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I.

Whether prosecution of Peaps and Scoops by Turtonia under the ODPA

violates Article 19 of the ICCPR.

The exercise of freedom of expression 1 ‘carries with it special duties and

responsibilities’, permitting various limitations to the right. 2 Pursuant to such

recognition, prosecution of Peaps and Scoops under Turtonia ODPA does not

violate Article 19 of the ICCPR. This prosecution qualifies the three part test for

any content based restriction under Article 193 which means (i) ODPA is a valid

law; (ii) ODPA has a legitimate aim; & (iii) ODPA is necessary in a democratic

society.

A.1 ODPA is a “valid law” under Article 19 of ICCPR.

Restriction on freedom of expression must be “prescribed by law”. 4 If

international law conflicts with the domestic law, then domestic law will prevail

in dualist approach.5 Turtonia follows a dualist approach making basic law of

Federal Republic of Turtonia which as the nation’s constitution, therefore the

1
ICCPR (adopted 16 December 1966, entered into force 23 March 1976) art 19;UDHR (adopted 10 December
1948) UNGA Res 217A (III) art 19; ECHR (adopted 4 November 1950, entered into force 3 September 1953)
213 UNTS 1932 art 10; ACHR (adopted 22 November 1969, entered into force 18 July 1978) art 13; ACHPR
(adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 art 9.

2
Arts 19(3) ICCPR (adopted 10 December 1948); UDHR art 29(2); ECHR (adopted 4 November 1950, entered
into force 3 September 1953) 213 UNTS 1932 arts 8(2) and 10(2); ICCPR arts 17(1) and 19(3); ACHR (adopted
22 November 1969, entered into force 18 July 1978) arts 11(2) and 13(2); ACHPR (adopted 27 June 1981,
entered into force 21 October 1986) (1982) 21 ILM 58 art 9(2); HRC, ‘General Comment 34’ (12 September
2011) UN Doc CCPR/C/GC/34 (‘General Comment 34’) para 21; Recommendation CM/Rec(2014)6 of the
Committee of Ministers to Member States on a Guide to Human Rights for Internet Users (adopted 16 April
2014) para 2.
3
Racism on the Internet, By Yaman Akdeniz, Council of Europe, page 47,

4
Page 149, Journalism at risk: Threats, challenges and perspectives, By Council of Europe

5
Dean Maxwell & Isle Cohen Doctoral Seminar in International Law Hans & Tamar Oppenheimer Chair in
Public International Law Faculty of Law, McGill University IMPLEMENTATION OF INTERNATIONAL
LAW IN INDIA: ROLE OF JUDICIARY, By Dr. Sunil Kumar Agarwal available at
http://oppenheimer.mcgill.ca/IMG/pdf/SK_Agarwal.pdf accessed on 8 Dec 2017 ; Relation Between
International Law and Municipal Law Edwin Borchard Yale Law School available at
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4498&context=fss_papers accessed 8 Dec 2017
highest source of law. 6 International law is not law at all because a rule must be

laid down by a political superior to an inferior.7 International law is not created

by legislatures, and hence constitutes merely precepts of moralitv. 8 A legal

sanction which is based or issued under the authority of any statute is

considered to be an exercise of powers within a valid law.9 The prosecution of

Peaps and Scoops was made under a valid law and the Court should not address

the question of what is the legal basis of ODPA.10 The power to prosecute is

based in a substantive law i.e., ODPA, legislated by a legitimate Government.11

The legal validity of the ODPA has never been challenged in the domestic court

and therefore it can’t be challenged in an International Court.

a. ODPA is clear and precise.

ODPA precisely defines every key term12 not leaving any space for ambiguity.13

Its aim is to curb revenge porn by imposing reasonable restrictions. 14 This

Criminal law is essential to send a clear message to potential perpetrators that

6
Compromis para 2.1

7
Relation Between International Law and Municipal Law; Page – 3; 1 January, 1940;
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4498&context=fss_papers accessed 2nd
October, 2017

8
Relation Between International Law and Municipal Law; Page – 3; 1 January, 1940;
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4498&context=fss_papers; accessed 2nd
October, 2017

9
Bijoe Emmanuel & Ors v State of Kerala & Ors, [1987 AIR 748, 1986 SCR (3) 518] 11 August 1986
10
Sumar Singh Salkan v Assistant Director & Others, 2010

11
Compromis, para 10.1

12
Compromis, para 10.2, Section 2,ODPA(2015)

13
Hardy & Hardy, CAL.App, 135 P.2D 615619 Srum v Zeltwanger 559 P.2D 1384; 1977 YWO; Frigaliment
Importing Co. v P.N.S. International Sales Corp.
14
Compromis para 10.1
non-consensual pornography inflicts grave privacy and autonomy harms that

have real consequences and penalties.15

b. ODPA establishes basic elements for crime.

