Criminal law and freedom of expression on the internet in India Anja Kovacs and Nayantara R Internet Democracy Project Introduction In July 2017, a Muslim man was arrested in the South Indian city of Chennai on charges of sedition, on the basis of WhatsApp messages that he had received on his phone. One of the messages had called on people to protest at Jantar Mantar, New Delhi’s officially designated protest site, against those who disrespected the Koran. The man was released after a magistrate found no evidence of anti-national activity or calls for violence.1 A few weeks later, on 8 August 2017, Indian internet users noticed that the Internet Archive, “a non-profit library of millions of free books, movies, software, music, websites, and more”,2 was no longer accessible in the country. Two days later, it emerged that internet service providers (ISPs) had taken down the page following a court order. The makers of two Indian films, Jab Harry Met Sejal and Lipstick Under My Burkha, had requested the court to block the Internet Archive as well as more than 2,600 file-sharing sites, in an effort to stop pirated copies of their films from being watched online.3 By the end of the month, the 47th internet shutdown of 2017 hit India – this time in the northern states of Haryana and Punjab. Mobile internet services were suspended because of growing tensions a day before a special court was to deliver its verdict in a rape case against high-profile godman4 Gurmeet Ram Rahim Singh. The shutdown lasted six days. Internet lease lines were suspended in a 1 2 3 4 Karthikeyan, D. (2017, 19 July). Arrest of Muslim Man for Receiving Phone Message Highlights Police Misuse of ‘Sedition’. The Wire. https://thewire.in/159367/ sedition-whatsapp-chennai-anti-national/ https://archive.org Kelion, L. (2017, 9 August). Bollywood Blocks the Internet Archive. BBC News. http://www.bbc.com/news/technology-40875528 Godman is a colloquial term used in India for a type of charismatic guru. https://en.wikipedia.org/wiki/Godman_(India) smaller geographical area.5 With four months left to go, India had already seen three times as many internet shutdowns in 2017 as in 2015.6 While the internet has often been hailed for its empowering impact on people’s ability to express themselves, these incidents, recorded in a span of a mere six weeks, show that this potential can by no means be taken for granted. In India, as elsewhere, freedom of expression online is restricted in a number of ways. Focusing in particular on the criminalisation of freedom of expression but examining other barriers in law and policy as well, this report seeks to outline when and how laws in India are used to curtail the right to freedom of expression on the internet in ways that are overly broad. The report consists of seven sections. Following this introduction, we will briefly discuss the methodology we have followed in researching and writing this report. For those not familiar with the Indian legal landscape, we will then describe the different types of law that affect the right to free speech and expression on the internet in India. Section four is the heart of this report and examines in detail the laws, policies and case laws that criminalise freedom of expression on the internet in India in ways that are overly broad. In section five, we analyse a number of other important threats to free speech online that further constitute the context in which the criminalisation of freedom of expression on the internet in India has to be understood – from government-mandated content restrictions to mass surveillance. Finally, we briefly highlight draft laws and policies which we believe give cause for concern over future violations of the right to freedom of speech and expression. We conclude the report with a summary and our conclusions. 5 6 Indo Asian News Service. (2017, 27 August). Haryana, Punjab Suspend Mobile Internet Till Tuesday. NDTV News. http://www.ndtv.com/india-news/ haryana-punjab-suspend-mobile-internet-till-tuesday-1742656 https://internetshutdowns.in; Pahwa, N. (2017, 28 August). Government of India issues rules for Internet Shutdowns. Medianama. https://www.medianama. com/2017/08/223-internet-shutdowns-india 50 / Unshackling Expression