Professional Documents
Culture Documents
recognition, prosecution of Peaps and Scoops under Turtonia ODPA does not
violate Article 19 of the ICCPR. This prosecution qualifies the three part test for
any content based restriction under Article 193 which means (i) ODPA is a valid
law; (ii) ODPA has a legitimate aim; & (iii) ODPA is necessary in a democratic
society.
international law conflicts with the domestic law, then domestic law will prevail
1
ICCPR (adopted 16 December 1966, entered into force 23 March 1976) art 19;UDHR (adopted 10 December
1948) UNGA Res 217A (III) art 19; ECHR (adopted 4 November 1950, entered into force 3 September 1953)
213 UNTS 1932 art 10; ACHR (adopted 22 November 1969, entered into force 18 July 1978) art 13; ACHPR
(adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 art 9.
2
Arts 19(3) ICCPR (adopted 10 December 1948); UDHR art 29(2); ECHR (adopted 4 November 1950, entered
into force 3 September 1953) 213 UNTS 1932 arts 8(2) and 10(2); ICCPR arts 17(1) and 19(3); ACHR (adopted
22 November 1969, entered into force 18 July 1978) arts 11(2) and 13(2); ACHPR (adopted 27 June 1981,
entered into force 21 October 1986) (1982) 21 ILM 58 art 9(2); HRC, ‘General Comment 34’ (12 September
2011) UN Doc CCPR/C/GC/34 (‘General Comment 34’) para 21; Recommendation CM/Rec(2014)6 of the
Committee of Ministers to Member States on a Guide to Human Rights for Internet Users (adopted 16 April
2014) para 2.
3
Racism on the Internet, By Yaman Akdeniz, Council of Europe, page 47,
4
Page 149, Journalism at risk: Threats, challenges and perspectives, By Council of Europe
5
Dean Maxwell & Isle Cohen Doctoral Seminar in International Law Hans & Tamar Oppenheimer Chair in
Public International Law Faculty of Law, McGill University IMPLEMENTATION OF INTERNATIONAL
LAW IN INDIA: ROLE OF JUDICIARY, By Dr. Sunil Kumar Agarwal available at
http://oppenheimer.mcgill.ca/IMG/pdf/SK_Agarwal.pdf accessed on 8 Dec 2017 ; Relation Between
International Law and Municipal Law Edwin Borchard Yale Law School available at
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4498&context=fss_papers accessed 8 Dec 2017
highest source of law. 6 International law is not law at all because a rule must be
Peaps and Scoops was made under a valid law and the Court should not address
the question of what is the legal basis of ODPA.10 The power to prosecute is
The legal validity of the ODPA has never been challenged in the domestic court
ODPA precisely defines every key term12 not leaving any space for ambiguity.13
6
Compromis para 2.1
7
Relation Between International Law and Municipal Law; Page – 3; 1 January, 1940;
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4498&context=fss_papers accessed 2nd
October, 2017
8
Relation Between International Law and Municipal Law; Page – 3; 1 January, 1940;
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4498&context=fss_papers; accessed 2nd
October, 2017
9
Bijoe Emmanuel & Ors v State of Kerala & Ors, [1987 AIR 748, 1986 SCR (3) 518] 11 August 1986
10
Sumar Singh Salkan v Assistant Director & Others, 2010
11
Compromis, para 10.1
12
Compromis, para 10.2, Section 2,ODPA(2015)
13
Hardy & Hardy, CAL.App, 135 P.2D 615619 Srum v Zeltwanger 559 P.2D 1384; 1977 YWO; Frigaliment
Importing Co. v P.N.S. International Sales Corp.
14
Compromis para 10.1
non-consensual pornography inflicts grave privacy and autonomy harms that
Sexual violence is not limited to physical invasion of the human body and may
include acts which do not involve penetration or even physical contact.16 ODPA
images knowingly, where the person is identifiable from the image, 18 the
infringing activity and the guilty mind behind such Act. 19 ODPA is essential for
forbidden external circumstances. Actus reus is the whole definition crime with
15
See Mary Anne Franks, Why Revenge Porn Must Be a Crime, NYDAILYNEWS (Mar. 17, 2014),
http://www.nydailynews.com/opinion/revengeporn-crime-article-1.1702725; accessed 26 November, 2017.
16
Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, ¶ 688 (Int’l Crim. Trib. for Rwanda Sept. 2, 1998),
http://www.unictr.org/Portals/0/Case/English/Akayesu/judgement/akay001.pdf; accessed 28 November, 2017.
