Supreme Court of India Comes Down On Bloggers 131
An anonymous reader writes "The Indian Supreme Court has ruled that bloggers cannot shelter under an escape clause such as 'Any views expressed are solely those of the writers' to exercise freedom of speech in discussions and statements online. The ruling comes in response to an anti-defamation case filed against a 19 year old student's Orkut community, commenting upon the right-wing political organization Shiv Sena. This organization is based in the western state of Maharashtra and has been responsible for inflammatory speeches and numerous attacks upon non-Maharashtrians." The article does not make it entirely clear whether the student owner is himself accused of defamatory speech, or only commenters posting on his site. His defense that an Orkut community is not equivalent to a public forum was denied.
A column of democracy...FREEDOM OF EXPRESSION! (Score:1, Interesting)
My request to all media is to stand up and speak out on this issue. Freedom of speech and freedom of press are essential to India keeping true to its democratic tradition.
The judges of even the higher courts have to pay close attention to developing trends including social networking and impact on society and cultural norms. Criticism of
political parties has to be protected...
=Smidge=
Re:A column of democracy...FREEDOM OF EXPRESSION! (Score:4, Insightful)
Freedom of speech has limits. If what you say is untrue and can reasonably be argued to damage someone's reputation, then that person has a legitimate case. I haven't read the blog in question, but it boils down like this:
If I say something like "I don't like Smidge because I don't believe in his ideology", that's neither inflammatory nor defamatory.
If I say something like "Smidge is a threat to democracy in India!", that's inflammatory, but too general to be libelious. Smidge could bring a suit against me, but it would likely die before seeing a court room.
If I said something like "Smidge should be arrested because he makes kiddie pr0n", that's inflammatory and defamatory, and would likely go to trial.
Disclaimer: The views expressed in this message belong to no one in particular, and are likely just random characters assembled by my army of monkeys with typewriters. And IANAL.
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Given that this is Shiv Sena that we're discussing, about the only things you could say about them that *aren't* true are the things nobody would believe. Like "they are decent human beings". Or "They don't actually eat children"
Seriously though, SS is full of violent fundamentalists on par with any US based hate group, suing people for using Orkut is better than their usual tactics [slashdot.org] with Orkut users.
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Disclaimer: The views expressed in this message belong to no one in particular, and are likely just random characters assembled by my army of monkeys with typewriters. And IANAL.
RTFA. That defense no longer works because comments by random people on a blog are actionable in India. There is no difference, legal or otherwise (in India), between blog commenters and monkeys randomly bashing away on keyboards.
There, fixed that for you.
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The Supreme Court didn't say the guy was guilty of defamation. It refused to shield him from a criminal trial. I don't know Indian law so can't say if the defense will hold up, but TFA does not imply that it won't; that won't be determined until the trial.
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Smidge is gay, fyi. I should know, I fucked him last Friday. He give a mediocre blow job, but railing his ass is pretty good.
so, you're gay.. nice to know
Good way to drive them underground (Score:1)
Do not disparage the "Anonymous Coward"
Re:Good way to drive them underground (Score:5, Funny)
Re:Good way to drive them underground (Score:4, Insightful)
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Is this so different than the U.S? (Score:5, Interesting)
Re:Is this so different than the U.S? (Score:5, Informative)
Yeah but most libel suits in the U.S. get thrown-out because they have no merit. This sounds like that type of case.
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But after how many dollars are wasted? And all the other stress factors? This only further illustrates the necessity of anonymity.
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You have a point, but the important thing is that it would never be allowed to stand, which means the blogger would never see the inside of a jail cell. The system might not be ideal, but it works.
Re:Is this so different than the U.S? (Score:4, Insightful)
The threat of having to spend the money to defend yourself, possibly of having to be arrested and incarcerated while awaiting a criminal trial, is onerous enough that it would keep people from speaking freely.
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You wouldn't be incarcerated for something like this. Another indication that the system is better.
As to the expense, yes, you do have a point. There are ways to get around that, but it is a problem. I don't think it stops many people from speaking out though.
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You might be put in jail while awaiting trial/appeals. Unless SCOTUS has lost it, you would NOT be put in prison (which only happens after convictions/appeals/etc AFAIK)
IANAL, IAN a cop, etc.
