BY APAR GUPTA – INDIAN LAW AND TECHNOLOGY BLOG
Apar Gupta is a litigator (and blogger!) based in New Delhi. We invited him to join Make Blog Not War as one of the trainers. His brief: to help the bloggers understand the legal framework that governs their activities. In the blog post below, Apar gives an overview of the most important queries that came up during the Make Blog training, and his responses to them. The original post can be found here. Essential reading for everyone who blogs!
“Thanks to the Internet Democracy Project, I had the chance to spend a wonderful Saturday with an intelligent and challenging group of bloggers. The meet was to discuss internet censorship and the track for my Q&A session were the legal concerns of Bloggers.
The more we interacted with each other, the more it became clear that though the group was not naturally risk averse, they wanted to know the the legal penalties which may result from blogging. Though most of the discussion was individualized, I think there are some common queries which are suitable for a wider audience. I have summarized some of them below.
1. Bloggers are not intermediaries, they are authors
Internet Intermediaries are service providers which facilitate communication and information exchange. Quite similarly placed as telephone companies or parcel delivery companies, they are not usually held liable for the content of the message if they observe due diligence and when being notified about the contents illegality, take down the content. This is a limited exemption from liability which exists in law and extends both to civil and criminal actions. This exception from liability is contained under Sec. 79 of the Information Technology Act, 2000. The conditions for availing this exception is further detailed in the Intermediaries Rules, 2011.
Quite clearly this exemption from liability is granted on the premise that the Intermediary is merely providing an information link and is not monitoring or editing the content. Hence, the exemption from liability vanishes the minute anyone creates the content. This is what usually bloggers do. They author posts.
Going by the law as explained above, this exemption from liability would not in any case apply to bloggers for the posts authored by them. This also applies to micro blogging websites, twitter as well facebook status messages/notes which though may not be public but are shared with a wide body of people.
This being said, the position for extracting posts made by others, or republishing them in entirety or even the comments section is more complex and requires analysis. Though liability may not automatically and ultimately attach to a blog owner for comments the probability of being arraigned in a legal action remains on grounds of abetment of the injury complained against the primary author.
For instance, we the case of Ajith D. In 2009, Ajith D started a Orkut community critical of the Shiv Sena, in which some anonymous posts were made alleging that Mr. Bal Thackrey was communally divisive. Due to this content a Criminal Complain was lodged against him, though he obtained bail from the Kerala High Court he approached to the Hon’ble Supreme Court to quash the criminal proceedings against him. The Supreme Court in its order refused to quash the FIR and asked him to face trial where evidence would be lead and he could plead his innocence on the grounds that he was an intermediary and the purportedly illegal posts were not made by him.
Takeaway: You are liable for what you say online
2. Look at the Legal Process as much as the Legal Provision
India has a wide body of laws which prescribe for criminal and civil sanctions on the basis of speech. These content laws are usually not limited by medium and with refinements and nuances apply to the internet as much as they apply to the ink on paper. Though the legal process has a marked contrast with respect to criminal trial and civil actions.
In criminal cases, a lot depends on the sections on which the offence is alleged in the FIR. This is material since the offence is matched against a section of law, usually in the Indian Penal Code, 1860 which contains the ingredients of the offence as well as the punishment. Secondly, the specific section relating to the offence can either be “bailable” or “non-bailable”. In cases of bailable offense i.e. after the police arrests the accused, the accused can immediately apply for bail to the police station officer itself. Here bail is normally granted and the accused does not have to spend time in custody. However, most offences under the Indian Penal Code, 1860 which apply to content offences are non-bailable. Even if they are bailable, the police usually tries to keep the FIR as wide as possible, containing as many sections under which offences may not even be made out as limiting the scope of the FIR may result in acquittal. Hence, non-bailable offences are the norm.
In a non-bailabale offense, the accused will usually end up spending some time in jail if the police manages to arrest the accused. The accused will remain in police custody till the court grants bail. This process is time consuming and hence the accused may end up being in a police lock up for sometime. If the police does not manage to arrest the accused then the accused can apply for anticipatory bail to court, however if the court refuses the grant of anticipatory bail, then the accused may be arrested by the Police and will then have to again apply for regular bail.
The conditions for bail are extremely restrictive on the liberty and movement of a person. Usually an accused is required to deposit their passport and make an application in court in case they want to travel. Further limitations include personal presence of the accused, which may be dispensed with with an application to court, however this is also up to a court, which may decide that the accused should be present on each date the case is heard. Moreover, given the incredible pendency of cases, a criminal trial can sometimes exceed the average life expectancy of a person. Hence a
person accused may be tied up in a criminal action for an incredibly long time.
To see how this plays out, take the case of Avnish Bajaj who was at one time the CEO of Bazee.Com which subsequently got acquired by Ebay. He was arrested on charges that his website carried a listing which offered for sale a video clip, shot on a mobile phone, of two children of a school in Delhi indulging in an explicitly sexual act. This was when he went to the Delhi Police voluntarily for questioning.
After spending more than a week in a police lockup he finally obtained bail in 2004 by an Order of the Hon’ble Delhi High Court. However, the criminal trial still proceeded against him. To make this stop, he filed a quashing petition which was decided in 2008 by the Hon’ble Delhi High Court. Since, the Hon’ble Delhi High Court did not quash all the offences which were contained in the chargesheet (a chargesheet is a document filed by the police in court, which contains a list of the offences contained in the FIR matched against the evidence gathered by it), Avnish Bajaj appealled to the Supreme Court of India. In this matter the Supreme Court of India heard final arguments only last month and a judgement is expected anytime this year.
