News Post: December 21, 2012

• Even as Indian authorities are increasingly finding issues under the IT Act to disallow various kinds of speech on the internet, authorities in the UK have a different take. They suggest that prosecution cannot be commenced if the post has been subsequently deleted.
• The recent tragedy at Sandy Hook Elementary School in the US was hit with the added trauma of being severely misreported in the press. Some apologies from the press have been put together here.
• The issues of journalistic standards have been raised often in the US press over the last few weeks, following a series of front page covers run by the New York Post, which have been criticised as lacking moralistic standards.
• Social media, such as Twitter, are increasingly being seen as an additional tool to determine TV ratings.

The Journey of Online Censorship: A recent timeline of Section 66A

[Section 66A of the IT Act, 2000 has been widely discussed and debated owing to a spate of recent events. The provision is clearly problematic, and is currently being challenged in two High Courts and the Supreme Court. In order to provide context to the ongoing commentary on the issue, I have listed below a series of events concerning Section 66A. I apologize for the descriptive nature of this post, but hope that this information can inspire more enlightened conversations about the many problems with the IT Act and manner in which the state seeks to control online speech. If readers find any discrepancies in the details or dates, please feel free to leave a comment. The details listed below are not exhaustive, and are merely illustrative instances which have brought the Section into public scrutiny.]

September 10, 2012 – Cartoonist Aseem Trivedi is arrested on sedition charges along with 66A, for allegedly posting objectionable content on his website. The arrest has been made pursuant to a private complaint by a lawyer.

October 31, 2012 – An industrialist in Puducherry is arrested under Section 66A for comments on twitter against the son of Union Home Minister P. Chidambaram.

November 9, 2012 – The Constitutional validity of the Section 66A is challenged before the Madurai bench of the Madras High Court.

November 19, 2012 – Two girls are arrested in Palghar, Maharastra for questioning the shut down of the city after the death of Bal Thackeray under Section 66A of the IT Act and Section 295 of the Indian Penal Code.

November 20, 2012 – The Chairman of the Press Council of India, writes to the Maharashtra Chief Minister questioning the legal validity of the arrest of the two girls under Section 66A. The letter(s) may be accessed here.

November 21, 2012 – The division bench of the Madras High Court issues notice to the State in the pending PIL concerning Section 66A.

November 21, 2012 – A division bench of the Lucknow High Court accepts a PIL questioning the constitutional validity of Section 66A.

November 23, 2012 – Two Air India employees have been detained under Section 66A for offensive content posted on a Facebook group against certain Congress leaders.

November 29, 2012 – A Supreme Court bench consisting of the Chief Justice of India Altamas Kabir and Justice Jasti Chelameswar accept a PIL questioning the validity of Section 66A.

November 29, 2012 – Union Telecom and IT Minister Kapil Sibal issued guidelines for the better enforcement of Section 66A. Under these new guidelines cases under Section 66(A) can only be registered if prior approval has been sought by DCP rank officers in urban areas and IG rank officials in rural areas.

November 30, 2012 – The cyber hacktivist group Anonymous hacks Union Ministers Kapil Sibal’s website in protest over the misuse of Section 66A.

November 30, 2012 – The Supreme Court seeks the opinion of the Attorney General regarding the status of Section 66A. Mr. Vahanvati reiterates the need for retaining the provision, while indicating that the government intention to enforce the relevant guidelines, for more tailored implementation. The court issues notices to the Centre, Maharashtra, Puducherry, Delhi, Tamil Nadu and West Bengal.

December 8, 2012 – A 20 year old man was arrested in Rourkela for uploading communally sensitive pictures on his Facebook account. Officials claim that the picture contained a Hindu god atop a Mosque, was allegedly uploaded on the anniversary of the Babri Masjid demolition.

December 14, 2012 – The cyber hacktivist group Anonymous defaces the BSNL website in protest over the misuse of Section 66A. They have uploaded images of cartoonist Aseem Trivedi, drawing attention to his imprisonment earlier this year.

December 14, 2012 – The Issue of the misuse of Section 66A by state governments was raised in Rajya Sabha, with members urging a reconsideration of the provision. Some members of Parliament also directly questioned the constitution validity of  Section 66A and demanded its suitable amendment. In response to these concerns the Union Minister for Telecom and IT has suggested advisory guidelines for the implementation of Section 66A to circumvent misuse by state governments.

December 15, 2012 – Cartoonist Aseem Trivedi ends his 8 day fast against Section 66A in Delhi.

December 18, 2012 – The Maharashtra Police drop all charges against the women who were arrested in Palghar after their Facebook comments. A closure report has also been filed before the magistrate.

News Post: Wednesday, December 19, 2012

• The issue of increased regulation of the media, in an effort to curb paid news was raised in the Indian Parliament. The Government responded with the assertion that self-regulation was the best method of governance for the media.
• The Indian Government is looking to own its own broadcasting channel, and is attempting to initiate policy changes to allow this.
• In news related to Jenisha’s post on broadcast bans of pornography, the UK has refused to pass legislation to control online pornography.
• While not strictly a free speech issue, Google is close to reaching a settlement with anti-trust regulators in the United States for alleged abuse of dominant position, in its display of search results while using Google’s search engine. This action has bearing on the advertising content which is generated along with search results, not limited to sponsored searches.
• Twitter has reached 200 million active users. The statistics have been broken down in more detail here.
• The Freedom of the Press Foundation has been set up to help fund various projects online, which are aimed at helping increase the freedom of the press on the internet. The organisation is seen as a solution to avoid another blackout such as the WikiLeaks blackout in 2010, by payment portals.

