15 November 2019

Street Art and the Law in India

Rangoli during Palkhi (Pune, 2015)
Street and public art has always been common in India. In fact, it's so common that it is often unremarked upon, with rangoli and other forms of indigenous art being so ingrained in our culture that, even when they appear on the streets, they barely register as being 'art' at all, much less as 'artistic works' which are protectable by copyright law.

That said, there is a growing enthusiasm to engage with indigenous arts; folk arts are often celebrated, sometimes with a nudge from the government. While street artists in India have not developed a distinctively homogenous Indian style, they draw on both domestic and foreign techniques ranging from the use of spray paint, still all but inaccessible except to the richest, on walls to the use of petals and powders for rangoli on the ground.

The substance of urban street art and graffiti seems to be evolving at a noticeably quick pace, too, perhaps in a reflection of developing priorities. The 'Two-Child Family - Happy Family' banners, so common in earlier decades, now often relinquish some of the space they have hitherto occupied to 'Green City - Clean City' reminders.

The art of the pro-independence era of the Raj reminding one of the appearance of a non-colonial land, as the famous Haripura posters once did (and NGMA collectibles featuring them continue to do), now shares space with art about that same era, sometimes drawing a direct line from pre-colonial rulers like Shivaji Maharaj, the warrior-king who challenged the Mughal Empire at the height of its power, to stalwarts of the freedom movement like Lokmanya Tilak who had declared of self-rule, in no uncertain terms: "Swaraj is my birth right and I shall have it," effectively marking the beginning of the end of the British Empire in India.

This wave of nationalist art, it could be argued, is not so much anti-colonial as it is a celebration of the struggle to assert national autonomy and agency. It not only often features Gandhi, whose devotion to non-violence is well-known, but also recognises that not all of the interaction between the rulers and ruled was non-violent, and that protests against the British could, in fact, be remarkably violent.

A work on Ganeshkhind Road in Pune appears to feature the 1897 assassination of the plague commissioner, W C Rand, by the Chapekar brothers. Although little remains of the road as it once was  a tree-lined avenue till as recently as the early 1990s  the event has not been forgotten.

Protest art and graffiti lives on. Issues like the non/desirability of slum demolitions (depending on one's point of view) continue to arise with unsurprising regularity not just through graffiti and street art but also in other forms of creative work such as books; Mathangi Subramanian’s novel A People’s History of Heaven set in a fictional Bengaluru slum, which happens to contain a sub-plot featuring a girl and graffiti, is perhaps one of the most recent books to deal with the subject. No major urban centre has remained unaffected by the issue of demolitions: Bombay saw its fair share of upheaval around the turn of the century, and Delhi saw concerns being raised about proposals to rehabilitate artists who lived in Kathputli colony, a neighbourhood where those who made a living off traditional forms of entertainment once thrived.

Current events too such as the #MeToo movement against sexual harassment have led to content creation amongst which are some pithy and rather pointed slogans: Due process not Dude process!, to take just one example.

The range of technologies used by creators has expanded. It is not unheard of to have street art be temporarily projected on to a wall rather than to have it be painted on to one. 'Projection bombing', as the tactic is called especially when it's employed by campaigners, seems to lie quite firmly beyond the realm of established jurisprudence with regard to its commission although its substance is susceptible to being assailed by India's many content laws.

It would appear that the only reason holograms are not really part of the repertoire of street art is because they cannot be inexpensively projected at large scales.

Projection as art does, however, raise interesting questions regarding what determines the constitution of a 'public space'. Is it ownership of a physical space or online platform? Is it a question of who has access to the supposed public space? Does it boil down to the function of the public space? This is important in the context of the law not just because the contours of copyright vary depending on where a work is placed but also because, proprietary rights aside, the definition of a public space ultimately ties in with free speech concerns in terms of the rights which members of the public have in relation to a 'public space'.

At the moment, we do not completely understand how public rights in the context of street art and graffiti interact with private ownership (particularly when new technologies are employed), and to what extent those rights can be rights be subverted by contract.

Much that seems new does, however, have a flavour of the old. Bollywood may no longer create posters as it did in the heyday of Balkrishna Arts, whose work has also found its way into the NGMA, and Bollywood Art Project may have consciously celebrated the film world of yesteryear in our own time but, even so, contemporary films, from both Bollywood and Hollywood, have not been entirely left out in the cold. They find themselves referenced in murals: they are still advertised with eye-catching images, sometimes (it has to be said) painted over other works.

Not all street art raises hackles or is intended to. Many works 'merely' make an unobtrusive statement or act as reminders of what we have achieved. A work in Pune featuring Savitribai Phule, after whom the city's university has been named, uses a series of images to tell a tale which begins with Mahatma Phule teaching his wife, Savitribai, goes on to display her pioneering efforts to teach girls in the city, and finally ends by portraying women as professionals.