17
Danielle Keats Citron, Mary Anne Franks, Criminalizing Revenge Porn, 2014.
https://law.yale.edu/system/files/area/center/isp/documents/danielle_citron_-_criminalizing_revenge_porn_-
_fesc.pdf; accessed 12 November, 2017.
18
Compromis para 10.2, Section 1, ODPA(2015)
19
Compromis para 10.2, Section 1, ODPA,(2015)
20
Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 219 (1890).
21
Glanville Williams, Criminal Law: The General Part, second edn, Stevens & Sons, 1961, p 18. See also Glanvile
Williams, Textbook, Textbook of Criminal Law, second edn, Stevens & Sons , 1983, ch 2.
If interference is in accordance with law, the aim of the restriction should be
laws place “direct restrictions on speech, the Constitution must tolerate laws
serious abuses of a sexual nature that is degrading and humiliating for the
22
Compromis para 10.1
23
532 U.S. 514 (2001)
24
Bartnicki v Vopper, 532 U.S. 514, 537-38 (2001) (Breyer, J., concurring).
25
Art. 19(3) of ICCPR; UDHR art 29(2); ECHR (adopted 4 November 1950, entered into force 3 September
1953) 213 UNTS 1932 arts 8(2) and 10(2); ACHR (adopted 22 November 1969, entered into force 18 July
1978) arts 11(2) and 13(2); ACHPR (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM
58 art 9(2); HRC, ‘General Comment 34’ (12 September 2011) UN Doc CCPR/C/GC/34 (‘General Comment
34’) para 21; Recommendation CM/Rec(2014)6 of the Committee of Ministers to Member States on a Guide to
Human Rights for Internet Users (adopted 16 April 2014) para 2.
26
http://www.law-democracy.org/wp-content/uploads/2010/07/10.03.Paper-on-Restrictions-on-FOE.pdf
Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-T, Judgment, ¶ 186 (Int’l Crim. Trib. for the Former
27
28
See Dun & Bradstreet, Inc. v. Greenmoss Builders Inc., 472 U.S. 749, 758–761 (1985) (describing the
difference between public and private speech in terms of First Amendment interests).
29
Miller v California, 413 U.S. 15, 18-19 (1973).
30
Page 8, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion
and expression, Frank La Rue, United Nations General Assembly, 16 May 2011; Article 19 (3) of ICCPR.
ODPA is enacted for curbing a serious offence like revenge porn31 for public
interest and safety of an individual’s dignity, for this purpose the restrictions
The basic tests for establishing the necessity of interferences with freedom of
condemnation for this behaviour. 34 ODPA lays down restrictions that are
necessary to achieve the aim of curbing a grave offence like revenge porn.35
The restrictions laid down under ODPA meet the proportionality test,
whereby the benefit in terms of protecting the interest is greater than the
“substantial need” for the restriction, then the law is necessary.37 People are
not afraid of being sued but they are afraid of being convicted of a crime
31
Compromis para 10.1
32
Compromis para 10.1
33
Janowski v. Poland, App. No. 25716/94, Dissenting opinion of Judge Bonello
34
Danielle Keats Citron, Mary Anne Franks, Criminalizing Revenge Porn,pg no-104; 21 April, 2014(3:21 P.M.);
https://law.yale.edu/system/files/area/center/isp/documents/danielle_citron_-_criminalizing_revenge_porn_-
_fesc.pdf; accessed 5 November, 2017
35
Compromis para 10.1
Toby Mendel, ‘Restricting Freeedom of Expression: Standards and Principles Background Paper for Meetings
36
Hosted by the UN Special Rapporteur on Freedom of Opinion and Expression’ Centre for Law and
Democracy(March 2010)
37
Lingens v Austria, 8 July 1986, Application No. 9815/82, para 39.
because that shows up on their record forever.38 Therefore, the enactment of
Revenge porn victims are harassed by people 39 and most pictures are
videos being shared which caused devastating harm to victims and suicides
were also reported.41 This gave rise to a pressing social need for the enactment
public safety by penalising the disseminators. Social need means need caused
independently.42
38
Tracy Clark-Flory, Criminalizing “Revenge Porn,” SALON (Apr. 6, 2013, 9:00 PM),
http://www.salon.com/2013/04/07/criminalizing_revenge_porn/. Accessed 29 October, 2017
39
Charlotte Laws, I’ve Been Called the “Erin Brockovich” of Revenge Porn, and for the First Time Ever, Here
Is My Entire Uncensored Story of Death Threats, Anonymous and the FBI, XOJANE (Nov. 21, 2013, 11:00
AM), http://www.xojane.com/it-happened-to-me/charlotte-laws-hunter-moore-erin-brockovich-revenge-porn
(on file with the McGeorge Law Review).accessed 16 October, 2017.