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No you wouldn't. Not for something like this. You wouldn't even need to post bail. No imprisonment involved in an inherently non-criminal case. Again, the system works.
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On big difference is that the US has far better protection of free speech than India (or Europe). Hurting people's feelings is not a criminal offence in the US, as it often is in India [dancewithshadows.com]
Re:Is this so different than the U.S? (Score:5, Informative)
Re:Is this so different than the U.S? (Score:4, Insightful)
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You will change your opinion if you watch Live Assembly proceedings of Indian States.
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Oh Boy (Score:3, Insightful)
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You are currently on level Jury box.
The next level is Ammon box.
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Some people have already taken that step in their dissatisfaction with the Indian government; there is a substantial Maoist insurgency in the countryside in some parts of India.
Naturally the government isn't taking this lying down. They have, apparently having spent their school history classes smoking behind the bike sheds, recruited a brutal right-wing militia to put down the communist uprising.
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Re:Oh Boy (Score:5, Interesting)
Naturally the government isn't taking this lying down. They have, apparently having spent their school history classes smoking behind the bike sheds, recruited a brutal right-wing militia to put down the communist uprising.
This claim is a complete pantload of bullshit. You've been smoking whatever Ganja the naxalite-Communist terrorists have been feeding you. The NHRC has long since debunked these absurd conspiracy theories. SJ is privately funded. To be sure, they have sympathizers in government, but their money mainly comes from private donations from the local landlords etc., much like Ranvir Sena in Bihar.
I'll bet you believe (like many Communists in India have propounded) that the recent Mumbai terror attacks were part of a secret conspiracy between Hindu bankers and the Jews, right?
The Communist-controlled Indian media has glorified the Maoists and demonized their opponents, but the fact remains that the Maoists are a China-funded terrorist group that actively seeks to destroy India and depopulate the North-eastern states as a vanguard for a possible Chinese invasion from Tibet. Numerous documents were released by the FOIA division of the CIA that showed how Moist militants received financial support from China and infiltrated the Indian Army in the 1962 Sino-India war.
The CIA has already provided evidence as to how Indian Communists, underthe instructions of their Chinese paymasters, infiltrated the Indian Army during the Sino-Indian war and betray military secrets to Beijing.
http://www.foia.cia.gov/CPE/POLO/polo-07.pdf [cia.gov]
http://www.foia.cia.gov/CPE/POLO/polo-08.pdf [cia.gov]
http://www.foia.cia.gov/CPE/POLO/polo-09.pdf [cia.gov]
http://www.foia.cia.gov/CPE/ESAU/esau-15.pdf [cia.gov]
Highlights include:
#CPI(M) [Communist Party of India Marxist] heavyweight HK Surjeet influenced by Communist Soviet Russia to setup an underground organization
#CPI(M) did proceed to recruit a secret organization within the Indian Army.
#China and Soviet Russia both insisted that the CPI(M) must develop a standby apparatus capable of armed resistance, while intensifying penetration of Indian Military forces.
#With the People's Liberation Army now present along the Indian Border the Indian Party had a channel of support for Armed Operations and a potential "liberator" in the event of mass uprisings - 13 Sept 1959
#4 powerful radio sets had been installed in the office of the China Review in Calcutta to listen to broadcasts from Beijing
#Chinese Financial Subsidies to sections of the CPI(M) particularly the left faction strongholds in West Bengal
#A foreign supply base was now available for the underground organizations with the Chinese occupation of Tibet and other frontier areas.
#Letter asking for collaboration in Indian underground organization work aimed at an eventual revolution, because China has a border with India and can provide arms and supplies.
#Also Jaipal Singh, head of the illegal organization within the Indian Army decided to reactivate his organization in 1961 following the hard left faction gaining control of the party.
In addition, the Communist Party of India have successfully carried out several pogroms and genocides against Hindus and Tibetan refugees in India, particularly during the 70's and 80's (read up on the Nanoor genocide and Morichjhanpi genocides sometime, the Communist controlled Indian media will never discuss these things, of course), all as part of a Trotskyist strategy of maintaining a state of "permanent revolution" (the most recent one being the Nandigram SEZ genocide), all at the behest of their Chinese paymasters.
China has also aggressively sponsored the terrorist Naxalite Communist terror movement in India by financing major Communist radicals (ethnic Bengali Bolshevists
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Woah.
