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Human Rights Supreme Court of India

Intermediary liability – Has the Supreme Court missed an opportunity?

JSaiDeepakpicA lot has been written about the striking down of Section 66A of the Information Technology Act, 2000 (“IT Act”) since the Supreme Court’s verdict on March 24, and rightly so because, as Saikrishna Rajagopal – my senior in the profession – has put it, the provision was crying to be struck down given its draconian language and scope. While vagueness and unreasonableness were writ large on it, the other provision of the IT Act that was read down – Section 79(3)(b), whose constitutionality was challenged solely by the Internet and Mobile Association of India (“IAMAI”) in W.P. (C). 758/2014 in the same batch of petitions – required and still requires attention to nuance.

Not directly permissible under Section 66A? Should not be permitted indirectly under Section 79(3)

This provision, which applies to intermediaries, prior to being read down by the Court earlier this week, used intermediaries as buffers or proxies to impose content restrictions, whose nature and degree were constitutionally impermissible under Articles 19(2) and (6). The argument therefore, that had to be made on behalf of the intermediaries was that, if the nature of a direct restriction on an Internet user’s speech and expression through Section 66A is beyond the pale of Article 19(2) according to the Court, it stands to reason that similar restrictions imposed on a user indirectly through limitations on the content that an intermediary could host, is equally ultra vires Article 19(2). Simply stated, what was not directly permissible under Section 66A, could not be permitted indirectly through Section 79(3)(b) when viewed through the prism of Article 19(2) since the direct and immediate consequence of the restrictions under the latter too was the abridgment of rights under Article 19(1)(a).

To understand this proposition, let’s have a look at a few relevant provisions of the IT Act. The Act defines intermediaries as follows:

“Intermediary” with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web hosting service providers, search engines, online payment sites, online-auction sites, online market places and cyber cafes.

From the definition, it is clear that the services provided by intermediaries are critical to the use of the Internet, which as the Court rightly recognised in the judgment, has become a “market place of ideas”. The Internet has evolved to become the medium of choice for the expression of social, cultural, and political views outside of the mainstream media. Therefore, intermediaries who facilitate the use of the Internet must be treated as being integral to its ecosystem. Importantly, the Internet as we know it today is increasingly driven by content generated by users. The quantum and scale of such user-generated content has become monumental.

Sample these numbers- almost 360,000 tweets are published on Twitter, 30,000 edits are made to Wikipedia, Facebook users share 684,478 pieces of content and more than 100 hours of video are added to YouTube, all inside a minute. Given these numbers, it is practically impossible for intermediaries to pre-screen content or exercise any kind of ex ante editorial control. This also means that intermediaries cannot vouch for or take responsibility for the legality of the content being uploaded or transmitted or published on their platforms. And yet, in 2004, no less than the Chief Executive Officer of Baazee.com was arrested for an offer made by a user on that portal to sell an obscene video clip.

To address such instances and so that intermediaries are not held liable for the content created or published by their users, the definition of “intermediary” was amended through the Information Technology (Amendment) Act, 2008 to arrive at the current version of the definition. Importantly, Section 79 of the Act, which deals with immunity to intermediaries from liability for user-generated content, was amended to read as follows:

Section79_ITAct

The unreasonableness of ‘actual knowledge’

The provision challenged by IAMAI was Section 79(3)(b), which has two limbs. The first limb relates to a takedown notice issued by a private individual or party, whereas the second envisages a “takedown notice” issued by a government or its authorised agency. Both these limbs give rise to different but equally grave concerns.

The first limb uses the term ‘actual knowledge’, which, although borrowed from the EU Directive on E-Commerce 2000/31/EC dated June 8, 2000, has not been defined in the Indian statute. The legal and operational challenges with the use of the term ‘actual knowledge’ are clinically captured in a study undertaken in the European Union, which was brought to my attention by Rohit Bhat, a Supreme Court advocate, and which was placed before the Court. It notes that the term has been interpreted in quite a few jurisdictions to mean that intermediaries are expected to sit in judgment over the legality or unlawfulness of content impugned in a takedown notice. Clearly, in most instances, it is beyond the wherewithal of intermediaries to evaluate the legality of content. This establishes the unreasonableness of this mandate. Acknowledging the validity of this concern, the Supreme Court read down ‘actual knowledge’ to mean that there had to be a court order directing the intermediary to expeditiously remove or disable access to the impugned content.

The Article 19(2) limitation on the executive’s power to order takedown of content

The second limb of Section 79(3)(b) suffers from the vesting of curial powers in the executive to determine the illegality of content. Importantly, the use of the term “unlawful” in Section 79(3)(b) enlarges the scope of restrictions to beyond the specific categories identified in Article 19(2). In response to this concern, the Court drew parity between the central government’s power to block content under Section 69A and the executive’s power to direct the takedown of content under Section 79(3)(b) and implicitly noted that the limitation of Article 19(2) applied to the executive’s power under both Sections 69A and 79(3)(b). This is perhaps the most positive outcome on the issue of intermediary liability because by reading in Article 19(2) to restrictions imposed on intermediaries under Sections 69A and 79(3)(b), the Court has accepted the argument of the intermediaries that the test to be applied to any law is whether it directly impacts free speech, regardless of who such restrictions may be applied through, which was done through intermediaries in this case. Importantly, even if such restrictions are imposed in return for immunity to intermediaries under Section 79(1), such perceived largesse to intermediaries does not legitimise the transgression of the boundaries set by Article 19(2). This, the Court recognised with abundant clarity.

