I hope you all will enjoy this season a lot. As I got to get myself acquainted that how a powerful tool like internet can shape ideas and influence everyone’s life.

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It is quite obvious that when Pornography mixes with modern technology it poses deep problems for law, Lawrence Liang writing at the Kafila Blog on “law, cinema and sleaze” in his post, “watching films blindfolded” described the difficulty of the interpretative technique in rendering decisions on “obscene movies”. Liang, wrote that legal decisions on pornography in movies, suffer from a problem of narrative, where the emotions, the reactions to the actual screening are omitted in the text of the legal decisions. Liang’s post analyzed the case of, Anonymous Unsigned Letter vs The Commissioner of Police which by its very title suggests,  that it was on the basis of a tip-off to the Chief Justice of the High Court by an anonymous unsigned letter.

One of the earliest cases in India on the regulation of  internet pornography was a PIL (Public Interest Litigation) also on the basis of a letter, this time, complaining about the proliferation of pornographic websites . The Bombay High Court, in 2001 acting on the letter  constituted an expert committee to inquire into the matter and tender a report. The report while confirming that a large number of pornographic websites did exist, disapproved of the proposal for site blocking without any objective guidelines. The committee in its report stated, that,

“… site blocking without any objective guidelines would amount to a conferment of uncanalised power. The Internet is a new medium and, while it brings its own set of issue and problems, equally is not necessarily amenable to restrictions applied to earlier technologies and media. Inherent in the new age of the Internet is an expanded freedom, flexibility and malleability. To strike at these is to strike at the very foundation of the medium”

The High Court agreed with the report, and rejected the approach of site blocking through key words (under the proposal websites would be screened by automated software for explicit words based on which they would be deemed pornographic and blocked. The obvious limitation being that such content is used equally for legitimate purposes such as medical problems, works of literature etc. Moreover, software has till now demonstrated a limited understanding of meaning of content through context etc.) Though the decision does not contribute to the substantive law on the subject, I feel it is extremely relevant due to the approach adopted in tackling online pornography. This became evident to Internet users in India towards the end of 2006, when the government attempting to block certain “right wing hindu” blogs hosted on blogger.com and ended up blocking the entire domain!

With the recent amendments to the IT Act (as amended in 2009) and the regulations formed thereunder some sense has come to the law on the subject. Beyond the substantive offenses which are contained in Sections 67 and 67A of the Act, the Regulation on the Blocking of Websites (beware 12 MB PDF embedded in link) provides for an elaborate mechanism for the blocking of websites. It provides for a system of complaint by an aggrieved person, an authority which examines the complaint and the website for the complained illegality, an authority which blocks the website. What is truly laudatory about the regulation is that it provides for a limited incorporation of natural justice (hey its a big start!). There is a requirement for the providing of reasons in orders, as to the existence of an illegality in the website leading to its blocking. Moreover, there is also the constitution of a review committee.

Even after the regulation, there are demands to have “blanket ban” on pornographic websites.  The Bombay High Court,  deciding on  one such recent Public Interest Litigation titled as Janhat Manch v. Union of India (PIL No. 155/2009), categorically rejected the suggestion that the Court should exercise its powers and direct state authorities to actively investigate and block pornographic websites. The court mindful of the competing interests of free speech and “public order and morality” held that :

“courts in such matters, are the guardians of the freedom of free speach, and more so a constitutional court should not embark on an exercise to direct State Authorities to monitor websites. If such an exercise is done, then a party aggrieved depending on the sensibilities of persons whose views may differ on what is morally degrading or purieint will be sitting in judgment, even before the aggrieved person can lead his evidence and a competent court decides the issue. The Legislature having enacted the law, the aggrieved person may file a complaint.”

It appears that even though courts have substituted the interest of promoting electronic commerce with that of online free speech, there is consistency in the approach with regard to giving a high deference to internet content and the dismissal of “blanket bans” and “site blocking”. Such measures are frowned upon, moreover, with the regulations for site blocking in force, it appears that  a firm procedure will be followed before banning a website or  an entire domain.

