This is excellent Pranesh. Please keep us informed of the continuous developments in the courts in New Delhi.<div><br></div><div>Thank you for the links :)</div><div><br></div><div>Sala<br><br><div class="gmail_quote">On Tue, Jan 17, 2012 at 6:15 PM, Ajit Prakash Shah <span dir="ltr"><<a href="mailto:ajitprakashshah@gmail.com">ajitprakashshah@gmail.com</a>></span> wrote:<br>
<blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex">Dear all,<br>
Having been present in the Delhi High court during the hearings<br>
yesterday, I can say with some amount of certainty that the judge did<br>
*not* call Google a beneficiary of illegal activities as reported under:<br>
<br>
"Google also said that the Indian subsidiary cannot be held responsible<br>
for an act by its parent company. The judge was not impressed with this<br>
argument. "Are you not a beneficiary of Google Inc's business? If some<br>
illegal activity is being carried out by a tenant and the landlord is a<br>
beneficiary, then how can the landlord not know what's happening?" he<br>
asked."<br>
<br>
So, some of these sensationalist reports should be taken with a dollop<br>
of salt. The judge *asked* Google's counsel whether Google can be said<br>
to have benefited, and the respondent's counsel argued that Google had<br>
benefited, but the judge did *not* assert that Google had benefited.<br>
<br>
I found these to be more informed opinions:<br>
<br>
Amol Sharma, "Is India Ignoring Its Own Internet Protections?":<br>
<<a href="http://goo.gl/bvKQ8" target="_blank">http://goo.gl/bvKQ8</a>><br>
<br>
Rajeev Dhavan, a senior constitutional lawyer on this fiasco and how<br>
judges are exercising powers they don't have:<br>
<<a href="http://goo.gl/7h1bP" target="_blank">http://goo.gl/7h1bP</a>><br>
<br>
Sajan Poovayya answers 5 questions on Indian Online Censorship:<br>
<<a href="http://goo.gl/hBh9r" target="_blank">http://goo.gl/hBh9r</a>> (Note: I don't agree with Sajan on the bit on CDA,<br>
etc.)<br>
<br>
It is important to remember that in this case, no one has seen the<br>
offensive material apart from the complainant and the courts. The 21<br>
intermediaries that have been named have not yet seen the content that's<br>
the subject matter of the complaint, nor have they been provided a list<br>
of URLs, etc. Nor have the existing provisions of the Indian law been<br>
used (howsoever bad the intermediary guidelines may be).<br>
<br>
Regards,<br>
Pranesh<br>
<br>
Salanieta T. Tamanikaiwaimaro [2012-01-17 10:22]:<br>
<div class="im">> There are some other perspectives on the situation in New Delhi, visit<br>
> the following links to read them:<br>
><br>
</div>> * <a href="http://timesofindia.indiatimes.com/tech/news/internet/Google-India-cant-act-like-totalitarian-China-regime/articleshow/11518897.cms" target="_blank">http://timesofindia.indiatimes.com/tech/news/internet/Google-India-cant-act-like-totalitarian-China-regime/articleshow/11518897.cms</a><br>
><br>
> * <a href="http://www.ndtv.com/article/india/what-triggered-the-case-against-facebook-google-167374" target="_blank">http://www.ndtv.com/article/india/what-triggered-the-case-against-facebook-google-167374</a><br>
> * <a href="http://www.ndtv.com/article/technology/censoring-social-media-curbs-free-speech-say-netizens-167402" target="_blank">http://www.ndtv.com/article/technology/censoring-social-media-curbs-free-speech-say-netizens-167402</a><br>
> * <a href="http://www.ndtv.com/article/india/googles-arguments-in-court-provoke-sharp-remarks-from-judge-167532" target="_blank">http://www.ndtv.com/article/india/googles-arguments-in-court-provoke-sharp-remarks-from-judge-167532</a><br>
<div class="im">><br>
><br>
><br>
> On Sun, Jan 15, 2012 at 3:26 PM, Salanieta T. Tamanikaiwaimaro<br>
> <<a href="mailto:salanieta.tamanikaiwaimaro@gmail.com">salanieta.tamanikaiwaimaro@gmail.com</a><br>
</div><div class="im">> <mailto:<a href="mailto:salanieta.tamanikaiwaimaro@gmail.com">salanieta.tamanikaiwaimaro@gmail.com</a>>> wrote:<br>
><br>
><br>
><br>
> On Sat, Jan 14, 2012 at 4:51 PM, Aldo Matteucci<br>
