ram manohar lohiya national law university - applicant

OXFORD INDIA MEDIA LAW MOOT COURT COMPETITION, 2011

IN THE UNIVERSAL FREEDOM OF EXPRESSION COURT OF THE UNIVERSAL

COURT OF HUMAN RIGHTS

OpenBemidia and Others

Applicants

v

The Republic of Bemidia

Respondents

MEMORANDUM FOR THE APPLICANTS

TEAM CODE: 18A

Arguments advanced: 4995 words

i

-Memorandum for Applicant-

TABLE OF CONTENTS

LIST OF ABBREVIATIONS ......................................................................................................... iii

LIST OF AUTHORITIES .............................................................................................................. vii

STATUTES ............................................................................................................................. vii

CASE LAWS ......................................................................................................................... viii

BOOKS .................................................................................................................................. xii

JOURNAL ARTICLES ............................................................................................................. xii

OTHER ARTICLES ............................................................................................................... xiii

MISCELLANEOUS ................................................................................................................. xiv

MISCELLANEOUS BOOKS ..................................................... Error! Bookmark not defined.

STATEMENT OF FACTS ............................................................................................................ xvi

STATEMENT OF JURISDICTION ................................................................................................ xix

QUESTIONS PRESENTED ........................................................................................................... xx

SUMMARY OF ARGUMENTS .................................................................................................... xxi

ARGUMENTS ADVANCED ........................................................................................................... 1

I. THE GOVERNMENT REQUIREMENTS AS SPECIFIED UNDER THE INTERNET

RESPONSIBILITY ACT, 2011 CONTRAVENE ARTICLES 12, 19 AND 20 OF THE UDHR ......... 1

I.1 The requirement to disclose user details to the government leads to an indirect

infringement on the right to privacy of the users. ............................................................... 2

I.2 The IRA, 2011 constitutes a prior restraint. .................................................................. 3

ii


I.3 Prior restraint and the restrictions on the rights of association and privacy by the

impugned legislation do not fall within the purview of reasonable restrictions by the

State. ................................................................................................................................... 5

I.4 The requirement to disclose user details to the government curbs the freedom to

engage in expression anonymously thereby indirectly also affects the right of association

of the users. ......................................................................................................................... 9

I.5 The stringent verification procedures are an over-breadth of law. ............................. 10

II. The amended definition of military secrets violates the right to freedom of speech and

expression under Article 19 of UDHR ................................................................................. 11

II.1 Restrictions on Publication of Location Information suffers from over breadth. ...... 12

II.2 Publication of Location Information of military in public accessible areas is not a

military secret. .................................................................................................................. 14

III. The impugned contents of the website openbemidia are not privacy intrusive and the

First Family Privacy Act is violative of Article 19 of the UDHR.......................................17

III.1 There has been No Invasion of Right to Privacy under Article 12 of UDHR ......... 17

III.2 Prior Restraint imposed by the First Family Privacy Act is violative of the Right to

Freedom of Speech and Expression as guaranteed under Article 19 of the UDHR. ........ 20

III.3 Restrictions on Publication of Private Information do not meet the three part test .. 21

III.4. The executive order to delete the contents of the Carla Tracker, Talia Tracker and

Daria Tracker Forums should not stand. .......................................................................... 23

PRAYER ................................................................................................................................. xxiv

iii


LIST OF ABBREVIATIONS

INTERNATIONAL AND REGIONAL TREATIES AND TREATY BODIES

ACHPR: (African Charter) African Charter on Human and Peoples’ Rights

ACmHPR: (African Commission) African Commission on Human n and Peoples’ Rights

ACHR: (American Convention) American Convention on Human Rights

ADRDM: (American Declaration) Conference on Security and Cooperation in Europe

CSCE: European Community

ECHR: (European Convention) European Convention on Human Rights

EctHR: (European Court) European Court of Human Rights

EcmHR: (European Commission) European Commission of Human Rights

ECJ: European Court of Justice (EC Court)

HRC: (Committee) UN Human Rights Committee

iv


IACmHR: (Inter-American Commission) Inter-American Commission on Human Rights

IACtHR: (Inter-American Court) Inter-American Court of Human Rights

ICCPR: (International Covenant) International Covenant on Civil and Political Rights

OAS: Organization of American States

OAU: Organization of African Unity

OP: (Optional Protocol) First Optional Protocol to the ICCPR

UDHR: (Universal Declaration) Universal Declaration of Human Rights

UN: United Nations

EU: European Union

CASE REPORTERS

AC: Appeal Cases (includes cases of Privy Council, House of Lords and Court of Appeal)

AIR: All India Reports

v


ALJR: Australian Law Journal Reports

D&R: Decisions and Reports (of the EcmHR)

ECR: European Court (of Justice) Reports

EHRR: European Human Rights Reports (Strasbourg)

HRLJ: Human Rights Law Journal

LR: Law Reports

LRC: Law Reports of the Commonwealth (London, Butterworths)

Common L Bull: Commonwealth Law Bulletin

SA: South Africa Law Reports

SCR: Supreme Court Reports

WLR: Weekly Law Reports

EWCA: England and Wales Court of Appeal

COURT ABBREVIATIONS

vi


CA: Court of Appeal

CC: Constitutional Court

FCC: Federal Constitutional Court (Germany)

HC: High Court

SC: Supreme Court

MISCELLANEOUS ABBREVIATIONS

NGO: Non-governmental organization

Ors: Others

OECD: Organisation for Economic Co-operation and Development

HEW: Department of Health Education and Welfare

IRA: Internet Responsibility Act

vii


LIST OF AUTHORITIES

STATUTES American Convention on Human Rights, 1969 20

Convention for the Protection of Human Rights and Fundamental

Freedoms (European Convention on Human Rights, as amended)

(ECHR)

02,12,13

International Covenant on Civil and Political Rights (adopted 16

December 1966, entered into force 23 March 1976) 999 UNTS 171

(ICCPR)

02,12

Official Secrets Act 1923 14

Official Secrets Act 1989 14

The Constitution Act of Finland 2000 02

The Constitution of Argentina 1853 02

The Constitution of Belgium 1831 02

The Constitution of Brazil 1988 02

The Constitution of India 1950 02,12

The Constitution of United States of America 1788 02,12

Universal Declaration of Human Rights (adopted 10 December

1948 UNGA Res 217 A(III) (UDHR)

01, 02, 12, 18

viii


CASE LAWS UNITED STATES

Abernathy v Thornton 83 So 2d 235 (1955)………………………………………….18

Baby Tam & Co, Inc v City of Las Vegas 154 F3d 1097 (1958). .................................. 4

Bantam Books, Inc v Sullivan 372 US 58 (1963). ...................................................... 20

Carroll v Princess Anne 393 US 175 (1968) ............................................................... 20

CBS, Inc v Davis 510 US 1315, 1317 (1994). ............................................................... 5

Cefalu v Globe Newspaper Co 444 US 1060 (1980). .................................................. 18

Dempskey v National Enquirer 702 F Supp 927 (1988)..............................................18

Dora v Frontline Video, Inc. (1993)15 Cal App 4th 536…..…………………….…..19

Frazier v Southeastern Pennsylvania Transportation Authority 785 F 2d 65

(1986)………………………………………………………………………………...19

Figured v Paralegal technical Services 231 NJ Super 251 (App Div 1989)...............18

Fogel v Forbes Inc 500 F Supp 1081 (1980)...............................................................18

Forster v Manchester 189 A 2d 147(1963)..................................................................18

Gooding v Wilson 405 US 518 (1972) ......................................................................... 13

Katz v United States 389 US 347 (1967). ...................................................................... 2

Jacova v Southern Radio and Television Co 83 So 2d 34 (1955)................................18

Jarrett v Butts 379 SE 2d 583 (1989)...........................................................................18

Laird v Tatum 408 US 1 (1971). .................................................................................... 5

Machleder v Diaz 801 F 2d 46 (1986)…………………………………………….....19

Mark v Seattle Times 635 P 2d 1081 (1981)................................................................18

McIntyre v Ohio Elections Commission 514 US 336. ................................................... 9

Munden v Harris 153 Mo App 652, 134 S WV 1076 (1911) ...................................... 18

ix


Near v Minnesota 283 US 697(1931) ....................................................................... 4,21

Nebraska Press Ass'n v Stuart 427 U.S. 539 (1976) ................................................ 3,21

New York Times Co v United States 403 US 713 (1971) ........................................ 12,20

Organization for a Better Austin v Keefe 402 US 415 (1971). .................................... 12

