Saturday, December 14, 2013

Who’s responsible for India’s anti-gay law?

Note: News is filled with reports that an Ordinance might be passed revoking 377 once the Winter Session of Parliament is over. We'll keep watching.

A furor broke out in the Indian news media and social media on December 11, 2013, as news of a Supreme Court judgment made its way through the country. The court had upheld the constitutionality of Section 377 of the Indian Penal Code, which reads: “Unnatural offences — whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” The Penal Code is a legacy of the rule of the United Kingdom, where homosexuality was made legal in 1967.

The section had been previously challenged by Naz Foundation, a NGO that works in the area of HIV and sexual health. In 2009, the Delhi High Court had ruled that the section was in violation of Acts 21, 14 and 15 of the Constitution of India, which protect citizen’s rights to personal liberty, equality, and from being discriminated against. Some of the arguments that swayed the Court essentially reasoned that 377 has been repeatedly used to abuse gay, LBGT [lesbian, gay, bisexual & transgender] and even health workers by authority figures, and by its very existence it allowed the gay community to be targeted and ostracized by society large. The logic was that even though Section 377 only focused on the ‘act’ of unnatural carnal behavior between men, women or men and women, essentially, due to their sexual activity, it is the gay community that had been unfairly targeted by it. The Court also felt that 377 did not need to cover ‘consensual sexual acts between adults on the ground of public morality’ and nor did it distinguish between the public and private sphere. Therefore, it concluded that public morality was different from constitutional morality, which the Section was in violation of.

What followed was jubilation from gay rights activists who thought that the judgment, though limited only to Delhi, was the start of a progressive new India that would possibly champion gay rights and their freedom of expression. “Homosexuality is not a crime!“ screamed the headlines in India’s most popular English magazine, bringing a smile to India’s small LGBT population of about 25,00,000 people.

However, only days later the judgment was challenged in the Supreme Court, which has given its decision only 5 years later. In a huge setback to LGBT rights, the Court has upheld Section 377 as constitutional, thereby making homosexual intercourse illegal. The reasoning of the Supreme Court of India, in a nutshell, is that the language of the Section, while may seem unfair to a certain community, certainly does not single them out. In fact, the court feels that many other non consensual situations involving the ‘act’ but different parties like young children, men and women and so on, are protected by the Section. That it is misused by authorities does not make it unconstitutional. A final nail in the coffin was the Court’s reasoning that instead of erring on the side of judicial overreach, the Court would rather wait for Parliament to legislate the Section away. Its judgment read: “After the adoption of the IPC in 1950, around 30 amendments have been made to the statute, the most recent being in 2013 which specifically deals with sexual offences, a category to which Section 377 IPC belongs. The 172nd Law Commission Report specifically recommended deletion of that section and the issue has repeatedly come up for debate. However, the Legislature has chosen not to amend the law or revisit it. This shows that Parliament, which is undisputedly the representative body of the people of India has not thought it proper to delete the provision.” It ended up saying the abuse of this Section – “used to perpetrate harassment, blackmail and torture on certain persons, especially those belonging to the LGBT community” – might be a factor for the Legislature to weigh while considering amending Section 377.

Therefore, the Supreme Court has firmly put legislating back in the corner of the legislators, and in turn earned the wrath of a section of India’s middle class. In an article titled ‘Justice Denied’, commentator Pratap Bhanu Mehta has slammed the judgment writing, “But the court does not seem to realise that hiding behind Parliament’s omissions is not a neutral stance; it upholds the constitutionality of an evil law. In the name of deference to an assortment of petitioners, it gives aid and succour to the reactionary elements of a religion rather than its best exemplars… Even if it were upheld by Parliament, it would infringe on basic rights and possibly the basic structure. The court’s job is to take a stand on constitutionality. It did not do its job on the occasion that warranted it.”

The criticisms continue. In Kafila, Siddharth Narain has presented a detailed analysis of what he considers “narrow and blindfolded interpretation of the law, ignoring the momentous changes in society and notions of morality that India is witnessing.” Further, according to Narain, “the Court also said that there were ‘only 200 persons’ prosecuted under section 377 in the last 150 years, ignoring the fact that these are 200 recorded judgments of the High Courts and Supreme Court, which is only a fraction of the unreported cases at the trial level. Further this does not take into account the impact of having the law on the statute book, and the threat of use of the law, that LGBT persons face on an every day basis.”

Even the present government has jumped into the debate. The Finance Minister, P. Chidambaram has said that, “in 2013, to say everyone should have same sexual orientation is absurd,” and that the “government should file curative petition, ask for matter to be reviewed by bench of 5 judges.” Even the Congress President, Sonia Gandhi made a statement that, “Delhi High Court had wisely removed an archaic, unjust law… I hope the Parliament will address this issue and uphold the constitutional guarantee of life and liberty to all citizens of India, including those affected by this judgment.”

However, there are those who support the Supreme Court’s decision to put the onus on the legislators. Member of Parliament Rajeev Chandrasekhar thinks that, “the issue of legalising same sex relationships is best protected by a proper law in Parliament that explicitly protects these relationships and not be based on ‘interpretative’ of an old statute! The appeal of the High court decision was filed Muslim Law board, Christian clerics and a BJP MP who have opposed this and not the judge/Supreme Court!”

Meanwhile, social media in India is abuzz with people changing their profile pictures to black in solidarity of the LGBT community also has users putting up a picture kissing someone of the same sex, with the tag #gayforaday. Protests have been arranged in New Delhi and people have already started petitions and strategies to lobby parliamentarians to amend the Section to be reflective of a modern Indian society that gives even its sexual minorities the equality and dignity they deserve.

However, the sad truth is that with elections looming, political parties including the ruling Congress Party is unlikely to take up the issue in parliament. As a DNA news report explains, “there is no consensus within the Congress, party sources said, as it is aware that a step in favour of gay rights can increase its unpopularity as most of India, especially religious groups cutting across various religions, are totally against it and see it as a sin. There is also no denying the fact that gays and lesbians have a very thin population in India and no action in their favour will hardly reflect in the elections.” As news of the Supreme Court judgment broke, various religious parties and Godmen with huge followings rejoiced. Baba Ramdev, much in the news for his massive following and political ambitions declared upon hearing the verdict that, “the court has respected sentiments of millions of Indians by declaring homosexuality a crime.”

Tuesday, November 12, 2013

Online anonymity is dead! Long live online anonymity!

Published in ORF's Cyber Monitor, Vol 1, Issue 4:

At ORF-FICCI's "Cyfy2013" - The India Conference on Cybersecurity and Cyber Governance -questions over online anonymity came to the forefront when Minister for Information and Broadcasting, Manish Tewari, made a statement that "online anonymity should come with accountability ," and called for a common set of global rules of engagement to further Internet policy. In India, the government is grappling with increasing vitriol over social media and the spreading of dangerous rumors by unidentified persons over the internet. This begs the question - what can (and should) be done about this global phenomenon?

The curious case for online anonymity (and the privacy that follows) is that it is almost technically impossible to achieve despite the highly encrypted Tor network and the cypherpunks who work tirelessly to ensure such an anonymous system exists online. The recent arrest of Dread Pirate Robert, aka Ross William Ulbricht, the owner of underground drug trafficking site Silk Route has suggested that even if National Security Agency of the United States is seemingly unable to break through the Tor encryption, it is only a matter of time before the cracks show. In an amazing account of how the arrest was made ,it appears that the NSA tirelessly leafed through forums and social media accounts, looking for the first mention of Silk Route to start identifying suspects, when it was clear that they were unable to successfully trace any illicit transactions back to Ulbricht.

