In its decision in Shreya Singhal v. Union of India, the Supreme Court of India struck down Section 66A of the Information Technology Act, 2000 on the grounds that the Section has a chilling effect on the right to freedom of speech and expression over the Internet. At the same time, the apex court also read down some of the harsher provisions of the Intermediary Guidelines that dealt with the takedown of illegal content posted on the Internet. Both for its jurisprudential content as well as the immediate effect that it will have on companies operating on the Internet in India, this decision will have a significant impact on the way in which the Internet is used in India.
On 24 March 2015, the Supreme Court of India issued a long awaited judgment on the constitutional validity of various provisions that had been newly introduced into the Information Technology Act, 2000 (IT Act). The 122 page judgment is exhaustive in its analysis, carefully reasoned and will have far reaching consequences on the jurisprudence relating to the freedom of speech and expression in the country. To the extent that this judgment also deals with the liability of intermediaries for content published on their platforms it will have a significant impact on e-commerce entities, social media companies and all other commercial enterprises whose business model is largely dependent on the internet.
THE PROVISIONS IN QUESTION
The crux of the decision was whether or not the provisions of Sections 66A, 69A and the Rules under Section 79 of the IT Act were constitutionally valid. Each of these provisions had been introduced as amendments into the IT Act with a view to further regulate conduct over the Internet. They each had, in the short history of their existence, given rise to a number of unfortunate incidents in which over-zealous law enforcement agencies brought excessive force to bear on ordinary citizens exercising their right to voice an opinion on the Internet.
Section 66A of the IT Act prescribes punishments for communicating certain types of information over the Internet. Under its provisions, any person who disseminates over the Internet (i) information which is grossly offensive or menacing; (ii) false information sent with the intention of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill-will or (iii) any email intended to annoy or inconvenience or to deceive or mislead the recipient as to the origin of these messages could be punished with imprisonment of upto three years and fine.
Section 69A of the IT Act, empowers the Central Government to order that access to certain websites and computer resources) be blocked in the interest of the defense of the country, its sovereignty and integrity, the security of the State, friendly relations with foreign States, public order or for preventing incitement to the commission of an offence. The details of the procedural safeguards that had to be followed while blocking access were set out in in more detail in the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (Blocking Rules).
Section 79 of the IT Act is India's safe harbor clause that provides intermediaries exemption from liability for content uploaded or hosted on their platforms subject to their compliance with the conditions set out in the Section and Information Technology (Intermediary Guidelines) Rules, 2011 (Intermediary Guidelines). Rule 3(2) of the Intermediary Guidelines casts an obligation on the intermediary to inform users to refrain from hosting, transmitting, displaying, uploading, publishing, modifying or sharing certain kinds of content on its platform. Further, Rule 3(4) requires the intermediary to takedown all content that contravenes Rule 3(2) once it has been notified that such content has been posted on its site.
The judgment examines the constitutional validity of each of these provisions separately.
SECTION 66A AND THE FREEDOM OF SPEECH AND EXPRESSION
Before getting into the specifics of Section 66A, Justice Rohinton F. Nariman spent some time analyzing the concept of freedom of speech and expression. With the help of a pithy excerpt from William Shakespeare's 'Julius Caesar', he explained that the three fundamental aspects of speech and expression were discussion, advocacy and incitement. In the view of the court, the mere discussion or advocacy of a particular cause, no matter how odious, would always be protected by the right to freedom of speech and expression. It is only when either discussion or advocacy reaches the level of incitement that restrictions kick in.
This powerful articulation of the fundamental right very clearly circumscribes the zone within which the legislature has the power to enact legislation. As a principle, it will be capable of being applied across a wide range of circumstances where freedom of expression is in jeopardy.
When the Court examined the provisions of Section 66A, in the context of this principle it was clear that the Section did not differentiate between the mere discussion or advocacy of a point of view and the use of that point of view to incite prohibited actions. This according to the Court, went against the spirit of 'freedom of speech and expression' and hindered the free flow of opinions and ideas.
The Court went on to hold that Section 66A cannot be justified under the exceptions to the freedom of speech and expression under Article 19(2) such as of public order, defamation, incitement to an offence, decency and morality. The Court refused to accept that the Section had been enacted in the interests of 'public order' given that it covers within its scope, both messages to individuals as well as mass messages. It refused to allow the Section to be protected under the exception for defamation since it didn't concern itself with injury to reputation. The Section did not fall within the exception granted to prevent the 'incitement to an offence' since it seeks to control all information irrespective of whether it 'incites' anyone or not. Finally, the court rejected all attempts to bring it under the exception for indecency or immorality when the Section made only oblique reference to those concepts.
The Court also pointed out that the terms used in Section 66A were vague, undefined and open-ended. Terms like 'annoying', 'inconvenience' and 'grossly offensive', as used in the provision do not point to a specific offence and leave both law enforcement agencies as well as the general public unsure of what is permitted and what is not.
In many ways, this was the decision that the Internet community in the country was hoping for. For a nation that only recently adopted this new medium it was a much needed shot in the arm. While this aspect of the judgment will have no direct bearing on the behavior of social media companies it will encourage users to express their views on these platforms without fear of reprisal. Many of these companies are dedicated to protecting freedom of speech around the world and to have the apex court of one of their largest markets strongly uphold that principle can only be good for business.
