are ‘manufactured’ without the permission of the author), and not the export of legal copies. In India, though, there are two judgments of the Delhi High Court that seemingly make illegal export from India of legal copies of a copyrighted work. As one of these decisions is an ex parte order without any reasoning—indeed calling the reasoning “bare minimum” would be doing that phrase a disservice—we shall focus only on the other judgement: the one pronounced by Justice Manmohan Singh in John Wiley & Sons v. Prabhat Chander Kumar Jain.⁶

The facts of the judgment are rather simple. John Wiley & Sons Inc., based in New York, exclusively licensed the rights over certain books to Wiley India Pvt. Ltd. (all the other plaintiffs follow the same model, so we shall restrict ourselves to the case of the Wiley corporation). These books were sold at a reduced cost in the Indian market and were clearly labelled as being “Wiley Student Edition restricted for sale only in Bangladesh, Myanmar, India, Indonesia, Nepal, Pakistan, Philippines, Sri Lanka and Vietnam”. Another label on the same book read: “The book for sale only in the country to which first consigned by Wiley India Pvt. Ltd and may not be re-exported. For sale only in: Bangladesh, Myanmar, India, Indonesia, Nepal, Pakistan, Phillippines, Sri Lanka and Vietnam.”⁷ Quite clearly, John Wiley & Sons, being the owner of the rights, had given exclusive license to Wiley India Pvt. Ltd. to publish and print an English Language reprint edition only in the territories entailed in the agreement and not beyond that. Further, they wished to impose this restriction on all buyers of the book by way of that notice and attached conditionality, and thus prevent exports to the United States.

At this stage, it would do us well to dwell into the facts of the 1908 US Supreme Court case of Bobbs-Merrill Co. v. Straus.⁸ In this case, the plaintiff-appellant sold a copyrighted novel with a clear notice under the copyright notice stating that, “The price of this book at retail is $1 net. No dealer is licensed to sell it at a lower price, and a sale at a lower price will be treated as an infringement of the copyright”. Macy & Co., a famous retailer, purchased large lots of books both at wholesale prices and at retail prices, and re-sold the books to its customers at 89 cents a copy. This was quite clearly in violation of the condition imposed by the notice.

It may be seen that the facts in this case quite clearly mirror the fact situation in John Wiley & Sons v. Prabhat Chander Kumar Jain. It is only the nature of the conditionality that differentiates the two cases: in the one it was a restriction on price at which the book could be further sold, in the other it was a restriction on where the book could be further sold. How did the judge rule in Bobbs-Merrill Co. v. Strauss? The court ruled that it was on the record that Macy & Co. had knowledge of the notice. However, despite that, the notice was held not to be binding on Macy & Co. The court noted:

The precise question, therefore, in this case is, ‘Does the sole right to vend secure to the owner of the copyright the right, after a sale of the book to a purchaser, to restrict future sales of the book at retail, to the right to sell it at a certain price per copy, because of a notice in the book that a sale at a different price will be treated as an infringement, which notice has been brought home to one undertaking to sell for less than the named sum’? We do not think the statute can be given such a construction … In our view the copyright statutes, while protecting the owner of the copyright in his right to multiply and sell his production, do not create the right to impose, by notice, such as is disclosed in this case, a limitation at which the book shall be sold at retail by future purchasers, with whom there is no privity of contract … To add to the right of exclusive sale the authority to control all future retail sales, by a notice that such sales must be made at a fixed sum, would give a right not included in the terms of the statute, and, in our view, extend its operation, by construction, beyond its meaning, when interpreted with a view to ascertaining the legislative intent in its enactment.

This judgment proceeded on privity of contract, the factum of a sale having occurred, and created what is now known as the doctrine of first sale: an established principle that the exclusive right to sell, distribute, or circulate a copy of the copyrighted work exhausts the moment the item is placed into a stream of commerce through a sale. This can, of course, be contradicted if explicitly stated so in a statute.⁹ However, as we noted earlier, the Indian statute explicitly notes that the right to issue copies of a work to the public, guaranteed to the owner of the copyright over a literary, dramatic, or artistic work is restricted to copies not already in circulation. Thus it might seem to one to be quite clear how the court would in the John Wiley & Sons case. One would then be wrong.

