How the IT Act’s Section on Obscenity is Being Misused to Violate Digital Freedom

A new report finds that between 2002 and 2015, Section 67 was the most used provision in the IT Act after Section 66.

New Delhi: Two years after the controversial Section 66A of the Information Technology (IT) Act was struck down by the Supreme Court, new research points at how another section of the Act is being similarly misused with grave consequences for freedom of expression, sexuality and digital rights.
A study by Point of View, a non-profit organisation that works on gender rights, sexual violence and the digital rights of women, has drawn attention to the indiscriminate and increasing use of Section 67 of the IT Act by the police across India. The first ever in-depth study of Section 67 finds that it is leaning suspiciously towards the draconian Section 66A.
The report, Guavas and Genitals, that draws its title from an incident involving four Pune boys, analyses National Crime Records Bureau data as well as media reports on cases of obscenity. “Three of us had gone there [a garden in Pune] to eat guavas, but when we reached there, we started playing with each others genitals. We then stopped under a tamarind tree, where two of us had oral and anal sex while the third shot it on his phone. This was repeated on all three. After two hours, we returned home,” a 17-year-old boy told the police after a video displaying him and three other boys engaging in sexual acts was reported in November 2014. One of the boys had reportedly uploaded the video on a WhatsApp group and it spread like wildfire. An acquaintance who saw the video informed the police. The boys were booked for obscenity under Section 292 of the Indian Penal Code (IPC).
In the online world, Section 67 of the IT Act covers similar offences as IPC Section 292. However, the penalties under IPC Section 292 and Section 67 are different. While the jail term and fine under IPC Section 292 for first time offenders are two years and Rs 2000 respectively, under Section 67, it is five years and Rs 5 lakh. The jail term and fine on second conviction is three years and Rs 5000 under IPC Section 292, but five years and Rs 10 lakh under Section 67.
At the offline launch of the report, Bishakha Datta of Point of View emphasised how the acute lack of legal clarity on obscenity is leading to flawed and ham-handed implementation of Section 67 as well as IPC Section 292. This also seems to be one of the primary reasons behind the escalation in the number of offences booked under these provisions. Datta pointed out that between 2015-17, out of 99 such cases of obscenity that were registered and analysed, 28 involved non-consensual production of images or videos. However, those cases were not registered under 66E (which deals with privacy violation), but under Section 67 which deals with obscenity.
The report finds that between 2002 and 2015, Section 67 was the highest used Section in the IT Act after Section 66. It notes that from 2008 to 2015, the number of cases filed under Section 67 grew steadily from 105 to 749, while those filed under Section 66 grew from 138 to a whopping 6567. Between 2015 and 2017, there was a rise in the number, and types of cases categorised as obscene – from 30 in 2015 to 35 last year and 34 until May 31 this year, and that people in the age group of 18-30 years were booked for obscenity more number of times than others.
“Rape videos are booked under the anti-obscenity provision but not for violation of the victim’s consent. The primary harm when a nude picture of a woman gets taken and distributed without her knowledge is not of obscenity but of violation of her privacy. The Delhi Public School MMS case is a classic case of violation of consent, but there seems to be no legal resonance with consent”, Datta said.
Little clarity on what is ‘obscene’
The origin of the word ‘obscenity’ comes from Ancient Greek theatre, which excluded sexual and violent scenes from being performed on stage. Hence the Greek word ob skein,standing for obscene. 
The report talks about the conflicted history of the meaning of the word ‘obscenity’. Courts around the world have had a difficult time in defining what constitutes obscenity. The English case of Regina v. Hicklin (1868) or the Hicklin test, became a defining marker of what constitutes obscenity. In other words, obscenity was what ‘reasonable men’ thought would corrupt public morals or order. The Point of View study asserts that the test of the ‘reasonable man’ in itself is subjective and questions if these colonial words have a place in today’s world.
In a broad sweep, Section 67 of the IT Act says, “…whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or tends to deprave and corrupt persons shall be punished.”
The report critiques Section 67 of the IT Act and its offline version – IPC Section 292 – on the same ground that the words used to define the sections are subjective and vague, which is why they are being misused for indiscriminate arrests.
Importantly, to the Mumbai cyber police cell, the words ‘lascivious’ or ‘deprave’ which figure in the definition of the sections, make little sense. “In popular perception, the word ashleel stands in for obscenity,” Datta pointed out.