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However, I would tend to view publicly available CIA documents which make China, Russia and other assorted communists look bad as having questionable neutrality.
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But they haven't been so stupid as to say Hindi bankers and Jews planned it.
They do say these things. Amaresh Misra, a major ideologue for the Communist Party, even published this ludicrously anti-Indian/antisemitic conspiracy theory in Communist party mouthpiece:
http://www.countercurrents.org/misra031208.htm [countercurrents.org]
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If it bleeds it leads.
Re:Oh Boy (Score:5, Insightful)
That system has its pluses and minuses. The minus is pretty obvious in this case. The plus is that their judiciary, though as corrupt as the rest of the country, is under no political pressure. I would check this with some of our Indian friends here, but I think its pretty hard to fire a judge there.
Re:Oh Boy (Score:5, Informative)
Also, the judge who delivered this judgment was no less than the Chief Justice himself. Thing is, he hasn't said that what the blogger said was wrong. He says that the blogger is responsible for what he writes.
I'm disturbed by this. I believe the Internet should be a place where anyone can say anything. This will only increase anonymous blogging. On the other hand, I would be very hesitant to trash the judiciary as it's one of the few pillars of Indian society that is keeping corrupt politicians from doing whatever the hell they want.
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I'm disturbed by this. I believe the Internet should be a place where anyone can say anything. This will only increase anonymous blogging. On the other hand, I would be very hesitant to trash the judiciary as it's one of the few pillars of Indian society that is keeping corrupt politicians from doing whatever the hell they want.
Indian judiciary is independent of government. Indian supreme court even went so far as to indict the government under Indira Gandhi when she declared emergency and suspended the constitution in 1984.
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Wrong.
Indian Parliament is SUPREME because they are answerable & accountable to 1,147,995,904 (July 2008 est.) Indians.
Supreme Court is SECONDARY, because they are answerable & accountable ONLY to the LITIGANTS.
Supreme Court cannot decide the OPTIMUM train or bus fare rate in India.
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You're a nutcase.
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Sorry, I got the chronology wrong. My mistake. However, her government and several of her boy-toys in said government were indicted by the courts over the years, going back to the Allahabad High Court in 1975 itself (though they couldn't do much about it when the women effectively seized power).
http://timesofindia.indiatimes.com/India/Chawla_was_indicted_for_Emergency_excesses/rssarticleshow/4058011.cms [indiatimes.com]
http://www.boloji.com/plainspeak/015.htm [boloji.com]
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I do not think you can. I have spent some time in India in the past. Judges there are not elected.
Electing Judges is pretty much specific to the USA. I don't know of any other countries which do that. And considering the number of people here who accuse US Judges of populism, I think appointed Judges are better over all.
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The plus is that their judiciary, though as corrupt as the rest of the country, is under no political pressure.
... gasp! OK, I just picked myself off the floor after LMAO.
Of course they are vulnerable to political pressure: promotions to higher courts depends entirely on the current administration in charge.
Not to mention the threat of a "transfer" to the boondocks, where it's quite commonplace for judges to be menaced by local politicians and thugs (the same thing, really) into doing their bidding.
Not only Judiciary (Score:1)
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Yes, things are bad and in some areas getting worse. But in other ways they are getting better. The world is far more free now than it was 30 years ago. The long term trends are positive.
Furthermore, there's a selection bias. Slashdot and similar news sources report on the bad things, the censorship and the stupid use of libel laws. We don't see the smaller victories when ISPs or governments slowly decide to rollback censorship. Look at anti-pornography laws in the US. They haven't been taken off the
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Yup. Gandhi was imprisoned 4 years for sedition.
But what do you mean "like the US"? How can the U.S. be considered the bastion of freedom of speech, unless in name only?
http://en.wikipedia.org/wiki/Alien_and_Sedition_Acts [wikipedia.org]
http://en.wikipedia.org/wiki/Sedition_Act_of_1918 [wikipedia.org]
http://en.wikipedia.org/wiki/Fairness_Doctrine [wikipedia.org]
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Err, all of the above were repealed or overturned.
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But they all existed for some time and were enforced to some extent. And there's (serious) talk of bringing the Fairness Doctrine back.
My point was that "free speech" is not as universally held dear and timeless as we'd like to imagine.
