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.

Supreme Court strike down Section 66A of IT Act as unconstitutional

Bench of Supreme Court, while observing public’s right to know is directly affected by Section 66A and the Section clearly affects the right to freedom of speech and expression enshrined under the Constitution of India, held that Section 66A was unconstitutional because it failed two major tests – the clear and present danger test and the tendency to create public disorder test.

The court also found the language used in the Section vague and nebulous saying it doesn’t properly define words like ‘offensive’ or even ‘persistent’. This section had been widely misused by police in various states to arrest innocent persons for posting critical comments about social and political issues and political leaders on social networking sites.

Court further, observed that, it can’t go by government assurances that the Section won’t be misused as any assurance would not bind on successive governments. Section 66 A it said, would have to be judged on its own merits. However, allowed the government to block websites if their content had the potential to create communal disturbance, social disorder or affect India’s relationship with other countries.

The court said such a law hit at the root of liberty and freedom of expression, the two cardinal pillars of democracy. The court said the section has to be erased from the law books as it has gone much beyond the reasonable restrictions put by the Constitution on freedom of speech. The Supreme Court said section 66A was vaguely worded and allowed its misuse by police.

The SC delivered its judgment on a bunch of petitions filed in the light of misuse of the penal provision by government authorities against persons who allegedly uploaded offensive posts on social networking sites against the shutdown in Mumbai following Shiv Sena leader Bal Thackeray’s death.

Government to reconsider Section 66 A of IT Act

While replying to the Supreme Court’s comment seeking clarity on Section 66 A of the Information Technology Act, 2000, Central Government informed the apex court that Government is willing to take a re-look at Section 66 A of the Information Technology Act, which empowers police to make arrests over social media messages, and to put in necessary safeguards for allaying apprehensions against its misuse.

Government gave assurance to that, it will take appropriate steps to frame necessary guidelines to curb misuse of Section 66 A of the Information Technology Act, 2000. Government also assured the guarantee of absolute freedom of speech and expression on the social media.

Central Government further submitted that the government had an open mind regarding applicability of Section 66 A and that if necessary, it could also frame guidelines to make sure the law is not abused to arrest innocent people and curtail their fundamental right and the government is willing to take all pre-emptive steps to negate the chilling effect that Section 66 A may have on an individual’s right to speech and expression. Government further promised that, even the most vociferous of the political dissent would not be attempted to be curbed by way of this legislation.

Considering the submissions made by the Central Government court advised petitioners, who have challenged the constitutional validity of Section 66 A, to give their suggestions regarding the proposed safeguards by December 25 to Additional Solicitor General (ASG). “The government will consider these suggestions on the guidelines to be framed and we can then hammer out the issues,” said the bench, while adjourning the case to 13 January, 2015.

Clarity required on ‘infirmity’ in Section 66A, IT Act 2000

A bench of Justices J. Chelameswar and S.A. Bobde of the Apex Court, while hearing contention of Centre in a case of posting objectionable comments on social websites by some persons sought clarity on ‘infirmity’ in Section 66A of the Information Technology Act 2000 (IT Act). Court recognized that misuse of Section 66A in case of “unpalatable political activity” had to be checked and said for individuals in the public sphere, the ambit of the section had to be defined.

The substance of the proceedings before the apex court was, Whether Section 66A of the Information Technology Act, 2000 (IT Act), which provides punishment for sending offensive messages through a communication service a flawed law, or is it just being improperly implemented? The bench further observed that if the law was being abused, on a case to case basis, the same could be looked into instead of striking down the entire provision. Court further wanted to see the infirmity in the law.

Section 66A of the Information Technology Act, 2000 deals with punishment for sending offensive messages through communication service etc., under which any person who sends, by means of a computer resource or a communication device;

  1. Any information that is grossly offensive or has menacing character; or
  2. Any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device,
  3. Any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.

For the purpose of Section 66A of the Information Technology Act, 2000 terms “electronic mail” and “electronic mail message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message.

Now the issue for debate is whether Section 66A of the Information Technology Act, 2000 is in violation of the fundamental right to freedom of speech and expression guaranteed under Article 19 (1) (a) of the Indian Constitution. At the same time, Article 19(2) prescribes reasonable restrictions on the right to freedom of speech and expression when the same is in the interests of public order, decency, morality, defamation, contempt of court, sovereignty and integrity of the country and security of India.

Law Relating to Electronic Contracts by Dr. R.K Singh

Vishnu Chandran, II year LLM Student, School of Legal Studies, CUSAT

dr-rk-singh-law-relating-to-electronic-contract-pb-400x400-imadsxbq4peprafrThe technological changes are boon for mankind and the internet has changed the life of people altogether. Almost everyone is accustomed to the virtual world and accesses the same. The new communication systems have replaced the traditional snail – pace systems of communication. Business communities and consumers are all the time using computers more and more to transmit and restore information in electronic form. Consequently there has been a shift from’ paper based transactions’ to ‘electronic transactions’ and eventually the concept of electronic contracts (e-contracts) came into existence.