The problem of executive competence to issue takedown notices without effective appeal

Having said that, although the Court limited the scope of the application of Section 79(3)(b) by the executive to the categories under Article 19(2), the fundamental question of the executive’s constitutional competence to direct such takedown was not addressed, perhaps because the Court was already convinced of such competence under Section 69A. Even if that be the case, the de minimis procedural safeguards provided for under Section 69A and the blocking rules made under that provision, or under Sections 95 and 96 of the Code of Criminal Procedure, 1973 ought to have been applied to Section 79(3)(b) as well, since there is no opportunity for a hearing either for the intermediary or for the creator of the content prior to the issuance of such a notice, nor is there a provision for appeal under the Act from an executive notification directing takedown (except for a writ petition). Having duly taken note in detail of the procedure laid down for blocking under Section 69A, the Court ought to have applied the same yardstick and due process to Section 79(3)(b).

Section 79 was designed as a safe harbour provision - one that protected Internet service providers from the consequences of their users' actions. The March 24 judgment has made this safe harbour more meaningful.

Section 79 was designed as a safe harbour provision – one that protected Internet service providers from the consequences of their users’ actions. The March 24 judgment has made this safe harbour more meaningful.

Critically, in its analysis of Section 66A, having recognised the reader’s right to receive information or content, the Court ought to have taken note of the adverse effect of an executive takedown notice, albeit within the metes and bounds of Article 19(2), on the right of the Internet audience to receive content. Had these concerns been addressed, the judgment would have been far more comprehensive as far as Section 79(3)(b) is concerned and importantly, it would have made India a much more attractive destination for investments by intermediaries given the potential of the internet economy and e-commerce.

No discussion on Rules 3(2)(b) and 3(2)(f) of the Intermediaries Guidelines

Apart from Section 79(3)(b), the IAMAI, along with MouthShut.com, also challenged the Information Technology (Intermediaries guidelines) Rules. Specifically, Rule 3 was challenged since Rules 3(2)(b) and 3(2)(f) are near identical in their language to the various limbs of Section 66A, and Rule 3(4) prescribes the procedure for takedown mandated by Section 79(3)(b). To the extent that the Court has read down Rule 3(4) in the same manner and to the same extent as it did with Section 79(3)(b), it attracts the same pros and cons. As regards Rules 3(2)(b) and 3(2)(f), the Court could have struck them down for the very same reasons it has struck down Section 66A. However, there is no discussion on the content-related restrictions imposed by these sub-Rules despite them being extracted in Para 112 of the judgment. That said, since Section 66A has been struck down and since Section 79(3)(b) and Rule 3(4) have been encumbered by Article 19(2), effectively Rules 3(2)(b) and 3(2)(f) have also lost their potency.

Thus, although the Court has addressed some of the primary concerns of intermediaries relating to Section 79(3)(b) and made more meaningful the immunity granted to them under Section 79(1), the Court could have dealt with the other equally important concerns which have a concrete and critical bearing on the intermediary liability regime in India. Perhaps, the egregious language and consequence of Section 66A drew the Court’s attention much more than the layered issues posed by Section 79(3)(b) and the Intermediary Rules. After all, out of 122 pages of the judgment, 109 pages have been devoted to Section 66A and a like provision of the Kerala State Police Act. Only paragraphs 112 to 118 deal with the issue of intermediary liability. Paragraph 119 contains the Court’s conclusion.

This is not to deny that the judgment is a welcome one and is expected to further the democratisation of the Internet in a tangible manner. However, given the opportunity that these writ petitions represented in undertaking a comprehensive overhaul of the IT Act on a range of related issues, each of which has a critical bearing on freedom of speech and expression on the Internet, it appears that the Supreme Court has passed up a wonderful opportunity. One wonders whether such an opportunity will present itself again.

J. Sai Deepak, an engineer-turned-litigator, is a Senior Associate in the litigation team of Saikrishna & Associates. He is @jsaideepak on Twitter and the founder of “The Demanding Mistress” blawg. He was part of the team that represented a consortium of Internet intermediaries, namely the Internet and Mobile Association of India, in the Supreme Court of India in W.P.(C) 758/2014 which challenged Section 79(3)(b) and the Intermediary rules. Saikrishna Rajagopal of Saikrishna & Associates argued the petition. All opinions expressed above are academic and those of J. Sai Deepak.

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Human Rights Supreme Court of India

On Shreya Singhal: Section 66A is too broad, vague, and will chill free speech

GautamBhatia_SupremeCourtofIndiajpgIn the second half of December 2014, the Supreme Court began to hear a series of challenges to various provisions of the Information Technology Act of 2008 (“IT Act”). Hearings will commence again when the Court reopens in January after the winter break. The batch of petitions, clubbed under Shreya Singhal v. Union of India, impugn – inter alia – the constitutional validity of Section 66A of the IT Act.

Section 66A has attained a degree of notoriety in recent times, having been used to arrest people for posting (and liking) Facebook comments, for critical political speech, and so on. Section 66A is largely borrowed from the English Communications Act (the scope of which has been severely curtailed after allegations of abuse), and was originally intended to tackle spam and online harassment. It hardly bears repeating that its implementation has gone far beyond its objective. Beyond poor implementation, however, there is a strong case for the Court to hold at least part of Section 66A unconstitutional, on the ground that it violates the freedom of speech guarantee under Article 19(1)(a) of the Constitution.

Among other things, Section 66A criminalises the sending, by a computer resource or a communication device, any information that is “grossly offensive” or has a “menacing character” (S. 66A(a)), as well as the sending of “any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience.” The components of the offence, therefore, include online speech that is “grossly offensive”, “menacing”, or causes “annoyance” or “inconvenience”.