Despite Silk Route's libertarian philosophy of a truly free market unencumbered by any laws decided by governments and other authorities, the focus of the site that saw transactions worth $1.2 billion in little over two years was drugs and weapons trade. This would certainly fall under what scholars like Ronald Deibert and Rafal Rohozinski have identified as 'dark nets' - networks on the internet we know little about and need to keep track of - those of cyber criminals, terrorists, and private social networks among certain diaspora that can, for example, be used for hawala scams. These networks do end up making a strong case of the end of online anonymity as we understand it today.

However, it must be kept in mind that networks like Silk Route and other illegal channels have layers and workings very different to the online anonymity that the everyday internet user can identify with: the more talked about problem of anonymous harassment, scams, gender abuse and cyber bullying.In a sense, much of this is visible online anonymity that isn't hidden by encryption as much as it is by pseudonyms. This too - trolling - as we call it,has led to considerable debate about the nature of civil discourse, and whether being able to hide your identity online is encouraging crime and abuse. Social media certainly takes the lead in this matter, with Twitter allowing users to choose any username they wish to, but Facebook is trying to enforce a policy whereby people use their real identities to create accounts. In fact, in the best selling book, The Facebook Effect, journalist David Kirkpatrick explains Facebook founder Mark Zuckerberg's belief in "radical transparency";that humanity would be better off if everyone was transparent and that"having two identities for yourself is an example of a lack of integrity."

Yet the website has its fair share of trolling, and Facebook has a mechanism in place for any grievance redressal. In her book, Consent of the Networked , Rebecca MacKinnon describes Facebook's "hate and harassment team" that receives up to 2 million reports from users on any given day, asking for perceived abusive and hateful posts to be taken down. And Facebook is not alone feeling the burden of policing stray comments. Last year, an American magazine, Popular Science declared that it was completing shutting off comments (as opposed to even heavily moderating them) as it believed that trolls were able to "skew a reader's perception of a story, " thereby defeating the purpose of the publication. Most websites are moving towards a signing in system for readers to create a sense of accountability they feel anonymity does not provide.

In fact, the global trend seems to be turning against online anonymity. In October 2013, the European Court of Human Rights upheld the decision of a Estonian Court, which found that a magazine, Delphi, was liable for not being able to "protect the reputation and right of others" when it failed to stem the tide of negative comments on a report of a particular company's recent move that had greatly angered Estonians. While some experts feel that the judgment was based solely on the merits of this particular case alone; that Delphi should have anticipated hate comments, others worry that judgments like these will affect citizens right to free speech . A recent judgment in Canada saw a gentlemen named Brian Burkee being awarded damages against five 'trolls' who have been identified only by their usernames - and now will be tracked down in real life by the authorities.

At the recent International Governance Forum (IGF) held in Bali, Indonesia, in October 2013, Childnet International released a survey on "Global Perspectives on Online Anonymity ." Two-thirds of those surveyed had communicated anonymously online in the past year. However, 70% believed that anonymity leads to abuse, while 53% also believed that anonymity affords people the privacy to seek help on taboo issues or contribute to conversations more freely, without fear of being judged or identified in real life. On balance,86% people felt that those who want to be anonymous online, should be able to.

The fact that is that despite its ugly avatar, online anonymity is crucial to a number of people, including journalists, whistleblowers, victims, and political activists. While not the only reason it was able to happen, but in part the Arab Spring was able to take place as activists were able to organize online without being detected and detained by authorities. As Julian Assange writes in his book, Cypherpunks: Freedom and Future of the Internet , "cryptography is the ultimate form of non-violent direct action." It is the same reason that Edward Snowden, running from the long arm of the U.S. government has been hailed as a hero by many camps - he has revealed the extent to which the National Security Agency in the U.S. monitors not only its own citizens but also others around the world. As a response to this, journalists across the spectrum are organizing workshops to learn how to use encryption services to protect their information and also their sources.

For many, especially those dubbed as 'datasexuals ' by the media -- internet users who routinely (perhaps obsessively) document their lives -- anonymity and privacy are not pressing concepts they worry about. But there are many aspects of anonymity in the 'real world', starting right from a secret ballot in democratic countries, which have been ingrained in the way we function. Anonymity, then, cannot be stripped away in the virtual world, only because it is amplified. What has happened, however,is that the initial euphoria over the goodness and the limitless potential of the internet is beginning to slow down. This is what writers like Evgeny Morozov, author of 'The Net Delusion: The Dark Side of the Internet ' and 'To Save Everything, Click Here ' warn their readers about. Morozov feels giving 'the internet' this all-encompassing quality that one cannot criticize its presumed inherent quality has proven to be dangerous. He warns that the technology of the internet must be evaluated on its individual merits, and must not lose their historical and intellectual autonomy. For example, facial recognition technology, exciting as it is on Facebook and other photo applications, was developed for defense agencies and are today being used for surveillance. In the same vein, encryption enabling projects like the Tor project cannot be hailed as completely evil because it was used by Silk Route,and nor can it be never questioned because some journalists find it is the best way to protect themselves and their sources of information.

Perhaps the best way to consider dealing with anonymity online to give pause to the story of the group Anonymous- a collection of global hackers who seemed to be hell bent on playing pranks and creating chaos for big governments and big companies. Famously, one of their pranks included taking down the Sun's front page and replacing it with a headline that Rupert Murdoch was dead, ordering unpaid pizzas to the Church of Scientology churches across North America, and less lightheartedly, even hacked the CIA. At a point, up till 2010, Anonymous seemed all-powerful and impossible to trace. They won huge support later that year when they launched a massive DDoS campaign against PayPal, Visa and Mastercard when those companies refused to accept donations for Wikileaks and Julian Assange. But three years later, many of the Anonymous hackers have been arrested. This included an autistic teenager from Essex, a 26-year-old ex-soldier from Doncaster, and a 16year old from south London who had also helped Tunisian revolutionaries overcome government internet restrictions.

Ultimately, there are those who will always find a way to use the cloak of anonymity, and those who will always work to uncover it. It might just be a tad premature to be predicting the end of anonymity in the internet age. The internet might not allow it. 

1 Kim Arora, 'Online anonymity should come with accountability.' Times of India, October 15, 2013. Available at:
2 A cypherpunk is any activist advocating widespread use of strong cryptography as a route to social and political change.

3 Nate Anderson & Cyrus Farivar, 'How the feds took down the Dread Pirates Roberts', artstechnica, October 3, 2013.Available at:
4 Ronald Deibert and Rafal Rohozinski, 'Good for Liberty, Badfor Security? Global Civil Society and Securitization of the Internet.' Access Denied: The Practise and Policy of Global Internet Filtering. (Cambridge MITPress, 2008) Available at:
5 David Kirkpatrick, 'The Facebook Effect: The Inside Story of the Company that is Connecting the World.' Simon and Schuster, 2011.
6 Rebecca MacKinnon, 'Consent of the Networked: The Worldwide Struggle for Internet Freedom.' Basic Books, 2012
7 Suzanne LaBarre, 'Why We're Shutting Off Our Comments.'Popular Science, September 24, 2013. Available at:
8 Liat Clarke, 'European ruling on anonymous comment liability shouldn't be universally damaging.', October 14, 2013. Availableat:
9 Keith Fraser. 'The Hunt for Cam Bakerfan begins.' The Province, September 22, 2013. Available at:

10 Youth IGF Project - Childnet International. 'Global perspectives on online anonymity.' October 2013. Available at:
11 Julian Assange, Jacob Applebaum & Andy Muller-Maguhn,'Cypherpunks: Freedom and Future of the Internet.' November 2012

12 Dominic Balsuto, 'Meet the UrbanDatasexual',, April, 16, 2012. Available at:
13 Evgeny Morozov, 'The Net Delusion: The Dark Side of Internet Freedom.' Public Affairs, Feburary 2012 (Reprint)
14 Evgeny Morozov, 'To Save Everything, Click Here: The Follyof Technological Solutionism.' PublicAffairs, March 2013.
15 Gabriella Coleman, 'Anonymous in Context: The Politics and Power behind the Mask.' The Centre for International Governance Innovation,Internet Governance Papers, Paper No.3, September 2013. Available at:

Friday, October 25, 2013

India challenges cyber governance and security

Just days before the United Nation’s led Internet Governance Forum in Indonesia, India, held its own – and first of its kind – conference on cyber governance and cyber security.

