Foundation of Media Professionals v. Union Territory of Jammu and Kashmir and Anr., Writ Petition Diary No. 10817 of 2020 : Another Opportunity to press for Right to Internet ?

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The Union Territory of Jammu and Kashmir (which before the Supreme Court is almost always represented by a Counsel for the Union of India) a few days ago filed an Affidavit expressly making a statement that the right to access the internet is not a fundamental right. To quote the text verbatim below:

“It is submitted that the right to access the internet is not a fundamental right and thus the type and breadth of access for exercising the right to freedom of speech and expression under Article 19(1)(a) and/or to carry on any trade or business under Article 19(1)(g) of the Constitution of India (CoI) through the medium of internet can be curtailed….”

The submission was made in the specific context of the action of the Union to not allow the speed of the internet to be more than that of a 2G cellular network. But my excitement at this statement is not a rage against any high handedness (which is presently sub-judice before the Court) by the administration but rather the opportunity which once again arises to argue a right to internet access !!

It appears to be a common misconception among the public that the Supreme Court has settled this question once and for all in Anuradha Bhasin v. Union of India and Ors., W. P. (Civil) 1031 of 2019. On the contrary however, it specifically observed that:

“28. None of the counsels have argued for declaring the right to access the internet as a fundamental right and therefore we are not expressing any view on the same. We are confining ourselves to declaring that the right to freedom of speech and expression under Article 19(1)(a), and the right to carry on any trade or business under 19(1)(g), using the medium of internet is constitutionally protected.”

Rather, what it went on to hold was that:

“…the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g). The restriction upon such fundamental rights should be in consonance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality.” (Emphasis added)

Yes, I agree that there is scope for a submission that the answer might be the same even if the issue was worded differently to specifically make submissions on the right to access the internet, but that doesn’t degrade the importance of the issue and its affect on policy matters such as Network Neutrality, concerning which passionate arguments from both sides of the fence tend to be based, at their core, on the right of access to the internet !! (The difference between the two sides is the interpretation of such a right and what is encompassed within it.)

The Court also itself recognised that it the issue could not be simply dismissed as irrelevant and required some serious consideration, if not on that day, then definitely someday later. Certain paragraphs in the first half of the Judgement are encouraging.:

“22. Now, we need to concern ourselves about the freedom of expression over the medium of internet. There is no gainsaying that in today’s world the internet stands as the most utilized and accessible medium for exchange of information. The revolution within the cyberspace has been phenomenal in the past decade, wherein the limitation of storage space and accessibility of print medium has been remedied by the usage of internet.

23. At this point it is important to note the argument of Mr. Vinton G. Cerf, one of the ‘fathers of the internet’. He argued that while the internet is very important, however, it cannot be elevated to the status of a human right. Technology, in his view, is an
enabler of rights and not a right in and of itself. He distinguishes between placing technology among the exalted category of other human rights, such as the freedom of conscience, equality etc. With great respect to his opinion, the prevalence and extent of internet proliferation cannot be undermined in one’s life.

24. Law and technology seldom mix like oil and water. There is a consistent criticism that the development of technology is not met by equivalent movement in the law. In this context, we need to note that the law should imbibe the technological development
and accordingly mould its rules so as to cater to the needs of society. Non recognition of technology within the sphere of law is only a disservice to the inevitable. In this light, the importance of internet cannot be underestimated, as from morning to night we are encapsulated within the cyberspace and our most basic activities are enabled by the use of internet.

25. We need to distinguish between the internet as a tool and the freedom of expression through the internet. There is no dispute that freedom of speech and expression includes the right to disseminate information to as wide a section of the population as is possible. The wider range of circulation of information or its greater impact cannot restrict the content of the right nor can it justify its denial. [refer to Secretary, Ministry of Information & Broadcasting Government of India v. Cricket Association of Bengal, (1995) 2 SCC 161; Shreya Singhal v. Union of India, (2015) 5 SCC 1].” (Emphasis added)

My only disgruntlement is with the first line of paragraph twenty five which has been quoted above, because I am firmly of the opinion that the internet cannot and should not be classified as a tool, but rather as a resource which is used by individuals and entities to create tools and services for mankind. I’ve focused on this here and here, and am now thinking of doing a separate piece altogether on the justification for such a classification.

