An analysis of the effect of Shreya Singhal judgment on Internet intermediaries in India
The Shreya Singhal judgment ((Shreya Singhal v. Union of India, WRIT PETITION (CRIMINAL) NO.167 OF 2012)), pronounced in March 2015, has been met with ambivalent reception on the stance of intermediary liability law in India. The first Public Interest Litigation (PIL) on the matter (with which several cases were subsequently joined) contested the constitutionality of Section 66A, 69A, 79 and 80 of the Information Technology Act, 2000 (hereinafter “the Act”) on the ground that these violate Articles 14, 19(1)(a) and 21 of the Constitution. Section 66A was plagued with several ambiguous terms like “grossly offensive”, “menacing character”, “annoyance”, “inconvenience”, “danger”, “insult”, “injury” and “ill will”. This section was held to assault the very soul of the freedom of expression guaranteed under Article 19(1)(a) and to not be saved by any of the reasonable restrictions under Article 19(2). It was consequently held unconstitutional. This decision was hailed as victory of freedom of speech and expression over draconian laws unfit for operation in a democracy.
The advent of internet has ushered in the need for law to constantly evolve with the new methods of communication and information dissemination growing every day. A critical question in this regard is the determination of liability of internet intermediaries. The other provisions of the Act contested were Section 69A, dealing with procedure for blocking of public access to websites and Section 79 which bestows immunity on intermediaries from liability in certain cases. The IT Act defines “intermediaries” ((Section 2(1)(w) of the Information Technology Act, 2000))to include telecom service providers, internet service providers, search engines, cyber cafes, etc. Any person or organisation facilitating storage or transmission of electronic records is included within the definition.
Clarification on Procedural Safeguards
Constitutionality of Section 69A of the IT Act was assailed on the basis that it did not provide for any pre-decisional hearing. The Supreme Court, on the other hand, has upheld the constitutional validity of the provision stating that ample safeguards akin to those laid down under Article 19(2) have been given under the section. These provide satisfactory guidance to authorities as to what content is liable to be blocked and to weed out misuse of the provisions. It further read pre-decisional hearing into the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 ((Hereinafter, the Blocking for Access Rules)), laid down under Section 69A (2) of the Act. This demolishes the prior regime of notice and take-down. Intermediaries usually complied with third-party notices even when the content was perfectly legitimate because they lacked the resources and the initiative to defend known/unknown originator’s content if litigation ensued. Provision of these clarifications is hailed as originators and intermediaries will now have a clear opportunity to make representation before the concerned committee and plead their case before their content is taken off the internet.
The apex court has read down these rules to mean that non-governmental agencies cannot easily force removal of content available on the internet. The government is conferred the responsibility to decide the lawfulness, or the lack of it, of the disputed content. Additionally, the Blocking for Access Rules have been read to mean that blocking order shall be provided to the intermediary in writing, stating reasons for issuing of the order. The intermediary has the right to appeal against the order in a writ petition under Article 226, contesting the reasons mentioned in it. This verdict will protect online content from being forcefully taken down due to indiscriminate notices against lawful content.
Rule 8 of the Blocking for Access Rules has been read to mean that pre-decisional hearing is granted not only to the intermediary but also to the originator of the content. The extension of opportunity to represent oneself advances accountability to the system set for blocking. However, this would require the Committee to locate and contact the originator, something which might not be strictly followed ((Chinmayi Arun, The Case of the Online Intermediary, THE HINDU, April 7, 2015, http://www.thehindu.com/opinion/op-ed/shreya-singhal-case-of-the-online-intermediary/article7074431.ece#comments)). This sets a low threshold of accountability for the review committee. Mostly originators cannot be identified and intermediaries are not usually willing to appeal in a writ petition for anonymous person’s content.
The temporospatial extent of blocking orders is also burdened with ambiguities. There are no guidelines that state for how long and over what territory is the blocking order applicable. Another matter of concern is the confusion over frivolous complaints wherein no penalties have been imposed for false complaints and not rules discuss the recourse available to the intermediary to claim damages upon proof of vexatious complaints ((Jyoti Pandey, The Supreme Court Judgment in Shreya Singhal and What It Does for Intermediary Liability in India? CENTRE FOR INTERNET AND SOCIETY, April 11, 2015, http://cis-india.org/internet-governance/blog/sc-judgment-in- shreya-singhal-what-it-means-for-intermediary-liability)).
Need for Transparency
The blocking procedure has still not been lit up with transparency. Rule 16 of the Blocking of Access Rules states that strict confidentiality shall be maintained with respect to complaints received and blocking orders passed. This is an “insidious form of censorship” and results in chilling effect of freedom of speech and expression. The court reiterates that an “informed citizenry” and a “culture of open dialogue” are integral to functioning of our democracy. Confidentiality is criticized because it abridges an originator and reader’s right to know that their content has been blocked by a government notice. In fact, many academics believe that blocked web content must carry a notice which lays down the reason behind the order and the authority issuing the order.
Keeping up with technology is quintessential. Creation of a digital version ((Supra note 4))of the traditional government notices is one of the ways to keep the public informed of government action taken and to provide affected persons with an opportunity to contest the ban. This would bring our procedure at par with due process.
Another way for public scrutiny of government blocking orders would involve imposing of a requirement on the central government to publish an annual report of online content blocked with reasons for the action. This would advance the cause of transparency and decrease arbitrariness on part of government.
Safe Harbour and Intermediaries
The aforementioned process gives rise to privatization of censorship which is contrary to the very essence of the right to free speech and expression guaranteed by Article 19(1)(a). The liability imposed on platform companies for regulation of online activities of its users’ amounts to censorship-by-proxy which endangers both free speech and innovation. Thus Section 79, along with the Intermediaries Guidelines, 2011 was challenged in this case ((See also: Mouthshut.com v. Union of India, WRIT PETITION (CIVIL) NO. 217 OF 2013)). The court read down Section 79(3)(b) of the Act and Rule 3(4) of the Intermediaries Guidelines, 2011 to mean that whereas previously the intermediaries had to suo motu decide the lawfulness of the content, now it is essential to require passage of an actual court order or government notification for initiating a take-down.
Another pertinent issue is at the centre of this argument. Even though an expectation that intermediaries would monitor and regulate all content that flows though their channels is flawed, yet some level of cooperation is essential to ensure that harmful speech, such as child pornography, is expeditiously removed from the host site.
The Shreya Singhal judgment has granted a much needed sigh of relief on content originators, intermediaries and netizens in general. Intermediaries’ legal liabilities have been substantially lowered due to clarifications provided by the Supreme Court. This would act as a catalyst for businesses which are primarily based on the internet.
Upholding validity of Section 79 after reading down 79(3)(b) implies that intermediaries are not completely off the liability radar. They can harness this opportunity to build reliance on their user guidelines by issuing simple take-down policies for content which amounts to harassment, bullying or other misdemeanors, thereby minimizing the need to resort to judicial remedies.