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Of course it's not universally held dear; if it was, we wouldn't need that pesky First Amendment, because there wouldn't be bastards passing laws to abridge it in the first place.
While India has a similar right in its constitution, it's also got a few "notwithstanding" clauses which render it worthless.
Re:Oh Boy (Score:4, Insightful)
Or there are more than two sides, more valid viewpoints than two overarching "types" could adequately represent. There are a hell of a lot of people in the US that are perfectly fine with gay marriage AND being fiscally responsible. That doesn't fit into the "liberal" or "conservative" bracket, though.
Precedence (Score:5, Interesting)
Putting aside the particulars of this case, something that really bothers me about law in general is that somebody has to be punished for a precedent to be set.
Suppose (taking an example from this case), the fellow genuinely believed that an Orkut community was not equivalent to a public forum. Without a very specific law, and without a ruling on the matter, all a lawyer would be able to tell him would be "maybe".
So your choices: a) play it safe, and never do anything that hasn't specifically been ruled "legal", or b) proceed, and when you're the first to find out it's not legal, you get slapped hard.
"a" is what most people choose, and it's among the largest costs of our lawyer-ocracy.
Is there a way for a judge to declare something illegal while letting a guy off the hook if he genuinely had no way to know for sure?
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The judge can suspend the sentence [wikipedia.org].
Re:Precedence (Score:4, Insightful)
I've often wondered why there isn't a mechanism by which a person/company can go to a court and get some kind of "advanced ruling" or "pre-judgment". Basically you file some kind of case that is asking the court/judge "if I go ahead and do this... will it be legal?" Then based on the ruling, you can decide whether or not to do it. I would imagine that such a ruling would not be 100% binding, in the sense that you could still be sued even with a supportive "pre-judgment"... but presumably having such a judgment would go some way towards building a defense case and a long way towards demonstrating no willful disregard for the law.
Presumably the party asking for a such an advanced ruling would have to pay for their lawyer (and maybe some court fee?), but I would guess that it would still be highly valuable to many companies. There are so many startups that try things that are legally questionable (e.g. Psystar), and probably thousands of other startups that never see the light of day because investors are unsure about the legality. Shouldn't there be a way for these new ideas to be ruled legal/illegal without the massive risk of just going out and doing it!?
Of course IANAL so for all I know something like this already exists. Please educate me if so.
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Agreed, and even if there has been a ruling or legislation on it before, there still needs to be a way for the average person to find that out (without prohibitive expense). Must I go put on shoes, or can I legally drive here wearing basic thong sandals?
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This is possible in the US under limited circumstances. It's called a "suit for declaratory judgment". One of the few situations in which it is possible is when someone wants a court to declare that a product does not violate a patent.
In general, however, this is not possible. The US court system was explicitly set up to prevent it. Article III, section 2, clause 1 of the Constitution empowers the courts only to hear cases involving "actual controversy". This has been interpreted as preventing the courts
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Sort of. On the one hand, the courts operate on the perhaps dubious principle that "ignorance of the law is no excuse". However, in quite a few cases, laws have been declared unconstitutional on the grounds of excessive vagueness. In other words, if the legal establishment is clear as to what a law means, ordinary people are assumed to know what it means too, but if even the lawyers and judges find it too unclear, violators can't be held responsible.
This does mean, though, that the defendant has to be ab
Freedom and Shackles are not compatible (Score:5, Insightful)
>>>The Indian Supreme Court has ruled that bloggers cannot shelter under an escape clause to exercise freedom of speech
If the politicians/leaders have shackles on your mouth, you are no longer free. They own your mouth and control what can be said. You are a slave.
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To be fair, free speech never existed and never will. Constraints will always be put on speech because society only likes and wants to allow speech that is socially acceptable. That's why hate speech is illegal in many places--people don't value freedom of speech for the sake of freedom of speech, they look to utilitarian value of speech and they'll drop the principle in a moment, claiming "free speech doesn't cover X" while doing so.
You may not like it, but it's a feature of liberal democracies, and as l
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>>>You may not like it, but it's a feature of liberal democracies, and as long as we have liberal democracies the individual will always be subservient to the whole.
Then we should eliminate liberal democracies and replace them with liberal republics, that recognize that the individual right of free speech, et cetera is more important than the whole. That's what the U.S. was conceived to be in 1789, such that free speech was NEVER censored. Yes you heard correctly: never. Not even if you yelled "
Re:Freedom and Shackles are not compatible (Score:4, Informative)
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That's only half the story. There were two major parties at the time.