Pike v Bruce Church,Inc 397 US 137 (1970). ............................................................. 11

Pittsburgh Press Co v Human Rel 413 US 376 (1973) ............................................... 20

Reno v ACLU 521 US 844 (1997) .................................................................................. 4

Schenck v United States 249 US 47 (1919). ............................................................. 8,15

Shelton v Tucker 364 US 479 (1960) ................................................................... 6, 9, 22

Speiser v Randall 357 US 513 (1958) ........................................................................... 4

Talley v California 362 US 60 (1960). .......................................................................... 9

Taucher v Ranier 237 F Supp 2d 7, 12 (DDC 2002). ................................................... 4

Turner v General Motors Corporation 750 SW2d 844 (1979)....................................18

US v Vazquez 31 F Supp 2d 85 (1998) .................................................................. 18,19

Uranga v Federated Publications Inc 67 P3d 29 (2003) ............................................. 19

Wilkins v National Broadcasting Co 71 Cal App 4th 1066 (1999)...............................18

Watchtower Bible & Tract Soc'y of NY Inc v Vill of Stratton 536 US 150 (2002). ...... 9

INDIA

Brij Bhushan v State Of Delhi AIR 1950 SC 129. ....................................................... 12

Express Newspapers Pvt Ltd v Union Of India AIR 1958 SC 578 .............................. 12

Kharak Singh v State of Uttar Pradesh AIR 1963 SC 129. ........................................... 8

Life Insurance Corporation of India v Professor Manubhai D Shah (1992) 3 SCC

6371.............................................................................................................................. 20

Ram Bahadur v State of Bihar AIR 1975 SC 223 ....................................................... 12

x


S Rangarajan v P Jagjevan Ram and Ors (1989) 2 SCC 574............................15,20,22

Sakal Papers (P) Ltd v Union Of India AIR 1962 SC 305 .......................................... 12

Sama Abdulla v. State of Gujarat AIR 1996 SC 569. .................................................. 14

Secretary, Ministry of Information and Broadcasting, Govt of India and others v

Cricket Association of Bengal AIR 1995 SC 1236 ...................................................... 20

UNITED KINGDOM

Attorney-General v Greater Manchester Newspapers Ltd [2001] All ER (D) 32. ...... 23

Campbell v MGN [2004] UKHL 22. ...................................................................... 19, 21

R. v. Shayler [2002] UKHL 11……………………………….…….......…………….12

ECHR

Chorherr v Austria (1993) 17 EHRR 358...................................................................... 5

Copland v UK (2006) 43 EHRR 253 ............................................................................. 8

Douglas v Hello! [2005] EWCA Civ 595. ................................................................... 19

Gaweda v Poland 14 March 2002, App no 26229/95 (ECHR, 14 March 2002) ........ 13

Handyside v United Kingdom (1976) 1 EHRR 737. ................................................ 6, 23

Herczegfalvy vAustria App no 10533/83 (ECHR,24 September 1992) ....................... 6

Hilton v UK (1981) 3 EHRR 104 ................................................................................... 8

Jersild v Denmark (1995) 19 EHRR 1 ......................................................................... 23

Klass v Federal Republic of Germany (1979) 2 EHRR 214 .......................................... 8

Kokkinakis v Greece (1993) 17 EHRR 397. .................................................................. 5

Kruslin v France (1990) 12 EHRR 547 ......................................................................... 7

Lingens v Austria (1986) 8 EHRR 407. ...................................................................... 6,8

Malone v UK (1984) 7 EHRR 14. .................................................................................. 7

xi


Markt intern Verlag GmbH and Klaus Beermann v Germany A 164 (1989) 12 EHRR

161................................................................................................................................ 13

Muller v Switzerland (1991) 13 EHRR 212 ................................................................ 13

Observer and Guardian v United Kingdom (1991) 14 EHRR 153 ....................... 14, 21

Olsson v Sweden (1988) 11 EHRR 259 ................................................................... 6, 12

Organization for a Better Austin v Keefe 402 US 415 (1971). .................................... 13

Peck v UK (2003) 36 EHRR 41. .............................................................................. 7, 19

Silver and Others v United Kingdom 5 EHRR 347 ...................................................... 6

The Sunday Times v United Kingdom (1979) 2 EHRR 245. .................................... 6, 13

Thorgeirson v Iceland (1992) 14 EHRR 843 ............................................................... 21

Von Hannover v Germany [2004] ECHR 294 ...................................................... 17, 22

CANADA

Canadian Pacific Ltd v R [1995] 2 SCR 1031.............................................................12

R. v Oakes [1986] 1 S.C.R. 103……………………………...…………………....7, 22

Silber v BCTV (1985) 69 BCLR 34 (SC) ……………………………………...….....18

SRI LANKA

Perera v Attorney General, [1992] 1 SLR 199 (215) .................................................... 6

ANTIGUA AND BARBUDA

Hector v Attorney General of Antigua and Barbuda (1990) 2 AC 312.........................6 ZIMBABWE Nyambirai v National Social Security Authority and Anr 1995 (9) BCLR 1221...........7

INTER AMERICAN COURT OF HUMAN RIGHTS

xii


Martorell v Chile Report no 11/96 Case 11.230 (IACtHR, March 13 1987) .............20

Pathfinder v Grenada Report no 11/96 Case 10.325 (IACtHR , March 1 1996).......20

BOOKS

1. DJ Harris, M O'Boyle and C Warbrick, The European Convention

of Human Rights (Butterworths , London 1995) 373

1, 11

2. Ferdinand D Schoeman, Privacy and Social Freedom (Cambridge

University Press, Cambridge 1992) 115-35.

2

3. M Janis, R Kay and A Bradley, European Human Rights Law:

Text and Materials (Clarendon Press, Oxford 1995) 157

1

4. Michael S Sweeney, The Military and the Press: An Uneasy Truce

(Evanston, Illinois: North-western University Press, 2006), 166-7

16

5. Robertson Geoffrey, Media Law (5th edn, Thomson Sweet &

Maxwell 2007) 45

17

6. Stramer, K, European Human Rights Law (London Legal Action

Group, London 1999)

7

JOURNAL ARTICLES 1. Daniel J Solove, ‘A Taxonomy of Privacy’, (2006) 154 U. Pa. L.

Rev. 477

2

2. Daniel J Steinbock, ‘National Identity Cards: Fourth and Fifth

Amendment Issues’ (2004) 56 Fla LRev 697, 706.

10

3. Donald J Karl ‘State Regulation of Anonymous Internet Use after 10

xiii


ACLU of Georgia v Miller’ (1998 ) 30 Ariz St LJ 513

4. Evan Wallach, ‘Executive Powers of Prior Restraint Over

Publication of National Security Information: The UK and the USA

Compared’, 32 Int'l & Comp LQ 424 (1983) 426

5

5. Kupferman & O'Brien, Motion Pictures and the First Amendment,

6o Yale LJ 696 (1951).

4

6. Susan Freiwald, ‘Uncertain Privacy: Communication Attributes

After the Digital Telephony Act’ 69 S Cal L Rev 949 (1996).

3

OTHER ARTICLES 1. Adam Levine, ‘Gates: Leaked Documents Don't Reveal Key Intel,

But Risks Remain’ (CNN, 16 October 2010) <

http://articles.cnn.com/2010-10-

16/us/wikileaks.assessment_1_julian-assange-wikileaksdocuments?_s

=PM: US> accessed 17 October 2011.

15

2. Andrew Smith, ‘Wikileaks Website Publishes Classified Military

Documents from Iraq’ (CNN, 22 October 2010) <http://

edition.cnn.com/2010/US/10/22/wikileaks.iraq/> accessed 1

November 2011 .

15

3. Anthony Levine, ‘Wikileaks Iraq War Documents: The Key Issues’

(BBC NEWS, 25 October 2010) <http://www.bbc.co.uk/news/world-

us-canada-11617892> accessed 23 October 2011.

15

4. Ashley Fantz, ‘New Massive Release to Put Iraq War and Wikileaks

in Spotlight’ (CNN, 22 October 2010) <http://

15

xiv


edition.cnn.com/2010/US/10/22/wikileaks.iraq.documents/index.html

? Iref=mpstoryview.> accessed 26 September 2011).

5. Deepa A, ‘Presumed guilty, secretly' (India Together 14 Jul 2005)

<http://www.indiatogether.org/2005/jul/rvw-gilani.htm> accessed 1

November 2011.