Hopes can be belied of course, and with the present Covid – 19 situation in New Delhi, it’s best not to hazard a guess as to when the Court will start functioning on a regular schedule again, and even if it does, whether such full fledged arguments as I hope for will even actually take place. But then, no harm being optimistic. 🙂

Foundation of Media Professionals v. Union Territory of Jammu and Kashmir and Anr., Writ Petition Diary No. 10817 of 2020. [An Update]

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As per Bar and Bench, A three judge bench of the Supreme Court led by Justice NV Ramana today heard detailed submissions on behalf of all the parties and reserved orders on the batch of matters concerning internet access in Jammu and Kashmir.

On a reading of the LIVE updates provided by Bar & Bench, it appears that the petitioners chose to not specifically argue a right to internet access but rather toed a line similar to that in Anuradha Bhasin, by emphasizing that the “Right to education” and “Right to healthcare” was being hampered due to the slow internet speeds.

Société Coopérative de Production SeaFrance SA v The Competition and Markets Authority and Another, [2015] UKSC 75

I just came across an interesting Judgement by the Supreme Court of United Kingdom on mergers delivered recently on 16.12.2015 titled Société Coopérative de Production SeaFrance SA v The Competition and Markets Authority and Another, [2015] UKSC 75 (Hat tip to SCC Online) wherein it has been observed that the merger control provisions of the Enterprise Act, 2002 are not limited to the acquisition of a business that is a “going concern” but would include even the acquisition of the assets of a defunct business. According to the Court, “An enterprise is subject to merger control if the capacity to perform those activities as part of the same business subsists.”

BACKGROUND TO THE APPEAL

SeaFrance SA, a French company, operated a ferry service between Dover and Calais until it ceased operations on 16 November 2011. It was formally liquidated on 9 January 2012, and most of its employees were dismissed. Groupe Eurotunnel SA (“GET”), the parent company of the Group operating the Channel Tunnel, and Société Coopérative De Production SeaFrance SA (“SCOP”), a workers’ co-operative incorporated by a number of former SeaFrance employees to secure the continuance of the ferry service, acquired substantially all of SeaFrance’s assets on 2 July 2012. This included three of the four SeaFrance vessels, trademarks, IT systems, goodwill and customer lists. GET and SCOP resumed ferry services on 20 August 2012 through GET’s subsidiary company, MyFerryLink SAS. The vessels were operated by employees who had almost all worked for SeaFrance. The reemployment of those employees had been incentivised by a statutory Plan de Sauvegarde de l’Emploi (known as the PSE3), by which SeaFrance’s parent company SNCF would provide payments to employers for employing ex-SeaFrance employees.

The acquisition was referred to the Competition Commission, the regulator at the time. It concluded that there was a “relevant merger situation” for the purpose of the merger control provisions of the Enterprise Act 2002, which could be expected to result in a substantial lessening of competition in the cross-Channel market. The “enterprise” of SeaFrance continued since its “activities” continued, even though there had been a hiatus of over seven months in its operations. The Commission imposed restrictions on the operation of the service by GET and SCOP, including a ban on using the exSeaFrance vessels for ferry services from Dover for 10 years. On appeal to the Competition Appeal Tribunal, the Tribunal gave guidance on the meaning of “enterprise” in the Eurotunnel I judgment, and remitted the question of jurisdiction back to the new regulator, the Competition and Markets Authority.

Upon the remission, the Competition and Markets Authority (which had assumed the functions of the Commission) considered that what had been acquired was an “enterprise”, and therefore that a “relevant merger situation” existed. Accordingly they confirmed the restrictions previously imposed by the Commission. That decision was upheld by the Competition Appeal Tribunal in the Eurotunnel II judgment.

The Court of Appeal allowed an appeal by a majority, holding that GET and SCOP had not acquired an “enterprise”, but only the means of constructing a new (but similar) one. In particular, this was because they had not acquired SeaFrance’s crews. They concluded that it was irrational for the Competition and Markets Authority to reach any other conclusion on the facts.