40
Revenge Porn by the Numbers, END REVENGE PORN (Jan. 3, 2014), http://www. endrevengeporn.org/
revenge-porn-infographic (on file with the McGeorge Law Review). The Cyber Civil Rights Initiative is a
nonprofit organization dedicated to assisting victims of cyber harassment and advocating for legislation that
addresses online harassment. Our Mission, CYBER CIV. RTS. INITIATIVE, http://www.cybercivilrights.org
(on file with the McGeorge Law Review)accessed 10October,2017.
41
Compromis para 10.1
42
42 USCS § 3002
43
See BladetTromsø and Stensaas v. Norway Judgement, Application no. 21980/93, ECHR 1999-III.
without the consent of a person. 44 In practice, revenge porn law carries a
prohibited under this Act.47 Peaps knowingly shared a nude image with visible
intimate parts depicting Kola and recklessly disregarded a substantial risk that
Peaps shared the nude image of Kola and recklessly disregarded the fact that it
why it was satirical and remained undisputed.50 However, Peaps shared the post
44
N.J. STAT. ANN. § 2C:14-9 (West 2005) (taking effect on Jan. 8, 2004); S.B. 255, 2013-2014 Reg. Sess.
(Cal. 2013); A.B. 462, 2013-2014 Leg. (Wis. 2013); H.B. 64, 2014 Leg., 435 th Sess. (Md. 2014); H.B. 64, 2014
Leg., 435th Sess. (Md. 2014)
45
See N.J. STAT. ANN. § 2C:43-6.
46
Section 3(c), ODPA, Compromis para 10.2
47
Compromis para 10.2.1
48
Compromis para 12.3.6
49
Compromis para 12.3.6
50
Oxford dictionary
without considering the content of the post as a whole, thus attracting penalty
under ODPA.51
legitimately concerns the public. 52 The concept of the ‘public interest’ has
citizens.53
relevance to the public.54 He admitted that his intention was to break the news
by XYZ News.57 Courts have also held the constitutionality of penalties for
51
Compromis para 12.3.4
52
See Daily Times Democrat v. Graham, 162 So.2d 474, 477–78 (Ala. 1964)
53
Public Interest by NSW Ombudsman, November 2010, Reprinted March 2012; Pg no. 1;
https://www.ombo.nsw.gov.au/__data/assets/pdf_file/0014/3713/FS_PSA_16_Public_interest.pdf; accessed 13
November, 2017.
54
Derek E Bambauer, ‘Exposed’ (2014) 98 Minnesota Law Review 2025, 2027, citing Memphis Barker,
‘“Revenge Porn” Is No Longer a Niche Activity which Victimises Only Celebrities — The Law Must
Intervene’, The Independent (online), 19 May 2013 http://www.independent.co.uk/voices/comment/revenge-
porn-is-no-longer-a-nicheactivity-which-victimises-only-celebrities-the-law-must-intervene-8622574.html
.accessed 19 October,2017
55
Compromis para 12.2
56
Compromis para 7.1
57
Compromis para 8.1
accessing intimate media of people taken or distributed without their consent,
intermediaries who host, index and make available content are the most effective
60
points to control. Transmission of information largely depends on
between third parties, including giving access to, and transmitting content. 61
to take place.62
Online Service Providers which can easily remove material as a publisher and attract
penalty, after failing to do so within a reasonable time.63 With the advent of web
58
See, e.g., Michaels v. Internet Entm’t Grp., 5 F. Supp. 2d 823 (C.D. Cal. 1998). See, e.g., Snyder v. Phelps,
