[governance] Religiously objectionable material on the internet

Salanieta T. Tamanikaiwaimaro salanieta.tamanikaiwaimaro at gmail.com
Tue Jan 17 00:20:37 EST 2012


This is excellent Pranesh. Please keep us informed of the continuous
developments in the courts in New Delhi.

Thank you for the links :)

Sala

On Tue, Jan 17, 2012 at 6:15 PM, Ajit Prakash Shah <
ajitprakashshah at gmail.com> wrote:

> Dear all,
> Having been present in the Delhi High court during the hearings
> yesterday, I can say with some amount of certainty that the judge did
> *not* call Google a beneficiary of illegal activities as reported under:
>
> "Google also said that the Indian subsidiary cannot be held responsible
> for an act by its parent company. The judge was not impressed with this
> argument. "Are you not a beneficiary of Google Inc's business? If some
> illegal activity is being carried out by a tenant and the landlord is a
> beneficiary, then how can the landlord not know what's happening?" he
> asked."
>
> So, some of these sensationalist reports should be taken with a dollop
> of salt.  The judge *asked* Google's counsel whether Google can be said
> to have benefited, and the respondent's counsel argued that Google had
> benefited, but the judge did *not* assert that Google had benefited.
>
> I found these to be more informed opinions:
>
> Amol Sharma, "Is India Ignoring Its Own Internet Protections?":
> <http://goo.gl/bvKQ8>
>
> Rajeev Dhavan, a senior constitutional lawyer on this fiasco and how
> judges are exercising powers they don't have:
> <http://goo.gl/7h1bP>
>
> Sajan Poovayya answers 5 questions on Indian Online Censorship:
> <http://goo.gl/hBh9r> (Note: I don't agree with Sajan on the bit on CDA,
> etc.)
>
> It is important to remember that in this case, no one has seen the
> offensive material apart from the complainant and the courts.  The 21
> intermediaries that have been named have not yet seen the content that's
> the subject matter of the complaint, nor have they been provided a list
> of URLs, etc.  Nor have the existing provisions of the Indian law been
> used (howsoever bad the intermediary guidelines may be).
>
> Regards,
> Pranesh
>
> Salanieta T. Tamanikaiwaimaro [2012-01-17 10:22]:
> > 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
> > <mailto:salanieta.tamanikaiwaimaro at gmail.com>> wrote:
> >
> >
> >
> >     On Sat, Jan 14, 2012 at 4:51 PM, Aldo Matteucci
> >     <aldo.matteucci at gmail.com <mailto: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
> >         <mailto: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 <mailto: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 <tel:%2B679%20998%202851>
> >
> >
> >
> >
> >
> >
> >         --
> >         Aldo Matteucci
> >         65, Pourtalèsstr.
> >         CH 3074 MURI b. Bern
> >         Switzerland
> >         aldo.matteucci at gmail.com <mailto:aldo.matteucci at gmail.com>
> >
> >
> >
> >
> >     --
> >     Salanieta Tamanikaiwaimaro aka Sala
> >
> >     Tweeter: @SalanietaT
> >     Skype:Salanieta.Tamanikaiwaimaro
> >     Cell: +679 998 2851 <tel:%2B679%20998%202851>
> >
> >
> >
> >
> >
> >
> > --
> > Salanieta Tamanikaiwaimaro aka Sala
> >
> > Tweeter: @SalanietaT
> > Skype:Salanieta.Tamanikaiwaimaro
> > Cell: +679 998 2851 <tel:%2B679%20998%202851>
> >
> >
> >
>



-- 
Salanieta Tamanikaiwaimaro aka Sala

Tweeter: @SalanietaT
Skype:Salanieta.Tamanikaiwaimaro
Cell: +679 998 2851
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