Sexual violence is not limited to physical invasion of the human body and may

include acts which do not involve penetration or even physical contact.16 ODPA

conceptualises the involuntary publication of someone’s sexually explicit images

as a form of sexual assault. 17 It also criminalises an act of distributing nude

images knowingly, where the person is identifiable from the image, 18 the

infringing activity and the guilty mind behind such Act. 19 ODPA is essential for

the protection of privacy of an individual in Turtonia.20 Actus Reus includes all

forbidden external circumstances. Actus reus is the whole definition crime with

the exception of mental element, or even including it in so far that it is contained

in the definition of an Act.21

A.2ODPA has a legitimate aim.

15
See Mary Anne Franks, Why Revenge Porn Must Be a Crime, NYDAILYNEWS (Mar. 17, 2014),
http://www.nydailynews.com/opinion/revengeporn-crime-article-1.1702725; accessed 26 November, 2017.

16
Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, ¶ 688 (Int’l Crim. Trib. for Rwanda Sept. 2, 1998),
http://www.unictr.org/Portals/0/Case/English/Akayesu/judgement/akay001.pdf; accessed 28 November, 2017.

17
Danielle Keats Citron, Mary Anne Franks, Criminalizing Revenge Porn, 2014.
https://law.yale.edu/system/files/area/center/isp/documents/danielle_citron_-_criminalizing_revenge_porn_-
_fesc.pdf; accessed 12 November, 2017.

18
Compromis para 10.2, Section 1, ODPA(2015)

19
Compromis para 10.2, Section 1, ODPA,(2015)

20
Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 219 (1890).

21
Glanville Williams, Criminal Law: The General Part, second edn, Stevens & Sons, 1961, p 18. See also Glanvile
Williams, Textbook, Textbook of Criminal Law, second edn, Stevens & Sons , 1983, ch 2.
If interference is in accordance with law, the aim of the restriction should be

legitimate.22 In Bartnicki v Vopper,23 it was noted that while nondisclosure

laws place “direct restrictions on speech, the Constitution must tolerate laws

of this kind because of the importance of these privacy and speech-related

objectives”. 24 Rights of others 25 encompass an extremely wide range of

potential reasons to limit freedom of expression.26 Criminal law punishes “all

serious abuses of a sexual nature that is degrading and humiliating for the

victim’s dignity”. 27 Revenge porn is both defamation 28 and obscenity. 29

ODPA has a legitimate aim to restrict Right to freedom of expression as it

protects the rights and reputation of others against unwarranted attacks.30

22
Compromis para 10.1

23
532 U.S. 514 (2001)

24
Bartnicki v Vopper, 532 U.S. 514, 537-38 (2001) (Breyer, J., concurring).

25
Art. 19(3) of ICCPR; UDHR art 29(2); ECHR (adopted 4 November 1950, entered into force 3 September
1953) 213 UNTS 1932 arts 8(2) and 10(2); ACHR (adopted 22 November 1969, entered into force 18 July
1978) arts 11(2) and 13(2); ACHPR (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM
58 art 9(2); HRC, ‘General Comment 34’ (12 September 2011) UN Doc CCPR/C/GC/34 (‘General Comment
34’) para 21; Recommendation CM/Rec(2014)6 of the Committee of Ministers to Member States on a Guide to
Human Rights for Internet Users (adopted 16 April 2014) para 2.
26
http://www.law-democracy.org/wp-content/uploads/2010/07/10.03.Paper-on-Restrictions-on-FOE.pdf

Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-T, Judgment, ¶ 186 (Int’l Crim. Trib. for the Former
27

Yugoslavia Dec. 10, 1998), http://www.icty.org/x/cases/furundzija/tjug/en/fur-tj981210e.pdf. accessed 20


October, 2017.

28
See Dun & Bradstreet, Inc. v. Greenmoss Builders Inc., 472 U.S. 749, 758–761 (1985) (describing the
difference between public and private speech in terms of First Amendment interests).
29
Miller v California, 413 U.S. 15, 18-19 (1973).

30
Page 8, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion
and expression, Frank La Rue, United Nations General Assembly, 16 May 2011; Article 19 (3) of ICCPR.
ODPA is enacted for curbing a serious offence like revenge porn31 for public

interest and safety of an individual’s dignity, for this purpose the restrictions

have to limit the free expression to safeguard wider interest of people.32

A.3 ODPA is necessary in a democratic society.