With the support of the National Security Council Secretariat of the Government of India, the two-day conference was organized by private think-tank Observer Research Foundation and industry body, Federation of Indian Chambers of Commerce and Industry, (FICCI). Speakers were from a host of countries including Estonia, Germany, Belgium, Australia, Russia, Israel, and of course, India.
It was ironic, that in a post-Snowden world, buried under allegations of the extent of the NSA’s spying, US officials were unable to attend the conference due to their government’s shutdown. Instead, other views took center stage, and India also visibly demonstrated the various positions its stakeholders take around the questions of governance and security.

Right at the kickoff, India’s Minister for Communications and Technology, Kapil Sibal, challenged the question of sovereignty and jurisdiction in cyberspace. “If there is a cyber space violation and the subject matter is India because it impacts India, then India should have jurisdiction. For example, if I have an embassy in New York, then anything that happens in that embassy is Indian territory and there applies Indian law.”

India has, over the last few years, flirted with the idea of an UN-lead internet governance structure, and subsequently backed away from it. Minister Sibal said that India believes in “complete freedom of the internet”, however, at the same time needs to acknowledge that along with cyber freedoms come cyber gangsters, and the state and its citizens need to be protected from them.

India, with its 860 million mobile subscriptions (although, the numbers of users would be lower than this figure) is looking more and more to the internet as a delivery platform of socio-economic programs and a tool to boost the economy. That the internet can raise GDP by 10% is a much favored figure for those who promote the internet for economic reasons. The fact is that as the remaining unconnected population of India begins to acquire net connections through desktops and smart phones, the government is increasingly looking at security and surveillance over the internet as a necessary and inevitable route. This also means that the government needs to rely on industry to help them with this gigantic task.

The possible synergy between businesses and government in India was a central theme for discussion; as industry bodies asked the government to invest in training more cyber security specialists and also start moving towards uniform security standards and protocols. In fact, Indian industry most certainly wants to be relived of the financial burden of training personnel, and to an extent, investment in security R&D, and is keen to partner with the government to achieve both ends. Indian industry is often in the news because it appears almost universally under prepared for cyber attacks, both from within the country and externally. Suggestions of a government-led cyber awareness program were made as well, with calls to allocate funds for these exercises in the budget.

However, as has been the case in India, the real source of friction still lies between civil society and the government over the question of surveillance and monitoring. In a session entitled ‘Privacy and National Security’; perhaps the only India-centric panel of the entire conference, the debate became overheated. The panel consisted of a senior police officer involved in surveillance, India’s director-general of CERT (Computer Emergency Response Team), a representative from the mobile industry and a privacy expert. The government official was pushed by civil society members and journalists to explain the workings of the Central Monitoring System, still very opaque to the public, and later the official definition of privacy. He did neither. Unsurprisingly, India is yet to really define what privacy is, leading to simultaneous furor in the room and twitter (#cyfy13) about why this hasn’t been done as yet.

The sense in the room was that surveillance, while necessary to protect citizens, is only really effective when it is conducted in a targeted manner. Mass surveillance leads to self-censorship and is, in the end, counter productive. The other bone of contention was the question of identity, with the government making arguments that verifiable cyber identity is a possible solution to cyber crime. However, other participants found the issue troubling, as anonymity is necessary for a number of reasons, including as we have seen around the world, political dissent.

Finally, panelists discussed how best to inculcate a multistakeholder approach when legislating the internet. It was pointed out more than once that the internet was a product of private enterprise, made on open standards and principles, but now governments are attempting to control this resource. However, while public calls for multistakeholderism were made for many reasons; human rights, protection of privacy and even to benefit business in the long run (as they would not risk being caught up in lengthy court cases in the future if they took civil society on board from the start), there was still an elephant in the room. Offline, many official participants wondered why Chatham House Rules were not observed, or why there were no closed-door meetings only for government officials. It was clear that much of the weighty – and honest – discussions still don’t involve the public. Perhaps not where the question of governance is, but certainly when the question of security is.

Ultimately, there are two broad outcomes of this conference. The first is that India has indicated its willingness to start shouldering discussions to do with the global cyberspace. The other is, as India’s National Security Advisor put it, — ““India has a national cybersecurity policy not a national cybersecurity strategy.” This is certainly a start to building a consensus for that strategy.

Monday, October 07, 2013

Social media becomes the scapegoat in India

The regulation of social media in India has been a subject of great controversy

India’s National Integration Council met in the last week of September 2013 to discuss the threat of communal violence in the country. The council, first set up in the early 1960s, gives senior Indian politicians and public leaders a platform to discuss issues that could divide the country along caste, communal, language and regional fault lines. This September, with the backdrop of violent communal clashes that have seen over 50 killed and 40,000 displaced in India’s most populous state, Uttar Pradesh, Prime Minister Manmohan Singh sat with some of the Chief Ministers, to discuss how to resolve these issues.

There were early reports that the meeting was going to discuss the ‘misuse’ of social media, as news reports have indicated that the violent clashes in Uttar Pradesh were spurred on by false videos on YouTube. In India, the regulation of social media has been a subject of great controversy. The government has, in the past, used the IT Act’s Section 66(A) to arrest people for irresponsible posts that they claimed could cause ‘communal tension’. However, as the famous case of the Palghar girls demonstrated, many early arrests under this Section were politically motivated. Similarly, while the government has in the past asked social media companies to take down controversial posts, it has been revealed that most of the requests were again to take down criticism against the government.
However, at the same time, social media and MMS (multimedia messages through texts) have indeed been known to cause real damage. Last year, false rumours spread through MMS resulted in the exodus of northeastern migrants from south India, as the threat of violence seemed imminent. At the time, the government had to ban bulk text messaging, and ultimately restricted messages to 5 a day to curb any more rumours. Meanwhile, with global violence in the aftermath of the YouTube video, The Innocence of Muslims, the government of Jammu and Kashmir decided to suspend the internet for a few days to prevent any incidents.

Only about 164.81 million Indians have access to the internet, and only 143.20 million over mobile phones according to official figures released by the Telecom and Regulatory Authority of India in March 2013. Given this scenario, both the reach in terms of positive and negative impact, is still quite limited in India.

The prime minister, however, chose to focus on social media’s role on fanning communal violence in his address at the National Integration Council. His views on hate speech on social media were echoed by many others, including Uttar Pradesh Chief Minister Akhilesh Yadav, Maharashtra Chief Minister Prithviraj Chavan, Assam Chief Minister Tarun Gogoi, Jharkhand Chief Minister Hemant Soren, Haryana Chief Minister Bhupinder Singh Hooda and Meghalaya Chief Minister Mukul Sangma. The majority of chief ministers, then, favour social media regulation. Ideas thrown forward included taking action within the current legal framework, setting up ‘social media laboratories’ to monitor posts under intelligence departments and even mobilizing NGOs and prominent citizens to counter social media rumours.

There are a few important points to keep in mind while looking at this debate: the real need for regulating social media, scapegoating by politicians and finally, preserving freedom of expression and an open internet.

