Friday, November 23, 2012

Arrests of Shaheen Dhada, and her friend Renu Srinivasan raise questions about the misunderstandings of the India's Cyber laws and reflects on the nexus of the police and politicians

The arrest of two girls after they made a Facebook post criticizing a shutdown of the Mumbai city after the death of Mr. Bal Thakre has again raised questions about whether the country's cyberlaws need to be amended to prevent misuse. Shaheen Dhada, who wrote the post, and her friend Renu Srinivasan, who hit "like" when she saw the post on Facebook, were arrested on Sunday, 18th November, 2012 in Palghar near Mumbai by Maharashtra police under Section 66A of the Information Technology Act, 2000 and section 505 (2) of the Indian Penal Code, 1860. The two girls were later released on bail.

As per the reports published in Hindustan Times, Shaheen Dhada, said she continues to stand by her post and would not go back on her words as that’s her opinion, which she expressed with no malicious intention.
“Even when I gave the written apology, I did not apologise because I thought I had done something wrong. I apologised because my words had hurt a few people and I never intended to hurt anyone,” she said.
“I have a lot of respect for Balasaheb Thackeray. I was only expressing my opinion and I still stand by it. This was extremely unexpected.”
A graduate in management studies, Shaheen said somebody created a fake Facebook account in her name on Sunday night, following the incident.
“My cousins on Facebook saw the fake profile and informed me. Within an hour, the new profile already had 120 friends. And my original account had been hacked when I last tried to access it,” she said.
When asked if she would ever return to Facebook, she said: “I only want peace and harmony and I don’t think I will go back to Facebook in the near future.”
Shaheen said she had great respect for Shiv Sena and its chief and said she posted the comment because she did not support the shutdown. “I have no political inclinations whatsoever. That was my opinion and I simply expressed it. Who expected such a reaction?”
“I think it was the wrong time. Something ill-fated had to happen and it did,” she added.
Shaheen said her parents and she would discuss what happened and take a decision on their future course of action.
If you read carefully the comment posted by the Shaeen Dhada on Facebook and later on stated to media it is very clear that she has no guilty mind to harm anybody and it was a mere expression of her personal opinion on shutdown of Mumbai on a particular occasion. The wordings of the sections 505 (2) of the Indian Penal Code 1860 and Section 66A of the IT Act 2000, which were applied by the Maharashtra State Police to create criminal liability on Ms Dhada is unfounded.
The Section 505 (2) of the Indian Penal Code 1860 says about the publication of statements creating or promoting enmity, hatred or ill- will between classes.-- Whoever makes, publishes or circulates any statement or report containing rumour or alarming news with intent to create or promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, feelings of enmity, hatred or ill- will between different religious, racial, language or regional groups or castes or communities, shall be punished with imprisonment which may extend to three years, or with fine, or with both.
And the Section 66A of the Information Technology Act 2000 as amended up to 2008, provides as punishment for sending offensive messages through communication service, etc. : Any person who sends, by means of a computer resource or a communication device,-
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device,
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.
'Explanation.- For the purpose of this Section, terms "electronic mail" and "electronic mail message" means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message.

Section 66A by its vagueness goes beyond the restrictions on free speech already in place under Article 19 of the Indian Constitution. The liberty of the two girls was seriously breached just because they were invoking their fundamental rights guaranteed by article 19 of the Constitution. The interpretation of an offence under the section 66A is largely left to the discretion of the complainant and the law enforcement agencies. 

What is shocking is that the women were called to the police station after sunset. The manner in which the girls were arrested clearly indicates that there has been gross violation of human rights as well as Supreme Court directives for affecting arrests. Normally, in serious cases such as dacoity, murder, robbery and rape, an accused can be arrested if he is likely to abscond or evade the process of law or if he indulges in violent behaviour or is a habitual offender. But none of these conditions are applicable to this case. Following this, the miscreants vandalised the orthopaedic clinic in Palghar that belongs to Dhada’s uncle Dr Abdul Dhada. The clinic is estimated to have suffered damages worth more than Rs10 lakh. After being arrested, both 21-year-olds were granted bail on a surety on Rs15,000 each after being presented in the local court. In keeping with section 46(4) of CrPc, a female accused can be arrested only after sunrise and not before. In this case, the rule was violated and they should not have been brought to the police station in the night.