131 S. Ct. 1207, 1216 (2011); City of San Diego v. Roe, 543 U.S. 77, 84 (2004); Dun & Bradstreet, Inc. v.
Greenmoss Builders, Inc., 472 U.S. 749, 762 (1985); Time v. Hill, 385 U.S. 374 (1967); N.Y. Times Co., 376
U.S. at 277
59
Derek E Bambauer, ‘Exposed’ (2014) 98 Minnesota Law Review 2025, 2027, citing Memphis Barker,
‘“Revenge Porn” Is No Longer a Niche Activity which Victimises Only Celebrities — The Law Must
Intervene’, The Independent (online), 19 May 2013 http://www.independent.co.uk/voices/comment/revenge-
porn-is-no-longer-a-nicheactivity-which-victimises-only-celebrities-the-law-must-intervene-8622574.html
.accessed 19 October,2017
60
See generally Jack Goldsmith and Tim Wu, Who Controls the Internet? Illusions of a Borderless World
(Oxford University Press, 2006) 70.
61
Organisation for Economic Corporation and Development, The Economic and Social Role of Internet
Intermediaries (April 2010)
62
Mittal Raman and Verma SK, Liability of Internet Providers for Copyright infringement- Legal Dimensions
of Cyberspace (Indian Law Institute, New Delhi), 2004, 147, http://www.cybersmart.in/law-
articles/copyright.htm accessed 11 October, 2017
63
Dr Yeung SauShing Albert v Google Inc [2014] HKCFI 1404 (search engine); Original Press Group Ltd v.
Fevaworks Solutions Ltd [2013] HKFCA 47 (forum); Crookes v. Wikimedia Foundation Inc (2011) 337 DLR
(4TH) 1
services or intermediary platforms, individuals are no longer passive recipients,
gives rise to a separate cause of action in the common law.65 The defence of
C.2Scoops disregarded the fact that the victim had not consented to the publication
of the image.
Scoops became aware of the infringing post the moment it received a takedown
notification when the post was reported on May 2 by Kola’s staff.67 However it
took no action in that regard and took no notice of the potential risk that there
II. Whether prosecution of Peaps and Scoops under the Turtonian IA violates
reputation or rights of others in this case, the reputation of the persons targeted in
64
Page 6, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion
and expression, Frank La Rue, United Nations General Assembly, 16 May 2011.
65
The origin of the rule found in Duke of Brunswick v. Harner(1849) 14 QB 185, recently affirmed in
Loutchansky v. Times Newspaper Ltd(Nos. 2-5)[2002] 1All ER 652 at paras 57,60 and 62, Gutnick, at paras
197, Carter v. BC Federation of Foster Parents Association 2005 BCCA 398atn para 18,
66
Godfrey v. Demon Internet Ltd. [2001] QB 201, para 22(2.4)
67
Compromis para 9.2
68
ICCPR arts 17(1) and 19(3); UDHR art 29(2); ECHR (adopted 4 November 1950, entered into force 3
September 1953) 213 UNTS 1932 arts 8(2) and 10(2); ACHR (adopted 22 November 1969, entered into force
18 July 1978) arts 11(2) and 13(2); ACHPR (adopted 27 June 1981, entered into force 21 October 1986) (1982)
21 ILM 58 art 9(2); HRC, ‘General Comment 34’ (12 September 2011) UN Doc CCPR/C/GC/34 (‘General
Comment 34’) para 21; Recommendation CM/Rec(2014)6 of the Committee of Ministers to Member States on a
Guide to Human Rights for Internet Users (adopted 16 April 2014) para 2
the drawings and texts at issue, constitutes a legitimate aim permitting a restriction
Once the publication is established the publisher was guilty of publishing false
A.1. The act done by Peaps resulted in the infringement of substantial right.
wrongfulness and intent are presumed.73 Peaps firstly disregarded the fact that
69
Case of Palomo Sánchez and others v. Spain, (Applications nos. 28955/06, 28957/06, 28959/06 and 28964/06,
para 57 (see MGN Limited v. the United Kingdom, no. 39401/04, §§ 150 and 155, 18 January 2011).
70
Godfrey v. Demon Internet Ltd [2001] QB 201, 209,212(Morland J) (‘Godfrey’)
71
Pfeifer v Austria,Application No. 12556/03, 15 February 2008
72
Hansard, Defamation Bill, House of Lords (2 April 1996, Lord Mackay LC) col 214
73
National Media Ltd. v Bogoshi 1998 (4) SA 1196 (SCA); Page 161, Private Law and Human Rights:
Bringing Home Rights in Scotland and South Africa, By Visser D P Reid Elspeth.