This is close to 8 years only at the stage of a chargesheet. To the best of my knowledge the trial is not even over yet and depending on how the Supreme Court rules, will proceed on the offences which are not quashed by the courts.
A civil action is relatively less arduous on a defendant. Depending on the nature of the action a Plaintiff may pray for a mandatory injunction as well as for compensation. A mandatory injunction is a relief requested from a court, to give a permanent direction to the defendant to stop the act through which the legal injury has resulted to the plaintiff. In terms of compensation, the Plaintiff has to usually demonstrate actual loss and asks for restitution for it. The amount of compensation can vary widely depending on the type of action, though historically the courts have been conservative in awarding compensation.
The greater risk in civil actions is that of an interim injunction. Legally a interim injunction is relief which is requested by the Plaintiff to prevent the Defendant to continue with the illegal act. Practically it can mean a Plaintiff requesting a court to block a website since its contents are prima-facia defamatory. This legal remedy is incredibly powerful since it grants part of the relief even before the case is over and evidence has been lead. Due to its nature, if it is abused or misapplied it can cause takedowns and domain blocks. One case where, an interim injunction which was granted has resulted in a domain block on Zone-h has been analysed here.
Takeaway: justice delayed is justice denied but justice hurried is justice buried.
3. Limited recourse against private intermediaries
Very often blogs are hosted on blogging platforms such as blogspot and wordpress. These blogging platforms are operated by private intermediaries who provide the technical back end for the blogger to create the blog and author the posts. Conditional on this facility is an agreement by the blogger to the terms of service agreement of the blogging platform provider. This is in a sense a contract between the blogger and the the platform under which the the blogger is allowed to blog.
These terms of conditions are often broadly worded in favour of the blogging platform since its a standard form contract with a take it or leave it approach. There is no negotiation and often even Bloggers do not even read the terms.
Due to the wide language used in such agreements, the blogging platforms are well within their legal rights to take down content. Now usually this should not happen as blogging platforms thrive on content creation and inhibiting it may not serve their best interests.
However, at the same time they have to avoid any potential for legal liability. Taking down content, under any legal process or even under the threat of it, is a good way to avoid such liability. This liability is seen from the point of defending a case even though they may not be liable as the content may not be “illegal” as per them. Here they will err on the side of caution since to avail of the intermediary immunity, they have to under the Intermediaries Guildines, 2011 take down the content within 36 hours.
Going beyond a take-down, a blogging platform may also be compelled under a court order to reveal the contact information as well as the IP logs of the blogger. There is one such case where the Hon’ble Bombay High Court passed an Order compelling Blogspot.com to reveal the login details of a blogger using a pseudonym.
The broader lesson is that we cannot expect fights for civil liberties to be primarily contested by corporations. Though these internet companies may be in favor of an internet which is more tolerant and open, their primary duty is to their shareholders and promoters. It is the duty to make a profit and the obligation to avoid liability.
This was most recently demonstrated in Cartoonist Aseem Trivedi‘s case where his domain was registered as well as hosted with Bigrock which suspended it after receiving a complaint endorsed by the Bombay Police. I have written at length on it here.
Takeaway: intermediaries may like freedom but they avoid liability
4. Ubiquity comes at a price
One of the best things about about writing on a blog is the wide audience to which it is available. However, in some ways this also ends up creating problems as the a wider audience also means the likelihood of some person filing a case or the police in some distant portion of the country filing a FIR against you.
With respect to a criminal action the jurisdictional net is quite wide. If one looks at the Indian Penal Code which contains most of the offences it states quite categorically that it applies to any person in any place without and beyond India committing offence targeting a computer resource in India. Hence, merely because a website may be accessible in India and may contain pornographic images, it may end up making the author liable to a criminal action. Beyond the accessbility of a website, there are no further limitations. Hence, a criminal action can be commenced within any part of India even when the website owner does not reside in India.
Coming to civil claims, the jurisdictional tests are more nuanced depending on the nature of the claim. For instance, for a claim of trademark infringement a trademark owner has to show that the website owner “purposely availed” of the forum where the case is filed. For defamation, this limitation does not apply and you see cases where Plaintiffs suits are allowed to be proceeded with because the Plaintiff states that merely because the website was accessible in the local jurisdiction of the court, the cause of action in part has arisen there.
Practically this can end up in a Plaintiff filing a case in a distant or remote part of India, hoping to increase the cost and effort of compliance on a out of state defendant. The case of Siddharth Deb, whose profile on Anirandham Chaudahry in the Caravan magazine was injuncted by a court in Silchar, Assam is one such debatable example.
Takeaway: You may be dragged to a court in Silchar
5. As much as the governments
Over the past two years, there is a considerable rise in the number of “social media representatives” of FMGC companies. You can also see many marketing campaigns and brands having dedicated facebook pages. Companies are increasingly valuing their online IP and are gaurding it jealously. This has naturally increased the litigious climate for content online. This has been helped with an expansionary movement in intellectual property law and broad reading of defamation law. This has tremendous dangers to gripe sites, which critise products and experiences with service providers.
A recent attempt on this was when Tata filed a trademark infringement case against Greenpeace. You can read on it here.
Takeaway: You will see more and more corporations asking you to censor your posts
The Big Takeway
Yes, the laws are stringent and they often do lead to inequities. The legal process is exhausting and drains the best of people. We can make efforts to improve them and engage in a process to incrementally reform legal sanctions. However, what should not be lost sight of is that the enforcement of these laws is on the basis of the nature of the content which is blogged.
At present there is no great firewall in India or pre-screening of content. Here based on the reach of your blog, the nature of content and the motivation of the offended party you may end up in court. These are the costs of blogging and exercising free speech in India today.