Trying to understand a blogger’s legal rights and responsibilities.

I attended Make Blog Not War – a freedom of expression training workshop for bloggers, organized by the Internet Democracy Project recently.

The idea was to be able to write confidently about issues close to my heart with more awareness and clarity about a blogger’s legal rights and responsibilities.

As someone who thinks the best thing about India is it’s Democracy [link] – I wanted to be aware of the rules that ensure it functions smoothly; to understand, if and when objective criticism of social norms or religion or a book or a Court verdict could become a legal offense.

What did I learn? (Please correct me if I am wrong.)

Blog owners are responsible for not just the content they publish but also for the links they share and the comments on their blog. As ‘intermediaries’ they are,

//…not to host, display, upload, modify, publish, transmit, update or share any information that —

…is grossly harmful, harassing, blasphemous defamatory, obscene,
pornographic, paedophilic, libellous, invasive of another’s privacy,
hateful, or racially, ethnically objectionable, disparaging, relating or
encouraging money laundering or gambling, or otherwise unlawful in any
manner whatever;//

[Read more: Intermediary Guidelines]

I have more problem with ‘disparaging’, ‘obscene’ and ‘blasphemous’.

1. Disparaging to whom? So, if we are to criticize without breaking any laws, it would have to be without being ‘disparaging’?

Does it mean when we rant against Dinesh Reddy, C C Patil, Muthalik and even Mamta Banerjee and Kapil Sibal, are we breaking a law?

This is confusing because Kapil Sibal clearly said we are not; in  his own words, “I think that the media has the right to criticise, the media has the right to be satirical and that’s part of the freedom of expression that we ourselves in government cherish.” [link]

And what did Kapil Sibal mean when he said we could even say we hated him?

2. Obscene includes what? Are discussions/opinions about premarital sex obscene? The Supreme Court has made it clear they are not. “At the most it is a personal view. How is it an offence? Under which provision of the law?” [Link]

There should have been clarity, since ‘pornographic’ and ‘paedophilic’ are separately listed.

3. Blasphemous reminded me of Pakistan’s Blasphemy law.

It also seems unconstitutional.

In Jan 2010, Bombay High Court,…brought joy to civil rights activists when it held that, “in our country, everything is open to criticism and religion is no exception. Freedom of expression covers criticism of religion and no person can be sensitive about it.”

…”Healthy criticism provokes thought, encourages debate and helps us evolve. But criticism cannot be malicious and must not lead to creating ill-will between different communities… (it) must lead to sensible dialogue.”  [link]

4. It seems these Intermediary Guidelines also make us responsible for the links we share? What if a blog post was edited after we have shared a link to it?

Why make rules that are impossible to follow?

The new ‘Intermediary Guidelines‘ and the Cyber Cafe Rules that have been in effect since April 2011 give not only the government, but all citizens of India, great powers to censor the Internet.

…Such censorship existed during Stalin’s rule in the Soviet Union. Not even during the Emergency has such censorship ever existed in India.

[Read more at Kafila.org]

I had expected clarity – well defined rules so that law abiding citizens could feel confident when they blogged for what they cared about – social justice in my case.

What is the government trying to achieve by these guidelines? Has the government forgotten,

“It is not the task of the criminal law to punish individual merely for expressing unpopular views. The threshold for placing reasonable restrictions on the ‘freedom of speech and expression’ is indeed a very high one and there should be a presumption in favour of the accused in such cases.  [Click to read more of what the Supreme Court had to say...]

In Feb 2009, 19 year old Ajith D was told by Supreme Court,

…if someone files a criminal action on the basis of the content, then you will have to face the case. You have to go before the court and explain your conduct.” [Link]

But perhaps we should not lose heart, because MediaVidea explains, “…all the court has done is to say that “let the law take its own course and let the Maharashtra High Court look into the matter.” [Do read!]

He further says, “… I have faith in our Justice system. Bloggers are not going to face a million lawsuits in India.”

That’s true perhaps, and I think Ajith D will win the case – but the problem is,  ‘The process is the punishment — just going through arrest, bail or being banned can unsettle anyone’ [link]

Blogging in a democracy should not be like walking on egg shells.

So what is it that we cannot discuss on our blogs?