Street artists sometimes work in teams or crews, (as they seem to have done with the work depicting Savitribai Phule), or else work individually. They rarely create works purely for the kicks that come from 'vandalism': street art in India is usually purpose-driven whether in consequence of artistic inclination, socio-religious demand, or the desire to communicate a specific and easily-intelligible message. It is often is commissioned by a ministry or municipal body, and mentions the names of the commissioners and the creators possibly through conventional tags. Street art festivals are occasionally conducted although not all creators are or are willing to be associated with them.

There are a variety of artistic styles employed by people across the social spectrum although, when street art is spoken of, the focus too often tends to be on works created by well-heeled urban artists. Those who create rangoli by the roadside during pilgrimages, the women who weave elaborate garlands, the many artisans involved in erecting festival pandals… they're all invariably anonymous in the public eye. Caste, class, and gender, as always, make their presence felt. And scarcely a thought is given to protecting pandals, often enough artistic architectural works in their own right.

Naturally, unacknowledged artists find it even more difficult than acknowledged ones to benefit from what protection the law has to offer them and their works although, in that regard, there is almost no creator who has it easy. In an essay in 'The Cambridge Handbook of Copyright in Street Art and Graffiti' edited by Enrico Bonadio, I've argued that while Indian copyright law applies to street art and graffiti in theory, it doesn't necessarily provide adequate protection in real life. And, even when it comes to theory, we don't know what the contours of the law are because the law has not been sufficiently tested through litigation.

Attempting to draw parallels to the West isn't the best approach to take: in contrast to the West, Indian creations often (though not always!) conform to social expectations. And, if one were to separately examine the law, it would likely emerge that, effectively being a part of the country's colonial legacy, the 1957 Indian Copyright Act isn't especially well-suited to protecting indigenous arts unaligned to Western modes of distribution and practices of creation (which tend to privilege contemporary individual genius rather than communal creation passed down through the generations).

India has, in the past, virtually upended the colonial paradigm to better suit its own arts. For example, the definition of a musical work in copyright statute, effectively a carry over from the 1911 UK Act and the 1914 India Act, was amended in 1994 prior to which the law had privileged Western music by requiring musical works to be written down. The 1994 amendments redefined a ‘musical work’ as, in relevant part, one which is: ‘a work consisting of music and includes any graphical notation of such work’. The amended law, contained in the 1957 Copyright Act, is suited to protecting Indian classical music which does not necessarily have ‘graphical notation’ at all, and has performers extemporise. In fact, Indian law now recognizes the possibility of musical works having graphical notation – invariably the norm in the case of Western classical music – almost as an afterthought.

In the case of art, the requirements for copyrightability, especially the originality requirement, place folk arts at a significant disadvantage although how the law should be structured to avoid turning the intellectual commons into a fenced-off proprietary field is an open question.

We would do well not to take the protection of the law for granted when it comes to street art and graffiti in India. After all, we still have a long way to go when it comes to protecting art and artists not just in terms of addressing enforcement issues but also in terms of decolonising the structure of Indian copyright law to better protect art in India.

(This post is by Nandita Saikia and was first published at IN Content Law. Some of its content has been previously published on Twitter, and it has benefited from numerous conversations with friends, acquaintances, and complete strangers, over the years.)

12 August 2019

The Legality of Making Sense of Data

Data ‘sovereignty’ has become an inescapable buzzword in Indian discussions on data and its use. We’re told, quite accurately, that India with its large population generates what is essentially an untapped goldmine through data, and that we should, as a country, make the most of it. Unfortunately, it isn't entirely clear what that means in its specifics or how we could achieve sovereignty whilst protecting both national interests and individual rights without subsuming one into the other. In this context, the term 'data localisation' pops up often enough but it isn't obvious that the term is tremendously meaningful with reference to contemporary technology particularly since it may not be easily implementable, if at all. Compounding the issue are doubts about our having a plethora of privacy shields at our disposal comparable to the EU-US one which protects transatlantic data flows.

It’s been a while now since we’ve been grappling with large quantities of data: as the costs and ease with which data can be saved have decreased, our tendency to store all the data we can has increased. After all, as a hoarder might explain: what’s retained just might come in useful one day, which would be all well and good if we limited ourselves to storing only our own data. That, however, is not the case: as individuals we may also store others’ data and contribute to their data being publicly exposed without their consent.

What else is the enthusiastic automated suggestion to tag one’s friends in SocMed photos than the barely-consensual breach of another person’s privacy? It’s true enough that a person can opt to disallow others from tagging them but the process is far from intuitive, and the default is often that such tagging is permissible through the standard terms of use of SocMed platforms. Without a certain degree of techno-legal savvy, the choice not to be tagged and to have at least that one aspect of one’s privacy be protected is largely illusory.

