LCItalk: Internet Censorship Net Neutrality, Surveillance, Free Speech (66A & 69A)

With this theme, the first meet of LCItalk took place on 24th April at Hauz Khas, New Delhi. LCItalk (a platform for discussions and ideas exchange on topics pertaining to legal issues over coffee) is an initiative by LAWyersclubindia.com. 

A plethora of topics surrounding internet, technology and law were discussed at this talk session. Some of the areas which ignited intellectually stimulating debates were Sec. 66A, 69A of the Information Technology Act, network neutrality and surveillance. 

One of the fathers of the internet - Vincent Cerf had once quoted that: 'Governance' is a big word that includes human rights, freedom of speech, economic transactions on a worldwide basis - it touches everything. It's everywhere, and that's why Internet governance is topic A in many corners. 

When we take a look at these words, we can be sure that fixing the problems in the societies and governing the internet is an ongoing process. But the question still remains "are we on the right path?" Let us have a look at what our eminent guests had to say regarding the various topics at the Talk. 

On Net Neutrality:

Net Neutrality is basically letting the internet be according to its instinctual nature. And the basic nature of internet is to facilitate data transmission and exchange to its users without classifying them. 

James (Founding partner Enhelion) explained & simplified the concept of net neutrality by stating that: Every data is sent through packets. If suppose I am downloading a media file and I have a low speed than somebody who is using Netflix which has an agreement let's say with Google or some other big organization, they'll say that- we will send you this packet at a higher speed but other particular packets; since they are not in that particular box or category will not be in the same speed. So what they are doing is, effectively, they are making sure that no new competition comes in. They monopolise and then basically are making a profit out of it by classifying the users. 

Following the same, Vivek (Founder & CEO of LAWyersclubindia and CAclubindia) shared the fear of start-ups because of Zero rated scheme and Internet.org. He said: The way they (Telco's) are trying to point out that, it is very similar to the toll-free numbers. So they are saying that the way toll-free numbers are right now, similar to it internet data should also be there. But that's not a right contention to make here, as toll free number is just a facility and not the entry point for the business. He further said: If I speak from a practical perspective over net neutrality, the place where we stand today and the opportunity which I got 15 years back is because of neutral trait of the internet. Initiatives like Zero rated scheme and Internet.org are a chagrin threat to the boom of start-up ecosystem in our country.

Anirudh Rastogi (Partner at Tanikella Rastogi Associates) , shared the other side of the story with us. He emphasised that the discussion had taken the shape of Net Neutrality Vs the Telco's. He said that there is a potential to balance out the interests of net neutrality and Telco's which is the infrastructure provider and should be incentivised enough. Even if Telco's are making profits, they are a part of the free market economy - how much money one can make should not be restricted. 

Ramanuj Mukherjee (Founding partner and CEO iPleaders), looked at the social aspect of it all and appealed by saying: We want and appeal from/to the Telco's is that they should come out with innovations and new services and make profits, but not by creating a monopoly. Apar Gupta, looked at things from a legal angle by saying that Telco's are already making enough money on the basis of the amount of data which travels on their network. Price of data is not being regulated by TRAI. We need to prevent Telco's from creating entry barriers for competing products which may offer greater value and innovation. 

Based on all the experts' opinions, we can conclude that we really need to see the intentions behind Zero rated scheme and internet.org kind of initiatives. We have to wait and see- can both the notions (Airtel zero+internet.org and net neutrality) coexist? Even though we have a fair idea that the answer will be a no.

On free speech over internet (66A, 69A):

Internet is seen as an important medium of written communication today. A large section of people rely on the internet for communicating and expressing their voice. Internet has given new dimensions to the voice of the masses and to the power of words and creative writing by increasing the speed of data sharing and transmitting. 

During this session, James again explained to us what was 66A and the whole controversy surrounding this issue. He said: "A was all about offensive messages. Because it was so badly drafted there were no specific or set criteria for messages to become offensive. Second, What I find offensive may be completely normal for another person. I believe the court in 66A judgement should have done more parameterising the messages by using the power of rule of law."

Apar gave a different perspective over it and said " if we go through with the opinion of the court " it talks in three paragraphs about the severability. Doctrine of severability essentially holds for the benefit of people who are not lawyers is that if there are parts which can be separated as constitutional and unconstitutional, a court is obligated to conduct an exercise and only strike down the provision which offends the constitutional guarantee. And there the court says that the phrases by itself offends the constitution because they lack definition, they have not been tiding with the general principle clause, they have not been tiding with IPC; that is why they are prone to misuse and because of that we need to strike it down. 