The basic tests for establishing the necessity of interferences with freedom of

expression in a democratic society are whether the intrusion corresponds to a

“pressing social need” and whether it is “proportionate” to the legitimate aim

pursued by the authorities. 33 Direct criminalization of non-consensual

pornography is appropriate and necessary to convey the proper level of social

condemnation for this behaviour. 34 ODPA lays down restrictions that are

necessary to achieve the aim of curbing a grave offence like revenge porn.35

The restrictions laid down under ODPA meet the proportionality test,

whereby the benefit in terms of protecting the interest is greater than the

harm caused to freedom of expression. 36 If there is a “pressing” or

“substantial need” for the restriction, then the law is necessary.37 People are

not afraid of being sued but they are afraid of being convicted of a crime

31
Compromis para 10.1

32
Compromis para 10.1
33
Janowski v. Poland, App. No. 25716/94, Dissenting opinion of Judge Bonello

34
Danielle Keats Citron, Mary Anne Franks, Criminalizing Revenge Porn,pg no-104; 21 April, 2014(3:21 P.M.);
https://law.yale.edu/system/files/area/center/isp/documents/danielle_citron_-_criminalizing_revenge_porn_-
_fesc.pdf; accessed 5 November, 2017

35
Compromis para 10.1

Toby Mendel, ‘Restricting Freeedom of Expression: Standards and Principles Background Paper for Meetings
36

Hosted by the UN Special Rapporteur on Freedom of Opinion and Expression’ Centre for Law and
Democracy(March 2010)

37
Lingens v Austria, 8 July 1986, Application No. 9815/82, para 39.
because that shows up on their record forever.38 Therefore, the enactment of

the Acts like ODPA in a democratic society proves to be of utmost benefit.

a. There is a pressing social need for the enactment of this act.

Revenge porn victims are harassed by people 39 and most pictures are

altered/photoshopped.40 Turtonia faced a problem of intimate photographs or

videos being shared which caused devastating harm to victims and suicides

were also reported.41 This gave rise to a pressing social need for the enactment

of ODPA which aims at curbing such non-consensual disclosure to ensure

public safety by penalising the disseminators. Social need means need caused

by non-economic factors like threat to the capacity of an individual to live

independently.42

b. The Act is in proportion to the legitimate aim.

The state response and the limitations provided by law should be

“proportionate to the legitimate aim pursued”. 43


States in USA have

collectively criminalised disclosure of someone’s sexually intimate images

38
Tracy Clark-Flory, Criminalizing “Revenge Porn,” SALON (Apr. 6, 2013, 9:00 PM),
http://www.salon.com/2013/04/07/criminalizing_revenge_porn/. Accessed 29 October, 2017

39
Charlotte Laws, I’ve Been Called the “Erin Brockovich” of Revenge Porn, and for the First Time Ever, Here
Is My Entire Uncensored Story of Death Threats, Anonymous and the FBI, XOJANE (Nov. 21, 2013, 11:00
AM), http://www.xojane.com/it-happened-to-me/charlotte-laws-hunter-moore-erin-brockovich-revenge-porn
(on file with the McGeorge Law Review).accessed 16 October, 2017.

40
Revenge Porn by the Numbers, END REVENGE PORN (Jan. 3, 2014), http://www. endrevengeporn.org/
revenge-porn-infographic (on file with the McGeorge Law Review). The Cyber Civil Rights Initiative is a
nonprofit organization dedicated to assisting victims of cyber harassment and advocating for legislation that
addresses online harassment. Our Mission, CYBER CIV. RTS. INITIATIVE, http://www.cybercivilrights.org
(on file with the McGeorge Law Review)accessed 10October,2017.

41
Compromis para 10.1

42
42 USCS § 3002

43
See BladetTromsø and Stensaas v. Norway Judgement, Application no. 21980/93, ECHR 1999-III.
without the consent of a person. 44 In practice, revenge porn law carries a

prison sentence ranging from three to five years which is considered

proportionate.45 These restrictions are proportionate to safeguard the dignity of

people; therefore the penalty which exceeds upto imprisonment of 5 years is

proportionate to the legitimate aim.46

B. There was a sufficient legal basis for the prosecution of Peaps.

B.1 Acts done by Peaps fulfil the essential ingredients of ODPA.

ODPA prosecutes every person who distributes an image which is otherwise

prohibited under this Act.47 Peaps knowingly shared a nude image with visible

intimate parts depicting Kola and recklessly disregarded a substantial risk that

such disclosure could have been non-consensual.48

B.2There are sufficient legal evidences against Peaps on record.

Peaps shared the nude image of Kola and recklessly disregarded the fact that it

was non-consensual. 49 TurtonPower’s post clearly portrayed humor, irony

exaggeration and was particularly in context of contemporary politics which is

why it was satirical and remained undisputed.50 However, Peaps shared the post

44
N.J. STAT. ANN. § 2C:14-9 (West 2005) (taking effect on Jan. 8, 2004); S.B. 255, 2013-2014 Reg. Sess.
(Cal. 2013); A.B. 462, 2013-2014 Leg. (Wis. 2013); H.B. 64, 2014 Leg., 435 th Sess. (Md. 2014); H.B. 64, 2014
Leg., 435th Sess. (Md. 2014)

45
See N.J. STAT. ANN. § 2C:43-6.

46
Section 3(c), ODPA, Compromis para 10.2

47
Compromis para 10.2.1

48
Compromis para 12.3.6

49
Compromis para 12.3.6

50
Oxford dictionary
without considering the content of the post as a whole, thus attracting penalty

under ODPA.51

B.3Disclosure made by Peaps is not in public interest.

