[governance] Religiously objectionable material on the internet
Salanieta T. Tamanikaiwaimaro
salanieta.tamanikaiwaimaro at gmail.com
Mon Jan 16 23:52:47 EST 2012
There are some other perspectives on the situation in New Delhi, visit the
following links to read them:
-
http://timesofindia.indiatimes.com/tech/news/internet/Google-India-cant-act-like-totalitarian-China-regime/articleshow/11518897.cms
-
http://www.ndtv.com/article/india/what-triggered-the-case-against-facebook-google-167374
-
http://www.ndtv.com/article/technology/censoring-social-media-curbs-free-speech-say-netizens-167402
-
http://www.ndtv.com/article/india/googles-arguments-in-court-provoke-sharp-remarks-from-judge-167532
On Sun, Jan 15, 2012 at 3:26 PM, Salanieta T. Tamanikaiwaimaro <
salanieta.tamanikaiwaimaro at gmail.com> wrote:
>
>
> On Sat, Jan 14, 2012 at 4:51 PM, Aldo Matteucci <aldo.matteucci at gmail.com>wrote:
>
>>
>>
>> The intersting question here is whether this is an instance under (2.i) -
>> protect the rights or reputation of others.
>>
>
> The second limb or test that you were referring to in La Rue’s Report
> refers to Article 19 of the International Covenant on Civil and Political
> Rights (ICCPR) which reads:-
>
>
>
> *Article 19*
>
> 1. Everyone shall have the right to hold opinions without
> interference.
>
> 2. Everyone shall have the right to freedom of expression; this
> right shall include freedom to seek, receive and impart information and
> ideas of all kinds, regardless of frontiers, either orally, in writing or
> in print, in the form of art, or through any other media of his choice.
>
> 3. The exercise of the rights provided for in paragraph 2 of this
> article carries with it *special duties and responsibilities*. It may
> therefore be subject to certain restrictions, but these shall only be such
> as are provided by law and are necessary:
>
> 1. For respect of the rights or reputations of others;
> 2. For the protection of national security or of public order
> (ordre public), or of public health or morals.
>
> (Underling and highlighting for emphasis are mine). Inherent within this
> Article is the notion that rights are not absolute. What is clear from this
> is that there is a sense or an express insinuation of "duties and
> responsibilities". I am of course thinking of what the drafters had in mind
> as they put these together and I can think of a number of illustrations
> some fiction and others hypotheticals:-
>
>
> - Consider Iran which holds the Satanic Verses by Salman Rushdie to be
> banned from entering Iran because it is their belief that it is offensive
> and an assault to their religious freedoms;
> - Consider Dan Brown's book the Da Vinci Code and the subsequent movie
> created from the book;
>
> There are many ways to perceive this situation. One is that Salman Rushdie
> and Da Vinci have the freedom and right to freely express himself in any
> shape or form. However there are those who may subscribe to views (usually
> religious views) who may feel offended from the type of material that is
> disseminated. For some the material may be too offensive and as such
> consider it their mission to speak out or to address the matter through
> protests, reforms etc. This is probably why you have laws that prohibit
> "obscene publications". The laws against obscene publications exist out of
> concern of the rights and respect for others. To use an "extreme"
> illustration, imagine a first tiered law firm where the Partners were
> interviewing people to hire as Associates, they would all be properly
> dressed in suits or formal wear and not in bikinis and slippers etc. In
> other words there is always a context - there is a place where you are free
> to dress as you please and in other environments social consciousness and
> unwritten codes demand that people act, dress or behave in a certain manner.
>
> There are some airports around the world that will not let you in if your
> shorts are above your knee. The point I am trying to illustrate is that
> rights are not void of responsibilities especially where these affects
> others. Determining the limitations of these is something that societies
> consciously (through Judgments in court or laws) or subconsciously
> constantly engage in. In Article 19 of the ICCPR highlights the limitations
> as those that are provided by law. In this instance, that is Vinay Rai's
> Petition as per the article, it appears that India has laws against obscene
> publications. So the crux of the matter would be whether the material is
> "obscene" in the eyes of the Courts in Delhi.
