Supreme Court of India Comes Down On Bloggers

An anonymous reader writes "The Indian Supreme Court has ruled that bloggers cannot shelter under an escape clause such as 'Any views expressed are solely those of the writers' to exercise freedom of speech in discussions and statements online. The ruling comes in response to an anti-defamation case filed against a 19 year old student's Orkut community, commenting upon the right-wing political organization Shiv Sena. This organization is based in the western state of Maharashtra and has been responsible for inflammatory speeches and numerous attacks upon non-Maharashtrians." The article does not make it entirely clear whether the student owner is himself accused of defamatory speech, or only commenters posting on his site. His defense that an Orkut community is not equivalent to a public forum was denied.

Comments

A column of democracy...FREEDOM OF EXPRESSION!

[Smidge207]

My request to all media is to stand up and speak out on this issue. Freedom of speech and freedom of press are essential to India keeping true to its democratic tradition.

The judges of even the higher courts have to pay close attention to developing trends including social networking and impact on society and cultural norms. Criticism of
political parties has to be protected...

=Smidge=

Re:A column of democracy...FREEDOM OF EXPRESSION!

[geobeck]

Freedom of speech has limits. If what you say is untrue and can reasonably be argued to damage someone's reputation, then that person has a legitimate case. I haven't read the blog in question, but it boils down like this:

If I say something like "I don't like Smidge because I don't believe in his ideology", that's neither inflammatory nor defamatory.

If I say something like "Smidge is a threat to democracy in India!", that's inflammatory, but too general to be libelious. Smidge could bring a suit against me, but it would likely die before seeing a court room.

If I said something like "Smidge should be arrested because he makes kiddie pr0n", that's inflammatory and defamatory, and would likely go to trial.

Disclaimer: The views expressed in this message belong to no one in particular, and are likely just random characters assembled by my army of monkeys with typewriters. And IANAL.

Re:A column of democracy...FREEDOM OF EXPRESSION!

[Anonymous Coward]

Disclaimer: The views expressed in this message belong to no one in particular, and are likely just random characters assembled by my army of monkeys with typewriters. And IANAL.

RTFA. That defense no longer works because comments by random people on a blog are actionable. There is no difference, legal or otherwise, between blog commenters and monkeys randomly bashing away on keyboards.

Re:A column of democracy...FREEDOM OF EXPRESSION!

[Thinboy00]

Disclaimer: The views expressed in this message belong to no one in particular, and are likely just random characters assembled by my army of monkeys with typewriters. And IANAL.

RTFA. That defense no longer works because comments by random people on a blog are actionable in India. There is no difference, legal or otherwise (in India), between blog commenters and monkeys randomly bashing away on keyboards.

There, fixed that for you.

Re:A column of democracy...FREEDOM OF EXPRESSION!

[Anonymous Coward]

Yeah I agree, lol

Re:A column of democracy...FREEDOM OF EXPRESSION!

[PixetaledPikachu]

Smidge is gay, fyi. I should know, I fucked him last Friday. He give a mediocre blow job, but railing his ass is pretty good.

so, you're gay.. nice to know

Re:A column of democracy...FREEDOM OF EXPRESSION!

[mea37]

The Supreme Court didn't say the guy was guilty of defamation. It refused to shield him from a criminal trial. I don't know Indian law so can't say if the defense will hold up, but TFA does not imply that it won't; that won't be determined until the trial.

Re:A column of democracy...FREEDOM OF EXPRESSION!

[Anonymous Coward]

Since India is a former British colony, they must have a common law jurisdiction. If that's the case, then lawsuits aren't a big deal, but nobody should ever be imprisoned for writing something on a blog.

Re:A column of democracy...FREEDOM OF EXPRESSION!

[Repossessed]

Given that this is Shiv Sena that we're discussing, about the only things you could say about them that *aren't* true are the things nobody would believe. Like "they are decent human beings". Or "They don't actually eat children"

Seriously though, SS is full of violent fundamentalists on par with any US based hate group, suing people for using Orkut is better than their usual tactics with Orkut users.

Good way to drive them underground

[iminplaya]

Do not disparage the "Anonymous Coward"

Re:Good way to drive them underground

[Samschnooks]

No, I think the Indians need to offshore their blogging to the US where there is more freedoms of speech. What is it the economists call it? Comparative advantage?

Re:Good way to drive them underground

[Captain Splendid]

They already do that, it's called immigration to the US.

Re:Good way to drive them underground

[Anonymous Coward]

Techically, 'emigration to the US.'

Re:Good way to drive them underground

[voxner]

India has enough freedoms especially for a third-world country. Most Indians come to the US for a better life and not from fear of persecution or lack of rights.

Re:Good way to drive them underground

[Ian Alexander]

Though I imagine not having to offer up a little baksheesh to the local policemen (YMMV may vary depending on your state and county, actually) to get them to do their job must be nice.

Is this so different than the U.S?

[Danger Will 42]

"A computer science student, Ajith pleaded that the comments made on the blog were mere exercise of their fundamental right to freedom of expression and speech and could not be treated as an offence by police. Unimpressed, the Bench said, "We cannot quash criminal proceedings. You are a computer student and you know how many people access internet portals. Hence, if someone files a criminal action on the basis of the content, then you will have to face the case. You have to go before the court and explain your conduct." So in essence, you are free to speak...and they are free to press criminal charges. Kind of like libel suits here in the States

Re:Is this so different than the U.S?

[commodore64_love]

Yeah but most libel suits in the U.S. get thrown-out because they have no merit. This sounds like that type of case.

Re:Is this so different than the U.S?

[iminplaya]

But after how many dollars are wasted? And all the other stress factors? This only further illustrates the necessity of anonymity.

Re:Is this so different than the U.S?

[dedazo]

You have a point, but the important thing is that it would never be allowed to stand, which means the blogger would never see the inside of a jail cell. The system might not be ideal, but it works.

Re:Is this so different than the U.S?

[blair1q]

The threat of having to spend the money to defend yourself, possibly of having to be arrested and incarcerated while awaiting a criminal trial, is onerous enough that it would keep people from speaking freely.