Given India’s experience with hate speech online, and reports about gender targeted abuse, along with abuse based on political, caste, community and regional affiliation, there is a valid point raised for some kind of regulation of social media. However, the real question is the kind of regulation India chooses to favor. In China, a new law can charge people with defamation if a false rumor started by them gets reposted over 500 times. In India, current laws allow citizens to go to court over information that has even caused them “annoyance” under Section 66A of the law. To ensure this is not abused, the government has now mandated that a senior police officer looks at individual cases before allowing charges to be filed to avoid nuisance cases. In the aftermath of the Muzzafarnagar riots of Uttar Pradesh, some citizens are urging the National Human Rights Commission to ask the Department of Telecom to screen and remove inflammatory posts on social media. However, when looking at cases where mass impact can cause damage (such as the exodus of northeasterns from south India), the government relied immediately on technology to solve the problem. The same can be said of the Jammu and Kashmir government, which switched off the internet, at the slightest hint of trouble.

However, both responses need to have legal sanctity. We already know the Indian government monitors its citizens’ communications, and much like many other governments across the world, and the legal basis for these programmes are still dubious. The government may want to come up with a plan for targeted control of certain communication channels should a particularly disastrous video or message surface over social media, and clearly contributes to an inflamed environment and damage on the ground. Social media is already being used to recruit terrorists. Perhaps some communication channels will be used to organize riots, as have been seen before in London. These will become bigger concerns when more than a sliver of India is connected to the internet. The debate will undoubtedly be seen through the prism of security instead of the freedom of expression, as we are currently witnessing the world over.

In a predominantly uneducated country, rumours run rife, and the result is not violence alone. For example, in 2006, polio campaigns in India have failed in Muslim communities, because of rampant rumours that the polio campaigns were a method to sterilize the community. In 2008, despite warnings, rumours that an apparition of the Virgin Mary would appear to devotees after staring into the sun caused dozens to go blind. Earlier in June 2013, three men were lynched to death in the state of Assam because of a rumour that a group of “naked men” were raping women. This does not mean every misguided or even damaging video needs to be censored immediately.

The constitution of India allows for freedom of expression, although with restrictions. However, any plan to take reasonable action in light of clear and present danger, should be drawn up with the help of civil society organizations and lawyers, and cannot be made and implemented unilaterally. The potential for abuse is too great.

Unfortunately, as it seems today – social media has become become the target of scapegoating by politicians. For example, the violence in Uttar Pradesh may or may not have been caused/spurred by a YouTube video. There is no empirical evidence for that. What isclear is that the Muzzafarnagar riots started with two Hindu boys stabbing a Muslim youth because he stalked their sister. Not YouTube. However, it would appear that instead of focusing on other causes of communal tensions in a neighbourhood, which include poverty, development, and unemployment, senior politicians vilified social media.

With elections looming, can one guarantee that any gap in planning, law and order management or inflammatory campaign speeches won’t be blamed on a tweet or Facebook update? Will the outward calling for “regulating social media” will substitute for real change on the ground?
Finally, the most important point remains. Hate speech, law and order, and mass panic are realities India’s states have been living with for years. It would appear that, in dealing with free expression on the internet, India’s politicians seem to err on the side of control. Perhaps the next election is not just about the economy, but equally about the Indian citizens freedom of expression and freedom from control.

Wednesday, September 25, 2013

India: Right to information and privacy ‘two sides of the same coin’

India's Right to Information act is being challenged by questions of privacy protection

In September 2013, India’s President Pranab Mukherjee spoke about the inviolable right to privacy that citizens of India must enjoy, at the annual event of the Central Information Commission (CIC), a body constituted by India’s Right to Information Act, 2005.

Both the Act and the CIC have empowered ordinary citizens to submit applications requesting information from government bodies, injecting a new phase of transparency in an infamously opaque bureaucracy. In fact, the RTI Act has been born of, and has encouraged, large RTI ‘movements’, that have exposed layers of corruption in numerous schemes across various government departments.
For citizens, the fact that a government official has to release information regarding budgets, forms, decisions and other facets of public governance has led to the belief that unchecked corruption might finally simmer down, and that they are not longer helpless against the system.

However, as the RTI movement has matured over the last decade, serious questions of privacy protection have also started making their way into public discourse. The Act itself excludes a number of security and police agencies from having to divulge any information, and private companies and NGOs do not fall under the Act.

However, political parties that do fall under the act are furiously trying to legislate their way out from under the scanner. In fact, this move, supported by the ruling government that helped bring in the RTI has attracted a lot of criticism and well earned scepticism from the public. In a report on the matter, one of India’s biggest English news channels, NDTV, wrote, “The government decided to amend the law after political parties opposed the Central Information Commission’s order in June that six political parties including the Congress and the BJP will be under the RTI as they were substantially funded by public money. This would mean political parties would have to disclose campaign funding or how members voted during a secret ballot.” Indicative of the mistrust between government and the public, the report was called ‘Divided on everything else, political parties unite against RTI Act.’
Therefore, when the conversation turns to a conflict between the right to information and privacy, in India, it can often become muddled. It can seem that wrongdoers might attempt to hide behind the excuse of ‘privacy’. However, there is no escaping that protecting individual privacy is a genuine concern.

Many countries across the world that have enacted national RTI Acts also have privacy laws that carefully spell out the limits to which information about individuals can be disclosed. In general, information about personal life, sometimes including medical information, is exempt from RTI. Should names be revealed from all official documents, are all court proceedings public? And finally, do some people necessarily lose some privacy because of a ‘public interest’ test?

The World Bank Institute released a paper that describes RTI and privacy as “two sides of the same coin, essential human rights in modern information society.” It also goes on to add that, “privacy laws can be used to obtain information in the absence of RTI laws and RTI can be used to enhance privacy by revealing abuses,” and that both have been designed for accountability.

India does not have a privacy law in place right now, although what should be in the law has attracted considerable debate. Therefore, the contours of privacy in the RTI gambit have resulted from various decisions and court orders given over the years. For example, in 2011, the then chief information commissioner of the CIC informed India’s Reserve Bank of India that it had to reveal information, even if it meant public confidence in the institution might be adversely affected. And, as recently as early September 2012, the Mumbai High Court ruled that “disclosure of personal information in respect of service record, income tax returns and assets of an individual is illegal unless it is necessary in larger public interest.” This judgement protected the individual against any disclosure that had nothing to do with public interest, but instead caused unwarranted invasion of privacy.

There have also been reports that some RTI applications are filed only to be a nuisance, with cases of RTI being used to blackmail public officials, with the threat of burying them under paperwork. In April 2013, one applicant was fined for filing over 100 applications.

Moving ahead, President Mukherjee’s speech indicated that public authorities should be proactive and voluntarily put information in the public domain for the use of citizens, effectively inculcating a culture of transparency from the beginning.

However, until that happens, one can assume that the citizen will most certainly have to rely on the RTI for full disclosure about its government’s activity, and the government will have to be wary of those using RTI applications for ulterior purposes. Most importantly, the individual right to privacy should not be lost in this paper war, between the two sides of the same coin.

Tuesday, September 17, 2013

In search of the "strong female lead"

The recent women-as-goddesses domestic abuse posters got me thinking about notions of strong and weak... how we view them, why, and who really came up with them. It also reminded me about a scribble I wrote a while ago... but this one is about TV characters...

“Which TV show are you watching?” has become a wildly popular and intense discussion point with most of my friends – online and offline – in the recent years. The question is second only to the much more satisfying TV show exchange, complete with hard drives, pen drives and some soul searching questions about which season of which show to delete to make room for the new ones! Admittedly, our focus is mainly on American series, however,over the last few months, I found myself questioning my ability to watch those shows meant for “women.”

It started rather innocently, with a friend suggesting I watch this new show ‘Mistresses’ which, she admitted, was not fantastic but time-pass. I suppose being a 30-something woman; I must be the target audience for this show, which is another one of those meant-for-women shows capitalizing on the Sex and the City formula. Yes, the formula. Four women with different personalities, all embroiled in some complicated relationship drama and extremely different but challenging jobs who have all the time in the world to meet for coffee/drinks to endlessly discuss their personal lives. You can tweak it, you can make it younger – as done by the creator of the hit-show ‘Girls’ or make it older – as done by ‘Mistresses’ but it ultimately remains the same. Yet somehow, after the second episode, I could not bear to watch more.

