Section 66A quashed | What the Supreme Court verdict means
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Here are the salient aspects of the Supreme Court’s judgement on the right to free speech on the Internet, delivered on Tuesday.
What does the judgement strike down?
The court's verdict scraps section 66A, which punishes sending offensive messages through communication services, including posts on social media websites such as Facebook. Other provisions which were challenged, like the take-down provisions and intermediary liability, have been kept intact. However, the court has clarified that these hosting websites and intermediaries will be required to only take down content which a court directs or a government or its agency notifies. These, too, have to keep to specific restrictions provided under the Indian constitution. For example, earlier, an intermediary like Facebook would lose its protection if it received information from a third party about a post which could be considered “unlawful” and did not remove such post. However, after Tuesday’s verdict, Facebook will retain its protection, unless such an order comes from a court or the government itself.
What is the one big takeaway from the verdict?
It is a big win for free speech, as it nullifies any chilling effect caused by reports of arrests made based on opinions/thoughts shared on social media websites.
Is all speech on the Internet free now?
No. Even before section 66A (which is limited to online communication only), under the Indian constitution, certain limits on free speech were imposed. Parliament can make laws under these specific heads. These restrictions include sovereignty and integrity of India, the security of the state (national security), friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
Can we put up defamatory posts on Facebook?
No. Defamation can land you in both civil and criminal litigation. While the civil suit would lead to payment of compensation (often to the tune of crores of rupees), a criminal case, if proved, can lead to an imprisonment up to a maximum of two years and fine. Interestingly, this was pointed out during the hearings in these cases before the apex court. The threshold for proving an offence of defamation is much higher than that under section 66A. Section 66A mandated a three-year punishment, as opposed to the criminal offence.
What if i find a post on a social networking website offensive?
You can no longer register a complaint under section 66A if you find something merely offensive. However, anything which is hit by the restrictions on free speech, that is, content which is defamatory or threatening national security can still be challenged under the respective laws.
Does the Supreme Court equate Internet speech with speech in print?
The apex court has clearly said that there’s a difference between online and offline speech. It has clarified that it is open to the Parliament to pass laws specifically for speech on the Internet, as opposed to other media, because of the global reach of the Internet.
What does it mean for intermediaries and hosting websites?
While the Supreme Court has left the provision which made intermediaries liable should they not take down content from their website, the court lays down some riders. It clarifies that the intermediary will only be required to take down content based on a court order or notification from the government or its agency. Further, the limits on free speech under the Indian constitution would apply strictly, reducing the scope for vague take-down notices.
Can the government pass fresh laws to restrict free speech online?
The government can pass laws under any of the restrictions provided under the Indian constitution to curb speech of that nature. For example, defamation and contempt of court already have existing laws. However, any law passed that is vague in its ambit of what kind of online communication/speech it restricts will be hit by this verdict and will fail the test of constitutional validity.