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One of the decisions I came across while recently authoring a paper on privacy law was the Delhi High Court decision in the case of Petronet LNG v. Indian Petro Group and Anr. (CS (OS) No. 1102/2006). What I found interesting were the categorical findings in the decision on the rights of privacy, a branch of law which often causes courts to unnecessarily digress and employ foreign precedent. The Plaintiff (LNG Petronet), a company setting up LNG terminals in the country approached the Court asking it to restrain the Defendant from publishing information relating to the plaintiff’s commercial developments on the defendants website at www.indianpetro.com. The Plaintiff alleged that these news reports published by the Defendants were interfering in its contract negotiations with third parties as well as limiting the Plaintiffs ability to negotiate as to the rates for LNG supply.

The legal grounds utilized to press for the relief was on  the grounds of, (a) breaches to the right of privacy; (b) publication of the information related to confidential negotiations and contractual clauses; (c) the publication violated the SEBI regulation on price sensitive information. The court rejected all the three contentions, playing on “public interest” served in the disclosure of the information as opposed to a “gag order” placed on a journalistic entity, especially when the information related to a company which was partly owned by the government as well as provided public utility services.

Privacy

The court dealt with the arguments advanced on the grounds by the Plaintiff on the issue of privacy through a study of legal precedent. The argument was defeated by the court easily holding that, that the right to privacy arises under Article 21 and can as a constitutional limitation be placed only on public authorities. The court categorically holds that:

38. In view of the above discussion, it is held that the present suit, so far as it is founded on a claim for breach of the plaintiff’s right to privacy, as part of Article 21 of the Constitution of India, is not maintainable. Neither is the plaintiff a person, entitled to the right to life and concomitant attributes of that right -which includes the right to privacy- nor is such right, assuming it to be applicable to companies and corporations, available against non-state individuals, or “actors”. This issue is, accordingly answered against the plaintiff

Through my review I have found Indian cases where the tort of privacy has also been utilized by Plaintiffs. It is indeed quite odd that for a case built on the primary contention of violation of privacy, infringement of privacy as an independent tort has not been pleaded. It is true that the majority of cases where the tort of privacy has been pleaded do not offer a categorical pronouncement the issue or become too remote for application. However, the tort of privacy has clearly been recognized in Indian Law and for the Plaintiff not to plead it, is surely a lost opportunity.

Confidentiality of Information

The Plaintiffs assertions of confidentiality of the information properly arise from the confidentiality clauses in the agreements and the negotiations the Plaintiff entered into. The problem which is posed by this line of argument is the difficulty of placing third party obligations arising from a contract which can naturally only bind the parties to the contract. The plaintiff, probably realizing, the dangers its argument was fraught with, pleaded confidentiality in the nature of information itself, stating it to be, “extremely sensitive”. The court rejected the argument giving its, reasons as follows:

72. In view of above conclusions, it is held that the plaintiff has been unable to substantiate its claim for confidentiality or that the information in regard to the news items complained against are of such sensitive nature as to warrant prior restraint of their disclosure. On the other hand, the defendants, in the opinion of the Court, have been able to show public interest in news reporting and discussion about the plaintiff’s functioning – in the areas sought not to be intedicted by the kind of injunction sought. Clearly, the grant of injunction would destroy the very essence of press freedom and the right of the general public to be informed about the functioning of an entity in which 50% stake is held by the Central Public Sector Undertakings.

In my opinion an argument which could have been adopted premised on the tort of tortuous interference. The ingredients of tortuous interference could have are clearly satisfied in the instant case. Moreover, the Plaintiff, is seeking a claim which falls in the pith and substance of tortuous interference. Again, though tortuous interference has been pleaded in Indian Courts, there is an absence of a categorical pronouncement in this regard. Moreover, tortuous interference as a concept has been pleaded in employment contracts. However, again, I find no reason not to plead it as a ground. Technology has recently given a new lease of life as well as revitalized old torts such as, trespass to chattels. In my opinion, tort law depending on the level of judicial acceptance, had the power and persuasiveness to change the ultimate decision in the instant case.

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On 25^th February DoT published its Notice Inviting Application for 3 G Spectrum and BWA Auction (click here).  While going through the Notice it can be observered that DoT deliberately sought to ignore few issues which have been the part of public discussion regarding allocation of 3 G spectrum.  After being forced by the PMO (Economic Times Click here), an attitude of hurriedness in conducting the auction can be observered through the manner in which the Notice has been drafted, also the existing framework  fails to address the purpose of allocating spectrum through auction. Since the auction might remain a desirable and transparent method of allocation, but the immediate steps after the allocation tends to raise questions regarding bias towards the incumbent licensee.