Re:Is this so different than the U.S?

[dedazo]

You wouldn't be incarcerated for something like this. Another indication that the system is better.

As to the expense, yes, you do have a point. There are ways to get around that, but it is a problem. I don't think it stops many people from speaking out though.

Re:Is this so different than the U.S?

[againjj]

I think the significance of the ruling is that it stated that forums of this type were public and so subject to libel proceedings, as opposed to private and thus immune as Ajith claimed. The article was not clearly written, but that is what I got out of it.

Re:Is this so different than the U.S?

[Thinboy00]

You might be put in jail while awaiting trial/appeals. Unless SCOTUS has lost it, you would NOT be put in prison (which only happens after convictions/appeals/etc AFAIK)

IANAL, IAN a cop, etc.

Re:Is this so different than the U.S?

[dedazo]

No you wouldn't. Not for something like this. You wouldn't even need to post bail. No imprisonment involved in an inherently non-criminal case. Again, the system works.

Re:Is this so different than the U.S?

[Danger Will 42]

I agree. This is what I garnered as well. Freedom to speak doesn't equal freedom to slander.

Re:Is this so different than the U.S?

[Anonymous Coward]

No, you wouldn't, because libel is a civil matter in the US, not a criminal one.

Re:Is this so different than the U.S?

[mahadiga]

Freedom to speak doesn't equal freedom to slander.

You will change your opinion if you watch Live Assembly proceedings of Indian States.

Re:Is this so different than the U.S?

[the_womble]

On big difference is that the US has far better protection of free speech than India (or Europe). Hurting people's feelings is not a criminal offence in the US, as it often is in India

Re:Is this so different than the U.S?

[ZeRu]

I'm from Croatia and here it happened on a couple of occasions that bloggers who were critical of authorities were hunted down by police (and most of our police earned their routine in communism where they were the main instrument of people's oppression and they believe that the police exists to protect the regime from the people), which makes as as bad as some of the world's worst dictatorships. Also most of our politicians are luddites who don't see blogging as a form of journalism. But do you know what offends me the most? That we're an aspiring member of the European Union, and they don't give a flying fuck about bloggers being arrested here. Instead they're denying us entry in the EU because of some far more trivial matters and only showing how hypocritical the EU really is. Even though you had G.W. Bush, I envy the Americans because you're one of the few nations who really understands the spectre of human rights and freedoms, and you also have the best constitution on the world.

Re:Is this so different than the U.S?

[babychen]

I am India, so thought I would add my bit to this. Apparently, the blogger ran a community in Orkut against an organisation called the Shiv Sena. They are a political party, and in some ways regionalistic. Generally they are not considered mainstream, and their son-of-the-soil ideology is considered parochial by pretty much all of India. It is standard practice in India to say that these guys, by focusing on the benefit of a single state, are an evil / damaging the country / divisive. Such opinions are expressed in newspapers and TV all the time about the particular political party. In this case, what has happened is that someone representing the party has decided to go after the blogger to the exclusion of everyone else who has insulted them in much worse ways. Obviously because it is easier. Ajith created a community where everyone expressed something that is being expressed publicly all the time, but he is now in big trouble. The real threat is not jail. Once he goes to court and has to defend himself, he would likely get out. The courts are more or less reasonable. In this case, the Supreme Court has not said that he is guilty or not guilty, but that he has to defend himself. The strategy really is to scare the crap out of you. Having a case filed against you means spending money. It means dealing with cops who do not understand any of this, and may choose to keep you in a police lockup for a day because they could not find a judge (standard excuse). It means sending a message out to the rest of the bloggers who think they can speak out online that no, we will come after you. The court has, by declaring that he would have to deal with in court and fight a case, inadvertantly helped the cause of many who would like to see online free speech end. Courts are not generally political in India, and the same Supreme Court judge would likely say there is no merit in the libel case. But it is scary enough for a lot of us who have to be very careful while making any political commentary at all. Big media can talk freely, politicians can call each others murderers and corrupted, but the battle is against the blogger.

Oh Boy

[WiiVault]

It amazes me how quickly civil liberties are being eroded around the world. It seems like every time I read the news or slashdot I hear another theft of the public good. Time to vote these bums out.

Re:Oh Boy

[Anonymous Coward]

You are currently on level Jury box.
The next level is Ammon box.

Re:Oh Boy

[jgtg32a]

Because people don't like listening to good news, bad news sells.

If it bleeds it leads.

Re:Oh Boy

[damburger]

Some people have already taken that step in their dissatisfaction with the Indian government; there is a substantial Maoist insurgency in the countryside in some parts of India.

Naturally the government isn't taking this lying down. They have, apparently having spent their school history classes smoking behind the bike sheds, recruited a brutal right-wing militia to put down the communist uprising.

Re:Oh Boy

[grumbel]

Eroded? Plenty of countries never had a 'free speech' thing like the US in the first place, instead they have lightweight lookalikes that really aren't worth a damn.

Re:Oh Boy

[JPortal]

Yup. Gandhi was imprisoned 4 years for sedition.

But what do you mean "like the US"? How can the U.S. be considered the bastion of freedom of speech, unless in name only?

http://en.wikipedia.org/wiki/Alien_and_Sedition_Acts
http://en.wikipedia.org/wiki/Sedition_Act_of_1918
http://en.wikipedia.org/wiki/Fairness_Doctrine

Re:Oh Boy

[slashdotlurker]

Except that their commie uprising has little to do with freedom of speech in their constitution.

Re:Oh Boy

[slashdotlurker]

I do not think you can. I have spent some time in India in the past. Judges there are not elected. Instead, they are like bureaucratic career professionals, selected through some examinations, and appointed by elected officials. A bit like our (and their) civil service.

That system has its pluses and minuses. The minus is pretty obvious in this case. The plus is that their judiciary, though as corrupt as the rest of the country, is under no political pressure. I would check this with some of our Indian friends here, but I think its pretty hard to fire a judge there.

Re:Oh Boy

[Anonymous Coward]

Did you even read the links you posted?

"Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history." New York Times Co. v. Sullivan, 376 U.S. 254, 276 (1964).

Neither sedition act still exists.

The fairness doctrine (a) no longer exists and (b) was not a violation of free speech.

Re:Oh Boy

[stonewallred]

hmm, making a corporation provide the medium for a message that it does not support. You are correct, that is not a violation of free speech. It would be more like coerced speech, or speech made at the point of a gun.

Re:Oh Boy

[bhagwad]

True. It is hard to fire a judge here. However, the courts and specially the Supreme Court is seen to be one of the saviors of India because they are not afraid of the political classes.

Also, the judge who delivered this judgment was no less than the Chief Justice himself. Thing is, he hasn't said that what the blogger said was wrong. He says that the blogger is responsible for what he writes.

I'm disturbed by this. I believe the Internet should be a place where anyone can say anything. This will only increase anonymous blogging. On the other hand, I would be very hesitant to trash the judiciary as it's one of the few pillars of Indian society that is keeping corrupt politicians from doing whatever the hell they want.

Re:Oh Boy

[BaronHethorSamedi]

Yeah...actually, civil liberties as enjoyed in Western liberal democracies are really more the exception than the rule worldwide. In fact, historically speaking, they're a pretty recent invention. I know that here in the U.S. we love to talk about how our liberties are "eroding," but it's worth remembering that most of the world's population doesn't enjoy those liberties and, indeed, never has.

Re:Oh Boy

[PitaBred]

No, the fairness doctrine was stupid. Sometimes there aren't two sides that you need to give equal time to. Like evolution and Intelligent Design. Evolution is the only one that even reasonably needs discussed.

Or there are more than two sides, more valid viewpoints than two overarching "types" could adequately represent. There are a hell of a lot of people in the US that are perfectly fine with gay marriage AND being fiscally responsible. That doesn't fit into the "liberal" or "conservative" bracket, though.

Re:Oh Boy

[russotto]

But what do you mean "like the US"? How can the U.S. be considered the bastion of freedom of speech, unless in name only?

http://en.wikipedia.org/wiki/Alien_and_Sedition_Acts
http://en.wikipedia.org/wiki/Sedition_Act_of_1918
http://en.wikipedia.org/wiki/Fairness_Doctrine

Err, all of the above were repealed or overturned.

Re:Oh Boy

[JPortal]

But they all existed for some time and were enforced to some extent. And there's (serious) talk of bringing the Fairness Doctrine back.

My point was that "free speech" is not as universally held dear and timeless as we'd like to imagine.

Re:Oh Boy

[MichaelSmith]

I do not think you can. I have spent some time in India in the past. Judges there are not elected.

Electing Judges is pretty much specific to the USA. I don't know of any other countries which do that. And considering the number of people here who accuse US Judges of populism, I think appointed Judges are better over all.

Re:Oh Boy

[XchristX]

Naturally the government isn't taking this lying down. They have, apparently having spent their school history classes smoking behind the bike sheds, recruited a brutal right-wing militia to put down the communist uprising.

This claim is a complete pantload of bullshit. You've been smoking whatever Ganja the naxalite-Communist terrorists have been feeding you. The NHRC has long since debunked these absurd conspiracy theories. SJ is privately funded. To be sure, they have sympathizers in government, but their money mainly comes from private donations from the local landlords etc., much like Ranvir Sena in Bihar.

I'll bet you believe (like many Communists in India have propounded) that the recent Mumbai terror attacks were part of a secret conspiracy between Hindu bankers and the Jews, right?

The Communist-controlled Indian media has glorified the Maoists and demonized their opponents, but the fact remains that the Maoists are a China-funded terrorist group that actively seeks to destroy India and depopulate the North-eastern states as a vanguard for a possible Chinese invasion from Tibet. Numerous documents were released by the FOIA division of the CIA that showed how Moist militants received financial support from China and infiltrated the Indian Army in the 1962 Sino-India war.

The CIA has already provided evidence as to how Indian Communists, underthe instructions of their Chinese paymasters, infiltrated the Indian Army during the Sino-Indian war and betray military secrets to Beijing.

http://www.foia.cia.gov/CPE/POLO/polo-07.pdf
http://www.foia.cia.gov/CPE/POLO/polo-08.pdf
http://www.foia.cia.gov/CPE/POLO/polo-09.pdf
http://www.foia.cia.gov/CPE/ESAU/esau-15.pdf

Highlights include:

#CPI(M) [Communist Party of India Marxist] heavyweight HK Surjeet influenced by Communist Soviet Russia to setup an underground organization
#CPI(M) did proceed to recruit a secret organization within the Indian Army.
#China and Soviet Russia both insisted that the CPI(M) must develop a standby apparatus capable of armed resistance, while intensifying penetration of Indian Military forces.
#With the People's Liberation Army now present along the Indian Border the Indian Party had a channel of support for Armed Operations and a potential "liberator" in the event of mass uprisings - 13 Sept 1959
#4 powerful radio sets had been installed in the office of the China Review in Calcutta to listen to broadcasts from Beijing
#Chinese Financial Subsidies to sections of the CPI(M) particularly the left faction strongholds in West Bengal
#A foreign supply base was now available for the underground organizations with the Chinese occupation of Tibet and other frontier areas.
#Letter asking for collaboration in Indian underground organization work aimed at an eventual revolution, because China has a border with India and can provide arms and supplies.
#Also Jaipal Singh, head of the illegal organization within the Indian Army decided to reactivate his organization in 1961 following the hard left faction gaining control of the party.

In addition, the Communist Party of India have successfully carried out several pogroms and genocides against Hindus and Tibetan refugees in India, particularly during the 70's and 80's (read up on the Nanoor genocide and Morichjhanpi genocides sometime, the Communist controlled Indian media will never discuss these things, of course), all as part of a Trotskyist strategy of maintaining a state of "permanent revolution" (the most recent one being the Nandigram SEZ genocide), all at the behest of their Chinese paymasters.

