While Apar and Amba worked on the answers to the TRAI papers, Kiran and the tech team — I didn’t know anyone that Kiran had brought on board at the time — were building the tech, and AIB was working on the script for the video.
We had no real research backing us, though, and we didn’t know how things had shaped up anywhere except in the US.
On April 2nd, I got an email from Chinmayi Arun and Sarvjeet Singh from the Centre for Communications Governance at the National Law University, Delhi. Chinmayi had set up that centre, and her comments and interventions had helped us build much understanding of the Shreya Singhal case. She had this ability to make the most complex points simply, just as Anja Kovacs, the founder of the Internet Democracy Project (which sadly doesn’t exist anymore) has this incredible ability to humanise any issue — of making you feel strongly for an issue in terms of its impact on people and society.
The email read:
The Shreya Singhal judgment is an opportunity to reflect on the efforts that resulted in the successes within the judgment. It is also a good time to consider what options the judgment opens up for those of us who work with free speech online and offline, and to evaluate the different avenues where intervention may be useful.
We are hosting a discussion on ‘The Shreya Singhal Judgment and the Way Forward’ on 4th April 2015 (Saturday) at Lecture Room-II (Basement), India International Centre- Annexe, New Delhi. Apar Gupta and Raman Jit Chima were kind enough to help us put together this session and draft the concept note for the session which is attached to this email. A draft schedule is attached here so that you can plan your time with us easily.
We hope to bring together those who contributed to the judgment, and those who do work connected with it, so that we may build on it to seek a better legal framework to protect online speech. You are an important part of this conversation and we do hope that you will be able to make it to the discussion.
Given your contribution to the case and your expertise, we hope that you will join us as one of the resource people for the sessions titled ‘Other Significant Battles for Internet Policy’ from 6.00 pm to 7.00 pm. We will ask you to discuss the issue roughly six minutes. After all the resource people have finished, there will be an open discussion with the audience. Given the paucity of time and the number of people, we have not been able to accommodate everyone on the different panels we would hope for. However, given how integral you role was in the outcome of the judgment, we would be glad if you would be a part of the discussion all through.
We apologise for the short notice. We wanted to take advantage of the energy around the judgment before everyone moves on. We would be grateful if you can confirm your availability at the earliest so that we can circulate the final schedule to all the participants.
I thought about declining: this was a critical moment for the Net Neutrality campaign, and I have a habit of looking forward, and not looking back. We got the judgment in Shreya Singhal… when such a critical issue like Net Neutrality is upon us, where we’re completely outgunned by large telecom operators who appeared to have the TRAI Chairman Rahul Khullar on their side, why would be discuss the Shreya Singhal now? The panel on “Other Significant Battle for Internet Policy”, was however an opportunity for me to inform those in the room about Net Neutrality and what we were doing, but that was the last panel of the day, inconveniently, from 6PM to 7PM.
It wasn’t that the Shreya Singhal judgment wasn’t important for me: I had been involved in the case as a reporter, and I had reported especially on Section 66a extensively. The Mouthshut vs Union of India case was because of an interesting situation that had arisen. Mishi Choudhary, the founder of SFLC.in had contacted me to become the petitioner to challenge Section 79A of the IT Act, which allowed anyone to send a notice to a platform, and get content taken down. If the platform doesn’t remove the content, they have liability for it. I gave Mishi a better petitioner: Faisal Farooqui, the founder of Mouthshut.com.
About four-five months before Mishi’s call, I was in Mumbai, sitting in Faisal’s office when I got a legal notice from cybercrime cell. I used to go to Mumbai three-four times a year, because my grandmother lived there, and it gave me an opportunity to meet friends in the content industry in Mumbai. I used to spend about a month each year in the city, and ever so often, landed up at Faisal’s office for a chat (or at Toto’s with Sidharth Rao from Webchutney). I showed the legal notice to Faisal, and he laughed it away, asking me to ignore it. Mouthshut is a consumer reviews website were anyone could post a review of a service. “Don’t worry. I get 500 such notices a year.” The notice I got, bizarrely enough, was for taking down a small little article on Airtel live streaming prayers from religious shrines. I ignored the notice, but Faisal’s explanation about the kind of takedown notices that he received made him the perfect case. That’s how MouthShut got involved in the Shreya Singhal judgment. In court, however, while I reported on proceedings, in the breaks I would speak with lawyers and senior counsel, at times helping them understand what platforms were facing.