Publishing a private person’s nude photos online is not a matter that

legitimately concerns the public. 52 The concept of the ‘public interest’ has

been described as referring to considerations affecting the good order and

functioning of the community and government affairs, for the well-being of

citizens.53

Peaps had malicious intention behind sharing an image which has no

relevance to the public.54 He admitted that his intention was to break the news

before XYZ News could, 55 nevertheless he made an account with the

username “XYZNews12”56 giving an impression that the post was published

by XYZ News.57 Courts have also held the constitutionality of penalties for

non-consensual disclosures on the ground that such communications are not

matters of public concern.58 There is no general public interest in sharing or

51
Compromis para 12.3.4

52
See Daily Times Democrat v. Graham, 162 So.2d 474, 477–78 (Ala. 1964)

53
Public Interest by NSW Ombudsman, November 2010, Reprinted March 2012; Pg no. 1;
https://www.ombo.nsw.gov.au/__data/assets/pdf_file/0014/3713/FS_PSA_16_Public_interest.pdf; accessed 13
November, 2017.

54
Derek E Bambauer, ‘Exposed’ (2014) 98 Minnesota Law Review 2025, 2027, citing Memphis Barker,
‘“Revenge Porn” Is No Longer a Niche Activity which Victimises Only Celebrities — The Law Must
Intervene’, The Independent (online), 19 May 2013 http://www.independent.co.uk/voices/comment/revenge-
porn-is-no-longer-a-nicheactivity-which-victimises-only-celebrities-the-law-must-intervene-8622574.html
.accessed 19 October,2017

55
Compromis para 12.2

56
Compromis para 7.1

57
Compromis para 8.1
accessing intimate media of people taken or distributed without their consent,

even for public figures.59

C. Scoops is liable for distribution of the image.

If victims of leaked intimate media are to have an effective remedy, the

intermediaries who host, index and make available content are the most effective
60
points to control. Transmission of information largely depends on

intermediaries and platforms that facilitate online communication or transactions

between third parties, including giving access to, and transmitting content. 61

Commission of a wrong over the Internet cannot occur without intentional or

unintentional involvement of service providers who facilitate the communication

to take place.62

C.1Scoops is a publisher under Section 1 of the ODPA.

Online Service Providers which can easily remove material as a publisher and attract

penalty, after failing to do so within a reasonable time.63 With the advent of web

58
See, e.g., Michaels v. Internet Entm’t Grp., 5 F. Supp. 2d 823 (C.D. Cal. 1998). See, e.g., Snyder v. Phelps,
131 S. Ct. 1207, 1216 (2011); City of San Diego v. Roe, 543 U.S. 77, 84 (2004); Dun & Bradstreet, Inc. v.
Greenmoss Builders, Inc., 472 U.S. 749, 762 (1985); Time v. Hill, 385 U.S. 374 (1967); N.Y. Times Co., 376
U.S. at 277

59
Derek E Bambauer, ‘Exposed’ (2014) 98 Minnesota Law Review 2025, 2027, citing Memphis Barker,
‘“Revenge Porn” Is No Longer a Niche Activity which Victimises Only Celebrities — The Law Must
Intervene’, The Independent (online), 19 May 2013 http://www.independent.co.uk/voices/comment/revenge-
porn-is-no-longer-a-nicheactivity-which-victimises-only-celebrities-the-law-must-intervene-8622574.html
.accessed 19 October,2017
60
See generally Jack Goldsmith and Tim Wu, Who Controls the Internet? Illusions of a Borderless World
(Oxford University Press, 2006) 70.

61
Organisation for Economic Corporation and Development, The Economic and Social Role of Internet
Intermediaries (April 2010)

62
Mittal Raman and Verma SK, Liability of Internet Providers for Copyright infringement- Legal Dimensions
of Cyberspace (Indian Law Institute, New Delhi), 2004, 147, http://www.cybersmart.in/law-
articles/copyright.htm accessed 11 October, 2017

63
Dr Yeung SauShing Albert v Google Inc [2014] HKCFI 1404 (search engine); Original Press Group Ltd v.
Fevaworks Solutions Ltd [2013] HKFCA 47 (forum); Crookes v. Wikimedia Foundation Inc (2011) 337 DLR
(4TH) 1
services or intermediary platforms, individuals are no longer passive recipients,

but are active publishers of information.64 Each publication (or communication)

gives rise to a separate cause of action in the common law.65 The defence of

innocent dissemination has never provided an absolute immunity for

distributors, however mechanical their contribution.66

C.2Scoops disregarded the fact that the victim had not consented to the publication

of the image.

Scoops became aware of the infringing post the moment it received a takedown

notification when the post was reported on May 2 by Kola’s staff.67 However it

took no action in that regard and took no notice of the potential risk that there

was a non-consensual image posted on its platform.

II. Whether prosecution of Peaps and Scoops under the Turtonian IA violates

Article 19 of the ICCPR.