In fact, Justice Manmohan Singh, in a very detailed and circuitous judgment, rules that the activity done by the defendant is a violation not of some implied contract between Wiley India Pvt. Ltd. And him, but that it constituted a violation of the Indian Copyright Act, and notably s.51 of the Copyright Act. How does he reach this conclusion?

His reasoning rests on 3 dubious pillars: 1) that the rights of the licensee are distinct from that of the owner, and that the former may get exhausted without affecting the latter; 2) that the licensee cannot pass on better title to those that buy from him than he himself has; 3) that sale or even offer for sale or taking of orders for sale are all forms of putting into circulation or issuance of copies.

First, through a close reading of the various provisions of the Copyright Act he notes that the Act creates a clear difference between the rights of the owner and the rights of the licensee (paras 47–50). He then finally comes to noting that, “A logical corollary drawn from above analysis which needs reiteration at this stage is that for the purposes of Section 51 which is in the preceding chapter, the term owner of the copyright does not include exclusive licensee. Thus, the rights of the owner although may include rights of the exclusive licensee but the court cannot read the term owner of the copyright as that of the exclusive licensee and their rights are different as per the allocation by the owner.” (para 62).

Thus, he establishes that some rights of the licensee may be extinguished (as per the doctrine of exhaustion) without extinguishing that same right of the owner. In other words, while the right of circulation of the licensee get exhausted, the right of circulation of the owner remains unaffected. Justice Singh doesn’t go into the implications of this, but there can be two ways of interpreting what this means. It could mean that by virtue of the circulation rights of the licensee getting exhausted, the circulation right of the owner gets exhausted in those nine countries for which the licensee had been granted rights of circulation. Else, it could mean that the exhaustion of the licensee’s circulation rights does not at all affect the owner’s circulation rights. This latter one is obviously an absurd idea, since that would, in all cases, leave the owner with a cause of action in case of all sales even when the owner is in India. Thus one is left considering the former the only logical meaning.

However, that this can’t possibly be right is demonstrated by the fact that this can easily be applied to an all-in-India transaction as well. Thus, for instance, the owner of rights can decide never to directly sell any book, but only allow its licensees to sell. Thus, it can contractually bind a licensee to sell only in Andhra Pradesh and hold that because of that license contract any buyer who buys from the Andhra Pradesh licensee and decides to re-sell to a second-hand bookstore in Karnataka is actually violating the terms of the license (because the circulation right gets extinguished only insofar as the licensee is concerned, and that license only allows sales in Andhra Pradesh).

That is obviously cannot be held to be the purpose of the law. Thus, the privity of the contract between the owner of the right and the licensee must be upheld and may not be held to bind a third party purchaser.

The second ground on which Justice Singh rules is on the general property law principle that a person cannot pass on a better title than she herself has. Thus, Justice Singh holds that when the licensee sells a book to a person, that person only receives as much of the title to that book that the licensee has. Thus, since the licensee only has title in the book insofar as those nine countries go, the person who buys that book cannot get better title.

The plain fault in this reasoning is the very founding basis of the doctrine of first sale: the differentiation between property rights in a copy of a book and the copyright in the book. No one has contended in this case that the transaction between the licensee and the book purchaser is not a sale. Once a sale happens, all property rights in that copy of the book are alienated to the book purchaser. It must be remembered that this transaction is not the case of the licensee sub-licensing the right to circulate the book. The licensee cannot sub-license to another party the right to sell the book in, say, Australia, because she doesn’t have that right in the first place. However in this case, the licensee is invoking the right to sell the book in India, and is not passing on that right. The right of a book buyer to re-sell comes from the statute—from the doctrine of first sale—and not from a passing on of that right from the licensee.

The last pillar of the judge’s reasoning is that the sale—or even offer for sale, or taking of orders for sale—of a book online are all forms of putting into circulation or issuance of copies. Section 40 does not work two ways. It only deems a foreign work “Indian”, and does not deem a sale in a foreign land the same as sale in India. Thus, even if we are to accept the other two pillars of Justice Singh’s reasoning, it is unclear how an offer made online to sell a book is equated to actually placing a book in circulation in India. How can an India law prohibit circulation on the streets of Bogotá? This is only possible if a separate right of export is recognized. But Justice Singh is extremely clear that he is not creating such a distinct right.

