Shreya Singhal judgment and Internet Intermediaries in India

Eira Mishra

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

Section 79 of the Act attempts to create a “safe harbor” for intermediaries. It exempts intermediaries from liability for content hosted by them on conditions laid down under Sections 79(2) and 79(3). The intermediary is required to publish rules and regulations of usage, privacy policy and a user agreement for users of computer to abide by, as per conditions stated in Rule 3 of the Information Technology (Intermediaries guidelines) Rules, 2011. This requirement of “due diligence” under the Act has created a hostile working environment whereby arbitrary take-down notices are sent to intermediaries. As per the rules, intermediaries may decline to comply with the notice but they usually submit to these to avoid prolonged and costly litigation. However, prior research ((Rishabh Dara, Intermediary Liability in India: Chilling Effects on Free Expression on the Internet, CENTRE FOR INTERNET AND SOCIETY, April 27, 2012, http://cis-india.org/internet-governance/chilling-effects-on-free-expression-on- internet))has shown that intermediaries prefer overbroad blocking over the risk of litigation.

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.

Conclusion

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.

[Breaking] Maximum age limit for appearing CLAT removed

While considering a Public Interest Litigation filed by the students of National Law School of India University, seeking to scrap the maximum age limit criteria for appearing the Common Law Admission Test, Jaipur Bench of Rajasthan High Court, passed an interim order directing Dr. Ram Manohar Lohiya National Law University, to accept applications without any age discrimination.

In this regard, court further directed Dr. Ram Manohar Lohiya National Law University, to update their software system, where the applications are accepted online, so that, no applications will be rejected on the basis of maximum age limit.

While issuing the interim order, court observed that, the Bar Council of India, itself withdrawn the Clause 28 of Schedule III, Rule 11 of Bar Council of India Legal Education Rules, 2008 on the ground that, introduction of discriminatory classification of students by prescribing an age limit is in violation of the provisions of the Advocates Act, 1961. Court, further considering the candidates from rural areas said that, fixing maximum age limit will not serve the purpose of conducting Common Law Admission Test.

Read Full Judgment of Kshitij Sharma v. Bar Council of India (04-03-2015, Rajasthan HC) OR Search for D.B. Writ (PIL) Petition No.2497/2015 at Rajasthan High Court, Jaipur Bench

Earlier, in a similar case, Allahabad High Court also scraped the upper age limit for appearing CLAT Exam. Read more on No upper age limit for appearing CLAT exam, on the ground that, the same is in violation of Article 19 of Indian Constitution.

[Breaking] No upper age limit for appearing CLAT exam

While considering a writ petition seeking to issue a Writ of Certiorari, for quashing the advertisement notification issued by Dr. Ram Manohar Lohiya National Law University, which seeks, seeks to prescribe the upper age limit of 20 years as an essential criterion for appearing in the Common Law Admission Test (CLAT Exam), held that, neither the provisions of State Universities or the National Law School of India Act, OR any other law whereby examination conducting universities have been empowered to fix upper age limit in the Common Law Entrance Examination.

Court further observed that, the statement of objects and reasons of National Law School of India Act, 1986 clearly lays down that one of the functions of the Bar Council of India is the promotion of legal education. Similarly, Object and Reasons of National Law School of India Act, 1986 states as follows;

One of the functions of the Bar Council of India is promotion of legal education. To carry out that object the Bar Council of India created a charitable trust called the Bar Council of India Trust, which in turn registered a Society known as the National Law School of India Society, in Karnataka. The Society framed necessary rules to manage the National Law School of India with powers to confer degrees, diplomas, etc., and requested the State Government to assist it, by establishing the School as a University by a statue so that it could carry out its objects effectively. The State Government considers it desirable to encourage the establishment of such a national level institution in the State.

Court further noted that, when other admission examinations for the courses like B.Ed, CA, SC, MBA etc. do not impose any upper age limit for appearing the common admission test, a restriction of the age to take admission violates the fundamental right as envisaged under Article 19 of the Indian Constitution.

While directing Dr. Ram Manohar Lohiya National Law University, to accept applications of the petitioners as well as other similar candidates, who are intending to appear the CLAT Exam, Court ruled that, Dr. Ram Manohar Lohiya National Law University, is only an agency given with the responsibility to conduct the Common Law Admission Test, on behalf of respective National Law Universities, at par with the guidelines issued by the Bar Council of India.