>
>
>
>> The line apparently taken by Mr Raj is that the mere *existence* or
>> presence of offensive material on the net affects his "rights". He can
>> cruise the net as long as he wants whitout these pictures imposing
>> themselves on him - unless he deliberately clicks the offensive site.
>>
>
> I am not taking Vinay Rai's side but am trying to understand where his
> petition is coming from. I am guessing that he holds the view that just as
> nation states can control products and services that enter India through
> Customs and Excise Authorities through international trade instruments, in
> the form of border control, that likewise India can determine the degree
> and nature of content that is accessible to the masses in India. Countries
> decide all the time what is allowed in and out of their country and in some
> instances there are contrabands where systems are stringent.
>
> Of course in the discussions on internet governance there are all kinds of
> debates and discussions from diverse perspectives. What are the various
> lenses within regulation of the internet should be viewed:-
>
>
> 1. Is it self-regulating?
> 2. Should it be regulated nationally?
> 3. Should it be regulated internationally?
>
>
>>
>> I tend to disagree on your definition of "open site". "Open" is only
>> something that I cannot avoid, or which is collateral to my going about my
>> normal life. I'd have a right, it seems to me, not to have explicit adverts
>> for sexuals favours appear on the right side of my eMail as I go about my
>> correspondence. These adverts are thrust upon me irrespective of my will.
>> Everything else is merely "accessible" and subject to my willful choice. I
>> can exercise my choice in ways that avoid contact with material that is
>> offensive to me.
>>
> I see where you are coming from. I don't hold strong views on the same
> just enjoy deconstructing and reconsructing ideas and seeing the rationale
> behind positions.
>
>>
>> Best regards to Fiji
>> last time I was there I saw Comm. Bainimarama play touch football across
>> the street of Holiday Inn - it was his first day in power...
>>
>
> Assuming this was the 6th December 2006 I was in Court during the State v
> Rabuka matter and remember witnessing the Judges committment to affirming
> the rule of law. Much has happened since and regards to your country as
> well.
>
>>
>> Best Regards from Fiji,
>>
> Sala
>
>>
>> On 13 January 2012 21:21, Salanieta T. Tamanikaiwaimaro <
>> salanieta.tamanikaiwaimaro at gmail.com> wrote:
>>
>>> Frank La Rue in his Report as Special Rapporteur is on record for
>>> stating that "any restriction to freedom of expression must meet the *strict
>>> criteria* under international human rights law". He went on to discuss
>>> at great lengths the restrictions of content on the internet in Part IV of
>>> the Report which can be found here:
>>> http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf
>>>
>>>
>>> La Rue was very careful to say the following:-
>>>
>>> *"As with offline content, when a restriction is imposed as an
>>> exceptional measure on online content, it must pass a three-part,
>>> cumulative test: *
>>> *
>>> *
>>> *(1) it must be provided by law, which is clear and accessible to
>>> everyone (principles of predictability and transparency); *
>>> *(2) it must pursue one of the purposes set out in article 19,
>>> paragraph 3, of the International Covenant on Civil and Political Rights ,
>>> namely: (i) to protect the rights or reputations of others; (ii) to protect
>>> national security or public order, or public health or morals (principle of
>>> legitimacy); and*
>>> * (3) it must be proven as necessary and the least restrictive means
>>> required to achieve the purported aim (principles of necessity
>>> and proportionality). In addition, any legislation restricting the right to
>>> freedom of expression must be applied by a body which is independent of any
>>> political, commercial, or other unwarranted influences in a manner that is
>>> neither arbitrary nor discriminatory. There should also be adequate
>>> safeguards against abuse,including the possibility of challenge and remedy
>>> against its abusive application."*
>>> *
>>> *
>>> Having tried to access New Delhi's Legal Database, I noted that nothing
>>> has been published on the site as yet. However, presuming that what is
>>> reported in the article is true that there was a Private Criminal Matter in
>>> the District Court of New Delhi and in light of the reported unsuccessful
>>> stay in the High Court and brief mention of India's Penal Code on on
>>> "obscene publications".