‘Are Indians not allowed to have any (to put it mildly) uncharitable opinions against Shiv Sena (or any political party, for that matter)?’ and ‘If no, is it a crime to open that opinion to discussion — in print or online?’ [link, Karthik S, Feb 2009]

But there is hope,

The Supreme Court observed in Union of India v. Assn. for Democratic Reforms:[5] “Onesided information, disinformation, misinformation and non information, all equally create an uninformed citizenry which makes democracy a farce. Freedom of speech and expression includes right to impart and receive information which includes freedom to hold opinions” [Freedom of Expression in India, Wikipedia]

Reminds me of what I have always believed -

Freedom of expression comes with responsibility. The responsibility to protect it from censorship.

Related posts:

1. Censoring Indian Blogs – Monumental Stupidity Bhagwad Jal Park
2. Invisible Censorship – How India Censors Without Being Seen: Pranesh Prakash – Kafila
3. ‘Our policy is to ban first and hear later’
4. The Indian Blogger as a Journalist, and legal implications - MediaVidea
5. Should Indian Bloggers Vote as a Bloc? – Bhagwad Jal Park

39 thoughts on “Trying to understand a blogger’s legal rights and responsibilities.

  1. No. Mature discussions of pre-marital sex are not obscene. These words are defined differently for every country, but for India the relevant standard is that;

    Any work that appeal predominantly to “prurient” interest. And any work that depicts or describes sexual conduct in a patently offensive way.

    But even if a work would be obscene by this definition, it is still legal if it is proved to be in public interest, such as work related to science, literature or religious purpose.

    A mature discussion of any theme, including sexuality, fulfill a public interest, and is not something that can be said to appeal to prurient interests, thus it is allowed. (as it should be!)

    The thing about blasphemy confuse me slightly as it is not generally forbidden to critique religion in India. Hopefully what they are referring to is part 295 of the penal code which says that it is illegal to;

    “insults or attempts to insult the religion or the religious beliefs of any citizen with deliberate and malicious intention to outrage their religious feelings.”

    This does not outlaw every negative statement about religion. But only those statements which are *deliberate* and *malicious* and which clearly has as their intention to cause outrage and/or hurt religious feelings.

    India is actually one of the best countries in Asia about internet-freedoms, you score 36 on the freedom-index (where 0 would be the best score, and 100 the worst) and this is the best score in Asia, and also a better score than some European countries.

    But yes, troubles still remain.

      • You can blog about most things. For example, I don’t think there’s even a single of the many blog-posts you have made that have been legally questionable.

        I do agree with you that Freedom of Speech should be help even higher, for example I don’t think there should be any rules against blasphemy, not even that which can be said to be “malicious”. A religion should be able to tolerate critique just as well as any other organisation.

        Posts which maliciously tell untruths about individuals, should remain forbidden, because Freedom of Speech does not include the right to attempt to ruin other peoples reputations for them. But critique of anyone in power, be it a religious leader or a political leader or a business-owner, should be allowed without limit as long as deliberate lies are not maliciously used.

        Stating your opinion should always be allowed. You cannot have a functioning democracy without the ability to freely discuss opinions, even such ones as some people may consider offensive. (there are many people who, for example, would consider it offensive to suggest that gay couples should have precisely the same rights as heterosexual couples)

  2. This is disappointing and ridiculous.

    It is disconcerting to note that any one who feels offended or who is jealous of the blogger or harbours a grudge can now harrass the blogger by claiming that something is “obscene” or “grossly harmful” or “harassing” or “blasphemous” or “defamatory” or “libellous” or ” invasive of another’s privacy”, or “hateful” or “racially or ethnically objectionable”, or “disparaging”.
    What a wide choice of adjectives for the target of a blogger’s criticism!
    Nearly every single post here can be covered under one of these adjectives.
    Rapists will find your posts disparaging at least if not hateful.
    Shravan Kumar or Ananya can round up all your “firebrand feminists” who comment so eloquently here against “patriarchy”.
    Muttalik will be licking his lips in anticipation if he comes to know!
    What about my comments? Have I too crossed the Government’s Lakshman Rekha?
    Gosh! Did I really recommend chemical castration for rapists?
    Me and my big mouth!
    Now even I am developing cold feet!
    Better get myself a new name for commenting on blogs.
    Will “darpokjee” fit the bill?
    I hope none of the above adjectives apply to this comment.
    It is heartening to see that “sarcastic” is not included.
    Quick! Let’s all exhaust our sarcasm before Big Brother gets wise and includes this too.

