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TeLawgram

’21 Week 8 (19/02 – 25/02)

Greetings! This week has seen significant developments in the legal arena with the notification of the latest OTT regulations in India to the enactment of the New Media Law in Australia.
Happy Reading!

Greetings! TeLawgram presents a roundup of the biggest legal updates of the past week, and reading material therein, for your perusal. Happy Reading!

India
International
CfPs and Seminars

India

The Central Government notifies OTT Regulations 

The Ministry of Electronics and Information Technology, on 25th February, 2021, notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (‘Rules’). The Press Information Bureau notification states that public outcry over lack of transparency and accountability of intermediaries coupled with the rampant spread of fake news on digital media platforms are two of the major reasons that the new Rules were notified. The new Rules supersede the Intermediary Guidelines Rules of 2011 and has various new definitions including “significant social media intermediaries” which have been defined as intermediaries that have a significant number of registered users as notified by the government from time to time (presently fifty lakh). 

The Rules provide for three levels of self-regulation mechanisms: by publishers (Level-I), self-regulating bodies of publishers (Level-II) and the Central Government (Level-III).  At Level-I, publishers are obligated to appoint grievance officers who address complaints within a period of fifteen days. The self-regulating bodies defined in Rule 12, will be constituted by associations of publishers and headed by a retired judge of the Supreme Court, High Court or an eminent person in the field of media. Rule 13 provides for an oversight mechanism by the Central Government. As a part of the oversight mechanism, an Inter-Departmental Committee will be constituted, comprising representatives from different ministries. The Committee will hear violations of the Code of Ethics periodically. Apart from the detailed regulatory mechanism, the Rules impose several other obligations in the form of a Code of Ethics, appended to the Rules and the requirement of a monthly report. 

Suggested readings: 

  1. The Rules can be found here
  2. Click here for the latest notification defining “significant social media intermediaries”.  
  3. Harsh Jain & Sankalp Jain, Regulation of Content on OTT Platforms: An Explainer (Dec. 21, 2020), http://techlawforum.nalsar.ac.in/regulation-of-content-on-ott-platforms-an-explainer/
  4. Deepali Bhandari & Abhigyan Tripathi, Censorship of OTT Media Services: Restraining Freedom of Speech? (Dec. 23, 2020), https://lawschoolpolicyreview.com/2020/12/23/censorship-of-ott-media-services-restraining-freedom-of-expression/
  5. Kinjal Keya & Aditya Pratap Singh, OTT Regulation: A Need for Modern Day Entertainment (Feb. 14, 2021), http://csipr.nliu.ac.in/technology/ott-regulation-a-need-for-modern-day-entertainment/

Delhi Sessions Court grants Disha Ravi bail

A Delhi Sessions Court, on 23rd February, 2021, granted bail to environmental activist Disha Ravi. Ms. Ravi was arrested for being a part of a “global conspiracy” and committing offences under Sections 124A and 153 of the Indian Penal Code (‘IPC’) for sedition and provoking riots respectively . The prosecution contended that a set of documents created by an organization called the Poetic Justice Foundation in a “toolkit” concerning the farmers’ protests   contained seditious material. The Delhi Sessions Court observed that none of the documents in the toolkit contained material that was seditious, although it found that some of the material may be objectionable in nature. It noted that Ms Ravi had cooperated with the investigation and that no purpose would be served by keeping her in custody.  