REASONS FOR THE JUDGMENT

The merger control provisions of the Enterprise Act 2002 are not limited to the acquisition of a business that is a “going concern”. The possession of “activities” is a descriptive characteristic of an enterprise under the Act. An enterprise is subject to merger control if the capacity to perform those activities as part of the same business subsists. [32-35]

The test is one of economic continuity. An Acquirer acquiring assets acquires an “enterprise” where (i) those assets give the Acquirer more than might have otherwise been acquired by going into the market and buying factors of production and (ii) the extra is attributable to the fact that the assets were previously employed in combination in the “activities” of the target enterprise. The period of time between cessation of trading and acquisition of control of the assets may be a relevant factor, but is not necessarily decisive. [36-40]

This was substantially the same principle set out by the Competition Appeal Tribunal in Eurotunnel I, which the Competition and Markets Authority applied in this case. [40-41]

The Court of Appeal’s finding that the Authority’s evaluation was irrational was unjustified. GET and SCOP acquired substantially all the assets of SeaFrance, including trademarks, goodwill, specialist vessels maintained in a serviceable condition, and substantially the same personnel. The Authority’s conclusion that this demonstrated “considerable continuity and momentum” and “the embers of an enterprise”, which could be passed to GET and SCOP, was unimpeachable. The order of the French Court of 9 January 2012 to dismiss the employees did not disrupt that continuity and momentum because the order was made on terms that the PS3 preserved the prospect of employment on the ships for the dismissed crew members. [41-43]

The majority of the Court of Appeal was wrong to narrow the question of economic continuity to the legal effect of the decision of the French Court in January 2012 and whether this terminated the employment relationship between SeaFrance and its employees. The Competition and Markets Authority is not entitled to any special level of deference: the test for determining whether there is a “relevant merger situation” and relevant “activities” is a legal question. [31] But the Authority undertook a broader economic analysis, concluding that there was economic continuity. That evaluation was complex and sensitive to a whole range of factors. It was not a purely legal enquiry. Its economic analysis should be respected. [44-45]

References in square brackets are to paragraphs in the judgment

When one goes through Section 5 of our own Competition Act, 2002 as well as the definition of the term “Enterprise” under Section 2(h) of the Act, there appears scope for a similar dispute to arise in our own jurisdiction in the future. The definition of the term “Enterprise” under Section 2(h) also does not contemplate any such merger or acquisition of a defunct organisation. Yet, this happens on a frequent basis in the Indian corporate sector, albeit since individual transactions are on scales relatively small, they avoid triggering the C.C.I. combination process.

The Law On Network Neutrality.

This was one of my earliest blog posts (and also my first post on the India Law and Technology Blog). Unfortunately, the ILTB recently encountered a problem because of which the posts are not accessible, which is why am once again posting it verbatim here. At the time when this was first written, most people did not even know about Network Neutrality, let alone care for it, and it is heartening to see the debate finally reach Indian shores:

“I recently participated in a well known moot court competition on cyber and technology law, the problem for which this year was based on issues pertaining to network neutrality. To summarise the problem in a few words, a domestic Internet Service provider, in collusion with an international Internet service provider, had started providing services in the developing country (the economic condition of the country, especially the status of the telecommunication sector, similar to that of India) which over time was alleged to be derogatory in quality and in contravention to the principles of network neutrality. The service provider also later released a fair usage policy plan which severely limited free unlimited internet access (only 10 GB) despite consumers paying for an unlimited broadband internet access service.

As petitioners, we were not facing any difficulty in conclusively proving that the policies of the service provider were, without a doubt, in violation of the “agreed” principles of network neutrality. A bigger challenge we faced was trying to prove how this was legally wrong and why exactly was the service provider liable in the first place!! After all, even if assuming they had violated the principles of network neutrality, it is a fact (and a very irritating one at that for a lawyer/mooter) that there presently exists no specific legislation, rule, bye-law, etc. which governs the principles of network neutrality and their violation. (If one wishes to site the recent 2010 FCC order on network neutrality, it should be pointed out that the validity of the order is itself questionable in light of Comcast v. FCC. The rules shall be discussed in detail in a separate post). At any rate, there is no law in India to prevent the violation of the principles of network neutrality.