Instead, I found myself getting attracted to action-dramas with strong female leads. The phenomenal ‘Orphan Black’, a show about cloning,not only features a superbly complex storyline but features women (but really, one actor) who dons the hats of a number of women working together to uncover a scientific whodunit. The other show I have enjoyed very much has been the Canadian, ‘Continuum’ which features an ass-kicking super cop from the future stuck in 2013, trying to stop the course of history from changing her (future)world. And while I was feeling rather satisfied with good stories and good characters, I came across the haunting mini-series, ‘Top of the Lake’ which features Elizabeth Moss (Peggy of Mad Men) as a police officer solving a rape case, while dealing her own history of having being gang raped as a teenager.

Perhaps the fact that I was attracted more to the crime fighting women on TV than the “lets talk about relationships” ladies of primetime, led me to wonder what it said about me. Was I getting attracted to what I perceived to be ‘empowered’ characters only? Were the girly shows simply not enough for me? What does this say about the current messaging in the West about‘empowered’ women on TV?

Then something unexpectedly phenomenal happened. I came across one of those special galleries on a website that had put together a list of TV’s 15 most empowered and least empowered women characters. The most empowered had some predictable ones, which most TV watchers will recognize; Daenarys Targayren of Game of Thrones, Nikita of Nikita, Emily Thorne of Revenge, Olivia Pope of Scandal and so on. In the least empowered list came the Marnie and Hannah of Girls, Haley Dunphy of Modern Family, the Liars of Pretty Little Liars and Sansa Stark of Game of Thrones. It was the inclusion of the last name – Sansa Stark – in the least empowered list that cause an outrage explosion in the comments thread and made for extremely interesting reading. Commenters were disgusted that the list faulted a teenage girl for being held captive by a powerful family against her will, and further criticized her for not being able to fight against them. Most of those who argued against her inclusion in the list pointed out that Sansa’s character is a victim of great abuse in the show,and therefore, should not be blamed for being a victim. Some further argued that teen show Pretty Little Liars also centers around the bullying of teenage girls and to that end, they have been surviving the best they can. The conversation turned into what it means to be empowered in the first place, and whether characters like Olivia Pope who are engrossed in sordid affairs with married men are really empowered. Ultimately, the entire article was accused of being misogynistic, victim-blaming and slut-shaming.

However, another very interesting point came about, one that has been raised and debated in many other forums. The shape and form of‘empowered’ female characters on TV (and movies) have morphed over the years.In an overwhelming number of stories with ‘strong’ female characters, physical strength has become a necessary attribute. Blogger JS Andrijeski wrote an extremely interesting post exploring this phenomenon, “I don’t believe these female characters. I don’t believe that character X is good at fixing cars as well as being a crack shot with an automatic rifle while looking stunning in a cocktail dress and bossing the men around at the police precinct where she works.” In fact, other posts exploring the idea of ‘strong’ women characters which are attempting to move away from the simpering-neurotic-klutzy-mess-leading-lady routine have fallen into their own trap of so-good-at-everything-its-unreal, or simply put, almost every action character Angelina Jolie has ever played! In fact, in a rather surprising development, when posters of Pixar’s cartoon ‘Brave’ showed the title character without her bow and arrow, there was criticism which led to the weapon being shown in all future posters.

So what is empowerment? Are people like me falling into traps of watching shows about super cops and thinking these are strong female characters? And as a result, are others watching female characters struggle in non-violent ways (such as Sansa or the Liars) and conversely, finding them rather disempowered? And what about the endless characters whose focus on sex and relationships have made them icons for many others looking for a show “for women”. Does that necessarily mean they are weaker characters?

I started looking into the traits that really define strong female characters, and as expected, neither her co-dependent relationship with her friends nor the ability to be a black-belt astro physicist topped the list. One article put it well as it said – ‘Female characters should be characters first and female second. The fact that they’re women shouldn’t get in the way of their other traits.’

Ultimately, as it always does, the female character is truly empowered by the real motivation of the writer. If it is to give the boys their fantasy female, or give the girls a heightened version of every problem they could ever have, the characters ring untrue. Some shows make women so strong that they become unreal. But if the character has a story, a reason for existing, which is above and beyond the fact that are they simply female, then we are making headway.

Growing up, I watched Buffy endlessly,wanted to be C.J. Craig of the West Wing, and laughed at every terrible joke Lucille Bluth made on Arrested Development. They weren’t just strong women, but they were women with strong stories. Ultimately, that is really what makes the difference.  This balance is also why Alicia Florrick of The Good Wife and Peggy Olsen of Mad Men are topping my new list. And imagine my surprise to realize that there is neither martial arts nor a tight group of girlfriends in either show!

Monday, September 16, 2013

Murder leads to a print news blackout in India

Threats of violence halt the distribution of newspapers in the Indian state of Manipur
In the aftermath of a murder of a delivery driver and discovery of explosive devices in his van, a small underground group took responsibility, but news editors refused to carry the group’s statement, leading to a print blackout in Manipur.

Newspapers in the state reported on 19 Aug that the cold-blooded killing of Okram Gyanendro had led to a road blockade of the Imphal-Moreh highway in protest. The Imphal-Moreh Road Transporters’ Union and the All Manipur Road Transport Drivers and Motor Workers’ Union strongly condemned the murder and called for a 13 hour general strike across the state as the story gained more attention.

As reported by the Indian Express, in the aftermath of the murder, a small underground group took responsibility for the attack. However, senior editors refused to publish the group’s statement, as they believed this small group could not have carried off the attack and only sought to gain legitimacy through media attention. By August 28th, a letter from the group had been issued to hawkers who distribute newspapers in Manipur, to halt distribution, which was ignored. On September 1st, the All Manipur Newspaper Sales and Distributors Association received a phone call saying that if the hawkers did not stop distributing newspapers, they would be shot dead.

Caught between the ongoing violent rivalry between insurgent groups in Manipur, newspaper  distribution was stopped. The All Manipur Journalists’ Union (AMWJU) staged a protest along with the Editors’ Forum and the All Manipur Newspaper Sales and Distribution Association to protest the threats issued to media workers and the freedom of the press in Manipur. Some of the complaints that were made were that insurgent groups force newspapers to carry news, whether it is true or not, and even force them to carry press releases without any changes.  The chief minister of Manipur was approached, and asked to put in safety measures for media persons.

However, with the backdrop of the newspaper distribution ban, the editors of major newspapers decided to distribute their papers on their own. On September 7, it was reported that “editors of the leading newspapers published from Imphal created history on Saturday morning by selling their newspaper copies in the streets of Imphal city.”

In the meantime, the International Federation of Journalists (IFJ) has issued a statement of support, stating that, “we call on the state government in Manipur and the security agencies of the Indian government deployed in the state, to respond to the urgent calls from All Manipur Working Journalists Union (AWMJU) that conditions be secured for safeguarding journalists, rights and the public right to know.” And the chairman of India’s Press Council of India also requested the Chief Minister of Manipur to ensure that newspapers can function normally.

By 8th September, hawkers had decided to resume work in Manipur, in light of appeals from various civil society organizations and also for the sake of their livelihood.

Wednesday, September 11, 2013

India’s media watchdogs discuss need for universal regulation

The driving question for the Indian media has been if it is able and willing to regulate itself

In an unprecedented move, the heads of India’s three major media regulators, all retired judges, sat on a single platform with the current Minister for Information and Broadcasting, Manish Tewari, to discuss the way forward for media regulation.

The Indian media industry, including both information and general entertainment channels, are often in the news for violations of industry ethics codes. Entertainment channels often air inappropriate content and exceed the number of advertising minutes per hour as prescribed by the Telecom Regulatory Authority of India. News channels, too, have been in the limelight because of the paid news phenomenon, which has been the subject of a Parliament report, and their complicated ownership structures that belie a deep connection between business and politicians.