The Maharashtra state police have misunderstood the purpose of the law. The government needs to "educate our enforcement authorities that this is not the way to use the law. Such misuse of the law is happening on a regular basis because the law enforcement agencies don’t understand the IT Act and have very little exposure to digital technology. One of the reasons is that they are over-burdened with daily policing. While in most cases cybercrimes are reluctantly recorded in an FIR form and large numbers of the cases are still recorded under traditional IPC sections without understanding the nuances of the law. Current incidents also indicate the nexus of police and politicians and also reflect on the tendency of the police to use cyber laws to harass people and use of the police by politicians as a tool to threaten adversaries. There are solutions to the problem: train the police effectively so that they can understand the nuances of the law in general and IT law in particular. The government is also required to add an explanation to Section 66A to ensure that such things do not happen. The language that is used in some of the laws is so "wide and broad" that gives an opportunity to law enforcement agencies to misuse the law and target the innocent peoples to harass them.

The views expressed by the author are personal.


Saturday, November 17, 2012

'Amul' loses trademark battle against US giant in Gujarat HC

The Gujarat High Court has refused to set aside an order which cancelled Amul's registration of its trademark Trix, on which a US firm has claimed its right.
In July this year, the Intellectual Property Appellate Board had directed Registrar of Trademarks to cancel Amul's registration of Trix trademark.
A Division Bench of Chief Justice Bhaskar Bhattacharya and Justice J B Pardiwala, in a recent judgement, dismissed the petition filed by Kaira District Cooperative Milk Producers Union Ltd, owner of Amul, seeking cancellation of trademark Trix registered in favour of US food giant General Mills.
Amul, 35 years after registering the trademark and after General Mills' entry into Indian market as late as in 1995, had questioned the US firm's right over Trix.
Gujarat Cooperative Milk Marketing Federation (GCMMFL), which markets milk and milk products under Amul brand under a licence from the petitioner, registered Trix (coined from the word TRICKS from the concept of appearing and disappearing tricks as in magic show) as a trademark in 1977.
"In 1986 we launched a chocolate under Trix trademark. We advertised it in a manner that it was so tasty that the chocolate bar just disappears/melts in mounth quickly," according to the petition.
However, Amul stopped using Trix in 1987.
US food giant's subsidiary, General Mills India Pvt Ltd, came into existence in 1995. In 2005, it applied for registration of trademark Trix claiming that in various countries it was holding the same trademark since 1910.
Since Amul already owned the trademark, General Mills India's application for registration was rejected.
Meanwhile, the US firm forayed into the Indian market by introducing a snack under the trademark 'Dip-Trix'. At the same time Amul also planned a re-launch of its Trix brand for a wafer-chocolate, which was introduced in 2007.
This led to a legal battle between the two giants.
Amul objected to unauthorised use of Trix by General Mills. The US giant challenged Amul's claim over Trix by filing a rectification application with Intellectual Property Appellate Board (IPAB), Ahmedabad.
On July 16, 2012 IPAB directed the Registrar of Trademarks to cancel Amul's right over the trademark. The dairy brand challenged the board's verdict in the HC, arguing that IPAB had erred in its ruling.
"The Board, despite taking on record and recognising invoices of the year 2007 for the sale of wafer chocolates under its registered trade mark Trix, clearly erred in allowing the said application," Amul claimed.
"Rectification application could not have been allowed as there was use of its registered trademark Trix in December 2005 by AMUL leading to sale in May 2007 (of wafer chocolates) - that is during the statutorily required period of non-use for a period of five years and three months before the date of rectification application," it said.
However, the Bench did not find any error with the board's conclusion. "We are of the view that no error, much less an error of law, could be said to have been committed by the board in passing the impugned order. For the foregoing reasons, we do not find any merits in this petition and the same is dismissed," the HC noted.
Source:  17th November, 2012

Tuesday, November 06, 2012

The Supreme Court (SC) in Philippine on Tuesday issued a temporary restraining order (TRO) on the implementation of the Cybercrime Prevention Act.

According to reports, the SC gave unanimous verdict for the issuance of the TRO.

The report published on stated that fifteen petitions were filed before the Supreme Court questioning the constitutionality of the new cyber law, which President Benigno Aquino III had signed on September 12.

The TRO's issuance came as the Department of Justice (DOJ) was reportedly holding a cybercrime forum in its office in Manila.

DOJ Assistant Secretary Geronimo Sy reportedly said the law will not target bloggers and social media users, and he added that the law would deal with the "most pernicious" crimes.

Sy said the DOJ is uninterested in personal communications among social media users, belying claims that the law would hamper free speech on the internet.

He further added that the DOJ would not allow any politician to use the law to get back at his critics.

According to him, the first case filed before the DOJ under the new law involving the sex video of a 17-year-old girl, who was first abused when she was 15.

"The video is all over the internet. The permanence is there. She can no longer face anyone. Can we stop the videos? No. What we can do is to provide counselling to the woman, change her identity and to have her relocated. This case validated 10 years of work of frustration. So long as we can help one Filipino and one vulnerable [person, this is worth it]," the report quoting Sy said.