</div><div class="im">> <<a href="mailto:aldo.matteucci@gmail.com">aldo.matteucci@gmail.com</a> <mailto:<a href="mailto:aldo.matteucci@gmail.com">aldo.matteucci@gmail.com</a>>> wrote:<br>
><br>
><br>
><br>
> The intersting question here is whether this is an instance<br>
> under (2.i) - protect the rights or reputation of others.<br>
><br>
><br>
> The second limb or test that you were referring to in La Rue’s<br>
> Report refers to Article 19 of the International Covenant on Civil<br>
> and Political Rights (ICCPR) which reads:-<br>
><br>
><br>
><br>
</div>> *Article 19*<br>
<div class="im">><br>
> 1. Everyone shall have the right to hold opinions without<br>
> interference.<br>
><br>
> 2. Everyone shall have the right to freedom of expression;<br>
> this right shall include freedom to seek, receive and impart<br>
> information and ideas of all kinds, regardless of frontiers, either<br>
> orally, in writing or in print, in the form of art, or through any<br>
> other media of his choice.<br>
><br>
> 3. The exercise of the rights provided for in paragraph 2 of<br>
</div>> this article carries with it *special duties and responsibilities *.<br>
<div class="im">> It may therefore be subject to certain restrictions, but these shall<br>
> only be such as are provided by law and are necessary:<br>
><br>
> 1. For respect of the rights or reputations of others;<br>
><br>
> 2. For the protection of national security or of public order<br>
> (ordre public), or of public health or morals.<br>
><br>
> (Underling and highlighting for emphasis are mine). Inherent within<br>
> this Article is the notion that rights are not absolute. What is<br>
> clear from this is that there is a sense or an express insinuation<br>
> of "duties and responsibilities". I am of course thinking of what<br>
> the drafters had in mind as they put these together and I can think<br>
> of a number of illustrations some fiction and others hypotheticals:-<br>
><br>
</div>> * Consider Iran which holds the Satanic Verses by Salman Rushdie<br>
<div class="im">> to be banned from entering Iran because it is their belief that<br>
> it is offensive and an assault to their religious freedoms;<br>
</div>> * Consider Dan Brown's book the Da Vinci Code and the subsequent<br>
<div><div class="h5">> movie created from the book;<br>
><br>
> There are many ways to perceive this situation. One is that Salman<br>
> Rushdie and Da Vinci have the freedom and right to freely express<br>
> himself in any shape or form. However there are those who may<br>
> subscribe to views (usually religious views) who may feel offended<br>
> from the type of material that is disseminated. For some the<br>
> material may be too offensive and as such consider it their mission<br>
> to speak out or to address the matter through protests, reforms etc.<br>
> This is probably why you have laws that prohibit "obscene<br>
> publications". The laws against obscene publications exist out of<br>
> concern of the rights and respect for others. To use an "extreme"<br>
> illustration, imagine a first tiered law firm where the Partners<br>
> were interviewing people to hire as Associates, they would all be<br>
> properly dressed in suits or formal wear and not in bikinis and<br>
> slippers etc. In other words there is always a context - there is a<br>
> place where you are free to dress as you please and in other<br>
> environments social consciousness and unwritten codes demand that<br>
> people act, dress or behave in a certain manner.<br>
><br>
> There are some airports around the world that will not let you in if<br>
> your shorts are above your knee. The point I am trying to illustrate<br>
> is that rights are not void of responsibilities especially where<br>
> these affects others. Determining the limitations of these is<br>
> something that societies consciously (through Judgments in court or<br>
> laws) or subconsciously constantly engage in. In Article 19 of the<br>
> ICCPR highlights the limitations as those that are provided by law.<br>