Ultimately, the choices we make online tend to find themselves being the substance of data mining processes which find patterns in large amounts of data. Obviously, developing the parameters upon which these patterns are discerned relies heavily on what one’s own beliefs are and data mining is not neutral.

Consider something as simple as determining what length of hemline a dress sold in a particular area would be: you have data about women, hemline lengths worn in the region, age, the percentage of married women, and religion which possibly all play a role in the decisions women make. Except that maybe you fail to factor in ‘climate’ which, in that area, is the single greatest determinant of the choices women make. And, so, present yourself a series of assumptions about why women choose the clothes they do without realising that the length of hemlines may have far less to do with socio-sexual practices than the simple desire of wanting to avoid either a heat-stroke or hypothermia. And, that, of course is a mistake which it is all too easy to see a software techie dudebros making: the industry is not known to be especially welcoming of women.

Big data, it could be argued, presents not so much the opportunity to eliminate our personal prejudices through the use of technology but to express them at scale. And where data is collected indiscriminately, nobody is exempt from the consequences of attempts to analyse big data, which is why it is important that we have clear data protection rules and a transparent understanding of what we’re doing with data.

Legal Recognition

The intersection of human choice and technology is one which the law has been trying to traverse safely for some time now. In the landmark 2017 case of Puttaswamy v UoI in which the Supreme Court recognised that privacy is a fundamental right, it said:

"Data mining with the object of ensuring that resources are properly deployed to legitimate beneficiaries is a valid ground for the state to insist on the collection of authentic data. But, the data which the state has collected has to be utilised for legitimate purposes of the state and ought not to be utilised unauthorizedly for extraneous purposes. This will ensure that the legitimate concerns of the state are duly safeguarded while, at the same time, protecting privacy concerns. Prevention and investigation of crime and protection of the revenue are among the legitimate aims of the state. Digital platforms are a vital tool of ensuring good governance in a social welfare state. Information technology – legitimately deployed is a powerful enabler in the spread of innovation and knowledge.  A distinction has been made in contemporary literature between anonymity on one hand and privacy on the other. Both anonymity and privacy prevent others from gaining access to pieces of personal information yet they do so in opposite ways. Privacy involves hiding information whereas anonymity involves hiding what makes it personal. An unauthorised parting of the medical records of an individual which have been furnished to a hospital will amount to an invasion of privacy. On the other hand, the state may assert a legitimate interest in analysing data borne from hospital records to understand and deal with a public health epidemic such as malaria or dengue to obviate a serious impact on the population. If the State preserves the anonymity of the individual it could legitimately assert a valid state interest in the preservation of public health to design appropriate policy interventions on the basis of the data available to it."

The recognition of these issues, however, did not result in immediate legislative action: a contention made before the Madras High Court in a case between the Tamil Nadu Chemists and Druggists Association and Union of India, decided in 2017, suggested that the rules under the 1940 the Drugs and Cosmetics Act governing the sale of medicines online were inadequate, and that "There is no guarantee for data privacy if the medicines are sold on-line. Disease and treatment are the private information of the patients, which cannot be made available for data mining and for commercial use by on-line pharmacists." Although the court did not delve deeply into the fear of data mining, an almost comparable issue made its way to the US Supreme Court in Sorrell v. IMS Health Inc. decided in 2011. In that matter, the court struck down Vermont's Prescription Confidentiality Law saying:

"Vermont law restricts the sale, disclosure, and use of pharmacy records that reveal the prescribing practices of individual doctors. Vt. Stat. Ann., Tit. 18, §4631 (Supp. 2010). Subject to certain exceptions, the information may not be sold, disclosed by pharmacies for marketing purposes, or used for marketing by pharmaceutical manufacturers. Vermont argues that its prohibitions safeguard medical privacy and diminish the likelihood that marketing will lead to prescription decisions not in the best interests of patients or the State. It can be assumed that these interests are significant. Speech in aid of pharmaceutical marketing, however, is a form of expression protected by the Free Speech Clause of the First Amendment. As a consequence, Vermont’s statute must be subjected to heightened judicial scrutiny. The law cannot satisfy that standard."

There was also a dissenting opinion in the matter by Justice Breyer who was joined by Justice Ginsburg and Justice Kagan:

"The Vermont statute before us adversely affects expression in one, and only one, way. It deprives pharmaceutical and data-mining companies of data, collected pursuant to the government’s regulatory mandate, that could help pharmaceutical companies create better sales messages. In my view, this effect on expression is inextricably related to a lawful governmental effort to regulate a commercial enterprise. The First Amendment does not require courts to apply a special “heightened” standard of review when reviewing such an effort. And, in any event, the statute meets the First Amendment standard this Court has previously applied when the government seeks to regulate commercial speech. For any or all of these reasons, the Court should uphold the statute as constitutional." 

