Bloggers are screwed the world over...

Several hours back, Techmeme pointed us to an interesting article in Times of India about what is been touted as a Court Verdict against Bloggers in India. Now this article puts across lot of thoughts and views (though the title is misleading) Let us have a look -

[A 19-year-old blogger's case could forever change the ground rules of blogging. Bloggers may no longer express their uninhibited views on everything under the sun, for the Supreme Court said they may face libel and even prosecution for the blog content.

It will no longer be safe to start a blog and invite others to register their raunchy, caustic and even abusive comments on an issue while seeking protection behind the disclaimer — views expressed on the blog are that of the writers.

This chilling warning emerged as a Bench comprising Chief Justice K G Balakrishnan and Justice P Sathasivam refused to protect a 19-year-old Kerala boy, who had started a community on Orkut against Shiv Sena, from protection against summons received from a Maharashtra court on a criminal case filed against him.

Petitioner Ajith D had started a community on Orkut against Shiv Sena. In this community, there were several posts and discussions by anonymous persons who alleged that Shiv Sena was trying to divide the country on region and caste basis.

Reacting to these posts, the Shiv Sena youth wing's state secretary registered a criminal complaint at Thane police station in August 2008 based on which FIR was registered against Ajith under Sections 506 and 295A pertaining to hurting public sentiment.

After getting anticipatory bail from Kerala HC, Ajith moved the Supreme Court through counsel Jogy Scaria seeking quashing of the criminal complaint on the ground that the blog contents were restricted to communication within the community and did not have defamation value. He also pleaded that there was threat to his life if he appeared in a Maharashtra court.

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."]

Now Marshall Kirkpatrick of ReadWriteWeb (an extremely respected blogger) did quite an interesting analysis of this story (he got the title right too)

[The Supreme Court of India has denied legal protection to a 19 year old computer science student facing a lawsuit for comments left on a group page he created on the Google owned social network Orkut, according to The Times of India. Local press has identified the young man by the name Ajith D (a common name) and report that his alleged offense was creating a group page where other visitors left "libelous" comments critical of militant right-wing political party Shiv Sena.

Indians around the internet are condemning the ruling as a blow against freedom of speech and democracy. It certainly appears to be a dangerous misunderstanding of the nature of the internet on the part of the court and a bad precedent in the most populous democracy in the world.


The Times of India quotes the court as having offered the following statement to the young man. "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."

We're not sure what the number of potential readers has to do with anything and we find it pretty frightening that a court that would say "you're a computer student so you know how many people use the internet" had any say at all in such matters.

According to reports the comments in question were left by anonymous users and the group's owner claimed they were legitimate exercises of free speech. The youth arm of the political party facing criticism apparently filed suit under a law pertaining to "hurting public sentiment."

There are more than 1,000 groups on Orkut that show up in a search for "Shiv Sena," some for and some very much against the party. We're writing based on relatively light local reporting, so it's possible that the group started by Ajith D was particularly heinous. On principle, though, we presume that the young man should not face legal charges for anonymous comments left by others - no matter what those comments were.

Late last year Facebook shut down a group on that site that appeared to be celebrating acts of genocide against Bosnian Muslims. People lost their Facebook accounts and the group was closed due to violation of the site's Terms of Service against advocating violence - but filing legal charges against the group's admin would have been an entirely different matter.

India's Supreme Court ruling that the Orkut group owner could be sued for anonymous comments sounds like a terrible ruling to us and the kind of thing that web users all around the world should be concerned about. India is the world's second most populous country and its largest democracy. It's a large and complicated country, though. While the recent rise of the Indian middle class and tech sectors have received substantial attention, the country still has one of the highest child malnutrition rates in the world - twice that of Sub Saharan Africa according to the World Bank.

Democracies are complicated; the United States has one of the highest rates of imprisonment of any industrialized countries in the world, holds a shockingly disproportionate number of its young black men in prison and was founded on an experiment in ethnic cleansing. Who has the moral high ground?