74
Compromis para 8.3
from a particular named source. 75 Knowledge is awareness and a person is
Peaps shared the photoshopped image and added a caption about Kola’s
professional conduct 77 with the intent to cause harm to her reputation. Since
adversely affected by a post depicting her relationship with a terrorist along with
a caption indicating that she was providing visas to a terror group. 78 Due to this
post, there was hatred amongst people and the protest with demeaning slogans
led to the resignation of Kola on May 10. 79 Not every attack on the good
A.2. The post of Peaps incited violence and damaged the national unity.
In order to conclude that incitement has taken place, Courts must find: (1) the expression is
intended to incite imminent violence (2) it is likely to incite such violence; and (3) there is a
direct and immediate connection between the expression and the likelihood or occurrence of
such violence.81 In legal terms, civil unrest or civil disturbance means acts of violence and
75
G. Chandrasekhar Pillai v G. Raman Pillai, (2 April, 1964) Ker. L.T. 317.
76
Hari Singh Gaur, The penal Law India , 1998
77
Compromis para 8.1, 8.3
78
Taiwan High Court 87 Shang Yee Tzi 7196 Criminal Judgement
79
Compromis para 9.6
80
Nowak, Manfred, United Nations Covenant on Civil and Political Rights: CCPR Commentary (1993), p. 462.
81
Article 19, Op.Cit, Policy Brief, 2012
disorder detrimental to the public law and order.82 The term "civil disorder" is defined as any
public disturbance involving acts of violence by assemblages of three or more persons, which
causes an immediate danger of or results in damage or injury to the property or person of any
other individual.83 On May 2, Peaps posted an image84 which resulted in a protest on May 4
wherein people used slogans from the caption which was added to the image. 85 Fake news
has been known to directly incite violence with devastating consequences. 86 It is the intention
of the act, not the consequences which flow from it, which determines the question of the
Scoops is an intermediary under the IA. Intermediaries are culpable ‘if they know that their
service has been used to invade someone’s privacy, and they are reasonably able to stop the
invasion of privacy, but they choose not to do so. 88 Corporations have a responsibility to
respect human rights and they should act with due diligence to avoid infringing the rights of
individuals.89 One will be considered as the publisher of the material – at least after being
82
Fire Service Response to Civil Unrest, NFPA Responder Forum 2015; pg-2;
http://www.nfpa.org/~/media/files/news-and-research/resources/fire-service/responder-forum/2015-nfpa-
responders-forum-civil-unrest-paper.pdf?la=en; accessed 21 November, 2017
83
18 USC § 232.
84
Compromis para 8.1
85
Compromis para 9.4
86
Kenya political violence highlights urgent need to fight fake news;31 August, 2017;
https://ijnet.org/en/blog/kenya-political-violence-highlights-urgent-need-fight-fake-news; accessed 19 October,
2017
87
State v. Rosa, (06 January, 1999)72 N. J. L. 462, 62 Atl. 695.
88
Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report No
108 (2008) vol 1, 88–90; Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era,
Report No 123 (2014) 59–62 [4.1]–[4.14] (‘ALRC Serious Invasions of Privacy Report’).
89
Page 21, Report of the Special Rapporteuron the promotion and protection of the right to freedom of opinion
and expression, Frank La Rue, United Nations General Assembly, 16 May 2011.
notified by the claimant at some point’. 90 To prevent further access to the offending
deterrent effect on further infringement, action needs to be taken against the ISPs. 91 Internet
intermediaries can be held liable for any third party content relating to their services when
they specifically intervene in the content and they have technical capacity to do that. 92 Host is
a publisher where material is uploaded to equipment under its control and the material is ‘on
B.1 Scoops received a financial benefit directly attributable to the infringing activity.
Online platform providers such as YouTube have monetised some user generated
content by selling advertising around popular channels and users. 94 Internet service
providers have built business models that depend on high volumes of use, therefore,
they stand to gain direct financial benefits from infringements.95 The infamous post of
Peaps made Scoops more popular and accessible since the post reached 21,000 shares
and 145,000 views96 which on an ordinary course would lead to more advertisements on
its platform which provides it a financial benefit and all of this resulted directly from the
infringing activity.
90
Davison v. Habeeb [2011] EWHC 3031 (QB), [17] (HHJ Parkes QC) (‘Davison’)
91
Ryder Rodney D, Guide to Cyber Laws (Information Technology Act, 2002 E-commerce, Data Protection &
the Internet) 1stedn (Wadhwa Nagpur Law and [practice, New Delhi), 2001, 551-562.
