Ever since the pronouncement of the verdict by
the Supreme Court on March 24, 2015 in what I prefer to
call the “IT Writ Petitions” (since they went beyond Section 66A of the
Information Technology Act, 2000), a lot has been written on mainstream and
alternative forums on the striking down of Section 66A. And rightly so because
its draconian nature, vagueness and unreasonableness were writ large. The
number of instances in which the now erstwhile provision had proven its
susceptibility to abuse, bears testimony to the dangers it posed to free speech
and hence its fundamental constitutional infirmity (readers may recall I have written
on Section 66A earlier on the blog).
In stark contrast, the other provision of the
IT Act, which has now been read down by the Supremes, namely Section 79(3)(b), has not received its due in popular discourse.
This is perhaps because this provision required and still requires attention to
nuances. The challenge to the provision was mounted on behalf of internet
intermediaries solely by the Internet and Mobile Association of India (IAMAI)
in W.P(C). 758/2014 in the same batch of IT Writ Petitions. This challenge was
critical owing to the
integral nature of intermediaries to the internet ecosystem and the role they
place as disseminators of free speech and expression of internet users. With
the internet increasingly becoming the medium of choice
for expression of social, cultural and political views outside of the
mainstream media, attention must be paid to the clamps imposed on
intermediaries which facilitate free speech.
According to the IT Act, an intermediary “means 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 market places and cyber cafes”. Clearly, any
restrictions on the ability of intermediaries to host content would have an
immediate, direct and adverse bearing on the the internet user’s freedoms under Article
19(1)(a). This is the pith and substance of IAMAI’s challenge to Section
79(3)(b).
Section 79(3)(b) which applies to internet
intermediaries, prior to being read down by the Court, used intermediaries as
proxies to impose constitutionally impermissible restrictions on free speech
i.e. restrictions which are beyond Article 19(2). Therefore, it was the contention of IAMAI that,
if Section 66A is liable to be struck down for imposing direct restrictions on
an internet user’s free speech and expression which are beyond the pale of
Article 19(2), it stands to reason that such or similar restrictions imposed on
the user indirectly through intermediaries under Section 79(3)(b), are equally ultra vires Article 19(2). In other
words, what cannot be done directly, cannot be done indirectly either, the
litmus test being the direct and immediate consequence of the restrictions
under Section 79(3)(b) on curtailment of the internet user’s freedoms under
Article 19(1)(a).
In order to lend perspective to the challenge to Section 79(3)(b),
it is important to understand that the internet as we know it today, is
increasingly driven by User Generated Content (the other UGC) which is
monumental in 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
mind-boggling numbers are in fact responsible for contributing to an emerging
area in information management systems, namely Big Data. Given these numbers, it is practically impossible for intermediaries
such as Google, Twitter or Facebook to pre-screen content or exercise any kind
of ex ante editorial control. This also means that intermediaries cannot vouch for
or take responsibility for the legality of the content being uploaded or
transmitted or published on their platforms. And yet in 2004, no less than the Chief Executive Officer of Baazee.com,
Avnish Bajaj, was arrested for the offer of sale of an obscene video clip made
on the portal by a user.
To address such instances and to ensure that intermediaries are not
held liable for content created/published by their users, the definition of
“intermediary” was effected (which is the current version) through the Information Technology
(Amendment) Act, 2008 and Section 79 of the Act was amended to carve out a safe
harbor for intermediaries from liability arising from User Generated Content. As part of the amendment, in return for the
safe harbor, a corresponding “takedown” (removal of content) obligation was
cast on intermediaries under Section 79(3)(b), which was challenged by IAMAI in
its petition that led to the provision being read down by the Court.