    Regards
    GV

    • Why should it require bravado to simply give your opinion?
      I also wonder just how does this government define ‘Freedom of Expression’.

      If we can only say what those in power or those with an army of lawyers want to hear, then why do we need Freedom of Expression, we can do that even in Pakistan or China.

      • I agree IHM.

        @GV They do allow us the right to hold an opinion (phew!) As long as we don’t disparage one single rapist (!), we should be “safe”. Henceforth, I’ll prefix all my “firebrandey” comments with an “I believe” or something to that effect

        The “disparaging” part is so depressing. The US has shows like The Daily Show and The Colbert Report which go out to their way to mock politicians. Some of the things they say definitely are obscene, and outright mocking. These are publicly aired on TV without a protest from the mocked-at politicians. And the republican campaigners put up “Impeach Obama” posters that showed him with a little Hitler mustache. Why do WE have to pander to every Shiv, Ram and Bajrang Bali Sena that exists?

        Denouncing the likes of a certain molester officer is now a punishable criminal offense? I want my freedom of expression back.

  3. Well I do believe with great freedom comes great responsibility. Because we have a platform to put worth our ideas in front of a million people and that to be for free doesn’t mean that we can write whatever we want.
    There is difference between critiquing and defaming, discussing and maligning or being offensive.
    The laws that apply to the media do apply to us also and why shoudn’t they?
    Shouldn’t one have constitutional remedies in case someone is out there writing rubbish about you or me.
    For example in event of a rape case can’t the accused use the internet to raise questions about the woman’s sexual character!!
    Yes as long as am i writing about Karnataka MLA watching porn in the assembly and being all hypocritical is ok but what if I start passing statements like ‘oh i bet ****** ***** don’t satisfy them’ or shit?

    • AN I agree. So how do we avoid ‘disparaging’ someone while we criticize them? Is it okay to ‘disparage’ a suspected rapist – specially before he is even convicted?
      Edited to add:
      I think we need clarity.
      Do you remember Muthalik had threatened to take pink-chaddi senders to court because they compared him to Taliban?
      And Shiv Sena took Ajith D – a 19 year old Orkut user to court, because some anonymous commentators in the community he created criticised Shiv Sena.

      Also, what exactly does Freedom of Expression give us that we otherwise would not have had?

    • It does not equal defamation if what is being said about the person is true or widely accepted. If a rapist defames his victim, then the victim should be able to sue the rapist in civil court for defamation, slander or libel depending on how he did it, harassment and causing emotional distress.
      Also critiquing or so called “disparaging remark making” happens only in response to some event for which the person being “disparaged” is actually responsible for like a politician for some law, an actor/actress for drunk driving etc.
      I cannot simply wake up one day and call my neighbor a rapist, or child molester or even an embezzler. I need some kind of proof to back up my allegation.

    • There is a difference between discussion, and being offensive. But the limit is not clear, because some people choose to be very easily offended. If I say: “Gay couples should be allowed adopting children”, some people will find this suggestion offensive. If I make a innocent drawing of Muhammed, I may even receive death-threats from offended muslims.

      So the question then is; who decides what is “offensive” and what is not ?

  4. Listing cases that I know of, for my own reference. Please do add if you know of any other internet users who have faced censorship –
    1.Chetan Kunte – blogger
    http://mediavidea.blogspot.in/2009/01/chetan-kunte-blogging-hero.html
    2. Ajith D – (Orkut community)
    http://itwofs.com/beastoftraal/2009/02/24/pandoras-blog/
    http://articles.timesofindia.indiatimes.com/2009-02-25/india/28008380_1_bloggers-defamation-value-sc-verdict
    //19-year-old Ajith D from Kerala. His web community, not blog, on a social networking site, carried several anonymous comments accusing Shiv Sena of trying to divide the country on region and caste lines. The Sena’s youth wing, in turn, filed a criminal complaint against Ajith in Thane police station. After getting anticipatory bail from Kerala HC, Ajith moved the SC to quash the complaint on the ground that the contents did not have defamation value.//
    3. Aseem Trivedi – cartoonist
    http://blogs.outlookindia.com/default.aspx?ddm=10&pid=2710&eid=31

  5. I do beleive that blogging comes with responsibility, but saying that does not mean I will not air my mind, maybe i will change the language i am using if someone comes and says he/she is hurt with it . Thats all.. but yeah as you said we need to be sure what links we are providing etc, that is our responsibility..

    and totally agree with the law for media should apply to us too.