92
JOINT DECLARATION ON FREEDOM OF EXPRESSION AND “FAKE NEWS”, DISINFORMATION
AND PROPAGANDA ; Pg no – 3;
http://www.ohchr.org/_layouts/15/WopiFrame.aspx?sourcedoc=/Documents/Issues/Expression/JointDeclaration
3March2017.doc&action=default&DefaultItemOpen=1; accessed 11 November, 2017
93
Godfrey v. Demon Internet Ltd.[2001] QB 201, 209, 212 (Morland J) (‘Godfrey’)
94
But see, Robert Burrell and Kimberlee Weatherall, ‘Before the High Court Providing Services to Copyright
Infringers: Roadshow Films Pty Ltd v iiNet Ltd’ (2011) 33 Sydney Law Review 801, 820.
95
But see, Robert Burrell and Kimberlee Weatherall, ‘Before the High Court Providing Services to Copyright
Infringers: Roadshow Films Pty Ltd v iiNet Ltd’ (2011) 33 Sydney Law Review 801, 820.
96
Compromis para 9.2
B.2 Scoops was aware that material infringed the national laws.
Internet intermediaries will be held liable if they continue to make content posted
by third parties available once it has been brought to their attention.97 An Internet
or not that the material was defamatory.98 The notice of complaint only has to
notified, the most sensible course is usually to remove, since it may be unclear
contributing’ to the infringing conduct of another and must attract liability.101 The
with its awareness of that publication and failure to remove it within a reasonable
period. 102 The moment Kola’s staff reported the image and a takedown
notification was sent to Scoops it became aware of the infringing activity. 103
Therefore, now Scoops was under an obligation to remove the post but it did not.
B.3 Scoops did not remove the post expeditiously upon receipt of the
notification.
97
Trkulja v Google Inc [No 5] [2012] VSC 533 (12 November 2012); Trkulja v Yahoo! Inc LLC [2012] VSC 88
(15 March 2012); Duffy v Google Inc (2015) 125 SASR 437; Google Inc v Trkulja [2016] VSCA 333 (20
December 2016).
98
Clause 8. For full text see http://www.services.parliament.uk/bills/2012-13/defamation.html .
99
Riordan Jaani, The Liability of Internet Intermediaries, First Edition, 2016, page – 249, para 8.144
100
Riordan Jaani, The Liability OF Internet Intermediaries, First Edition, 2016, page – 251, para – 8.151
101
Fonovisa v Cherry Auctions, http://www.eff.org/Legal/ISP_liability/OPG_v_Diebold/ accessed at..............
102
Bryne v. Deane(1937) 1 KB 818
103
Compromis para 9.2
ISP can avoid liability only if it expeditiously removes the content in question
when made aware of it.104 Scoops took no action for removing the image until
a legal notice was sent to it by Kola’s legal counsel, even after which it took
fifty hours to remove the post.105 This removal is not expeditious enough since
substantial harm had already been done and as a result she had to resign.106
Safe harbour is available for intermediaries, provided that they take down the
content in question promptly after notification. 107 The OSP must, “upon
disable access to, the material that is claimed to be infringing.” 108 If this
104
E/Commerce Directive, 2000/31/EC, art. 14.
105
Compromis para 9.2
106
Compromis para 9.6
107
Digital Millenium Copyright Act, Section 512.
108
17 U.S.C. § 512(c)(1)(A)-(C) (emphasis added)
prolonging artificiality in the law.110 If the language in legislation is capable of
more than one interpretation we ought to discard the more natural meaning if
General-intent crimes require only a showing that the defendant intended to do the
act prohibited by law, not that the defendant intended the precise harm or the
communication is made knowingly with the intent to incite civil unrest, hatred or
damage the national unity.114 IA establishes a conduct crime115 just like the
offence of genital exposure created by the SOA 2003, s. 66, which is a conduct
crime, because it requires proof only that D exposed himself and intended this to
110
Inland Revenue Commissioner v J.B. Hodge & C.O (Glassgo Ltd.) 1961, WLR 92
111
Gill v Donald Humberstone & Co. Ltd. 1963 1 WLR 929.
112
Uttar Pradesh Bhudan Yagn Samiti v Brij Kishore
113
Best Practices in Proving Specific Intent and Malice. What Can Civil and Criminal Litigators Learn from
One Another? At Section Annual Conference(9-11 April, 2014); Pg-2;
https://www.americanbar.org/content/dam/aba/administrative/litigation/materials/2014_sac/2014_sac/best_pract
ices.authcheckdam.pdf; accessed 14 October, 2017.