China has also aggressively sponsored the terrorist Naxalite Communist terror movement in India by financing major Communist radicals (ethnic Bengali Bolshevists

Re:Oh Boy

[XchristX]

I'm disturbed by this. I believe the Internet should be a place where anyone can say anything. This will only increase anonymous blogging. On the other hand, I would be very hesitant to trash the judiciary as it's one of the few pillars of Indian society that is keeping corrupt politicians from doing whatever the hell they want.

Indian judiciary is independent of government. Indian supreme court even went so far as to indict the government under Indira Gandhi when she declared emergency and suspended the constitution in 1984.

Re:Oh Boy

[russotto]

My point was that "free speech" is not as universally held dear and timeless as we'd like to imagine.

Of course it's not universally held dear; if it was, we wouldn't need that pesky First Amendment, because there wouldn't be bastards passing laws to abridge it in the first place.

While India has a similar right in its constitution, it's also got a few "notwithstanding" clauses which render it worthless.

Re:Oh Boy

[shankarunni]

The plus is that their judiciary, though as corrupt as the rest of the country, is under no political pressure.

... gasp! OK, I just picked myself off the floor after LMAO.

Of course they are vulnerable to political pressure: promotions to higher courts depends entirely on the current administration in charge.

Not to mention the threat of a "transfer" to the boondocks, where it's quite commonplace for judges to be menaced by local politicians and thugs (the same thing, really) into doing their bidding.

Re:Oh Boy

[mahadiga]

Indian judiciary is independent of government.

Wrong.
Indian Parliament is SUPREME because they are answerable & accountable to 1,147,995,904 (July 2008 est.) Indians.
Supreme Court is SECONDARY, because they are answerable & accountable ONLY to the LITIGANTS.

• Supreme Court cannot solve your KASHMIR problem,
• Supreme Court cannot decide your INCOME TAX rates,
• Supreme Court cannot create/review/refine/rewrite any law.

Supreme Court cannot decide the OPTIMUM train or bus fare rate in India.

Re:Oh Boy

[JoshuaZ]

Yes, things are bad and in some areas getting worse. But in other ways they are getting better. The world is far more free now than it was 30 years ago. The long term trends are positive.

Furthermore, there's a selection bias. Slashdot and similar news sources report on the bad things, the censorship and the stupid use of libel laws. We don't see the smaller victories when ISPs or governments slowly decide to rollback censorship. Look at anti-pornography laws in the US. They haven't been taken off the books but slowly prosecutions have become less and less common. They saw a slight spike under the Bush administration but that's it. There's no news event that could ever be pointed to and said "look, these bad laws have been repealed." The victories often occur like that, spread out slowly, with not many people taking note. Often it isn't a victory has occurred until one can look back after a few years and see a larger trend. Luckily, the setbacks and the threats to liberty are often easier to spot.

Re:Oh Boy

[XchristX]

You're a nutcase.

Re:Oh Boy

[the_masked_mallard]

Emergency was actually declared in 1975. Indira Gandhi was assassinated in 1984.

Re:Oh Boy

[XchristX]

Sorry, I got the chronology wrong. My mistake. However, her government and several of her boy-toys in said government were indicted by the courts over the years, going back to the Allahabad High Court in 1975 itself (though they couldn't do much about it when the women effectively seized power).

http://timesofindia.indiatimes.com/India/Chawla_was_indicted_for_Emergency_excesses/rssarticleshow/4058011.cms
http://www.boloji.com/plainspeak/015.htm

Re:Oh Boy

[nog_lorp]

Woah.

Re:Oh Boy

[knutkracker]

Interesting stuff.

However, I would tend to view publicly available CIA documents which make China, Russia and other assorted communists look bad as having questionable neutrality.

Re:Oh Boy

[Anonymous Coward]

It depends on how many people believe. The test in a court is often "what would a reasonable person do", but given the shortage of reasonable people the actual standard is what would *most* people do. If half the population believes in the FSM then discussions of issues pertaining to its doctrine should not be quashed simply because the other half of us realize its not true. Limiting the freedom of expression of ignorant or stupid people will only make them more ignorant and probably violent also.

Re:Oh Boy

[mahadiga]

You're a nutcase.

You too.

Precedence

[XanC]

Putting aside the particulars of this case, something that really bothers me about law in general is that somebody has to be punished for a precedent to be set.

Suppose (taking an example from this case), the fellow genuinely believed that an Orkut community was not equivalent to a public forum. Without a very specific law, and without a ruling on the matter, all a lawyer would be able to tell him would be "maybe".

So your choices: a) play it safe, and never do anything that hasn't specifically been ruled "legal", or b) proceed, and when you're the first to find out it's not legal, you get slapped hard.

"a" is what most people choose, and it's among the largest costs of our lawyer-ocracy.

Is there a way for a judge to declare something illegal while letting a guy off the hook if he genuinely had no way to know for sure?

Re:Precedence

[takshaka]

Is there a way for a judge to declare something illegal while letting a guy off the hook if he genuinely had no way to know for sure?

The judge can suspend the sentence.

Re:Precedence

[JustinOpinion]

I've often wondered why there isn't a mechanism by which a person/company can go to a court and get some kind of "advanced ruling" or "pre-judgment". Basically you file some kind of case that is asking the court/judge "if I go ahead and do this... will it be legal?" Then based on the ruling, you can decide whether or not to do it. I would imagine that such a ruling would not be 100% binding, in the sense that you could still be sued even with a supportive "pre-judgment"... but presumably having such a judgment would go some way towards building a defense case and a long way towards demonstrating no willful disregard for the law.

Presumably the party asking for a such an advanced ruling would have to pay for their lawyer (and maybe some court fee?), but I would guess that it would still be highly valuable to many companies. There are so many startups that try things that are legally questionable (e.g. Psystar), and probably thousands of other startups that never see the light of day because investors are unsure about the legality. Shouldn't there be a way for these new ideas to be ruled legal/illegal without the massive risk of just going out and doing it!?

Of course IANAL so for all I know something like this already exists. Please educate me if so.