Now in situation such as the above, there is only one sensible path which any decent lawyer shall take in order to substantiate his case with law. And we, believing ourselves to be decent mooters, also decided to do the same. We decided to show the violation of the principles of network neutrality also led to a violation of the fundamental rights of various stakeholders in the internet broadband service.

What is however, surprising is that, as far as we are aware, no other team raised this issue before any bench at any point of time during the duration of the competition, including the teams who made it to the finals (one of the teams came close, but on a careful review one realised that they were taking a different approach to the issue and not one pertaining specifically to the violation of fundamental rights.)

When one realises that one has raised such a unique issue, one feels proud at having taken a path so different from those trodden by others. Or, atleast in my case also starts feeling apprehensive as to whether we raised a flawed contention before the court. Therefore, my intention in typing this post is not only to express by views regarding the law on network neutrality, but to also initiate a discussion on them and more specifically, on how a violation of the principles of network neutrality may result in a violation of the fundamental rights of citizens.

To post specifically, we contended that the violation of the principles of network neutrality resulting from the impugned acts of the respondents resulted in the violation of the fundamental right of websites, viz. the right to trade and occupation of all domestic websites and other start-ups [A], the right of the consumers to choose [B], and the citizens right to impart and receive information [C]. Below is a detailed description of our argument on the above issues, appropriately altered for this blog from the brief. However, the arguments being intrinsically linked to the statement of facts itself, it is admitted that certain portions have been taken verbatim from the brief, and a copy of the problem has also been attached for reference.

A. Violation of right to trade and occupation of the petitioners, other websites and applications on the Internet.

‘Trade’ has been defined by the Supreme Court of India in the case of Sodan Singh v. New Delhi Municipal Corporation[1] as including “any bargain or sale, any occupation or business carried on for subsistence or profit, it is an act of buying and selling goods and services”[2]. Occupation has also been defined as “that which principally takes up ones time, thought and energies, especially ones regular business or employment[3]. It is well known that a website provides services to its consumers in the form of the content or applications available on it. A website depends upon its ISP to enable its consumers to get access to itself. Thus, it logically follows that if the ISP indulges in practices that tend to favour one particular website over another, the website discriminated against loses its interaction with its consumers. Furthermore, due to the violation of the principles of network neutrality, in the long run, such impugned actions shall have the consequence of reducing the amount of innovation in the markets for applications, content and portals at competitive costs to the society[4].

Taking into account the absence of sophisticated technical knowledge about the working of the Internet and the technical intricacies involved in its functioning, consumers are more than likely to put the onus of non-access to a particular application upon the website itself, rather than on the ISP. The ISP may also encourage this as was the case in Comcast v. FCC[5]. This results in a substantial loss of goodwill for the specific application or website among the consumers and individual subscribers.

The above described consequences shall ultimately result in an infringement of the right to trade and occupation of websites and Internet applications.

Furthermore, such practices if allowed shall result in the monopolisation of the network by ISP’s under the garb of claiming a right to practice their trade by blocking certain websites and applications in order to promote either their own Internet applications or other Internet applications favourable to the ISP, further resulting in an infringement of the rights to occupation and trade. Any arguments claiming to rebuff this conclusion as exaggerated shall fail as history has shown a poor track record for last – mile facilities based competition.[6]

B. Infringement of the consumer’s right to choose.

“Article 21 is the heart of the Constitution. It confers right to life as well as the right to choose[7]”. Furthermore, the foremost right of a consumer is to choose from amongst a range of products and services. The consumer’s right to choose is also enshrined under Sec. 6 of the Consumer Protection Act, 1986[8], which states that the consumer has the “the right to be assured, wherever possible, access to a variety of goods and services at competitive prices[9].

In the present case, the impugned actions of the respondents resulted in the denial of the said right to the individual consumer or subscriber of the broadband service as individual subscribers were unable to freely access Internet applications and websites of their choice. Websites like musicforum.com, movieforum.com, et al (members of the group of petitioners) were free and consumers would not have had to bear any costs to view the content of these websites. The content on both websites being similar, it is safe to assume that consumers would prefer the free websites to the paid ones. By disabling its users from accessing the free sites and applications, the respondents infringed upon the individual’s right to choose and to access competitive services of their choice.