Legitimate restrictions permitted on the fundamental right in Article 19(1)(a)

The State’s authority to legitimately restrict speech can be sourced to Article 19(2) of the Constitution, which allows for the State to impose, by law, “reasonable restrictions on the freedom of speech in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.” S. 66A’s restrictions might be connected with three of these concepts: public order, decency or morality, and defamation.

In a series of cases, the Supreme Court has made it clear that the connection between “public order” and a free speech restriction ought to be proximate, like that of a “spark in a powder keg”, and not far-fetched or remote. Clearly, while certain forms of offensive or menacing speech might, at some point, lead to a public order disturbance, the connection is anything but proximate. Similarly, the “decency and morality” prong has been invoked to deal with cases of obscenity, where the offending work appeals solely to the prurient interest, as seen from the point of view of the reasonable, strong-minded person. And lastly, the ingredients of defamation are highly specific, and much narrower than causing offence or annoyance – they are limited to lowering the reputation of the plaintiff in society (subject to certain defences).

Over-breadth and disproportionate restrictions

IMediaLawst is therefore clear that certain terms of Section 66A suffer from the vice of “overbreadth”, that is, they authorise the restriction of expression that the government is entitled to prohibit, as well as that which it is not. In Chintaman Rao v. State of Madhya Pradesh, the Supreme Court, while striking down certain restrictions on agricultural labour under Article 19(1)(g) of the Constitution, held that “the law even to the extent that it could be said to authorize the imposition of restrictions in regard to agricultural labour cannot be held valid because the language employed is wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting the right. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly void.” In other words, as far as fundamental rights are concerned, over-breadth is constitutionally fatal to a statute. This conclusion is further buttressed by the fact that in State of Madras v. V.G. Row, the Supreme Court also held that a “reasonable restriction” under Articles 19(2) to (6) would have to satisfy the requirements of proportionality: “the nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.” Proportionality and over-breadth are closely linked: if a statute proscribes conduct that is much broader than what is permitted under Article 19(2), on the ground that there is some – tenuous – connection between the two, there is good reason to argue that the restriction is disproportionate.

Vagueness

In addition to over-breadth, the provisions of Section 66A suffer from an additional problem: that of vagueness. “Menacing”, “annoyance”, “inconvenience” and “grossly offensive” are all highly subjective, and open to numerous varying interpretations depending upon individual and diverse standpoints. Their scope and boundary are both large and ill defined. Consequently, they create a zone of uncertainty for Internet users. What kind of speech might land you in trouble? It is hard to tell.

Vagueness is constitutionally problematic. In Kartar Singh v. State of Punjab, the Supreme Court – citing American precedent – observed that “it is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values… laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Such a law impermissibly delegates basic policy matters to policemen and also judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” Thus, the twin problems of uncertainty and impermissible delegation to the executive, are inextricably connected with vague statutes.

Censorship
Image is from Tyler Menezes’ photostream on Flickr. CC BY-SA 2.0.

Vague and over-broad statutes are especially problematic when it comes to free speech, because of the chilling effect that they cast upon speech. As the Court put it in Kartar Singh, “uncertain and undefined words deployed inevitably lead citizens to “steer far wider of the unlawful zone … than if the boundaries of the forbidden areas were clearly marked”.” When faced with uncertain, speech-restricting statutes, citizens are likely to self-censor, in order to ensure that they steer well clear of the prohibited line.

In the Shreya Singhal petitions, the Supreme Court will be faced with the choice of striking down Section 66A, or reading it down and (perhaps) issuing guidelines aimed at checking abuse. There is no doubt that the objectives of preventing scam and protecting Internet users against cyber-harassment and online bullying are important. But there are other parts of Section 66 that can be used to curtail such activities. If the Court is not minded to strike down Section 66A in its entirety, it ought to at least sever the words that have the greatest and most unbounded catchment area, and are most prone to abuse, and excise them from the statute.

(Gautam Bhatia blogs at Indian Constitutional Law and Philosophy.)

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Human Rights

Invariably a tragedy – How Indian law encouraged risk-averse filmmaking and audience apathy

AparGupta_freedomofspeechThe first scene in the fifth act of William Shakespeare’s Hamlet: Prince of Denmark is perhaps the most unflattering prose that the bard wrote on the subject of lawyers. Before holding up a skull, Hamlet points to an exhumed grave and asks if the occupant was a lawyer. Proceeding to mock lawyers who do not appreciate the limits of law, Hamlet remarks that the only property rights accorded after burial are titles to coffins. This derision of the legal system was not included Vishal Bhardwaj’s film adaptation Haider, perhaps with good reason, given the recent legal troubles the film has run into.

Haider, which adapted the play to the political confines of Kashmir, was always going to be controversial. There did not seem reason however, to suggest that such controversy would involve the legal system. After all it had a valid censor board certificate, issued after complying with a demand for six cuts to be made to the original version. Since this legal compliance was completed beforehand, the notice issued by the Allahabad High Court to a petition seeking its ban and more recently, a criminal complaint filed with the Panaji Police may appear irregular. But there is a wider pattern and legal precedent that the law frightfully permits.

Process of mandatory pre-certification

Film in India is regulated under the Cinematograph Act, 1952 (“Cinematograph Act”). It establishes the Censor Board of Film Certification (“CBFC”) which certifies films for public exhibition as well as restricted viewing. This process is mandatory, and the exhibition of a movie without what is popularly referred to as a censor board certificate is an offence punishable on conviction with up to three years of imprisonment. Curiously, this legal obligation punishment are prescribed under the Copyright Act, 1957. Additional penalties are also provided in the Cinematograph Act. The High Court of Delhi in Dharmendar Kapoor v. CBFC, 2011 (46) PTC 1 (Del), has also clarified that all cinematographic works exhibited need to certified, even if they are sold only on DVDs for private viewing and are not exhibited in cinemas. In essence, every work featuring moving images, if exhibited even to a restricted audience, even if sold directly and viewed privately, requires mandatory certification.