Suggested readings: 

  1. Click here for the judgement. 
  2. Gautam Bhatia, Safoora Zargar and Disha Ravi: A Tale of Two Bail Orders (Feb. 24, 2021), https://indconlawphil.wordpress.com/2021/02/24/safoora-zargar-and-disha-ravi-a-tale-of-two-bail-orders/.  
  3. Siddharth Narrain, Disaffection’ and the Law: The Chilling Effect of Sedition Laws in India, 46  Economic and Political Weekly 33 (2011).   
  4. Abhinav Sekhri, Descending into the Abyss: The Denial of Bail in the KLE Students Case. (Mar. 13, 2020), https://criminallawstudiesnluj.wordpress.com/2020/03/13/descending-into-the-abyss-the-denial-of-bail-in-the-kle-students-case/
  5. Ayesha Pattnaik, The art of dissolving dissent: India’s sedition law as an instrument to regulate public opinion (Oct. 4, 2019), https://blogs.lse.ac.uk/southasia/2019/10/04/long-read-the-art-of-dissolving-dissent-indias-sedition-law-as-an-instrument-to-regulate-public-opinion/.

Madras High Court rules that the State must pay compensation for unforeseen deaths or injuries in government hospitals

In a significant ruling, the Madras High Court held that the State is obligated to pay compensation to the family of a deceased or injured person if the death or injury occurred in a government hospital. The petitioner filed a writ petition claiming compensation for the death of her daughter who was seven years old. The enquiry committee’s report indicated that there was no medical negligence since the drug administered by the anaesthetist is regularly administered to children over three years of age. The Court observed that there was no material to show that the deceased suffered from an illness that could cause the drug to have fatal effects. However, the Court fastened liability on the State government since the hospital was a government institution. The State was directed to pay rupees five lakhs as compensation from the corpus that was created by the Tamil Nadu Government. 

Suggested readings: 

  1. The judgement can be found here
  2. Daniele Bryden & Ian Storey, Duty of care and medical negligence, 11 British Journal of Anaesthesia 124 (2011).  
  3. M. Yadav, M. Bansal & P. Garg, Ophthalmology Medical Negligence Cases Decided by the NCDRC: Retrospective Study, 16 Indian Internet Journal of Forensic Medicine and Toxicology 59 (2018). 
  4. Talha Abdul Rahman, Medical negligence and doctor’s liability, 2 Indian Journal of Medical Ethics 60 (2005). 
  5. M S Pandit, Medical negligence: Coverage of the profession, duties, ethics, case law and enlightened defense – A legal perspective, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2779963/ (last visited Feb. 27, 2021).

Married woman’s heirs to be considered family, for the purposes of succession

The Supreme Court on 22nd February, 2021 decided in Khushi Ram and Ors. v. Naval Singh and Ors.,  2021 SCC OnLine SC 128 that according to Section 15(1)(d) of the Hindu Succession Act, the beneficiaries of the father of a Hindu female are covered under people qualified for intestate progression of property of a female Hindu. The Court held that the beneficiaries of the father of a female ought not to be considered as outsiders but as beneficiaries from the family per se.  

A Bench of Justices Ashok Bhushan and R Subhash Reddy stated that “A perusal of Section 15(1)(d) indicates that heirs of the father are covered in the heirs, who could succeed. When heirs of the father of a female are included as a person who can possibly succeed, it cannot be held that they are strangers and not the members of the family qua the female..”. 

The contention that a Hindu widow can’t comprise a Joint Hindu Family along with her parental side was rejected. “In the present case, Smt. Jagno, who as a widow of Sher Singh, who had died in 1953, had succeeded to half share in the agricultural land and she was the absolute owner when she entered into settlement. We, thus, do not find any merit in the submission of learned counsel for the appellants that the defendants-respondents were strangers to the family,” the Court ruled.

Suggested Readings: 

  1. Find the case, here
  2. To further understand the contours of this issue, please read Kale. v. Deputy Director of Consolidation, (1976) 3 SCC 119, here
  3. Halder et.al, Property Rights of Hindu Women: A Feminist Review of Succession Laws of Ancient, Medieval and Modern India, 2 Journal of Law and Religion 24 663-87 (2008). 
  4. Devendra Damle et.al, Gender discrimination in devolution of property under Hindu Succession Act, 1956 (May 25, 2020), https://www.nipfp.org.in/media/medialibrary/2020/05/WP_305_2020.pdf
  5. Rochona Majumdar, Marriage, family, and property in India: the Hindu Succession Act of 1956, 1 South Asian History and Culture 397-415 (2010).

