Centre For Communication Governance

National Law University, Delhi

Submissions to the Law Commission of India in response to the

Consultation Paper on Media Law

(19th June, 2014)

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TABLE OF CONTENTS

EXECUTIVE SUMMARY ............................................................................................. 3

I. PAID NEWS .............................................................................................................. 7 II. OPINION POLLS ................................................................................................. 12

III. THE MEDIA & INDIVIDUAL PRIVACY ....................................................... 14 IV. TRIAL BY MEDIA ............................................................................................. 18

V. DEFAMATION ..................................................................................................... 22 VI. PUBLICATIONS & CONTEMPT OF COURT ............................................... 26

I. SOCIAL MEDIA & 66A ........................................................................................ 31

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EXECUTIVE SUMMARY

1. PAID NEWS

• The pay-to-print phenomenon has emerged as a concern not only in the

electoral context but with regards to corporations as well. We recommend

that the Law Commission take a holistic view of the issue.

• With reference to paid news in the electoral context, measures must be taken

on the following counts:

o The regulation of the political advertising, either through a ban or

through proactive measures.

o The regulation of advertising passed off as news.

• Alternatively, a standalone electoral offence or corrupt practice of paid news

could be formulated. This approach would have to grapple with the

definitional problem and would have to meet other conditions, particularly

the need to address conduct of participants who are not covered by RoPA.

• There is a need to ensure effective enforcement. This must begin with

clarifying the Election Commission’s jurisdiction in paid news cases. In

addition, a host of structural issues such as the black money problem would

need to be addressed.

2. OPINION POLLS

• Measures regulating opinion polls must balance the right to free speech and

voters’ right to know with the need to ensure the purity of the electoral

process.

• We would submit that the only justifiable restriction on the conduct and

publication of opinion polls would be in the interests of accuracy, and that

measures analogous to Section 126A, RoPA have been found to be

inconsistent with a constitutionally protected right to freedom of speech.

3. THE MEDIA & INDIVIDUAL PRIVACY

• Privacy infringements should be the subject of subsequent remedies rather

than prior restraint.

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• Public figures should be treated at a different and lower standard than

ordinary citizens, and that the incidents and applicability of that status be

closely considered by the Law Commission.

• Sting operations should be regulated rather than banned completely.

• Where false content is broadcast, strict measures must be taken, both to

disincentivise the behavior as well as to ensure that the injury to privacy and

reputation is effectively remedied.

• Codification of existing standards, such as the Press Council’s Norms or the

NBSA’s guidelines covering sting operations should be done.

4. TRIAL BY MEDIA

• Reporting of court proceedings should be addressed by facilitative standards

rather than by sanctions alone.

• Enforceable guidelines may be necessary to ensure that the countervailing

interests to that of open justice are preserved.

• Postponement orders are unjustifiable restraints on the freedom of speech in

their current form because they operate on a vague standard and disregard

the need for transparency in court proceedings.

• The postponement remedy must be retooled into a narrow and specific one,

so that the legitimate aim of preserving of the right to fair trial is protected.

5. DEFAMATION

• Criminal defamation provision is a disproportionate incursion into the

freedom of speech, and would leave India in contravention of its

international human rights obligations.

• Given the reality of abuse of the defamation offence by those in positions of

political, corporate or social power, measures should be adopted:

o to tighten the provision by raising the thresholds for its application and

by limiting the liability of innocent actors in the information supply

chain, and

o to ensure that a fair balance between the freedom of speech and the

interest in preserving reputation is struck by instituting costs for

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o frivolous complaints and by reconsidering the nature of remedies

presently available.

6. CONTEMPT OF COURT

• The offence of scandalizing the court should be removed from the scope of

contempt law for the following reasons:

o The rationale offered at the time of the origin of the offence at common

law no longer holds.

o The offence does not engender public confidence in the judiciary, even

assuming that this confidence is necessary to the proper administration of

justice.

o The interests of judicial accountability and of public confidence are

better served by open debate.

o Injuries to judges’ reputation can be addressed by the existing law of

defamation or by proactive measures such as rights of reply.

• The requirement for ‘fairness’ in the criticism of judges is problematic for the

following reasons:

o The term is subjective, and the exercise of discretion in their own

favour presents the danger that judges will be viewed as self-serving.

o The right to free speech includes the right to communicate

information as well as opinion, whether commonly held or otherwise.

7. SOCIAL MEDIA AND SECTION 66A

• Section 66A should be repealed as it has proven problematic, by design, for

the following reasons:

o Its operative terms are vague.

o Its operative terms create a standard considerably higher than those

applicable to speech by private citizens offline without justification.

o The provision has a chilling effect on speech.

o The provision uses, without justification, the expansive language of

“sending” rather than the clearer terminology of “publishing”.

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o Executive advisories concerning Section 66A arrests have proven

insufficient in practice and suffer the flaw of vesting discretion with the

o police, which is independent of influence from the executive, against

whom a good proportion of online dissent is directed.

• There is no need for additional authority to address problematic content

online because mechanisms for addressing legally objectionable content,

including speech which raises public order concerns, already exist.

• Social media should not be regulated by the same authority as press and

broadcasting because there is no equivalency between social media and the

other two media.

I. PAID NEWS

Summary

• The pay-to-print phenomenon has emerged as a concern not only in the electoral context but with regards to corporations as well. We recommend that the Law Commission take a holistic view of the issue.

• With reference to paid news in the electoral context, measures must be taken on the following counts:

o The regulation of the political advertising, either through a ban or through proactive measures.

o The regulation of advertising passed off as news. • Alternatively, a standalone electoral offence or corrupt practice of paid news

could be formulated. This approach would have to grapple with the definitional problem and would have to meet other conditions which are detailed below.

• There is a need to ensure effective enforcement. This must begin with clarifying the Election Commission’s jurisdiction in paid news cases. In addition, a host of structural issues such as the black money problem would need to be addressed.

1.1. The Centre for Communication Governance at National Law University Delhi sees paid news as a concern of considerable relevance. In this year’s Lok Sabha elections, the Election Commission issued notice in up to 3,100 instances, and has confirmed at least 787 cases.1 Prominent politicians have been among those brought to book.2

1.2. For the purposes of designing a legislative framework, it may be helpful to consider the following elements of the paid news problem:

Regulation of Political Advertising

1.3. The lack of regulation of paid political advertising in India is problematic. Other

jurisdictions, such as the United Kingdom have gone so far as to ban political advertising completely. This silence in the law has led to the artificial amplification of the voices of dominant powerful players and the concurrent suppression of less powerful ones in public discourse concerning elections. We would also submit that

1Raghvendra Rao, Paid news: EC issues 3,100 notices, confirms 787 cases, THE INDIAN EXPRESS (MAY 24, 2014).

2 Press Trust of India, Milind Deora, Sanjay Nirupam among four found guilty of paid news by Election Commission, THE TIMES OF INDIA (April 29, 2014).

8 the freedom of speech, both in the sense of the voter’s right to know3 as well as the candidate and media’s right to speech (and of choice of speech) is not given due regard in the status quo.