> In this instance, that is Vinay Rai's Petition as per the article,<br>
> it appears that India has laws against obscene publications. So the<br>
> crux of the matter would be whether the material is "obscene" in the<br>
> eyes of the Courts in Delhi.<br>
><br>
><br>
><br>
> The line apparently taken by Mr Raj is that the mere<br>
</div></div>> /*existence*/ or presence of offensive material on the net<br>
<div class="im">> affects his "rights". He can cruise the net as long as he wants<br>
> whitout these pictures imposing themselves on him - unless he<br>
> deliberately clicks the offensive site.<br>
><br>
><br>
> I am not taking Vinay Rai's side but am trying to understand where<br>
> his petition is coming from. I am guessing that he holds the view<br>
> that just as nation states can control products and services that<br>
> enter India through Customs and Excise Authorities through<br>
> international trade instruments, in the form of border control, that<br>
> likewise India can determine the degree and nature of content that<br>
> is accessible to the masses in India. Countries decide all the time<br>
> what is allowed in and out of their country and in some instances<br>
> there are contrabands where systems are stringent.<br>
><br>
> Of course in the discussions on internet governance there are all<br>
> kinds of debates and discussions from diverse perspectives. What are<br>
> the various lenses within regulation of the internet should be viewed:-<br>
><br>
</div>> 1. Is it self-regulating?<br>
> 2. Should it be regulated nationally?<br>
> 3. Should it be regulated internationally?<br>
<div class="im">><br>
><br>
><br>
> I tend to disagree on your definition of "open site". "Open" is<br>
> only something that I cannot avoid, or which is collateral to my<br>
> going about my normal life. I'd have a right, it seems to me,<br>
> not to have explicit adverts for sexuals favours appear on the<br>
> right side of my eMail as I go about my correspondence. These<br>
> adverts are thrust upon me irrespective of my will. Everything<br>
> else is merely "accessible" and subject to my willful choice. I<br>
> can exercise my choice in ways that avoid contact with material<br>
> that is offensive to me.<br>
><br>
> I see where you are coming from. I don't hold strong views on the<br>
> same just enjoy deconstructing and reconsructing ideas and seeing<br>
> the rationale behind positions.<br>
><br>
><br>
> Best regards to Fiji<br>
> last time I was there I saw Comm. Bainimarama play touch<br>
> football across the street of Holiday Inn - it was his first day<br>
> in power...<br>
><br>
><br>
> Assuming this was the 6th December 2006 I was in Court during the<br>
> State v Rabuka matter and remember witnessing the Judges committment<br>
> to affirming the rule of law. Much has happened since and regards to<br>
> your country as well.<br>
><br>
><br>
> Best Regards from Fiji,<br>
><br>
> Sala<br>
><br>
><br>
> On 13 January 2012 21:21, Salanieta T. Tamanikaiwaimaro<br>
> <<a href="mailto:salanieta.tamanikaiwaimaro@gmail.com">salanieta.tamanikaiwaimaro@gmail.com</a><br>
</div><div class="im">> <mailto:<a href="mailto:salanieta.tamanikaiwaimaro@gmail.com">salanieta.tamanikaiwaimaro@gmail.com</a>>> wrote:<br>
><br>
> Frank La Rue in his Report as Special Rapporteur is on<br>
> record for stating that "any restriction to freedom of<br>
</div>> expression must meet the *strict criteria * under<br>
<div class="im">> international human rights law". He went on to discuss at<br>
> great lengths the restrictions of content on the internet in<br>
> Part IV of the Report which can be found here:<br>
> <a href="http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf" target="_blank">http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf</a><br>
><br>
> La Rue was very careful to say the following:-<br>
><br>
</div>> *"As with offline content, when a restriction is imposed<br>
<div class="im">> as an exceptional measure on online content, it must pass a<br>
</div>> three-part, cumulative test : *<br>
