STATE OF THE INTERNET IN ASIA: THE CASE OF INDIA, MALAYSIA AND PAKISTAN State of the Internet in Asia 1 ACKNOWLEDGEMENTS This report would not have been possible without the information on laws, other research documents and data from monitoring of rights violations from APC partner organisations, in particular, Bytes for All Pakistan, the Digital Empowerment Foundation (DEF) and Persatuan Kesedaran Komuniti Selangor (EMPOWER); and APC. We thank the authors of the country chapters Geetha Hariharan (India), Umer Ali and Haris Bin Munawar (Pakistan), Yasmin Masidi (Malaysia) and Faheem Zafar who coordinated the research and compiled the regional summary. We also wish to thank Ritu Srivastava (DEF), Tehmina Zafar (Bytes for All), Haroon Baloch (Bytes for All), Serene Lim (EMPOWER) and Gayatri Khandhadai (APC) who supported the research and publication. Special thanks to Fingerprints Creative (India) and Saakshita Prabakar for making this publication possible. 2 State of the Internet in Asia CONTENTS IMPACT: PROJECT SUMMARY REPORT2014-2017 007 APC-IMPACT: Project summary 2014-2017 008 Country Report Summary: Pakistan’s Internet Landscape 015 Country Report: India 020 Country Report: Malaysia 023 Patterns across Pakistan, India and Malaysia 026 COUNTRY REPORT: PAKISTAN 028 Executive Summary and Methodology 029 SECTION 1: 032 1.1 Access to the internet 032 1.2 Blocking and filtering 033 1.2.1 Pornography 1.2.2 Blasphemy 1.3 Intermediary liability 037 1.4 Net neutrality 037 1.5 Network disconnections 038 1.6 Data protection 039 1.7 Surveillance and lawful interception 040 1.8 Social surveillance and vigilantism 041 1.9 Cyber armies 041 1.10 Cyber attacks 042 1.11 Government engagement on an international level 044 State of the Internet in Asia 3 SECTION 2: Key players 045 2.1 Federal Investigation Agency 045 2.2 Ministry of Information Technology 045 2.3 Ministry of Interior 046 2.4 Pakistan Telecommunication Authority 046 2.5 Politicians 047 2.6 Internet service providers (ISPs) 048 2.7 Military 049 2.8 Militant religious groups 050 SECTION 3 051 3.1 Digital journalism 051 3.2 Activism on digital media 051 COUNTRY REPORT: INDIA 052 Introduction and Methodology 053 SECTION 1: Constitutional and policy frameworks for internet rights: 055 Global and national 1.1 Understanding the international context 055 1.1.1 The history of internet rights 1.1.2 The ICCPR and the internet 1.1.3 Platforms for discussion 1.2 India’s framework for internet rights: Constitutional, 058 legal and policy 1.2.1 Fundamental rights in the Indian Constitution 1.2.2 Legal frameworks 1.2.3 Policy spaces for discussion and development of internet rights 4 State of the Internet in Asia SECTION 2: Access 060 2.1 The situation until 2014 2.2 Access: 2014 to 2017 SECTION 3: Intermediary liability 061 3.1 Existing framework for intermediary liability 3.2 Intermediary liability regime: 2014 to 2017 3.2.1 Sub-indicator 1: State does not delegate censorship to private entities 3.2.2 Sub-indicator 2: State requests to internet intermediaries to prevent access to content, or to disclose private information SECTION 4: Right to privacy and data protection 067 4.1 Existing framework for privacy and data protection 067 4.1.1 Privacy legislation 4.1.2 Surveillance and monitoring 4.2 Privacy regime: 2014 to 2017 070 4.2.2 The draft Privacy Bill 4.2.3 India and the fundamental right to privacy SECTION 5: Arbitrary blocking of content 073 5.1 Existing framework for content blocking 073 5.2 Content-blocking regime: 2014 to 2017 075 5.2.1 Sub-indicator 1: There are no generic bans on content 5.2.2 Sub-indicator 2: State blocks or filters websites based on lawful criteria 5.2.3 Website blocking in India State of the Internet in Asia 5 SECTION 6: Criminalising legitimate expression 080 6.1 Legal framework for criminalisation of online freedom 080 of expression 6.1.1 The Indian Penal Code 6.1.2 The IT Act 6.2 Threats to legitimate expression: 2014-2017 083 6.2.1 Instances of arrests for stated reasons of sedition and hate speech 6.2.2 Section 66A declared unconstitutional 6.2.3 Criminal defamation upheld as constitutional SECTION 7: Internet shutdowns 087 7.1 The Law on Internet Shutdowns 087 7.2 Instances of internet shutdowns in India 089 SECTION 8: Gender rights and sexual expression 091 8.1 Legal framework for sexual expression 091 8.1.1 The Indian Penal Code and Indecent Representation of Women (Prohibition) Act 8.1.2 The IT Act 8.2 Gender rights and sexual expression: 2014 to 2017 093 8.2.1 Online harassment of women 8.2.2 Suresh Koushal and LGBTQI Rights SECTION 9: Internet governance 095 9.1 The situation until 2014 095 9.2 Internet governance: 2014 to 2017 097 SECTION 10: Findings and recommendations 098 6 State of the Internet in Asia COUNTRY REPORT: MALAYSIA 100 SECTION 1: Introduction 101 1.1 Overview: Freedom of expression online in Malaysia 101 1.2 Overview of the research 101 SECTION 2: General protection of freedom of expression 102 2.1 Legal and policy environment since 2015 102 2.2 Missing from the picture 103 SECTION 3: Restriction of online content 105 3.1 Arbitrary blocking and filtering 105 3.2 Criminalising legitimate expression 106 3.3 Imposition of internet intermediary liability 108 3.4 Disconnecting users from the internet 108 3.5 Cyberattacks 108 3.6 Protection of the right to privacy and data protection 109 SECTION 4: Access 110 4.1 Access to the internet 110 4.2 Access to information 110 SECTION 5: Reccommendations 111 5.1 A strategic dilemma? 