MediaLaws

The criteria for certification is inherently subjective and can lead to arbitrary determinations. The reasons for this are three fold. First, the substantive guidelines for film certification permit subjectivity. They allow allows censorship so that “human sensibilities are not offended by vulgarity, obscenity or depravity” and even of “dual meaning words as obviously cater to baser instincts”. Many more grounds under these certification rules are broadly phrased and do not contain any legal ingredients. Secondly, under Section 3 of the Cinematograph Act, the central government has the complete power to appoint the members of the CBFC, the body making such determinations, censoring movies, and granting exhibition certificates. While a defence that has often been put forward is that the CBFC’s determinations are independent, it is not demonstrated by precedent. Political themes that are inconvenient to the ruling dispensation of the day often meet a higher degree of scrutiny and censorship.

Farcical appeals

Finally, what is the recourse for a film maker unhappy with such a determination? What does one who does not wish to carry out the cuts as demanded by the CBFC do? Such a filmmaker may approach the Film Certification Appellate Tribunal (“FCAT”) which is headed by a retired judge. The FCAT, which appears a strong safeguard in statute, was instituted after the Supreme Court, in K.A. Abbas v. Union of India, (1971) 2 S.C.R. 446, held that mandatory pre-censorship was a valid restriction on the right to freedom of speech and expression under Article 19(1)(a) but then nudged the Union Government to establish an appellate tribunal. Practice has shown however, that the FCAT has been ineffective principally due to the delay and pendency in determining an appeal. Financers of movies are impatient to reap profits and prevent the movie from becoming ‘stale’. Given the capital costs and the commercial stakes involved, filmmakers often grudgingly accept the cuts rather than risk the pendency of an appeal. Also, the mere presence of a retired judge as the chairperson of the FCAT does not guarantee a more liberal reading of the guidelines.

There is ample evidence of both these trends in case law as well as in current events. A recent instance is of the case of Srishti School of Art, Design v. CBFC, W.P. (C) 6806 of 2010, where the High Court of Delhi set aside the order of the appellate tribunal holding, “none of the excisions as directed by the CBFC, three of which have been upheld by the FCAT, are legally sustainable”. In the more recent decision of Krishna Mishra v. CBFC, W.P. (C) 2006 of 2012, the High Court of Bombay found that the FCAT did not even provide any reasons for upholding the CBFC’s demand for cuts. The petitioners victory was pyrrhic because the matter was remanded back to the examining committee of the CBFC for determination. Such a delay would surely cripple a filmmaker financially. A reasonable person would rather make the cuts and release the movie. But then great artists are rarely known to be reasonable.

Kamal Hassan’s Vishwaroopam

Vishwaroopam_posterIn 2013, award winning filmmaker Kamal Hassan invested his personal savings and took loans to make the 100 crore film, Vishwaroopam. Shortly before its release, some minority organisations protested its release in the State of Tamil Nadu, which lead to a ban under Section 144 of Code of Criminal Procedure, 1973, citing possible law and order problems. The movie already had a censor board certificate and the Supreme Court had recently, in Prakash Jha v. Union of India, (2011) 8 SCC 372, stated that a state government cannot use law and order as an excuse to prevent the exhibition of a movie by, once the CBFC had certified it.

With the law firmly behind him, Mr. Hassan’s first instinct was to legally fight the ban. Even when the Madras High Court agreed to hear his petition, he effectively lost. Declining him any interim relief, the release of the movie was stayed till the next date of hearing. Finally, a single judge held in his favour, but even that decision was appealed by the state government and the ban was restored. Time was passing and Mr. Hassan was losing money. Things got worse and the ban was extended by other state governments. The movie could not be screened in Andhra Pradesh, Kerala, and Karnataka. It was time to be reasonable. Compromises were made and scissors met the film reel. Remember that at this point, Vishwaroopam had a valid censor board certificate. The additional cuts made to it are the very definition of state coercion. After its release, a wistful Hassan remarked, “I am the son of Socrates. Give me a cup of poison and I will sip it and still speak my freedom”. Far from a Greek philosopher, Hassan was playing the part of Hamlet’s trusted friend Horatio, who was prevented from consuming poison— condemned to suffer misfortune and to live to tell the tale.

The offended and their PILs and FIRs

Clearly, it is not easy to get a CBFC certificate, but even after it has been granted, state governments have at their disposal, a choice of statutory paraphernalia. It doesn’t even end there. Vile gadflies mock offence and approach courts and police stations. Let us first consider public interest litigations (“PILs”) aimed at preventing the screening of movies.

Ore Oru Gramathile was a 1987 Tamil film that was critical of caste-based reservations in educational institutions.
Ore Oru Gramathile was a 1987 Tamil film that was critical of caste-based reservations in educational institutions.

Courts when approached in PILs have repeatedly held that the CBFC is an expert body and that its determinations are generally not open to substantive review on content (as opposed to procedural irregularities). This legal rule is not strictly adopted and there are instances of courts revoking censor board certificates. In most cases even when censor board certificates are upheld, courts do not stay their hands and enter into subjective assessments of the movie in any case. This brings pressure on the movie producer who may again reach a compromise with the court by making cuts. The two rounds of litigation in S. Rangarajan v. P. Jagjivan Ram, 1989 SCC (2) 574, illustrate the tendency of courts to substantially review content. Finally determined by the Supreme Court of India, the case originated from a petition before the Madras High Court, which revoked the CBFC certificate granted to Ore Oru Gramathile (In One Village). The Supreme Court restored it on appeal, permitting the exhibition of the movie. This judgement is celebrated as a victory of freedom of speech, but given that the Supreme Court engages in a review of the content, it rather endangers liberty. It not only discusses the theme of the movie, but each scene the High Court found objectionable. There is a legal discussion of the characters, dialogue, and even the accent in which it is delivered. Such minute examination was later used by courts for making subjective determinations, even after a movie had received a CBFC certificate.