1.4. The following approaches could address the deficiencies of the status quo:

1.5. One approach would consist in banning (or otherwise limiting) political advertising. The Eurpoean Court of Human Rights (‘ECtHR’) upheld the UK’s ban on political advertising the grounds that it was a “general measure”, which was not an unjustifiable restriction on the freedom of speech in Animal Defenders International v. United Kingdom4. The House of Lords (the court below) hasd held that the ban met the aim of preventing public debate from being distorted by the highest spender, and so was a measure in favour of, rather that a restriction on the freedom of speech. The ECtHR acknowledged the existence of a legitimate aim for the measure and went on went on to find that the restriction on the right to free speech was proportionate to the harm that the measure sought to contain. 5 It did so by formulating a three-step test in order to determine the proportionality of general measures. The test required that the Court must assess (a) the “quality” of the parliamentary and judicial review of the necessity of the measure; (b) the legislative choices underlying the general measure, and (c) any risk of abuse if a general measure is relaxed”.

1.6. The House of Lords rationale offers India a reasonable justification for banning, or atleast regulating, advertising during or in relation to elections. The risk of a distorted public space is one that is fully realized in the Indian electoral landscape. That concern could be mitigated through regulation.

1.7. Another approach would involve providing proactive remedies to the information

asymmetry. The Council of Europe makes the argument that it would be reasonable to institute a system whereby free political advertising is made available to candidates on a transparent and equal footing.6 This approach would have the advantage of eliminating the concerns of prejudicial journalism, and is in consonance with the understanding of elections as a contract between electorate and the successful candidate.7 In addition, the parceling out of advertising space to parties on an equal basis would greatly minimize concerns with regards to the disproportionately large presence that parties and candidates with greater access to black money are able to maintain, while affording viewpoint plurality to electorate without reference to their liquidity. Given that paid news alone reportedly accounts for some 20% of election spending and other payments to the media take up another

3 Union of India v. Associaton for Democratic Reforms, 2002 (3) SCR 294.

4 (Application no. 48876/08), Judgment dated 22 April 2013.

5 Id.

6 Yasha Lange, Media & Elections Handbook 31 (Council of Europe1999).

7 Id.

9 20%,8 such an approach would ensure also that barriers of entry into the electoral contest are reduced to the extent that new players would have a realistic opportunity of running successful campaigns.

Regulation of Pay-to-Print Content During/In Relation to Elections

1.8. There is also the specific concern of passing off advertorial content, which has not

been subject to ordinary journalistic rigours, such as fact checking, as news. This problem can be addressed in a number of ways in the electoral context:

1.9. One approach consists in considering the amount that a candidate paying for news spends on the activity. A failure to report would be actionable under Section10A of the Representation of the People Act, 1951. Where the cost of the advertising takes the cumulative spend by the candidate over the Election Commission’s ceiling, Section 123(6) read with Section 8A would apply. This is the approach that the Election Commission took in Umlesh Yadav’s case.9 The concern with this approach is a threshold one. Given black money’s resistance to tagging or tracking in any meaningful sense and the deliberate non-accounting for such activities, the identification of the violation is extremely difficult. The legislative response can only go so far, since it will necessarily presume that instances in which the law is violated are traceable.

1.10. Another approach would place emphasis on the deceptive character of the content.

RoPA already accounts for undue influence as a corrupt practice under Section 123(2).

1.11. There is also a fair case for the formulation of a clear, standalone reference to paid

news within the scheme of the Representation of the People Act, 1951. However, the consequences of classifying it a corrupt practice or an electoral offence must be carefully considered. The effect of a simultaneous insertion of a paid news section in Chapter IX A of the Indian Penal Code should also be considered. While the proposal for a new paid news section under RoPA is a fair one in principle, the problem of definition is an important hurdle.

1.12. A number of organizations have previously attempted to offer definitions of the paid

news offence.10 Some emphasize intent, and are commendable for their recognition of the problem with bringing evidence satisfactory for prosecution at criminal law of a practice designed to evade detection. Others focus on the effect of the activity, such that a distortion of the information for voters would be an important element of the offence. No complete or legally workable definition has yet emerged. We submit that it would be counterproductive to introduce a new provision before the definitional

8 Vidhi Choudhary and Utpal Bhaskar, Election Commission pegs paid news market at Rs.500 crore, LIVE MINT (February 2, 2013).

9 In re: Account of election expenses of Smt. Umlesh Yadav, returned candidate from 24-Bisauli Assembly Constituency at the general election to the Uttar Pradesh Legislative Assembly, 2007-Scrutiny of account under section 10A of the Representation of the People Act, 1951, dated the 20th of October, 2011 (Election Commission).

10 Parliamentary Standing Committee on Information Technology, 47th Report : Issues Related to Paid News (May, 2013).

10 problems are addressed and would strongly recommend the continued use of existing provisions until a viable definition can be arrived at.

1.13. It is important to note that legislative amendments to RoPA, or the continued creative

use of existing provisions alone, would not be a complete response. For one, inclusion in RoPA alone would mean that while politicians are subject to disincentives to engage in the practice, other participants in the paid news supply chain would not be covered. Importantly, the media, being monetarily compensated for their engagement in dressing advertorial content as news for the benefit of the candidate or political party in question, would not face penalties, except where the offence of undue influence is made out, and Section 171C of the Indian Penal Code is applied.

1.14. The use of broad language with regards to offenders for the purpose of that section

(“whosoever”) and the duplication of the offence here are deliberate, and not only allow longer timelines for investigation and more effective penalties (since the disqualification remedy under RoPA for corrupt practices is a redundant remedy for all but the successful candidate, or possibly those who would run again), but also create disincentives for the supply side of the paid news problem by rendering journalists and media houses indulging in the practice subject to criminal liability. Two channels of prosecution (first, as a corrupt practice under section 123 (or as an electoral offence) as well as an electoral offence under Chapter IXA of the Indian Penal Code) should be made available with regards to paid news as well as the justification for the existing scheme hold for paid news as well.

Enforcement

1.15. The Election Commission’s institution of Media Certification and Monitoring

Committees has been a commendable step. In addition, as in Umlesh Yadav’s case where the Press Council co-operated with the Election Commission in order to determine whether the content in question in that case was paid news is another regulatory approach which should continue, as it allows for best competences to be applied to the identification of both sides of paid news transactions.