14

6. Michael Mandelbaum, ‘Vietnam: The Television War’ (1982) (111)

<http://www.jstor.org/stable/1903610> accessed 25 October 2011.

16

7. Sarah C Sullivan, ‘A Closer Look at Wikileaks' Past, Future’ (PBS

NEWSHOUR, 27 July 2010) <http://

www.pbs.org/newshour/updates/military/july-dec10/wikileaks_07-

26.html.> accessed 3 October 2011.

16

8. Sarah Jacob, ‘Ushahidi: Using Social Media to Track Crises’ (The

Documentalist 30 December 2009)

<http://crlgrn.wordpress.com/2009/12/30/ushahidi-using-social-

media-to-track-crises/ > accessed 18 October 2011.

16

MISCELLANEOUS 1. EU Council Directive (EC) 95/46/EC, EU Data Privacy Directive

[1995] OJ (L281).

3

2. Electronic Privacy Information Centre, ‘Data Retention’<

http://www.epic.org/ privacy/intl/data_retention.html> accessed 8

November 2011.

2

3. Electronic Privacy Information System, ‘Records, Computers and the

Rights of Citizens Report of the Secretary's Advisory Committee on

Automated Personal Data Systems, July 1973’

3

xv


<http://www.epic.org/privacy/hew1973report> accessed 31 October

2011.

4. EU Council Directive (EC) 95/46/EC, EU Data Privacy Directive

[1995] OJ (L281).

3,4

5. Federal Financial Institutions Examination Council, ‘OCC Bulletin:

Certification Authority Systems: Guidance for Bankers and

Examiners, OCC 99-20, A-1’ (1999)

<http://www.ffiec.gov/ffiecinfobase/resources/info_sec/occ-

bul_1999_20_ certificate_authority_guidance.pdf> accessed

31October 2011.

10

6. Organisation for Economic Co-operation and Development, ‘OECD

Guidelines on the Protection of Privacy and Transborder Flows of

Personal Data’ <http://www.oecd.org/document/18/0,

3343,en_2649_201185_1815186_1_1_ 1_1,00.html> accessed 31

October 2011.

3

7. UNCHR, ‘Johannesburg Principles on National Security, Freedom of

Expression and Access to Information’ (1 October 1995) UN Doc

E/CN 4/1996/39.

16

8. Restatement (Second) of Torts 18

xvi


STATEMENT OF FACTS

1. The Republic of Bemidia is a land locked country, with approximately 30 million

inhabitants’ form two major ethnic groups including the Diryen and the Mondahis.

2. Bemidia has two major parties, the Nationalist Party and the Federalist Party, which

split largely along ethnic lines amongst the Diryens and Mondahis respectively.

However, the Nationalist Party has always been in control of the ,while Mondahis

constitute a wealthy merchant class envied by the Diryens.

3. Vislio Luscon is their long standing Prime Minister, whom Diryens holds in very high

regard. The activities of the entire Luscon family attract attention among the national

and sometimes even the international press.

4. A government legislation overhauling the tax system resulted in substantial transfer

of resources from the wealthier (Mondahis) to the more populous (Diryens)

causing grave unrest amongst Mondahis.

5. A small militant group of Mondahis, Mondahi Liberation Movement (MLM), began

violent operations against Diryen centres including bombings of bombings in and

around Nationalist Party offices. The government mobilized military forces prevent

further attacks.

6. A group of Mondahis started a website called OpenBemidia, which is hosted in

Bemidia. Built on the Ushahidi platform, OpenBemidia allows any registered user to

start a “Tracker” forum allowing varied on a plethora of topics.

7. OpenBemidia has a basic registration requirement to post to the site. Various

identifying information, including name and address, is requested, only an email

address is required to sign up for an OpenBemidia account.

xvii


8. One of the Tracker forums is called Military Tracker, started by someone with the

username FreeBemidia. Some posts on this forum document a military presence in a

particular location. Several posts accuse the military of improprieties.

9. The site provides very good real time information, about location of the security

forces in public places. Government attempts to prevent bombing attacks failed, even

though the government was acting on solid information. In both instances, bombs

went off instead at locations from which security forces had just exited. Although the

government has no direct proof of a causal connection, it suspects that the MLM is

using Military Tracker to find targets and evade detection.

10. The law prohibiting publication of “military secrets” was recently amended to clarify

the term “military secrets” to include “any information about the location of any

military personnel acting in an official capacity.”

11. The government has also enacted a new law, the Internet Responsibility Act:

a) Any entity that operates a website must collect and verify the name and

contact information of a “user” of the website, before allowing that person to

“use” the website.

b) Regulated entities must disclose to the government, upon request: “the name

and contact information of any user of the website, any information about the

physical location, past or present, of a user of the website, and any other

information about a user of the website, except the contents of a private

communication of such a user.”

c) The government may require that the existence and fulfilment of any request

made under this law be kept secret for up to 180 days.

12. The government has demanded that OpenBemidia obtain and disclose the identity of

FreeBemidia, as well as the identities of the users on a specific watch list.

xviii


13. The government suspects that members of the MLM are using the MLM forum, but

have set their posts to be private. The government has demanded that OpenBemidia

disclose the complete list of users of this forum, as well as the date, time, and location

of each post made by each such user.

14. There exist other tracker forums like, Vislio Tracker, Carla Tracker, Talia Tracker,

and Daria Tracker. These forums contain photographs of the Prime Minister and his

family in public places and each of the photographs are accompanied with a

geolocation tag.

15. Citing security concerns, the government enacted, the First Family Privacy Act,

prohibiting the publication of “private information” about the Prime Minister’s family

(but not about the Prime Minister himself), without the individual’s (or guardian’s)

prior written consent. The law specifically excludes “location information whose

accuracy permits only a determination of the city or other larger geographic region in

which the person is located.” The law also specifically excludes “location information

that is more than 90 days old at the time it was published.”

16. Under the authority of the First Family Privacy Act, the government has demanded

that OpenBemidia delete every post in the three tracker forums.

17. OpenBemidia, on its own behalf and on behalf of its users, has challenged the

requirements under the above laws on the grounds under, Articles 12, 19, and 20 of

the UDHR.

xix


STATEMENT OF JURISDICTION

The parties respectfully submit to the jurisdiction of the Universal Freedom of Expression

Court. The Applicants have approached the court after exhaustion of all the local remedies,

the parties are compelled to challenge the law at this Hon’ble Court on the grounds that the

law violates the convention rights under the UDHR.

xx


QUESTIONS PRESENTED

The following questions have been presented before this Hon’ble court for its

determination:

I. Whether the Government requirements under the Internet Responsibility Act are

valid requirements as per Articles 12, 19 and 20 of the UDHR?

II. Whether the amended definition of military secrets violates the right to speech

and expression under Article 19 of UDHR?

III. Whether the impugned contents of the website OpenBemidia are privacy intrusive

and whether The First Family Privacy Act is violative of Article 19 of the

UDHR?

xxi


SUMMARY OF ARGUMENTS

I. THE GOVERNMENT REQUIREMENTS AS SPECIFIED

UNDER THE INTERNET RESPONSIBILITY ACT, 2011

CONTRAVENE ARTICLES 12, 19 AND 20 OF THE UDHR

The mandatory verification requirement on the websites regarding verification of contact

information of users before allowing use of a website is not a valid requirement as it

imposes a logistically and economically impossible liability on the websites and poses a

severe economic burden on such websites The legislation also imposes a requirement to

disclose information about the users whenever required by the government, this is not a

valid requirement as Government’s actions of procuring such information on online

activity eventually leads to a complete loss of all Personally Identifiable Information

furnished online. The law has no provision for obtaining consent prior to such acquisition.

The law also has a chilling effect on the expression of the users as it makes website

owners criminally and furthermore requires disclosure of information of the users

whenever required, there is constant threat of surveillance and sanction which invariably

shall quell expression. The law also violates the right to associate anonymously, a right

which has gained recognition from the courts as the law seeks disclosures of member

identities to an association. The restriction also fails to meet the three part test to

determine legitimacy of such restriction of a convention right, so it can be established by

the applicants that the Internet Responsibility Act has instituted unconstitutional

interference without justification and hence, has violated the stated convention rights.

xxii


II. THE AMENDED DEFINITION OF MILITARY SECRETS VIOLATES

THE RIGHT TO FREEDOM OF SPEECH AND EXPRESSION UNDER

ARTICLE 19 UDHR

In the instant matter, the amended definition of the term “military secrets” includes “any

information about the location of any military personnel acting in an official capacity”

and as such cannot be published. The amended definition is vague and ambiguous and

imposes liability on even legitimate expression of location information which could have

no harm to the Security of the state. The restriction does not limit itself only to expression

posing a clear and present danger. Further the amended definition limits expression of

location information already in the public sphere, expression of which could in no way

impede national security. The definition in its application is against basic tenets of

wartime and crisis reporting, both of which have gained global acceptance as valid

expression. In light of the aforesaid arguments it is submitted that the amended definition

of military secrets violates the right to speech and expression under Article 19 of UDHR.