Filmmakers also contend with the risk of criminal complaints and FIRs filed in various corners of the country. These may contain allegations of obscenity, sedition, and defamation. The law with respect to criminalising speech is wide and extensive, permitting legal offence when no factual offence exists. The Supreme Court in Raj Kapoor v. Laxman, 1980 SCR (2) 512, by reading Section 79 of the Indian Penal Code, 1860 with Section 5-A of the Cinematograph Act, has held that such criminal processes against a movie with a CBFC certificate are legally unsustainable. Section 79, akin to a safe harbour protection, provides that nothing is an offence which is done by any person who is justified by law. The law in this context is the Cinematograph Act under which a filmmaker is granted a CBFC certificate. However, while laying down this pronouncement, it Court also held that the accused filmmaker has to participate in the legal process at the trial court and claim a bar under Section 79. There is therefore, no absolute bar. If accused, the filmmaker has to face the pressure of a criminal trial.

Haider_VishalBhardwaj_posterDespite Haider’s valid CBFC certificate therefore, Vishal Bhardwaj has formidable legal battles awaiting him at the High Court of Allahabad and the trial court in Panaji. Can we pass it off to coincidence that the Supreme Court remarked in Raza Khan v. State of Uttar Pradesh, SLP (Civ.) No. 31797 of 2010 that “Something is rotten in the State of Denmark, said Shakespeare in Hamlet, and it can similarly be said that something is rotten in the Allahabad High Court, as this case illustrates”.

Effects of cinema censorship

Through its exaggerated metaphors and tinted images, cinema can question power with truth. Decades of censorship however, have prevented the cinema of history, politics, and current affairs. The pattern in democratic India has not been different from the colonial era when the Dramatic Performances Act, 1878 was used to ban Nildarpana, a play based on the plight of indigo farmers and Bhakta Vidur became the first movie to be banned under the Cinematograph Act, 1918 because its protagonist resembled M.K. Gandhi.

To prevent financial penury, mainstream cinema has rejected themes which lead to such controversy. Even if these are audience preferences, our legal system has contributed to it. Today, cinema treats us as infants— persons without well-formed thoughts, incapable of deeper introspection. This is what the success of Haider challenges— not its mere financial success but its ability to spark political discussions on issues that require wider introspection such as the morality of a law such as the Armed Forces Special Powers Act, 1958 and of received truths about patriotism. It is this very ability which is being impugned in a court and a police station.

To end, we should fear the censors not merely for preventing movies from release but also for contributing to the apathy of audiences. Today, the audience expects very little from cinema, is accustomed to big budget entertainers, and has lost interest in drama and Shakespeare. It forgets the movie as soon as the credits roll and shrugs off criticism of mainstream movies with, “Hey relax, it’s just a movie”.

(Apar Gupta is a partner at Advani & Co., and was recently named by Forbes India in its list of thirty Indians under thirty years of age for his work in media and technology law.)

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Human Rights

Where “breast” becomes “chest”: Extra-legal penalties and the muddled regulation of Indian TV

AparGupta_freedomofspeechAre you familiar with ‘newspeak’? No, not the fictional language from Orwell’s Nineteen Eighty-Four. I am referring to the language beamed across India on television channels every minute. In it, “breast” becomes “chest”, “panties” becomes “pants”, and “beef” becomes “meat”. This display of Victorian sensibility on television is the result of government regulation and private attempts to avoid harsh penalties. Let us examine in detail the regulatory muddle causing this witless display.

Regulating television broadcast

The Cable Television Networks (Regulation) Act, 1995 (“the Act”) was enacted as the principal legislation to govern television channels in India. Section 5 of the Act prepares the ground for content regulation of broadcasts and prohibits telecast of programmes that do not conform to the “prescribed content code”. The Act itself does not define such a “content code”, it has been prescribed in the Cable Television Regulation Rules, 1994, a piece of delegated legislation. Rule 6, popularly called the “Content Code rules”, contains a laundry list of various parameters within which all programme content has to be telecast.

They are vague, generalised, and seek to assuage the hypersensitivity of the most conservative individuals. For instance, it prohibits content that “(i) Criticizes, maligns or slanders any individual in person or certain groups, segments of social, public and moral life of the country;” or, “(k) Denigrates women through the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to women, or is likely to deprave, corrupt or injure the public morality or morals;”. Such language may appear innocent but becomes nocuous when it has the force of law.

It is also relevant to notice the Policy Guidelines for Uplinking of Television Channels from India, which regulates licenses to television broadcasters to transmit signals from India and the Policy Guidelines for Downlinking of Television Channels to India, which regulates the licenses for transmission to television sets in India (“the policy guidelines”). Both of them contain a chapter titled “Terms and Conditions” that mandates that licensees should comply with the Content Code, failing which licenses for transmission may be rescinded.

Enforcement of television broadcast regulations

WorkSafeAntiSexualHarassmentWhat is a right without a remedy? What is a prohibition without a penalty? Both the Act and the policy guidelines prescribe the consequences of breaching the Content Code rules. The Act permits the Union government to prohibit the transmission of any channel or programmefor a prescribed period of time or even permanently. The policyguidelines contain further details including a three-strike clause,under which the nature of the penalty increases upon repeat violations andon the third violation, the government can revoke the license of a television channel.

