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Interview: Media and Cyberlaw in India
Cybertrends: Deep linking, copyright, convergence and more
Interviews by Madanmohan Rao (madan@inomy.com)
//Published on www.inomy.com, December 2002//
This conversation with two cyberlaw experts in India covers a wide
range of legal issues directly impacting news media on the
Internet: linking, deep linking, hyperlinking, framing, domain name
disputes, privacy, confidentiality, defamation, and cybercrime.
Pavan Duggal is a practising advocate at the Supreme Court of India,
specialising in cyberlaw. He is the author of the book “Cyberlaw –
The Indian Perspective.” Na. Vijayashankar (“Naavi”) is an
e-business and cyberlaw consultant based in Chennai. He is the
author of the book “Cyberlaw for Netizens.”
Q: What legal issues in cyberspace should online news publishers be
aware of?
Duggal: They need to be aware about aspects of Intellectual Property
Rights especially copyright. They need to know that merely doing a
cut and paste job and blatant copying of content on the Internet
would be very harmful for their business. They also need to enter
into appropriate agreements with their contributors to the extent
that they should obtain clarity over the copyright and content
being published by them.
They also need a detailed linking policy. This linking policy should
detail the legal aspects concerning their relationship with linked
Web sites. They need to be have strong disclaimers regarding
liability for any third party content or data on the linked Web
sites. They also need to have appropriate privacy policy in place.
They also need to protect themselves from liability. The online
news publishers should have detailed terms and conditions on the
Web site.
Naavi: Online news publishing involves collection and transmission
of digital data from reporters to the publisher, editing and
publishing on the Web site. In this process several legal issues
have to be managed by the publisher. The main legal issues in
cyberspace cover the following areas: digital identity of persons
filing reports, data integrity of information in transit, copyright
implications regarding the content published including hyper
linking, privacy rights of individuals whose personal information
becomes the subject matter of news, ethics of fair journalism,
freedom of speech and liability for defamation, hacking and virus
incidents, obscenity in the published content, accountability for
message boards, and accountability for online advertisement
messages.
Q: What is the current status of legality of framing, deeplinking
and spidering from news sites?
Duggal: The reality is that jurisprudence on the issue of framing,
deep linking and spidering from news sites is developing. Framing
as a technology really developed with the launch of the Network
Navigator browser in 1996. Legally speaking, there are a number of
questions on the legality of framing, since it allows you to embed
independently scrollable windows within the border of the Web page
or a Web site. This can give the surfer the feeling that he is
actually viewing the contents of the site which he has visited and
not the contents of the framed site. Framing creates confusion as
to the source of the framed Web site and the source of goods and
services. Legally speaking, framing can be equated with deceptive
association and presentation. In law, this can be appropriately
challenged.
Another argument against framing is the fact that a Web site's
presentation of the framed page as a whole could be considered as
an unlawful derivative work of the original content. Through
framing, a lot of Web sites pass off the contents belonging to the
other sites as their own. This leads to a loss of revenue,
reputation and violation of Intellectual Property Rights. Framing
becomes of critical importance in the context of news sites, as the
person visiting the home page of the Web site may not distinguish
the contents of the site visited from the contents of the framed
site. This would involve a violation of copyright and other
Intellectual Copyrights. The law on this issue is not crystallized
and is still developing.
Similarly, deep linking from news sites as an issue is indeed
becoming very important. Deep linking means linking to a Web page
deep in another site. Deep linking bypasses the home page of the
linked site and links directly to the interior pages of the linked
site. This has led to a lot of legal controversy. A classic case in
this direction was in the Ticketmaster case. It is prudent in the
case of news sites that linking sites must seek consent and
permission of the Web site owner whose site is sought to be linked
from their own Web site. Further, specific permission needs to be
taken with respect to deep linking.