114
Section 1(b), IA, Compromis para 11.2
115
Section 1(b), IA
116
http://global.oup.com/booksites/content/0199275297/chap_1
Dissemination of false information is no human right.117 One’s freedom of expression
can clash with another’s exercise of the equally important rights.118 Paragraph 3 lists the
first of the legitimate grounds which is respect for the rights or reputation of others.119
The limitations in the interests of national security, public safety or the economic well-
being of the country, for the prevention of disorder or crime, for the protection of the
rights and freedoms of others, are provided under the international law.120
a. The restrictions laid down in Section 1(a) of IA are in consonance with the
The restriction on freedom of expression pursues the legitimate aim of protecting the
reputation and rights of others.121 In the present case, the interference had been “prescribed
by law” and pursued a legitimate aim, namely the protection of the reputation or rights of
others.122
b. Article 19 of ICCPR provides the same restriction as laid down under Section 1(b)
of IA.
A state can interfere with expression for the prevention of disorder. 123 The state
could move against the expression in the interest of preventing disorder. 124 ‘Public
117
Reynolds v. Times Newspaper Ltd, [2001] 2 AC 127, 238 (Lord Hobhouse)
118
Page 606, The International Covenant on Civil and Political Rights, Cases, Materials and Commentaries,
Sarah Joseph and Melissa Castan, Third ed. 2013
119
See communication No. 937/2000/Svetik v. Belarus. Views adopted on 8 July, 2004
120
The standard approach under articles 8 – 11 echr and article 2 echr ; Page No-1;
http://ec.europa.eu/justice/news/events/conference_dp_2009/presentations_speeches/KORFF_Douwe_a.pdf;
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121
Delfi AS v. Estonia, Application No. - 64569/09, para - 63
122
Section 1(a), IA, Compromis para 11.2
123
Chorherr v. Austria A 266- B (1993)..p 385
124
Autronic v. Switzerland, A 178 (1990); Groppera Radio AG v. Switzerland A 173 para 70 (1990)
order’ limitations on Article 19 rights include prohibitions on speech which may
incite crime, violence or mass panic.125 Laws which allow states to limit free speech
to protect public order are legitimate.126 The prevention of disorder was one of the
communication of false information with the intent to incite civil unrest, hatred, or
Any restrictions need to be necessary in a democratic society 131 and the state
125
Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 465.
126
Freedom of Expression and Public Order by Paul Daudin Clavaud, journalist and expert in media and
communications, ESJ Pro, and Toby Mendel, Executive Director, Centre for Law and Democracy, co-authors.
Page 24, http://unesdoc.unesco.org/images/0023/002313/231305e.pdf; accessed 26 October, 2017.
127
Janowski v. Poland, Application No. 25716/94 , Para – 25
128
JOINT DECLARATION ON FREEDOM OF EXPRESSION AND “FAKE NEWS”, DISINFORMATION
AND PROPAGANDA; pg-2;
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3March2017.doc&action=default&DefaultItemOpen=1; accessed 11 November, 2017
129
Compromis para 11.2, Section 1(b), IA(2006)
130
Article 19 (3)(b), ICCPR
See Sunday Times v. UK (No. 2), Series A No. 217, 26.11.1991, para. 50; Okçuoğlu v. Turkey, No.
131
133
Case of SAADI v. The United Kingdom (Application No. 13229/03), para 54
a. There is a pressing social need for the enactment of this Act.
the election and civil unrest took place. 136 There was an urgent need for the
for the publication of erroneous factual material is to create some degree of fear
134
The exceptions to Articles 8 to 11 of the European Convention on Human Rights(Human Rights File No-15)
Page 14, http://www.echr.coe.int/LibraryDocs/DG2/HRFILES/DG2-EN-HRFILES-15(1997).pdf; accessed 19
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135
Compromis para 11.1
136
Compromis para 11.1
137
Compromis para 11.1
138
Page 606, The International Covenant on Civil and Political Rights, Cases, Materials and Commentaries,
Sarah Joseph and Melissa Castan, Third ed. 2013
139
See New York Times Co. v. Sullivan, 376 U.S. 254,279 (1964); L. Tribe, American Constitutional Law 710-
24 ( 1978)