111 5.2 Recommendations 111 APPENDIX 1: APC-LA RUE FRAMEWORK 114 State of the Internet in Asia 7 CHAPTER 1 IMPACT: PROJECT SUMMARY REPORT 008 State of the Internet in Asia APC-IMPACT: PROJECT SUMMARY 2014-2017 The APC-IMPACT (Advocacy for Change (UPR) process.2 The following subsections of through Technology in India, Pakistan the report look at the summary of the project and Malaysia) programme consisted of activities and the outcomes achieved in India, four thematic areas and the project was Malaysia and Pakistan. based in three countries. The project was executed by the Association for Progressive Communications (APC) with local partners in India, Pakistan and Malaysia. In Pakistan, • APC-IMPACT in India: Bytes for All, Pakistan executed the project, in India it was Digital Empowerment Foundation Keeping in line with the objectives of (DEF), and in Malaysia, Persatuan Kesedaran the project, DEF submitted its UPR Komuniti Selangor (EMPOWER).1 Under the contribution for India’s Third UPR cycle, first thematic area of research and monitoring, 2017, to the United Nations Human Rights 3 partner organisations studied the state of Council (UNHRC). The UPR was authored online-freedom of expression and association, in association with partner organisations, patterns of hate speech, digital security including APC. The UPR highlighted the and violations of internet rights. A second restrictions imposed by the Government component consisted of capacity building, of India (GoI) on Freedom of Expression which required contextualisation of digital (FoE) and speech, consequences of the 4 tools and curriculum related to internet- state-led crackdown on the internet. These rights and enabling human rights defenders included censorship of the URL/websites to strategise their digital security through and network shutdowns and arrests of training and awareness raising exercises. The citizens for engaging in online activities third component underscored strengthening to form associations; including social institutions through organisation of regional media platforms such as Twitter, Facebook workshops with national stakeholders, and digital communication apps such as particularly civil society activists and WhatsApp. The report highlighted lack of groups from India, Pakistan and Malaysia. adherence to transparency and compliance Lastly, networking and advocacy, required with national policies, domestic laws engagement in regional and international and international standards to blocking 5 platforms for promotion of internet rights, and censorship. The report also cited domestic advocacy for freedom of expression, proposed laws that could extend more association and assembly right to information powers to the state, especially intelligence online, and participation in country agencies for surveillance with few or consultation for the Universal Periodic Review absence of any checks. Such proposed 1 www.apc.org/en/project/advocacy-change-through-technology-india-malaysia-and-pakistan 2 Ibid. 3 www.internetrights.in/wp-content/uploads/2017/03/Coalition-UPR-Report-2017_India_Full-Report.pdf 4 Ibid. 5 Ibid. State of the Internet in Asia 009 laws and policies include Privacy Bill, Spectrum, Google India-DEF Launches 2013; Draft National Encryption Policy, Good to Know Campaign for Web 2015 and DNA Profiling Bill, 2015. The Safety, National Consultation on Internet UPR 2017 also cited concerns on barriers Rights, Accessibility, Regulation & Ethics for women in accessing information Inauguration & Plenary: Right to Internet and communications technologies for Right to Information and Round Table (ICTs) courtesy of the socio-economic Discussion on Internet Governance.10 inequalities. The UPR also identified Moreover, for meeting its capacity building thematic areas such as access to internet, related objectives, DEF prepared and right to information, freedom of opinion uploaded its entire IRHR curriculum on its and expression online, right to privacy, website www.internetrights.in. The training freedom of association and assembly curriculum consisted of four modules online, gender and the internet, cybercrime including resources translated in the Hindi and sexual exploitation, international language, with provision of presentation mechanisms and recommendations to slides, handouts, and discussions and case- the GoI. DEF also published a summary studies for the individual participants and document on the UPR 2017;6 and published trainers.