Re:Precedence

[CesiumFrog]

Agreed, and even if there has been a ruling or legislation on it before, there still needs to be a way for the average person to find that out (without prohibitive expense). Must I go put on shoes, or can I legally drive here wearing basic thong sandals?

Re:Precedence

[belmolis]

This is possible in the US under limited circumstances. It's called a "suit for declaratory judgment". One of the few situations in which it is possible is when someone wants a court to declare that a product does not violate a patent.

In general, however, this is not possible. The US court system was explicitly set up to prevent it. Article III, section 2, clause 1 of the Constitution empowers the courts only to hear cases involving "actual controversy". This has been interpreted as preventing the courts from issuing opinions by reference from the government (in some countries the government can ask the Supreme Court to decide on the constitutionality of a proposed law before enacting it) and as preventing most similar private requests for an opinion. Whether this provision is a good idea or not is another question.

Re:Precedence

[belmolis]

Sort of. On the one hand, the courts operate on the perhaps dubious principle that "ignorance of the law is no excuse". However, in quite a few cases, laws have been declared unconstitutional on the grounds of excessive vagueness. In other words, if the legal establishment is clear as to what a law means, ordinary people are assumed to know what it means too, but if even the lawyers and judges find it too unclear, violators can't be held responsible.

This does mean, though, that the defendant has to be able to convince the court that the law is unconstitutionally vague, not merely that that particular defendant didn't understand it.

Re:Precedence

[Anonymous Coward]

A judge needs a precedent in "common law" countries like Great Britain and those who inherited its system. Roman law (as in Spain, France...) doesn't require such a precedent and is generally much more precise.

But in either case, there are always cases which are borderline, and those usually end up in the highest court of the country, or a law gets voted to change what's legal and what's not.

In this case, it all depends on what definition of 'public' has been given in the law. I don't know the terms, but for instance regarding copyrights, the "fair use" exception in British and US laws is vague and judged based on precedents. If something looks new, the judge will have to decide what "fair" means in this situation. In France, the equivalent of "fair use" is very well documented, and there is no uncertainty whether it's "fair" or not to do a copy or present a work.

Re:Precedence

[Anonymous Coward]

No, don't go there. It sounds like a good idea in theory, but in practice, it'd just lead to a situation where a) the courts are bogged down completely, and b) the fact that you did NOT get a pre-judgement will be held against you in a "real" trial if there is one at some point.

Re:Precedence

[Anonymous Coward]

We have that in India. It is called a legal question or something like that in Latin.
These are used to seek court clarifications.

The only problem is that courts usually have such a huge backlog of normal litigation to handle that these take a long time (of the order of years; maybe months if you are lucky) to be answered.

Freedom and Shackles are not compatible

[commodore64_love]

>>>The Indian Supreme Court has ruled that bloggers cannot shelter under an escape clause to exercise freedom of speech

If the politicians/leaders have shackles on your mouth, you are no longer free. They own your mouth and control what can be said. You are a slave.

Re:Freedom and Shackles are not compatible

[Anonymous Coward]

To be fair, free speech never existed and never will. Constraints will always be put on speech because society only likes and wants to allow speech that is socially acceptable. That's why hate speech is illegal in many places--people don't value freedom of speech for the sake of freedom of speech, they look to utilitarian value of speech and they'll drop the principle in a moment, claiming "free speech doesn't cover X" while doing so.

You may not like it, but it's a feature of liberal democracies, and as long as we have liberal democracies the individual will always be subservient to the whole.

Re:Freedom and Shackles are not compatible

[damburger]

Indeed. In Nazi Germany, you were free to say whatever you wanted, but the Gestapo was equally free to torture you and execute you for it.

Re:Freedom and Shackles are not compatible

[Anonymous Coward]

True freedom doesn't exist as long laws limit people. Doesn't make you a slave tho. You are a slave when you have no rights at all.

Re:Freedom and Shackles are not compatible

[commodore64_love]

>>>You may not like it, but it's a feature of liberal democracies, and as long as we have liberal democracies the individual will always be subservient to the whole.

Then we should eliminate liberal democracies and replace them with liberal republics, that recognize that the individual right of free speech, et cetera is more important than the whole. That's what the U.S. was conceived to be in 1789, such that free speech was NEVER censored. Yes you heard correctly: never. Not even if you yelled "white people suck" in the middle of a theater (although the owner still had the right to remove you from his private property).

Re:Freedom and Shackles are not compatible

[elrous0]

The U.S. was never conceived to be any such thing. The first amendment (along with the other 9) was only tacked on to the Constitution because the Federalists knew it was the only way to achieve popular ratification of the Constitution--with its stronger, more centralized government. They didn't give a shit about the ideology behind this amendment, it was designed purely to appease a suspicious populace. If you want a good example of how little the Federalists really thought of "free speech," you need only look at the Sedition Act, passed just a few years later at the behest of Federalist President John Adams--which outlawed any form of public criticism of the President or U.S. government.

Re:Freedom and Shackles are not compatible

[stonewallred]

You are a slave when you decide to be a slave. Until that point, you may be shackled and gagged, beat and tortured, but you are still free. When the desire to fight, to escape, to search for physical freedom is lost, then you are a slave. Until then you are a prisoner.

Re:Freedom and Shackles are not compatible

[Thinboy00]

That's only half the story. There were two major parties at the time.

Re:Freedom and Shackles are not compatible

[Anonymous Coward]

They didn't give a shit about the ideology behind this amendment, it was designed purely to appease a suspicious populace.

So? As long as they passed the law... The people recognized its value.

Re:Freedom and Shackles are not compatible

[Ashriel]

Actually, the argument over the Bill of Rights was that if it were included than possibly sometime in the future the government might assume that the rights enumerated within might be considered the only rights that citizens have.

Hence the 9th Amendment, which clearly states:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Here in the U.S., citizens have any and all rights to do whatever they can imagine, the sole exceptions being actions that interfere with others' rights, and rights not mentioned in the Bill of Rights that have been constrained by law for the purpose of the common welfare.

At least, that's how it's supposed to be. Our government has been ignoring the Constitution for a long time now. Things need to be set right.