The content code and its penalties are not enforced by an independent regulator but a body of senior bureaucrats called the Inter-Ministerial Group. Chaired by the Secretary of the Ministry of Information and Broadcasting (“the Ministry”), it reviews complaints sent by the public and through another government body, the Electronic Media Monitoring Centre,screens content on television for violations of the Content Code rules. Even if this may sound reasonable in theory, due to the vagaries of the Content Code rules and the harsh penalties for their violation, some peculiar practices have evolved to cause censorship even without the need to revoke the license of a broadcaster.

These practices include the enforcement of extra-legal penalties. A letter from the Ministry to various state governments dated February 19, 2008 states that violations of the Content Code should be dealt with by issuing advisories, warnings, and orders to display apology scrolls. A list of actions or decisions taken for violations of the Content Code between 2004 and March, 2014 lists only 254 cases. Only in 21 out of these 254 cases has the statutory penalty of prohibition of broadcast been imposed. In the remaining 233 cases, despite a specific finding of a violation, the action was either the issuance of an advisory or a warning, or an order to display an apology scroll.

The problem with such an approach is plainly evident. The penalties which are in the nature of advisories, warnings, and orders to display apology scrolls are not prescribed under the Act. They do not have legal force and (at least in theory) do not censure the broadcaster. This may appear to be the benevolence of the State in ensuring freedom of speech but in fact results in the contrary. Legalities are punished and illegalities are conceded.

CensorshiponTV

Such extra-legal penalties are much more harmful for media plurality and content diversity. They allow hypersensitive censors to cut up sentences on the mere apprehension of insensitivity or even criticism.Prior to issuing the warning, advisory, or the direction to run an apology scroll, the private broadcaster is given an opportunity to present their defence. Most often, while presenting such a defence, a private broadcaster submits an apology and seeks pardon for the alleged transgression. This is understandable. In the absence of such deference and self-censure, the penalty may increase from a mere warning to either the prohibition of the telecast of the channel or worse, the cancellation of the license to broadcast.

Such measures, which lack the force of law, also come at the cost of ignoring serious violations for which harsh penalties may be justified. To illustrate, various quiz-based shows make inadequate disclosures about the charges of participation and are designed to dupe viewers. To participate, a viewer has to make a phone call to a number carrying an excessive and expensive per-minute charge (often the pulse duration is even less than thirty seconds). On making such a call, the viewer is placed on hold for several minutes so that the channel earns revenue from the call. Rather than taking any firm action about such dishonest practices, the Ministry, on the receipt of several complaints, merely issued an advisory on September 29, 2011. Expectedly, these quiz shows and the cheating of viewers continues unabated.

Another name for censorship

Self-regulation has more recently been posed as an industry alternative to state censorship. Self-regulation, it has been argued, presents the ideal balance between artistic freedom and cultural sensibilities. Two prominent self-regulatory bodies floated by television channels are, the Broadcast Content Complaints Council (“BCCC”) and the News Broadcasting Standards Authority (“NBSA”). These two organisations havepublished self-regulatory codes and even have an adjudicatory mechanism in place, and through these measures, hope to ensure compliance with the Content code and maintain artistic liberty at the same time. Their results till date, have been questionable.

At a conceptual level itself, the self-regulatory codes have for the first time, put in place a formal content-screening process based on the Act itself. While they may read the law liberally, they do not depart from its fundamental regression. The Content Code remains the basis of prescribed criteria under the self-regulatory guidelines. Content code. It is important to stress that censorship was the Content Code has always been “post-publication”, that is, enforced after the telecast.

Now on the other hand, most television channels formally screen their content through their ‘standard and practices’ departments. That is the reason we are inundated with creative edits to words which may cause offence. Innocuous words such as, “breast”, “sex”, and “virginity” are either bleeped or dubbed over completely. Worse, there are the subtitles that display the word  “chest” or a string of stars – “*****” – where the word “breast” should be. This is done devoid of context, for instance, even where the phrase is “breast cancer”. Certainly, even when television channels act as censors, they often replace their scissors with a butcher’s knife.

Other problems persist with self-regulatory censorship. There is a limit to their jurisdiction and reach. The orders of the BCCC and the Indian Broadcasting Foundation are not enforceable in a court of law. Often private compromises are reached and such instances have been documented. Moreover, only a fraction of the channels have become members of such organisations. Out of the 402 general entertainment channels, only 250 are governed by the BCCC. Similarly, out of the 393 news channels registered in India, only 45 are members of the NBSA. There also concerns about a lack of transparency in the publication of complaints and orders. Such concerns need to be addressed through legislation.

Way forward

InfrastructureLawRecently with a change in government, there has been a push to review existing legislation and policy. The Minister for Information and Broadcasting said on June 7, 2014, that he was in favour of abolishing state regulation. Even though such measures may be excessive, to ensure a modicum of sensibility to content regulation, the following steps are suggested.

The self-regulatory organisations to their credit, have not acted merely as bodies to limit the harsh penalties under the Cable Television Networks Act. They have in the past requested for a system of co-regulation, in which a legislation grants them statutory recognition and aids in curing the legal deficiencies that exist. They recognise that at present, they are at best a stop-gap arrangement.The longer such an ad-hoc system continues, the more damage there will be to artistic freedom and freedom of speech.

We also need to look beyond the regressive content code. Any content regulation must place an emphasis on context and censorship has to be proportional to the end that is sought to be achieved. An easy alternative is to link the content code to existing penal provisions. For instance, rather than prohibiting, “criticism of individuals”, a reference may be made to Section 499 of the Indian Penal Code, 1860 containing the offence of defamation. Even though such provisions may be regressive, theyat least have legal ingredients that have been refined by court rulings. Moreover, the present system of overbroad censorship, often caused by broadly defined categories under the Content Code, will abate. Most offences contain precise definitions and legal ingredients which can be applied more easily and in a limited manner by the television channels.