III. THE IMPUGNED CONTENTS OF THE WEBSITE OPENBEMIDIA

ARE NOT PRIVACY INTRUSIVE AND THE FIRST FAMILY PRIVACY

ACT IS VIOLATIVE OF ARTICLE 19 OF THE UDHR

Mr. Vislio Luscon is public figure ‘par excellence’ as he is the Prime Minister of the

Republic of Bemidia. Legitimate public interest in, one who has become a public figure, is

not necessarily limited to the individual. It extends to members of his family as well. By

virtue of being implied ‘celebrities’ owing to relation to the Prime minister, the First family

has a relatively diminished expectation of privacy which was further reduced by the fact that

information published was that which was in a public domain that are open to public view

xxiii


and do not expose any ‘vulnerable and intimate details’ Furthermore, the information

offered by the tracker forums are neither ‘offensive to a reasonable person’, nor ‘too intrusive

and demeaning so as to reveal the person to be in situation of humiliation or embarrassment’.

Moreover, no were made by the members of the First Family to restrict the dissemination of

any information about their lives. The failure to take precautions signifies a waiver of any

rights to privacy. The requirement of obtaining a prior written consent before publication of

pictures imposes a prior restraint. The prior restraint is imposed on all photographs and

information irrespective of the fact whether they are a threat to the security or privacy of the

persons or not, hence such a prior restraint is unjustified. Moreover the legislation fails the

tests of ‘prescribed by law’’ owing to its over breadth and lack of foreseeability. It fails the

test of being necessary in a democratic society as there is no close link between the

expression and the risk of harm as evaluated by the Government. Moreover the order to

remove the existing pictures from the website should be stayed as it will serve no practical

purpose as the photos have been widely circulated all over already.

1


ARGUMENTS ADVANCED

I. THE GOVERNMENT REQUIREMENTS AS SPECIFIED UNDER THE

INTERNET RESPONSIBILITY ACT, 2011 CONTRAVENE ARTICLES

12, 19 AND 20 OF THE UDHR

The rights to freedom of speech and expression1, privacy2 and association3 are the most

universally accepted human rights4 and are central to functioning of a democratic society. 5 The

Internet Responsibility Act, 2011 (hereinafter, ‘IRA’) requires all entities operating websites in

Bemidia to carry out full verification of user details of their users besides other requirements of

furnishing personal information of their users to the government as and when required. 6 This is

a direct attack on the privacy of the users who do not have a choice but to disclose their personal

details to the government if registered with a website, it further leads to a loss of anonymity in

expression which is sometimes essential for exercise of both freedom of speech and expression

and association.

1 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 19. 2 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 12. 3 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 20. 4 M Janis, R Kay and A Bradley, European Human Rights Law: Text and Materials (Clarendon Press, Oxford 1995) 157. 5 DJ Harris, M O'Boyle and C Warbrick, The European Convention of Human Rights (Butterworths, London 1995) 373. 6 Refer Moot Proposition ¶¶ 14(a) -14(b).

2


I.1 The requirement to disclose user details to the government leads to an

indirect infringement on the right to privacy of the users.

Article 12 of the UDHR7 states that no one shall be subjected to arbitrary interference with his

privacy, family, home or correspondence. The privacy of communication is further explicitly

protected under Article 17 of the ICCPR,8 Article 8 of the ECHR9 and under various national

laws.10 Personal information privacy is another aspect of right to privacy which essentially

means controlling access to and dissemination of information about oneself.11 The

aforementioned right of the internet users in Bemidia has been violated by the provisions of the

IRA.12 Government’s use of online activity traceable by law enforcement agencies to institute

data retention requirements leads to a complete loss of all Personally Identifiable Information

furnished online13, the aggregation of which can reveal new facts about the person that he/she

did not expect would be revealed,14 and for which there exists a reasonable expectation of

privacy15, the same can be demonstrated via the use of passwords and ‘private’ settings16 etc.

Further, the IRA calls for disclosure of all possible information of the users except the contents

7 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12. 8 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 17. 9Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 8. 10 The Constitution of United States of America 1788, amendment IV; The Constitution of Argentina 1853, s 18, s 19; The Constitution of Belgium 1831, art 22; The Constitution of Brazil 1988, art. 5; The Constitution Act of Finland 2000, s 8; The Constitution of India 1950, art 21. 11 Ferdinand D Schoeman, Privacy and Social Freedom (Cambridge University Press, Cambridge 1992) 115. 12 Refer Moot Proposition¶ 14. 13 Electronic Privacy Information Centre, ‘Data Retention’< http://www.epic.org/ privacy/intl/data_retention.html> accessed 8 November 2011. 14 Daniel J Solove, ‘A Taxonomy of Privacy’, (2006) 154 U Pa L Rev 477. 15 Katz v United States 389 US 347 (1967). 16 Refer Moot Proposition ¶16.

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of communication17, not only is the aggregate of all this non-content information dangerous but

it is also a well established fact that the lines between content/non content are extremely blurred

on the internet. 18 Various examples of regulations to control this unbridled infringement by the

government into the private information of users can be found in the provisions of the EU

Privacy Directive19, OECD Guidelines for Data Protection20, German Data Protection Laws and

the Federal Data Privacy Act, 197421 which incorporates the privacy guidelines laid down in the

HEW Report. 22 All these legislations make it imperative to obtain user consent or at least give

the user a warning before procuring his/her information none of which is being done in the

instant case.

I.2 The IRA, 2011 constitutes a prior restraint.

Prior Restraint shuts off communication before it takes place and is likely to bring under

government scrutiny a far wider range of expression.23 The IRA24 in this case subjects the

user of any website in Bemidia to a range of stringent verification procedures and other

demands before allowing the user to use the internet as a medium to express his/her views.

The First Amendment of the United States Constitution encompasses a clear prohibition

17 Refer Moot Proposition¶ 14b. 18 Susan Freiwald, ‘Uncertain Privacy: Communication Attributes After the Digital Telephony Act’, 69 S Cal L Rev 949 (1996). 19 EU Council Directive (EC) 95/46/EC; EU Data Privacy Directive [1995] OJ (L281). 20 Organisation for Economic Co-operation and Development, ‘OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data’ <http://www.oecd.org/document/18/0,3343,en_2649_201185_1815186_1_1_ 1_1,00.html> accessed 31 October 2011. 21Federal Data Protection Act 1974. 22Electronic Privacy Information System, ‘Records, Computers and the Rights of Citizens Report of the Secretary's Advisory Committee on Automated Personal Data Systems, July 1973’ <http://www.epic.org/privacy/hew1973report> accessed 31 October 2011. 23 Nebraska Press Ass'n v Stuart 427 US 539 (1976). 24 Refer Moot Proposition ¶ 14.

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against prior restraints.25 This is because prior restraint reflects an inversion of the order of

things; instead of obliging the State to prove the guilt in order to inflict the penalty, it is to

oblige the citizen to establish his own innocence to avoid the penalty.26

I.2.i The law constitutes a prior restraint

A prior restraint exists when the enjoyment of protected expression is contingent upon the

approval of government officials.27 The U.S. Supreme Court in Reno v ACLU28 embraced the

idea of recognizing that digital information as manifested on the Internet is entitled to the

broadest First Amendment protection possible. The landmark case of Near v Minnesota29

clearly lays down that a prior restraint imposed by a legislation has to be judged on the basis

of its “operation and effect”30 and it envisages four types of prior restraints, a third type of

situation involves legislative restraints which make unlawful publication or other

communication unless there has been previous compliance with specific conditions imposed

by legislative act.31 In the instant case, the IRA subjects internet users to stringent verification

procedures and other user information disclosure demands32 before they can use the internet

to express their views, this is clearly a prior restraint of the aforementioned type and is

violative of the right to freedom of expression of the users.

