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Category: Censorship

Metadata by TLF: Issue 19

Posted on December 21, 2020December 20, 2020 by Tech Law Forum NALSAR

Welcome to our fortnightly newsletter, where our reporters Harsh Jain and Harshita Lilani put together handpicked stories from the world of tech law! You can find other issues here.

Facebook Oversight Board picks the first batch of cases for review, adds additional matter from India

Facebook’s Oversight Board (OSB), an independent body set up to review moderation decisions by the company, chose 6 cases to review in the first week of December, 2020 from over 20,000 cases that were referred to it following the opening of user appeals in October 20, 2018. Five of the cases being considered by the OSB were referred via user appeals while the sixth arose from a reference by Facebook. A couple of days after announcing the first batch of cases, the OSB added an additional case for consideration from India. It involves a photo posted on a Facebook group with Hindi text describing the drawing a sword from its scabbard in response to “infidels” criticizing the prophet. The photo also included a logo with the words “Indian Muslims” in English. The accompanying text, also in English, includes hashtags calling President Emmanuel Macron of France “the devil” and calling for the boycott of French products.

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Metadata by TLF: Issue 15

Posted on July 20, 2020December 20, 2020 by Tech Law Forum @ NALSAR

Welcome to our fortnightly newsletter, where our reporters Kruttika Lokesh and Dhananjay Dhonchak put together handpicked stories from the world of tech law! You can find other issues here.

PIL filed seeking identities of content moderation officers

Former RSS ideologue K N Govindacharya filed a public-interest litigation in the High Court of Delhi to prompt Google, Twitter and Facebook to disclose identities of designated content moderation officers on the basis of the Information Technology Rules. In response, Google submitted that the officers worked with government authorities to remove illegal content. Govindacharya claimed that without disclosure of the officers’ identities, no mechanisms to enforce obligations could not be adequately instituted. However, Google responded by stating that revealing the identities of officers would jeopardize their capacity to work efficiently with the government, as they would be exposed to public scrutiny and criticism.

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Metadata by TLF: Issue 14

Posted on July 12, 2020December 20, 2020 by Tech Law Forum @ NALSAR

Welcome to our fortnightly newsletter, where our reporters Kruttika Lokesh and Dhananjay Dhonchak put together handpicked stories from the world of tech law! You can find other issues here.

India bans 59 Chinese Apps including Tik-Tok

The Ministry of Electronics and Information Technology announced in a press release on 29th June that it had invoked its powers under section 69A of the Information Technology Act to ban 59 Chinese applications. The Indian government cited ‘raging concerns on aspects relating to data security and safeguarding the privacy of 130 crore Indians’ as reasons behind the ban. The move comes after a border skirmish with China resulted in the deaths of 20 Indian soldiers. Regardless of the cybersecurity concerns cited in the press release, speculation remains rife over whether the ban was a retaliatory measure in light of the worsening geopolitical situation between India and China. India is a huge market for Chinese apps, particularly for the video-sharing platform Tik-Tok which had previously been banned in February 2019 for encouraging the spread of pornography and ‘cultural degradation’. The ban was ultimately lifted after assurances by Tik-Tok that it had the tools to censor explicit content. The current ban has been called a purely political decision and criticised for its procedural impropriety and its excessive restriction on dissemination of online content.

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Metadata by TLF: Issue 12

Posted on June 10, 2020December 20, 2020 by Tech Law Forum @ NALSAR

Welcome to our fortnightly newsletter, where our reporters Kruttika Lokesh and Dhananjay Dhonchak put together handpicked stories from the world of tech law! You can find other issues here.

Australian Court rules that media companies are liable for defamatory user comments

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Metadata by TLF: Issue 11

Posted on May 14, 2020December 20, 2020 by Tech Law Forum @ NALSAR

Welcome to our fortnightly newsletter, where our reporters Kruttika Lokesh and Dhananjay Dhonchak put together handpicked stories from the world of tech law! You can find other issues here.

Private firm blocked from buying “.org” domain

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Right to access Internet: An end to oppressive Internet shutdowns?