Finally, any legal reform must appreciate the role of the public as not only having the right to complain against offensive content but also the right to view it. Hence, the element of public injury which permits complaints, needs to ensure a system of transparency and pro-active disclosures. Any censorship which is caused, either by private self-regulatory bodies or by the government, needs to be disclosed and published. Moreover, even third parties should be permitted to file legal challenges against any censure. Such a remedy would add teeth to the right to view and receive information which has been recognised to be part of the freedom of speech and expression and is even recognised in cases of censorship of books and written materials.

These solutions would merely be the beginning. The more fundamental question that has to be answered with courage and honesty is to what extent law should censor television broadcasts. If we shirk away any longer, we may continue being governed by a content code which restrains breast cancer awareness programming but permits sensationalist news broadcasts about young women drinking in pubs.

Apar Gupta is a partner at Advani & Co., and was recently named by Forbes India in its list of thirty Indians under thirty years of age for his work in media and technology law.

Categories
Human Rights

Censors between the book-ends: A tragic age for book censorship

AparGupta_freedomofspeechThere was a sense of prophecy when D.H. Lawrence penned the first line to Lady Chatterley’s Lover, his novel about how, impervious to how it often ends in loss, we continue to seek romance. The words, “[o]urs is essentially a tragic age, so we refuse to take it tragically”, had a wider prescription. Little did Lawrence know that his book would inspire in India, the nebulous legal standards for obscenity that would become catastrophic for the liberty of authors, publishers, and readers.

In 1964, acting on the prosecution of a bookseller for obscenity under Section 292 of the Indian Penal Code, 1860 (“IPC”) for the sale of this book, a three-judge bench of the Supreme Court of India adopted the “Hicklin test”. The Court stated in Ranjit Udeshi v. State of Maharashtra that, “the tendency of the matter charged as obscene must be to deprave and corrupt those, whose minds are open to such immoral influences and into whose hands a publication of the sort may fall, so far followed in India, is the right test.” Even today, FIRs are filed against authors while courts continue to deliberate the fuzzy standards for obscenity. Moreover, for each word they write, authors have to negotiate several other content-based offences.

The process of banning a book

LadyChatterleysLoverEven though individual prosecutions for obscenity and other offences occur regularly, they do not, by themselves, result in the prohibition of the sale or distribution of a book. This power of forfeiture comes from Section 95 of the Code of Criminal Procedure, 1973 (“CrPC”), which allows a state government to prohibit a publication by a notification in the official gazette. In its the recent decision in State of Maharashtra v. S. Damodar, the Supreme Court, while overturning a ban on James Laine’s book on Shivaji, stated the ingredients of a valid notification prohibiting a publication.

The state government must first form an opinion that the matter constitutes an offence under one of Sections 124A (sedition), 153A (communalism), 153B (insults to religions), 292 (obscenity), or 295A (outraging religious feelings) of the IPC. Secondly, such an opinion should be published in the official gazette. Importantly, a police officer’s power under this process is not limited to the territorial limits of any state in which the ban has been issued. With the power to confiscate and prosecute publications made available throughout India therefore, even when a book banning notification is issued in Maharashtra, it is often pulled from sale from online bookstores and bookstores in other states.

A statutory opportunity to contest such a ban is provided in Section 96 of the CrPC itself. It allows appeals to the High Court of the state in which the notification for banning has been issued. Further, this right of appeal is not limited to the author or the publisher. Any other person may sue as well. Section 96 therefore, is one of the few provisions of law, which expressly recognises the right to read and the public injury from a ban. It is interesting to note that this provision in its original form can be traced to the Code of Criminal Procedure, 1889 and so ideologically, does not sprout from our constitutional jurisprudence.

TheSatanicVerses_SalmanRushdieSince such a power to ban a publication is available only to the state government, the Union Government has made inventive use of the Customs Act, 1952 (“Customs Act”), most glaringly to prohibit the import of Salman Rushdie’s The Satanic Verses through a notification dated October 5, 1988 under Section 11 of the Customs Act. Rushdie is not alone. Many books on Kashmir and critical accounts of the assassination of Mahatma Gandhi and the Sino-Indian War remain banned by customs authorities.

Private censorship

Though censorship of books by the state in the manner described above has decreased in frequency over the past few years, a worrying trend has emerged in which private persons have successfully caused the censorship of many books. Such censorship, either through a private compromise with the publisher or through a court injunction that is issued before the case is heard on evidence, is mostly a result of allegations of defamation. Defamation exists independently as a criminal offence and as a civil wrong.

Section 499 of the IPC defines the offence of defamation. People found guilty can be sentenced to imprisonment for up to two years. The civil wrong is based on common law and is derived from the judgments of courts and plaintiffs usually seek damages and a perpetual injunction against the defendant from publishing or distributing the work. In practice however, due to delays, criminal trials are itself a process in harassment for authors and publishers and civil suits are compromised after interim injunctions are liberally issued.

WendyDoninger_TheHindu_TheDescentofAirIndia_BhargavaThe most visible instance of a criminal trial resulting in a compromise for pulping a book is the case of Wendy Doniger’s The Hindus. The book was withdrawn pursuant to a compromise between its publisher Penguin and Dinanath Batra, a former general secretary of the education wing of the Rashtriya Swayamsevak Sangh, who had instituted a complaint case under various offences against them. The author’s public statement to quell the criticism faced by the publisher blamed substantive offences in Indian law, specifically Section 295A of the IPC. Another recent instance is that of Bloomsbury withdrawing Jitender Bhargava’s The Descent of Air India under the terms of the settlement of the criminal defamation case instituted in a Mumbai court by Praful Patel, the former Union Minister for Civil Aviation.