Law does not guarantee an unlimited freedom of expression.68 Protection of the

reputation or rights of others in this case, the reputation of the persons targeted in

64
Page 6, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion
and expression, Frank La Rue, United Nations General Assembly, 16 May 2011.

65
The origin of the rule found in Duke of Brunswick v. Harner(1849) 14 QB 185, recently affirmed in
Loutchansky v. Times Newspaper Ltd(Nos. 2-5)[2002] 1All ER 652 at paras 57,60 and 62, Gutnick, at paras
197, Carter v. BC Federation of Foster Parents Association 2005 BCCA 398atn para 18,

66
Godfrey v. Demon Internet Ltd. [2001] QB 201, para 22(2.4)

67
Compromis para 9.2

68
ICCPR arts 17(1) and 19(3); UDHR art 29(2); ECHR (adopted 4 November 1950, entered into force 3
September 1953) 213 UNTS 1932 arts 8(2) and 10(2); ACHR (adopted 22 November 1969, entered into force
18 July 1978) arts 11(2) and 13(2); ACHPR (adopted 27 June 1981, entered into force 21 October 1986) (1982)
21 ILM 58 art 9(2); HRC, ‘General Comment 34’ (12 September 2011) UN Doc CCPR/C/GC/34 (‘General
Comment 34’) para 21; Recommendation CM/Rec(2014)6 of the Committee of Ministers to Member States on a
Guide to Human Rights for Internet Users (adopted 16 April 2014) para 2
the drawings and texts at issue, constitutes a legitimate aim permitting a restriction

of that freedom of expression.69

A. Peaps is responsible for disseminating false information.

Once the publication is established the publisher was guilty of publishing false

information unless he could establish that he was an innocent disseminator.70

A.1. The act done by Peaps resulted in the infringement of substantial right.

Right to privacy places a positive obligation on the State to provide adequate

protection against attacks by others on both the substantial rights of privacy

and reputation. 71 To establish infringement of substantial right the accused

must be an ‘unwitting contributor’ to publication and have ‘no idea of the

defamatory nature’ of material.72

a. Peaps knowingly shared the false information.

Once a person establishes the infringement of a personality right, both

wrongfulness and intent are presumed.73 Peaps firstly disregarded the fact that

the image was non-consensual secondly; he added a false and derogatory

caption to the image.74 Re-publication of a libel is actionable even though the

statement containing the republication mentions that the information is derived

69
Case of Palomo Sánchez and others v. Spain, (Applications nos. 28955/06, 28957/06, 28959/06 and 28964/06,
para 57 (see MGN Limited v. the United Kingdom, no. 39401/04, §§ 150 and 155, 18 January 2011).

70
Godfrey v. Demon Internet Ltd [2001] QB 201, 209,212(Morland J) (‘Godfrey’)

71
Pfeifer v Austria,Application No. 12556/03, 15 February 2008

72
Hansard, Defamation Bill, House of Lords (2 April 1996, Lord Mackay LC) col 214

73
National Media Ltd. v Bogoshi 1998 (4) SA 1196 (SCA); Page 161, Private Law and Human Rights:
Bringing Home Rights in Scotland and South Africa, By Visser D P Reid Elspeth.

74
Compromis para 8.3
from a particular named source. 75 Knowledge is awareness and a person is

supposed to know when there is a direct appeal to his senses.76

b. Peaps recklessly disregarded the unjustified risk of harming the reputation of

Kola and inciting hatred in the hearts of people.

Peaps shared the photoshopped image and added a caption about Kola’s

professional conduct 77 with the intent to cause harm to her reputation. Since

Kola was an Immigration Minister, her reputation was more likely to be

adversely affected by a post depicting her relationship with a terrorist along with

a caption indicating that she was providing visas to a terror group. 78 Due to this

post, there was hatred amongst people and the protest with demeaning slogans

led to the resignation of Kola on May 10. 79 Not every attack on the good

reputation of politicians must be permitted, since freedom of expression and

information would otherwise be stripped of their crucial importance.80

A.2. The post of Peaps incited violence and damaged the national unity.

In order to conclude that incitement has taken place, Courts must find: (1) the expression is

intended to incite imminent violence (2) it is likely to incite such violence; and (3) there is a

direct and immediate connection between the expression and the likelihood or occurrence of

such violence.81 In legal terms, civil unrest or civil disturbance means acts of violence and