Re:Freedom and Shackles are not compatible

[Anonymous Coward]

You're a slave when I put manacles on you. You're may not have given up yet, but... Can you imagine this defense? "No your honor, he is not a slave. Yes I have manacled him and I beat him regularly, but he still tries to escape so no, it's not slavery - yet."

Re:Freedom and Shackles are not compatible

[Anonymous Coward]

What about yelling "FIRE" in the middle of a theater? Eh?

Re:Freedom and Shackles are not compatible

[Jarik_Tentsu]

If the politicians/leaders have shackles on your mouth, you are no longer free. They own your mouth and control what can be said. You are a slave.

I hardly think that because you are limited in what you can express, you are a slave. That is a hyperbole of epic proportions.

This is nothing to do with politicians/leaders having control of what you say, or think - rather, limiting what you say or think.

Take the Sydney Cronolla Riots in Australia - where born-Australians and Middle Easterns in the Cronulla Beach Area degraded into urban warfare in 2005. This was fuelled by commentaries on the radio against Lebanese people. If a ban was put on that type of racial hate inciting commentary, I'd hardly say that suddenly everyone was a "slave" to the government.

~Jarik

No escape clauses in there.

[Anonymous Coward]

The Indian Supreme Court has ruled that bloggers cannot shelter under an escape clause such as 'Any views expressed are solely those of the writers'

That isn't any kind of escape clause. Basically, it's a clause that says that views ARE the responsibility of the writers. "Editors" aren't mentioned as a writer, but they could be described as such. In addition, it doesn't say anything regarding to expressions presented not as a "view" but as a "fact".

Slumblog Millionaire

[inthedump]

Slumblog millionaires, I hope the Indian govt frees them and gives them more rights. If India can win 8 oscars, they should free these poor bloggers.

Re:Slumblog Millionaire

[spathi-wa]

India didn't win 8 oscars. A. R. Rahman won 2 oscars. Resul Pookutty won 1 oscar with Richard Pryke and Ian Tapp.

The other awards did not come to India.

Free speech vs. defamation

[kraemate]

Can someone please tell me where exactly free speech ends and defamation begins?
Is sarcasm defamation? Is questioning the reasons for the existance of a political organization(like in this case) defamation?

Coming to this case.. the comments were made in a forum which was intended for this very purpose. What next are they going to do, jail everyone who was a member because they are associated with someone posting a nasty message?

Re:Free speech vs. defamation

[pjt33]

IANAL, much less an Indian one, but on the assumption that Indian defamation law is based on English defamation law then it's defamation to make claims of fact (as opposed to opinion) which injure a person's good name (so they have to have one) and which you cannot prove to be true. In the case of published defamation the person who made the claim and the publisher would both be liable. I think they're going for the blogger as the "publisher" of comments made by third parties on his blog.

Re:Free speech vs. defamation

[BaronHethorSamedi]

OK, full disclosure: I don't know anything about defamation law in India. I can only speak to defamation in the United States.

Standards for defamation will vary by state, but very generally it amounts to making a about someone that causes some measurable harm to their reputation, employment prospects, or exposes them to public hatred or obloquy.

In U.S. law, this gets murky because we have the First Amendment. The First Amendment guarantees free speech, but doesn't generally give you carte blance to tell scurrilous lies about people. However, the U.S. Supreme Court in New York Times v. Sullivan set the bar a little higher if you're a public figure trying to bring a defamation suit. If you are such an individual (politician, celebrity, etc.), you have to prove that the statement was made with "actual malice," meaning it was made with knowledge of falsehood or reckless disregard for the truth. If you're not a public figure, you don't have to prove that the defaming party knew what he said was false, although he can assert truth as a defense to your claim.

So to answer your question, sarcasm (probably) wouldn't be enough under U.S. law, and if you're a political organization, you almost certainly wouldn't have a good case.

Re:Free speech vs. defamation

[belmolis]

This isn't a defamation case in the usual sense. The guy is charged under an Indian law that criminalizes divisive speech.

Re:Free speech vs. defamation

[ultranova]

Can someone please tell me where exactly free speech ends and defamation begins?

When your speech affects someone more powerful than yourself, it becomes defamation. In other words, the right to free speech only affects speech that doesn't matter.

It's probably my ignorance...

[uxbn_kuribo]

about indigenous peoples of the world, but every time I read that, I kept thinking that "Orkut" referred to people from the planet Ork. Then I wondered what Mork from Ork thought of free speech. Nanu nanu.

Re:It's probably my ignorance...

[Anonymous Coward]

about indigenous peoples of the world, but every time I read that, I kept thinking that "Orkut" referred to people from the planet Ork. Then I wondered what Mork from Ork thought of free speech.

Nanu nanu.

"Free speech? It's the shazbot!" -- Mork

Re:It's probably my ignorance...

[Anonymous Coward]

"Free speech? It's the shazbot!" -- Mork

The shareef dont like it
Rockin the shazbot
Rock the shazbot

I read that as..

[DanWS6]

Supreme Court of India Comes On Bloggers

I think I have a problem. :(

This is hardly even news..

[powerslave12r]

I'm an Indian from the very heart of the Shiv Sena's hometown Thane (near Mumbai) in the state of Maharashtra. There is no such thing as democracy in India. Shiv Sena will do pretty much anything they please and get away with it. And anything here includes, beating up, killing, looting, molesting, terrorising and more. I hate this part of India.

Re:This is hardly even news..

[TheAmit]

Why are you there anyway ?

Indian democracy is a hash.

[bikehorn]

Shiv Sena are a bunch of corrupt racist bastards. This judgement smacks of someone having bought the Supreme court so that they would have the power to crack down on people who have negative things to say about them and their bullshit political agenda. They are not above violence, torture, extortion, anything. I fear that nothing can stop these sectarian fucks from ruining my country. Where once the press had the freedom to poke fun at any politician they felt like, now they have to walk on eggshells.

Re:Indian democracy is a hash.