The position with respect to civil suits is not much better. It took five years for Kushwant Singh to have an interim inunction lifted from the Delhi High Court for a chapter he wrote about Maneka Gandhi which she alleged, was defamatory. Setting aside the interim injunction, the High Court rebuked the Single Judge’s order stating that its observations about the “high thinking, higher living and high learning of the author are TheBeautifulAndTheDamned_Deb_SaharaTheUntoldStory_Tamalsubjective moralistic observations.” Other recent court injunctions include ones issued by a district court in Silchar against a chapter in Siddharth Deb’s, The Beautiful and the Damned and against Tamal Bandyopadhyay’s Sahara: The Untold Story. One senses a pattern where it is easier to get an interim injunction and then coerce the author to drop a passage than for the author to appeal the injunction, persevere, and then publish the book in its entirety.

More often, one finds that even before a case is filed through the device of a legal notice to the publisher quoting exaggerated and anticipated damages, private parties successfully prevent publications. A recent attempt at this was made by Reliance Industries who sent a legal notice claiming a hundred crore rupees as damages from the author of Gas Wars, Paranjoy Thakurta. Distressingly, such bullying often finds success. Quite recently, Orient Blackswan withdrew Megha Kumar’s Communalism and Sexual Violence: CommunalismSexualViolence_GasWars_PrananjoyGuhaThakurtaAhmedabad Since 1969 following a legal notice sent by Dinanath Batra against another book in its catalogue! Following the receipt of the notice, the publisher commenced a review of its entire catalog, resulting in the withdrawal. Many blame the publishers, but most blame the laws which allow such offence. Though experienced litigators often term such actions as an abuse of law, many would ask, if the law permits such abuse, isn’t the law by itself abusive?

Liberalism through judgments?

In this raging debate, a popular opinion is that the higher judiciary has imparted a liberal reading of the law in favor of authors. This impression is only grounded in rhetoric for several reasons. Quite obviously, most authors and publishers have to wait for years and exhaust the process of appeals before they can approach the higher courts. Any such remedy therefore is an illusory one. Even when writ remedies or an accelerated appeals process is availed of, the approach of the High Courts and the Supreme Court has generally been conservative.

Most often, the higher judiciary examines irregularities either in the criminal procedure or in the banning notification alone. It helps that complainants do not reason the ingredients of the offence complained of and that banning notifications are passed without stating any grounds for the opinion. The examination does not go deeper and the higher courts generally prefer to remand the case for a trial by evidence or defer to the opinion of the state government. Even when such a process-based scrutiny is applied, courts do not hesitate to become censors by themselves.

Legal Research AdvertisementTwo of the latest book banning cases from the Supreme Court illustrates this point. In State of Maharashtra v. S. Damodar, the Court only looked at the ingredients of the banning notification issued by the state government, which made reference to a FIR registered under Section 153A. Since the Court had previously quashed the FIR, it set aside the banning notification. Prior to doing this, in an oral hearing, the Court made a suggestion to delete the alleged offensive passages to enable the state government to lift the ban on the book.

The second instance is where the Supreme Court, in Sri Baragur Ramachandrappa v. State of Karnataka, upheld the notification banning Dharmakaarana, a Kannada novel by P.V. Narayana. In reaching its decision to uphold the banning notification, the Supreme Court cited additional “offensive” passages that were not cited in the banning notification. In a sense, it seemed that the Supreme Court was substituting its own reasons for the ban, going beyond the ones given by the state government. As with Damodar’s Case, the Court again asked the author to delete the offending passages.

Even otherwise, it remains beyond dispute that the underlying substantive law, in spite of attempts to limit its application by precedent, remains subjective. During such a subjective assessment, the content by itself is often examined, and the subjectivity in the law allows for tremendous discretion and inconsistency. A good illustration of this is the recent Supreme Court decision in Aveek Sarkar v. State of West Bengal, where a two-judge bench of the Supreme Court expressly stated that the Hicklin test is outdated and moved towards the more liberal “community standards test” as laid down by the United States Supreme Court in Miller v. California.

Though many would celebrate this shift in precedent, it should be greeted with cautious optimism. Since, the judgment in the Ranjit Udeshi Case was pronounced by a three-judge bench, the observations in Aveek Sarkar by a two-judge bench appear to be per incuriam. Secondly, there exists a vast gap between doctrinal liberalism and its practical application. For years at end, district courts will continue to apply the time honed Hicklin test. Finally, even substantively, the application in Aveek Sarkar is by a panel of judges who sit in the place of the jury and apply “community standards”. While this may often lead to outcomes that favour expression over censorship, it again inheres subjectivity in application. The purported high thresholds set by Aveek Sarkar, remain only in theory.

These cases demonstrate that the Supreme Court is often clumsy and lacks ideological consistency its free speech jurisprudence. In his personal essays explaining the motivations for the themes and styles that would offend many, D.H. Lawrence stated that he had set out to conquer taboos. In this, he failed in India. Sections of our society remain conservative and puritanical to the extent of being exclusionary against views that do not conform to their beliefs. Worse, the law allows their annoyance as an offence and their morality as legality. Close to a century since Lady Chatterley’s Lover was first written, we still remained tethered to Victorian virtues trapped in legal codes. It comes as some comfort that authors rarely care about law when they write, for they have “got to live, no matter how many skies have fallen”.

Apar Gupta is a partner at Advani & Co., and was recently named by Forbes India in its list of thirty Indians under thirty years of age for his work in media and technology law.