The Centre opposes plea to add the terms ‘neutral to gender identity and sexual orientation’ to the Special Marriages Act

The Central Government, on 24th February,2021 opposed pleas to add the terms ‘neutral to gender identity and sexual orientation’ to the Special Marriages Act (SMA). The Centre referred to a “larger legislative framework” that recognises marriage as being only between a man and a woman, in its affidavit filed in the Delhi High Court. Notably, the Centre also submitted that India regards marriage as a sacrament which depends on age old customs, rituals and cultural ethos and societal values.

The Centre’s reply comes after four more persons belonging to the LGBTQ community insisted that the Delhi High Court to declare that marriages between any two persons can be solemnised under the Special Marriage Act (SMA), maintaining neutrality on their gender identity or sexual orientation. 

This petition is in addition to three cases already before the Delhi high court seeking recognition of same sex marriages not only under the SMA but also under the Hindu Marriage Act (HMA) and Foreign Marriage Act (FMA). In their plea, the petitioners have also sought that the provisions in the SMA which require a ‘male’ and a ‘female’ for solemnisation of a marriage be declared as unconstitutional. 

Suggested Readings: 

  1. Aditi Singh, No fundamental right of same-sex marriage, legal recognition can’t be given by court: Central government tells Delhi High Court (Feb. 25, 2021), https://www.barandbench.com/news/litigation/no-fundamental-right-same-sex-marriage-legal-recognition-cant-given-court-central-government-delhi-high-court.  
  2. Satchit Bhogle, The Momentum of History – Realising Marriage Equality in India, 12 NUJS L. Rev. 3-4 (2019).  
  3. Tarunabh Khaitan, Guest Post: Against Natural Rights—Why the Supreme Court should NOT declare the right to intimacy as a natural right (Jul. 17, 2018), https://indconlawphil.wordpress.com/2018/07/17/guest-post-against-natural-rightswhy-the-supreme-court-should-not-declare-the-right-to-intimacy-as-a-natural-right/.    
  4. Thomas John, Liberating Marriage: Same-Sex Unions and the Law in India in LAW LIKE LOVE: QUEER PERSPECTIVES ON LAW 355, 361 (Arvind Narrain & Alok Gupta ed., 2011). 
  5. Nayantara Ravichandran, Legal Recognition of Same-Sex relationships in India, 5 JOURNAL OF INDIAN LAW AND SOCIETY 95-109.

International

Australia passes its Media  Law to make tech giants pay for news that they use

Australia has become one of the world’s first countries with the power to force tech giants to pay for the news they use after a controversial law was passed on 24th February, 2021. 

The News Media and Digital Platforms Mandatory Bargaining Code would be used to make firms like Google and Facebook pay Australian news outlets for using their content. The Code has achieved what other countries have tried and failed to do. It also ends a three-year-long battle with the tech giants, which escalated in recent weeks. Google had first threatened to withdraw its search engine from Australia and launched a fierce public campaign against the News Code. Facebook had banned all news and other information from being seen by its Australian users to evade the law’s reach. Facebook agreed to lift its ban after winning amendments to the laws.

However, uncertainty still looms as to whether Facebook or Google will fall under the laws. But both companies have begun striking last-minute deals with Australian news outlets to avoid it. If either company is named under the laws, it could trigger a negotiation and arbitration process with registered news outlets that would take as long as seven months.