[cmdrcoffee]

http://en.wikipedia.org/wiki/Shiv_Sena

Ouch, so judges can be bought into the Indian Supreme Court, eh? Sounds horrible. Glad I don't live there.

Re:Indian democracy is a hash.

[bhagwad]

This is the Supreme court. I seriously doubt that anyone or any political party has "bought" them.

In addition, this was delivered by the Chief Justice of India himself and he is known to be an upright man.

Even though I find it disturbing, the Chief Justice has not said that what the blogger said was wrong - that's another issue. He is saying that bloggers are liable for what they say. That isn't really a first though - Barkha Dutt and NDTV threatened to sue a blogger from criticizing them, and they were a media house!

The real problem is that bloggers who are individuals can be intimidated by the threat of legal action by powerful organizations even though the charges have no merit. Sounds like the RIAA. Same problems all over the world.

Re:Indian democracy is a hash.

[Anonymous Coward]

When in India don't defame
The Queen mother
The prince charming
The princess
The family
The toadies of the family and their extended family i.e police and other law enforcement agencies.

    However if you want to make a big statement, you have work on it like a career in politics,crime,riots and then get elected and join the next big gang of similar achievers.

Democracy works. At least one family has faith in it.

Re:Indian democracy is a hash.

[freedom_india]

Whoa! Be careful with those words my friend.
The SCOI does not take kindly to accusation of corruption within its premises.
First of all understand the law:
Indian law follows the British model and NOT the US model.
Indians do not have the constitutional right to free speech by default. Yeah, newspapers and others have.
But unlike the Republic of California, bloggers are NOT reporters, so the immunity does not extend to them.
Which is why the colonial relic: OSA is still in India.
And No, the parlimentary model enables only the government to introduce bills and the parliment can only vote on those bills.
The MPs can't introduce bills by themselves.
No party would like to provide free speech to all. That will just not work: for the politicians.
The SCOI acts dually: on one hand they come down really, really hard on the government if it tries to restrict freedom of speech of citizens in ANY way. I mean, really hard, such that all TV channels and newspapers make it a point to criticize the ruling party (doesn't matter which one).
Plus i can rant in public against political party and the cops can only watch.
However the moment i start criticizing the judiciary, i get hauled off to prison.
If you want to rant, shout and insult the judiciary, become an MP and rant within the parliment.
The law expressly states you can't be sued for anything you say within the House.

Maharashtrians?

[mrsteveman1]

responsible for inflammatory speeches and numerous attacks upon non-Maharashtrians."

Which quadrant of the galaxy are Maharashtrians from?

Re:Maharashtrians?

[Anonymous Coward]

Maharashtra is a state in India. Natives of Maharashtra are called Maharashtrians.

Re:Maharashtrians?

[feepcreature]

That would be Alpha Quadrant.

The Maharashtrians are an ethnic group from the west of India, a state on the planet known as Earth. You know where that is.

issues are unclear

[belmolis]

The press report on this case is too vague to allow us to determine what the Supreme Court decided. Indian Supreme Court decisions are not published on the net, are they?

There seem to be at least three issues here. First, is the student's blog community a public forum? If it is, the potentially offending material is "published" and subject to legal action. If it is not, it is essentially a private discussion and not subject to legal action. The press report suggests that this is one of the issues and that the court decided, probably correctly, that the student's blog community is not private.

Second, is the author of the blog responsible for the posts of commenters or only for his own posts? The article suggests that this is an issue in that it is what the disclaimer refers to, but it isn't clear what Indian law says about this issue and what exactly the Supreme Court said about it.

Third, what sort of content is actionable? This is not a libel case, and based on what little the article says about the offending content, would not be actionable as a libel case in the US or even, I think, in England. India apparently has a law that criminalizes the publication of statements that are divisive. It is this law under which the student has been charged. It sounds like a law that would be unconstitutional in the US.

Re:issues are unclear

[belmolis]

Supreme Court of India cases are on-line, at http://judis.nic.in/supremecourt/chejudis.asp. However, I can't find this case. Maybe I've missed it, or maybe the decision is too recent and hasn't yet been posted.

Re:issues are unclear

[libcrypto]

From my reading this ruling appears to be for the motion filed by Ajit to "Quash the proceedings against him.". The court decided that there is no grounds for that. So the case can go on. I can see no where that the court has decided weather the content is indeed public or private etc. etc. That will be decided only when the actual case comes up for hearing.

I thought it said "Burgers"

[Cowclops]

I thought the Supreme Court of India was coming down on burgers... because Hindu people worship cows and therefore don't eat hamburgers.

Why does this matter?

[1s44c]

India has bigger problems it's working hard on ignoring. The lack of clean food and water. The epidemic homeless situation. The missing education system for most of the population. The degraded farmland and the rubbish mountains.

All of the above are more important than the right to abuse people in blogs.

Re:Why does this matter?

[nashv]

Fail. Free speech and the rights of an individual are the foundation of a prosperous society. Heard of World War II ? There was enough clean water and food, no homeless, a good education system and no degraded farmland in Germany. The whole mess occurred because something was wrong with the German governments idea of the 'Rights of an Individual', among other purely ideological notions.

Re:Why does this matter?

[bhagwad]

I disagree. Free speech is the most important foundation of a free country.

India fought for independence when fighting for the right to self determination even though there were homeless people at that time too. Should the freedom fighters have said "We have bigger problems?"

The lower infrastructural facilities in India deserve attention, no doubt, but not at the cost of what makes India a free country. Also, why is are you implying that the two are exclusive? You can't say - "First I will do this, and then I will do that".

Tolerating Free speech is about changing an attitude. Where does the lack of clean water come into this?

Re:Why does this matter?

[libcrypto]

So according to you governments should concentrate on one thing at a time? That is very realistic. Just stop all life while I resolve this one problem.

Re:Why does this matter?

