(Picture source: http://www.slideshare.net/qwsny/internet-censorship)
The Supreme Court's decision on internet censorship will impact the way in which people communicate over the internet and will also immensely affect the manner in which intermediaries deal with take down requests. In this bulletin we examine the Supreme Court decision of Shreya Singhal v Union of India and analyze the consequences of this decision.
On 24 March 2015, a two judge bench of the Supreme Court of India (Supreme Court) ruled on the constitutional validity of Section 66A, 69A and 79 of the Information Technology Act, 2000 (IT Act). Shreya Singhal, the petitioner, challenged the constitutional validity of these provisions on the grounds that it violates the freedom of speech and expression under Article 19 of the Constitution of India and that the provisions suffer from vagueness.
Section 66A: Unconstitutional
As per Section 66A of the IT Act, a person shall be punishable with imprisonment and fine for sending by means of a computer resource or communication device (1) any information which is grossly offensive or has a menacing character; (2) any information which he knows to be false, but is sent for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will; and (3) any electronic mail or electronic mail massage for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages. This provision of the IT Act was struck down by the Supreme Court of India for being in violation of the fundamental right of freedom of speech and expression under the Constitution of India and for being vague and open-ended.
Freedom of Speech and Expression
The regulation of freedom of speech and expression is based on three important concepts; discussion; advocacy and incitement. Discussion and advocacy forms the essence of this freedom. It is only when such discussion or advocacy reaches the level of incitement will it need to be curtailed. Section 66A of the IT Act, imposes an embargo on the discussion and advocacy of information itself.
The Court observed that Section 66A puts "all information" disseminated over the internet through the tests of its sub-clauses. It would therefore suggest that, all kinds of information, whether scientific or artistic may be roped in and tried against the tests laid down under the provision. By putting all information through the test of its sub-clauses, Section 66A does not differentiate between mere discussion and advocacy of a point of view and incitement. This according to the Court, goes against the spirit of 'freedom of speech and expression' and hinders the free flow of opinions and ideas essential to sustain collective life of the citizenry.
The Court negated the contention of the Government of India and held that Section 66A cannot be justified on grounds mentioned under Article 19(2) such as of public order, defamation, and incitement to an offence, decency and morality. Article 19 can be curtailed only when the message transmitted has the 'tendency' to disrupt public order. Secondly, Section 66A cannot be equated to defamation, because under Section 499 of the Indian Penal Code for a message to be defamatory there must be injury to reputation. Section 66A does not concern itself with injury to reputation, as it only deals with the transmission of grossly offensive and annoying messages without affecting the reputation of another. The same applies for decency and morality, as what appears to be offensive and annoying may not be obscene or immoral. Lastly, Section 66A, does not have a proximate relation with 'inciting an offence' as it does not expressly use that term in the provision.
Elaborating the grounds for holding Section 66A of the IT Act as 'unconstitutional', the Court said terms used in the provision are vague, undefined and open-ended., Terms like 'annoying', 'inconvenience' and 'grossly offensive', used in the provision are vague and does not point towards a specific offence.
Striking down vague and open-ended provisions of Section 66A is a welcome move by the Supreme Court of India. This provision was viewed as a menace by the society as it deterred free flow of ideas and thoughts. This decision will immensely benefit social networking websites like Twitter and Facebook as users will now resort to such mediums to express their ideas without the fear of being prosecuted. The legislative intent behind introducing Section 66A appears to be curbing 'incitement of an offence' and 'protecting public order.' However the Legislature has gravely erred, in drafting it and also failed to notice that adequate safeguards are available under other provisions of the IT Act and the Indian Penal Code.
Section 69A and Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009: Constitutional
Section 69A of the IT Act, empowers the Central Government, in the interest of sovereignty and integrity of India, defense of India, security of the state, friendly relations with foreign states or public order or for preventing incitement to the commission of a cognizable offence, to order any agency of the Government or intermediary to block access by the public any information that is stored, generated, transmitted, received or hosted in any computer resource. The procedural safeguards for such blocking of access by the public must be carried on in accordance with the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (Blocking Rules).
Section 69A of the IT Act and the Blocking Rules were challenged on the grounds that it does not provide the facility of pre decisional hearing and that it does not provide procedural safeguards such as issuance of a warrant for search and an application to the High Court or other Court to set aside the decision of blocking. The Court correctly identified that unlike Section 66A, Section 69A is narrowly drawn with several safeguards. Further, blocking can be resorted to only when the Central Government is satisfied and it falls squarely within the reasonable restrictions to freedom of speech and expression under Article 19(2). Lastly, the court recognized the possibility of hearing before the decision of blocking is finalized under the Blocking Rules and stated that failure to provide additional safeguards cannot be a ground for unconstitutionality.