While exceptions for scientific, literary, artistic or religious purposes are allowed under IPC Section 292, they are not allowed under Section 67 of the IT Act. Credit: Reuters

Section 67 being used to curtail political, religious comments and artistic freedom
In July last year, one Ajay Hatewar was booked under Section 67(A) of the IT Act for a “defamatory” comment against Maharastra chief minster Devendra Fadnavis’s picture with his family on a yacht. A youth from Tamil Nadu was arrested under Section 67 on October 30, 2017, for allegedly making abusive comments about Prime Minister Narendra Modi in a private Facebook conversation.
Significantly, while exceptions for scientific, literary, artistic or religious purposes are allowed under IPC Section 292, they are not allowed under Section 67 of the IT Act.
“We need to question the basis of this law. What is the primary harm? Sometimes, harms are not concrete; they are often anticipated before they happen, like in the case of Salman Rushdie’s The Satanic Verses,” says Datta.
Section 67 and 67(A) being used interchangeably 
The publication and transmission of sexually explicit material online has been further singled out and made punishable under Section 67(A). Also, punishments for publishing sexually explicit material are higher than punishments for publishing obscene material under the IT Act. According to the report, Section 67 and Section 67(A) are being used interchangeably.
“The way Section 67 is being used controls a woman’s sexuality,” says Datta, suggesting that there is no place under Section 67(A) for a woman to express her sexuality.
Section 66(E) doesn’t include reception of images without consent
Section 66(E) of the IT Act says, “Whoever intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both”. The report notes that the section doesn’t mention receiving images without consent. It points out that if this section covered reception of images non-consensually, the number of cases under Section 67 would go down. Many of these cases can instead be registered under Section 66E.
The report notes that morphed images like the one of RSS chief Mohan Bhagwat’s torso on a woman’s leg or the image of a Modi look-alike with props superimposed with the help of Snapchat’s ‘dog filter’ can hardly be considered ‘obscene’ under Section 67. “These cases of consent or privacy violation have been wrongly booked for obscenity”, Datta notes.
“The question is how can we use this research so that 66(E) is not seen as Section 67?”
Motive of the study 
Point of View aims to push the judiciary to flag crimes booked under anti-obscenity as crimes of consent. “Section 67 has outlived its purpose and is causing harm to consent and freedom,” says Datta. “Its utility is so low that it should be used only in exceptional cases rather than how it is being used now. ” Datta however added, “At this time, it is extraordinarily difficult to voice the opinion that Section 67 should be scrapped.”

Five things to watch out for today November 30, 2017:

The Central Statistics Office will release the second quarter GDP growth data. It is widely expected that data will show economic activity has picked up on improving macroeconomic indicators across sectors. Growth had slid to a three-year low of 5.7 per cent for the three months to June on the spillover effects of the note ban and the GST implementation.

OPEC, Russia and nine other producers will meet in Vienna today to discuss extension of oil output cut beyond March 2018. The market largely expects OPEC to prolong cuts until end 2018 but Goldman Sachs has said that is uncertain as Brent oil has risen above $63 per barrel.

Xiaomi will unveil a new India-centric budget smartphone today. Xiaomi teasers don’t reveal much about the phone except that it promises long-lasting battery. Earlier this month, Xiaomi India had launched the selfiecentric Redmi Y1 and Redmi Y1 Lite smartphones.

Infosys’ ₹13,000-crore buyback offer will open today. The buyback, at ₹1,150/share, is the first in the company’s 36-year-long history. The company will buy back 11.30 crore shares under the offer that closes on December 14.