It is not difficult to see that there are valid arguments to be made regardless of which 'side' one is on, and sooner or later, they are arguments which India will have to determine for itself. We are not going to be able to sidestep them in the push for Digital India although, so far, limited digitalisation has meant that we have been able to watch how these issues have played out in other jurisdictions without making firm commitments ourselves.

Discovery of Information in Litigation

One of the first issues that strikes one when it comes to data mining is how to balance personal privacy against public interest. For example, in litigation, are parties allowed to collect each others' data and use it in an attempt to disprove their opponents' claims. There is very little opposition to say, insurance companies trawling through accessible images of people's holidays should they attempt to claim compensation for having their holidays ruined by a tummy bug while their online updates tell quite a different story. However, the standards we apply as a society to holiday insurance fraud are unlikely to be the same as those which would be applied to, say, rape. Would it be fair to require an alleged victim to turn over all of their communications to a third party in order to have it be sifted through to either corroborate or negate their allegations? What if those communications were anyway publicly accessible; could they then be used?

In the US, when a semi-professional basketball player claimed that he became disabled as the result of an automobile accident in Vasquez-Santos v Mathew 2019 NY Slip Op 00541 decided on January 24, 2019, the court allowed eDiscovery noting that 'private social media information can be discoverable to the extent it "contradicts or conflicts with [a] plaintiff's alleged restrictions, disabilities, and losses, and other claims" (Patterson v Turner Const. Co., 88 AD3d 617, 618 [1st Dept 2011])' although it limited access to the plaintiff's accounts and devices in time to those items posted or sent after the accident and in subject matter to those items discussing or showing defendant engaging in basketball or other similar physical activities.

At the moment, in India, we have no clear understanding of what is permissible and what isn't, much less of what should be permissible and seem to tend to 'play it by ear' and hope for the best, so to speak. We certainly recognise electronic documents but tend not to be certain of how to handle eDiscovery as a process.

Data Quality and Consent

Amongst the most important issues, when it comes to data mining is the quality of data and consent for the data having been made available. Take the example of the basketball player in Vasquez-Santos v Mathew, for example. The relevant court order states: "Although plaintiff testified that pictures depicting him playing basketball, which were posted on social media after the accident [which he claims made him disabled], were in games played before the accident, defendant is entitled to discovery to rebut such claims and defend against plaintiff's claims of injury. That plaintiff did not take the pictures himself is of no import. He was "tagged," thus allowing him access to them, and others were sent to his phone."

The court's order seems to indicate that the data available could be bad, in which case, it would be useless to the defendant. This highlights the importance of data being kept up-to-date. However, apart from sparse provisions in the Privacy Rules, 2011, there is little in India which allows individuals to ensure that their data is in fact correct and up to date and even those provisions would do little to aid anyone in a case such as this. What data quality Rules exist tend to be piecemeal in a number of different instruments: for example, the Drugs and Cosmetics (Amendment) Rules, 2019, were notified by the Central Government on 10 January 2019, to make the following insertion into the law:

84AB. Information to be uploaded by the licensee on online portal SUGAM. (1) The licensee granted license under this Part shall register with portal SUGAM (www.cdscoonline.gov.in) and upload information, as per the format provided in the said portal, pertaining to the licences granted for manufacture for sale or distribution of drugs and the information so provided shall be updated from time to time. (2) The information uploaded by the licensee with SUGAM portal under sub-rule (1), shall be verified by the concerned Licensing Authority.

Useful though the are in terms of helping to maintain accurate databases, disparate laws do little to enhance data quality in general, and which could prove to be problematic.

The second issue which the basketball player's case highlights is one of agency and autonomy. The individual did not appear to have control over what was data over himself possibly in part because he allowed himself to be tagged by others in SocMed posts. In essence, a version of his identity was being created by others.

While there are instances where one might have little sympathy for a person's whose rights to privacy are violated by the commentary of others on their lives – would we want an adult criminal's history to be entirely under the carpet, for example – the fact that an identity can be so constructed by others highlights the need to ensure a basic standard of privacy by design rather than to merely facilitate privacy by consent through standard form check-box contracts. That line of thought must, however, work side by side with an understanding of the fact that the right to control what is known of one may be outweighed by others' right to information.

In other words, one's right to be forgotten or at least not to be indexed by a search engine may be superseded by the public's right to know. This issue was considered by the ECJ in the case of Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (AEPD), Mario Costeja González, which veered towards making personal information inaccessible but, with the fight to have it be made inaccessible becoming as interesting as it did, the information sought to be hidden is now inescapable.