> *<br>
> *<br>
> *(1) it must be provided by law, which is clear and<br>
<div class="im">> accessible to everyone (principles of predictability and<br>
</div>> transparency); *<br>
> *(2) it must pursue one of the purposes set out in article<br>
<div class="im">> 19, paragraph 3, of the International Covenant on Civil and<br>
> Political Rights , namely: (i) to protect the rights or<br>
> reputations of others; (ii) to protect national security or<br>
> public order, or public health or morals (principle of<br>
</div>> legitimacy); and*<br>
> * (3) it must be proven as necessary and the<br>
<div class="im">> least restrictive means required to achieve the purported<br>
> aim (principles of necessity and proportionality). In<br>
> addition, any legislation restricting the right to freedom<br>
> of expression must be applied by a body which is independent<br>
> of any political, commercial, or other unwarranted<br>
> influences in a manner that is neither arbitrary nor<br>
> discriminatory. There should also be adequate safeguards<br>
> against abuse,including the possibility of challenge and<br>
</div>> remedy against its abusive application."*<br>
> *<br>
> *<br>
<div class="im">> Having tried to access New Delhi's Legal Database, I noted<br>
> that nothing has been published on the site as yet. However,<br>
> presuming that what is reported in the article is true that<br>
> there was a Private Criminal Matter in the District Court of<br>
> New Delhi and in light of the reported unsuccessful stay in<br>
> the High Court and brief mention of India's Penal Code on on<br>
> "obscene publications".<br>
><br>
> In India's case Vinay Rai's Petition (caveat: I have not<br>
> read the Petition but based on the presumption that what was<br>
> sparsely reported is true) fulfills the first test. It will<br>
> be interesting though to see how Courts all over the world<br>
> have defined "publication".<br>
><br>
> The difference between postal traffic and emails are that<br>
> they have an intended audience as opposed to having open<br>
> sites etc. I am not taking sides in this matter but am<br>
> interested in seeing the rationale and various philosophies<br>
> that lie behind any decision making process.<br>
><br>
> It may be worthwhile to organise a Webinar or Debate on the<br>
> matter if someone is willing to lend their facilities for<br>
> free to enable this, we can try and get La Rue to<br>
> participate and have a few volunteers etc<br>
><br>
> Sala<br>
><br>
> On Sat, Jan 14, 2012 at 12:41 AM, Aldo Matteucci<br>
</div>> <<a href="mailto:aldo.matteucci@gmail.com">aldo.matteucci@gmail.com</a> <mailto:<a href="mailto:aldo.matteucci@gmail.com">aldo.matteucci@gmail.com</a>>><br>
<div class="im">> wrote:<br>
><br>
><br>
> Religiously objectionable material on the internet<br>
><br>
</div>> /Posted on January 13, 2012/ by /Aldo Matteucci<br>
> <<a href="http://deepdip.wordpress.com/author/aldomat/" target="_blank">http://deepdip.wordpress.com/author/aldomat/</a>>/<br>
<div class="im">><br>
><br>
><br>
><br>
> The following report from India[1]<br>
</div>> <<a href="http://deepdip.wordpress.com/2012/01/13/religiously-objectionable-material-on-the-internet/#_ftn1" target="_blank">http://deepdip.wordpress.com/2012/01/13/religiously-objectionable-material-on-the-internet/#_ftn1</a>><br>
> has reached me: “/The Delhi High Court on Thursday<br>
<div class="im">> warned social networking site Facebook India and search<br>
> engine Google India that websites can be “blocked” like<br>
> in China if they fail to devise a mechanism to check and<br>
</div>> remove objectionable material from their web pages/.”<br>
> (…) “/The case centres on a petition filed in December<br>
<div class="im">> by a man named Vinay Rai, who referred to obscene<br>
> depictions online of Jesus Christ, the Prophet Mohammed,<br>
> and various Hindu deities. In response, a Delhi<br>
> magistrate summoned the executives of 21 companies and<br>
</div>> suggested they face trial for criminal conspiracy/.”<br>
<div class="im">><br>
