4 November 2018

Jurisdictional Ambiguity in Content Regulation

The regulatory landscape in India for content and its dissemination has seen the State's unwieldy mechanisms seeming to perpetually try to catch up to technology without ever quite succeeding. It has also seen manifestations of the State's belief that it is a purveyor of morality with an obligation to thrust its own understanding of decency on to the populace at large.

There is no doubt whatsoever that, in the realm of content law, there is an imprecise mass of regulation which can be used to impugn virtually any content. There is no way to contain the invocation of the law considering that individuals can, quite randomly, shoot off legal notices and initiate formal legal proceedings. To do so, they do not need good reasons. The law doesn't preclude such conduct even if claims made ultimately fail, as they often do. Such is the cesspool that governs the substance of content in India. And, if that weren't enough, there's also the ownership of content to contend with.

Proprietary rights in content are primarily governed by a group of intellectual property statutes including the Copyright Act and the Trade Marks Act which deal with items such as films, music, books, logos, art, and broadcasts. These statutes try to balance the rights of various stakeholders by saying that although owners have monopoly rights in content, non-owners may use content in limited ways without the permission of rights owners.

In cases where third parties do not simply have the right to use content without authorisation whether by availing of exceptions to infringement or by relying on the doctrinal mandate that the law not concern itself with trifles or inconsequential infringement, third parties may occasionally be able to 'forcibly' acquire authorisation to use content through the mechanisms of statutory and compulsory licences.

None of these avenues involve negotiated contracts between the parties concerned, and all of them help to keep content from being unfairly sequestered, possibly by pricing licence fees ludicrously high, once it is made publicly available. They highlight two aspects of content statutes: firstly, that the law attempts to balance the rights of all the stakeholders, and, secondly, that the laws which govern content are rarely laws which deal with substance alone. On the contrary, most content laws also deal with how to ensure that content reaches the public... or (!) how to ensure that content is kept from the public possibly through mechanisms such as those created by the 1952 Cinematograph Act.

In other words: content laws deal with not only substance but also with carriage. This tends to lead to rather sticky situations as there are, additionally, distinct laws which focus on almost nothing but carriage. It can also lead to formal claims related to various statutes having overlapping jurisdictions which is exactly what occurred the case of Star India v Department of Industrial Policy & Promotion decided in October 2018 by the Supreme Court.

In this 2018 decision, the Copyright Act and the TRAI Act came under scrutiny after the issue of the 'Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations, 2017' and the 'Telecommunication (Broadcasting and Cable) Services (Eighth) (Addressable Systems) Tariff Order, 2017' by TRAI which contained mandates about how television channels could be bundled together in bouquets and how much could be charged for them was challenged. It was possible to essentially construe TRAI's acts to be an indirect method of controlling the substance of content broadcast by stipulating pricing which, by itself, is not alien to its mandate. The question has been how far its mandate extends.

In a rather perplexing decision, however, the Supreme Court largely ignored the notion of balance embedded in the Copyright Act and held that the TRAI Act would supercede the Copyright Act in certain circumstances:
"We are, therefore, clearly of the view that if in exercise of its regulatory power under the TRAI Act, TRAI were to impinge upon compensation payable for copyright, the best way in which both statutes can be harmonized is to state that, the TRAI Act, being a statute conceived in public interest, which is to serve the interest of both broadcasters and consumers, must prevail, to the extent of any inconsistency, over the Copyright Act which is an Act which protects the property rights of broadcasters. We are, therefore, of the view that, to the extent royalties/compensation payable to the broadcasters under the Copyright Act are regulated in public interest by TRAI under the TRAI Act, the former shall give way to the latter."

In effect, it could be argued that the impugned TRAI regulation & tariff order has amounted to the insertion of an additional non-voluntary copyright licence into the 1957 Copyright Act without the sanction of parliament, a licence not contemplated by the statute at all. Whether an external agency such as TRAI has (or should have) the mandate to effectively create and present as a fait accompli an additional non-negotiated licence in a field ostensibly alien to it is, of course, debatable although, not entirely unrelatedly, in a 2007 case, the Delhi High Court recognised the competence of TRAI to fix tariffs and to prescribe the Standard Interconnection Agreements dehors the 1995 Cable Television Networks  (Regulation) Act, stating: “What must not be overlooked is that the subscriber has a fundamental right of viewership which has preeminence over that of the broadcasters' fundamental rights. The impugned Regulations are calculated to protect the viewers' interest.”