One section of the thought process states that deep linking deprives
the linked Web sites of their control on the traffic to the linked
site. The law is still developed on this issue. Similarly, with
respect to spidering, the law is still developing. Spidering as a
phenomenon exists on the World Wide Web, and their legality or
otherwise is presently being debated. It can be argued that
spidering amounts to violation of the interest of news sites.
Others feel that spidering is basically a technology that does not
violate any Intellectual Property Rights.
Naavi: The legality of framing, deeplinking and spidering are in the
process of evolution worldwide. During this process of evolution,
there will be some judicial pronouncements somewhere in the world
which gets over turned some where else. Many of such judicial
pronouncements reflect the circumstances of a particular case as
well as the evidences and arguments presented therein by the
parties rather than an established judicial position.
In my opinion, deeplinking is not a violation of any defendable
right of a publisher. Just as we cannot expect a reader of the news
paper to always read the front page and see the front page solus ad
first before turning on to the sports page or the stock market
page, we cannot mandate the Netizens that they should always enter
the publisher’s Web site through the home page and add value to the
advertisements therein. Any other site providing a deep link to an
article is therefore not violating any right that is available to
the publisher.
Even then, technology permits any publisher to redirect any http
request to an inside document through the home page, and a
publisher not exercising this technical option does not have a
right to object to the site which has enabled a deep link.
Framing done in a manner as to misrepresent the viewer that the
framed content belongs to the linking site is to be considered
objectionable and similar to “passing off” of content belonging to
somebody else as one’s own.
However, framing which does not block the mast head of the linked
page and does not attempt to pass off the content as its own is
only a different way by which “hyperlinking” can be provided to
content on the cyber space, and should be considered acceptable.
Here again technology permits any Web document owner to make it
impossible for any document within his site to be opened within
another site’s frame and not using such technologies should be
considered as “Deemed permission” for “hyper linking without hiding
the source.”
Spidering for information and representing them in a manner that the
user would be able to easily access the information he wants is
nothing but a “Search Engine” function. This is an essential
service for the Net community and no “Copyright” violation is to be
ascribed for such activities.
Even in case where a value added service is created out of such
search and index services, it is not a violation of any rights of
the original publisher since the link ultimately acknowledges the
source and drives a customer to the publisher’s site.
Q: What are the ramifications that the Napster issue will have on
the entertainment and publishing media?
Duggal: The Napster case is a landmark watershed in the history of
the development of the jurisprudence on the issue of swapping of
copyrighted data on the Internet. The Napster case has legally
upheld the position that a programme like Napster which is
dependent upon peer to peer (P2P) technology for swapping of music
files was liable for copyright infringement. The United States
Court of Appeal in Feb. 2001 while upholding the trial courts order
had held that Napster's users infringe at least two of the
copyright holders exclusive rights, namely the right to reproduce
and the right to distribute. The argument of fair use as an
exception to the principle of copyright protection was not accepted
in the Napster case. The fair use doctrine was negated on the
ground that the Napster users are engaged in commercial use because
when a file is sent to an anonymous requestory, it is not for
personal use and that Napster's activities have directly resulted
in reduction of CD sales.
The ramifications of the Napster issue on the entertainment and
publishing media would be that the peer to peer technology issues
will have to be effectively addressed. While the P2P technology is
indeed revolutionary and indeed furthers the cause for which the
Internet stands, the same technology is being targeted by copyright
holders who say that this activity can be violative of their
copyright. The biggest challenge before the publishing and the
entertainment industry would be to come up with appropriate models
to effectively harness the advantages of the P2P technology.
Some work on this is happening but the jurisprudence on this is
largely to develop. There is no way in which the entertainment and
the publishing industry can close their eyes on P2P or Napster like
situations. They have to evolve appropriate models. I am personally
of the opinion that though copyright has to be protected, yet the
protection of the copyright should not be of such a nature so as to
stifle the creativity and originality of the thought process as
well as innovation and invention. The Internet as a medium and P2P
technology provide new ways of disseminating information to a large
number of people by sharing it. There is a need to strike a balance
betweeen the advantages of P2P technology and the protection of
copyright. It will be interesting to see as to how law on this
issue develops over a period of time.