> If the issue as described above is the whole story, what<br>
> is now before the Delhi High Court (DHC) adds a twist to<br>
</div>> the age old issue of the *responsibility of the<br>
> provider* (of the transmission support) for the content<br>
<div class="im">> that is transmitted. Take two equivalent cases:<br>
><br>
</div>> * Assume “objectionable” material is sent through the<br>
> /mail/. Is the Post Office bound to vet the content<br>
<div class="im">> of every letter? Would the DHC block postal traffic<br>
> if the Post Office fails to devise mechanisms to<br>
> check and remove objectionable material? I doubt the<br>
> DHC would act in this way.<br>
</div>> * Assume “objectionable” material is put in an<br>
<div class="im">> “advertisement section” of a paper. Is the newspaper<br>
</div>> bound to vet the content of each /advertisement/? I<br>
<div class="im">> suspect jurisprudence says it does.<br>
><br>
> Different standards are upheld – depending on the<br>
> judicially perceived feasibility of “vetting”, and, I’d<br>
> say, the prejudice of the court. If the Postal Office<br>
> belongs to my country’s friendly Crown, it will get off<br>
> easily when it declares itself unable to do the vetting.<br>
> Internet providers are all-powerful “foreign devils”.<br>
><br>
> But the core issue before the DHC seems to me actually<br>
> to be another one. In the olden days the main issue was<br>
> one of (political and morals) censorship – the state vs.<br>
> the individual. The DHC case and other similar cases,<br>
</div>> however, appear to refer to *Government involvement on<br>
> behalf of privacy rights of third parties*.<br>
><br>
> * “Objectionable” material about real places and<br>
> people is put into a /novel/ – e.g. the novel is set<br>
<div class="im">> in sea resort, which is described as “dreary”. Or a<br>
> hideous crime is described as taking place in a<br>
> named neighborhood. Is the publisher bound to vet<br>
> the content of the novel, lest such “collateral”<br>
> comments be judged defamatory? It is, apparently: in<br>
> France a host of lawyers go through a novel to purge<br>
> it of any derogatory material it may contain<br>
> regarding real persons and places. I suspect that<br>
</div>> Baudelaire’s quip: “/pauvre/ /Belgique/” or Zola’s<br>
<div class="im">> social novels would no longer be permitted to see<br>
> the printer’s ink, nowadays.<br>
</div>> * A gyration of this is taking place in Switzerland,<br>
<div class="im">> where GoogleMap has been enjoined to blank out faces<br>
> and number plates of cars in front of buildings it<br>
> has photographed.<br>
><br>
> A similar scenario appears now to be before the DHC. The<br>
> DHC is not asked to protect the interests of the state<br>
> (India is a secular state) but ostensibly to protect the<br>
> rights of private persons – those of Mr Vinay Rai and<br>
> religious people like him – in this case to have his<br>
> religious feelings untrammeled by offensive images.<br>
><br>
> Please note the extensive interpretation of the right.<br>
> Protection extends, beyond immediate exposure to<br>
> offensive material, to the very notion that this<br>
> material exists and is available. Mr. Vinay Rai need not<br>
> see the offensive pictures, while he surfs the net, and<br>
> he will not, unless he actively seeks them. He objects<br>
> to the very fact that they be there, protected by just a<br>
> click from unwary eyes. Formulated in another way, the<br>
> enforcement of morals – no longer much of a public issue<br>
> – remerges as conflict over private rights.<br>
><br>
> The DHC seems to argue that there is a privately held<br>
> right to have the state censor religiously offensive<br>
</div>> material – which is available /on demand/ – in order to<br>
<div><div class="h5">> protect “personal feelings”. If this is the case, then<br>
> holding such material in the privacy of the home would<br>
> also fall under the right.<br>
><br>
> The Swiss Hugh Court has ruled that assisted suicide –<br>
