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An estimated 7-minute read
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The Supreme Court of India finally struck down section 66A of the Information Technology Act, 2000, holding that it is in violation of the fundamental right to free speech under Article 19(1)(a) of the Constitution.

The provision criminalised content sent through electronic means that was “grossly offensive”, or of “menacing character”, or sent for the purpose of causing “annoyance” or “inconvenience”.

Clearly, such language cannot be acceptable standards of criminal conduct as their meaning is far too wide and cover too much of acceptable conduct. In fact, the language used is far wider than our existing and not insubstantial provisions on hate related speech (offences under the IPC relating to disturbing public tranquillity, disrupting the harmony of communities, causing hurt to religious sentiments, etc). The main ground cited by the court was that the language of the section did not have a proximate connection to the reasonable restrictions to Article 19(1)(a) contained in Article 19(2), the key one being public order.

The court held that the expressions “are so vague that there is no manageable standard by which a person can be said to have committed an offense”. The court also stated that the section “takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech”. The decision is not surprising as it is hard to imagine even the most conservative of judges accepting that such a provision could be a part of India’s jurisprudence.

The decision is a victory for free speech but more importantly, it removes the shackles on user generated content in this country. The beauty of user generated content is that it allows ordinary people to have a voice and some of the sharpest, most diverse thoughts I have read have often come from user generated content.

Surprisingly, the court struck down the entire provision and not just the two offending parts of the provision. There was a provision that also included language such as causing annoyance or inconvenience but related to persistently sending false information. This somewhat related to spamming and stalking and was largely harmless but the court struck that down as well.

This case was not just about section 66A though as several other provisions were involved. A similar provision about causing annoyance in the Kerala Police Act was also struck down. The court also held that that section 69A and its rules are constitutionally valid. This provision permits the government to block websites.

The court pointed out that the grounds mentioned conform to the reasonable restrictions to the right to free speech mentioned in the Constitution. The rules also prescribe a fairly elaborate procedure before a decision is taken and the decision must be in writing which can be challenged in court.

Section 79

Perhaps the most important aspect of the case however pertains to section 79. While there were 10 parties involved in the case, the challenge to section 79 was brought only by the Internet and Mobile Association of India. This provision exempts intermediaries (such as social media companies, web hosts, etc) from liability under all laws for unlawful content of others. But the exemption will not apply if on receiving knowledge or notice from the government, the intermediary does not take down content or disable access expeditiously.

This provision is important because ultimately, it is the intermediaries who are the gatekeepers of most content. The problem with this provision was that anyone could send a notice to an intermediary alleging that some content is unlawful and the intermediary, rather than risk its own liability, would take down the content. Also, in many types of content related disputes, it is not possible for the intermediary to tell whether the content is actually unlawful; this should be decided by a court of law, which as we lawyers know can involve multiple hearings.

A study done by the Centre of Internet and Society found that intermediaries took down content even when the allegation made was on the face of it frivolous. (You can access the study here: http://cis-india.org/internet-governance/intermediary-liability-in-india.pdf/view)

The court has appreciated this and held that “knowledge” means knowledge of a court order and not just knowledge from anyone. This means that an intermediary need not take down content merely because someone alleges that the content is unlawful; one has to obtain a court order first. This is in fact the biggest victory for free speech arising out of this case.

The new position of law is not quite ideal though as persons who feel aggrieved are forced to approach a court of law for an order. Many may prefer to let the harm continue rather than go through such an arduous process.

An alternative

There is in fact a middle path, which is to prescribe notice and take down procedures.

The law could provide that you must send notice to the intermediary in a particular format. The intermediary must forward the notice to the person who posted such content. After that person sends his reply, the intermediary must examine the issue and take a decision.

Whether the intermediary retains the content or takes it down, he faces no liability as long as his actions are in good faith. Under section 79 however, if the intermediary does not take down the content, he stands the risk of liability for the unlawful content.

These types of procedures are contained in some countries including in the USA’s Digital Millennium Copyright Act. It is unfortunate that the court did not see it fit to prescribe this or at least suggest that the government prescribe such a procedure.

Further, given the ruling that knowledge must mean knowledge of a court order, it is not clear whether the Government can now prescribe such a notice and takedown procedure.

It can however be argued that international and reputed intermediaries have policies relating to content and notice and take down procedures anyway so they can still take down the content voluntarily where they feel the issue is clear.

The other aspect of section 79 is that it provides that an intermediary must take down content on receipt of notice from the government. Surprisingly, the court upheld this even though it does not contain the protections that are mentioned in section 69A and its rules relating to website blocking. This means that the government can still send a notice to an intermediary that some content is unlawful and the intermediary, under fear of liability, is then required to take down the same expeditiously.

The only ruling on this point was that the grounds for exercising this power are the reasonable restrictions on free speech in the Constitution, the key one being public order. As the court has held, public order has to be construed fairly narrowly, covering situations that are public and not individual in nature.

Fear & uncertainty continues

The problem remains that the government can issue such a notice thereby causing fear and uncertainty for an intermediary. The procedures of section 69A and its rules are absent.

In fact, there is very little difference between blocking a website under section 69A and disabling access under section 79 and it is surprising that the court has not realized this.

This is therefore still a significant lacuna in the law and could be a means by which the government achieves what is permitted in section 69A but without its protections. Also, the court should have held that the rules under section 79 need to be revised since they prohibit all sorts of content which are not covered by the reasonable restrictions in Article 19(2).

One does get the feeling that the court did not examine section 79 with quite the same depth as it did Section 66A. It is also true that 9 of the 10 petitioners argued on section 66A and only one petitioner challenged section 79 and its rules.

Free speech battle won, war continues

Overall, this is a big victory for free speech in the country and particularly for user generated content but one feels that the decision on section 66A was inevitable and the real battle was on section 79 and the court has failed to delve deeply enough into what would be the appropriate legal position to protect free speech under this provision.

There are going to be many more battles around free speech and user generated content in time to come. The extent of use of reasonable restrictions such as the sovereignty and integrity of India, friendly relations with foreign states, decency or morality probably need to be examined more closely.

The criminal punishment for defamation is utterly abhorrent. Government surveillance surely needs some judicial oversight.

Hopefully, this judgement is indicative of which way the court will move in the future.    

Stephen Mathias is co-chair of the technology law practice at Kochhar & Co, based in Bangalore

Stephen Mathias is co-chair of the technology law practice at Kochhar & Co, based in Bangalore
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