75
G. Chandrasekhar Pillai v G. Raman Pillai, (2 April, 1964) Ker. L.T. 317.

76
Hari Singh Gaur, The penal Law India , 1998

77
Compromis para 8.1, 8.3

78
Taiwan High Court 87 Shang Yee Tzi 7196 Criminal Judgement

79
Compromis para 9.6

80
Nowak, Manfred, United Nations Covenant on Civil and Political Rights: CCPR Commentary (1993), p. 462.

81
Article 19, Op.Cit, Policy Brief, 2012
disorder detrimental to the public law and order.82 The term "civil disorder" is defined as any

public disturbance involving acts of violence by assemblages of three or more persons, which

causes an immediate danger of or results in damage or injury to the property or person of any

other individual.83 On May 2, Peaps posted an image84 which resulted in a protest on May 4

wherein people used slogans from the caption which was added to the image. 85 Fake news

has been known to directly incite violence with devastating consequences. 86 It is the intention

of the act, not the consequences which flow from it, which determines the question of the

guilt or innocence of the person who does it.87

B. Scoops is not exempted for transmitting the false information.

Scoops is an intermediary under the IA. Intermediaries are culpable ‘if they know that their

service has been used to invade someone’s privacy, and they are reasonably able to stop the

invasion of privacy, but they choose not to do so. 88 Corporations have a responsibility to

respect human rights and they should act with due diligence to avoid infringing the rights of

individuals.89 One will be considered as the publisher of the material – at least after being

82
Fire Service Response to Civil Unrest, NFPA Responder Forum 2015; pg-2;
http://www.nfpa.org/~/media/files/news-and-research/resources/fire-service/responder-forum/2015-nfpa-
responders-forum-civil-unrest-paper.pdf?la=en; accessed 21 November, 2017

83
18 USC § 232.

84
Compromis para 8.1

85
Compromis para 9.4

86
Kenya political violence highlights urgent need to fight fake news;31 August, 2017;
https://ijnet.org/en/blog/kenya-political-violence-highlights-urgent-need-fight-fake-news; accessed 19 October,
2017

87
State v. Rosa, (06 January, 1999)72 N. J. L. 462, 62 Atl. 695.

88
Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report No
108 (2008) vol 1, 88–90; Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era,
Report No 123 (2014) 59–62 [4.1]–[4.14] (‘ALRC Serious Invasions of Privacy Report’).

89
Page 21, Report of the Special Rapporteuron the promotion and protection of the right to freedom of opinion
and expression, Frank La Rue, United Nations General Assembly, 16 May 2011.
notified by the claimant at some point’. 90 To prevent further access to the offending

information by complete or partial blocking of all potential originators and to create a

deterrent effect on further infringement, action needs to be taken against the ISPs. 91 Internet

intermediaries can be held liable for any third party content relating to their services when

they specifically intervene in the content and they have technical capacity to do that. 92 Host is

a publisher where material is uploaded to equipment under its control and the material is ‘on

its face defamatory’.93

B.1 Scoops received a financial benefit directly attributable to the infringing activity.

Online platform providers such as YouTube have monetised some user generated

content by selling advertising around popular channels and users. 94 Internet service

providers have built business models that depend on high volumes of use, therefore,

they stand to gain direct financial benefits from infringements.95 The infamous post of

Peaps made Scoops more popular and accessible since the post reached 21,000 shares

and 145,000 views96 which on an ordinary course would lead to more advertisements on

its platform which provides it a financial benefit and all of this resulted directly from the

infringing activity.

90
Davison v. Habeeb [2011] EWHC 3031 (QB), [17] (HHJ Parkes QC) (‘Davison’)

91
Ryder Rodney D, Guide to Cyber Laws (Information Technology Act, 2002 E-commerce, Data Protection &
the Internet) 1stedn (Wadhwa Nagpur Law and [practice, New Delhi), 2001, 551-562.

92
JOINT DECLARATION ON FREEDOM OF EXPRESSION AND “FAKE NEWS”, DISINFORMATION
AND PROPAGANDA ; Pg no – 3;
http://www.ohchr.org/_layouts/15/WopiFrame.aspx?sourcedoc=/Documents/Issues/Expression/JointDeclaration
3March2017.doc&action=default&DefaultItemOpen=1; accessed 11 November, 2017

93
Godfrey v. Demon Internet Ltd.[2001] QB 201, 209, 212 (Morland J) (‘Godfrey’)

94
But see, Robert Burrell and Kimberlee Weatherall, ‘Before the High Court Providing Services to Copyright
Infringers: Roadshow Films Pty Ltd v iiNet Ltd’ (2011) 33 Sydney Law Review 801, 820.
95
But see, Robert Burrell and Kimberlee Weatherall, ‘Before the High Court Providing Services to Copyright
Infringers: Roadshow Films Pty Ltd v iiNet Ltd’ (2011) 33 Sydney Law Review 801, 820.

96
Compromis para 9.2
B.2 Scoops was aware that material infringed the national laws.

Internet intermediaries will be held liable if they continue to make content posted

by third parties available once it has been brought to their attention.97 An Internet

Service Provider is a ‘publisher’ of material it ‘hosts’ whether it had knowledge

or not that the material was defamatory.98 The notice of complaint only has to

specify why the statement is defamatory. 99 Once an intermediary has been

notified, the most sensible course is usually to remove, since it may be unclear

whether the notification confers sufficient knowledge to exclude protection. 100

Supplying the ‘site and facilities’ for direct infringement is ‘materially

contributing’ to the infringing conduct of another and must attract liability.101 The

interference arises from the exhibiting intermediary’s exercise of control coupled

with its awareness of that publication and failure to remove it within a reasonable

period. 102 The moment Kola’s staff reported the image and a takedown

notification was sent to Scoops it became aware of the infringing activity. 103

Therefore, now Scoops was under an obligation to remove the post but it did not.