> which is legal in the country – could not be carried out<br>
> in the privacy of a specified building because this<br>
> activity infringed on the right of the plaintiff to pass<br>
> undisturbed. Mere awareness the act might be carried out<br>
> inside justifies judicial intervention (would this right<br>
> also extend to orgies?). A subsequent referendum<br>
> validated the right to assisted suicide, so Isuspect the<br>
> judgment will hardly be enforced – but it sets a precedent.<br>
><br>
> The battle over the “freedom of access” no longer is<br>
> bilateral: between the individual and the (politically)<br>
> oppressive state, but a triangular relation where the<br>
> state is asked to intervene as a “protector of a private<br>
> right”. It has a subsidiary interest in the matter to<br>
> the extent that the circulation of religiously offensive<br>
> images may be inflammatory.<br>
><br>
> Cynically, once provider “vetting” is introduced to<br>
> protect privacy, it will be extended by the back door to<br>
> serve politics. Darkness parading as white knight – an<br>
> irony fully worth of George Orwell. Note further that<br>
> the “self-censorship” by a provider is unregulated,<br>
> subject to neither judicial nor political review, and<br>
> thus likely to be much more sweeping than the official<br>
> one, which is bound by the Constitution as well as its<br>
> need to sustain broad legitimacy. The provider will<br>
> apply the “precautionary principle” quite broadly, given<br>
> that he has no interest whatever in the content, and he<br>
> may even provide the service for free. The state threat<br>
> to shut the provider down is disproportionate and effective.<br>
><br>
> *<br>
><br>
> PS: In astronomy a “three body problem” was proven by<br>
> Poincaré not to have a unique or absolute solution, but<br>
> to be inherently chaotic.<br>
><br>
</div></div>> [1]<br>
> <<a href="http://deepdip.wordpress.com/2012/01/13/religiously-objectionable-material-on-the-internet/#_ftnref1" target="_blank">http://deepdip.wordpress.com/2012/01/13/religiously-objectionable-material-on-the-internet/#_ftnref1</a>><br>
<div class="im">> <a href="http://www.ndtv.com/article/india/google-facebook-case-govt-to-serve-summons-to-foreign-sites-166543" target="_blank">http://www.ndtv.com/article/india/google-facebook-case-govt-to-serve-summons-to-foreign-sites-166543</a><br>
><br>
><br>
> ____________________________________________________________<br>
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><br>
><br>
><br>
><br>
><br>
> --<br>
> Salanieta Tamanikaiwaimaro aka Sala<br>
><br>
> Tweeter: @SalanietaT<br>
> Skype:Salanieta.Tamanikaiwaimaro<br>
</div>> Cell: <a href="tel:%2B679%20998%202851" value="+6799982851">+679 998 2851</a> <tel:%2B679%20998%202851><br>
<div class="im">><br>
><br>
><br>
><br>
><br>
><br>
> --<br>
> Aldo Matteucci<br>
> 65, Pourtalèsstr.<br>
> CH 3074 MURI b. Bern<br>
> Switzerland<br>
</div>> <a href="mailto:aldo.matteucci@gmail.com">aldo.matteucci@gmail.com</a> <mailto:<a href="mailto:aldo.matteucci@gmail.com">aldo.matteucci@gmail.com</a>><br>
<div class="im">><br>
><br>
><br>
><br>
> --<br>
> Salanieta Tamanikaiwaimaro aka Sala<br>
><br>
> Tweeter: @SalanietaT<br>
> Skype:Salanieta.Tamanikaiwaimaro<br>
</div>> Cell: <a href="tel:%2B679%20998%202851" value="+6799982851">+679 998 2851</a> <tel:%2B679%20998%202851><br>
<div class="im">><br>
><br>
><br>
><br>
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> --<br>
> Salanieta Tamanikaiwaimaro aka Sala<br>
><br>
> Tweeter: @SalanietaT<br>
> Skype:Salanieta.Tamanikaiwaimaro<br>
</div>> Cell: <a href="tel:%2B679%20998%202851" value="+6799982851">+679 998 2851</a> <tel:%2B679%20998%202851><br>
><br>
><br>
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</blockquote></div><br><br clear="all"><div><br></div>-- <br><div>Salanieta Tamanikaiwaimaro aka Sala</div><div><br></div><div>Tweeter: @SalanietaT</div><div>Skype:Salanieta.Tamanikaiwaimaro</div><div>Cell: +679 998 2851</div>
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