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Actually, the argument over the Bill of Rights was that if it were included than possibly sometime in the future the government might assume that the rights enumerated within might be considered the only rights that citizens have.
Hence the 9th Amendment, which clearly states:
Here in the U.S., citizens have any and all rights to do whatever they can imagine, the sole exceptions be
Re:Freedom and Shackles are not compatible (Score:4, Insightful)
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True freedom doesn't exist as long laws limit people. Doesn't make you a slave tho. You are a slave when you have no rights at all.
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If the politicians/leaders have shackles on your mouth, you are no longer free. They own your mouth and control what can be said. You are a slave.
I hardly think that because you are limited in what you can express, you are a slave. That is a hyperbole of epic proportions.
This is nothing to do with politicians/leaders having control of what you say, or think - rather, limiting what you say or think.
Take the Sydney Cronolla Riots in Australia - where born-Australians and Middle Easterns in the Cronulla Beach Area degraded into urban warfare in 2005 [wikipedia.org]. This was fuelled by commentaries on the radio against Lebanese people. If a ban was put on that type of
No escape clauses in there. (Score:2, Insightful)
The Indian Supreme Court has ruled that bloggers cannot shelter under an escape clause such as 'Any views expressed are solely those of the writers'
That isn't any kind of escape clause. Basically, it's a clause that says that views ARE the responsibility of the writers. "Editors" aren't mentioned as a writer, but they could be described as such. In addition, it doesn't say anything regarding to expressions presented not as a "view" but as a "fact".
Free speech vs. defamation (Score:4, Interesting)
Can someone please tell me where exactly free speech ends and defamation begins?
Is sarcasm defamation? Is questioning the reasons for the existance of a political organization(like in this case) defamation?
Coming to this case.. the comments were made in a forum which was intended for this very purpose. What next are they going to do, jail everyone who was a member because they are associated with someone posting a nasty message?
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IANAL, much less an Indian one, but on the assumption that Indian defamation law is based on English defamation law then it's defamation to make claims of fact (as opposed to opinion) which injure a person's good name (so they have to have one) and which you cannot prove to be true. In the case of published defamation the person who made the claim and the publisher would both be liable. I think they're going for the blogger as the "publisher" of comments made by third parties on his blog.
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Standards for defamation will vary by state, but very generally it amounts to making a about someone that causes some measurable harm to their reputation, employment prospects, or exposes them to public hatred or obloquy.
In U.S. law, this gets murky because we have the First Amendment. The First Amendment guarantees free speech, but doesn't generally give you carte blance to te
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This isn't a defamation case in the usual sense. The guy is charged under an Indian law that criminalizes divisive speech.
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When your speech affects someone more powerful than yourself, it becomes defamation. In other words, the right to free speech only affects speech that doesn't matter.
I read that as.. (Score:2)
I think I have a problem. :(
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Indian democracy is a hash. (Score:5, Interesting)
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Ouch, so judges can be bought into the Indian Supreme Court, eh? Sounds horrible. Glad I don't live there.
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In addition, this was delivered by the Chief Justice of India himself and he is known to be an upright man.
Even though I find it disturbing, the Chief Justice has not said that what the blogger said was wrong - that's another issue. He is saying that bloggers are liable for what they say. That isn't really a first though - Barkha Dutt and NDTV threatened to sue a blogger from criticizing them, and they were a m
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Whoa! Be careful with those words my friend.
The SCOI does not take kindly to accusation of corruption within its premises.
First of all understand the law:
Indian law follows the British model and NOT the US model.
Indians do not have the constitutional right to free speech by default. Yeah, newspapers and others have.
But unlike the Republic of California, bloggers are NOT reporters, so the immunity does not extend to them.
Which is why the colonial relic: OSA is still in India.
And No, the parlimentary model en
Maharashtrians? (Score:2)
responsible for inflammatory speeches and numerous attacks upon non-Maharashtrians."
Which quadrant of the galaxy are Maharashtrians from?
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That would be Alpha Quadrant [memory-alpha.org].
