Indian State Says You Can Be Jailed If They Think You'll Infringe Copyrights...

[Mike]

Over the weekend, Engadget had a post claiming that India has said it's illegal to "like" blasphemous content. The headline there somewhat misstates what's actually happening, but what's actually going on is no less ridiculous. It is not all of India, but rather the state of Karnataka (which includes the city of Bangalore), which has passed a new law officially called "The Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum-Grabbers and Video or Audio Pirates (Amendment) Bill, 2014" though it is being locally referred to as the Goonda Act. The main thing it has done is taken offenses under the Information Technology Act, 2000, and Indian Copyright Act, 1957, and let the government take people into preventative custody if they think you're going to break one of those laws. And, the law is written so broadly that it can also potentially be used against various activities online:

Until now, people with a history of offences like bootlegging, drug offences and immoral trafficking could be taken into preventive custody. But the government, in its enthusiasm, while adding acid attackers and sexual predators to the law, has also added 'digital offenders'. While it was thought to be against audio and video pirates, Bangalore Mirror has found it could be directed at all those who frequent FB, Twitter and the online world, posting casual comments and reactions to events unfolding around them.

The implications here for a variety of things are massive. Planning to share something that someone merely claims is covered by their copyright? You can get a year in jail without a chance of bail. Ditto for forwarding a photo that the government decides is "obscene."

Advocate Nagendra Naik says, "The Goonda Act provides for preventive arrest. In the Information Technology Act and The Copyright Act, you have to commit the offence to be arrested. But here, you can be taken into preventive custody even before you commit the said offences. In normal arrests, you can straightaway apply for bail. But under the Goonda Act, you cannot. There is a long process of review and you will be in custody at least till then. The third impact is, you can have a history sheet started against you by the police. Technically, your slips on WhatsApp will attract the Goonda Act against you."

The fact that both the IT Act and the Copyright Act are already excessive is only further exacerbated by the Goonda Act allowing for preventative arrests. As the Bangalore Mirror notes:

Section 67 of the IT Act will be the most dangerous for the common man with a smartphone in hand now. The section, "Publishing of information which is obscene in electronic form," includes "any material which is lascivious or appeal to the prurient interest." This could have a very broad interpretation.

A useful Constitutional analysis of the new law, highlights the many problems with the law. It notes that including these kinds of activities is classic prior restraint, which is not allowed in India.

The Goonda Act, with its wide-ranging preventive detention provisions for a whole host of offences (295A, 153A, 67 IT Act and so on) takes no account of the Supreme Court’s carefully crafted proximity requirement between speech and public order. Consequently, it is over-broad: i.e., it prohibits speech that it is entitled to prohibit (that bearing a proximate connection with public order), and that which it is not entitled to prohibit (all other kinds of speech). This makes it clearly unconstitutional. It is to be hoped that the Act will be swiftly challenged before the Courts, and struck down – or at least, the offending portions severed from the rest.

Others have noted that, as in the US, things like state laws cannot incorporate and expand federal laws, and yet that seems to be exactly what the Goonda law is trying to do here.

Here's more from the Bangalore Mirror on that issue:

Supreme Court advocate KV Dhananjay says, "The definition of a 'digital offender' is simply laughable. I do not think that whoever asked the state government to include 'digital offence' under the Goonda Act has carefully read the Constitution of India. Under the Constitution, both copyright and telecommunications are exclusive central subjects. This means that states simply cannot make any law on these subjects."

And another example of how this law is absolutely ridiculous:

Sunil Abraham gives two examples by which the amended Goonda Act will become a ruthless piece of legislation. "If I publish an image of a naked body as part of a scientific article about the human body, is it obscene or not? It will not be obscene and, if I am arrested under the IT Act, I will be produced before the magistrate within 24 hours and can explain it to him. But now, I will be arrested under the Goonda Act and need not be produced before a magistrate for 90 days. It can be extended to one year. So for one year, I will be in jail even if I have not committed any wrong. Another example pertains to bringing offences under the Copyright Act under the Goonda Act. In the Copyright Act, there is an exception for reporting, research, educational and people with disability. A visually impaired person, for example, can, without paying royalty, convert a book into another format like Braille or audio and share it with another visually impaired person on a non-profit basis. But if he is arrested under Goonda Act, he will be in jail for one year, even before he does it."

As multiple people discussing this new law have noted, it seems clearly unconstitutional, but will almost certainly be abused (and enable corruption) in the meantime. The fact that law enforcement can jail you without bail as a "preventative" measure based on their belief that you might do something that infringes or which is "blasphemous" (without any real definition) is dangerously excessive.

Originally Published: Mon, 25 Aug 2014 14:45:42 GMT
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