Madurai Bench of Madras High Court cancelled the bail grated earlier to a youtuber Sattai Durai Murugan for posting an offending video. The Court (Justice B Pugalendhi) observed that the records show Mr Durai Murugan to be a habitual offender in posting videos with derogatory comments against political personalities.

Though political sensitivities were involved in this case, in the process of adjudging the bail cancellation petition filed by the Police, the Court observed ” Intermediaries Duty bound to regulate content”.

The Court has inter-alia stated

“It is duty of the intermediaries to ascertain whether those videos are in accordance with their policies and guidelines and in terms of the contract and to block the channels if the videos are not in accordance with the terms and policies. … If it is not blocked or removed even after it was brought to their knowledge, the intermediaries are committing the offence under Section 69A (3) of the Information Technology Act,”

In delivering the judgement which related to a political comment, the Court referred to the possibility of posting of videos related to making of Bombs and Obscenity etc and quoted Albert Einstein on Atom Bomb.

The Court was assisted in the case by an amicus curie advocate K K Ramakrishnan. The amicus pointed out to the community  guidelines formulated by the platforms and indicated that the action to block offending videos is part of the guidelines and the terms of the platform usage.

At a time when the Intermediary Guidelines of the Central Government are being vigorously challenged as being against the  constitutionally guaranteed freedom of speech, this judgement making sweeping observations beyond the specifics of the case could raise further controversies.

Copy of  the Judgement

The allegation involves comments made in Tamil and has certain political connotations and hence we would not like to comment on the same at this point.

However,  it appears that invoking Section 69A(3) for the order was not perhaps  appropriate. This section empowers the Government to issue certain directions in the interest of sovereignty and integrity of the nation etc… It does not automatically empower the police to act without such directions. Such directions can be issued by a “Designated Officer” who is the group coordinator of the Cyber law division

Recently, on June 1st, the Government had issued a draft amendment to the Intermediary Guidelines of February 25th , later withdrew it and again requested for comments on 6th June 2022

The essence of these guidelines (with respect to Digital Media) which are opposed in several courts including Madras High Court was to oppose the self regulatory and administrative mechanism suggested for regulating the digital content and imposing a code of ethics.

In the light of these developments at the national level, the judgement of the Madurai Bench appears to stick out as an aberration.

Further whether a judgement related to certain basic principles of constitution were relevant to be made in the cancellation of bail plea is also a point of debate.

Providing power of “Censorship” to the channel has its own counter applications and has to be therefore viewed more closely. The platform of twitter is already accused of biased decisions to block some messages and not block some other messages and the license for such arbitrary action is taken from the assumed power of regulation of the content.

Any such powers will convert the platform into “Not an Intermediary” as per ITA 2000 and hence will invoke the “Digital Media Ethics Code” which is now under scrutiny of the Supreme Court. Hence the current decision appears to interfere with an ongoing broader debate.

It would therefore be interesting to observe if this decision gets appealed against in a division bench or in Supreme Court.

In this bail related petition, the Court appears to have focussed more on the Intermediary liability. It would have been more appropriate if the Court had focussed on the grounds for cancelling the bail application.

Also there appears to be a confusion between the “Designated Officer” under rule 3 of the GSR 781 (E) notification and the nodal officer of an organization. The power of the nodal officer is only to make recommendations to the Designated officer requesting for blocking of any service. However, the judgement quotes provisions of Information Technology (Procedure and Safe guards for Blocking for Access of Information by Public) Rules, 2009, vide G.O(D)No.20, Information Technology (B4) Department, dated 18.03.2020. [The notification was not found on the website (Government of Tamil Nadu : Government Orders | Tamil Nadu Government Portal (tn.gov.in).] and indicates that the SP has been nominated as the nodal officer. The authority for such appointment at the state level may not be binding under Section 69A. Also if YouTube cannot be persuaded to remove any content, it cannot be considered as a ground for denial of bail to a person who has posted the content. The case against the YouTuber ought to have been made out only with his not meeting the earlier bail conditions if any.

By alluding to Section 69A, 79 and 84B, the judgement seems to have placed some confusion in the minds of the cyber law observers about the intermediary responsibilities which was perhaps avoidable.

(A detailed discussion on this may be taken up later)

Naavi

For a long time, there has been a set of vested interests in India who have been opposing the “Data Localization” concept. They succeeded in diluting PDPB 2018 to PDPB 2019/DPA2021 and removed the need for a copy of non sensitive personal data being retained in India.

