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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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<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
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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.
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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.
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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.
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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.
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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?
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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.
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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
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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.
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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).
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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.
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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.
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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).
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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.
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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.
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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).
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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.
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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).
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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.
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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.
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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).
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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.
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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
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