B.3 Scoops did not remove the post expeditiously upon receipt of the

notification.

97
Trkulja v Google Inc [No 5] [2012] VSC 533 (12 November 2012); Trkulja v Yahoo! Inc LLC [2012] VSC 88
(15 March 2012); Duffy v Google Inc (2015) 125 SASR 437; Google Inc v Trkulja [2016] VSCA 333 (20
December 2016).

98
Clause 8. For full text see http://www.services.parliament.uk/bills/2012-13/defamation.html .

99
Riordan Jaani, The Liability of Internet Intermediaries, First Edition, 2016, page – 249, para 8.144

100
Riordan Jaani, The Liability OF Internet Intermediaries, First Edition, 2016, page – 251, para – 8.151

101
Fonovisa v Cherry Auctions, http://www.eff.org/Legal/ISP_liability/OPG_v_Diebold/ accessed at..............

102
Bryne v. Deane(1937) 1 KB 818

103
Compromis para 9.2
ISP can avoid liability only if it expeditiously removes the content in question

when made aware of it.104 Scoops took no action for removing the image until

a legal notice was sent to it by Kola’s legal counsel, even after which it took

fifty hours to remove the post.105 This removal is not expeditious enough since

substantial harm had already been done and as a result she had to resign.106

Safe harbour is available for intermediaries, provided that they take down the

content in question promptly after notification. 107 The OSP must, “upon

notification of claimed infringement, respond expeditiously to remove, or

disable access to, the material that is claimed to be infringing.” 108 If this

question is open to debate by a reasonable jury, then a forty-eight hour

timespan between notice and takedown for an image posted on a publically

accessible platform would be expeditious.109

C. IA is not violative of Article 19 of ICCPR.

C.1 IA was prescribed by a valid law under Article 19 of ICCPR.

a. IA is clear and precise.

The intention of the legislature while drafting legislating IA was to facilitate

smooth working of the scheme of the legislature and avoid producing or

104
E/Commerce Directive, 2000/31/EC, art. 14.

105
Compromis para 9.2

106
Compromis para 9.6

107
Digital Millenium Copyright Act, Section 512.

108
17 U.S.C. § 512(c)(1)(A)-(C) (emphasis added)
prolonging artificiality in the law.110 If the language in legislation is capable of

more than one interpretation we ought to discard the more natural meaning if

it leads to an unreasonable result and adopt that interpretation which leads to a

reasonable practical result.111 Furthermore, a reasonable interpretation of the

language should be in consonance with the object of the Act.112

b. IA establishes the basic elements of crime.

General-intent crimes require only a showing that the defendant intended to do the

act prohibited by law, not that the defendant intended the precise harm or the

precise result that occurred.113 IA penalises every act wherein a false

communication is made knowingly with the intent to incite civil unrest, hatred or

damage the national unity.114 IA establishes a conduct crime115 just like the

offence of genital exposure created by the SOA 2003, s. 66, which is a conduct

crime, because it requires proof only that D exposed himself and intended this to

cause alarm or distress.116

C.2 IA pursues a legitimate aim.

110
Inland Revenue Commissioner v J.B. Hodge & C.O (Glassgo Ltd.) 1961, WLR 92
111
Gill v Donald Humberstone & Co. Ltd. 1963 1 WLR 929.
112
Uttar Pradesh Bhudan Yagn Samiti v Brij Kishore

113
Best Practices in Proving Specific Intent and Malice. What Can Civil and Criminal Litigators Learn from
One Another? At Section Annual Conference(9-11 April, 2014); Pg-2;
https://www.americanbar.org/content/dam/aba/administrative/litigation/materials/2014_sac/2014_sac/best_pract
ices.authcheckdam.pdf; accessed 14 October, 2017.

114
Section 1(b), IA, Compromis para 11.2

115
Section 1(b), IA

116
http://global.oup.com/booksites/content/0199275297/chap_1
Dissemination of false information is no human right.117 One’s freedom of expression

can clash with another’s exercise of the equally important rights.118 Paragraph 3 lists the

first of the legitimate grounds which is respect for the rights or reputation of others.119

The limitations in the interests of national security, public safety or the economic well-

being of the country, for the prevention of disorder or crime, for the protection of the

rights and freedoms of others, are provided under the international law.120

a. The restrictions laid down in Section 1(a) of IA are in consonance with the

restrictions provided under Article 19 of ICCPR.