Suggested Readings:

  1. Find the Code here.
  2. Find the link to the previous TeLawgram blogspot here.
  3. James Meese, Journalism Policy across the Commonwealth: Partial Answers to Public Problems. Digital Journalism 691-703 (2020), https://www.tandfonline.com/doi/citedby/10.1080/21670811.2020.1775104?scroll=top&needAccess=true
  4. Ruth A. Harper, The Social Media Revolution: Exploring the Impact on Journalism and News Media Organizations (2010), http://www.inquiriesjournal.com/articles/202/the-social-media-revolution-exploring-the-impact-on-journalism-and-news-media-organizations

Joe Biden revokes Trump’s immigrant visa ban

President Joe Biden revoked a ban on green card applicants from entering the United States. The President stated that the order blocking green card applicants and other temporary foreign workers did not advance the interests of the United States. The revocation means that family members of U.S. citizens and residents, as well as visa lottery recipients can immigrate to the US. The Trump administration, which previously enforced the ban, had justified it as necessary to protect American workers and the U.S. labour market given the coronavirus pandemic.

This proclamation lifts parts of the Trump-era ban, but the ban on work visas remains, though it is set to expire at the end of March. The Biden administration stated that preventing certain family members of United States citizens and lawful permanent residents entering into the US harms industries in the United States that utilize talent from around the world and individuals selected to receive the opportunity to apply for immigrant visas through the Fiscal Year 2020 Diversity Visa Lottery. Programs like the diversity visa lottery offer 50,000 visas to people from nations with a low rate of immigration to the U.S. 

Suggested Readings: 

  1. Find the Proclamation here.
  2. David J. Bier, H-2B Visas: The Complex Process for Nonagricultural Employers to Hire Guest Workers (Feb. 16, 2021). 
  3. Civil Rights Coalition Celebrates Partial End of Immigration Ban (2021), https://www.aila.org/advo-media/press-releases/2021/partial-end-of-immigration-ban (last visited Feb 27,2021).
  4. Shirin Sinnar, Stanford Law’s Shirin Sinnar on the Travel Ban, Three Years On (Jan 27, 2020), https://law.stanford.edu/2020/01/27/stanford-laws-shirin-sinnar-on-the-travel-ban-three-years-on/.

Clashes in Yangon as Facebook bans all Myanmar military accounts

Facebook took down all accounts linked to Myanmar’s military and banned advertisements from military-controlled companies on its platforms which led to scuffles between opponents and supporters of Myanmar’s coup. Myanmar’s military had seized power on 1st February, alleging fraud in an election where the National League for Democracy had won for a second term. The coup prompted daily protests across the country demanding an end to the military rule, as well as the release of NLD leader, Aung San Suu Kyi and other leaders. 

Facebook, in its blog post, banned the Myanmar military (Tatmadaw) and the military-controlled state and its media entities from Facebook and Instagram, as well as ads from military-linked commercial entities. Facebook took action after it viewed that the Tatmadaw committed severe human rights abuses and other military- initiated violence in Myanmar. Facebook also stated that the Tatmadaw had a history of posting content that promoted violence and incitement and the coordination of harm policies. Facebook intends to prohibit the Tatmadaw from abusing its platforms. The ban however, does not cover government ministries and agencies engaged in essential public services, such as the Ministry of Health and Sport, and the Ministry of Education. The current ban is based on a 2008 independent study conducted by Facebook to assess its impact on Human Rights Impact in Myanmar.

Suggested Readings:

  1. Find Facebook’s statement here.
  2. Find Facebook’s independent assessment here
  3. Find the link to the previous TeLawgram blogpost here
  4. Jan Kleiner, Ondřej Šupka, The Myanmar Conflict: A Role of Cyberspace in Counterinsurgency, 1 International Journal of Cyber Criminology (Jan – June, 2020), https://media.proquest.com/media/hms/PFT/1/qMvZG?_s=%2FSncjzwf8o8GN7bZBi2GB25lqnU%3D.  
  5. Kyaw Yin Hlaing, Understanding Recent Political Changes in Myanmar,  34 Contemporary Southeast Asia 197-216 (2012),  http://www.jstor.org/stable/41756341

US Intelligence Report reveals Saudi Crown Prince approved Khashoggi murder 

The United States Office of National Intelligence’s (ODNI) Report on the role of the Saudi Government in the murder of Saudi journalist, Jamal Khashoggi found that Saudi Arabia’s Crown Prince Mohammad bin Salman had approved the operation to capture or kill the Saudi journalist.  The Report states that the Crown Prince viewed journalism as a threat and supported the use of violent measures to silence dissident journalists.