In India too, courts have tended to respect the right to privacy where there is no overriding public interest in having information be made public, as was seen in the case of a rape victim who wanted her name redacted in the judgment mentioning her name that was reproduced online. There is no statutory clear basis to enforce the right to be forgotten in India though and authorities are not limited to having information be de-indexed. 

Offline too, similar dynamics emerge. In the 2016 case of Mrs S Uppal vs Ministry Of Health & Family, the Central Information Commission upheld the denial of access to a doctor's service book which had been sought via an RTI application along with copies of certain pages stating:

"After hearing parties and perusal of record, the Commission observes that the query under RTI seeking copies of some pages of service book enmasse is nothing short of data mining and indeed is an invasion on the privacy of an individual. During the hearing the Appellant has stated that he seeks only those information from the service book which do not fall within the ambit of personal information of the employee and hence the personal information may be redacted while supplying remaining information. However, the RTI application filed by the appellant is not accordingly worded. Hence, it is advised that the Appellant may file fresh RTI application indicating his exact query. In terms of the celebrated decision of the Apex Court in the case of Girish Ramchandra Deshpande, there is no doubt that: "....the performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression "personal information", the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual...""

Cases that make it to the courts tend to be outliers but incidents in our own ordinary, everyday lives are not. It isn't at all common these days for a new acquaintance not to run a quick online search of our names to learn more about us. Ideally, we'd like to be able to have some degree of control over what they find but that can be hard when one's doting aunt posts pictures of one covered with cake at the age of three. The photos themselves may be innocuous but they could well be images which we'd perhaps prefer not to share in, say, certain professional settings.

The Treatment of Data Mining

Thus far, Indian courts have had limited opportunity to consider data mining. In the 2016 case of Karmanya Singh Sareen v. Union of India, the Delhi High Court tangentially indicated that what would hold sway would be consent. This was in a matter that developed upon Facebook's acquisition of WhatsApp giving rise to fears that users' data would be mined and misused.

Privileging consent is largely in line with current Indian jurisprudence and legal mandate: data mining is usually preceded by the acquisition of large data sets whether by buying databases or scraping websites for data. This could potentially give rise a variety of actions under tort law, civil law, and criminal law including those related to breach of contract, commercial misappropriation and unfair competition, unjust enrichment, breaches of privacy and, possibly as a subset of contractual breaches, violations of confidentiality, and the violation of intellectual property rights not least in terms of ‘moral rights’ violations and copyright infringement (assuming the data acquired were copyrightable) as well as in terms of trade mark violations including reverse passing off.

Critically, unauthorised website scraping does seem to be frowned upon by statute, specifically, Section 43 of the 2000 Information Technology Act, which forms a solid though perhaps misplaced foundation upon which to privilege on consent above all else. Given that consent may come to mean little in a world where almost noone reads EULAs and other standard form contracts, and fewer still realise that doing so may be prudent, it would probably make sense to guarantee individuals baseline rights, the violation of which would render an agreement unconscionable and consequently unenforceable, so that consent does not have the opportunity to become the be all and end all of individual rights.

Consent is easily co-opted and choice invariably inhibited. Noone should be able to accidentally consent to having their own lives be derailed which, given that big data is now ubiquitous, is a real fear.

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

2 August 2019

#FOEIndiaSeries | 14. The Mechanics of Regulation

Free Speech in India

This is one of 14 articles (available via this page) through which I hope to share a sense of free speech and content law in India. Part I of this series considers the socio-legal basis of free speech law in India, Part II explores what regulation, both legal and social, says and, in some cases, what it should perhaps say while Part III, finally, looks at the processes through which free speech regulation is implemented in India.

Wherever possible, I've tried to avoid mention of matters I've been involved in myself. I've also tried to ensure that the series is accessible to non-lawyers.

The terms ‘child pornography’ and 'revenge porn' have been used simply because of how common they are, both in popular discourse and occasionally at law, even though neither term is accurate. 'Child porn' refers to indecent images of children and, where real children feature, is evidence of child abuse in and of itself. 'Revenge porn' generally refers to the non-consensual release of explicit imagery of a woman by a former partner of hers. It, too, is a manifestation of abuse, and is far more an expression of power than an expression of pornography.

Of course, none of the content of these articles is professional advice and it should not be relied on for any purpose. It is tinged with personal opinion, may not be accurate, and is incomplete.  

