[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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