The report states that it was ‘highly unlikely’ that the 2018 murder could have taken place without the approval of the Prince, given his influence in Saudi Arabia. The ODNI bases the assumptions of the Prince’s involvement on his control of decision making in Saudi Arabia, the direct involvement of his key adviser and members of the Prince’s guards in the operation and his constant support for using violent measures to silence dissidents abroad. 

The Biden Administration stated that it would cut all ties with the Crown Prince and would carry on its operations with Riyadh only through the Prince’s father, King Salman who had been the face of Saudi relationships. The Biden administration had opened the investigation against the Prince after it aimed to reshape America’s relationship with Saudi. The US consequentially imposed visa restrictions on 76 Saudis. 

Suggested Readings:

  1. Find the Report here.
  2. Zahra Aghamohammadi, Ali Omidi, The Prospect of the United States and Saudi Arabia Relations In light of Khashoggi Murder (Oct. 12, 2018), https://wsps.ut.ac.ir/article_70276_28866797275c869eb3aefb1b4881fe36.pdf. . 
  3. Mehak Goel, Suraj Subramanian, Uday Bhatia, Utkarsh Mishra, Murder of Jamal Khashoggi: An International Law Perspective (Oct. 2, 2020), https://ssrn.com/abstract=3704213
  4. Milanovic, Marko, The Murder of Jamal Khashoggi: Immunities, Inviolability and the Human Right to Life, 14 Human Rights Law Review 254-266 (Mar. 26, 2019), https://ssrn.com/abstract=3360647

Armenian Prime Minister accuses the military of an attempted coup

The Prime Minister of Armenia, Nikol Pashinyan, accused top military officers of attempting a coup. They demanded his resignation, adding fuel to months of protests following the country’s defeat in a conflict with Azerbaijan over the Nagorno-Karabakh region.

Pashinyan has been facing opposition ever since the peace deal signed on 10th November, 2020. The deal saw Azerbaijan reclaim control over large parts of Nagorno-Karabakh and surrounding areas that Armenian forces had held for more than a quarter-century. Pashinyan defended the peace deal as a painful yet necessary move to prevent Azerbaijan from overrunning the entire Nagorno-Karabakh region.  Although it lies within Azerbaijan it was under the control of ethnic Armenian forces backed by Armenia since a separatist war ended in 1994.

The immediate cause for the latest tensions was Pashinyan’s decision earlier this week to oust the first deputy chief of the military’s General Staff, including the armed forces’ top officers.

Armenia’s defence ministry issued a statement saying that the army is not a political structure and that any attempts to involve it in politics are inadmissible. 

Suggested Readings:

  1. Find the statement from the Prime Minister here.
  2. Anoush Baghdassarian and Cameron Pope, Why the Nagorno-Karabakh Cease-Fire Won’t End the Conflict (Nov 25,2020), https://www.lawfareblog.com/why-nagorno-karabakh-cease-fire-wont-end-conflict.
  3. Nvard Hovhannisyan, Thousands rally behind Armenia’s PM after he accuses army of coup attempt (Feb 25, 2021), https://www.reuters.com/article/armenia-politics-int-idUSKBN2AP1OG.
  4. S. Decalo,  Military Coups and Military Régimes in Africa, 11 The Journal of Modern African Studies 105-127 (1973), https://www.cambridge.org/core/journals/journal-of-modern-african-studies/article/abs/military-coups-and-military-regimes-in-africa/77E5EDCCCC9368D4CFD2E79B31F39A04

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