Posts in the Series

Part I.    The Foundations of the Law

1.    The Parameters of Indian Discourse    
2.    The Backbone of the Law    
3.    Legislative and Other Input

Part II. Regulating the Substance of Speech    

4.    Creative Content and Trade    
5.    Reputation and Honour    
6.    Keeping the State Functional    
7.    Maintaining Law in a Plural State    
8.    Women’s Existence in Patriarchy
9.    Sexual Abuse and Reportage
10.    Privacy and Rights-Based Legislation    
11.    Explicit Content: Choice, Consent and Coercion    
12.    State Paternalism and Public Interest

Part III.  The Processes of the Law    

13.    Keeping Track of Others’ Content
14.    The Mechanics of Regulation

Part III. The Processes of the Law

14. The Mechanics of Regulation

There exist laws which determine what speech is permissible; that is clear enough. There also exist formal mechanisms through which to have the law implemented, to determine what speech is permissible, and to curtail the dissemination of illegitimate speech. These mechanisms tend to function through the judicial system itself, via the use of pre-publication filters such as those of the Central Board of Film Certification, and through the aegis of various self-regulatory industry bodies which deal with various forms of content such as news, general entertainment, and advertisements.
There have also been numerous episodes where the powers that be have discouraged the exercise of free speech fearing that the dissemination of certain speech could lead to law and order problems. The Supreme Court has, however, time and time again indicated that where speech is legal, the State has a duty to protect those who express it. In a 1989 case, it went so far as to say: “We want to put the anguished question, what good is the protection of freedom of expression if the State does not take care to protect it? If the film is unobjectionable and cannot constitutionally be restricted under Article 19(2), freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence. That would t[a]ntamount to negation of the rule of law and a surrender to black mail and intimidation. It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem. It is its obligatory duty to prevent it and protect the freedom of expression.” [sic]
Under Article 19(2) of the Constitution which the Supreme Court referred to in this case, the freedom of speech and expression can potentially be restricted on a number of grounds but a disruption of ‘law and order’ is not one of them. With regard to the maintenance of law, it is only the possibility of a breach of ‘public order’ which can be a reason to curb free speech. ‘Public order’ is not quite the same as ‘law and order’ as the Supreme Court had already explained decades earlier, pointing out, in effect, that a breach of ‘public order’ involves a far more widespread and damaging breach of the maintenance of law than a mere breach of ‘law and order’ would be. It said:
“Does the expression "public orde[r]' take in every kind of disorder or only some? The answer to this serves to distinguish "public order" from "law and order" because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large.”

Despite its being crystal clear that the State has a duty to protect free speech and those exercising it, it is often the case that those who wish to speak keep themselves from saying all that they would like to say because of the propensity of an assorted group of non-State actors ranging from those with easily hurt feelings to those with an axe to grind rushing to court to attempt to have speech be kept from being disseminated.

Considering how vague the law itself often is in defining what constitutes legitimate speech, and how susceptible to interpretation laws which could suppress speech often are, there is an additional layer of regulation which often occurs before speech is communicated or transmitted: self-regulation. In the language of critics of the law, this is — not without cause — referred to in terms of the chilling effect laws have due to the manner in which they can be deployed, however illegitimately, by those who would prefer not to have certain speech be transmitted to anyone. After all, there is no stopping anyone who chooses to initiate legal proceedings against the dissemination of specific speech, and such proceedings are invariably time-consuming, risky-filled and expensive.

When it comes to corporations which deal with content that is essentially speech whether in the form of television programmes, films, music, or books, it isn’t at all uncommon for them to approach a lawyer before the publication of content to try to ensure that the works they intend to publish do not, at the very least, blatantly violate the law with reference to regulations that govern the content of speech, with reference to proprietary rights which determine who may disseminate specific forms of speech, and with reference to contractual obligations which could determine the permissibility of certain speech. This is simply because it can make sense for people to avoid saying what they do not feel a pressing need to say in order to try to avert the possibility of being drawn into legal proceedings of whatever nature.

Self-censorship doesn't always work as intended, even though there are fairly well laid out processes such as those of film clearance through which it may be conducted, in no small measure because the law too often lends itself to being interpreted by those determined to suppress speech in ways that are extremely hard to anticipate. This isn't entirely because of 'bad drafting' (though examples of less than stellar legislative drafting are not difficult to find) but because the law doesn't account for every possible situation which could potentially arise.

Instead, the law deals in generalities, and therefore necessarily falls short of 'direct applicability' to unique episodes in which free speech issues are raised. And, of course, with speech being what it is, and most people not repeating each other verbatim, each time a free speech issue arises, the issue tends to be unique while the relevant laws, as always, remain generalised. Anyone who deals with speech, whether to check what they themselves say or to assess what others have said, is obliged to deal with this discrepancy. The only saving grace, perhaps, is that it is comparable processes that the law requires regardless if one is clearing or assessing the legitimacy of contract although, of course, the outcomes can be rather different when one clears content for oneself and when an external arbiter such as a judge assesses the legitimacy of one’s content.