This decision of the Supreme Court does not specifically alter the current position of law, however it has brought about some clarity. First, there is clarity on the point that there appears to be a co-relation with the conditions provided under Section 69A and Article 19(2) of the Constitution of India. This would suggest that the threshold of Article 19(2) must be satisfied before a takedown is affected. Secondly, there is more clarity on the point of hearing as the Supreme Court reinforces and clarifies that the Blocking Rules guarantee pre decisional hearing. Therefore any violation of this safeguard can give rise to a cause of action under Article 226 of the Constitution of India.
Section 79 and the Information Technology (Intermediary Guidelines) Rules, 2011: Constitutional, with caveats.
Section 79 of the IT Act provides for the conditions which exempt intermediaries from liability. It provides that an intermediary shall be exempt from liability if it observes the due diligence requirements under the Information Technology (Intermediary Guidelines) Rules, 2011 (Intermediary Guidelines), along with other conditions under the provision. It also provides that an intermediary shall not be exempt it fails to remove or disable content which furthers 'unlawful acts' after it has been brought to its knowledge. It is important to note that Rule 3(2) of the Intermediary Guidelines lays the obligation on an intermediary to inform third parties to not host, transmit, display, upload, publish, modify or share certain kind of content on its interface. Further, as per Rule 3(4) of the Intermediary Guidelines an intermediary must disable content which contravenes Rule 3(2) upon obtaining knowledge by itself or after it is brought to its actual knowledge by an affected person.
It was contended that the Intermediary Guidelines and Section 79 are open ended and vague as intermediaries are only persons who offer a neutral platform through which persons may interact with each other, and requiring them to exercise their own judgement in disabling content defeats the purpose of being an 'intermediary'. The Court saved the provision from being struck down by providing two very important caveats while reading this provision. First, an intermediary can remove content only after receiving a court order directing it to do so. It is only if it fails to follow this court order will it not be exempt under Section 79. For this purpose it clarified that Rule 3(4) of the Intermediary Guidelines must be read down in the same manner as Section 79(3)(b). This would suggest that the Rule 3(4) appears to be redundant, as only matters which fall within the ambit of 'unlawful acts' under Section 79(3)(b) can be taken down. On the same point the court then clarified the ambit of 'unlawful act' and stated that it encompasses only the restrictions under Article 19(2) and nothing more. This would mean that the offences such as hosting content which impersonates another would therefore not be subject to take down. The Court understood that most services agreements contain what is provided in Rule 3(2) and therefore restricted take down to only 'unlawful acts' which is nothing but Article 19(2) of the Constitution of India.
This decision of the Supreme Court of India immensely affects intermediaries. This decision paves the way for companies like Google and Facebook etc. to function without takedown hassles on the basis of a mere user complaint. Up till now intermediaries constantly had to deal with several complaints and also had to justify which takedown request was rejected. By having the judiciary determine takedown requests, companies need not take into consideration complaints that are made directly to them. What is pertinent to note here is that intermediaries now need to entertain only court takedown orders or executive takedown orders which are in line with Article 19(2) of the Constitution of India as any other form of takedown will impair the freedom of speech and expression. This would mean that an intermediary liability exemption is only restricted to ensuring the due diligence requirements under the Intermediary Guidelines and taking down content pursuant to court orders and executive action which can only be on the basis of Article 19(2) and not on the basis of Rule 3(4) of the Intermediary Guidelines.
The draconian section 66A which was originally meant to tackle spam and cyber stalking was gravely misused by the executive, especially by the Government in power. This crackdown of online dissent and criticism most definitely shunned people for using social media as means of disseminating information and voicing opinions. By declaring Section 66A unconstitutional, the Supreme Court has opened India to move online and engage in public dialogue and revived the freedom of bloggers. This will benefit social networking websites like Facebook and Twitter as they will now become important interfaces for information dissemination. The constitutionality of Section 69A was upheld primarily because there appears to be no procedural lacuna in the provision. This provision will continue to hold true in the light of internet censorship. Lastly, Section 79 of the IT Act along with the Intermediary guidelines were tested on the grounds of constitutionality. The interpretation accorded by the Supreme Court while limiting to take down of only court sanctioned requests has lifted a huge burden off intermediaries. Further, it has also given more light to the nature of 'unlawful acts' that may be subject to take down by limiting it only to the restrictions provided under Article 19(2).