The Maharashtrians [wikipedia.org] are an ethnic group from the west of India, a state on the planet known as Earth. You know where that is.
issues are unclear (Score:3, Interesting)
The press report on this case is too vague to allow us to determine what the Supreme Court decided. Indian Supreme Court decisions are not published on the net, are they?
There seem to be at least three issues here. First, is the student's blog community a public forum? If it is, the potentially offending material is "published" and subject to legal action. If it is not, it is essentially a private discussion and not subject to legal action. The press report suggests that this is one of the issues and that the court decided, probably correctly, that the student's blog community is not private.
Second, is the author of the blog responsible for the posts of commenters or only for his own posts? The article suggests that this is an issue in that it is what the disclaimer refers to, but it isn't clear what Indian law says about this issue and what exactly the Supreme Court said about it.
Third, what sort of content is actionable? This is not a libel case, and based on what little the article says about the offending content, would not be actionable as a libel case in the US or even, I think, in England. India apparently has a law that criminalizes the publication of statements that are divisive. It is this law under which the student has been charged. It sounds like a law that would be unconstitutional in the US.
Re:issues are unclear (Score:4, Informative)
Supreme Court of India cases are on-line, at http://judis.nic.in/supremecourt/chejudis.asp [judis.nic.in]. However, I can't find this case. Maybe I've missed it, or maybe the decision is too recent and hasn't yet been posted.
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I thought it said "Burgers" (Score:2)
Why does this matter? (Score:2)
India has bigger problems it's working hard on ignoring. The lack of clean food and water. The epidemic homeless situation. The missing education system for most of the population. The degraded farmland and the rubbish mountains.
All of the above are more important than the right to abuse people in blogs.
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Fail. Free speech and the rights of an individual are the foundation of a prosperous society.
The foundation of a prosperous society are enough basics like food, water, and enough land for everyone to survive without having to rob or kill each other.
Personal freedoms and the rights of individuals are noble concepts but how much freedom does a starving and unemployable man have?
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India fought for independence when fighting for the right to self determination even though there were homeless people at that time too. Should the freedom fighters have said "We have bigger problems?"
The lower infrastructural facilities in India deserve attention, no doubt, but not at the cost of what makes India a free country. Also, why is are you implying that the two are exclusive? You can't say - "First I will do this, and the
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Hmmm...
Thousands of veterans homeless roaming around with NO medical care. Thousands without medical insurance and necessary care.
Millions of homes foreclosed so far throwing thousands of families on streets or tin-can homes
A dysfunctional education system "enables" a student to go into Debt for $50K easily and results in them selling their virginity to fund the same.
A Monsanto owned food chain that is an absolute monopoly and plays havoc with the lives of the farmers and also damages the Soil.
A bankrupt ba
Uhh, missing something? (Score:3)
The only question is, are we (or even just Slashdot, or the OP) now liable for content posted by others here? Some of it apparently derogatory to the Indian government?
*That* is the chilling effect that we can't tolerate.
Wait... (Score:2)
Somebody is still using Orkut?
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Orkut is *very* popular in India. Everybody is on Orkut. To most of my friends (and relatives), if you are not on Orkut, then you dont exist.
That they are doing the Internet equivalent of running around on the streets naked is lost on them.
-Abhijit
Same Old Story (Score:1)
Shiv Sena is a political party in India. They've been around since the mid-60s and are generally described as being far right wing conservatives. They tend to be Buddist and have been accused of violence against Muslims. When they oppose the message they are quick to protest movies or other media, such as bloggers.
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No! No! No! Shiv Sena is not Buddhist. It is Hindu. The name means "Army of Shiva", one of the three main Hindu gods.
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I am so sorry, you are absolutely correct. My sincere apologies for getting Hindu and Buddism mixed up in my response. I would edit my original, if I could.
Anonymous Coward (Score:1, Interesting)
RTFA!! I think we are all missing the point here. The ruling doesn't say that you would be criminally prosecuted for your own views. The defamatory statements made against the Shiv Sena were not of the person who created a community (please can we stop calling him a blogger? ).
He is being prosecuted for comments others put on a community that he started. So not only would you be prosecuted for your own comments. If you have initiated a discussion and someone says something defamatory, you can be held in lib
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India didn't win 8 oscars. A. R. Rahman won 2 oscars. Resul Pookutty won 1 oscar with Richard Pryke and Ian Tapp.
The other awards did not come to India.