Former US president Barack Obama will arrive in New Delhi as part of a three-nation tour, including China and France. He is set to meet Prime Minister Narendra Modi today. The tour continues a longstanding tradition of former US presidents travelling overseas after leaving office.

About 22% of all annual deaths worldwide due to rotavirus infections are from India; that’s 80,000-100,000 children a year.

New Delhi: The war against diarrhoeal diseases is all set to get a boost as the Government of India has decided to introduce the indigenously developed Rotavac vaccine against them in four more states, including Uttar Pradesh. With this, the vaccine will be available to more than half population of the country. Thus far, it had only been introduced in four states: Andhra Pradesh, Haryana, Himachal Pradesh and Odisha, among 38 lakh children.

Rotavirus is a leading cause globally of severe diarrhoea and diarrhoeal death among children five years or younger. India accounts for 22% of child deaths (or 80,000-100,000 in actual numbers). About nine lakh children are also admitted to hospitals due to episodes of severe diarrhoea.
“It is estimated that every child in the world will become infected with rotavirus if we do not vaccinate them,” said Gagandeep Kang, the executive director of the Translational Health Science and Technology Institute at Faridabad, on the outskirts of Delhi. “Among the children who become infected, one in eight will need a outpatient visit to hospital, one in 30-50 will be hospitalised due to gastrointestinal infection, and one in 1,000 will die because of Rotavirus.”
Kang was involved in phase I to phase III trials of the vaccine.
In 1973, Ruth Bishop, Geoffrey Davidson, Ian Holmes and Brian Ruck, all working in the Royal Children’s Hospital, Melbourne, were examining the cause of dehydrating gastrointestinal infections in children. When they examined the faeces and the gut of children having protracted diarrhoea using an electron microscope, they saw a new virus shaped like wheel. The virus was named rota, from the Latin for ‘wheel’.
Once the virus was discovered to be the cause of the diarrhoea, scientists around the world began working on developing a vaccine against it. After years of research, the first vaccine was licensed in the US in 1998. However, it had to be withdrawn because it had severe side effects. It took another eight years before a second vaccine was developed.
In India, efforts to develop a vaccine started in the 1980s. M.K. Bhan, who was then an assistant professor of paediatrics and later became the secretary of the Department of Biotechnology (DBT), began to work on a vaccine after a rotavirus epidemic broke out in Delhi in 1985. Some newborn children showed evidence of the presence of rotavirus but did not develop the disease. He followed up with these children for two years and found that they had acquired immunity to rotavirus. Meanwhile, C. Durga Rao, a professor at the Indian Institute of Science (IISc), Bengaluru, had also isolated attenuated rotaviruses in newborn children.
At the time, India did not possess the wherewithal to characterise viruses properly. This is when the DBT’s Indo-US vaccine action plan became handy: the virus strain was taken to the US and made into a candidate vaccine. It was subsequently tested on US children and adults.
“The foreign-manufactured vaccine was costing around $200 per child, which was clearly not affordable in India. We decided to develop an indigenous vaccine that should cost less than one dollar per child,” Kang says. “Bharat Biotech in Hyderabad, DBT, and a host of other partners got together and took up the challenge.” After mandatory trials and study, the vaccine was licensed in 2014.
Speaking to India Science Wire, Kang also expressed concern over the persisting problem of worm infestation in children. “Hookworm infestation may not kill. But children get weakened by frequent diarrhoea episodes and they become vulnerable to malnutrition, stunting and opportunistic infections such as pneumonia. We have to make toilets affordable and acceptable to the people”.
Having undertaking field studies on the issue, she notes that people are not antagonistic to toilets and that the problem had to do with how they were selected. “One size cannot fit all. The design of toilets for Rajasthan will not work for say a coastal area with a high water-table,” according to Kang. “Likewise, if faecal excrement floats around open sewerage, people are not going to accept toilets. Functional sewerage system is a must.”
Kang completed her MBBS in 1987 and her MD in microbiology in 1991 from Christian Medical College, Vellore. She obtained her PhD in 1998, and carried out her postdoctoral research with Dr Mary Estes at the Baylor College of Medicine, Houston, before returning to Vellore.
She has helped establish networks of sentinel hospitals and laboratories that carry out surveillance for rotavirus disease in children and ancillary studies in association with the Indian Council for Medical Research and the World Health Organisation. She has also published over 250 papers in national and international journals and has been awarded the Infosys Prize in life sciences for her pioneering contributions to understanding the natural history of the rotavirus and other infectious diseases.
This article was originally published by India Science Wire and has been republished here with permission.