Posted on April 7, 2020April 29, 2020 by Tech Law Forum @ NALSAR

[This post has been authored by Mohd Rameez Raza (Faculty of Law, Integral University, Lucknow) and Raj Shekhar (NUSRL, Ranchi).]

The Internet is one of the most powerful instruments of the 21st century for increasing transparency in day to day working, access to information, and most important facilitating active citizen participation in building strong democratic societies. Relying on the same belief, the Kerala High Court, in its monumental, decision has held ‘Right to Internet Access’ as a fundamental right. Thus, making the right to have access to Internet part of ‘Right to Education’ as well as ‘Right to Privacy’ under Article 21 of the Constitution of India.

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Delhi HC’s order in Swami Ramdev v. Facebook: A hasty attempt to win the ‘Hare and Tortoise’ Race

Posted on January 6, 2020January 6, 2020 by Tech Law Forum @ NALSAR

This post has been authored by Aryan Babele, a final year student at Rajiv Gandhi National University of Law (RGNUL), Punjab and a Research Assistant at Medianama.

On 23rd October 2019, the Delhi HC delivered a judgment authorizing Indian courts to issue “global take down” orders to Internet intermediary platforms like Facebook, Google and Twitter for illegal content as uploaded, published and shared by users. The Delhi HC delivered the judgment on the plea filed by Baba Ramdev and Patanjali Ayurved Ltd. requesting the global takedown of certain videos which were alleged to be defamatory in nature.

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Legality of Linking Social Media Accounts to Aadhar

Posted on December 16, 2019November 1, 2020 by Tech Law Forum @ NALSAR

This post has been authored by Saara Mehta, a fifth year at the National Law Institute University, Bhopal. It discusses the legality of linking social media accounts to the government’s Aadhar scheme. 

On 20thAugust, 2019, the Attorney General of India, K.K. Venugopal, submitted to the Supreme Court that there was a need to link the social media profiles of users with their Aadhar numbers, and if required, have platforms like Facebook and WhatsApp share this number (which acts like a unique identity) with law enforcement agencies to help detect crimes. This, he argued, is needed to check fake news, defamatory articles, anti-national content, etc. This post aims to examine the legality of this potential move in the light of the Puttaswamy decisions, as well as the fundamental rights enshrined in Articles 19 and 21.

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Metadata by TLF: Issue 6

Posted on October 10, 2019December 20, 2020 by Tech Law Forum @ NALSAR

Welcome to our fortnightly newsletter, where our Editors put together handpicked stories from the world of tech law! You can find other issues here.

Delhi HC orders social media platforms to take down sexual harassment allegations against artist

The Delhi High Court ordered Facebook, Google and Instagram to remove search result, posts and any content containing allegations of sexual harassment against artist Subodh Gupta. These include blocking/removal of social media posts, articles and Google Search result links. The allegations were made about a year ago, by an unknown co-worker of Gupta on an anonymous Instagram account ‘Herdsceneand’. These allegations were also posted on Facebook and circulated by news reporting agencies. An aggrieved Subodh Gupta then filed a civil defamation suit, stating these allegations to be false and malicious. Noting the seriousness of the allegations, the Court passed an ex-parte order asking the Instagram account holder, Instagram, Facebook and Google to take down this content. The Court has now directed Facebook to produce the identity of the person behind the account ‘Herdsceneand’ in a sealed cover. 

Further Reading:

  1. Trisha Jalan, Right to be Forgotten: Delhi HC orders Google, Facebook to remove sexual harassment allegations against Subodh Gupta from search results, Medianama (1 October 2019).
  2. Akshita Saxen, Delhi HC Orders Facebook, Google To Take Down Posts Alleging Sexual Harassment by Artist Subodh Gupta [Read Order], LiveLaw.in (30 September 2019).
  3. Aditi Singh, Delhi HC now directs Facebook to reveal identity of person behind anonymous sexual harassment allegations against Subodh Gupta,  Bar & Bench (10 October 2019).
  4. The Wire Staff, Subodh Gupta Files Rs. 5-Crore Defamation Suit Against Anonymous Instagram Account, The Wire (1 October 2019)
  5. Dhananjay Mahapatra, ‘MeToo’ can’t become a ‘sullying you too’ campaign: Delhi HC, Times of India (17 May 2019).
  6. Devika Agarwal, What Does ‘Right to be Forgotten’ Mean in the Context of the #MeToo Campaign, Firstpost (19 June 2019).