Though DoT has assured to introduce certain changes in its policies based on TRAI‘s recommendations on ““Overall Spectrum Management and review of license terms and conditions” ( at present TRAI is carrying out a consultation with the stakeholders on this). But despite such assurances DoT through its notice has failed to address the issue adding to the woes of new entrants. Due to the backhaul in granting licenses and start-up spectrum there is already a Delhi HC decision directing DoT to award UAS licenses to the applicants who have applied for licenses before October, 1, 2007 who have not yet been awarded licenses, prior to any potential new entrants. Though DoT is contesting this decision at Sc but despite any such assurances it would expose the new entrants to the risk of running losses. As it will not be feasible for any successful bidder who is also a newly entrant to acquire UASL within specific time period and a condition of compulsory requirement of UASL licenses in the Notice.

Despite such a serious implication on the subsequent allocation of 3 G spectrum due to mismanagement and backhaul of spectrum allocation during 2 G allocation, DoT failed to impose an obligation upon itself to allocate 3 G spectrum by the proposed deadline September 20, 2010.  As reported earlier there was a clause which obliged the Government will refund the bid amount in case the auctioned spectrum was not allocated by the deadline but due to the uncertainty in availability of spectrum from Defense forces and subsequent litigation seeking compensation (Click here) . DoT removed this clause from NIA based on Law Ministry’s recommendation. But removal of this clause might hamper the investor sentiments and many of foreign have decided to opt out owing to this uncertainty.

In a previous post about  TDSAT’s decision where the approach adopted by DoT and TRAI in allocating ISPs 2.5 GHz to 2.69 GHz bandwidth exclusively for ISP usage has been  critiqued as the it differs from the ITU prescribed bandwidth. In NIA similar approach has been adopted where clause 2.4 of the notice “ The Successful Bidder shall provide details of the technology proposed to be deployed for operation of its services prior to launch of commercial operations. The technology should be based on standards approved by ITU/ TEC or any other International Standards Organization/ Body/ Industry”. But despite mentioning the ITU prescribed standard the DoT has ignored a the ITU’s standard, as the prescribe bandwidth of auction ranges from 2.3GHz band.

Also the DoT website has provided a separate page where DoT has tried to address important queries raised by the stakeholders during various discussions with DoT ( Click here). While going through those queries and its answers it seemed that government is biased towards state owned MTNL/BSNL i.e.

In query number 32 a query was raised that worldwide, spectrum in 2.5GHz band has gained larger acceptance and has more evolved ecosystem compared with 2.3Ghz, though both are well suited for BWA services. But given that current auction is limited to 2.3Ghz only, it is unlikely that a fair value would be derived for 2.5 GHz in this auction. What rationale is being used for payment of BWA spectrum by MTNL and BSNL,who happen to already own spectrum in 2.5Ghz by comparing with what may be derived for spectrum in 2.3 GHz? Ideally they should pay more for spectrum obtained in 2.5GHz!

But given that current auction is limited to 2.3 GHz only, it is unlikely that a fair value would be derived for 2.5 GHz in this auction. What rationale is being used for payment of BWA spectrum by MTNL and BSNL, who happen to already own spectrum in 2.5Ghz by comparing with what may be derived for spectrum in 2.3 GHz? Ideally they should pay more for spectrum obtained in 2.5GHz!

The Government instead justifying its decision or explaining rationale behind such decision, described the determination price issue as its sole discretion. Now the purpose of allocation is meant for discriminating between private and Public sector companies and even if there are certain kind of benefits accrued to BSNL/MTNL in pursuance of their objective of serving rural population there should be certain justification associated with it.

In another query, number 244 DoT was asked to confirm that the amount paid by BSNL/MTNL for 3G & BWA spectrum will not be funded from the USO fund? In reply to this DoT emphasized that this decision is within the purview of BSNL/MTNL. Now USO ( Universal Service Obligation) is a fund dedicated to devlop infrastructure for rural communications therefore it is unjustified on the part of BSNL/MTNL to use those for profit purpose. The DoT cannot determine the mode of funding for BSNL/MTNLS but at least it has a role to play and dissuade BSNL/MTNL from any such attempts.