1.16. More fundamentally however, the underlying problem of black money in elections as

well as generally would need to be addressed. A more achievable, and equally important structural change is that of empowering individual journalists, by ensuring living wages and security of employment. An important starting point would be to ensure the implementation of the Majithia Wage Board recommendations, whose constitutionality is now a settled question.11 Another concern, and one which can be addressed legislatively is the question of the Election Commission’s jurisdiction in cases involving paid news to pre-empt arguments such as those being made at the Supreme Court in Ashok Chavan’s case.12

Additional Concerns

11 ABP Ltd. v. Union of India, Writ Petition (Civil) No. 246 Of 2011.

12 Ashok Shankarrao Chavan v. Madhavrao Kinhalkar, S.L.P. (Civ) 29882/2011 (Supreme Court) (Pending).

11 1.17. The Consultation Paper has failed to take note of the fact that the paid news

problem is not limited to politics, and that it is able to distort the information landscape in other contexts as well. Of pressing importance is the nexus media and corporates, with the Press Council of India pointing out that paid news first emerged (and continues to thrive) in the form of mutually beneficial arrangements between media conglomerates and other companies, such as ads-for-equity arrangements.13 The scale of the problem was acknowledged by the Securities and Exchange Board of India, which instituted disclosure requirements where such transactions involved shares.14

1.18. We would strongly urge the Law Commission to include this facet of the paid news

problem in its consideration of the issue. The present field of reference is inchoate, and also capable of compromising the quality and strength of the response to paid news problem generally as well as in the context of electoral politics.

13 Press Council of India, “Paid News”: How corruption in the Indian media undermines democracy, (April 1, 2010), 12-14.

14 SEBI, Mandatory disclosures by the media of its stakes in corporate sector (Press Release No. PR No.200/2010, dated the 27th of August, 2010).

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II. OPINION POLLS

Summary

• Measures regulating opinion polls must balance the right to free speech and voters’ right to know with the need to ensure the purity of the electoral process.

• We would submit that the only justifiable restriction on the conduct and publication of opinion polls would be in the interests of accuracy, and that measures analogous to Section 126A, RoPA have been found to be inconsistent with a constitutionally protected right to freedom of speech.

2.1. Opinion polls would require a small measure of regulation in the interests of voters’ right to know and the integrity of the electoral process.

2.2. We do not agree that Section 126A or an analogous provision would be strictly

necessary in the interests of fairness in the electoral process. South Africa and the United States place no restriction on the publication of opinion polls whatsoever. The Canadian Supreme Court has struck down a prohibition similar to Section 126A on the reporting of exit and opinion polls within 72 hours of the vote in Thomson Newspapers Co. v. Canada (Attorney General)15. It did so on the grounds that the prohibition was not necessary to protect the integrity of the election.16 In addition to the fact that it is an unjustifiable restriction on the right of those conducting polls to speech, and particularly the dissemination of the results, the ban would also be a restriction on the right of the electorate to know.

2.3. Exit and opinion polls, regulated closely for accuracy, would only serve to increase

the amount of evidence-based information, available to the voter in the run up to the election. This is distinct from the partisan quality that content communicated in the course of campaigning would necessarily take. Shutting off access to non-partisan, evidence-led information would directly infringe voters’ right to know and to make an informed choice at the ballot.

2.4. We would submit instead that regulation must have as its object ensuring that the

best and most accurate information reaches voters. The Canada Elections Act, 200017 attempts to achieve this object by requiring the following disclosures to accompany poll results:

“(a) the name of the sponsor of the survey; 15 [1998] 1 SCR 877.

16 Id.

17 (‘CEA’).

13 (b) the name of the person or organization that conducted the survey;

(c) the date on which or the period during which the survey was conducted;

(d) the population from which the sample of respondents was drawn; (e) the number of people who were contacted to participate in the survey;

(f) if applicable, the margin of error in respect of the data obtained;”18 and (g) explicit disclosures where the survey is not based on accepted statistical methods19 Where the content is communicated otherwise than by broadcasting or where the sponsor receives a written request, the Canadian model would require that further disclosures be made.20

2.5. If there are further concerns with regards to the neutrality of the poll, which are not

assuaged by the requirement for prominent, plain-language disclosures, it may also be worth considering the suggestion that the polling be undertaken by academic organizations or by verifiably neutral third parties.21

2.6. A former Attorney General has argued that the ban on opinion polls would be

unconstitutional and in favour of regulating their quality.22 We wholly concur in his prescription and differ with the Attorney General’s opinion of 13th June, 2013.

18 Section 326 (1), CEA.

19 Section 327, CEA.

20 326(2) and (3), CEA.

21 Faizan Mustafa, Opinion polls and free speech, THE STATESMAN (November 14, 2013).

22 New Delhi Bureau, Ban on opinion, exit polls unconstitutional, says Soli Sorabjee, THE HINDU (April 10, 2004).

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III. THE MEDIA & INDIVIDUAL PRIVACY

Summary • Privacy infringements should be the subject of subsequent remedies rather

than prior restraint. • Public figures should be treated at a different and lower standard than

ordinary citizens, and that the incidents and applicability of that status be closely considered by the Law Commission.

• Sting operations should be regulated rather than banned completely.

• Where false content is broadcast, strict measures must be taken, both to disincentivise the behavior as well as to ensure that the injury to privacy and reputation is effectively remedied.

• Codification of existing standards, such as the Press Council’s Norms or the NBSA’s guidelines covering sting operations should be done.

Sting Operations

3.1. While the rationale that would operate where sting operations are banned is that

ordinary law enforcement is both independent and unbiased and competent. Given the low levels of public confidence in our own police and investigative authorities on these counts, that rationale does not hold. The Delhi High Court in Aniruddha Bahal v. State23 held that exposés or stings are legitimate means by which citizens can unearth corruption, and went so far as to state that citizens were under a duty to expose corruption where they found it. As a result we would submit that sting operations are a lawful exercise of the Article 19(1)(a) right.

3.2. However, they must be subject to a measure of regulation in the interests of the

public and of privacy and reputation. Where media outlets choose to publish or broadcast the outcome of successful sting operations, guidelines such as those included in the Press Council of India’s Norms of Journalistic Conduct, the NBSA’s Guidelines for conducting sting operations, the guidelines proposed in Court on its own Motion v. State24 should be given statutory force. In all cases, the media must be bound to act with sensitivity to the dignity of the person, and preserve the privacy and maintain the anonymity of individuals other than the subject of the sting who have not consented, whether implicitly or explicitly, as in the case of celebrities or other public figures to publicity.

23 (2010) 172 DLT 269 at paragraph 20.

24 (2008) 146 DLT 429, paragraph 9.

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3.3. In the interests of the ‘victim’ of such activity, the payment of damages should follow where the operation has been found to be false or otherwise not in compliance with the guidelines in their codified form.

3.4. We do not foresee a need for a separate statutory adjudicator for cases involving

sting operations.

Disclosures of Private Information by the Press

3.5. Cases involving the disclosure of private information will involve a balancing between the competing fundamental rights to privacy and free speech. The legislature has recognized the need to withhold personal information in some cases. Accordingly, Section 228A of the Indian Penal Code restrains the publication of the identity of victims of the offences enumerated in Sections 376, 376A, 376B, 376C, 376D and 376E, IPC. The legislature has also recognized the special status of minors’ privacy. Section 21 of the Juvenile Justice (Care and Protection of Children) Act, 2000 protects the identity of alleged juvenile rapists. Similarly, Section 23 of the Protection of Children from Sexual Offences Act, 2012 lays out requirements which the media must meet in the interests of the privacy and reputation of the minor who is the subject of the report. Specifically, the provision requires that children’s identity and any other identifying information including names, addresses, photographs, family details and so on be withheld from media reports.