Petition filed in Kerala High Court seeking a ban on ‘Telegram’

A student from National Law School of India, Bengaluru filed a petition in the Kerala high court seeking a ban on the mobile application – Telegram. The reason cited for this petition is that the app has no  checks and balances in place. There is no government regulation, no office in place and the lack of encryption keys ensures that the person sending the message can not be traced back. It was only in June this year that telegram refused to hand over the chat details of the ISIS module to the National Investigation Agency.  As compared to apps such as Watsapp, Telegram has a greater degree of secrecy. One of the features Telegram boasts of is the ‘secret chat’ version which notifies users if someone has taken a screenshot, disables the user from forwarding of messages etc. Further, there are fewer limits on the number of people who can join a channel and this makes moderation on the dissemination of information even more difficult. It is for this reason that telegram is dubbed as the ‘app of choice’ for many terrorists. It is also claimed that the app is used for transmitting vulgar and obscene content including child pornography. Several countries such as Russia and Indonesia have banned this app due to safety concerns. 

Further Reading:

  1. Soumya Tiwari, Petition in Kerala High Court seeks ban on Telegram, cites terrorism and child porn, Medianama (7 October 2019).
  2. Brenna Smith, Why India Should Worry About the Telegram App, Human Rights Centre (17 February 2019).
  3. Benjamin M., Why Are So Many Countries Banning Telegram?, Dogtown Media (11 May 2019).
  4. Vlad Savov, Russia’s Telegram ban is a big convoluted mess, The Verge (17 April 2018).
  5. Megha Mandavia, Kerala High Court seeks Centre’s views on plea to ban Telegram app, The Economic Times (4 October 2019). 
  6. Livelaw News Network, Telegram Promotes Child Pornography, Terrorism’ : Plea In Kerala HC Seeks Ban On Messaging App, Livelaw.in (2 October 2019).

ECJ rules that Facebook can be ordered to take down content globally

In a significant ruling, the European Court of Justice ruled that Facebook can be ordered to take down posts globally, and not just in the country that makes the request. It extends the reach of the EU’s internet-related laws beyond its own borders, and the decision cannot be appealed further. The ruling stemmed from a case involving defamatory comments posted on the platform about an Austrian politician, following which she demanded that Facebook erase the original comments worldwide and not just from the Austrian version worldwide. The decision raises the question of jurisdiction of EU laws, especially at a time when countries are outside the bloc are passing their own laws regulating the matter.

Further Reading:

  1. Adam Satariano, Facebook Can Be Forced to Delete Content Worldwide, E.U.’s Top Court Rules, The New York Times (3 October 2019).
  2. Chris Fox, Facebook can be ordered to remove posts worldwide, BBC News (3 October 2019).
  3. Makena Kelly, Facebook can be forced to remove content internationally, top EU court rules, The Verge (3 October 2019).
  4. Facebook must delete defamatory content worldwide if asked, DW (3 October 2019).

USA and Japan sign Digital Trade Agreement

The Digital Trade Agreement was signed by USA and Japan on October 7, 2019. The Agreement is an articulation of both the nations’ stance against data localization. The trade agreement cemented a cross-border data flow. Additionally, it allowed for open access to government data through Article 20. Articles 12 and 13 ensures no restrictions of electronic data across borders. Further, Article 7 ensures that there are no customs on digital products which are electronically transmitted. Neither country’s parties can be forced to share the source code while sharing the software during sale, distribution, etc. The first formal articulation of the free flow of digital information was seen in the Data Free Flow with Trust (DFFT), which was a key feature of the Osaka Declaration on Digital Economy. The agreement is in furtherance of the Trump administration’s to cement America’s standing as being tech-friendly, at a time when most other countries are introducing reforms to curb the practices of internet giants like Google and Facebook, and protect the rights of the consumers. American rules, such as Section 230 of the Communications Decency Act shields companies from any lawsuits related to content moderation. America, presently appears to hope that their permissive and liberal laws will become the framework for international laws. 