While around 100 of India’s 800 channels broadcast news, only about half of them formally come under any industry association, although they account for 80% of viewership. The larger industry associations are the News Broadcasting Standards Association (NBSA), the Broadcast Contents Complaints Council (BCCC) and the Press Council of India (PCI).

The panel explored whether an independent statutory body is needed to act as regulator – opened up an interesting discussion.  Justice Markandey Katju, Chairman, PCI, Justice A.P. Shah, Chairperson, BCCC, Justice R.V. Raveendran, Chairperson, NBSA, shared the stage with Tewari.

The Indian media industry itself has been unequivocal in stating that it is capable of self regulation.  However, the heads of the currently regulatory bodies pointed out that despite the current system of self regulation, many channels simply opt out of voluntary membership of these associations if they do not want to follows its rules or pay fines. It is clear that regulators in India are of the view that even if self-regulation is the way forward, it cannot be voluntary. The lack of professionalism in journalism, ‘trials by media’, and the urban slant of national news channels have led to skewed and uneven growth in the Indian media industry.

The panel was divided by questions over the exact form self-regulation should take in the future. While some dominant voices such as Katju’s believed that media persons are best suited to regulate their peers, others felt this structure only hurts the regulators’ credibility. However, Katju also suggested that there be only one body to regulate all media, unlike the current system. Others backed a statutory self-regulating body to replace the current system.

A few essential points emerged as consensus – the regulator should have a real power to punish and fine; adopt global standards; enforce universal membership.

There was also a call to the industry to not hide behind a faulty ratings system as an excuse to broadcast lower quality content. In fact, the Tewari made an appeal for the industry to no longer stand in the way of reforming India’s system of television ratings system, which the government believes will help create an alternative business model. Tewari also added that while the regulatory bodies are currently concentrating on television programming, however, a new or reformed regulatory body needs to keep pace with technological changes, especially the internet. The ministry has publicly said it would prefer a model of self-regulation rather than have the government step in.

In the end, there was a call for editors and owners of media houses not to confuse their duties to the citizens and shareholders.

What is clear is that Indian media, by its own admission, has entered a phase where even much of the industry has come to realize that some amount of universal regulation is needed to weed out much of the malpractice in the industry. However, in reforming business practices, including ownership (such as cross media ownership, as reported by Index) or curbing paid news, it is essential that freedom of expression is not trampled.

A new line of thought has been slowly emerging in India: that the media freedoms allowed by constitutional guarantee extends to the content of the news and entertainment programming, but not to the illegal and monopolistic manner in which the media industry itself operates. It is inevitable that with the proliferation of the internet and complete digitisation of cable services, regulatory bodies will have a bigger job on their hands.

Some commentators feel this means an independent statutory body to regulate the media – like the very effective Election Commission of India – is needed, and it is expected that a private member’s bill will be introduced in Parliament in the next session.

Monday, August 12, 2013

Indian court orders Facebook, Google to offer plans for protecting children

The New Delhi High Court has given Facebook and Google one month to submit suggestions on how minors can be protected online in India.

This move is in response to a Public Interest Litigation (PIL) filed by KN Govinacharya, a senior member of the right wing political party, the Rashtriya  Swayamsevak Sangh.

The PIL seeks to protect citizens of India from cyber crimes, which according to the government, has cost the exchequer $4 billion last year. Some of the highlights include the PIL pointing out that despite guidelines given by the government for companies to follow the KYC normal (“know your customer”), social networking companies do not follow them. The PIL believes that Facebook is not verifying its users, and instead allowing minors to set up accounts because it uses them for marketing, advertising, and data mining purposes.

Under Indian law, children under 13 are incompetent to enter into any legal contract, yet it states that Facebook allows children to sign into its website unverified because it seeks to make revenue from them through online gaming – and this is a direct reference to a contract between Facebook and Zynga to provide gaming applications to kids that accounts for 12.5% of Facebook revenue. The PIL stipulates that through incessant data mining through the unauthorized use of emails, photographs, passwords, chats, and so on, Facebook is infringing on the right to privacy of the Indian subscriber.

The bench of the Delhi High Court took the PIL seriously in light of the allegation that minors are entering into social media networking sites and are then being lured into illegal activities, either knowingly or unknowingly. According to reports the court’s direction came after counsel for Facebook submitted that the site operated under the US law Children’s Online Privacy Protection Act (COPPA) as per which a child below 13 is not allowed to open an account. The Court expressed unhappiness that there is no mechanism that currently exists to verify the age of a child online, and that while children were protected in the US, what of the children in India.

Facebook filed a counter-affidavit to the PIL and argued that limiting social media can limit an individual’s freedom of speech and expression. Drawing on the UN Human Rights Council’s resolution that internet is a human right, Facebook has argued that the “internet is increasingly becoming a platform for citizens including minors to interact and voice their opinions and, therefore, a meaningful interpretation of the right to freedom of speech and expression would include the freedom to access social media.”

However, cyber lawyer Pavan Duggal points out that despite the freedom of expression argument, “the issue still remains that a minor doesn’t have the capacity to act under the Contract Act.” Others have pointed out that users enter into agreements with Facebook and social networking sites, not contracts. Further, law professor Saurav Datta feels that the PIL’s suggestion that all users be verified itself impinges on their privacy, and that it, “the goal of the PIL is wrong. We need to protect children, not keep people out.”

Moving ahead, it remains to be seen what social networking sites can suggest for protecting minors online. At the same time, it seems educating minors about the dangers of the internet is a good way forward as well. Facebook has joined the Internet and Mobile Association of India to bring an Internet Safety Education programme for children between the ages of 13-17. Even though this was not designed as a response to the PIL, it certainly seems a step in the right direction, regardless of the Court’s decision.

Wednesday, August 07, 2013

Its a nice day to start again...

I forgotten about music. I know it seems like quite a strange statement to make but really, when I was in school and especially college, I always had music constantly playing in my life. I can never forget this train trip I took to Lucknow for this big inter-school competition called MacFair. A bunch of us from Welham took this overnight train, and I had borrowed my friend Rifq’s walkmen, which was almost always playing Def Lepard’s ‘The Vault’ on repeat. I remember being awake on the train – I always took the aisle berth -- and listening to the songs as I saw the sunrise over fields, farmers already starting to the till the land, and the day gradually begin. Even at Lucknow, staying in makeshift dorms at the City Montessari School, I would wake up early, get ready, plug it in and watch from a balcony while I saw the campus slowly come to life. The cleaning ladies, followed by the canteen staffed who opened up, the first trickle of students heading to campus from their dorms. The Walkman got stolen while I was there, but the music was imprinted for life.

I always had music on in my room through the teenage years. I’d wake up and put it on, sleep to music, blare it while bathing. I had cassette players that would pop shut as the side was over, and I’d never worry about it being ‘on’ the whole night. My car has always had music, just loud enough for me to not get bothered by traffic. I had albums for particular roads, and songs for particular turns. I had getting ready music, sad music, sleeping music, dancing music… playlists ready and waiting.

Then a change happened. I shifted all my music to laptops that were never loud enough, and I started getting worried about having them plugged all night. I’d worrying about draining them of battery, so wouldn’t leave them on when sleeping. I was driving less, and suddenly TV shows on laptops, even on in the background, replaced music. Walkmans were all but lost, and I hadn’t been an early ipod adopter. And even when I did, it remained for travel; flights and airports, taxis and infrequently, trains. Days of just listening to music in my room seemed a distant memory.