Naavi: Copyright law exists for the protection of the rights of the
original authors and within certain limitations that do not hurt
the community.
In the Napster case, however, it is the right of the commercial
intermediaries that have been in the forefront against the larger
interests of the community. In the process, the community benefit
has been made subservient to the commercial interests of an
oligopolistic industry. The present verdict in the case has
unleashed the power of “law” on the “community” in support of
business houses and could be perceived by the community as an
“Inter Society Clash” between the Meta society and the Internet
society. This could lead to general community dissatisfaction and
result in a setback for developing a law respecting the Netizen
community.
The findings of a survey conducted by Arbitron and Edison Media in
July 2002 has held that the online music listeners have a tendency
to buy more CD s than others and the RIAA argument that file
sharing has adversely affected their sales is therefore untenable.
RIAA has come up with its own market survey stating that the CD
sales have come down and ascribed it to Napster like services, and
is aggressively pursuing cases even against Internet radio stations
and ISPs who deal in streaming of music.
In the long run this is likely to de-habitize people from listening
to music and turn them on to other habits such as online gaming,
hurting the music industry more. It is therefore a tragedy that
RIAA is digging its own grave by opposing file sharing in the
Internet music world!
The verdict has hurt the technology of “File Sharing” which has uses
beyond the “Music Sharing” context. The principles that have been
legitimized by the Napster judgment as it stands today can
adversely affect many technology developments in future. They also
affect the secondary rights of the music buyers to share a CD or
sell a CD even outside the Internet and will therefore increase the
cost of music several folds in the long run. The decision therefore
needs to be reviewed.
Q: What are some of the key cyber law issues that you think must be
taught and addressed in communication/journalism schools?
Duggal: I feel some of the key cyberlaw issues which must be taught
and addressed in communication and journalism schools include
Intellectual Property Rights in cyberspace; linking, deep linking
and hyperlinking; framing and spidering; domain name disputes;
privacy; confidentiality; data protection; jurisdiction issues;
legal issues relating to e-commerce; liability for content on the
Internet; defamation libel and slander in cyber space; cybercrime;
and security related legal issues.
Naavi: Cyberlaw is an important aspect of citizen education and
critical to the development of journalistic professionals ready for
the convergent era. The key areas to be discussed include digital
signatures and contracting, copyright laws, privacy and freedom of
speech laws as affecting the cyber medium.
Q: And in India, how does the IT Act 2000 affect the online
operations of Indian news media?
Duggal: In India, the IT Act, 2000 impacts the online operation of
Indian news media. The Indian IT Act, 2000 legalizes the electronic
format and provides for its legal recognition and production as
evidence in a court of law. It also provides for retention of
electronic records in a legal manner. Thus, this law actually lays
down legal parameters on which the online Indian news media can
legally retain their electronic information. The IT Act further
provides for the legal recognition and the use of digital
signatures.
Thus, online Indian news media can actually use and provide for the
use of digital signatures in their e-commerce transactions.
Further, e-commerce transactions and online operations of Indian
news media have been given legal sanction and validity and an
appropriate legal infrastructure has been set up to legally support
e-commerce transactions. Furthermore, Indian cyberlaw has provided
for remedies in the form of damages by way of compensation if
anyone enters into their computer, computer system or computer
network including servers or Web site of online Indian news media
and copies data, deletes data or introduces any computer
contaminant.
In such a case, the Indian cyberlaw envisages awarding the granting
of damages by way of compensation to the tune of 1 crore rupees (10
million Indian rupees). In addition, the online activities of
Indian news media have also been protected from potential criminal
activities and designs. This is so because the Indian cyberlaw has
declared various categories of activities as cybercrime which are
penal offences punishable with imprisonment and fine. Thus,
illegally hacking into others’ sites has been declared as a penal
offence punishable with 3 years imprisonment and 2 lakh rupees as
fine. Further damage to computer source code has also been
stipulated as punishable with imprisonment and fine.