In the first category of content regulations appear laws which determine the fundamental permissibility of speech such as defamation law, and the so-called anti-blasphemy law. Clearing content for publication with regard to them of often a dicey affair because although not all potentially problematic content would ultimately be held to be illegal even if legal proceedings were initiated in respect of it, it is not easy to predict how a court would view a specific instance of the expression of speech.
In the second category come laws and business practices which relate to proprietary rights: they determine whether otherwise permissible speech can be legitimately disseminated in light of who may 'own' a specific expression or manifestation of speech. For example, the speech in a book may be legal to disseminate from the point of view of purely substance-related content law but actually disseminating the words in the book could be illegal if the book were protected by copyright and one did not have authorization for dissemination either by law or from the copyright owner. And, so, from the point of view of content clearance, considering proprietary rights essentially involves attempting to ensure that those who intend to disseminate content have the right to do so and that their disseminating content would not result in the commission of infringement or in the unfair use of content.

Infringement is fairly well understood at law and involves the exploitation of statutorily-recognised proprietary rights in content without the backing of the law or the permission of rights-owners. These rights could be in the form of various intellectual property rights, and, to avoid violating them, it is important to ensure that those who disseminate the content in which they are embedded own the rights or at least have permission from the rights-owners to share the content. In other words, ‘the chain of title’ must be clear.
When content is created, it usually belongs to its author who could, for instance, be the writer of a film script. Continuing with the example, the author-owner may sell the script to a producer through an assignment deed, who may, after using it in a film, sell the rights to both the film itself and the script underlying it to a distributor who would ordinarily communicate the film in its entirety to the public. The complexity of the chain may vary and the clearance process is intended to ensure that none of the links in it are broken — any breakage may make it illegal of the ostensible owner of the final product to communicate it to the public. And, if the final product is a film, there could be several underlying elements (including music and lyrics) all of which contribute strands to what would ultimately form the chain of title.

In essence, unless specific content belongs to the public domain or is freely available for anyone to use, it must belong to someone. If it belongs to someone, except in a few cases specified by the law where dissemination does not require the permission of the owner, the owner’s permission must be obtained to avoid having the dissemination become illegal.

Apart from rights recognised by statute, however, are also rights recognised by business practice. So, for example, when a reality television show is produced, it usually follows a set format which is detailed in supporting documentation often called a ‘Production Bible’ developed from the stage of the conceptualisation of a show right up to the stage of its production. Business practice, now supported by judicial recognition in many jurisdictions, dictates that the original creator of the format has what are known as ‘format rights’ in the show. Although these rights are not explicitly defined by statute in India, if a production house were to develop a new reality TV show, they would generally obtain ‘format rights clearance’ through a lawyer to try to ensure that its own programme did not inadvertently violate the format rights in a pre-existing reality TV show. And, so, the proprietary rights which are recognised to subsist in content are not strictly limited to those which are defined by statute although it would almost certainly be possible to invoke copyright law in support of a format rights claim.

Proprietary rights are determined by a combination of statutory demand and contractual requirements. There is, however, a third category of law which is purely negotiated within broad limits set down by statute: contractual requirements over and above those mandated by law. For example, for a permission granted for the creation of a film or a book — whether it be permission to shoot at a particular location or to include an image in a book — the persons who grant permission may insist on an acknowledgement of some sort in the credits, or on a favourable mention made of their favourite charity; whatever is expected is usually articulated in a contract. And the limits of what the grantors of permissions may ask for are dictated only by the restrictions imposed by law and the extent to which human imagination may run. So, for example, they cannot legally ask that one commit a crime in exchange for the grant of permission but, assuming that their ‘asks’ are legal and that the relevant contract is valid, part of the clearance process is to ensure that those who receive permissions for the creation and dissemination of their works have fulfilled their contractual obligations.

And a fourth category of law attempts to ensure that statutory demands are met or, at least, that practices are followed which would preempt legitimate claims being made against or in relation to specific content. For example, the 1957 Copyright Act stipulates that there are authors and performers who have a moral right to claim credit should they not be attributed for their work. Due to this, generally, a ‘credit clearance’ would be conducted to attempt to ensure that all those who should be attributed either by law or through contract have in fact been credited in the work. In the case of authors' moral rights, the right is for an author to claim credit and not to be credited. Nonetheless, it makes ethical and business sense to credit authors, if nothing else, to avoid a situation where an author who has the right to claim credit could perhaps stall the publication of a work by rushing to court to claim such credit.