3.6. In general, the lawfulness of any particular disclosure of private information should

be left to adjudication and subsequent remedies, rather than to legislative prior restraint. This is because the determination of whether the content in question is “private” would have to occur in context. For example, facts such as the manner in which the content in question was obtained may be significant to this determination.

3.7. This need for contextual assessment is embedded into the standard in other

jurisdictions. The United States of America’s constitutional law, for example, uses a two-prong test to determine whether a given activity or piece of information is private:

- the existence of a subjective element, i.e., where an individual exihibits an

actual expectation of privacy;

- coupled with society’s recognition of that expectation as (objectively) reasonable would raise a constitutionally protected expectation of privacy.25

3.8. Once a fact can be shown to be private, the justification for the invasion of privacy

and its service to the freedom of speech must be considered.

3.9. The default rule must be to respect individuals’ privacy in their persons, homes, correspondence and private and family lives, and in any other matters in which they

25 Katz v. United States, 389 U.S. 347 (1967), Harlan J.’s concurrence (the test originated under the Fourth Amendment).

16 have a reasonable expectation of privacy. However, disclosures would be permissible where there is a clear and overriding public interest in the disclosure of the information, such as, where the figure is an incumbent of public office or other position of power and the speech relates to his/her activities in or relating to the use of the office, where the figure is closely affiliated individuals holding public office or positions of power and the matter concerns the abuse of the office or is otherwise of public importance or where public order concerns arise out of communications or actions in private context (as with planning terrorist activity over private correspondence).

3.10. A second (but not mutually exclusive) class of cases would relate to cases where

individuals have invited or allowed publicity, such that they would no longer be anonymous private persons. Celebrities, for instance, signify a lowered expectation of privacy than ordinary citizens, and are treated as such. The Supreme Court delineates the sphere of activity which is purely private and also seems to recognize that an invitation of publicity would mean reduced expectations of privacy:

“A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters. No one can publish anything concerning the above matters without his consent - whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.”26

3.11. It is important to note that argument for curbs on the right of the press to report in

the interests of privacy is being led by public figures. The Nira Radia Case, presently sub judice at the Supreme Court and due for hearing August is one instance of this. We acknowledge the need for clearer standards on who qualify for ‘public figure’ status, and also need for nuance and flexibility in these standards. Concepts such as ‘voluntary’ and ‘involuntary’ public figures27 or ‘limited purpose public figures’28, which emerged in the context of the need for balancing between reputational interests and the freedom of speech would also be useful starting points.

3.12. We would propose that a legislative framework to govern the determination of

public figures standards such that privacy concerns as well as reputational concerns for the purpose of privacy protections as well as defamation law are addressed. We would submit that the law should apply generally, so that the press institutionally as well as private individuals commenting online can avail of the public figure and public interest exceptions.

26 Rajagopal and Another v. State of Tamil Nadu, AIR 1995 SC 264.

27 Wolston v. Reader’s Digest Assn., Inc., 443 U.S. 157 (1979).

28 Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

17 3.13. We do not foresee any need to amend the definition of “identifiable larger public

interest”. It is open-ended by design and allows for case-by-case analysis. Drawing up a closed list would neither be feasible nor right-preserving.

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IV. TRIAL BY MEDIA

Summary

• Reporting of court proceedings should be addressed by facilitative standards rather than by sanctions alone.

• Enforceable guidelines may be necessary to ensure that the countervailing interests to that of open justice are preserved.

• Postponement orders are unjustifiable restraints on the freedom of speech in their current form because they operate on a vague standard and disregard the need for transparency in court proceedings.

• The postponement remedy must be retooled into a narrow and specific one, so that the legitimate aim of preserving of the right to fair trial is protected.

Reporting Sub-Judice Matters

4.1. Given the very real dangers of sensationalism and reporting inaccuracies in a

breaking news culture prioritizing early reporting often at the cost of accurate reporting,29 we recognize the need for some regulation of the reporting of court proceedings and matters which are being investigated in the run up to trial. At a broad level, we would advocate that any regulation of media reporting of the courts be enabling rather than restrictive.

4.2. Reporting of sub-judice matters may require specific guidelines, which account for the following: - individual privacy - personal safety - reputation. - the presumption of innocence - measures by which the integrity of crime scenes evidence is maintained - public safety and national security - accuracy

4.3. Even at common law, the publication of the fact of arrest and incidental

information (such as the nature of the charge) was recognized as protected speech which fell outside courts’ contempt jurisdiction.30 Since the principle of open justice continues to remain an important benchmark, attempts should be made to

29 See e.g., Nandita Haksar, Tried by the Media : The S A R Geelani Trial, SARAI READER 4 159 (2004).

30 R v. Payne, 1896(1) QB 577.

19 ensure that the information made available about the adjudicatory process is always accurate. There are a number of ways by which accuracy in the reporting of court proceedings can be facilitated. These include:

- the appointment of a single window at the Supreme Court and High

Courts where clear factual summaries of the events that transpired in the courtroom in cases of public interest are made available to the media, for an affordable fee if necessary.

- providing space for unaffiliated specialized legal journalists in all courtrooms, and create a system by which their reportage can be passed

- making provisions for the training of journalists in basic legal issue in

order to improve the quality and accuracy of their reporting. The 200th Report of the Law Commission also recognized the need for measures on this count.

- Where the media’s coverage involves speculative claims about the

outcome of the case or which has the effect of affecting the reputation of individuals (witnesses, accused and so on) involved in the case, the institution of the requirement of coverage of the final outcome in proportional terms to the initial claims, along with any criticism of that ruling that the channel, newspaper or journalist may choose to present. Such a requirement would be an Article 19(2) compatible measure as it would assist in the preservation of the reputational interests of the parties involved.

Postponement Orders

4.4. In Naresh Shridhar Mirajkar v. State of Maharashtra31, the Supreme Court ruled

that courts’ inherent powers would cover barring media reportage or public debate in the press on sub-judice matters. This ruling articulated the principle that courts contempt powers extended to suppressing publication of content where it was in the interests of the administration of justice to do so.

4.5. But the Supreme Court went even further in Reliance Petrochemicals Ltd. v.

Proprietors of Indian Express Newspapers Bombay (P) Ltd.32 and in Sahara India Real Estate Corp. Ltd. v. SEBI33. In the former case, the Supreme Court held that preventive injunctions against the press would be granted wherever there are “reasonable grounds for keeping the administration of justice unimpaired”, and that such “reasonable grounds” would arise if the danger to the administration of justice is “real and imminent”.34 The latter case created a new writ which would be granted where petitioners are able to show a “real and substantial risk of prejudice to the

31 AIR 1967 SC 1.

32 AIR 1989 SC 190.

33 C.A. No. 9813 of 2011 and C.A. No. 9833 of 2011 with I.A. Nos. 14 and 17 in C.A. No. 733 of 2012 (Judgment dated September 11, 2012 ) (Supreme Court) .