One of the arguments that Naavi.org had placed is the potential positive impact of the data localization on the business of creating new data centres and data centre professionals.

The argument based on the law enforcement needs was easy to understand but the objections raised in the form of “No facilities exist in India”, “There is a shortage of professionals” etc continue to make rounds in the sponsored media.

However, it appears that the trend is slowly changing and now we are seeing a series of stories which try to highlight the economic benefits in the Data Center domain though  it is yet to be linked to the DPA 2021 as an expected benefit.

Today’s article in economic times titled “Infra status to data centers may spur Rs 700-720 billion investments over 5-10 years”

Money Control reports “How Data centres could spur a wave of investments  in infrastructure”that the demand for data centres will spur the growth in real estate as well as power sectors.

Mint in its article “Data Centre boom to spur talent race” says,.. “India’s data centre boom is expected to generate thousands of jobs and fuel a race for talent in the years ahead, in a repeat of the talent hunt now playing out in the country’s information technologies services sector”.

The sudden spurt of the many articles indicate that a powerful sponsor has joined the race of data centres in India which has woken up all the journalists to write about data centres.

Is it the Jio? or Google? or Microsoft? or Tatas?…. or a new entity?… We should know soon.

But it appears that the resistance to data localization in DPA 2021 is likely to now decrease since one part of the industry would significantly benefit from the Act.

Naavi

For a long time, WhatsApp and its supporters argued that technically it is not possible to track the origination of messages. When the Government introduced the provision as a notification under ITA 2000, technology experts in India endorsed the claim of WhatsApp.

Naavi.org time and again called out for firm action against such pseudo techies who wanted to oppose regulations in support of security. Some of the articles that discussed this are

Court has to nip this foreign media revolt against the Indian Government in the bud

WhatsApp petition deserves to be rejected at admission stage itself.

But recently, it appears that WhatsApp has agreed to make the necessary changes to enable identification of the origin of a message.

The above article in Zeenews suggests that WhatsApp has now agreed to introduce a message ID in the form of a unique hash which will travel with the message when it is forwarded.

This will go a long way in reducing the misuse of WhatsApp for spreading fake news.

Techies who once supported the views of WhatsApp need to eat their  words and change their attitude to oppose all security measures suggested by the Government and spread internet anarchy.

Naavi

Mark Zuckerberg and Elon Musk are both individuals who are targeting the future for their  business expansion. If they are present it is clear that they have identified some big potential. Neuro Technology is one area where both are now trying to explore.

Mark Zuckerberg has progressed from Face Book to Meta and this is an intermediary step towards technologies that merge with neuro Technologies. Elon Musk’s firm Neurolink is already planning human clinical trials for some of its “Brain Chip”.  We can expect that both IBM and Google would also be already drawing up their own plans on how to extend their business to the “Human Mind space”.

Elon Musk’s Neuro Link co-founded in 2016 has reportedly successfully implan ted artificial intelligence microchips in the brains of a monkey and pig and is now planning to run tests on humans. (Details of the experiment  on the  monkey is available here)

Neuro Link trial demonstrates the effectiveness of the deep brain implanted chip which is charged wirelessly and is able to pick neuro signals from the brain, process it in the external computer and feedback the learnings to improve the ability of the subject to “Think of some thing and make the computer react”.

The Meta project of using an external device to provide immersive experience through the visual presentation is also supplemented with the devices which can move the hands and legs entirely through mental thoughts.

These developments indicate that the need to regulate the use of neuro technology is more evident than ever before. While the traditionalists are still harping on Cambridge Analytica and its impact on the US Elections, the alleged privacy violation of Cambridge Analytica pales into insignificance when we consider the developments that are happening in Neuro science.

 “Neuro Rights” to be codified into a law is therefore a current concern and India needs to address this as soon as possible.

Naavi

For a long time many are arguing that there is a power behind chanting of Mantras. Though the mention  of  “Mantras” immediately invokes a religious feeling and triggers a “Flight Response” in some individuals, everybody will agree if we say “Music” has an impact on human brain.

The principle that these thoughts represent that “Auditory Impulses” of a certain kind can interact with the human neural system. This could a positive effect that can calm the brain from a stressed situation or even excite the brain. The “War Drums” and “War trumpet” was perhaps designed to trigger an excited response from the soldiers while the “Om” Chanting or Gayatri Mantra chanting could be a de-stressing and creation of positive brain energies.