Furthermore, the entire issue of publishing, transmitting or causing
to be published any information in the electronic form which is
lascivious or which appeals to the prurient interest is a penal
offence. This offence has been made punishable on first conviction
with imprisonment upto 5 years and fine upto 1 lakh rupees. On
second conviction, the quantum of imprisonment and fine gets
doubled.
The Indian IT Act provides for various offences dealing with digital
signature certificates including publishing digital signature
certificates falsely or for fraudulent purposes or for
misrepresentation.
Furthermore, the Indian online news media in some cases may also act
as a Network Service Provder. In that case, the Indian cyberlaw
provides liability of Network Service Providers. The Indian
cyberlaw has laid down various mandatory compliance requirements
including requirements relating to security which need to be duly
complied with by the online news media.
Thus, seen from a holistic angle, the IT Act both provides for a
positive framework for enabling and assisting the growth of online
activities of the Indian News Media.
Naavi: ITA-2000 has some provisions that address the following
requirements of online journalism:
a) Digital Signatures:
All transmission of news reports from the accredited reporter to the
editor can be digitally signed using a digital certificate issued
by a Certifying Authority licensed in India. Use of digitally
signed reports will ensure that a false report cannot be filed by
an imposter.
The attribution of a news report on a reporter is also necessary to
deal with any defamation charges that may be hoisted on the journal
when the responsibility has to be fixed between the reporter and
the editor.
Where the editorial team itself works with a filed report being
successively approved from different levels of people, it is
necessary to ensure digital signature usage even within the
Intranet. Similarly when critical information is stored for
reference in a database, any alteration or manipulation of this
information an also be checked with the use of digital signatures.
Thus ITA-2000 makes substantial contribution to the online
journalistic community to protect itself against the dangers
arising out of impersonation leading to defamation and publishing
of false stories.
b) Hacking, Virus, Obscenity and Denial Of service Attacks:
ITA-2000 defines certain common cyber crimes such as Hacking and
Virus introduction which can be used to destroy the information
asset of the publisher and suggests punishments. A publisher can be
an accused in the case of obscene content being found on the Web
site of the publisher which can result in imprisonment of the
officials of the publisher if sufficient preventive action has not
been taken.
c) Recognition of Electronic Documents as Evidence:
ITA-2000 and the amendments made in the Indian Evidence Act
consequent to the passage of ITA-2000 provide a legal recognition
for any electronic document in any offence that falls under the
Indian Penal Code or any other Act in India. Hence e-mails, Web
pages, chat room transcriptions, message boards are all equivalent
to print publications for the purpose of determining defamation,
obscenity etc. A publisher is therefore liable for every such
content if the evidence is properly presented in a court of law.
Q: How do copyright issues and challenges for newspapers and
broadcast media change in cyberspace?
Duggal: Cyberspace presents a dynamic new medium for everyone
including newspapers and the broadcasting media. This is more so
due to the very inherent nature of Internet. It is said that
Internet is the biggest copying phenomenon ever known in human
history. In the early days it was thought that since it is a free
medium there would not be any space for protection of Intellectual
Property Rights. However, as the Internet has developed, the
Intellectual Property Rights protection including protection of
copyright have been strengthened over a period of time. It is
pertinent to note that in the context of cyberspace, online content
on the Internet enjoys protection of the Copyright Law.
Content on the Internet for Indian news media companies is protected
under the Copyright Law. The style of making the home page, the
manner of presentation of the new story in the layout of the Web
site, and its look and feel factor are entitled to protection under
the IPR Laws.
Worldwide, different judgements have demonstrated this principle.
The right to view or read the original content online, can by no
means, be extended to include the production, copying or
transmitting of the said material to others, unless, it is
specifically so agreed to or consented by the copyright owners.
That is the reason why these days on the Internet we find that
copyright materials are being posted on the Internet with specific
licences.