But still, a few days stand out. The train ride to Oxford, where I listened to Kings of Leon on repeat, the euphoria knowing I was going to listen to them live in a few days – the euphoria I still feel every time I hear the album. The day I walked around Sydney listening to Empire of the Sun on my ipod, or discovering Adele on a bus in Australia a year after everyone did. The night I stayed up all night in Goa, listening to the Stars and feeling sad. Or Kanye West to crack up at the lyrics and ignore Delhi airport stress! But, music floating around me went away. Electronic music all but disappeared from my life. Suddenly people were having intense indie music conversations on Facebook, and I didn’t even know any of the bands! I stopped driving as much, and the radio, often entertaining, only played chart-topping numbers. The good stuff seemed elusive.

I really had to make an effort to update myself, discovering new music. Days of those intense double deck cassette recordings, improbably, seemed so much more accessible. One day, divine intervention, I got into my car to find a USB plugged into the music system with all my music on it. I resolved to buy a music system I can go to sleep to. To separate my laptop from music. This particular convergence has been terrible for me, even if my reading, writing and TV watching is all the better for it.

And so, at 1am, I write this to Billy Idol on itunes. That’s something.

Tuesday, July 23, 2013

TRAI considers cross media regulation

As talk in India turns to media plurality and regulation, attention is turning to murky ownership structures and monopolistic practices. But some see the government’s moves as attempts to muzzle the press.

In May 2012, the Telecom Regulatory Authority of India got a new boss – a retired bureaucrat named Rahul Khullar, who has the unenviable job of not just sorting out 2011’s 2G scam that hit Indian telecom sector hard, but also trying to ensure that the growth of the Indian media is “plural and diverse”.

In what has become a controversial interview, Khullar suggested bringing regulation to control cross-media ownership in India, suggesting that a single entity should be restricted to owning only one or two types of media carriage. “We are not talking about content but carriage.” he said in an interview to The Hindu.

India’s largest media houses, including Sun TV, Star India and the Essel Group, own multiple media platforms. In fact some media houses are so huge, with complicated and largely hidden ownership structures, that it can be unclear who really owns the company. The Indian media has been covering this subject heavily since the Ministry of Information and Broadcasting asked channels to disclose their equity structures as a results of the Saradha scam in West Bengal where businessmen were running news channels at the behest of politicians. Independent news portals have been trying to disclose ownership details on their sites, revealing that many politicians partly own the news channels/papers that report on them, as do big industrial houses, mostly unknown to citizens.

Khullar’s suggestion has been drawn from telecom regulator TRAI’s recent consultation paper on cross media ownership which has suggested that media houses investing in all forms — television, print, and radio — has led to “horizontal integration,” and asked whether there ought to be safeguards to curb this monopolistic growth. The lack of these checks, it believes, is the reason why broadcasters have become “politically backed entities for distribution of their channels in that region.”

Overwhelmingly, the media industry has reacted negatively at the suggestion of being regulated. In an passionate argument, the Times of India’s Executive Editor, suggests that this latest move by TRAI is part of a larger play by the government of India to muzzle the media following its active role in exposing many scams in the last few years – some which have ended with cabinet ministers in jail. Drawing a line between regulating ownership and accountability, the article points out that India has over 80,000 plus publications and 800 channels, thereby showing extreme plurality already.

Others, such as the opinionated online magazine Firspost – owned by Network18 which is partly funded by the corporate giant, Reliance Group – has argued against this move from a media freedom point of view. It argues that corporate houses have the constitutional right to own media houses and that, “one reason why corporate houses enter the picture relates to the non-viability of many traditional media houses. If they didn’t bankroll the media, many journalists would lose their jobs. So to label corporates as villains when they are actually white knights in some cases is wrong.”

In another interview with Mint, the TRAI chairman clarified that, “in many countries you have absolute bans. Some people just cannot own a newspaper, for instance, an advertising agency cannot own a newspaper. There are pure entry issues. Then there are safeguards—like the 2×3 rule. In virtually all jurisdictions, if you own a newspaper and a TV station, you cannot own radio stations.”
However, the most compelling argument against this suggestion, made by Firstpost, but also others, is the question of the internet; that TV and print are fast merging with the internet, and in that in reality, it would be tough to restrict media ownership to only two platforms. While TRAI has no ready answers, its consultation paper on cross media ownership stipulates that any future rules on the subject must include broadcasting, print and new media.

At the same time, the crux of the matter — “It is, therefore, important that an arm‘s length distance is ensured between the media and organs of governance, political institutions and other entities which have a profound sway over public opinion” – is addressed in the paper, by suggesting that political bodies, religious bodies, government departments and ministries, urban and local bodies and state governments should not be permitted to enter the business of broadcasting and/or distribution of TV channels.

There can be no doubt that in India, corporate and political interests have invested heavily in the media. The Economist carried a story in June 2013 about the condition of TV news in the south Indian state of Tamil Nadu, stating – “every large party in the state now has an affiliated station, often owned or co-owned by the party leader’s followers or relatives.” It talks of the Sun Group, a Chennai-based conglomerate with 32 TV channels and 45 radio stations. Sun, which is run by former Tamil Nadu chief minister M. Karunanidhi’s grand-nephew, and also owns one of the more lucrative parts of the television industry—a cable-distribution network. This is exactly the kind of media monopoly TRAI is looking to break, or at the very least, limit.

However, is the way forward to diverse news to limit the growth of media empires, even if they do tend to be monopolistic? How does the state broadcaster, both over TV and radio, fit into this model? Is it better to focus on regulating ownership or content to ensure citizens get a plurality of voices? There is already a parallel debate on media regulation in the country to ensure that the content reaching Indians is not paid for by vested interests and is clearly identified when it is. And finally, is TRAI’s solution take away corporate control and hand it over to the State?

These are questions India must grapple with very carefully, if it aims to retain press freedom – already perilously at 140 on the Press Freedom Index, 2013.

Friday, July 12, 2013

On the ground: In New Delhi

(This is a chapter from the latest Index on Censorship magazine, published by Sage. Links below)

From moral policing to commercialism, India has its fair share of free expression dilemmas. Mahima Kaul reports on the challenges faced by journalists, protesters and artists

As India marks its 66th year as the world’s largest democracy, it must pay more attention to freedoms it accords its citizens – particularly beyond the ballot box. Increasingly, the issue of freedom of expression, or the lack of it, has often fallen under the radar due to a range of other concerns, from corruption to poverty to communal clashes. But with a steadily growing middle class and some recent high profile cases commanding international attention, it’s clear that free expression in India is becoming increasingly important for journalists and activists, as well as for those simply wanting to voice their opinions publicly. 

The first challenge lies within the media industry itself, and the direct threat it poses to journalists. In 2012, media watchdog website the Hoot reported that 39 journalists had been either assaulted, harassed or threatened that year; five were killed. One journalist was reporting on the activities of Hindu fundamentalist groups when he was attacked, while another was shot dead covering a rape protest in the state of Manipur. Charges of sedition have been levied against journalists who upset powerful politicians and, most famously, against cartoonist Aseem Trivedi, who lampooned corrupt politicians in a local paper. 

However, a new trend has emerged, that of targeting the ordinary social media user who posts comments that criticise or voice active opposition to the powers that be. Indian civil society has been up in arms about the use of the loosely-worded Section 66A of the Information Technology Act (2000), which has made it possible for citizens to face arrests for status updates and even ‘liking’ someone else’s status. 

Recently, the news media has tended to function less like a watchdog of democracy and more like a commercial vehicle. The diffusion of paid news into the bloodstream of the media has made it virtually impossible for the average person to distinguish between planted stories and actual reporting. The malaise is so deep that the Election Commission of India monitors state and national elections to ensure that advertisements are clearly marked as such. In the case of television, most news channels serving communities outside of the bigger cities opt for hours of panel discussions instead of actual reporting of facts, citing, as an editor once put it, ‘the tyranny of distance’ as the reason. 

