Ever since the pronouncement of the Supreme Court's verdict on March 24 2015 on the so-called 'IT writ petitions' much has been written in mainstream and alternative forums on the striking down of Section 66A of the IT Act 2000 – and rightly so, because its draconian nature, vagueness and unreasonableness were writ large. The number of instances in which the now erstwhile provision proved susceptible to abuse bears testimony to the dangers it posed to free speech and hence its fundamental constitutional infirmity.
In stark contrast, the other provision (Section 79(3)(b) of the IT Act) which was read down by the Supreme Court has not received its due consideration in popular discourse. This is perhaps because this provision required – and still requires – much attention to nuance. The challenge to the provision was mounted by the Internet and Mobile Association of India (IAMAI) – a consortium of internet intermediaries – in the same batch of IT writ petitions. This challenge was critical, owing to the integral nature of internet intermediaries and the role that they place as disseminators of free speech and expression with regard to internet users. With the Internet increasingly becoming the medium of choice for expression of social, cultural and political views outside the mainstream media, attention must be paid to the restraints imposed on intermediaries which facilitate free speech.
According to the IT Act, an 'intermediary' is:
"any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web hosting service providers, search engines, online payment sites, online-auction sites, online marketplaces and cyber cafes."
Clearly, any restrictions on the ability of intermediaries to host content would have an immediate, direct and adverse bearing on internet users' fundamental freedom of speech and expression under Article 19(1)(a) of the Constitution. This was the basis of the IAMAI's challenge to Section 79(3)(b).
Before being read down by the court, Section 79(3)(b) – which applies to internet intermediaries – used intermediaries as proxies to impose constitutionally impermissible restrictions on free speech (ie, restrictions which were beyond the scope of Article 19(2)). Therefore, the IAMAI contended that if Section 66A was liable to be struck down for imposing direct restrictions on internet users' free speech and expressions which were beyond the pale of Article 19(2), similar restrictions indirectly imposed on users through intermediaries under Section 79(3)(b) were equally beyond the scope of Article 19(2). In other words, what cannot be done directly cannot be done indirectly – the litmus test being the direct and immediate curtailment of internet users' freedoms under Article 19(1)(a) consequent of the restrictions under Section 79(3)(b).
In order to lend perspective to the challenge to Section 79(3)(b), consideration must be given to the fact that the Internet is increasingly driven by user-generated content which is monumental in its sheer diversity and scale. Numbers perhaps tell the story better: every minute almost 360,000 tweets are published on Twitter, 30,000 edits are made to Wikipedia, Facebook users share 684,478 pieces of content and more than 100 hours of video are added to YouTube. These overwhelming numbers contribute to an emerging area in information management systems, particularly big data. Given these numbers, it is practically impossible for intermediaries such as Google, Twitter or Facebook to pre-screen content or exercise ex ante editorial control. This also means that intermediaries cannot vouch for or take responsibility for the legality of the content being uploaded, transmitted or published on their platforms. Yet, in 2004 the chief executive officer of Baazee.com, Avnish Bajaj, was arrested because a user had posted an offer of sale for an obscene video clip on the platform.
To address these instances and ensure that intermediaries would not be held liable for content created or published by their users, the definition of 'intermediary' was effected in the Information Technology (Amendment) Act 2008 and Section 79 of the act was amended to establish a safe harbour for intermediaries in relation to liability arising from user-generated content. As part of the amendment and in return for the safe harbour, a corresponding takedown (removal of content) obligation was imposed on intermediaries under Section 79(3)(b), which was challenged by the IAMAI in its petition and eventually read down by the court.
Section 79(3)(b) has two prongs. The first relates to an intermediary's obligation to issue takedown notices on receipt of 'actual knowledge' of the illegality of content hosted by the intermediary. The second relates to takedown notices issued by the government or its authorised agency to intermediaries. Both prongs give rise to different but equally grave concerns. The problem with the first prong is that although it borrows the term 'actual knowledge' from the EU E-Commerce Directive (2000/31/EC), 'actual knowledge' is not defined in the Indian statute.