These licences clearly demarcate the legal extent to which the
reader or the Netizen is entitled to use the said information. In
any case, the underline principle behind the Copyright Law of the
country is that the moment a person produces any original literary,
dramatic, musical or artistic work, there is copyright protection
inherent in the same.
Further, a perusal of the Indian cyberlaw shows that there is tacit
recognition of these inherent principles of copyright protection.
It is pertinent to note that under Section 43(b) of the IT Act, if
any person without permission of the owner downloads, copies or
extracts any data, computer database or information, he shall be
liable to pay damages by way of compensation not exceeding one
crore rupees to the person so affected. Thus, this provision also
inherently prevents people from copying, downloading or extracting
any data or information from any computer, computer system or
computer network without due permission or knowledge of the owner
or person in charge.
Naavi: Copyright was born as a right for the print media and is
being extended to electronic documents through specific
legislations as well as judicial interpretations.
In India, the Indian Copyright Act was amended to include computer
programmes as “literary works”. Copyright on electronic documents
can be covered by virtue of the ITA-2000 and the recognition of
electronic documents as equal to written document.
Unlike in the US and some other countries where a separate law such
as the DMCA (Digital Millennium Copyright Act) was enacted, India
has not enacted any special law for copyright protection on
electronic documents.
Since many of the principles that applied to copyright in print are
no longer relevant in the cyber environment, the extension of
copyright law to the Internet often leads to complex
interpretations that are creating barriers for technology
development.
For example, objections raised on hyper linking and caching arise
out of the lack of understanding of the Internet medium by those
who try to use Copyright law as a means of “Exploitation of
Commercial monopoly interests of business intermediaries” rather
than a “Fair Protection of Intellectual Property Rights of an
Author”.
Similarly, objections to innovative technology developments such as
file sharing (eg. Napster) and information search and retrieval
(eg. Newsbooster) have an adverse impact on technology development
to the detriment of mankind and are not supported by the founding
principles based on which copyright law came into being.
In view of the current trends, a publisher who publishes an article
on a Web with reference links to articles in other Web sites can be
accused of “Deeplinking” and “Reproduction without permission”.
Similarly, a Web site which indexes articles of various kinds for
the benefit of the Netizens can be accused of a copyright
infringement.
Unless these views are nipped in the bud, Web journalism would not
be able to take the full benefit of the technology and the consumer
would be deprived of news packaging that would be more user
friendly.
In India today, the Internet publishers are ignoring many of these
copyright related objections probably because legal awareness is
low.
Most of the Web journalism today consists of presenting the print
publication in the form of Web documents. What a true Web journal
requires is cross linking of articles across Web sites as some
value added service providers would like to offer. This would be
possible provided law is not used to prevent such aggregation
services as in the case of Newsbooster.com.
When “broadcasting” enters the Web medium, the issue of copyrights
assumes greater proportions. The developments worldwide on music
copyrights have established some very strong complexities in
determining the broadcasting rights of copyrighted. These will
apply to the Indian Webcasting sites also.
Basically the complexities in broadcast of audiovisual works arise
from the fact that there are many more players involved in the
production of a copyrighted audiovisual work and their inter-se
rights are subject to many combinations. The lyrics writer, music
composer, singer, director and producer (eg of the cinema where the
music is embedded) all claim different rights on the final end
product. The transfer of copyright at various stages may be
comprehensive or restricted.
Additionally, the copyright law may get further complicated with the
marketers imposing various kinds of “Ambush Marketing Rights” that
are very difficult to track and comply. Hence each audiovisual
product may come with a specific bundle of legal rights and keeping
track of them and avoiding infringement would be a challenge for
any Webcaster.
Q: Is censorship of the Internet being practiced by the Indian
government? What are your views on this?
Duggal: There is no factual information available in the public
domain to suggest that censorship of the Internet is being
practiced by the Indian government. However, legally speaking there
is no bar on the same. The interception can be ordered if the
Controller of Certifying Authorities is satisfied that it is
necessary or expedient in the interest of grounds like national
sovereignty or crime prevention. Failing to cooperate with the
government agency has been made a penal offence.