Neuro science is discussing the effect of “Binaural Beats” and its effect on sleep, therapy, meditation etc.

The concept of “Binaural Beats” is that when two tones of slightly different frequencies are played on separate ears simultaneously (say through head phones), the human brain perceives the creation of a new third tone whose frequency is equivalent to the difference between the two tones played.

For example, if a person hears a tone of 410Hz and 420 Hz in different ears, he would be hearing a binaural beat with a  frequency of 10 Hz.

Such effect is also seen in visual perception when an Optical Illusion” is created in a image consisting of a series of bright and dark spaces.

Binaural beats are said to provide many benefits in meditation, lowering of stress etc. It is said that in order to produce a binaural beat, the two tones sounded in the ears must both have frequencies below 1,500 Hz with a difference of no greater than 40 Hz between them.

The effects of the binaural beat will depend on its frequency and the corresponding brain wave. For example, a natural beat with a frequency between 4 and 7 Hz is more likely to align with theta brain waves, promoting sleep and relaxation.

Probably this alignment of the beat with the brain waves is behind the addiction of our youngsters to headphones.

There is however a need to research if the binaural beats have any harmful effect also.

In the context of “Neuro Rights”, we can infer that if there is a phenomenon of “Binaural Beats” and certain music can create modification of brain waves as a result, it is a subject matter of Neuro Rights regulation.

Naavi

All privacy laws from GDPR to DPA 2021 define “Personal Information” (PI) and a need to “Protect Personal Information”.

In defining PI, the popular definition is that any information “about” a living human constitutes PI and should be subject to some regulation such as valid consent for processing etc.

Additionally, most laws also  define “Creating a Profile” constitutes a “Data Processing activity” that needs consent and the generated “Profile” is also part of the “Personal Information” which the data principal has a right  to control. The right of data portability extends to not only information provided by the data principal to the data fiduciary during the collection process but also to the profile created by the data fiduciary.

The Cambridge Analytica dispute was centred around the use of personal information to create a political profile for the purpose of targeted advertising.  Recently, I came across an article arguing that “We should stop automatic profiling of people”. Though this was in the context of an organized data processing activity, the article triggered some thoughts to indicate that this principle that “Profile” is part of personal information and is protected under privacy laws as an asset of the data principal requires a larger debate.

I am aware that this is a contrarian thought and is presented for the purpose of academic debate. It is not to be construed as an interpretation of the data protection law which by popular interpretation considers “Profile” is part of the personal data and needs to be protected by consent or legitimate interest. It is also subject to the right of portability and right to forget irrespective of the intellectual property rights associated with the creation of the profile, though the principles of anonymisation may be used for profiling of a group of people without violating the principles of privacy.

“Imaging a profile” is a fundamental and natural reaction of the human brain as a stimuli to any observation. This is part of the “Fight or Flight” response triggered in the human system.  The first step in this fight or flight response is to understand  the behaviour of people in a particular situation which  includes “Profiling” whether it is correct or incorrect. If the inference creates a more than threshold danger perception, it would trigger an action potential for fight or flight. Otherwise it is recorded for further processing. When the behaviour gets repeated next time, the brain may interpret that this person habitually of a particular behavioural trait and if it is not considered desirable, the brain triggers a “Mild fight or flight response”.

Thus “Drawing Inference” from any observation is a natural human trait and if it is absent we call a person un-intelligent or even an idiot.

The same tendency when carried out by a software is considered as “Profiling”. In this case the inference may lead to targeted advertising the same way human inference of a person as friendly leads to opening up a conversation.

Considering that this “Inference” is a natural human trait therefore, banning it through the privacy law is an unnatural inhibition on the human tendency and is unlikely to be effective.

On the other hand any misuse of information causing a harm to the individual whether through profiling or not can be considered as a “Civic Wrong” and be subjected to punishment.

We need to therefore debate whether “Profiling per-se” is bad in law or “Misuse of Profile alone is bad in law”.

It is therefore sufficient if privacy laws distinguish “Profiling per-se” and “Use of Profile” and not consider “Profiling per-se” as a “Violation of Privacy Right per-se” while the mis-use of profile can continue to be considered as a punishable act.

Comments are welcome.

Naavi