25 Taucher v Ranier 237 F Supp 2d 7, 12 (DDC 2002). 26 Speiser v Randall 357 US 513 (1958) 534. 27 Baby Tam & Co Inc v City of Las Vegas 154 F 3d 1097(9th Cir 1998) (1958). 28 521 US 844 (1997). 29 283 US 697 (1931). 30 EU Council Directive(n 18) 702. 31 Kupferman & O'Brien, ‘Motion Pictures and the First Amendment’ 6o Yale LJ 696 (1951). 32 Refer Moot Proposition ¶ 14.

5


I.2.ii The law has a chilling effect on the right of freedom of expression of the users

The chilling effect results from the threat of criminal or civil sanctions after the exercise of free

speech.33 Application of pressure, through threats of prosecution, classification, and sanctioning

is sufficient to have a chilling effect on the right of an individual to freedom of expression.34

Such state pressures that do not directly prevent publication, but rather chill the desire or ability

to publish, are referred to as the power of indirect prior restraint.35

The IRA makes website owners criminally liable36 if they fail to register and verify details of

their users and furthermore requires disclosure of such information of the users whenever

required, this constant threat of surveillance and sanction on the users will quell free speech on

the internet which is an essential characteristic of democracy itself.

I.3 Prior restraint and the restrictions on the rights of association and privacy by

the impugned legislation do not fall within the purview of reasonable restrictions

by the State.

The right to freedom of expression, under international human rights law, may be restricted in

order to protect the rights of others and public order, if it is necessary in a democratic society to

do so and it is done by law.37 In case of Human Rights violations the ECHR checks whether

interference is justifiable in principle and proportionate,38 and whether there is a reasonable

relationship between the interference and the legitimate aim pursued.39 The Court applies an

33 CBS Inc v Davis 510 US 1315 (1994). 34 Evan Wallach, ‘Executive Powers of Prior Restraint Over Publication of National Security Information: The UK and the USA Compared’, 32 Int'l & CompLQ 424 (1983). 35 Laird v Tatum 408 US 1 (1971). 36 Refer Moot Proposition¶ 14(d). 37International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19. 38 Kokkinakis v Greece (1993) 17 EHRR 397. 39 Chorherr v Austria (1993) 17 EHRR 358.

6


especially rigorous approach in the context of freedom of expression.40 In the matter Sunday

Times v United Kingdom41 the Court propounded a three-fold test42: Firstly, whether the

interference complained of, corresponded to a pressing social need; Secondly, whether it was

proportionate to the legitimate aim pursued; and finally whether the justifications of the national

authority were relevant and sufficient.

I.3.i The interference by the State is not in accordance with the law

The ECHR has elaborated on the requirement ‘in accordance with law’ in the case of Olsson v

Sweden43 where is clearly lays down that this requirement refers to the foreseeability of the

concerned measure and the precision with which it is drafted. This essentially implies that even

when restrictions are otherwise legitimate, they must impair the right as little as possible and the

law must be subject to ‘effective control’44,this requirement places an obligation on the State,

when pursuing legitimate aims, to have due regard for constitutional rights by tailoring

restrictions as narrowly as possible. 45 Also, the law must clearly indicate the scope of any

discretionary power bestowed upon the government and the manner of its exercise.46

It is submitted in view of the above based reasoning that the legislation falls short of

international and comparative standards outlined above. Firstly, several key phrases used in the

legislation, such as ‘the name and contact information of any user of the website’ and ‘any other 40 Lingens v Austria (1986) 8 EHRR 407. 41 (1979) 2 EHRR 245. 42 Handyside v United Kingdom (1986) 8 EHRR 103. 43Olsson v Sweden (1988) 11 EHRR 259. 44Silver and Others v United Kingdom 5 EHRR 347; The State v NTN Pty Ltd and NBN Ltd, 14 Common L Bull (1988) 45. 45 Shelton v Tucker, 364 US 479 (1960) 488; Perera v Attorney General, [1992] 1 SLR 199 (215); Hector v Attorney General of Antigua and Barbuda (1990) 2 AC 312 [315]; Handyside v UK (1976) 1 EHRR 737. 46 Hasan and Chaush v Bulgaria [GC] App no 30985/96(ECHR, 26 October 2000); Herczegfalvy vAustria App no 10533/83 (ECHR, 24 September 1992).

7


information of any user’ are themselves inherently vague and give the government an

unnecessarily wide scope to access information about the users47. More seriously, no attempt to

clarify their scope has been made in the legislation which is an imperative requirement48, the

Courts have stressed that “it is essential to have clear, detailed rules on the subject, especially as

the technology available for use is continually becoming more sophisticated.”49 Secondly, it is

the duty of the State to protect from misuse personal information which the State has acquired50

but no such safeguards have been provided in the IRA. 51 Thirdly, the legislation fails to outline

any circumstances under which this information shall be sought and used. Lastly, there exists no

explanation as to the nature and duration of such measures. In light of these gaping flaws the

legislation clearly fails the test of being legitimately ‘prescribed by law’.

I.3.ii The interference by the State is not necessary in the democratic State of Bemidia

For the legitimacy of interference it is essential that the restriction is ‘necessary in a democratic

society’. This means that it must correspond to a ‘pressing social need’ and be proportionate to

meet that need52 i.e. to say that there must be a proportionality between the effects of the

measures responsible for limiting the Charter right or freedom, and the objective which has been

identified as of “sufficient importance”53, this test has been followed in substance in a number of

other jurisdictions. 54 It is further an accepted principle that the act which has been curtailed is of

47 Refer to Moot Propostion ¶ 14b. 48 Malone v UK (1984) 7 EHRR 14. 49 Kruslin v France (1990) 12 EHRR 547. 50 Peck v UK (2003) 36 EHRR 41. 51 Refer to Moot Proposition ¶ 14. 52 Stramer K, European Human Rights Law (London Legal Action Group, London 1999) 169. 53 R. v Oakes [1986] 1 SCR 103. 54 Nyambirai v National Social Security Authority and Anor 1995 (9) BCLR 1221(Zimbabwean SC) 1231.

8


such a nature so as to create a clear and present danger that it will bring about the substantive

evils that the legislation seeks to prevent. 55

Once again the requirements of the IRA fail to comply with the above mentioned standards.

Firstly, the government requirement of verifying and registering all the internet users in Bemidia

is not in proportion with its aim of restoring national peace, for the fulfilment of which only

details of certain suspected users will suffice. Secondly, the law passed does not specifically

require that there be a serious or even real risk of harm to these ‘national security’ interests, and

refers instead to ‘any’ user which they may deem fit for surveillance. 56 Thirdly, the ECHR

attaches highest importance to the protection of speech on matters of general public concern57,

this in itself affords a higher degree of protection to the posts made by the users of

OpenBemidia who are merely expressing their views and addressing matters of public

concern.58 Fourthly, the legislation also fails on the grounds of the clear and present danger test

as there exists no proof of clear and present danger from internet communication in Bemidia. 59

Lastly, the law calls for a form of covert surveillance of the users whose information has been

obtained for 180 days60 which is considered illegal. 61 Hence, on the basis of the aforementioned

grounds and the previously passed biased tax laws62 it is contended that the law is biased against

the Mondahi’s and propagates the Diryen political agenda. It is therefore prayed that the

legislation be struck down. 55 Schenck v United States 249 US 47 (1919). 56 Refer Moot Proposition ¶ 14b. 57 Lingens v Austria (1986) 8 EHRR 407. 58 Refer Moot Proposition ¶11. 59 Refer Moot Proposition ¶ 12. 60 Refer Moot Proposition ¶ 14(d). 61 Klass v Federal Republic of Germany (1979) 2 EHRR 214; Hilton v UK (1981) 3 EHRR 104; Copland v UK (2006) 43 EHRR 253; Kharak Singh v State of Uttar Pradesh AIR 1963 SC 129. 62 Refer Moot Proposition ¶ 4.

9


I.4 The requirement to disclose user details to the government curbs the freedom

to engage in expression anonymously thereby indirectly also affects the right of

association of the users.