The restriction on freedom of expression pursues the legitimate aim of protecting the

reputation and rights of others.121 In the present case, the interference had been “prescribed

by law” and pursued a legitimate aim, namely the protection of the reputation or rights of

others.122

b. Article 19 of ICCPR provides the same restriction as laid down under Section 1(b)

of IA.

A state can interfere with expression for the prevention of disorder. 123 The state

could move against the expression in the interest of preventing disorder. 124 ‘Public

117
Reynolds v. Times Newspaper Ltd, [2001] 2 AC 127, 238 (Lord Hobhouse)

118
Page 606, The International Covenant on Civil and Political Rights, Cases, Materials and Commentaries,
Sarah Joseph and Melissa Castan, Third ed. 2013

119
See communication No. 937/2000/Svetik v. Belarus. Views adopted on 8 July, 2004

120
The standard approach under articles 8 – 11 echr and article 2 echr ; Page No-1;
http://ec.europa.eu/justice/news/events/conference_dp_2009/presentations_speeches/KORFF_Douwe_a.pdf;
accessed 23 October, 2017.

121
Delfi AS v. Estonia, Application No. - 64569/09, para - 63

122
Section 1(a), IA, Compromis para 11.2

123
Chorherr v. Austria A 266- B (1993)..p 385

124
Autronic v. Switzerland, A 178 (1990); Groppera Radio AG v. Switzerland A 173 para 70 (1990)
order’ limitations on Article 19 rights include prohibitions on speech which may

incite crime, violence or mass panic.125 Laws which allow states to limit free speech

to protect public order are legitimate.126 The prevention of disorder was one of the

legitimate aims pursued by the national authorities.127 Restrictions on freedom of

expression may also be imposed, to prohibit advocacy of hatred on protected

grounds that constitutes incitement to violence. 128 Similarly IA prohibits the

communication of false information with the intent to incite civil unrest, hatred, or

damage the national unity129 to safeguard the public order.130

C.3 IA is necessary in a democratic society.

Any restrictions need to be necessary in a democratic society 131 and the state

interference should correspond to a “pressing social need”.132 The application of a

necessity test to the question whether restriction is arbitrary, permits States to

restrict on grounds of expediency in wide circumstances that are incompatible with

general principles of international human rights law.133

125
Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 465.

126
Freedom of Expression and Public Order by Paul Daudin Clavaud, journalist and expert in media and
communications, ESJ Pro, and Toby Mendel, Executive Director, Centre for Law and Democracy, co-authors.
Page 24, http://unesdoc.unesco.org/images/0023/002313/231305e.pdf; accessed 26 October, 2017.

127
Janowski v. Poland, Application No. 25716/94 , Para – 25

128
JOINT DECLARATION ON FREEDOM OF EXPRESSION AND “FAKE NEWS”, DISINFORMATION
AND PROPAGANDA; pg-2;
http://www.ohchr.org/_layouts/15/WopiFrame.aspx?sourcedoc=/Documents/Issues/Expression/JointDeclaration
3March2017.doc&action=default&DefaultItemOpen=1; accessed 11 November, 2017

129
Compromis para 11.2, Section 1(b), IA(2006)

130
Article 19 (3)(b), ICCPR

See Sunday Times v. UK (No. 2), Series A No. 217, 26.11.1991, para. 50; Okçuoğlu v. Turkey, No.
131

24246/94, 8.7.1999, para. 43.


132
See Sürek v. Turkey (No. 1) (Application No. 26682/95), judgment of 8 July 1999, Reports 1999; Sürek (No.
3) judgment of 8 July 1999.

133
Case of SAADI v. The United Kingdom (Application No. 13229/03), para 54
a. There is a pressing social need for the enactment of this Act.

Necessity of any exception has to be justified by a pressing social need. 134

Distribution of false information is prevalent in Turtonia. 135 For example,

distribution of false information about a favoured candidate, who as a result lost

the election and civil unrest took place. 136 There was an urgent need for the

enactment of IA to preserve the integrity of the democratic process and

safeguard the rights and reputations of others.137

b. The Act is in proportion to the legitimate aim.

Freedom of expression can be limited by proportionate laws regarding

defamation, privacy rights and the reputation of others.138 To impose sanctions

for the publication of erroneous factual material is to create some degree of fear

and deterrence, a result of the uncertainty caused by the impracticability of

making a theoretically possible determination.139

134
The exceptions to Articles 8 to 11 of the European Convention on Human Rights(Human Rights File No-15)
Page 14, http://www.echr.coe.int/LibraryDocs/DG2/HRFILES/DG2-EN-HRFILES-15(1997).pdf; accessed 19
October, 2017

135
Compromis para 11.1

136
Compromis para 11.1

137
Compromis para 11.1

138
Page 606, The International Covenant on Civil and Political Rights, Cases, Materials and Commentaries,
Sarah Joseph and Melissa Castan, Third ed. 2013

139
See New York Times Co. v. Sullivan, 376 U.S. 254,279 (1964); L. Tribe, American Constitutional Law 710-
24 ( 1978)

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