Further Reading:

  1.     Aditi Agarwal, USA, Japan sign Digital Trade Agreement, stand against data localisation, Medianama (9 October 2019).
  2.     U.S.-Japan Digital Trade Agreement Text, Office of the United States Trade Representative (7 October 2019).
  3.   Paul Wiseman, US signs limited deal with Japan on ag, digital trade,Washington Post (8 October 2019).
  4.   FACT SHEET U.S.-Japan Digital Trade Agreement, Office of the United States Trade Representative (7 October 2019).
  5. David McCabe and Ana Swanson, U.S. Using Trade Deals to Shield Tech Giants From Foreign Regulators, The New York Times (7 October 2019).

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Emergence of OTT Market in India: Regulatory and Censorship Issues

Posted on September 27, 2019 by Tech Law Forum NALSAR

This post has been authored by Gaurav Kumar, a 3rd year student at Dr. Ram Manhar Lohiya National Law University (RMLNLU), Lucknow. He is also a Contributing Editor at the RMLNLU Arbitration Law Blog.

The media industry in recent times is witnessing a revolution when it comes to censorship of streaming content. As compared to theatres it has become comparatively much easier for the web industry to dodge any moral scrutiny when releasing its work. While the release of the Narendra Modi biopic during the 2019 Lok Sabha Elections caused significant controversy, a web series on the same subject was allowed to air without any issues, though it was later removed by the Election Commission for having violated the Model Code of Conduct.

There have been many instances where the content of a web series has been objected to for promoting vulgarity, violence and attacking political and religious sentiments. The Delhi HC recently witnessed a PIL filed by an NGO called Justice for Rights Foundation seeking framing of guidelines to regulate the functioning of online media streaming platforms such as Netflix, Amazon and others alleging that they show unregulated, uncertified, and inappropriate content. However, the current situation indicates that content produced by such platforms continues to be outside the purview of censorship laws, thereby requiring a regulatory mechanism to balance out the conflicting views of the government, attempting to play a watchkeeping role and the advocates of creative and artistic freedom.

What are OTT platforms?

“Over-the-top (OTT)” is the buzz-word for services carried over networks that deliver value to customers without the involvement of a carrier service provider in the planning, selling, provisioning and servicing aspects. Essentially, the term refers to providing content over the internet unlike traditional media such as radio and cable TV.

The entertainment industry in recent times has gradually moved towards releasing content on streaming platforms such as Netflix and Amazon Prime. This is due to consumer preferences as expressed in a survey report by Mint and YouGov, which reveals millennials’ preference for online streaming as against cable TV. Another finding by Velocity MR expects the audience movement to reach 80% following the implementation of the new tariff regime for pay-television by TRAI, and the positive responses to series like Sacred Games and Mirzapur from critics and audience shows that quality of content is the key factor influencing the move to streaming services.

Considering its increasing popularity it becomes important to understand OTT with an Indian perspective.  In 2015, amid the burning debates of net neutrality, TRAI floated a Consultation Paper On Regulatory Framework for Over-the-top (OTT) services to “analyze the implications of the growth of OTTs”. In this paper it defined the term “OTT provider” as a “service provider which offers Information and Communication Technology (ICT) services but does not operate a network or lease capacity from a network operator.”. Instead, such providers rely on global internet and access network speeds ( to reach the user, thereby going “over-the-top” of a service provider’s network. Based on the kind of service they provide, there are three types of OTT apps:

  • Messaging and voice services;
  • Application ecosystems, linked to social networks, e-commerce; and
  • Video/audio content.

In November, 2018, TRAI came out with another consultation paper considering a “significant increase in adoption and usage” since its last paper. In order to bring clarity with regard to the understanding of OTT, chapter 2 of this Consultation Paper on Regulatory Framework for Over-The-Top (OTT) Communication Services discussed the definitions adopted for OTT in various jurisdictions. However, it failed to formulate a definition due to the lack of consensus at the global level. Moreover, the earlier definition of the 2015-Consultation paper, which has been reiterated in 2018, also appears to lose context because it was more oriented towards the telecom service providers.