However, in December 2001, newspaper reports did suggest that the
Intelligence Bureau of our country does have its own version of the
FBI’s Carnivore program where, on predetermined parameters or
words, searches of email packets containing the said words over the
Internet, can be done without the knowledge of either the sender or
receiver. I believe the power of censorship is inherent with the
government of a state, however the said power should only be
exercised when it is absolutely essential so as to do and also that
reasons must be recorded in writing before embarking upon
censorship per se.
Naavi: Censorship of Internet should be seen in the following three
different contexts.
a) Crime Control:
India is a country deeply affected by terrorism for decades.
Already, it has been detected that terrorists have been using
Internet and e-mails to exchange information. There is therefore a
reasonable ground for the law enforcement authority to demand
powers of interception and monitoring of crime related
communication whether over the Internet or otherwise as a means of
intelligence gathering.
As a means of “Preventive action” the law enforcement authorities
also have a claim for pre-emptive censorship against terrorist
organizations using the Internet for propagating views which are
opposed to the integrity of the nation.
The dalistsan.org and hinduisim.org Web sites and the false stories
circulated through e-mail chains spreading communal hatred after
the recent Godhra violence in Gujarat are standing examples of
activities where censorship is justified.
The Indian government has tried to shut up the daliststan.org and
Hinduism.org sites after a prolonged deliberation. There has been
one report in the past of blocking of an e-mail box of a person in
North India under the suspicion of dealing with an objectionable
organization abroad. It had also blocked Pakistani newspaper site
www.Dawn.com during the Kargil war. Other than these, there have
been no reported incidents of any censorship being imposed on the
Internet media in India against sites instigating crimes.
In fact, more than the government, the private sector ISPs in India
indulge in blocking sites that provide competitive services such as
“Net Telephony” and this commercial censorship is more dangerous
than crime control censorship!
b) Political Opinion:
There has been no report or evidence in India of censorship of the
type China and Burma have been known to impose. There are still
several hate sites thriving in their anti-India propaganda and the
Indian government has been more than tolerant in this regard.
I personally respect democracy where the people’s voice is heard on
all major political decisions and therefore oppose any censorship
in this area. In fact I support development of an acceptable Cyber
Democracy model that will help conduct a referendum from time to
time on a constituency of Cyber voters.
Where however a public expression of dissent falls in the grey area
between legitimate opposition to the political views of the
incumbent government and clear anti-national activities, I have
proposed an alternative to censorship in the form of “Compulsory
Display of Links to Counter Views” through a technology
intervention by an appropriate authority.
c) Moral Principles:
Censorship of expression of obscenity or undue violence is an
accepted norm of the society in India. Censorship of sites and
e-mails which blatantly violate these principles and have the power
to corrupt young and impressionable minds is therefore acceptable.
I personally support such censorship in principle. However, in
recognition of the practical difficulties involved in this regard,
a proper system of checks and balances involving a cyber democracy
forum is suggested.
Q: What are the three most notable cases you have come across of
cyber law issues involving news media in India?
Duggal: There are a few such cases; the first important case
relating to news media was the domain name dispute concerning
Rediff.com. Rediff.com is a general purpose portal and contains
various news and news related items and contents. A company called
Cyber Booth Communications Ltd. registered the name radiff.com.
Rediff went to the Bombay High Court complaining that the domain
name radiff.com was violative of its trademark and Intellectual
Property Rights inherent in the name "rediff" and that the
defendants sought to piggyback the goodwill and reputation of its
trademark rediff. The Bombay High Court in a historic judgement
held that the domain names are entitled to trademark protection and
that domain names are valuable assets which need to be afforded
adequate legal protection. By its judgement in the case the Bombay
High Court ultimately restrained Cyber Booth Communications from
using the domain name radiff.com or operating any Web site on the
said domain name. This judgement was upheld by the Supreme Court.