The US Supreme Court has consistently struck down laws curbing the freedom of citizens to

engage in public expression anonymously.63 When an individual is required to divulge their

identity just to secure permission to speak, this is a compulsion that necessarily results in a

surrender of that anonymity.64 An identification requirement would tend to restrict freedom to

distribute information and thereby freedom of expression. Identification and fear of reprisal

might deter perfectly peaceful discussions of public matters of importance.65

In addition to the right to convey information anonymously, the Court has protected the right to

associate anonymously.66 The Court also acknowledges that groups can be capable of

expressing ideas more effectively than could their individual members acting alone.67 Therefore,

enabling people to form associations anonymously so as to avoid the social stigma that may

come with overt group membership helps promote speech.68 Further, a law prohibiting

anonymity was a “content-based regulation” because “the identity of the speaker is no different

from other components of the document's contents.” 69 Such content-based speech restrictions

are “presumptively invalid”.70

63 Talley v California, 362 US 60 (1960); McIntyre v Ohio Elections Commission 514 US 336. 64 Watchtower Bible & Tract Soc'y of NY, Inc v Vill of Stratton 536 US 150(2002). 65 Talley (n 63). 66 Gibson v Florida 372 US 539 (1963); NAACP v Alabama ex rel Patterson 357 US 460 (1958) . 67 NAACP (n 66). 68 Shelton v Tucker 364 US 479 (1960). 69 ACLU of Georgia v Miller, 977 F Supp 1228 (ND Ga 1997). 70 ibid.

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Due to the current stringent verification procedures persons interested in communicating over

the internet are required to provide identification details and the website owners can even go to

the extent of disclosing their data to the government as and when required71, which is a clear

violation of this right and leads to irreparable harm to the people’s interest which is

unacceptable. 72

I.5 The stringent verification procedures are an over-breadth of law.

Identification of people online can happen through ‘identity verification’.73 However, such

stringent measures lead to a complete loss of anonymity of all the users of the internet which is

clearly an over-breadth of law as not only does it curb free speech and association as has been

established above but it also has a chilling effect on the usage of internet as a medium itself due

to such invasive techniques.

Even the most popular verification strategies that exist to this day are highly insufficient to

verify individuals with any high degree of confidence. 74 One such technique relies on matching

data provided by the individual to information available from trusted third-party sources.75 A

suggested strategy for implementing this sort of verification system involves individuals

answering a series of detailed questions and comparing their answers with credit reports and

71 Refer Moot Proposition ¶ 14. 72 Elrod v Burns 427 US 347 (1976). See also Donald J Karl, ‘State Regulation of Anonymous Internet Use after ACLU of Georgia v Miller’ (1998)30 Ariz St LJ 513. 73 Daniel J Steinbock, ‘National Identity Cards: Fourth and Fifth Amendment Issues’ (2004) 56 Fla LRev 697, 706. 74Federal Financial Institutions Examination Council, ‘OCC Bulletin: Certification Authority Systems: Guidance for Bankers and Examiners, OCC 99-20, A-1’ (1999) <http://www.ffiec.gov/ffiecinfobase/resources/info_sec/occ-bul_1999_20_ certificate_authority_guidance.pdf> accessed 31October 2011. 75NAACP (n 66).

11


other information databases.76 This form of verification may infringe privacy rights of users by

demanding highly intrusive data at times.

The law also regulates the usage of Bemidian sites by users across the globe therefore, every

person using a Bemidian website regardless of his location will have to comply with Bemidian

law which burdens inter-state commerce.77 Further, in doing so the Government is regulating

internet usage in other states as well and it has no legitimate state interest in taking such an

action.78

The aforementioned observations are clearly indicative of the over-breadth of the law and hence

it is submitted that the law be struck down.

II. THE AMENDED DEFINITION OF MILITARY SECRETS VIOLATES THE

RIGHT TO FREEDOM OF SPEECH AND EXPRESSION UNDER

ARTICLE 19 OF UDHR

The right to freedom of speech and expression is central to the functioning of a

democratic society and a person can only achieve self-fulfilment and their full human

potential through being able to freely communicate their feelings, opinions and ideas. 79

UDHR states that everyone has the right to freedom of opinion and expression and the

right to seek, receive and impart information and ideas through any media and

regardless of frontiers. 80 The ICCPR, the ECHR, the First Amendment to the US

76 ibid. 77 Pike v Bruce Church, Inc 397 US 137(1970). 78 ibid. 79 DJ Harris (n 5). 80 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 19.

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Constitution81, the Indian Constitution82 also recognise this right. The right of the press to

report freely has also been endorsed by the Indian SC83. The amended definition of military

secrets prohibits expression of location information of military personnel on duty.84 In view

of the positive obligations of the state to uphold speech and expression, the amended

definition is exceedingly restrictive. Further the Courts have repeatedly held that any

government attempt to prevent publication carried a heavy presumption of

unconstitutionality.85

II.1 Restrictions on Publication of Location Information suffers from over

breadth.

There is a three part test to determine whether a restriction on freedom of expression is valid

or not. The Universal Declaration of Human Rights86, ICCPR87, the European Convention88

all set forth the same three part test for determining the legitimacy of restrictions. The three

part test requires the restriction, be 1) Prescribed by law89 2) With a legitimate aim 3)

81 The United States Constitution 1788, amendment I. 82 Constitution of India 1950, art. 19(2). 83 Sakal Papers (P) Ltd v Union Of India, AIR 1962 SC 305; Express Newspapers Pvt Ltd v Union Of India, AIR 1958 SC 578; Brij Bhushan v State Of Delhi, AIR 1950 SC 129. 84 Refer Moot Proposition ¶ 13. 85 New York Times v United States 403 US 713 (1971). See also Organization for a Better Austin v Keefe 402 US 415 (1971). 86 UDHR (n 79). 87 ICCPR (n 80). 88 ECHR (n 4). 89 Olsson v Sweden 1988 11 EHRR 259; Canadian Pacific Ltd v R [1995] 2 SCR 1031; Ram Bahadur v State of Bihar AIR 1975 SC 223, 228.

13


Necessary in a democratic society90. The amended definition fails on the ground of being

prescribed by law.

II.1.i Prescribed by law

It was held in Gaweda v Poland91 “the requirements flowing from the expression ‘prescribed

by law’ is that of accessibility and sufficient precision to enable a citizen to regulate his

conduct. 92 This view was consistently upheld by the European Court of Human rights in

other cases as well.93 Vague laws are inherently bad because of their ‘chilling effect94’,

because of uncertainty of what is permitted and what isn’t; they encourage citizens to steer

clear of any controversial topic, hence inhibiting even valid expression.95

The proposed amendment in the legislation struck a poor balance between the two equally

compelling needs to protect national security secrets and free speech and expression. The law

would have a chilling effect on perfectly legitimate expression. For instance innocent

expression such as reporting troops locations involved in flood relief activities would also

invoke liability under such legislation. In addition, the amendment does not require a

showing that the information of location that is punishable was properly classified, it simply

applies to “any” location information, this could have a sweeping effect on information that is

not classified and even without such classification, protected under such a law. As such the

law suffers from over breadth. In light of the above assertions, the amended definition

90 R. v Shayler [2002] UKHL 11. 91 Gaweda v Poland App no 26229/95 (ECHR, 14 March 2002). 92 The Sunday Times v United Kingdom (1979) 2 EHRR 245. 93 ibid. See also Muller v Switzerland (1991)13 EHRR 212; Markt intern Verlag GmbH and Klaus Beermann v Germany A 164 (1989) 12 EHRR 161. 94 Sunday Times(n 93). 95 Gooding v Wilson 405 US 518 (1972).

14


inhibits constitutional expression as illustrated above and does not allow for regulation of

conduct by the citizens, hence the amendment fails to meet the prescribed by law standard.

II.2 Publication of Location Information of military in public accessible areas is

not a military secret.

Indian SC held that the term ‘secret’ as mentioned in the Indian Official Secrets Act, 1923

should be used only with respect to or in relation to official code or password and not sketch,

plan, model, article…..96 Also United Kingdom’s Official Secrets Act, 1989 does not mention

location of military personnel as a secret.97 As such the amended definition does not conform

to this standard and is excessive.

Moreover, in Observer and Guardian v. United Kingdom98, it was held that as the restricted

information was freely available to the public, it was manifestly too late for the injunctions to

serve the interest of national security in protecting sensitive information. Also in the Iftikar

Gilani Case in which Gilani was arrested under the Official Secrets Act (OSA) for possessing

a paper detailing the deployment of Indian troops in Indian-held Kashmir; the impugned

document was anything but classified, it was available on the Internet, and did not qualify as

an 'official secret' of the Indian government. The Government subsequently withdrew the

case since there could have been no ‘disclosure’ of something already in the public domain.99

Applying the similar rational, the location information published in the instant case was

already in the public domain and the publication of the same in no way could cause further

harm.