TRAI’s approach while discussing OTT services has been to restrict itself to the telecom industry so as to address their complaints regarding interference by OTT services in the domain traditionally reserved for telecom service providers. Even though it includes “video content” as its third category, a lack of clarity for defining web series within the ambit of OTT in India is evident which explains the absence of a regulatory mechanism for the same.

Differences between OTT platforms and conventional media

Conventional media vests the broadcaster with the discretion to air particular content. The viewer in this case involves all age groups and classes who have no control over the content being broadcasted, as a result of which governmental authorities are in charge of determining whether particular content is suitable for being shown to the public. However, the emergence of streaming has enabled a switch to a more personalized platform that caters to individual consumers enabling them to decide for themselves own what they wish to watch, which completely removes the role of government discretion and intervention.

Although there exist rules and restrictions to regulate pay-television operators, they fail to put any checks and balances on the newly emerged online streaming platforms for the significant differences in their structure and technology. The individualized viewing experience that has come up with the OTT media channels has clearly reduced the amount of surveillance, any existing regulatory bodies could have, over these platforms.

Can OTT platforms be regulated using existing laws?

The censorship of films in India is governed by the Cinematograph Act of 1952, which lays down certain categories in order to certify the films which are to be exhibited. Cable Broadcast is governed by the Cable Television Networks (Regulation) Act, 1995 and Cable Television Networks Rules, 1994. The Cable TV rules explicitly lays down the program and advertising codes that need to be followed in every broadcast.

Although it can be argued that that online streaming of content can be treated like cable broadcast, this would fail to comply with the legal test when it comes to application of the statute to streaming platforms. Certification for cable television does not require a separate mechanism but rather is done by the Central Board of Film Certification itself, and the cable TV rules restrict any program from being carried over cable if it is in contravention of the provisions – specifically Rule 6(n) of the Cable TV Rules – of the Cinematograph Act.

The problem here arises when defining the category within which web series will fall under the existing laws. Under the Cable TV Act, cable service means “the transmission by cables of programs including re-transmission by cables of any broadcast television signals.”[1] Cable television network is defined as “any system consisting of a set of closed transmission paths and associated signal generation, control and distribution equipment, designed to provide cable service for reception by multiple subscribers.”[2] However, the mode of transmission for OTT platforms is substantially different insofar as the content travels through Internet service providers which are difficult to regulate given their expanding nature. This makes the existing broadcasting laws inapplicable to OTT services.

The future of the OTT market

Censorship has always prevailed in the Indian television and cinema industry. Despite accusation of moral policing the CBFC has continued to censor moves to bring them in line with its understanding of public morality. This involves issues of free speech and expression which has seen the courts get involved in these matters, adjudicating upon directions issued by the CBFC in various instances.

TRAI is presently assessing a consultation process to construct a framework to regulate online video streaming platforms like Netflix, Amazon Prime and Hotstar, etc. on requests made by some of the stakeholders of the film industry. Some major tycoons of the industry such as Netflix, Hotstar, Jio, Voot, Zee5, Arre, SonyLIV, ALT Balaji and Eros Now signed a self-censorship code that prohibits the over-the top (OTT) online video platforms from showing certain kinds of content and sets up a redressal mechanism for customer complaints. However, Amazon declined to sign this code, along with Facebook and Google, stating that the current rules are adequate.

Considering the fact that the OTT media industry is increasing rapidly, sooner or later it will require a regulatory body. Portals like Netflix are not even India-run, which furthers the socio-political pressure to scrutinize western content on the government. Moreover, the spread of this industry to the vulnerable group will always remain a concern. Another problem that might come up with time could be of regulating the prices of the services as seen recently with the Cable TV. This may, in fact, lead to conflicts between this emerging online streaming industry and the pre-existing cable TV industry. The courts are already being approached, against the violent and obscene content of some of the series, indicating the need of immediate attention of the legislature to take appropriate steps. The OTT-boom in the Indian entertainment market has certainly revolutionized the viewing experience but it has posed many questions and loopholes that need to be addressed in the near future.

[1] Section 2(b), Cable Television Networks (Regulation) Act, 1995.

[2] Section 2(c), Cable Television Networks (Regulation) Act, 1995.

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