  6. There is a lack of clarity with respect to what is ‘obscene’, ‘disparaging’, ‘blasphemous’ etc. etc. It’s all too subjective. It comes out that I may be guilty on almost all counts based on the gamut of adjectives that you have italicized in reference to intermediary guidelines.

  7. China has invested heavily in monitoring and creating a firewall around the content accessible to their people.

    India cannot do so without obvious political and civil backlash, not to forgot the international outrage. So they have created these rules which are near impossible to follow – so the ones in power can crack down on users and harass them. It is like they want to mark everyone as guilty but enforce the law when and if they please.

    The govt does not fear the a few derogatory articles or photos but it fears a platform it cannot muzzle effectively whenever it needs.

    Also the Press Media in India has been pretty disappointing which is hardly critical of the government when they try passing laws which hurt social networks, blog and other open platforms. It probably could be, because they look at the internet as something that affects their exclusive access and distribution of news and information.

  8. At the end of the day, a blog is just an opinion even though it may be a very good opinion in bringing up a progressive change. That said, everybody has a right to their opinion. Any disapproving opinion about another person can be taken ‘disparaging’, ‘blasphemous’ etc. For example, Ananya’s comment in this blog is her own opinion. Was it taken as a disparaging or blasphemous opinion? If yes, under which law?

    • The thing is, we are still being told there is still no restriction on our FoE… but recently I couldn’t comment on a site or read any comments on it – while reading about Rape Culture 101 – let me find the link.

  9. I’ve been pretty depressed lately with all the attacks and stupid laws on FoE in India. Seems the only people who “get it” are lots of people in the public sphere and the Supreme Court. Everyone else is out to screw our rights and make India into another Pakistan or China.

    Politicians, religious bigots, social gatekeepers, the police …everyone is out to ruin the most beautiful thing about our country that sets us apart from the rest of most of Asia.

    • Bhagwad, your comment reminds me of how the Supreme Court had in the past also got CNG buses in Delhi, and recently supported gay rights, and I am sure we will see FoE protected too.

  10. Why so many laws?! Why can’t we just blog? and keep things simple… if someone doesn’t like what we write, they can always close the window and move on… the internet is a vast universe with diverse opinions and views – just like how people have them in “real life”!!
    In “real life”, one can’t be put in jail just because the said person doesn’t support a particular political party or has radical views about pre-marital sex, affairs and adultery!!

    • The problem is not “many laws” and there is no reason to keep things “simple” speaking more generally. If we apply this logic to everything, we will be a lawless group of people resorting to violence at the tiniest of offenses. That being said, I believe we need to have freedom of expression without fearing violence.

  11. Good post and very informative links. I am optimistic about the future for freedom of expression in India. My optimism is due to following facts.
    1. Indian Democracy is as strong as ever.We had recently the largest state of the Union completing elections peacefully and with record polling. There is no immment threat to our democracy. Better still there is no chance in immediate future of a single political party getting majority at the centre.
    2. All over the world winds of democracy is gathering speed.
    3. Our judiciary, especially at the Supreme Court level is relatively independent and not afraid of the Govt. It’s ruling were generally pro free speech,
    More than Govt interfering I am more worried about Corporates joining together to curtail activities they do not like on the Internet, as it happened with Assange’s Wikileaks,

    Me – Wow. I agree… gives me hope too.

  12. Is there really true freedom of expression in India? I don’t think so. It’s called a democracy but it’s really not. Talk against shivaji and you will have the SS at your door in minutes, state that youngsters can indulge in premarital sex if they wish, and have people denounce you and threaten legal action, or make satirical posters of politicians, and be threatened with wide ranging internet censorship.
    Or else, try and make a hard hitting film (or write a book) on a sensitive topic (religion, politics, riots, whatever) and be prepared to see it banned without notice. We have a long way to go before we claim that real freedom of expression exists in India, because no matter how tactfully you try to state your opinion, some sensitive person will be outraged that you are stepping on their toes. Just two words suffice for our present countrymen: Grow Up!