96 Sama Abdulla v State of Gujarat AIR 1996 SC 569. 97 Official Secrets Act 1989, Section 2. 98 Observer and Guardian v United Kingdom (1991) 14 EHRR 153. 99 Deepa A, ‘Presumed guilty, secretly' (India Together 14 Jul 2005) <http://www.indiatogether.org/2005/jul/rvw-gilani.htm> accessed 1 November 2011.

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II.2.i Amended definition does not meet the clear and present danger standard

Wikileaks site published documents in October 2010, which gave a "never-before-seen,

uncensored view of the Iraq War.100 The same were reviewed by a set of experts for security

threats. 101 It was concluded that "the online leak ... did not disclose any sensitive intelligence

sources or methods".102 Instead the reports consisted primarily of "initial, raw observations by

tactical units ... which are essentially snapshots of events, both tragic and mundane ....", 103 it

was acknowledged by the government that “no case occurred where anyone was harmed due

to the leaked documents"104 in other words, the expression did not create a “Clear and

present danger”105 and hence was considered valid. The Supreme Court of India has held that

there must be a very close link between an expression and the threat of disturbance.106The

government had no direct proof of a causal connection and acted on mere suspicion. 107 The

failure of the military could be attributed to its own small size and inexperience108 and was

not spurred by the publication on information.

100 Ashley Fantz, ‘New Massive Release to Put Iraq War and Wikileaks in Spotlight’ (CNN, 22 October 2010) <http:// edition.cnn.com/2010/US/10/22/wikileaks.iraq.documents/index.html? Iref=mpstoryview.> accessed 26 September 2011). 101 ibid. 102 Adam Levine, ‘Gates: Leaked Documents Don't Reveal Key Intel, But Risks Remain’ (CNN, 16 October 2010) < http://articles.cnn.com/2010-10- 16/us/wikileaks.assessment_1_julian-assange-wikileaksdocuments?_s =PM:US> accessed 17 October 2011. 103 Anthony Levine, ‘Wikileaks Iraq War Documents: The Key Issues’ (BBC NEWS, 25 October 2010) <http://www.bbc.co.uk/news/world-us-canada-11617892> accessed 23 October 2011. 104 Andrew Smith, ‘Wikileaks Website Publishes Classified Military Documents from Iraq’ (CNN, 22 October 2010) <http:// edition.cnn.com/2010/US/10/22/wikileaks.iraq/> accessed 1 November 2011 . 105Schenck (n 51). 106 S Rangarajan v PJ Ram (1989) 2 SCC 574. 107 Refer Moot Proposition ¶ 12. 108 Refer to Moot Proposition, ¶ 7.

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II.2.ii Amended definition restricts general functioning of press.

The impugned legislation will have a drastic effect on freedom of press in general functioning

and is against the basic tenets of wartime reporting109 and crisis reporting110, which has

gained importance during recent times. Precedence of such reporting include the Vietnam

War which is also known as the Television War111 where reporting was so instrumental that,

“Americans learned of the start of the war not from their government but from their

televisions.” 112 Also during the Baghdad bombings, viewers had a real-time connection to

events.113

Media is hardly to be blamed for the social upheaval and violence occurring throughout

Bemidia, to diminish the media as merely an unbiased reporter of events is equally unsound.

II.2.iii Amended definition prevents publication of newsworthy information.

It can be reasonably inferred that the government is restricting valid expression, to protect

interests unrelated to national security, including, for example, to protect itself from

embarrassment or exposure of wrongdoing, or to conceal information about the

functioning of its public institutions114, in this case the Bemidian Army about which post

have been made showcasing military improprieties on the Military tracker forum115, such

109 Sarah C. Sullivan, ‘A Closer Look at Wikileaks' Past, Future’ (PBS NEWSHOUR, 27 July 2010) <http:// www.pbs.org/newshour/updates/military/july-dec10/wikileaks_07-26.html.> accessed 3 October 2011. 110 Sarah Jacob, ‘Ushahidi: Using Social Media to Track Crises’ (The Documentalist 30 December 2009) <http://crlgrn.wordpress.com/2009/12/30/ushahidi-using-social-media-to-track-crises/ > accessed 18 October 2011. 111 Michael Mandelbaum, ‘Vietnam: The Television War’ (1982) (111) <http://www.jstor.org/stable/1903610> accessed 25 October 2011. 112 ibid [166]. 113 Michael S. Sweeney, The Military and the Press: An Uneasy Truce (Evanston, Illinois: North-western University Press, 2006) 166. 114 UNCHR, ‘Johannesburg Principles on National Security, Freedom of Expression and Access to Information’ (1 October 1995) U.N. Doc. E/CN. 4/1996/39. 115 Refer Moot Proposition ¶ 11.

17


criticism is well within legitimate expression. 116 The amended definition seeks to curb such

information to prevent embarrassment to the Government.

In light of the above arguments and observations, the amended definition of military secrets

violates the right to freedom of speech and expression under Article 19 of UDHR and hence

is unconstitutional.

III. THE IMPUGNED CONTENTS OF THE WEBSITE OPENBEMIDIA ARE

NOT PRIVACY INTRUSIVE AND THE FIRST FAMILY PRIVACY ACT

IS VIOLATIVE OF ARTICLE 19 OF THE UDHR

It is submitted there has been no violation the right to privacy of the First family under

Article 12 UDHR117 and publication of information documenting public activities of the first

family was in fact valid expression.

III.1 There has been No Invasion of Right to Privacy under Article 12 of UDHR

III.1.i Right to privacy stands diminished due to attainment of ‘Public Figure’ status

Mr. Vislio Luscon is public figure ‘par excellence’ as he is the Prime Minister of the

Republic of Bemidia.118 For such figures, the right to protection of private life stops at their

front door.119Legitimate public interest in, one who has become a public figure, is not

necessarily limited to the individual. It extends to members of his family, like Carla, Talia

and Daria in the present case. 120 The courts have recognized that the right of privacy may be

116 Robertson Geoffrey, Media Law (5th edn, Thomson Sweet & Maxwell 2007) 45. 117 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 12. 118 Von Hannover v Germany [2004] ECHR 294. 119 ibid [19]. 120 Refer Moot Proposition ¶3.

18


lost by becoming a public figure.121 One whose life by virtue of status attracts genuine public

interest may have deemed to have implicitly consented to publication of pictures.122 By virtue

of being implied public figures owing to relation to the Prime minister, the First family has a

relatively diminished expectation of privacy which was further reduced by the fact that

information published was that which was in a public domain. The public hence has a

legitimate interest in knowing how the First Family behaved in public.

III.1.ii Information published was open to public view.

Appearance in a public place necessarily involves doffing the cloak of privacy.123 The

Tracker Forums124 document those ‘public activities’ undertaken by the Prime Minister and

the family, where the activities are ‘observable by anyone in the vicinity’. 125

There can be no invasion of privacy where the information involved is open to public view.126

Right to Privacy is waived not only on the street,127 but also in shops,128 restaurants,129

parking lots,130 air ports131 and school buildings.132 Someone in a public place has no

121 Abernathy v Thornton 83 So 2d 235 (1955). 122 Munden v Harris 153 Mo App 652, 134 SW 1076 (1911). 123 Cefalu v Globe Newspaper Co 444 US 1060 (1980). 124 Refer to Moot Proposition ¶17. 125 Silber v BCTV (1985) 69 BCLR 34 (SC). 126 Restatement (Second) of Torts, § 652D. 127 US v Vazquez 31 F Supp 2d 85 (1998); Forster v Manchester 189 A 2d 147(1963). 128 Jacova v Southern Radio and Television Co 83 So 2d 34 (1955); Mark v Seattle Times 635 P 2d 1081 (1981). 129 Dempskey v National Enquirer 702 F Supp 927 (1988); Wilkins v National Broadcasting Co 71 Cal App 4th 1066 (1999). 130 Turner v General Motors Corporation 750 SW2d 844 (1979); Figured v Paralegal Technical Services 231 NJ Super 251 (App Div 1989). 131 Fogel v Forbes Inc 500 F Supp 1081 (1980). 132 Jarrett v Butts 379 SE 2d 583 (1989).