An Electronic Contract is computerized facilitation or mechanization of a contract in a cross-organizational business progression. In simple terms, an Electronic Contract means a contract made electronically, i.e. which is entered into using electronic mode, either fully or partially. Theoretically an Electronic Contract is very similar to traditional paper based contract. However owing to the ways in which the e-commerce differs from traditional commerce raises some novel and interesting legal and technical issues. This demands some literary work in the area of e-contracts and such efforts to bring forth all those facets together have been made in the book under review. The author has ‘constructed’ this book based on his Ph.D thesis with modifications. The Book consists of Seven chapters and Five appendices.

Elucidation of any legal concept envisages an attempt to lay down in simple terms in its definition, meaning, nature and scope. History and classification of the concept and it’s inter link with others would also be an inevitable part in understanding the notion in its proper perspective. In the first two chapters, the author in his class room linguistic style briefly but vividly portrayed all these.

The contract law was founded on the principle that individuals are the bearers of rights and they bargain each other to get into agreements to exchange goods and services. Contracts in all systems of law are founded on this premise. A contract is a civil obligation, however all obligations are not contracts. Contract law does not cover whole range of civil obligations; it confines itself to the enforcement of voluntarily created civil obligations. Traditionally, an offer and its valid acceptance are needed in order to from a contract. However if the offerors’ actions imply that he does not intend to be bound automatically upon acceptance and he makes no offer, rather he makes only an invitation to treat, because his actions suggest that further he makes only an invitation treat, then the offeror is not legally bound. In many day to day situations it is unclear whether and if so, at what stage party intends to become legally bound. The author also gives a vivid description on different aspects needed for formation of valid contracts. However it could have been more attractive and useful if the author encompassed some more detailed discussion about diverse types of remedies available in the event of breach of contract.

The Third chapter exclusively deals with the ‘Formation of electronic contracts’. In fact this chapter can said to be the soul of the book. Author has discussed each and every aspects of Electronic Contract formation and has given some suggestions too. It further discusses and analyses some  important English and Indian Judgments such as Entores v Miles Far East Corp (([1955]2 QB 327 (CA).))and BhagwandasGoverdhandasKedia V M/s Girdharilal Parshottamdas & Co. ((1966 AIR 543))The author then turns the discussion by asking three questions, when was the contract concluded, what are the terms of the contract, and where is the contract governed. The author was of the opinion that the conventional offer and acceptance rules are likely to prove sufficiently flexible to accommodate these new forms of communication without much complexity.

Chapter IV discusses about ‘recognition and validity of electronic contracts’. The author also gives an outlook about international as well domestic efforts that have been made for giving recognition to electronic contracts. The chapter includes the text of UNCITRAL model laws. There is also brief discussion of laws on electronic contracts incorporated in United States, the European Union and Common law countries. The author has also dealt with relevant provisions relating to Electronic Contract under the IT Act 2000 and the Indian Evidence act 1872.

Further in Chapter V the author has discussed certain judicial decisions relating to recognition and validity of Electronic Contract. The P R Transport Agency v Union OF India discussed by author was on the issue of civil jurisdiction of court in a suit relating to performance of contract made through e – mail. The case of Trimex International Fze Limited, Dubai v Vedanta Aluminium Ltd wherein court recognized the formation of electronic contract through the exchange of e-mails. Further the English and US cases on Click Wrap Contracts and Shrink – Wrap Contracts have also been discoursed. The author has suggested that the legislature should come with a pool proof piece of legislation so as to pace with the advanced technology in every sphere and to maintain the spirit of a contract.

In the continuing chapters the  facets of jurisdictional and enforcement of Electronic Contract  and relatively new issues such as what substantive rules will govern the issues relating to assent in Electronic Contract and issue pertaining to negotiable transfer documents that are paperless are also analyzed in an exhaustive manner. The five appendices in this book include;

  1. Selected provisions of the Indian Contract Act,
  2. Provisions of the UNCITRAL Model Law on Electronic commerce 1996,
  3. Selected provisions of the IT Act 2000,
  4. Selected provisions of the Indian Evidence Act 1872, and,
  5. Sample Click – Wrap Agreements.

Out of the 384 pages of the book, 82 pages have been used for Appendices and Bibliography.

There is a drought of literary work on the above subject and the author has to be complimented as he has tried to cover almost all aspects related to Electronic Contract. The cover is attractive and printing is good.  Rearranging the chapters could make the work easily comprehendible. Detailed contents, table of cases and bibliography given in the book enrich its value and usefulness considerably. In spite of the fact that the book is slightly overvalued the book shall be useful not only to academician and students but also to an ordinary person who wants to know the principle, philosophy and stipulations for electronic contracts because of its easy to understand language and case law. The book will attract wide readership by those interested in the area of electronic contracts.

Title – Law Relating to Electronic Contracts

Author – Dr. R.K Singh

Publisher – LexisNexis

Edition – First Edition, 2014

ISBN: 978-93-5143-057-5

Pages – 384

Price – Rs.695 /-