 

Swiss Post reports “good result in difficult environment”

Swiss Post has reported a profit of 516m francs for the first nine months of 2017, which was 50m francs up on last year.

Operating profit was also up – 106m francs higher at 699m francs.
However, Swiss Post pointed out: “The improved result was principally due to one-off effects at PostFinance. Pressure remains high on the core operating business.
“The volume of addressed letters decreased once again, while over-the-counter logistics products and payment transactions also suffered a further decline.”
In a statement issued yesterday (23 November), Swiss Post said that the decline in mail volumes and the ongoing low interest rate situation in the financial services market  underline the need for the company to “push ahead with its transformation in order to remain competitive in the future and to be able to finance a high-quality universal service from its own resources”

Downgradation of Chinchbunder HO-400009 (PS Gr-B Gazetted) into Sub Post Office (HSG-I) and Upgradation of the status of Chembur HO-400071 (HSG-I) to the level of PS Gr-B Gazetted HO

Does this mean no strikes before Christmas?

Royal Mail won a High Court Injunction declaring the strike call to be unlawful and saying that the CWU is obliged to withdraw its strike call until the external mediation process has been exhausted. You can read more about it on this article which will be updated as more news comes through. So what happens next?

The Agenda for Growth

The CWU and Royal Mail both signed the Agenda for Growth at the time Royal Mail was privatised. This legally binding agreement set out what would happen in the event the two parties couldn’t reach an agreement and we reproduce the “External Mediation” section below this article. Picking through the agreement we can set out a timeline to indicate the earliest possible date that the CWU could call strikes deemed to be lawful by the High Court.

The External Mediation Timeline

The Appointment of an external Mediator – At least 1 week

1.     An external mediator will be appointed by ACAS.

Submissions – At least 2, possibly up to 4 weeks

1.     Both Royal Mail and the CWU will put forward a representative to help the mediator to understand the issues in question and will provide all the evidence and a clear statement of the issues in dispute.

Mediator to make recommendations – Time 2 weeks

1.     Within two weeks of having received all submissions the mediator will produce non-binding recommendations.

Royal Mail and CWU will meet – Time 1 week

1.     Within one week of the recommendations being made the CWU and Royal Mail will meet to review the outcome and decide their response. If at this time agreement is met then the dispute ends and recommendations immediately implemented.

Failure to agree – Time 2 Weeks

1.     If either party is unable to accept the mediators recommendations then a further 2 week period is prescribed for further negotiations. The disagreeing party is expected to advise the reasons for rejecting the recommendations and their alternative suggestions.

Further failure to agree

1.     If by this stage agreement hasn’t been met then the parties will write to each other to notify of their intentions. It is at this point that the CWU could notify Royal Mail of their lawful intention to call for strikes

Minimum 7 weeks before industrial action by Postal Workers

Picking through the timeline there are at least 7 weeks of prescribed mediation activities which must take place before a postal strike will be deemed lawful. Starting today this takes us up to the 16th of November. However, in reality, the process will take considerably longer as it can’t truly get underway until a mediator is appointed.

Will the mediation process be completed in 7 weeks?

Doubtless the CWU will want the process to be as speedy as possible as there will be considerably less impacts from postal workers industrial action after Christmas. In addition the CWU are on a time line as their ballot is only valid for 6 months at which time they would have to reballot postal workers if they wished to stage further industrial action.