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In this blog post I am borrowing more than just the title from Niel Postman’s seminal work on media studies. I am also borrowing the metaphors which were utilized by him, originally spawned by my personal heroes, George Orwell and Aldous Huxley. I quote the thesis of Postman’s work which has been succinctly stated at the wikipedia page (for I cannot improve on it) :

“Postman distinguishes the Orwellian vision of the future, in which totalitarian governments seize individual rights, from that offered by Aldous Huxley i Brave New World,where people medicate themselves into bliss, thereby voluntarily sacrificing their rights. Drawing an analogy with the latter scenario, Postman sees television’s entertainment value as a present-day “soma”, by means of which the consumers’ rights are exchanged for entertainment.”

I am also embedding a youtube clip for those who are do not have time to read the book (however I recommend it for a read to anyone who has an opinion on public discourse and mass media)

When I look at my friend feed on Facebook or Twitter it’s not a simple Orwell versus Huxley debate. To frame it as such would lead it the obvious conclusion that Huxley was right as we are saturated with entertainment, through game applications such as Farmville or Friend Tests/Quizzes which promote textbook narcissism. Moreover, the content of data, is by itself not rich or advancing social interests through being creative (I hope I am pardoned for content metering as it seems to be opposed to our democratic values of multiculturalism where there is only content, no objective “good” or “bad” content. Of course this doctrine has its limitations in penal law. For a recent post on this problem please see Fleeing from Judgment).

This deluge of “mindless” information which hinders our task of intelligent choice (or creates it in the first place), is also a problem of decreased privacy as highlighted in 1984. Here the centralized big brother which is the totalitarian government has to a certain extent been replaced by information island rulers (Mark Zuckerberg, Biz Stone). These island rulers collect, aggregate and publish information on us back to the other followers. Hence, we are ourselves generating the data, which is being utilized in an Orwellian method for a Brave New World. Any thoughts? Share them along with a post on how many crops you cultivated online today.

Personal Disclosure: I am also an active user of Facebook and Twitter. Whereas I use these tools as contact management and to share relevant information I do not use for Quizzes, Farmeville and the like. I agree that some level of privacy will always be invaded for the exchange information and the consequent benefit, however, sharing of inconsequential details, “mindless” and “useless” information will unquestionably “dumb” us. I agree I cannot precisely define and differentiate between “good”, “bad” or “mindless” content and the “relevant information” that I publish. However, I do believe, that there are links between lowering the levee of privacy and the flood of information medicating us everyday. This post to a large extent is theoretical, I do not know how metered should privacy be, or how it should be safeguarded.  What interests me is also how a legal response to the “inflicted pleasure” will be possible and consistent with our libertarian values by creating laws to safeguard privacy (once the theoretical boundaries are drawn, if they can be).

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It would seem natural and obvious to a user of social media that technology is changing the norm of privacy. Here the change is not limited to technology itself but the sociological response to it, as I sense we become more agreeable to share personally identifiable information. This change may be natural and obvious, however it raises several issues for law and policy with nuanced interests requiring balancing. In the background of this debate, I recently attended a conference titled, “Privacy Law, Technology Policy and the Internet” on 25^th-26^th February, 2010 at Hyderabad, India. The conference was organized under the aegis of the Set-Dev Project generously funded by the European Union.

An interesting and diverse range of papers were presented reflecting the plurality of the participants backgrounds, which included, computer scientists, sociologists, litigation lawyers, law professors and students. To set the conference in context, Prof. Joseph Cannataci, presented his paper stating the need for an interdisplinary approach to examine the changes and challenges which are being posed by technology in India today.  Mr. Salman Warris who heads the practice at FoxMandal Little presented a paper on the safe harbor provisions provided to intermediaries by virtue of the IT (Amendment) Act, 2009. Another paper which I found interesting was the one presented by Yasho Vardhan Redy and Prof. Navjyoti Singh, on the recent government decision of issuing a Unique Identification Number to every citizen. The paper highlighted how the coding of the software itself could ensure a reasonable level of privacy is maintained while issuing such a number and the personally identifiable information linked to it.

My paper was concerned with the growth of online intermediaries and the absence of a privacy framework to govern them. I basically contended that the law of privacy in India has been developed through constitutional adjudication and hence is limited and suited to be applied against state instrumentalities rather than private intermediaries. In the absence of any such regulation, internet users in India are wholly dependent on the contracts which are drafted by the online service providers, unlimited by any legal limitation to safeguard the privacy of the user. The thin protection, if any, accorded to the privacy of users is highlighted by the recent statement of the CEO of Facebook who states, that, privacy is a “fading norm”. Interested readers can find an abstract of my paper on the following link.

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