Section 79(3)(b) has two prongs- the first relates to a takedown
notice upon receipt of ‘actual knowledge’ of the illegality of content hosted
by the intermediary, and the second envisages a takedown notice issued by a
Government or its authorised agency to the intermediary. 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 Directive on E-Commerce
2000/31/EC dated 8th June, 2000, it is nowhere defined in the Indian
statute. Importantly, the legal and operational challenges with the use of the
term have been clinically captured in a study
undertaken in the European Union. This
study correctly notes that the term is capable of being interpreted and has
been interpreted in a few jurisdictions to mean that intermediaries are
expected to sit in judgment over the legality/unlawfulness of content impugned
in a takedown notice. Clearly, this is beyond the wherewithal of
intermediaries, which establishes the unreasonableness of this mandate. Echoing
the validity of this contention, the Court read down ‘actual knowledge’ to mean
knowledge of a court order directing the intermediary to expeditiously remove
or disable access to the impugned content.
The second prong of Section 79(3)(b) firstly suffers from vestation
of adjudicatory powers in the executive to determine illegality of content,
which is problematic. Secondly, the use of the term “unlawful” in Section
79(3)(b) enlarges the scope of restrictions to beyond the specific categories
identified in Article 19(2). In response to the second concern, the Court drew
parity between the executive’s (only the Central Government) power to block
content under Section 69A and the executive’s power to direct takedown on
content under Section 79(3)(b) and implicitly noted that the limitation of
Article 19(2) applied to the executive’s power under both provisions.
This is perhaps the most positive outcome on the issue of
intermediary liability because by reading in Article 19(2) to restrictions
imposed on intermediaries under Sections 69A and 79(3)(b), the Court has
accepted the argument of the intermediaries that the test to be applied to any
law is whether it directly impacts free speech, regardless of who such
restrictions may be applied through (in this case through intermediaries). Importantly,
even if such restrictions are imposed in return for immunity to intermediaries
under Section 79(1), such perceived largesse to intermediaries does not
legitimize the transgression of the boundaries set by Article 19(2). This position
has received the thumping endorsement of the Supreme Court.
That being said, although the Court has encumbered the executive’s
takedown power under Section 79(3)(b) by reading in Article 19(2), the
fundamental question of the executive’s constitutional competence to direct
such takedown was not addressed, perhaps because the Court was already convinced
of such competence during its analysis of Section 69A. Be that as it may, the
consistent thing to do would have been to include in Section 79(3)(b) the de minimis procedural safeguards provided for under Section
69A and the blocking Rules, or the safety vales under Sections 95 and 96 of the
Code of Criminal procedure, 1973 (which deal with the Government’s power to ban
books/publications). This is so because, unlike Section 69A, Section 79(3)(b)
does not provide for a hearing either to the intermediary or the creator of the
content prior to the takedown, nor is there a provision for appeal under the Act
from such a takedown (except for a Writ Petition).
It is surprising that after taking detailed cognizance of the
procedure laid down for blocking under Section 69A, the Court did not apply the
same yardstick and due process to Section 79(3)(b). Critically, having
recognized the reader’s right to receive information/content in its analysis of
Section 66A, the Court ought to have taken note of the adverse effect of a
summary executive takedown on the right of the internet audience to receive
content, even if such notice is within the metes and bounds of Article 19(2). Had
these concerns been addressed, the verdict would have been far more
comprehensive on Section 79(3)(b) is concerned.
All in all, although the
Court has addressed some primary concerns of intermediaries relating to Section
79(3)(b), thereby rendering their immunity more meaningful, the Court could have
dealt with the 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 investments by intermediaries
given the potential of the internet economy and e-commerce. Perhaps, the egregious
language and consequence of Section 66A drew the Court’s attention much more
than the layered issues posed by Section 79(3)(b) and the Intermediary Rules.
After all, out of 122 pages of the judgment, 109 pages have been devoted to Section
66A and a like provision of the Kerala State Police Act. Only the final
paragraphs of the verdict, paras 112-118, deal with the issue of intermediary
liability.
It is undeniable that the judgement is a welcome one and is expected
to further the cause of democratization of the internet in a tangible manner.
However, given the opportunity the IT Writ Petitions represented in undertaking
a comprehensive overhaul of the IT Act on a range of related issues, each of
which has a critical bearing on freedom of speech and expression on the
internet, it appears that the Supreme Court has passed up a wonderful
opportunity, which may not present itself in the future.