There is plenty of wiggle room for Royal Mail to delay proceedings and they have indicated that the process could last until after or at least close to Christmas. The Agenda for Growth agreement doesn’t specify how long various stages (such as submitting evidence) should take. One might expect an independent mediator to insist that the process be relatively speedy but that is still open to interpretation and stalling tactics.

It would appear unlikely that the mediation process will be completed within anything close to 5 weeks and both the CWU and Royal Mail acknowledge it will be at least a seven week process, but the clock doesn’t even start ticking until a mediator is appointed.

Does this mean no strikes before Christmas?

There are a number of things that could now happen outside the mediation process. The CWU are doubtless considering an appeal to the High Court injunction, which if overturned would clear the way for strikes. It’s also a possibility that the CWU would call for illegal strikes in which case we have no idea that the ramifications would be.

Terry Pullinger of the CWU, speaking outside the court today, suggested that the process would be completed within seven weeks meaning that a likely earliest date for strikes would be around the 1st of December.

ARoyal Mail spokesperson told us: “Royal Mail is very committed to working closely with the CWU in order to reach agreement as a matter of priority“.

The first step of the mediation process is to appoint a mediator. Royal Mail are currently working together with the CWU to appoint a joint external mediator. Once the mediator has been appointed, Royal Mail say that there is a minimum seven week process to go through.

The ‘Agenda for Growth’ agreement between Royal Mail and the CWU

5.4 External Mediation

External Mediation will apply in the following circumstances:

·         If a local disagreement remains unresolved after Stage 3 of the IR Framework there will be 7 days for national intervention, after which it will automatically be referred immediately for external mediation.

·         Where the national parties fail to reach agreement on a point of principle relating to existing agreements that has been referred to them, it will be referred for external mediation after a period not exceeding one month from it being initially tabled by either party.

·         Where there is a national disagreement relating to a matter that is not covered by existing collective agreements, it will be similarly referred if an agreed way forward is not found within one month.

·         Where unballoted industrial action continues beyond 48 hours.

The External Mediator will be appointed from a jointly agreed panel managed by ACAS and will have no other connection with Royal Mail or the CWU. The mediator will be provided with all relevant papers and evidence, together with clear statements from each party on the issue that is in dispute and on which a recommendation is sought. Both Royal Mail and CWU will provide a representative to work with the Mediator to assist in understanding the issue in dispute, the background and the implications of any decision before it is made.

In considering the dispute and making recommendations, the External Mediator will take account of any regulatory and legal requirements, the terms and spirit of the Agenda for Growth, Stability and Long Term Success Agreement, other relevant national agreements, the needs of customers, the universal service obligation, and the need for appropriate efficiency supported by a climate of sustainable trust and collaborative decision making.

The External Mediator will produce recommendations within two weeks of having received all relevant papers and having met the representatives of each party. Although the recommendations from the mediator are nonbinding the expectation is that both parties will use the mediator’s recommendations to resolve their differences. The parties will meet within one week of the mediator’s recommendations to review the outcome and confirm their response. If they both agree, the resolution arising from the recommendations will be implemented without further delay. If one or both parties are unable to agree in whole or in part with the recommendations, they will advise the other of the reasons for this, indicate what they are prepared to agree instead and there will then be a further two weeks during which there is a final opportunity to reach agreement before the process is concluded.

In the event that the process concludes without agreement, the parties will write to each other to notify their intentions.

The parties may agree to extend any of the timescales above by agreement.

Posts focusing on digital growth

A new survey from Escher Group has indicated that 95% of postal operators either currently offer or plan to deliver a customer app, and 89% offer or plan to offer Digital Mail products.
These were among the key findings from an online survey that Escher Group conducted with respondents from more than 25 countries in July/August.
The survey also found that 59% of postal operators foresee a growth in their physical presence and 77% of mail carriers are now equipped with a mobile device.
Interestingly, the survey also revealed that only 14% of Posts currently have a successful loyalty program, but 39% plan to implement a loyalty scheme.