A notice to the buyer that re-exports are prohibited cannot be held to constitute a valid contract because the Transfer of Property Act clearly makes such a prohibition invalid (ss.10 and 11)—after all, it is a sale that takes place and not a license—as does the Copyright Act (s.14).

V. Amendment to Section 2(m)

There has been much controversy lately with some publishers trying to stop the government from amending s.2(m) of the Indian Copyright Act, clarifying that a parallel import will not be seen as an “infringing copy”. Some lawyers for the publishing industry have made the claim that allowing for parallel importation would legally allow for the exports of low-priced edition and overturn the basis of the Wiley judgment. This is false.

The amendment itself merely adds the following proviso at the end of s.2(m) (which itself defines what an “infringing copy” means):

Provided that a copy of a work published in any country outside India with the permission of the author of the work and imported from that country shall not be deemed to be an infringing copy.

It seems that this is in fact a provision introduced solely to clarify that this (i.e., following international exhaustion) is the position that India holds, and not to change the statute itself. It is merely to clarify that the courts have misread the provisions of the law, or that they have indeed not read the provisions of the law (as in the Eurokids* case).*

This provision will have no effect whatsoever on the Wiley ruling. While the Wiley ruling deserves to fail on its own merits, the reasoning in that case does not depend on whether we follow international or national exhaustion. Indeed, in para 104, the judge states:

As per my opinion, as the express provision for international exhaustion is absent in our Indian law, it would be appropriate to confine the applicability of the same to regional exhaustion. Be that as it may, in the present case, the circumstances do not even otherwise warrant this discussion as the rights if at all are exhausted are to the extent to which they are available with the licensees as the books are purchased from the exclusive licensees who have limited rights and not from the owner. [emphasis added] In these circumstances, the question of exhaustion of rights of owner in the copyright does not arise at all.

Thus the argument that following the principle of international exhaustion will upturn this judgment is faulty. Imports and exports are two distinct things. India’s following of the principle of ‘international exhaustion’ means that the right to first sale is exhausted in India, when the work is legally published* anywhere internationally (i.e., regardless of where that copyrighted work is legally published). The principle of international exhaustion doesn’t not exhaust the right of first sale internationally—the word ‘international’ is used to indicate where the publication has to take place for exhaustion to occur, and not where the exhaustion takes place. After all, Indian law on a matter cannot determine whether a book can or cannot be sold anywhere else in the world (which is precisely what it would do if it is to hold that rights are exhausted internationally by virtue of a book being printed in India).*

VI. Conclusion

I think the best way of concluding this are by quoting, in extenso, a passage from a book on the Indian intellectual property law by Prof. N.S. Gopalakrishnan and Dr. T.G. Agitha:

Under the Indian law there is no express provision recognizing the right of importation. This would in fact enable parallel importation of works. ‘Parallel importation’ means transportation of ‘legitimate’ goods which are available at a cheaper rate in one country by independent buyers (e.g., book sellers), for sale in another country. This could act as an effective check on creating monopoly in the market. Hence it is an important aspect to be borne in mind for a developing country like India. Since there is no international obligation against parallel importation, nothing prevented the court from taking the stand that unless there is an express provision conferring importation rights on the owner of copyright or prohibiting parallel importation, it need not be considered to be prohibited in India. It is pertinent to note that India supported the principle of international exhaustion and not the national exhaustion principle.¹⁰ However, it is submitted that the court [in Penguin Books Ltd. v. India Book Distributors] failed to take note of these aspects while deciding this case.”¹¹

One can only hope those words by these leading experts on IP law in India are paid heed to, and that the arguments otherwise will fail to convince both the government as well as future court decisions. [^1]: Programme Manager, Centre for Internet and Society.

I wish to apologize for the sparseness of legal and academic citations in this note, as well as the lack of proper structure and any leeways taken in argumentation. I had less than a week’s notice, and much less time, to work on this note. However, given the urgency of this issue and the importance of ensuring debate on the legal ramifications of the proposed amendment to s.2(m), this had to be written, and I hope readers will forgive me these failings.