The clearance of content for publication may take place before the content is created — every stage of the creation process may be cleared by lawyers who may look at the concept underlying the content, daily takes in the case of filmed content or drafts in the case of written content, and then at the completed content which, in these examples, would likely be a film, television programme or a book. That said, there are also times when it is only the completed product which would be subject to clearance. A distributor who had acquired a completed film, for example, or a publisher reprinting content acquired from abroad may have the work cleared locally particularly in order to attempt to avoid violating domestic content laws. In such cases, however, the content clearance process could easily become one of attempting to control the potential for damage since it would not be possible to completely rehash content even if it were problematic at such a late stage, and suggested changes would generally be limited to perhaps the deletion of a few scenes, the editing of a few words, and to obtaining licences from the owners of brands which were clearly visible.

Sometimes, content which enters the country from abroad is not problematic because there are specific issues with isolated parts of it that may violate the law. On the contrary, it is sometimes the case that there are few specific issues with the speech embedded in the content but that, from beginning to end, it is framed in a way that is inconsistent with Indian beliefs and the Indian understanding of history. Take a book set in India during the Raj, for example. If it were to speak of 1857, it may clearly view history from the point of view of imperialist white English people and be rife with descriptions of Indian savagery and the murder of innocent Europeans completely ignoring the fact that what the English see as a mutiny against their presumably-benevolent rule in the subcontinent, Indians may well view it as a war of Independence against the British and their entirely-illegitimate usurpation of power in India. In such cases, it is unlikely that the book would violate a specific content law in India, and it is entirely possible that a court would treat it as an academic work and not interfere with its author’s freedom of speech. Nonetheless, its entire framework and thesis could be so repugnant to Indian sensibilities that it could well face an unpleasant public backlash in India.

While there are good reasons not to interfere with the speech of authors because of the manner in which they frame issues — after all, it is often only through contested narratives that a semblance of ‘the truth’ may emerge — it is also worth asking whose stories are being told, for whose benefit they are being told, and whose voice is missing from narratives. Speech tends to be an instrument of the powerful to legitimise themselves, and the only legitimate way to counter the processes through which they use speech to reinforce their power tends to be by ensuring that a multitude of diverse voices are heard. Challenging received wisdom is therefore critical to ensuring that tales are not told only from the point of view of the powerful who, incidentally, are more likely to be backed by significant finances than those they have oppressed. This is rarely easy to achieve in practice especially since socio-financial capital tends to help those who are rich and well-placed to get their word out with far more ease than those who are poor and marginalised.

It is possible to ban products such as books and films from being imported into India or exported from India through a notification issued by the Central Government if the government thinks it is necessary to do. These notifications may be partial or conditional, and they must be laid before Parliament. Also, they must be on one of grounds listed by the statute and cannot be arbitrary; the grounds on which content may be banned include maintaining the security of India, public order, decency or morality. The statute also allows for the import or export of goods to be banned to protect copyrights, to protect national treasures of artistic, historic or archaeological value, and to prevent the dissemination of documents which are likely to prejudicially affect friendly relations with any foreign States or which are derogatory to national prestige. And, finally, bans may be effected to prevent laws from being contravened or for other purposes conducive to public interest. If an attempt is made to import or export prohibited banned goods, the goods are often liable to be confiscated.

The 1962 Customs Act, it is worth noting, deals with banning products and not with banning the speech which may be embedded in them. As such, even if the import of a book is banned, it is possible that, depending on the factual matrix, it may be possible to print an Indian edition of the book and effectively bypass the notification banning the import of the book into India from abroad. Also, although it doesn’t explicitly speak of these issues, the law is aware of the possibility of products which are part of the country’s cultural heritage being illegitimately taken out of India. This is an issue which is particularly important at a time when concerns about the repatriation of stolen artefacts and manuscripts from museums and private collections across the world, and, particularly, from States that were once colonial powers is being spoken of increasingly frequently.

Considering that many of these States even today have restrictive visa regimes, the effect of having content effectively hidden away and inaccessible to people who are not given visas could well be to impede scholarship, and to prevent a more complete understanding of historical circumstances from emerging. Although it is easy to criticise product bans and impediments to the cross-border transfer of products containing speech for their potential to curb free speech, there are also times when they may be necessary to preserve the possibility of engaging in speech that is both free and informed not least by ensuring that products in which speech is embedded do not become inaccessible by being sent to far flung shores. These are not easy waters to navigate particularly since a ban does not always suppress speech.

When concerns arise about content being banned or about free speech being illegitimately exercised, the courts can almost always be approached to address concerns. The judicial system can, however, easily resemble a labyrinth to those unfamiliar with it. And to make matters even more complicated, free speech concerns are rarely matters of the law alone. They are informed by popular opinion which is, in turn, developed with inputs from a vast array of social, cultural, religious, economic, and historical inputs not all of whose influence is easily discernible. It is therefore critical not to jump to conclusions about either the desirability of unrestrained free speech or of the illegitimacy of restrictions placed on content particularly since speech, whatever form it takes, tends to mould society for better or worse.

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


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