34 Id.

20 proper administration of justice or to the fairness of trial”..35 The Court does not go on to explain the standard, remarking only that the standard is a “neutralizing device” which balances the competing interests of the freedom of speech and the right to fair trial.

4.6. The Supreme Court’s own approach to prior restraint, even in the interest of public

order concerns, has always been to treat pre-publication prohibition as the exception rather than the rule.36 Postponement orders reverse that approach, and also narrow the scope for effective remedy available where there is some error in the grant of the postponement writ.37

4.7. The standard of a “real and substantial risk of prejudice to the proper administration

of justice or to the fairness of trial” which the Supreme Court laid down in Sahara v. SEBI38 is an indeterminate one as there is little guidance with regards to its application. In addition, it ostensibly sets a lower standard than would apply in cases where no fundamental rights are immediately endangered and injunctive relief is prayed for and the irreparable harm standard must be met. There remains a real danger that the need to move the court for the remedy (and the costs to litigants and the expertise required to do so) raises a strong likelihood that they will become no more than “instrument[s] in the hands of wealthy and influential litigants, to subvert the course of open justice.”39

4.8. Swatanter Kumar v. Indian Express 40 for instance demonstrates the need for

transparency in the conduct of the proceedings in a given case. 41 While acknowledging the danger that sensationalized and under-researched reporting of ongoing proceedings pose to the rights and reputation of criminal accused, we would also emphasise that a category of cases, of which trials involving imbalances in power as between parties or where judges are to consider the conduct of another in their own profession, in which public scrutiny is beneficial to the ends of justice by ensuring accountability and in the appearance of it to the public.

4.9. Postponement orders would also have worrying consequences for the freedom of

the press even though they are intended to apply for a temporary duration given that “news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest” to public debate. 42 In

35 Id., paragraph 42.

36 Brij Bhushan v. State of Delhi, AIR 1950 SC 129; Virendra v. State of Punjab, AIR 1957 SC 896.

37 Apar Gupta, The Advent of the Gag Writ, THE HOOT (September 20, 2014) available at http://thehoot.org/web/The-advent-of-the-gag-writ/6309-1-1-7-true.html.

38 Supra, n. 33.

39 Sukumar Muralidharan, A Judicial Doctrine of Postponement and the Demands of Open Justice, ECONOMIC & POLITICAL WEEKLY VOL - XLVII NO. 38, (September 22, 2012).

40 I.A. No.723/2014 in CS(OS) No.102/2014 (Del HC).

41 Chinmayi Arun, Making the Powerful Accountable, THE HINDU January 29, 2014.

42 Mosley v. United Kingdom, [2011] ECHR 774 (10 May 2011), paragraph 117.

21 addition, their applicability for a “short duration” would also be problematic in practice given the reality of delays in the courts.

4.10. We acknowledge that postponement orders may prevent possible contempt, as the

Supreme Court argued,43 and also that even fair and accurate reporting of a trial could be prejudicial to the right to fair trial and to the reputation of parties in litigation. As a result, we would submit that postponement orders must be treated as an exceptional remedy, and be made available in a clearly defined list of circumstances. These could include cases where the trial of only one of several co-accused is complete, where a defendant faces a series of consecutive trials and has plead guilty to one of the several charges in a trial or where there court has passed an interim order, for instance.

43 Supra, n. 33.

22

V. DEFAMATION

Summary

• Criminal defamation provision is a disproportionate incursion into the freedom of speech, and would leave India in contravention of its international human rights obligations.

• Given the reality of abuse of the defamation offence by those in positions of political, corporate or social power, measures should be adopted: o to tighten the provision by raising the thresholds for its application and

by limiting the liability of innocent actors in the information supply chain, and

o to ensure that a fair balance between the freedom of speech and the interest in preserving reputation is struck by instituting costs for

o frivolous complaints and by reconsidering the nature of remedies presently available.

5.1. While journalists are an important stakeholder group with regards to defamation laws and the manner in which they are structured and applied, the Internet is blurring the lines between accredited journalists and citizen journalists. Specialised bloggers are able to offer perspectives online without the obstacle of editors and limited page-space or airtime. The Right to Information Act, which enables ordinary citizens to embark on investigations and perform the function of journalists by publishing their findings also contributes to this blurring of categories. Therefore, we believe that it would be a mistake to decriminalise defamation only for those who have journalistic credentials.

5.2. Content creators acting in good faith should be free to engage in conversation, whether publically and formally or otherwise. While we acknowledge that the preservation of the right to privacy44 and the right to reputation45 are important considerations, we submit that the deficiencies in the law concerning defamation as of present adversely affect freedom of speech of content creators and distributors to a disproportionate degree. Recent applications of defamation law endanger this freedom and. In one recent instance, a law student commenting in an academic capacity on a suit involving a newspaper faced suspect allegations of defamation

44 See, supra, Section III. The Media & Individual Privacy.

45 Id.

23 and a baseless legal notice from a newspaper.46

5.3. We would therefore propose the following modifications to defamation law

generally:

5.4. Firstly, decriminalisation, such that persons against whom allegations of injury to reputation are made are not subject to criminal procedure or punishment. International law recognises consistently that defamation involves no elements which would justify its treatment as a criminal offence, which, on finding of guilt, would result in the deprivation of the freedom of movement and of liberty. The UN Special Rapporteur o n the promotion and protection of the right to freedom of opinion and expression has called on States to decriminalise defamation twice, once in 199947 and again in 200148.

5.5. The UN Human Rights Committee’s General Comment No. 34 concerning Article

19 of the International Covenant on Civil and Political Rights (ICCPR), requires States parties to consider the decriminalisation of defamation, or at least adhere to the principle that “criminal law should only be countenanced in the most serious of cases “49 and “imprisonment is never an appropriate penalty”50. In an observation particularly relevant to Indian courts, it also states that “[i]t is impermissible for a State party to indict a person for criminal defamation but then not to proceed to trial expeditiously – such a practice has a chilling effect that may unduly restrict the exercise of freedom of expression of the person concerned and others.”51

5.6. In addition to the fact that criminal defamation is inconsistent with India’s

obligations under international rights treaties, it would be difficult to argue that the restriction is reasonable (understood in the sense of proportionality) when the burdens of criminal procedure are inflicted on defendants. Accordingly, former Information and Broadcasting Minister Manish Tewari agreed that Sections 499 and 500 of the Indian Penal Code should be repealed.52

5.7. Secondly, the introduction of robust protections for the right to know and the

freedom of the press, particularly in light of the phenomenon of Strategic Lawsuits

46 Prashant Reddy, The Times Publishing House threatens to sue our blogger for alleged defamation – we ain’t going down without a fight!, SPICYIP (May 21, 2013) available at http://spicyip.com/2013/05/the-times-publishing-house-threatens-to.html.

47 Promotion and protection of the right to freedom of opinion and expression, UN Doc. E/CN.4/2000/63, 18 January 2000, paragraph 52.