>>>
>>> In India's case Vinay Rai's Petition (caveat: I have not read the
>>> Petition but based on the presumption that what was sparsely reported is
>>> true) fulfills the first test. It will be interesting though to see how
>>> Courts all over the world have defined "publication".
>>>
>>> The difference between postal traffic and emails are that they have an
>>> intended audience as opposed to having open sites etc. I am not taking
>>> sides in this matter but am interested in seeing the rationale and various
>>> philosophies that lie behind any decision making process.
>>>
>>> It may be worthwhile to organise a Webinar or Debate on the matter if
>>> someone is willing to lend their facilities for free to enable this, we can
>>> try and get La Rue to participate and have a few volunteers etc
>>>
>>> Sala
>>>
>>> On Sat, Jan 14, 2012 at 12:41 AM, Aldo Matteucci <
>>> aldo.matteucci at gmail.com> wrote:
>>>
>>>> Religiously objectionable material on the internet
>>>>
>>>> *Posted on January 13, 2012* by *Aldo Matteucci<http://deepdip.wordpress.com/author/aldomat/>
>>>> *
>>>>
>>>>
>>>>
>>>>
>>>> The following report from India[1]<http://deepdip.wordpress.com/2012/01/13/religiously-objectionable-material-on-the-internet/#_ftn1>has reached me: “
>>>> *The Delhi High Court on Thursday warned social networking site
>>>> Facebook India and search engine Google India that websites can be
>>>> “blocked” like in China if they fail to devise a mechanism to check and
>>>> remove objectionable material from their web pages*.” (…) “*The case
>>>> centres on a petition filed in December by a man named Vinay Rai, who
>>>> referred to obscene depictions online of Jesus Christ, the Prophet
>>>> Mohammed, and various Hindu deities. In response, a Delhi magistrate
>>>> summoned the executives of 21 companies and suggested they face trial for
>>>> criminal conspiracy*.”
>>>>
>>>> If the issue as described above is the whole story, what is now before
>>>> the Delhi High Court (DHC) adds a twist to the age old issue of the *responsibility
>>>> of the provider* (of the transmission support) for the content that is
>>>> transmitted. Take two equivalent cases:
>>>>
>>>> - Assume “objectionable” material is sent through the *mail*. Is
>>>> the Post Office bound to vet the content of every letter? Would the DHC
>>>> block postal traffic if the Post Office fails to devise mechanisms to check
>>>> and remove objectionable material? I doubt the DHC would act in this way.
>>>> - Assume “objectionable” material is put in an “advertisement
>>>> section” of a paper. Is the newspaper bound to vet the content of each
>>>> *advertisement*? I suspect jurisprudence says it does.
>>>>
>>>> Different standards are upheld – depending on the judicially perceived
>>>> feasibility of “vetting”, and, I’d say, the prejudice of the court. If the
>>>> Postal Office belongs to my country’s friendly Crown, it will get off
>>>> easily when it declares itself unable to do the vetting. Internet providers
>>>> are all-powerful “foreign devils”.
>>>>
>>>> But the core issue before the DHC seems to me actually to be another
>>>> one. In the olden days the main issue was one of (political and morals)
>>>> censorship – the state vs. the individual. The DHC case and other similar
>>>> cases, however, appear to refer to *Government involvement on behalf
>>>> of privacy rights of third parties*.
>>>>
>>>> - “Objectionable” material about real places and people is put into
>>>> a *novel* – e.g. the novel is set in sea resort, which is described
>>>> as “dreary”. Or a hideous crime is described as taking place in a named
>>>> neighborhood. Is the publisher bound to vet the content of the novel, lest
>>>> such “collateral” comments be judged defamatory? It is, apparently: in
>>>> France a host of lawyers go through a novel to purge it of any derogatory
>>>> material it may contain regarding real persons and places. I suspect that
>>>> Baudelaire’s quip: “*pauvre* *Belgique*” or Zola’s social novels
>>>> would no longer be permitted to see the printer’s ink, nowadays.
>>>> - A gyration of this is taking place in Switzerland, where
>>>> GoogleMap has been enjoined to blank out faces and number plates of cars in
>>>> front of buildings it has photographed.