Another important case concerning news media relates to the case
against Indiatimes.com. In the said case, someone complained that
on the Web site Indiatimes.com which is a news and general all
purpose site, there were pornographic pictures of Indian models.
The police registered a case for obscenity under Section 292 of the
Indian Penal Code. This case arose before the coming into being of
the IT Act, 2000. The matter is still subjudice. However the case
demonstrated how news Web sites, which may have alleged links
related to pornographic content, are liable for the same in the
eyes of law.
Another major case concerning news media was the case against Rediff
filed in the court of the Metropolitan Magistrate at Pune. In the
said case, a law student filed a complaint in court that the Web
site rediff.com, when searched for a pornographic query, was
throwing up pornographic search results which amounts to committing
to offences of obscenity under Section 292 of the Indian Penal
Code. The Trial Court took cognizance of the said matter and
summoned the Board of Directors of Rediff.com. The Bombay High
Court granted a stay on the proceedings of the Trial Court and the
order of summoning. The matter is subjudice but this matter once
again brought to the forefront the entire issue relating to the
liability for a news Web site for pornographic search results.
Naavi: One of the cases that come to my mind is the copyright
dispute regarding a TV serial “Yeh Jo Hi Zindagi” where the sponsor
claimed IPR on the product.
The Supreme Court however ruled that the IPR belongs to the producer
of the serial. This puts the role of the sponsors or financiers of
a work of art in the right perspective that unless the IPR is
transmitted to them by a specific contract, they have no right on
the work merely by the fact that they have provided finance for the
work.
This is important in the context of Webcasting rights of serials
once produced for TV and sponsored by some financier. The producer
will be able to separately sell the Webcasting rights to a Web site
unless a similar right has already been transferred to the TV
Channel or the sponsor by a specific contract.
The second case is regarding the liability of an editor for libel or
defamation concerning content published in the publication.
In a recent case involving the editorial staff of the Malayala
Manorama newspaper, the issue was whether the editor whose name is
printed on the publication alone is responsible or the managing
editor is also responsible. The Supreme Court held that the
Resident Editor, the Managing Editor and the Chief Editor are
equally responsible as the “Editor" of a newspaper or magazine for
publication of any libelous material and they could be prosecuted
for defamation whether or not their names are printed on the
newspaper.
This has relevance to the Web medium as well where content is often
borrowed directly from the print section of a publication and
therefore the responsibility for libel rests on the print editor
who had control on the material for publication.
On the other hand, by virtue of the Web being a global publication,
the libel suit can come from any part of the world and therefore
content on the Web has greater legal risk than the content on the
print!
Further, if the libel suit arises because the content on the Web has
been altered by a hacker, then the accountability has to actually
rest with the staff responsible for security of content while the
Supreme Court verdict points an accusing finger on the editor.
A third unreported incident which is important to note was in
respect of a Net publication which published a letter to the editor
received through e-mail, to which a Court complained as amounting
to “Contempt of Court”.
When the police wanted to identify the sender it was found that the
publication had not kept a copy of the header information of the
mail and hence the sender could not be traced. The publication was
therefore liable for negligence and had the case been pursued,
strictures would have been passed on the editorial and
administrative staff of the publication.
This highlights some of the responsibilities that a Web publication
has to take up while dealing with transient cyber evidence. This
also underscores the need to preserve copies of cyber documents
used for reference while passing adverse comments which are liable
to be subject matter of a libel suit.
These incidents also highlight the requirement of a proper “Cyber
Law Compliancy policy” to be adopted by the publishing house so
that each professional is legally responsible for matters under his
control only and the legal responsibilities thrust on the publisher
are adequately discharged.
Q: What new legal issues will the wireless channel open up for the
news and content industries?
Duggal: The coming of the wireless channel will open up new
complicated legal issues for the news and content industries.