Read Full Judgment of Devasheesh Pathak v. BCI, decided on 26-02-2015 (Allahabad High Court). Followed by theJaipur Bench of Rajasthan High Court also removed the maximum age limit for appearing CLAT.

Kiss of Love and its legality

Vishnu S Warrier

Well, recently it was observed in the southern state of Kerala that, a group of volunteers comes up with a new mode of protest against the moral policing called “Kiss of Love”. Subsequently said form of protest gathered support from educational institutions outside of Kerala including University of Hyderabad, JNU Delhi, IISER Kolkata, Pondicherry University, IIT Madras and IIT Bombay. Students from Jadavpur University and Presidency University, Kolkata have organised similar protests against moral policing in Kolkata on 5 November 2014.

Kiss of Love is a non-violent protest against moral policing which started in Kerala and later spread to other parts of India. Kiss of Love protest was sparked off in October 2014 when a leading Malayalam news channel, telecast an exclusive report on alleged immoral activity at the parking space of Downtown Cafe in Kozhikode. The video showed a young couple kissing and hugging each other. Following the report, a mob of attackers, vandalized the cafe. Following this, Rahul Pasupalan, a short film maker from Kerala, and a group of friends had started the Facebook page ‘Kiss of Love”. Activists from all over Kerala decided to protest against the series of moral policing incidents by organizing a public event at Marine Drive beach on November 2 in Kochi.

Legality of Kiss of Love

Now let’s come to the legality of the issue. The major issues here are “Do you have a right to Kiss and Hug”? Of course you have right to Kiss and Hug. But, whether such an act can be done in a Public place? If such an act is conducted in a public place whether it can be interpreted as an “obscene act”?

It could be a possible argument by the Kiss of Love activists that, Right to Kiss and Hug is guaranteed as the Fundamental Right to freedom of speech and expression guaranteed under Article 19 (1) (a) of the Indian Constitution. However, author would like to counter such an argument by referring to Article 19 (2) of the Indian Constitution, which imposes reasonable restrictions on the Fundamental Right to freedom of speech and expression.  Article 19 (2) says as follows;

Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

It is, therefore, obvious that subject to reasonable restrictions placed under Article 19(2) a citizen has a right a publish, circulate and disseminate his views and any attempt to thwart or deny the same would offend Article 19(1)(a).

Further, under Section 294(a) of Indian Penal Code, “Whoever, to the annoyance of others, does any obscene act in any public place shall be punished with imprisonment for a term which may extend to three months, or with fine, or with both”. However, Indian Penal Code does not define the word “obscene”; hence it is interpreted differently by different authorities. Apex court in S. Khushboo v. Kanniammal & Anr ((Decided April 28, 2010)), observed that “obscenity” should be gauged with respect to contemporary community standards.”

With regards to kissing and hugging in public places, the Supreme Court of India has made it clear that ‘no case can be made out of two people consensually hugging and/or kissing. Supreme Court’s verdict came in response to a petition filed by actor Richard Gere to quash the arrest warrant issued by a Jaipur court. The arrest warrant was issued after the actor had taken Shilpa Shetty in his embrace and kissed her on the cheek at an AIDS awareness programme. A verdict by Delhi High Court has also made it clear that kissing in public is not a criminal offence.

Re, to apex court’s observation in Chandrakant Kalyandas Kakodar v. The State of Maharashtra ((1970 AIR 1390))that, “standards of contemporary society in India are fast changing,” and the regarding the “contemporary community standards,” the Supreme Court further noted that it is not “the standard of a group of susceptible or sensitive persons” that can be held as the standard of the community ((Aveek Sarkar v. State of West Bengal, Decided on February 3, 2014)). This is equally applicable to the Kiss of Love activists as well as those who claim themselves as the representatives of moral policing.

However, in a country like India, Kiss of Love and other similar activities are a question of morality and culture, and “Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy ((S. Khushboo v. Kanniammal & Anr, Decided April 28, 2010)).”

Though there are various judgments in permitting two people to consensually hug and/or kiss each other, keeping in mind the number of instances of moral policing, it is high time to define the term “obscene” or “obscenity”. Courts, in its decisions, has at various times endorsed all of them, some of them, or none of them. We await clarity on this important issue.

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