>>>>
>>>> A similar scenario appears now to be before the DHC. The DHC is not
>>>> asked to protect the interests of the state (India is a secular state) but
>>>> ostensibly to protect the rights of private persons – those of Mr Vinay Rai
>>>> and religious people like him – in this case to have his religious feelings
>>>> untrammeled by offensive images.
>>>>
>>>> Please note the extensive interpretation of the right. Protection
>>>> extends, beyond immediate exposure to offensive material, to the very
>>>> notion that this material exists and is available. Mr. Vinay Rai need not
>>>> see the offensive pictures, while he surfs the net, and he will not, unless
>>>> he actively seeks them. He objects to the very fact that they be there,
>>>> protected by just a click from unwary eyes. Formulated in another way, the
>>>> enforcement of morals – no longer much of a public issue – remerges as
>>>> conflict over private rights.
>>>>
>>>> The DHC seems to argue that there is a privately held right to have the
>>>> state censor religiously offensive material – which is available *on
>>>> demand* – in order to protect “personal feelings”. If this is the
>>>> case, then holding such material in the privacy of the home would also fall
>>>> under the right.
>>>>
>>>> The Swiss Hugh Court has ruled that assisted suicide – which is legal
>>>> in the country – could not be carried out in the privacy of a specified
>>>> building because this activity infringed on the right of the plaintiff to
>>>> pass undisturbed. Mere awareness the act might be carried out inside
>>>> justifies judicial intervention (would this right also extend to orgies?).
>>>> A subsequent referendum validated the right to assisted suicide, so
>>>> Isuspect the judgment will hardly be enforced – but it sets a precedent.
>>>>
>>>> The battle over the “freedom of access” no longer is bilateral: between
>>>> the individual and the (politically) oppressive state, but a triangular
>>>> relation where the state is asked to intervene as a “protector of a private
>>>> right”. It has a subsidiary interest in the matter to the extent that the
>>>> circulation of religiously offensive images may be inflammatory.
>>>>
>>>> Cynically, once provider “vetting” is introduced to protect privacy, it
>>>> will be extended by the back door to serve politics. Darkness parading as
>>>> white knight – an irony fully worth of George Orwell. Note further that the
>>>> “self-censorship” by a provider is unregulated, subject to neither judicial
>>>> nor political review, and thus likely to be much more sweeping than the
>>>> official one, which is bound by the Constitution as well as its need to
>>>> sustain broad legitimacy. The provider will apply the “precautionary
>>>> principle” quite broadly, given that he has no interest whatever in the
>>>> content, and he may even provide the service for free. The state threat to
>>>> shut the provider down is disproportionate and effective.
>>>>
>>>> *
>>>>
>>>> PS: In astronomy a “three body problem” was proven by Poincaré not to
>>>> have a unique or absolute solution, but to be inherently chaotic.
>>>> ------------------------------
>>>>
>>>> [1]<http://deepdip.wordpress.com/2012/01/13/religiously-objectionable-material-on-the-internet/#_ftnref1>
>>>> http://www.ndtv.com/article/india/google-facebook-case-govt-to-serve-summons-to-foreign-sites-166543
>>>>
>>>> ____________________________________________________________
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>>>>
>>>
>>>
>>> --
>>> Salanieta Tamanikaiwaimaro aka Sala
>>>
>>> Tweeter: @SalanietaT
>>> Skype:Salanieta.Tamanikaiwaimaro
>>> Cell: +679 998 2851
>>>
>>>
>>>
>>>
>>
>>
>> --
>> Aldo Matteucci
>> 65, Pourtalèsstr.
>> CH 3074 MURI b. Bern
>> Switzerland
>> aldo.matteucci at gmail.com
>>
>>
>
>
> --
> Salanieta Tamanikaiwaimaro aka Sala
>
> Tweeter: @SalanietaT
> Skype:Salanieta.Tamanikaiwaimaro
> Cell: +679 998 2851
>
>
>
>
--
Salanieta Tamanikaiwaimaro aka Sala
Tweeter: @SalanietaT
Skype:Salanieta.Tamanikaiwaimaro
Cell: +679 998 2851
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