C. Infringement of citizen’s right to receive and impart information.

It has been observed by the Supreme Court of India in the case of Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal[10] that “the freedom of speech and expression includes right to acquire information and to disseminate it…it is the best way to find a truest model of anything, since it is only through it, that the widest possible range of ideas can circulate…The right to communicate includes right to communicate in any media that is available whether print or electronic or audio-visual.”[11] Further, it has also been observed that free speech is the foundation of democratic society.[12] A free exchange of ideas and dissemination of information without restraints are the basic ideas of free society.[13] A citizen has a fundamental right to use the best means of imparting and receiving information.[14] Network neutrality essentially protects this free speech right.[15]

It has also been recognised by the Supreme Court of the United States that the potential for abuse of this private power over a central avenue of communication such as the Internet cannot be overlooked.[16] The application of the right of the freedom of speech has also been recognised as applicable to the Internet and cyberspace.[17] Any restriction on such expression on the Internet could result in the “beginning of the end of the Internet as we know it.”

In the present case, the respondents arbitrarily without any justifiable cause degraded the performance of certain websites, rendering it virtually impossible for individuals to communicate and interact via the medium of their Internet applications. The problems arising for individual subscribers regarding the popular social networking site Spacepage.com (similar to facebook.com) are particularly troubling in light of the importance of this site for its users as it has come to dominate human social life, with more than 500 million users across the globe. Furthermore, they actively prevented individual subscribers from downloading legally available movies and games, thus resulting in an obstruction to access legal media to further disseminate information and also preventing further interaction with their peers on the Internet through such sites. This denial and restriction of access results in an infringement of the individual’s right to information[18], thus resulting in a violation of freedom of speech and expression of the individual subscriber and consumers.

[1] (1989) 4 SCC 155

[2] ¶ 27, Also see State of Bihar v. Harihar Prasad Debuka, AIR 1989 SC 1119

[3] BLACK’S LAW DICTIONARY 1079 (7^thed. 1999)

[4] See Barbara Van Schewick, Towards an Economic Framework for Network Neutrality Regulation, 5 J. ON TELECOMM. & HIGH TECH. L. 329 (2007). Also see Timothy Woo, Network Neutrality and Broadband Discrimination, 2 J. ON TELECOMM. & HIGH TECH. L. 141(2003) and Jon N. Peha, The Benefits and Risks of Mandating Network Neutrality and the Quest for a Balanced Policy, 1 INT. J. COMM., 644 (2007)

[5] 600 F. 3d 642 (D.C. Cir. 2010)

[6] Trevor R. Roycroft, Economic Analysis and Network Neutrality: Separating Empirical Facts from Theoretical Fiction, available at http://net.educause.edu/ir/library/pdf/EPO0652.pdf (last visited 3^rd Jan., 2011)

[7] Smt. Har Naraini Devi v. Union of India, WP(C) 2887/2008, available at http://courtnic.nic.in/dhcorder/dhc_case_status_list_new.asp (last visited Feb. 3, 2011)

[8] CONSUMER PROTECTION ACT, 1986, No. 68 of 1986

[9] § 6(c), CONSUMER PROTECTION ACT, 1986, No. 68 of 1986

[10] (1995) 2 SCC 161: AIR 1995 SC 1236

[11] Supra, ¶ 11

[12] Union of India v. Motion Picture Association, (1990) 6 SCC 150: AIR 1999 SC 2334

[13] Ibid

[14] Ministry of Information and Broadcasting v. Cricket Association of Bengal,(1995) 2 SCC 161, ¶ 24

[15] Moran Yemini, Mandated Network Neutrality and the First Amendment: Lessons from Turner and a New Approach, 13(1) VA. J. L. & TECH. 1 (2008)

[16] Turner Broadcasting System Inc. v. F.C.C., 512 U.S. 622, 657 (1994)

[17] Reno, Attorney General v. American Civil Liberties Union, 521 US 844 (1997)

[18] State of U.P. v. Raj Narain, AIR 1975 SC 865