48 Promotion and protection of the right to freedom of opinion and expression, UN Doc. E/CN.4/2001/64, 26 January 2001.

49 General Comment No. 34, UN Doc. CCPR/C/GC/34, 12 September 2011 Paragraph 47.

50 Id.

51 Id.

52 Times News Network, Defamation should be a civil offence: Tewari, THE TIMES OF INDIA (Aug 7, 2013).

24 Against Public Participation (SLAPP) suits53. These would include measures such as the following:

- The clarification of important concepts, such as ‘public figures’54, and

heightened standards for intent and harm for them and for public officials (as both classes open themselves up to censure made in good faith)

- Raised thresholds before a defamation claim can be brought. Specifically, the introduction of “actual malice” and “willful disregard” standards. Additionally, the introduction of measures by which claims brought by companies, other entities or individuals of high net worth or by public figures against private individuals are treated at with special care.

- The need to demonstrate actual and serious harm resulting from the publication of the allegedly defamatory content, so that frivolous and intimidatory claims can be minimized.

- Introduction of means by which liability for content is limited so that uncertainties with regards to publishers’ liability can be minimized. Ideally, this would take the form of an explicit single publication rule, which limits liability for content, so that only one cause of action can emanate from its publication, irrespective of when, where and how many copies were subsequently produced or distributed. This would be especially important in the context of archival content and of communications online.

- Immunity for Internet intermediaries generally, and in absolute terms for those solely involved with carriage alone.

- Protections for academics and researchers, and for publications on issues affecting public interest intended to further public interest.

5.8. Finally, the introduction of rights-sensitive provisions for damages and costs

- In general, an increased focus on non-pecuniary remedies, such as a visible

retraction of defamatory content or the provision of rights to reply.

- Caps on the award of damages and introduction of requirements for judges to distinguish between institutional media and private individuals for the purposes of computing damages.

- Requirement that costs be levied where a suit is found to be frivolous or brought in bad faith, especially where they are brought by companies, individuals or entities of high net worth or public figures.

5.9. A number of the above recommendations were incorporated in the United

53 Ujwala Uppaluri, On the Unfortunate Rise of the Indian SLAPP Suit, THE FREE SPEECH INITIATIVE (May 24, 2013) available at http://thefsiindia.wordpress.com/2013/05/24/on-the-unfortunate-rise-of-the-indian-slapp-suit/.

54 See, supra Section III The Media and Individual Privacy.

25 Kingdom’s Defamation Act, 201355.

55 2013 c. 26 (UK).

26

VI. PUBLICATIONS & CONTEMPT OF COURT

Summary • The offence of scandalizing the court should be removed from the scope of

contempt law for the following reasons: o The rationale offered at the time of the origin of the offence at common

law no longer holds. o The offence does not engender public confidence in the judiciary, even

assuming that this confidence is necessary to the proper administration of justice.

o The interests of judicial accountability and of public confidence are better served by open debate.

o Injuries to judges’ reputation can be addressed by the existing law of defamation or by proactive measures such as rights of reply.

• The requirement for ‘fairness’ in the criticism of judges is problematic for the following reasons:

o The term is subjective, and the exercise of discretion in their own favour presents the danger that judges will be viewed as self-serving.

o The right to free speech includes the right to communicate information as well as opinion, whether commonly held or otherwise.

Colonial Origins of the ‘Scandalizing the Court’ Offence

6.1. The first use of the terminology of “scandalizing the court” was in R v. Almon56 which held that “[t]o be impartial, and to be universally thought so, are both absolutely necessary for the giving justice that free, open, and uninterrupted current, which it has, for many ages, found all over this kingdom, and which so eminently distinguishes and exalts it above all nations upon the earth”57. That case based its reasoning in the fact that imputations concerning judges would ultimately affect the Crown, as the latter appointed the former.58 The Court went on to hold that “the principle upon which attachments issue for libels upon courts is of a more enlarged and important nature — it is to keep a blaze of glory around them, and to

56 (1765) Wilm 243, 97 ER 94.

57 Id., at 255 and 256.

58 Id.

27 deter people from attempting to render them contemptible in the eyes of the public.”59

6.2. In R v. Gray60, the Court defined the offence as “any act done or writing published

calculated to bring a Court or a judge of the Court into contempt, or to lower his authority.” This understanding of the offence prevails today and is codified by Section 2(c) of the Contempt of Courts Act, 1971.

6.3. By 1899, the Privy Council had acknowledged that the offence was obsolete,61 but

found that it has utility in only context, holding that “in small colonies, consisting principally of coloured populations, the enforcement in proper cases of committal for contempt of Court for attacks on the Court may be absolutely necessary to preserve in such a community the dignity of and respect for the Court.”62 For India, then, the offence is part of a repressive colonial legacy.

6.4. Almon’s rationale, that the mere imputation of partiality, whether borne out in fact

or not, impedes the course of justice, and that keeping “a blaze of glory” around the judiciary is a valuable end in itself is a clearly problematic one, given that modern democratic, rule of law societies do not treat governments as ipso facto beyond reproach. The scandalizing the court offence is therefore a clearly “anachronistic form of contempt”.63

Untenability of the Public Confidence Rationale

6.5. However, the rationale that the Supreme Court continues to offer when employing

its contempt powers to quell criticism or dissent is that the power is necessary in order to preserve public confidence in the judiciary, which is necessary to the proper administration of justice.64 The Supreme Court has itself acknowledged that the law of contempt is intended to preserve the integrity of the adjudicatory process rather than judges’ reputations and that it should only be used as such.65 It has also recognized the need for public scrutiny of the judiciary. 66 However, the scandalizing the court offence does not make that distinction.

59 Almon, at 270.

60 [1900] 2 QB 36.

61 McLeod v. St. Aubyn, [1899] AC 549.

62 Id., at 561.

63 GEORGE ROBERTSON AND ANDREW NICOL, MEDIA LAW, paragraph 7-054 (2007).

64 Bal Kishan Giri v. State of U.P., CRIMINAL APPEAL NO. 555 OF 2010 (Judgment dated May 28, 2014).

65 In Re: S. Mulgaonkar, (1978) 3 SCC 339 at paragraph 40, quoting with approval from R. v. Metropolitan Police Commissioner ex. p. Blackburn, (1968) 2 WLR 1204. (“Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.”)

66 Brahma Prakash Sharma v. State of U.P., AIR 1954 SC 10, quoting with approval from Ambard v. AG for Trinidad, Tobago, (1936) 1704 PC (“Justice is not a cloistered virtue: she must be allowed to suffer

28

6.6. In general, Supreme Court precedent does not appear to have taken a speech-sensitive approach in practice. In E.M.S. Namboodiripad v. T.N. Nambiar,67 for instance, where the Chief Minister of Kerala accused the judiciary of class bias, the Supreme Court upheld the conviction for contempt, on the grounds that his words had “the effect of lowering the prestige of Judges and Courts in the eyes of the people.”68 Again, in In Re: Arundhati Roy69, the Court argued that it was justified in its finding of contempt (and particularly of scandalizing the court) on the ground that Roy had “tried to cast an injury to the public by creating an impression in the mind of the people of this backward country regarding the integrity, ability and fairness of the institution of judiciary” by criticizing the Court. The Court acknowledged that the judges who were the subject of the criticism faced had not been injured, and that the “wrong” had been done to the public.70

6.7. These approaches create an almost paternalistic justification of preventing

criticism, and given that “public interest” alone is not a ground under Article 19(2), would be unjustifiable incursions into the freedom of speech.