At one point in time, one Senior Counsel implored that I speak with another, who he felt was messing up the case. Our ideal situation was a DMCA kind of situation: if a creator pushes back against the take-down of content by a complainant, the platform should put the content back, as long as the creator takes the liability for the content. The Senior Counsel who wanted to change the plea in the middle of the case was upsetting the others: wanted to prevent a put-back mechanism. I tried explaining the fallacy of this approach, and how it impacts free speech, but she argued that in case of revenge porn, no one should be allowed to put content back up. My argument that no one will want to claim liability for revenge porn fell on diffident ears.
We won the case eventually, in terms of 66A (criminalisation of speech that was “annoying” etc) declared unconstitutional, 79A (takedown notices) watered down, but Section 69A, which allows the government to block content secretly and without adequate independent oversight, still remains. I remember stepping out after Justice Nariman read out the judgment in a packed Court 1 of the Supreme court and being quite upset, before Raman and Apar convinced me that it was a victory: they were pragmatic and were focused on the win with 66A and 79A. I was upset about losing 69A.
I reached towards the middle of the panel before mine, entering the tiny and always-too-cramped Lecture Hall II in the basement. I was interested only in talking about Net Neutrality, while everyone else debated the Shreya Singhal judgment. Anja was on the panel with me, and I spoke last. I vaguely remember interrupting her a few times during the panel (and apologising to her for it afterwards), but I used the time I had to make the case for those in the room to do something about TRAI’s consultation paper. I didn’t tell them about AIB, not wanting to let the cat out of the bag in a public forum. “After this panel, I’m going back to working on the campaign tonight. I have an explanatory note to prepare, which will be helped by those of you with expertise in research. Apar is here. Please meet us after this session.”
Before coming for the discussion at IIC, I had gone to the Defence Colony market to meet Chakshu Roy, the head of outreach at PRS Legislative. Chakshu was one of the most helpful people in the policy space, with deep understanding of how policy gets made, and he was the person I went to for advice, as much as I tried to help PRS in their own work of selecting LAMP Fellows (legislative assistants for MPS), and preparing policy briefs. I don’t recall what Chakshu said, but after meeting him, I called up Sunil Abraham, then the head of the Centre for Internet and Society in Bangalore. CIS was the mothership: every tech policy researcher in India worth their salt at the time had done some work with CIS, and Sunil had been instrumental in my learning about tech policy issues, by discussing things with me, occasionally inviting me for CIS events, and generally encouraging my reporting on issues. He’s the kind of guy who takes a big-tent approach to things, wanting to involve everyone in everything tech policy.
We need researchers on board for the Net Neutrality campaign, I told him, explaining what we were doing, but once again, not mentioning AIB. Sunil declined, saying that we couldn’t possibly pull out researchers from their projects to focus on something that they haven’t been commissioned to do. I asked him to check if they can spare even a week — after all, the deadline for the Net Neutrality consultation was just 20 days away, on April 24th. “I can’t do that…I can’t pull people out of projects that they’ve been commissioned to do” Sunil responsed. I was upset, and it was in this mood that I went into the CCG discussion, thinking that even if CIS doesn’t help, there will be others.
Post the panel discussion at CCG, Prasanth Sugatham of SFLC.in came and spoke with me about meeting in a couple of days to discuss in detail what SFLC can do to help with the campaign. Others had a few questions about zero rating and Net Neutrality and offered to help.
I was late in the evening and dark, and as we stepped out of the gates at the IIC Annexe, I remember distinctly telling someone that I’m going home and will start on the explanatory memorandum (FAQs), and could do with some help. “Can we do this later? We’re all going for the party at CIS (at their Delhi office) right now. Come with us?” came the response. I declined: I had work to do.
I knew then that we couldn’t rely on Civil Society organisations. I was pissed off and now combative: we’d do this without them. My thesis was being proven right so far: we had to bypass Civil Society and bring people to the party.