The Telecom Regulatory Authority (TRAI) of India is now also looking to reform the way Television Rating Points (TRPs) are measured in the country, as they feel the current system lacks credibility and accuracy. This, they hope, will lead to a better idea of what people are actually watching in India. TRAI has also recently enforced a long-ignored guideline stipulating that channels (including news channels) can only broadcast up to 12 minutes of advertising per hour. At the moment, advertisements can exceed 30 minutes within an hour’s worth of broadcasting, leading to an imbalanced media delivering customers to advertisers instead of actually delivering impartial news to citizens. Unsurprisingly perhaps, broadcasters insist they need the advertising, as it is their main source of revenue. 

Another challenge to free expression in India is disingenuous content, which limits honest and open discourse. Media observers often harshly criticise the Indian media for purposely putting forth ‘rabble rousing’ content to attract viewers. This also means that any moderate voices in these discussions are drowned out for the sake of ‘good’ TV. This trend was obvious in the aftermath of the December 2012 New Delhi rape case, which received international attention. People around the country were shocked and horrified after a young woman was gang raped on a privately-operated bus and left to die of her horrific injuries; civil society activists organised massive street protests and demanded stricter laws to protect women. News anchors on national news channels such as Times Now and Headlines Today gave prominent screen time to those who proposed death or castration as punishment for the alleged rapists, drowning out other voices that called for reform and caution against taking extreme positions. 

But one of the biggest challenges to free expression in India is society at large. There is a long, well-established tradition of moral policing for political gain. Fringe political parties across the country pick up on and adopt a number of issues, especially westernisation and modernisation, as attention-seeking tools to garner support. Shops selling Valentine’s Day cards or bars serving alcohol to young people, and even young couples enjoying a lazy afternoon in a public park, are routinely harassed by organised mobs. Some journalists, like the Mangalore-based Naveen Soorinje, have spoken out about how the media is often complicit in this vigilantism, colouring their stories in order to side with moral policing. One headline praised groups engaged in ‘rescuing’ smokers from dingy bars. 

Index has previously reported on village authorities banning women from using mobile phones on similar grounds, giving the reason that modernisation is essentially linked to immoral activities. The logic is shared by many, including a former minister who supported the move, saying, ‘What are the girls missing without mobile phones? Did our mothers and sisters die without mobiles?’ The attitude betrays an inherent suspicion of the right to freely express oneself, even over the phone.
Some Indian politicians give ample space to fringe groups, calling for censorship of books, fine art and films. The most famous example of this sort of bowing to pressure was the case of the Jaipur Literary Festival, where Salman Rushdie cancelled his appearance in 2012 because the state government could not guarantee his safety. Countless other art shows, films and books have been targeted by political groups, while the governments of the day have preferred to pander to them by cancelling events rather than vowing to keep the artists safe. For example, Eve Ensler’s Vagina Monologues was cancelled in Mumbai in 2012 after groups protested against its adult content.
If the precious right of freedom of expression is not protected, the ultimate fallout is self-censorship. Many people, including filmmaker Ashvin Kumar, have spoken about how artists often prefer to play it safe rather than risk being targeted for challenging the status quo. This is a disturbing thought, and certainly signifies how vulnerable people feel in India. 

In a country that suffers from a range of ongoing political, social and cultural challenges, free expression is often seen as an unnecessary indulgence. But, in recent years, with some parts of the media catering specifically to the growing middle class – a group of people that, in many ways, does not have to deal with some of the problems found at other levels of society – free speech has emerged as a significant and prominent concern, a right that must be protected. Going forward, it is crucial that both the Indian government and the media find a balance between their political and financial interests and the right to free expression. 

Read the full magazine here:

Wednesday, July 10, 2013

Is India about to gets its own PRISM?

Two surveillance entities are being set up to monitor Indian citizens’ communications, Mahima Kaul writes

 The first new system is the Central Monitoring System (CMS) that will be used by tax authorities and the National Investigation Agency to track phone calls, texts and emails to fight terror related crimes.

The second, the National Cyber Coordination Centre (NCCC), will be used by a host of intelligence agencies including the National Security Council Secretariat (NSCS), the Intelligence Bureau (IB), the Research and Analysis Wing (RAW), the Indian Computer Emergency Response Team (CERT-In), the National Technical Research Organization (NTRO), the Defence Research and Development Organisation (DRDO), the Army, Navy  and Air Force, and the Department of Telecommunications to monitor all online activities to fight cyber crime.

As a result, there is increasing debate in India about how security concerns, through mass surveillance of all communication channels, are constantly coming head-to-head with the right to privacy. The reality is that governments do need to build some capacity to monitor different platforms as crime and terror increasingly exploit them. However, unless there are solid privacy safeguards, these mass surveillance systems can be misused with little recourse for the citizens. Protecting only the larger state, but not the individuals who make up that state is no way for a democratic country to function.

The reality is that banks, traffic, hospitals, nuclear and chemical plants and communication grids could be simultaneously attacked, rendering a country helpless. Technology plays such a central space in crime and terror that when Indian authorities were not able to decrypt BlackBerry technologies used by terrorists during the 2008 Mumbai attack, it ultimately led to the Indian government pressuring Research in Motion, the group that makes BlackBerry, to hand over its encryption keys to India

The scope of cyber crime keeps changing and the government is looking to increase its capacity to respond to these challenges beyond existing frameworks like CERT-IN and cyber crime cells run by the police. Therefore, NCCC and CMS have been set up to help keep abreast of criminal online.

However, this gigantic effort, even if it is conducted with a view to national security, cannot be implemented outside regulatory frameworks. The Indian constitution provides fundamental rights to its citizens. Article 21 guarantees that no person shall be deprived of his life or personal liberty except according to procedure established by law. Logic dictates then, that clear policy and regulatory frameworks be set up to both protect the citizen’s right to privacy and also guide the security apparatus of the country.

To this end, the Information Technology Amendment Act, 2008, does allow for surveillance and data gathering. Section 69B of that act gives the government the authority to “monitor and collect traffic data or information through any computer resource for cyber security.” 

However, security agencies have been questioned about spying on individuals without following proper procedure in the past. One the one hand, citizens are questioning the legal frameworks which have guided the creation of surveillance bodies like CMS, and on the other, the protection accorded to citizens.

India’s minister of state for Information Technology, Milind Deora, has stated that CMS is better for privacy, as it allows the state to directly intercept citizen’s communications, rather than relying on private operators.

However, legal expert Bhairav Acharya has argued that this position is disingenuous and incorrect, stating that by “bypassing private players to enable direct state access to private communications will preclude leaks and, thereby remove from public knowledge the fact of surveillance.”

In fact, it only reinforces the fact that citizens might never know when their personal information is being recorded and used, and why.

Privacy is at the forefront of this debate. India’s Planning Commission put together a “Group of Experts on Privacy” to produce recommendations on privacy protection and to ensure that the country’s privacy laws keep up the pace with laws drafted in other jurisdictions.
The report proposed that any legislation passed by Parliament be based on nine points, which include the concepts of notice, choice and consent, accountability and purpose limitation.

The government of India has now indicated that it will table a privacy law in the next session of Parliament. Even though the details are not yet public, think-tanks such as the Centre for Internet and Society have made a few guesses about what it could entail. They have concluded that privacy won’t be made a fundamental right, but citizens may be given a statutory right to privacy. 

Privacy law is not just essential for preventing abuses. It is also needed for schemes that collect large amounts of personal data, such as India’s Unique Identification Number (UID) project. The UID is a large database of biometric data and other sensitive information, which could have a devastating effect if abused or leaked. To their credit, the Group of Experts on Privacy have advised the government to consider safeguards like informing citizens when their data is breached, changes in privacy policies, and requiring written consent from citizens before their data is shared with anyone.

Ultimately, India’s government should have had a privacy law in place well before it started rolling out surveillance agencies. The only way to move forward is to put measures in place to ensure that India’s surveillance system protects citizens rather than exploiting them.