About a week ago, on March 24, 2017, I was part
of a panel discussion organised in New Delhi by the Centre for Communication
Governance of NLU Delhi to commemorate the Shreya Singhal judgement. Since I led the team which challenged the intermediary
liability regime on behalf of the Internet and Mobile
Association of India as part of the batch of Shreya Singhal petitions, my views
were sought on the actual impact of the judgement on intermediary liability
regime in the two years that have passed since the verdict. In this post, I will expand on the views I expressed in
the panel discussion on the legacy of Shreya
Singhal. On a different note, those interested may read here the storified version of my live updates on Twitter on the arguments in Shreya Singhal.
In April 2015, I had written that while the judgement was certainly a
welcome and necessary step forward in preserving the democratic nature of the
internet and to ensure that unconstitutional limitations were not imposed on
exercise of free speech and expression citing the nature of the medium, the
Supreme Court did miss a historic
opportunity to strike a more comprehensive and nuanced position in so
far as intermediary liability was concerned. This is evident from the cursory
manner in which the Supreme Court dealt with the challenge to Section 79(3)(b)
of the Information Technology Act, 2000 and Rule 3 of the Intermediary
Guidelines, 2011. The entire discussion relating to these provisions is
limited to the last six paragraphs of the decision i.e. Paras 112-118, apart
from the holding in Para 119(c). The analysis of the parent provision i.e.
Section 79(3)(b) itself is to be found only in Paras 116 and 117.
In Para 116, the Court observed that in
contrast to the take-down mechanism under Section 79(3)(b), blocking of content
on websites under Section 69A of the Act was possible (a) through issuance of a
reasoned order by a Designated Officer applying the procedural safeguards provided
under the Act and the 2009 Rules or (b) under the order of a competent court directing
the Designated Officer to block a website or content on a website. Importantly,
the Court noted that under Section 69A, unlike under Section 79(3)(b), an
intermediary was not expected to adjudicate on blocking of content under the
provision. This led the Court, in Para 117, to read down “actual knowledge”
under Section 79(3)(b) to mean receipt of a Court order directing the
intermediary to expeditiously remove or disable access to content. To this
extent, the judgement provided some much-needed respite to intermediaries who were
caught in the crossfire between the issuer of the notice and their users to
whom they were bound by the terms of use of their portals.
However, what is pertinent is that in reading
down what constitutes ‘actual knowledge’, the Court did not expressly state in its analysis that receipt of or constructive notice of a notification of an appropriate
government or its agency too would amount to actual knowledge. The reference to
government notification is to be found at the end of Para 117 and that too in
the context of Article 19(2). Extracted below is the relevant excerpt:
“Also, the
Court order and/or the notification by the appropriate Government or its agency
must strictly conform to the subject matters laid down in Article 19(2).
Unlawful acts beyond what is laid down in Article 19(2) obviously cannot form
any part of Section 79. With these two caveats, we refrain from striking down
Section 79(3) (b).”
Extracted below is the conclusion
of the Court in Para 119(c):
“(c) Section 79 is valid subject to Section 79(3)(b) being read down to
mean that an intermediary upon receiving actual knowledge from a court order or
on being notified by the appropriate government or its agency that unlawful
acts relatable to Article 19(2) are going to be committed then fails to
expeditiously remove or disable access to such material. Similarly, the
Information Technology “Intermediary Guidelines” Rules, 2011 are valid subject
to Rule 3 sub-rule (4) being read down in the same manner as indicated in the
judgment.”
It could be inferred, based on the language of
both excerpts, that receipt of or constructive notice of a
notification of an appropriate government or its agency too would amount to
actual knowledge. That being said, the further observation that Orders of the
Court and Government Notifications must
strictly conform to subject-matters laid down in Article 19(2) and that
unlawful acts beyond what is laid down in Article 19(2) obviously cannot form
any part of Section 79, has given rise to three different interpretations:
1. Interpretation 1: Since Court Orders and government notifications must conform to Article 19(2), it must obviously only relate to content that attracts Article 19(1)(a). Therefore, receipt of court order or government notification as actual knowledge is a safeguard that applies only to content which falls under Article 19(1)(a). The consequence of this is that mere cease and desist notices would continue to constitute actual knowledge in relation to content which falls outside the ambit of Article 19(1)(a). This defeats the very ratio of the Supreme Court which was to not put the intermediary in the position of an adjudicator of the lawfulness of any content.
2. Interpretation 2: Since, according to the Supreme Court, unlawful acts beyond what is laid down in Article 19(2) obviously cannot form any part of Section 79, the very applicability of Section 79 and the immunity granted thereunder to intermediaries does not extend to any unlawful act which falls outside Article 19(2). This obviously exposes intermediaries to legal action to unlawful acts which fall outside the ambit of Article 19(2) despite them playing the limited role of intermediaries.
3. Interpretation 3: Court orders or government notifications constitute actual knowledge in all cases and in relation to all kinds of content. Where the content is relatable to Article 19(1)(a), the limitations and safeguards of Article 19(2) kick in and apply to Court orders as well as Government notifications.
1. Interpretation 1: Since Court Orders and government notifications must conform to Article 19(2), it must obviously only relate to content that attracts Article 19(1)(a). Therefore, receipt of court order or government notification as actual knowledge is a safeguard that applies only to content which falls under Article 19(1)(a). The consequence of this is that mere cease and desist notices would continue to constitute actual knowledge in relation to content which falls outside the ambit of Article 19(1)(a). This defeats the very ratio of the Supreme Court which was to not put the intermediary in the position of an adjudicator of the lawfulness of any content.
2. Interpretation 2: Since, according to the Supreme Court, unlawful acts beyond what is laid down in Article 19(2) obviously cannot form any part of Section 79, the very applicability of Section 79 and the immunity granted thereunder to intermediaries does not extend to any unlawful act which falls outside Article 19(2). This obviously exposes intermediaries to legal action to unlawful acts which fall outside the ambit of Article 19(2) despite them playing the limited role of intermediaries.
3. Interpretation 3: Court orders or government notifications constitute actual knowledge in all cases and in relation to all kinds of content. Where the content is relatable to Article 19(1)(a), the limitations and safeguards of Article 19(2) kick in and apply to Court orders as well as Government notifications.
In my view, the third interpretation is perhaps the most faithful to the language and intent of Section 79, as well as
to the Supreme Court’s ratio behind
reading down the meaning of actual knowledge and introducing Article 19(2) in
the context of free speech.