Issues on the same depend upon the legality of the content,
protection of original content in the wireless environment and
parameters relating to enforcement of protection of content
industries. Further, issues relating to security shall be of
tremendous relevance in the context of the wireless channel. This
medium is also likely to see numerous cybercrime activities
developing all aimed at undermining the security or otherwise, of
all the said news and content industries. A lot of issues on the
same are likely to emerge with the practical development of the
wireless channel.
Naavi: I think that the proposed Communication Convergence Act
adequately deals with the wireless mode of electronic broadcasting.
Again keeping with the special security needs of India, controls
envisaged through licensing of the use of wireless frequencies are
warranted along with the necessary control on any violations.
Tapping and censoring of such broadcasts within the parameters
discussed earlier are also inevitable.
As long as there are enough checks and balances against misuse of
such facilities, there need be no opposition per-se to the idea of
monitoring and selective blocking of some communication in the
interest of crime control and prevention of obscene content
distribution.
The efforts of the “free speech community” should be directed on the
development of appropriate mechanisms to monitor and prevent misuse
of powers rather than opposing the control itself.
Q: What trends are we likely to see on the cyber law front in the
content/news industry in India in the coming years?
Duggal: The coming few years are likely to be indeed very
fascinating as far as the development of cyberlaw is concerned, in
the context of the content/news industry in India. I anticipate a
couple of areas to become of critical importance in the coming few
years. Firstly, I feel that the coming of the Convergence Bill is
likely to impact the online news and content industry in the sense
that they would be required to obtain licences whether it be
content application service or other application service as
envisaged by the proposed communications Convergence Bill, 2001.
Thus, the content news industry is likely to be subjected to
licencing concerning its online activities.
Secondly, we are further likely to see the growth of the importance
of data protection in the country. At the time of writing, there is
no law in India which actually protects data. We are also likely to
see developments in the field of privacy and confidentiality. I
would think that the Government will come up with a law relating to
privacy and confidentiality of data. India does not have a law on
privacy and confidentiality and such a law would be of tremendous
relevance and significance for the online content/news industries
of India.
We are also likely to see codification of new kinds of cyber crimes
as penal offences punishable with imprisonment and fines specially
in the context of the online content/news industry. The coming few
years are also likely to see how in the Indian context the P2P
technology copes with the issue of protection of Intellectual
Property Rights. We are further likely to see development in the
field of laws relating to Intellectual Property Rights.
Naavi: The trend in the copyright laws represents excessive
commercialization, and the concept of “Fair Use” has been
substantially diluted in the process.
The principles emerging now in the Internet media are such as to
make every Radio and TV channel a paid channel and also every song
or content piece distributed over the radio or TV becoming a one
time, one customer distribution against payment.
The absurdity of this proposition can be gauged by the fact that
this trend is an attempt to convert radio and TV to a juke box with
one person only receiving equipment (such as special earphones and
viewing glasses). Similarly, these principles will also make the
“Photo Copying” in the Meta society an unacceptable proposition
along with “Tape Recorders and Video Recorders”.
Since the technology convergence will soon make the Internet, TV and
radio a single distribution platform for news and entertainment,
the current trend is highly dangerous to the consumers and
development of a free society. If this trend goes unchecked either
the business interests will completely take over the content
availability (which can also be manipulated by the political
leaders) or there will be anarchy in the Internet society.
The challenge before us is therefore to identify a middle path which
gives enough scope for exploitation of IPR rights without
infringing on the freedom of the people.
The other important challenge to the publishers is regarding the
handling of third party content. They often handle third party
content on which they do not exercise pre-publishing control. This
may happen in respect of message boards as well as third party
served banner ad messages and third party information to which
links are provided.
Some of the countries which have strict consumer protection laws may
consider the publisher as a party to a fraud committed through a
false advertisement.
The publishers need to therefore devise an appropriate
administrative mechanism by which their responsibilities on third
party content are properly discharged.
Madanmohan Rao is the author of "The Asia-Pacific Internet Handbook"
(www.tatamcgrawhill.com/digital_solutions/madan)