SECTION 69A AND THE BLOCKING RULES
The Court was not as readily convinced by the arguments on the constitutionality of Section 69A of the IT Act and the Blocking Rules. The petitioners contended that Sections 69A and the Blocking Rules neither provided the opportunity for a pre-decisional hearing nor necessary procedural safeguards such as the requirement of a search warrant and the ability to make an application to Court to appeal the blocking order.
However, unlike in the case of Section 66A, the Court was of the view that Section 69A is narrowly drafted and has inbuilt safeguards. Blocking can be carried out only when the Central Government is satisfied that it is necessary and the restrictions sought to be imposed fall squarely within the reasonable restrictions to freedom of speech and expression under Article 19(2). It cannot be carried out without the approval of a committee that, at least, theoretically would take into account the views of all affected parties. The Court seemed to draw particular comfort from the fact that the reasons for the blocking were required to be recorded in writing so that they could be challenged if need be in a writ petition.
It is unfortunate that the Court did not see fit to evaluate for itself whether provisions set out in the Blocking Rules, are applied in practice as described. Anecdotally, it would appear that at least some of the blocking orders issued recently did not take the trouble to seek the views of the originator or even the intermediary. Presumably, after this judgment, writ remedies would be maintainable for all such breaches in protocol.
SECTION 79 AND THE INTERMEDIARY GUIDELINES
From a commercial perspective, the arguments around the Intermediary Guidelines are perhaps the most relevant part of the judgment. It's a pity that the Judges spent just 6 pages on them.
The principle contention of the petitioners was that Rule 3(4) of the Intermediary Guidelines left it to the intermediary to exercise its discretion as to whether or not the notified content was prohibited under Rule 3(2). The list of items that are prohibited under Rule 3(2) is extensive and additionally, the Rule contains language that seeks to include information that is "otherwise unlawful in any manner whatever", making it almost impossible to draw up a finite list of prohibited content.
The petitioners argued that an intermediary is, by definition, a neutral platform on which parties interact. It should not have to take sides on disputes over prohibited content. To do so would force the intermediary to exercise its judgment on a dispute that often revolves around principles of law and matters of fact – issues on which the intermediary does not and should not be expected to have expertise. Under Rule 3(4) the intermediary has just 36 hours in which to decide whether or not a request received is legitimate and take down the infringing content. This has put intermediaries in a tough spot as they try and abide by the requirements of the law while at the same time protecting the legitimate interests of their users.
In its judgment, the Supreme Court ruled that instead of striking down Rule 3(4), the provision should be read down. Based on the judgment, an intermediary is now only obliged to remove content after it has received an order from a court or from the Designated Officer under the Blocking Rules, directing it to do so. The court also clarified that the scope of the term 'unlawful act' should be limited to only those types of matters that are under Article 19(2) and nothing else.
This decision has brought some clarity to the manner in which businesses are obliged to respond to takedown notices. It is no longer left to the intermediary to decide whether or not content is prohibited. Unless it receives a notice from a court or from the Designated Officer, it is not obliged to take down any content. The ruling also provides some succor to users who are no longer forced to acquiesce to random takedown notices in relation to an uncertain list of prohibited items.
THE FAR REACHING IMPACT OF THE JUDGMENT
The most direct benefit of this judgment is the positive impact that it will have on freedom of speech on the Internet, one aspect of our fundamental rights that has in the recent past been systematically eroded. The Court has been unequivocal in the test it has laid down – that until it rises to the level of "incitement" all discussion and advocacy has the protection of the fundamental right to freedom of speech and expression. The legislature is bound to abide by this clear direction from the highest court in the land and ensure that any future legislative exercise follows that principle.
Section 66A was originally intended to address the twin problems of spam and cyber stalking. It has, unfortunately, been used to crackdown on online dissent and political criticism. With the increased use of social media this has been further exacerbated and various agencies of the government have swooped in to curb the dissemination of information and the voicing of opinions on social media sites like Facebook and Twitter.
By declaring Section 66A unconstitutional, the Supreme Court has acknowledged that freedom of speech extends to the online realm as well and that for the most part, much of the same principles apply. It has tacitly acknowledged that much of what is said on social media and the internet will provoke or annoy but has ruled that even in those cases the government may not curb the rights of individuals to enjoy their fundamental right of freedom of speech and expression. It is only when social media is used to incite persons to public disorder that the restrictions offered under Article 19(2) can be invoked.
It is perhaps unfortunate that the Court did not see fit to apply the same logic to the provisions of Section 69A. However, the decision to read down the provisions of Rule 3(4) and consequently rationalize the benefit of Section 79 of the IT Act to the broad community of intermediaries is likely to have a significant benefit on Indian companies whose business model is based on the Internet.
Keeping all this aside, the judgment has a broader, perhaps less tangible impact. Never since the 1960's has a court made such a bold ruling on freedom of speech. And it could not have come at a better time. Today the world is a far more connected place than it was when the Constitution was drafted. The ripple effect of actions are felt much further afield and modern technologies allow our voices to be amplified. The government legitimately fears the consequences of allowing radical elements to use these modern technologies unchecked as this can be a powerful weapon of destabilisation.
Yet even in this modern age there is a need to preserve and protect the fundamental right to freedom of speech and expression. Rather than block the use of modern technologies, the government must devise new ways in which freedom can be enjoyed without descending into chaos and public disorder. With this unequivocal and unassailable judgment, the Supreme Court has just mandated the Government to find those solutions.