6.8. While the stated end of the contempt power and particularly of the power to punish

for “scandalizing the court” (of preserving public confidence in the judiciary) is undoubtedly a valid one, we submit that suppressing criticism would not achieve that end. The United States Supreme Court has recognized that the assumption that respect for the judiciary can secured through enforced silences rather than through open debate and criticism of courts, decisions and judges in good faith is a faulty one.71 In fact, the opposite outcome could result. Especially given the fact that contempt proceedings are summary in nature, there is a palpable risk that they would be viewed as self-serving instead.72 We would also submit that, at any event, the Indian judiciary, as an institution, is a resilient one, fully capable of withstanding the effects of vigorous public debate concerning its functioning.

Checking Value & Chilling Effect

6.9. Broadly, the application of the contempt power in order to secure compliance with court orders or to respond to instances of contempt in the face of the court is consistent with Article 19(2) because such activity would adversely affect the administration of justice if left unchecked. Where the contempt power is applied in

the scrutiny and respectful even though outspoken comments of ordinary men.”)

67AIR 1970 SC 2015.

68 Id., at 2024.

69 (2002) 3 SCC 343.

70 Id.

71 Bridges v. California, 314 US 252.

72 A T H Smith, Reforming the New Zealand Law of Contempt of Court: An Issues/Discussion Paper (2011) at paragraph 3.72 available at http://www.crownlaw.govt.nz/uploads/contempt_of_court.pdf.

29 order to curtail public debate concerning court proceedings and judicial integrity, however, no countervailing interest would be served.

6.10. In addition to the dissonance between the intended object and the actual outcome of the application of the scandalizing the court offence, this approach of stifling criticism of the courts also fails to account for the need for judicial accountability in their conduct and in their decision making. Given the possibility (however slim) of bias or impropriety in judges’ conduct (as other public officials) exists, public perceptions of the existing standards of judicial integrity at our courts would only be burnished through healthy debate concerning our courts and judges. The same rationale that would apply with regards to the other arms of government would apply to the judiciary as well: criticism, particularly of those in positions of political, corporate social or other power (and judges are powerful actors in any democracy’s establishment), serves an important checking function.

6.11. If scandalizing the court refers to any standard it would be an excessively subjective one, which operates on a strict liability basis. In addition to the fact of the arguably realized propensity for overuse, attaching summary procedure and criminal sanctions to such a vague offense is extremely problematic. A direct consequence of this vagueness would be the chilling of speech concerning courts and judges.

Remedies for Reputational Injuries to Judges

6.12. We do not suggest that untruths concerning judicial conduct and decision making

should be allowed to circulate unchecked. Where this is the case, defamation law would allow for reputational injury to judges to be addressed adequately. In addition, other measures, such as instituting a mandatory right to reply where such allegations are made could be considered.

6.13. Therefore, we would propose that measures, including the repeal of the

scandalizing the court offence, be taken so that unless some clear impediment to administering justice would arise otherwise. Where the “dignity of the court” or the reputation of particular judges is in question in particular, special care would need to be taken to ensure that it is not all criticism of the court, but only instances where criticism is based in untruths is treated as actionable.

The ‘Fairness’ Requirement

6.14. In the interests of open justice and the freedom of speech, we would also propose

the removal of the requirement of ‘fairness’ in Section 5 of the Contempt of Courts Act, 1971 as it relates to the criticism:

6.15. We acknowledge that the fairness requirement may be useful where the criticism

would disadvantage a party at trial, and would agree that it is a necessary component of Section 4, provided it is read in parties’ interests. In the context of criticism of judges, however, we would advocate its removal.

6.16. The imposition of a fairness requirement would ignore the fact that the freedom of

speech and opinion under Article 19(1)(a) does not discriminate between

30 viewpoint-based and viewpoint-neutral speech73 and that the Indian press has historically presented content with biases of ideology and opinion. Further, the term ‘fairness’ is a subjective one. If the intended outcome is to preserve public confidence in the courts, it would remain unrealized where a determination of fairness needs to be made by courts. The UK’s Law Commission has recognized that the application of contempt powers would place courts in the position of judges in their own cause, and would create the impression in the minds of the public of a self-serving judiciary.74

6.17. As a result, while the requirement for accuracy, which for test for factual errors or

misrepresentations is a defensible one in the context of criticisms of the judiciary, we would submit that the requirement for fairness is not.

73 Printers (Mysore) Ltd. v. Assistant Commercial Tax Officer, (1994) 2 SCC 434, 441-2 at paragraph 13 (agreeing that a function of free speech is to “invite dispute”); Anand Chintamani v. State of Maharashtra, (2002) 2 Mah L.J. 14, 32-3 at paragraph 19 (holding that “[t]olerance of a diversity of view points” is a “cardinal value which lie[s]” at the very foundation of democratic government”); Terminiello v. Chicago, 337 US 1 (1949) (quoted in Printers (Mysore) Ltd. with approval).

74 Law Commission, Contempt Of Court: Scandalising The Court (Law Com. No. 335) (UK) at paragraph 63-4 available at http://lawcommission.justice.gov.uk/docs/lc335_scandalising_the_court.pdf.

31

VII. SOCIAL MEDIA & 66A

Summary

• Section 66A should be repealed as it has proven problematic, by design, for the following reasons: o Its operative terms are vague. o Its operative terms create a standard considerably higher than those

applicable to speech by private citizens offline without justification. o The provision has a chilling effect on speech. o The provision uses, without justification, the expansive language of

“sending” rather than the clearer terminology of “publishing”. o Executive advisories concerning Section 66A arrests have proven

insufficient in practice and suffer the flaw of vesting discretion with the police, which is independent of influence from the executive, against whom a good proportion of online dissent is directed.

• There is no need for additional authority to address problematic content online because mechanisms for addressing legally objectionable content, including speech which raises public order concerns, already exist.

• Social media should not be regulated by the same authority as press and broadcasting because there is no equivalency between social media and the other two media.

Repeal of Section 66A

7.1. We agree that the section 66A of the Information Technology Act is highly problematic. The government initially took the position that it was the misuse of the law rather than the law itself that was of concern. After the highly publicised Palghar arrests in 2012, 75 the Department of Electronics and Technology, Government of India issued an advisory on January 9, 2013 to all State governments and Union territories, asking them not to arrest any persons under Section 66A without the prior approval from a senior police officer.76

7.2. However, despite the government advisory, Jaya Vindhyala, from People’s Union

for Civil Liberties, was arrested in May 2013 in Andhra Pradesh for posts critical of legislator Amanchi Krishna Mohan and Governor K. Rosaiah on her personal Facebook account.77 Kanwal Bharti a Uttar Pradesh based scholar was arrested in

75 Press Trust Of India, Now Palghar police detain 19-yr-old for Facebook post on Raj Thackeray, THE INDIAN EXPRESS (November 28, 2012).