Ban on Adult Films on Television: Are Broadcasters Legally Permitted to Do So?

The issue of broadcasting films certified ‘A’ by the Central Board of Film Certificate (‘CBFC’) has been contentious for quite some time now. Recently, four major broadcasters have decided to completely prohibit the telecast of such films. (See here and here) While the issue of desirability of such censorship has already received attention (see here), this post will focus on the legislative basis for permitting such a move.

The Cable Television Networks Rules, 1994 (‘CTN’) framed under the Cable Television Networks (Regulation) Ordinance, 1994 provide for the relevant statutory basis for censorship.

Rule 6(1)(o) of the CTN provides for the Programme Code and states that no programme should be carried in the cable service which contravenes the provisions of the Cinematograph Act, 1952 (‘Cinematograph Act’) and is not suitable for unrestricted public exhibition. The explanation provided to the section states that the term “unrestricted public exhibition” shall have the same meaning as assigned to it under the Cinematograph Act.

Section 4 of the Cinematograph Act states that if any person desires to exhibit any film, then such film is required to be certified by the CBFC. Upon examination, the CBFC can certify the film as follows:

1. It can be certified for unrestricted public exhibition;
2. It can be certified for exhibition that is restricted only to adults or any particular class of persons;
3. The film can be refused sanction for public exhibition all together.

A bare reading of Section 4, Cinematograph Act shows that a distinction is made between films restricted for exhibition to adults only and films that can be refused sanction for public exhibition all together. However, Rule 6(1)(o) of the CTN prohibits the exhibition of movies that are not suitable for “unrestricted public exhibition”. In this context, the scope of the term “unrestricted public exhibition” needs to be determined.

The explanation provided under the CTN states that reference must be made to the Cinematograph Act to determine the meaning of the term “unrestricted public exhibition”. A strict interpretation would cover only movies sanctioned under Section 4(1)(i) of the Cinematograph Act whereby movies are certified as such for ‘unrestricted public exhibition’.

However, such an interpretation would defeat the distinction made under the Cinematograph Act for movies that are restricted for exhibition to adults or specified class and movies that can be refused public exhibition all together. Such an interpretation would mean that even films that are restricted in its exhibition to adults/specific group of persons would be prohibited from being telecasted. Since the legislature has made a distinction between those films that cannot be certified for viewing altogether and those which are restricted to certain persons, then it means that the films falling in the latter category are meant for public exhibition. However, if such films are not included within the ambit of ‘unrestricted public restriction’, then they would be prohibited from being shown to the public which in effect, goes against the purpose of certifying them and distinguishing them from films that have been refused certification all together. Thus, a more meaningful and harmonious interpretation would be to understand the prohibition contained in Rule 6(1)(o) CTN Rules to cover only films that are refused sanction for exhibition all together.

Interestingly, in the case of Pratibha Naitthani v. Union of India, the issue before the Bombay High Court was whether adult films certified as such by the CBFC can be telecasted by the cable operators. After referring to Section 4 and Rule 6(1)(o), the Court adopted the narrow approach and held that the term ‘unrestricted public exhibition’ would cover only those movies that have been certified as such under Section 4(1)(i), Cinematograph Act.

Presently, one can say that in order to comply with CTN’s mandate to telecast only programmes  that are suitable for ‘unrestricted public exhibition’, the broadcasters are justified in prohibiting the telecast of adult movies as it is difficult to restrict the ‘adult movies’ to only adult viewers on television. This reflects a simple technological adjustment to comply with the CTN’s mandate whereby adult movies that cannot be ‘restricted’ to only adults, are all together prohibited from telecast as they are not fit for ‘unrestricted public exhibition’. However, this argument shall also be hit by the the logic of creating the distinction between adult movies and movies prohibited from exhibition all together. As identified above, there is a conflict between the provisions of the CTN and Cinematograph Act which, in turn, calls for a clarification or a legislative amendment.

Thus, so far, the broadcasters can justify their stance under the provisions of Rule 6, CTN though the film producers also can make a strong case by taking the benefit of the conflict between the provisions of CTN and Cinematograph Act.

 

Saturday, December 15, 2012

• The world’s only made-for-tablet news service shut down earlier this week, citing its lack of market, leading to questions about the viability of digital news reporting. Reasons for the failure of this enterprise have also been examined in some detail here.
• Justice Markandey Katju, the Chairman of the Press Council of India was served with a notice for defamation following his remarks on the intelligence of the average Indian. He has responded to this notice in a lengthy post on his blog, here. This response was one of the conditions to refrain from filing a petition.
• Section 66A of the Information Technology Act is currently subject to a PIL at the Supreme Court, challenging its constitutionality. The petitioner has been interviewed here. This PIL is in addition to two other petitions filed in the Allahabad High Court, and the Madras High Court. This is following the arrest of two girls for their comments on Facebook, after the death of Bal Thakeray late last month.
• The recent prank call to the King Edward Vll hospital, leading to the suicide of the nurse who received the call, has raised questions of the efficacy of self-regulatory media codes, especially in cases such as these, where the actions could otherwise be justified as legal.
• The Editors of Zee News have been arrested and remain in custody on extortion charges, after the CD containing footage of them allegedly accepting a bribe has been authenticated. They have since been denied bail.
• The Levenson Report on media ethics, after the British phone hacking incident has been released. The executive summary is available here.