While big picture questions are important, this particular case is as well. Will Google intervene in defense of Ajith D's use of its website? Will the US government, now more than ever advocating the use of free-flowing information technology to advance human well being, have anything to say about this potentially terrible precedent being set? We suspect neither will occur.

It's a good idea for us as individual web users to remember that even as new internet technology sets so much information and so many voices free, even in a celebrated democracy - online freedom may be one repressive legal ruling away from being put at serious risk. No matter where you might live - do you trust that your local judiciary would understand the issues in a case like this? We don't.]

Leaving apart this India specific debate, there is another article picked up by Techmeme which says that the the US Congress is "drafting" a federal shield law that would help journalists protect the confidentiality of their sources, but the measure might leave out many bloggers, freelancers, citizen journalists and others who don't work in the media business full time.

[...The House version of the bill would only apply to people who glean significant revenue from journalism, though a broader bill in the Senate would cover anyone "engaged in journalism," the Citizen Media Law Project reports.

Many people in the media world would welcome a federal shield law, but there's no good reason for it to involve some sort of income test. While it's not clear that differentiating between "professional" and "citizen" journalists would have ever been useful in deciding which sources are worthy of protection, it seems especially arbitrary given that anyone with a cell phone can now break news on the Web.

Most states currently have shield laws and at least some courts have already ruled that those laws apply to bloggers. In one well-publicized case, a court in California ruled that three bloggers who wrote about Apple were allowed to preserve their sources' anonymity. "The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here," the California appellate court wrote in that case. "We can think of no workable test or principle that would distinguish 'legitimate' from 'illegitimate' news." ]

If you like you can have a look at the source of above article which is a publication by Citizen Media Law Project on 23 Feb 2009. Here is what it says -

[The question of what makes a journalist is due for yet another round of debate, now that Congress is weighing two competing versions of a federal shield law for reporters.

Last Friday, the Senate introduced its own version of the Free Flow of Information Act, a follow-up to the House's action two days before. Both versions would provide new -- if limited -- protection against subpoenas for journalists, and both version contain a range of exceptions. Both bills were introduced in 2007 as well, with the House version passing overwhelmingly despite a veto threat. The Senate bill was passed easily out of committee only to die without a vote of the full chamber as the session ran out of time. (For details on the previous bills, see previous CMLP posts here, here, here, and here.)

Again, the 2009 bills differ in a key respect, namely in how they define journalists. The Senate bill is fairly straightforward and generous in this regard. It covers a person "who is engaged in journalism," and defines the latter by:

the regular gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.

The House version, on the other hand, puts limits on who is covered in a way that potentially leaves most bloggers and many others outside the protective zone of the shield. From the bill:

The term "covered person" means a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person's livelihood or for substantial financial gain and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person.

"Substantial" isn't defined, but one would assume that many bloggers, student journalists and even those who freelance for magazines or papers that pay poorly, could have a hard time utilizing the protections afforded by the bill, should this version become law.

It's an old question, this issue of who qualifies as a journalist. And it has been part of the debate over the so-called reporter's privilege for decades, at least since Branzburg v. Hayes, 408 U.S. 665 (1972), the 5-4 Supreme Court decision that ruled against press protections in 1972. The Louisville Courier-Journalreporter Paul Branzburg lost the case, but the fifth vote came from a sympathetic corner. Justice Powell voted with the majority to compel Branzburg's testimony, but penned an enigmatic concurrence that has been cited by many federal courts to bolster the idea that there is some protection, no matter how ill defined, stemming from the First Amendment:

The Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources.

Branzburg, 408 U.S. at 709 (Powell, J., concurring). A federal statute establishing a qualified journalists' privilege would bring much-needed clarity and uniformity to this area of law, and it would also represent a historic step forward in vindicating the public's right to know. It'll be a shame, though, if a shield law passes with the House language that effectively shuts out most bloggers and other independent journalists. It will be journalism history, but with an asterisk.]

In the end, All that anyone conclude is Bloggers are screwed the world over...