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Supreme Court of India Comes Down On Bloggers

Posted by kdawson on from the watch-what-you-say-and-everybody-else-too dept.

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.

42 of 131 comments (clear)

  1. Is this so different than the U.S? by Danger+Will+42 · · Score: 5, Interesting

    "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

    1. Re:Is this so different than the U.S? by commodore64_love · · Score: 4, Informative

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

      --
      "I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
    2. Re:Is this so different than the U.S? by iminplaya · · Score: 2, Insightful

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

      --
      What?
    3. Re:Is this so different than the U.S? by blair1q · · Score: 3, Insightful

      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.

    4. Re:Is this so different than the U.S? by againjj · · Score: 4, Informative

      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.

    5. Re:Is this so different than the U.S? by Danger+Will+42 · · Score: 4, Insightful

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

    6. Re:Is this so different than the U.S? by the_womble · · Score: 2, Insightful

      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

  2. Oh Boy by WiiVault · · Score: 3, Insightful

    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.

    1. Re:Oh Boy by damburger · · Score: 2, Informative

      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.

      --
      If we can put a man on the moon, why can't we shoot people for Apollo-related non-sequiturs?
    2. Re:Oh Boy by JPortal · · Score: 3, Insightful

      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

    3. Re:Oh Boy by slashdotlurker · · Score: 2, Informative

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

    4. Re:Oh Boy by slashdotlurker · · Score: 4, Insightful

      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.

    5. Re:Oh Boy by bhagwad · · Score: 5, Informative
      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.

    6. Re:Oh Boy by PitaBred · · Score: 3, Insightful

      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.

      --
      My blog. Good stuff (when I remember to update it). Read it.
    7. Re:Oh Boy by XchristX · · Score: 4, Interesting

      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

      --
      l'Homme n'est Rien l'Oeuvre Tout: Gustave Flaubert to George Sand
  3. Precedence by XanC · · Score: 5, Interesting

    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?

    1. Re:Precedence by takshaka · · Score: 3, Informative

      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.

    2. Re:Precedence by JustinOpinion · · Score: 3, Insightful

      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.

    3. Re:Precedence by belmolis · · Score: 2, Informative

      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.

  4. Freedom and Shackles are not compatible by commodore64_love · · Score: 4, Insightful

    >>>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.

    --
    "I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
    1. Re:Freedom and Shackles are not compatible by Anonymous Coward · · Score: 3, Insightful

      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.

    2. Re:Freedom and Shackles are not compatible by damburger · · Score: 3, Insightful

      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.

      --
      If we can put a man on the moon, why can't we shoot people for Apollo-related non-sequiturs?
    3. Re:Freedom and Shackles are not compatible by elrous0 · · Score: 3, Informative

      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.

      --
      SJW: Someone who has run out of real oppression, and has to fake it.
    4. Re:Freedom and Shackles are not compatible by stonewallred · · Score: 3, Insightful

      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.

    5. Re:Freedom and Shackles are not compatible by Ashriel · · Score: 3, Insightful

      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.

  5. Re:Good way to drive them underground by Samschnooks · · Score: 5, Funny

    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?

  6. No escape clauses in there. by Anonymous Coward · · Score: 2, Insightful

    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".

  7. Free speech vs. defamation by kraemate · · Score: 3, Interesting

    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?

    1. Re:Free speech vs. defamation by pjt33 · · Score: 2, Informative

      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.

    2. Re:Free speech vs. defamation by BaronHethorSamedi · · Score: 2, Informative

      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.

    3. Re:Free speech vs. defamation by belmolis · · Score: 2, Informative

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

  8. This is hardly even news.. by powerslave12r · · Score: 2, Interesting

    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.

    --
    Real men read Slashdot articles at -1, bottom up.
  9. Indian democracy is a hash. by bikehorn · · Score: 5, Interesting

    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.

  10. Re:Good way to drive them underground by Captain+Splendid · · Score: 3, Insightful

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

    --
    Linux, you magnificent bastard, I read the fucking manual!
  11. Re:A column of democracy...FREEDOM OF EXPRESSION! by geobeck · · Score: 3, Insightful

    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.

    --
    Find environmentally and socially responsible products on http://buy-right.net
  12. Re:A column of democracy...FREEDOM OF EXPRESSION! by Thinboy00 · · Score: 2, Insightful

    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.

    --
    $ make available
  13. issues are unclear by belmolis · · Score: 2, Interesting

    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.

    1. Re:issues are unclear by belmolis · · Score: 3, Informative

      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.

  14. Uhh, missing something? by hacksoncode · · Score: 2
    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.

  15. Re:Why does this matter? by bhagwad · · Score: 2, Insightful
    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?

  16. Re:Wait... by hoskeri · · Score: 2, Interesting

    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

    --
    Even if you win the rat race, you are still a rat
  17. Re:Anonymous Coward by dumdumdum · · Score: 2, Interesting

    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