Further, Apar also explained the technicalities involved in the case: According to us the arbitrariness and the wise was not in the application of the provision but in the provision itself. It was vague and it was prone to arbitrary application. After giving us some more details regarding the blocked video channel Vimeo that Vivek had previously stated, Apar concluded with the court has stated that - adequate transparency and disclosure needs to be given in cases of any restriction of Article 19 (1a) right and these reasons have to be stated, which were not stated in any blocking order. 

Vivek welcomed the court's decision of striking 66A down but shared another aspect of 69A: Over internet censorship we faced a real issue when DOT banned 32 websites including a major video playing website and because we were using that platform for our E-learning initiative we got a huge financial hit and hundreds of our students faced major problems. So the randomness while taking such decisions- the big brother approach of the government needs to be stopped in a democracy.

Internet Surveillance:

Internet Surveillance is a mechanism of observation of the internet activities of any individual, including all kinds of web based communication, browsing history etc. by the government or the corporate. 

As Anjani (Chartered Accountant) described - if you take a country like India, there are primarily five statutes which covers internet surveillance- it would be the telegraph Act, The postal Act, then you have section 92 of CRPC, then of course you have the IT act. He also said that: It is mandatory for the Telco's to set up mechanisms to have access to that (personal and business) data. So there's venerability of the data which is a very risky situation when clear rules are not there to regulate. 

Kanan (Founder Legalhackers, Lawtoons) shared the social aspect of the whole surveillance issue by adding- reading about the concept of internet we understand that it is a mechanism which facilitates the data transmission and which we require to share data with each other. And the platform which internet provides us contains huge amount of data communication among the populous. And in terms of our communication we have right to privacy and freedom of expression which makes it important for us to know who is invading that and with what concern, what that authority can do with that data and what are my rights relating to that. 

Anirudh gave us a historic and practical perspective by adding- The governments always had the power to get access to your personal communication over letters or phone. Now in this internet world the communication has become so fast and easy for everyone and that gives opportunities to criminals or terrorists to plan or do what they intend to at a much faster pace and with anonymity which was not guaranteed before. And I guess that's the aim and objective of the surveillance laws to have check on those activities. 

Apar gave the details of the procedures and practices- there's a law which states that the authorities have to have special permission to do the surveillance from the home ministry. So irrespective of the evidences, legality in gathering it (information) will always be admissible. And even if we challenge the adequacy of it is not designed as per rule 419A.

When the discussion ended, there were three points in particular which all guests agreed upon. They were:

Firstly, A balanced approach needs to be there between the government to control the internet and the right to freedom of privacy as well as the expression of speech by the Indian population as far as the IT laws are concerned. These laws also need to be more clear and transparent. 

Secondly, Due to the Zero rated scheme and Internet.org, net neutrality stays in danger, which is why we need to keep a close watch on these various developments and stop them from posing a major threat to the internet. 

Thirdly, such discussions and sessions need to be taken up frequently because we being a responsible community, it's our job to bring up such topics, understand and explain them to the masses as to how the situation(s) may or may not affect us.

"The internet is a reflection of our society and that mirror is going to be reflecting what we see. If we do not like what we see in that mirror the problem is not to fix the mirror, we have to fix society.- Vincent Cerf

The talk was attended by Mr.Apar Gupta, a leading technology and media lawyer; Mr. Anirudh Rastogi, Partner at Tanikella Rastogi Associates; Mr. James M., lawyer and founding member of legal education company Enhelion; Ms. Kanan Dhru, founder of Research Foundation for Governance in India; Mr. Ramanuj Mukherjee & Pallavi Parekh, founders of legal education startup iPleaders; Mr. Vassu Arora, Editor LAWyersclubindia; Mr. Vivek Jain, Founder & MD of Interactive Media Private Limited and Mr. Praveen Sharma, Business Head of Interactive Media Pvt Ltd. The discussion was moderated by Mr. Anjani Kumar Sharma, a Chartered Accountant by profession.

Authors:

Praveen Sharma (Twitter: @Praveen_Marklaw)

Anjani Kumar Sharma(Twitter: @Anjani_k)