Thus, it appears that TRAI is seen as an official authority which promotes the public interest. Unfortunately, ‘public interest’ is an ill-defined term subject to ‘judicial idiosyncrasy’, to borrow a term from a completely different context, and it is not evident that the manner in which courts have chosen to harmonise TRAI’s powers with related powers, rights, and functions in statutes which are independent of TRAI is definitely in the interest of the public.

To further muddy waters is the fact that there have been questions about the jurisdiction of TRAI for a while now. In July 2018, for example, there were concerns raised about whether the substance of vast portions of its ‘Recommendations on Privacy, Security and Ownership of the Data in the Telecom Sector’ fell within its remit. Interestingly, by October 2018, reportage indicated that there were plans to have issues like data privacy, security and cybercrime be overseen by TRAI possibly instead of by IT Ministry.

There is, of course, an Information Technology Act which was passed in 2000, but it is far from clear how technologies such as those associated with IPTV should be dealt with by the existing legal framework since, with almost no interpretive legerdemain, they could easily also be considered to fall within the scope of the 1995 Cable Television Networks Act which, incidentally, also contains Programme and Advertisement Codes in its 1994 Rules that can be used to proscribe the dissemination of content on the basis of its nature.

Extant legal mechanisms quite simply do not appear to be equipped to handle the range of content, either qualitatively or quantitatively, or the technology of the 21st century. All that appears to be clear at this point is that there is a great deal of, often competing and sometimes contentious, regulatory and statutory overlap. How policy should be shaped and how the existing mess should be untangled remains an open question which, in coming years, will  have to be somehow untangled.

(Note: The author, Nandita Saikia, has advised broadcasters on issues of law and legal policy.)

[Link] The Rule of Law

I critique the rule of law with reference to violence and its own history, pointing out that it has often been 'the voice of the immensely privileged codified in statute and subordinate legislation' in a piece that was published by Smashboard and later by Firstpost.

Extracts

"...the rule of law is not an egalitarian concept and its history demonstrates that it not underlain by gender neutrality. It may be possible to force it into another, less discriminatory mould more mindful of equality and individual rights but that would require recognising our current understanding of the rule of law for what it often is: an idea perpetuated by white men living in sexist societies themselves and forming the theoretical basis for the racial hierarchies which plague all of us today, often with their ideas being used to support economic drain and worse of countries primarily populated by non-white peoples.

[....]

The Constitution of India promises individuals equality and dignity. However, that promise may well be betrayed by the rule of law if it is not structured to avert violence induced by such facets of one’s identity as gender, sex, and sexual orientation.

[....]

Violence is unlikely to be eradicated in our own time but it can be contained, and it is legitimate to ask that the rule of law be structured to protect the most vulnerable amongst us. The most vulnerable are not just those who are poor but anyone who lacks the privilege of power which is, of course, most of us and women, upper class or not, in particular. After all, privilege is always relative, and persons who are abused invariably have less privilege than their abusers. If the rule of law is not structured to address the concerns of those with comparatively less privilege, its adoption would too often merely result in access to law and not in access to justice."


(This post is by Nandita Saikia and was first published at IN Content Law.)

29 September 2018

Aadhaar: Techno-Capitalism, Constitutionalism, and Patriarchy

Law, technology, capitalism, and patriarchy make for a potent combination which, if not handled carefully, may become toxic. The Aadhaar project, which could conceivably be used as an instrument with which to enforce patriarchy on steroids, if care is not taken to avoid such an eventuality, exemplifies this. At the moment, it seems reasonably clear that privacy concerns related to Aadhaar aren't entirely unfounded. What isn't clear is the extent to which Aadhaar-related privacy concerns are valid and how they could manifest.

In a troubling judgment where the majority and the minority disagreed not only on matters of law but on basic issues of fact, the Supreme Court largely upheĺd the constitutional validity of Aadhaar and effectively mandated that each individual’s Aadhaar number be linked to their PAN card and be mentioned in their IT returns which, along with requiring an Aadhaar number to avail of government subsidies, likely means that almost everyone will have to participate in the project. The Court did curb Aadhaar demands by private companies although it isn't clear if companies' demanding PAN numbers, which are, in any case, necessary for most financial transactions, could lead to Aadhaar linkage by proxy.

ARPU projections (which quantify the Average Revenue Per User) in light of the Supreme Court's Aadhaar decision do not yet appear to be in the public domain. Once they are made, they'll probably determine how India Inc.'s response to the Aadhaar judgment will play out. After all, if there is one factor capitalism is sensitive to, it is money. 