The legal and operational challenges arising out of the use of the term have been captured in a study undertaken in the European Union.(1) The study noted that the term 'actual knowledge' can and has been interpreted in several jurisdictions to mean that intermediaries are expected to sit in judgment over the legality or unlawfulness of content impugned in a takedown notice. Clearly, this is beyond the ability of intermediaries, which establishes the unreasonableness of this mandate under Article19(2). Echoing the validity of this contention, the court read down 'actual knowledge' to mean an intermediary's knowledge of a court order directing it to remove or disable access to the impugned content.
The second prong of Section 79(3)(b) is problematic as it vests the government with untrammelled adjudicatory powers to determine the illegality of online content. In particular, the use of the term 'unlawful' in Section 79(3)(b) expands the scope of restrictions beyond the specific permissible categories identified in Article 19(2) of the Constitution. In response to this concern, the court drew parity between the government's (only the central government) power to block content under Section 69A and its power to direct the takedown of content under Section 79(3)(b). The court noted that the limitations identified in Article 19(2) applied to the government's power to block or remove content under both sections.
This is arguably the most positive outcome on the issue of intermediary liability. By reading in Article 19(2) to the restrictions imposed on intermediaries under Sections 69A and 79(3)(b), the court accepted the intermediaries' argument that the test to be applied to any law is whether it directly impacts free speech, regardless of who the restrictions are applied through (in this case, through intermediaries). Further, even if restrictions are imposed in return for immunity under Section 79(1), the perceived largesse to intermediaries does not legitimise the transgression of the boundaries set by Article 19(2). This position was endorsed by the Supreme Court.
That said, although the court has encumbered the government's takedown powers under Section 79(3)(b) by reading in Article 19(2), the fundamental question of the government's constitutional competence to direct takedowns was not addressed, perhaps because the court was convinced of the government's competence during its analysis of Section 69A. Regardless, the court should have included the de minimis procedural safeguards provided under Section 69A and the blocking rules or the safety provisions under Sections 95 and 96 of the Code of Criminal Procedure 1973 (which deal with the government's power to ban books or publications) in Section 79(3)(b). This is so because unlike Section 69A, Section 79(3)(b) does not provide an opportunity for intermediaries or the creators of content to be heard before a takedown, nor is there a provision for appeal under the act (except for a writ petition).
It is surprising that after taking detailed cognisance of the procedures laid down under Section 69A, the court did not apply the same yardstick and due process safeguards to Section 79(3)(b). Having recognised internet users' right to receive information and content in its analysis of Section 66A, the court should have taken note of the adverse effect of the government's ability to direct takedowns peremptorily on internet users' right to receive content, even where the subject matter of the takedown relates to permissible proscriptions under Article 19(2). After all, in addition to the substantive safeguards, the Constitution has procedural safety valves to protect free speech. Had these concerns been addressed, the verdict would have been far more comprehensive in relation to Section 79(3)(b).
Although the court addressed some primary concerns of intermediaries relating to Section 79(3)(b) – thereby rendering their immunity more meaningful – it could have addressed other equally important concerns which have a concrete and critical bearing on the intermediary liability regime in India. This would have made India a much more attractive destination for intermediary investments, given the potential of the internet economy and e-commerce. Perhaps the egregious language and consequences of Section 66A drew the court's attention much more than the complex issues under Section 79(3)(b) and the Intermediary Rules. This is borne from the fact that in the122-page judgment, 109 pages were devoted to Section 66A and a similar provision in the Kerala State Police Act. Only the final paragraphs (Paragraphs 112-118) of the verdict deal with the issue of intermediary liability.
The judgment is undeniably welcome and it is expected to democratise the Internet further. However, the IT writ petitions could have been used to overhaul the IT Act comprehensively on a range of related issues – each of which is critical in relation to freedom of speech and expression on the Internet. Unfortunately, it appears that the Supreme Court has passed up an opportunity which may not present itself again.
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