[freedom_india]

Hmmm...
Thousands of veterans homeless roaming around with NO medical care. Thousands without medical insurance and necessary care.
Millions of homes foreclosed so far throwing thousands of families on streets or tin-can homes
A dysfunctional education system "enables" a student to go into Debt for $50K easily and results in them selling their virginity to fund the same.
A Monsanto owned food chain that is an absolute monopoly and plays havoc with the lives of the farmers and also damages the Soil.
A bankrupt banking system that charges more and more interest while prying tax money off the Government to fund bonuses and parties.
USA citizens have FAR more troubles than to worry about India.
Worry about thyself before worrying about others.

Re:Why does this matter?

[Anonymous Coward]

I disagree. Free speech is the most important foundation of a free country.

Free speech is very noble, but it is lower priority than eating. Even the very poorest in the US can dig though trash cans and survive. It's not like that in India, there isn't enough to go around.

Don't eat or drink for 3 days then tell us how much you care about free speech.

Re:Why does this matter?

[1s44c]

Fail. Free speech and the rights of an individual are the foundation of a prosperous society.

The foundation of a prosperous society are enough basics like food, water, and enough land for everyone to survive without having to rob or kill each other.

Personal freedoms and the rights of individuals are noble concepts but how much freedom does a starving and unemployable man have?

Re:Why does this matter?

[bhagwad]

You obviously haven't heard that Gandhi was willing to fast to death to achieve his so called by you - "lofty" goals.

You haven't heard of Guru Tegh Bahadur who withstood torture and was unwilling to let go of his "noble" ideas.

People are willing to starve and undergo torture to protect their ideals. If you aren't willing to do that, at least don't insult their memory by claiming that they were fools to do so. We need more people like them, not less.

Uhh, missing something?

[hacksoncode]

Are most of these comments missing the point: he's not being sued/arrested for something that *he* said, he's being sued/arrested for something that *someone else said* on a forum he created.

The only question is, are we (or even just Slashdot, or the OP) now liable for content posted by others here? Some of it apparently derogatory to the Indian government?

*That* is the chilling effect that we can't tolerate.

Wait...

[PylonHead]

Somebody is still using Orkut?

Re:Wait...

[monjolo]

Half of the BRIC: millions of Brazilians, millions of Indians etc.

Re:Wait...

[hoskeri]

Orkut is *very* popular in India. Everybody is on Orkut. To most of my friends (and relatives), if you are not on Orkut, then you dont exist.
That they are doing the Internet equivalent of running around on the streets naked is lost on them.

-Abhijit

Same Old Story

[Professor Fate]

Took a bit to understand this story.

Shiv Sena is a political party in India. They've been around since the mid-60s and are generally described as being far right wing conservatives. They tend to be Buddist and have been accused of violence against Muslims. When they oppose the message they are quick to protest movies or other media, such as bloggers.

Re:Same Old Story

[belmolis]

No! No! No! Shiv Sena is not Buddhist. It is Hindu. The name means "Army of Shiva", one of the three main Hindu gods.

Re:Same Old Story

[Professor Fate]

Doh!!!

I am so sorry, you are absolutely correct. My sincere apologies for getting Hindu and Buddism mixed up in my response. I would edit my original, if I could.

Not only Judiciary

[mahadiga]

BRIBES or CASTE is the COLLUSION between any two individuals in Politics, Businesses, Police and Judiciary in India.

Anonymous Coward

[Anonymous Coward]

RTFA!! I think we are all missing the point here. The ruling doesn't say that you would be criminally prosecuted for your own views. The defamatory statements made against the Shiv Sena were not of the person who created a community (please can we stop calling him a blogger? ).

He is being prosecuted for comments others put on a community that he started. So not only would you be prosecuted for your own comments. If you have initiated a discussion and someone says something defamatory, you can be held in libel for it.

If this is not absurd, I don't know what is. I have always said that the Supreme Court is a really over-rated in India and this just goes on to prove what morons some of these judges are.

Re:Anonymous Coward

[dumdumdum]

Supreme courts in the India are one of the most "intelligent" and reliable institutions. One of the reasons why this guy will get prosecuted is because he started the community to instigate defamatory statements. His "intent" was to generate these defamatory comments. Actually if it had been just his blog and some random person had made a defamatory statement on his blog (which is general blog, not specifically aimed at defaming a party or a person), the courts would not have held him responsible for that

That is so full of...

[babychen]

crap. Sounds like right out of the manifesto of some of India's extreme-right wing. The right-of-center party would never say that and probably laugh you out of their office if you say that. Salwa Judum is unofficially organised by the government of the state concerned, and is about to be disbanded. Maoists are extremely violent, and a threat in many parts of the country. But once you are as poor as their members are, often your choices are limited to kill or be killed. Communists in India have done many stupid things, huge number of them haunt them till now, and deservedly so. But they haven't been so stupid as to say Hindi bankers and Jews planned it. Indian media is hardly communist controlled. They are often at loggerheads with them, and if anything, you have to say they are congress-sympathisers. Looks like anyone who disagrees with you is a communist to you! That sounds exactly like, ah, some Indians living in US pining for for the Hindu nation which they think Indian never had.

Re:That is so full of...

[dumdumdum]

Indian media especially electronic media has a classic dichotomy. On economy they are right leaning on everything else they are communists. By the way most iconic figures on electronic media are related to communists. Pranab Roy is a relative of Brinda Karath. Vindo Dua is leftist. Burkha Dutt is related again to communist party members and so is Rajdeep Sardesai. So its wrong to say that indian media is "hardly" communist controlled. Electronic media definitely is By the way looks like everyone who doesnt agree with you is a right wing fundamentalist to you.

Re:That is so full of...

[Anonymous Coward]

On economy they are right leaning on everything else they are communists.

That's like claiming someone is christian on everything except religion. Communism is an economic structure. Stalin and Mao were not at all what Marx advocated. Why do people keep believing totalitarian hellholes when they claim to be communist, even while realizing they're obviously lying when they also claim to be democratic?

Re:That is so full of...

[XchristX]

But they haven't been so stupid as to say Hindi bankers and Jews planned it.

They do say these things. Amaresh Misra, a major ideologue for the Communist Party, even published this ludicrously anti-Indian/antisemitic conspiracy theory in Communist party mouthpiece:

http://www.countercurrents.org/misra031208.htm