ARPU projections may also effectively act as econometric analyses of the value of a person's life, if only by accident. After all, compromised privacy can have a direct impact on whether or not a person remains alive. Revealing a person's location and the establishments they frequent can, for example, put them at risk of being targeted at those places by those who would harm them.

Such information relating to location and lifestyle would anyway perhaps be available to a person out to do harm provided they asked the right people. The difference with Aadhaar which induces particular fear is that it potentially provides much more information to malefactors with much less effort on their part. Enhancing concerns is the lack of clarity about what the situation would be if an Aadhaar number had already been linked to a service either directly or by proxy through a PAN number.

The disclosure of information may well be entirely unlawful but it has to be borne in mind that unlawfulness doesn't necessarily mitigate the harm caused by disclosure and, communal concerns aside, social reality ensures that a weeping husband seeking his 'missing' wife, for example, cuts a sympathetic figure even if, unbeknownst to others, she's missing only because she's escaping his abuse. So, too, does a distraught parent or sibling looking for a relative who has married 'out of caste' in the face of family opposition. A third party has no way to know whether a tearful reunion will follow the disclosure of information or an honour killing.

It isn't clear that there are adequate practical safeguards against wrongful disclosure or to ensure that persons whose data is revealed are notified each time a disclosure takes place so as to enable them to take what precautionary steps they can. In effect, this means that anyone who lives in fear of social and familial violence is potentially permanently unsafe and forced to continually endure in a heightened state of alertness.

Although the technology at play does not architect for violence, it does not seem to have adequately architected for safety either. The social environment in which it operates, being patriarchal, serves to enhance safety concerns. And the legal construct in which the technology is deployed legitimises it through an understanding of the rule of law which appears to prioritise social order and not individual safety.

Early on in its judgment, the Supreme Court referred to Dicey (1835-1922) to explain what constitutes the Rule of Law. “The essence of rule of law is to preclude arbitrary action,” it said, continuing, “Dicey, who propounded the rule of law, gave distinct meaning to this concept and explained that it was based on three kindered [sic] features, which are as follows: (i) absence of arbitrary powers on the part of authorities; (ii) equality before law; and the (iii) Constitution is part of the ordinary law of the land," and, although it strayed into our own time, repeatedly referencing both contemporary jurists (including a former Chief Justice of Israel) and individual rights, the foundation of the Court's understanding seems to have been built on a conception of legality drawn from Dicey's Rule of Law.

The Rule of Law is, of course, basically an implementation plan for the social contract in which men supposedly freely and voluntarily submitted to the State, granting it legitimacy and pledging it obedience in order to create order from the chaotic state of nature. Women were co-opted into the social contract. This was presumably achieved through a preceding sexual contract which gave men legal dominion over women, as Carole Pateman memorably suggested. After all, there is no other way in which the social contract, which largely ignores women and which was developed at a time when married European women rarely had the right to contract independently due to coverture, could have been successful.

Dicey himself appears to have supported both patriarchy and the British imperial project which derived its theoretical legitimacy, in no small measure, from the racial hierarchies developed by white men during the Enlightenment which, unsurprisingly, put themselves on top of the pyramid, so to speak.

Drawing on the understanding of Dicey hardly seems appropriate in a world that's supposedly striving towards gender and racial equality. Nominally, anyway. The validity of the Rule of Law is being challenged in the context of colonialism which saw no dearth of entirely legal atrocities against colonised peoples. It may well be worth extending those enquires so as to vigorously interrogate the potential unlawfulness of the Rule of Law in other contexts too, and to challenge the idea that being lawful is akin to being acceptable.

Ultimately, what we need is a conception of the Rule of Law which is viscerally sensitive to individual rights and which does not allow what should be inalienable rights to be sacrificed at the altar of social order. It is not immediately apparent that the understanding of the Rule of Law which the Supreme Court has adopted in its Aadhaar judgment, and which appears to underlie its rationale, is an understanding that is entirely shorn of the sexist and racist baggage of the past.

In the context of Aadhaar, there are still several unknowns. That it is lawful for society is not identical to its being safe for the individual simply because it could, depending on how it is used, increase security risks exponentially. The challenge now is to shape the techno-legal environment in which Aadhaar exists and operates to ensure that it is unquestionably safe for the most vulnerable amongst us. 

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