76Advisory on implementation of Section 66A of the Information Technology Act, 2000, No. 11(6)/2012-CLFE, Government of India, Department of Electronics and Information Technology, January 9, 2013.

77 Staff Reporter, PUCL leader gets bail in Facebook post case, THE HINDU (May 14, 2013).

32 August 2013 for his comments on Facebook, blaming the Uttar Pradesh government for bias against Durga Shakti Nagpal, a civil servant who was suspended controversially for allegedly demolishing an illegal mosque.78 More recently, the application of Section 66A demonstrates a worrying intolerance for dissent. In the past month alone, Section 66A was invoked to arrest atleast 6 people (an engineer in Goa79 and five students in Bangalore80 including one activist of the Aam Aadmi Party81) for content which was “Anti-Modi”.

7.3. The ongoing trend of unreasonable arrests under section 66A clearly demonstrates

that clarifications and advisories are insufficient. In addition, leaving the discretion with regards to when Section 66A should be applied to the police, an arm of the executive, is inconsistent with basic standards required under Article 19 of the International Covenant on Civil and Political Rights. The UN’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression opined that “legislation restricting the right to freedom of expression must be applied by a body that is independent of any political, commercial or other unwarranted influences in a manner which is neither arbitrary nor discriminatory, and with adequate safeguards against abuse, including the possibility of challenge and remedy against its abusive application.”82 It is therefore clear that the law is untenable in its present form.

7.4. Section 66A contain a number of deficiencies which render it unworkable and

unconstitutional. These include the following:

1. A number of operative terms (“grossly offensive” or “menacing character” or causing “annoyance or inconvenience”) in the section are incurably vague. The Thirty-first Report of the Committee on Subordinate Legislation draws attention in explicit terms to the absence of any definitions of these terms and to the mounting instances of the section’s consequent arbitrary application and misuse.83

2. The standards for merely inconveniencing another or causing offence or

annoyance are both subjective and considerably lower than those ordinarily required in order to invite criminal sanction. As a result, section 66A discriminates against content online without clear justification in a manner

78 HT Correspondent, Dalit scholar arrested for Facebook post on Durga, HINDUSTAN TIMES (August 06, 2013).

79 Prakash Kamat, Goan shipbuilding professional faces jail for anti-Modi comment on social media, THE HINDU (May 23, 2014).

80 FP Staff, Bangalore: Youth arrested for sharing anti-Modi messages on WhatsApp, FIRST POST (May 26, 2014) available at http://www.firstpost.com/india/bangalore-youth-arrested-for-sharing-anti-modi-messages-on-whatsapp-1542047.html.

81 Sudipto Mondal, AAP activist held for allegedly sharing anti-Modi MMS, HINDUSTAN TIMES (May 25, 2014).

82 Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, UN Doc. No. A/66/290 (10 August 2011), paragraph 17.

83 Thirty-first Report of the Committee on Subordinate Legislation (2012-2013), paragraph 25.

33 inconsistent with Article 14 and is disproportionate and therefore unreasonable in its restriction of the Article 19(1)(a) right (even assuming that one of the pigeon holes in 19(2) can be applied to cover such imprecise terminology).

3. The terminology used in section 66A does not afford any clarity as to which

content specifically is prohibited and which is permissible. Given that it creates a criminal offense whose violation can mean three years’ imprisonment, by design, section 66A would have an unjustifiable chilling effect on speech.

4. The use of the term “sending” rather than “publishing” extends the scope of the

offence. 84 Private sending of otherwise legal content on the Internet is criminalized, and as a result the same act of sending through media other than the Internet would be entirely legal.

7.5. The Supreme Court is seized of the matter of the section’s constitutionality in Shreya Singhal v. Union of India85, where a number of the above arguments have been presented by the petitioner. In addition, it is important to note that Section 66A is not necessary in order to address problematic content. The Indian Penal Code, 1860 already covers “criminal intimidation” under Section 503, “insult” under section 504 and “enmity, hatred and ill-will” under section 153A(1)(a).

7.6. For the foregoing reasons, we would propose that Section 66A be repealed in its

entirety.

On the Need for Regulation of Social Media

7.7. We would submit that there is no need for an additional regulatory authority with the powers to block content. The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 rules already create a (not unproblematic) procedure for restricting access to problematic content and identify the organization responsible for undertaking the blocking. The introduction of a new regulator would only serve to further chill speech in a medium where even personal communications that would have been permissible in print or in verbal speech are under siege.

7.8. Admittedly, public order concerns and the like would justify curbs on content

online (as elsewhere) to the extent that it is necessary and proportionate. However, a detailed empirical analysis of the blocking of websites undertaken against the backdrop of rioting in Assam, Mumbai, UP, and the mass exodus of people from Bangalore reveals that the response has not been an effective or targeted one, and that procedural irregularities and over-censorship characterized the government’s response.86

84 Pranesh Prakash, The Unconstitutional Section 66A, OUTLOOK (November 28, 2012) available at http://www.outlookindia.com/article/The-Unconstitutional-Section-66A/283149.

85 W.P.(Crl).No. 167 of 2012 (SC) (Pending).

86 Supra, n. 97.

34 7.9. It must be noted that no evidence has been presented to support the argument

that content on social media has incited persons to violence. The content on posted and exchanged on social media could as likely be a symptom rather than the cause of the unrest leading up to violent activity. It is dangerous, therefore, to present narratives such as paragraph 12.2 of the Consultation Paper does.

7.10. In general, we would also note that the proactive measure of countering bad

information with accurate information in cases such as that of the exodus from Bangalore in 2012 would be more medium-sensitive and effective responses rather than blocking, whose effect is often yield the counterproductive result of drawing attention to the speech attempting to be suppressed. In the case of the London riots of 2011, for example, a study by the London School of Economics and the Guardian Newspaper was able to demonstrate that it served an important role in mobilizing in order to clean-up after the riots.87

7.11. Additionally, we would disagree with the proposal for a medium neutral regulatory

authority. Social media differs from a newspaper or television channel on the crucial factor that it consists of institutional actors engaged in speech intended for public consumption and also of private individuals engaged in informal and private communications not intended for mass consumption. The content standards for television channels have also historically been at variance with the standard for publications. While converged regulators do exist in other countries, this does not imply that a converged standard is created for content across the media - the regulators are structured in a manner that provides for the difference in medium.

87 James Ball and Paul Lewis, Twitter and the riots: how the news spread, THE GUARDIAN (7 December 2011) available at http://www.theguardian.com/uk/2011/dec/07/bbm-rioters-communication-method-choice?guni=Article:in%20body%20link.