  13. I like what you say on your blog homepage on the top right side:
    “I may disapprove of what you say, but I will defend to the death your right to say it. ”
    To me, that is freedom of speech!

    • I’m seconding Mypunchingbag.

      It’s high time people in power realized two things.
      1) If one chooses to be in the public eye, one has to be prepared for the repercussions of that decision, namely being judged, critiqued, made fun off etc. This comes with the territory.

      2) When one is responsible for making decisions that affect millions of people directly or indirectly, one better be prepared for some opposition to one’s ideas.

      We criticize movie stars for drunk driving or even being too thin saying that they are being wrong role models, when they neither force us to drink and drive or to starve ourselves to attain unrealistic standards of beauty. We disparage them because we feel that our young might be “influenced” by them.
      Politicians have to take note of this, and start developing some thick skin, because their decisions actually affect how people, live, work and lead our lives. So unless someone actually threatens their physical safety, I don’t think they have any right to get offended, let alone complain.

  14. As I read the post, the first thing that struck me was what you had written in your blog –
    “I may disapprove of what you say, but I will defend to the death your right to say it. ”

    Thats what Freedom is all about..but I guess MyPunchingBag bet me to putting it on first :)

  15. Censoring Freedom of Expression is so complex. While I do believe that India is getting better not worse in terms of freedom of expression and totally agree with Arun’s comment up there, I am hesitant about the future of freedom of expression.

    I think these kind of laws push individuals towards self censorship which is probably the worst form. Don’t you think fewer individuals will express controversial opinion if they thought there was a possibility of being taken to court or worse still a threat to life and security?
    Did you hear about this highly critical and satirical French magazine/newspaper Charlie Hebdo whose offices were burnt following the release of an edition that was a satire on an Islamist party gaining power in the Tunisian elections.
    http://www.nytimes.com/2011/11/03/world/europe/charlie-hebdo-magazine-in-paris-is-firebombed.html
    France has several magazines and TV shows that openly and unapologetically criticize everything!

    The thing is where do we draw the line? India is far more conservative in the Freedom of Expression issue as compared to France but ironically Mein Kamf was banned in France for several years and is displayed openly in Indian book stores, while Satanic Verses – French translation was a best seller and is still banned in India, so it has so much to do with perception.

    Sorry for the lengthy comment and I hope nothing here puts your blog in danger IHM ;-)

  16. Pingback: Internet Democracy Project » Blog Archive » Make Blog Not War – A Freedom of Expression Training for Bloggers

  17. Pingback: Internet Democracy Project » Blog Archive » Blogger’s Legal Rights and Responsibilities: A Blogger Tries to Understand

  18. Of them all, Section 66A of the IT Act seems to take the cake. This is the most abused, which bloggers and Aam aadmi’s (and aam aorat’s too :) should fight against. A few links:

    1. Business man and IAC Volunteer sends tweet comparing the wealth of two congress politicians, gets arrested. http://www.thehindu.com/news/national/iac-volunteer-tweets-himself-into-trouble-faces-three-years-in-jail/article4051769.ece

    2. Fee hike protests in an indian school in a foreign country + Gandhian judge in Mumbai and report in DNA news paper: http://www.dnaindia.com/world/report_indian-expats-fight-fee-hike-through-blogs_1166668 and the retaliation arrest comes through IT Act Section 66A arresting whistleblower principal: http://www.mumbaimirror.com/article/15/20100415201004150444035498c0a203/Ecole-Mondiale-staffer-arrested-for-defaming-exBombay-HC-judge.html

    3. Another whistleblower pursued by Punjab police: http://articles.timesofindia.indiatimes.com/2010-07-27/india/28280794_1_punjab-police-jay-polychem-samdeep-varghese

  19. Pingback: #MakeBlog: Bloggers and the IT Rules – A Blogger’s Perspective – The Internet Democracy Project

  20. Pingback: Arvind Kejriwal. | The Life and Times of an Indian Homemaker

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s