19


expectation of privacy and impliedly waives any right to privacy. 133 Thus, one who is part of

the public scene may be photographed as part of that scene. 134

The Carla, Daria and Talia Tracker forums contain photographs that have been obtained in

public places,135 such as Talia going to school, Carla meeting a friend are matters of ‘ordinary

incidents,’ that are open to public view and do not expose any ‘vulnerable and intimate

details’.136 Furthermore, the information offered by the tracker forums are neither ‘offensive

to a reasonable person’137, nor ‘too intrusive and demeaning so as to reveal the person to be in

situation of humiliation or embarrassment’.138

The touchstone of privacy is, whether in respect of the disclosed facts the person in question,

had a reasonable expectation of privacy.139 There can be no expectation of privacy in

walking down a public street.140

In Douglas v. Hello!,141 the celebrities took all reasonable means to provide security in order

to minimise photographs being published, whereas no such reasonable efforts were made by

the members of the First Family to restrict the dissemination of any information about their

lives. The failure to take precautions signifies a waiver of any rights to privacy.

133 Dora v Frontline Video, Inc 15 Cal App 4th 536 (1993); Machleder v Diaz 801 F 2d 46 (1986); Frazier v Southeastern Pennsylvania Transporatation Authority 785 F 2d 65 (1986) 134 Uranga v Federated Publications Inc, 67 P3d 29 (2003); Hosking v Runting [2005] 1 NZLR 1. 135Refer Moot Proposition ¶¶ 17-18. 136 Campbell v MGN [2004] UKHL 22. 137 ibid [27]. 138 Campbell (n 137); Peck v UK (2003) 36 EHRR 41. 139 Douglas v Hello! [2005] EWCA Civ 595. 140 US v Vazquez 31 F Supp 2d 85 (1998). 141Douglas(n 140).

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In the light of the above assertions, it is established that there has been no invasion of the

right to privacy of the First Family.

III.2 Prior Restraint imposed by the First Family Privacy Act is violative of the

Right to Freedom of Speech and Expression as guaranteed under Article 19 of

the UDHR.

Article 13, of the American Convention of Human Rights, 1969, deems prior restraint to be

violative of Freedom of Speech and Expression.

In Near v Minnesota 142 prior restraints were viewed by the U.S. Supreme Court as "the most

serious and the least tolerable infringement on First Amendment rights”. The US Supreme

Court has repeatedly held that the burden of proof to justify a prior restraint lies on the

government.143

The Supreme Court of India, in the case of R Rajgopal v Tamil Nadu,144 has upheld the

concept of “presumption of unconstitutionality,” and has held that the government must

justify prior restraint, which is otherwise presumed as unconstitutional.145

The First Family Privacy, which prohibits the publication of “private information” about the

Prime Minister’s family, without the individual’s or guardian’s “prior written consent”

constitutes a prior restraint. The law defines “private information” to include “any

photograph of the person, wherever taken” and “any information about the location of the

142 Near v Minnesota 283 US 697 (1931); Nebraska Press Ass'n v Stuart 427 US 539 (1976); Carroll v Princess Anne 393 US 175 (1968); Bantam Books, Inc v Sullivan 372 US 58 (1963). 143 New York Times Co v United States, 403 US 713 (1971); Pittsburgh Press Co v Human Rel 413 US 376 (1973); Martorell v Chile Report no 11/96 Case 11.230 (IACtHR, March 13 1987); Pathfinder v Grenada Report no 11/96 Case 10.325 (IACtHR , March 1 1996). 144 R Rajgopal v Tamil Nadu AIR 1995 SC 264. 145 K A Abbas v Union of India AIR 1971 SC 481; Secretary, Ministry of Information and Broadcasting, Govt of India and others v Cricket Association of Bengal AIR 1995 SC 1236; Life Insurance Corporation of India v Professor Manubhai D Shah (1992) 3 SCC 6371; S Rangarajan v P Jagjevan Ram and Ors 1989 SCC (2) 574.

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person.” This clearly constitutes unjustified prior restraint as it restricts all photographs,

irrespective of it being in the public domain or not involving privacy or security concerns.

III.3 Restrictions on Publication of Private Information do not meet the three

part test.

It is well established that the grounds of restriction should be narrowly interpreted and

necessity for restriction must be convincingly established.146 The restriction, in this case, the

prior restraint must pass the standards of the ‘three part test’.

III.3.i. Prescribed by law

The First Family Privacy Act prohibits the publication of any photograph, wherever taken,

and any location information of the First Family members without individual’s or guardian’s

prior written consent. In Campbell v. MGN147, the information published was categorized.

The definition of private information in the act not only fails to classify information into

specific heads on the basis of kind, time and territory and but also puts a blanket ban on the

publication under the head of ‘private information’ , the definition of which includes

information in the public domain. The law would have a chilling effect even on a perfectly

legitimate expression.

Moreover, the Act permits the publication of location information whose accuracy permits

only a determination of the city or other larger geographic region in which the person is

located, this clause provides broad margins for interpretations in order to restrict expression

that is a legitimate public concern.

146 The Observer and The Guardian v The United Kingdom (1991) 14 EHRR 153; Thorgeirson v Iceland (1992) 14 EHRR 843. 147 Campbell v MGN [2004] UKHL 22.

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The law is vague and lacks sufficient precision; this makes the scope of the act broad beyond

foreseeability. As a result the provisions of the act fail the test ‘prescribed by law.’

III.3.ii. Necessary in a democratic society

A restriction should not be overbroad in the sense that it targets not only the harmful speech

but also legitimate speech.148 The Supreme Court of India has noted that the anticipated

danger should not be remote, conjectural or farfetched. It should have proximate and direct

nexus with the expression. The expression should be intrinsically dangerous and should be

the equivalent of a ‘spark in a powder keg’.149

The Act has been enacted in pursuance of the security concerns of the first family. However,

there lies no close link between the expression and the risk of harm as evaluated by the

Government.

Moreover, in Von Hannover,150 the courts have recognized that the public has a legitimate

interest in knowing where the Public figure was staying and how she behaved in public. It is

evident that in the name of security concerns the Government wants the citizens to not to be

aware of anything which is even remotely adverse. The Carla Tracker consists of posts that

expose meetings of Carla with popular Mondahi figures, in a time of ethnic strife in the

country which was newsworthy information.

Photographs and geolocation tags only add to the authenticity of the information. The

Government of Bemidia clearly wanted to stop information and ideas which might have

shocked, offended or disturbed the public as opposed to the decisions of ECHR.151

148 Shelton v Tucker 364 US 479 (1960); R. v Oakes [1986] 1 SCR 103.

149 S Rangarajan v P J Ram [1989] 2 SCR 2014. 150 (2005) 40 EHRR 1. 151 Handyside v United Kingdom (1976) 1 EHRR 737; Jersild v Denmark (1995) 19 EHRR 1.

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Hence, the act fails to qualify the three part test and violates Article 19 of UDHR.

III.4. The executive order to delete the contents of the Carla Tracker, Talia

Tracker and Daria Tracker Forums should not stand.

As established in the arguments above, the First Family Privacy Act is violative of Article 19

as it does not protect any legitimate privacy or security interest. Therefore, an order passed

under the authority of the Act fails.

Moreover, the contents that are required to be deleted fall in public domain and the material

is so widely accessed that an order in the terms sought would make very little practical

difference. In Attorney-General v Greater Manchester Newspapers Ltd,152 the test was

applied as to whether certain information was "realistically" accessible to the public or only

“in theory.” Similarly, in the present case the pictures in the concerned forums have already

been in the public domain for far too long. The First Family Privacy Act and the IRA were an

aftermath of the activities of OpenBemidia, so it is a reasonable assumption that the website

was popular and was widely accessible enough for the government to take such legislative

actions.

In view of the above stated arguments the First Family Privacy Act violates Article 19 of

UDHR, therefore, the executive order to delete the contents of the Carla Tracker, Talia

Tracker and Daria Tracker should be dismissed accordingly.

152 Attorney-General v Greater Manchester Newspapers Ltd [2001] All ER (D) 32.

xxiv


PRAYER

For the foregoing reasons, the Applicant respectfully requests this Hon’ble Court to declare

and adjudge:

i) That the provisions of The Internet Responsibility Act are in violation of the

right to privacy, freedom of speech and expression and association as

enshrined under Articles 12, 19, 20 respectively of the Universal Declaration

of Human Rights, 1948.

ii) The definition of ‘military secrets’ after amendment is violative of the right to

freedom of speech and expression as enshrined under Article 19 of the

Universal Declaration of Human Rights, 1948.

iii) That the provisions of the First Family Privacy Act and the subsequent order

under the same are violative of right to freedom of speech and expression

under Article 19 UDHR.

To pass any other order as it deem fit in the interest of justice.

For this kind consideration, the counsel shall ever pray.

All of which is Respectfully Submitted

On this 10th day of November, 2011

//sd//

Signature of the Counsel

ON BEHALF OF APPLICANT

xxv
