The judgment striking down section 66A of the IT Act is welcome, though it might be throwing the baby out with the bathwater
Section 66A of the Information Technology (IT) Act is finally history, except for the people who have already begun to be prosecuted under it.
After subjecting it to a thorough analysis, the Supreme Court held that the section, which has been misused more often than one would like to remember, is unconstitutional, striking it down on substantive grounds (without making a determination regarding its procedural unreasonableness).
In a 122-page judgment delivered on 24 March, written by justice Rohinton F. Nariman on behalf of himself and justice J. Chelameswar, the Supreme Court spent about 105 pages analysing Section 66A.
Section 66A first became notorious for making into a criminal offence, in its first sub-section, the mere sending “by means of a computer resource or a communication device, any information that is grossly offensive or has menacing character."
This sub-section was followed by two more clauses which also made it a criminal offence to send information in circumstances that managed to compete with the first only in terms of having even lower and vaguer thresholds for the commission of a crime.
The good news
That Section 66A, which came into force in 2009, is no longer part of the body of law in force is a relief.
It was vague, far too malleable, and made no particular contribution to the public interest. Along with it, the Supreme Court also struck down Section 118 of the Kerala Police Act, which criminalized the causing of “annoyance to any person in an indecent manner," not for legislative incompetence given it was passed by a state, but for reasons analogous to those which rendered Section 66A of the IT Act invalid.
Despite all the problems inherent in its text, Section 66A of the IT Act, to a large extent, was unconstitutional because it was inconsistent with the grounds upon which the right to freedom of speech and expression may be legally restrained.
An Article 14 challenge claiming that it violated the fundamental right to ‘equality before law’ was repelled by the Supreme Court, which was convinced that “there is an intelligible differentia between speech on the Internet and other mediums of communication for which separate offences can certainly be created by legislation".
Whether or not one agrees that speech on- and offline differs and should be treated differently for the purpose of legal regulation, from a purely practical point of view, there may be tremendous value in the Supreme Court not having completely demolished the laws dealing with online speech.
Clunky online laws
Thus far, the body of law which deals with online content has been clunky and badly developed.
Not only is all online content governed by the more conventional laws which govern content offline (such as defamation, contempt of court, sedition and so on), but superimposed upon those laws is a set of ‘cyber laws’ which have, too often for comfort, ranged from the alarming to the spectacularly badly drafted.
In the judgment striking down Section 66 of the IT Act, the Supreme Court also heard challenges to Sections 69A and 79 of the same statute along with challenges to the Rules under them.
These two provisions and their subordinate legislation, respectively, deal with the blocking of online content by the government, and with limiting the liability of intermediaries for the online upload of prohibited content by third parties.
The provisions relating to the blocking of content were held by the Supreme Court to be constitutional, even though it recognized that it does not have as many safeguards as comparable provisions in conventional laws, such as the Code of Criminal Procedure.
The provisions related to the liability of intermediaries were significantly diluted by the Supreme Court.
In essence, intermediaries are now only required to take down content “upon receiving actual knowledge from a court order" or, additionally, under Section 79(3)(b) of the IT Act “upon being notified by the appropriate government or its agency that unlawful acts relatable to Article 19(2) are going to be committed".
If the intermediary complies with those rules, it can take advantage of the protection available to it under Section 79(1) of the IT Act and is not responsible for the third-party content.
While this is clearly a significant ‘free speech victory’ to the extent that intermediaries would not now feel pressured to take down user-generated content upon the mere receipt of a complaint, the fact remains that the legal obligation of intermediaries to take down content is now much weaker.
Short of filing a case in court, a person either deprived of rights or abused on an intermediary’s platform may now have to rely on the generosity and good sense of an intermediary for the non-judicial settlement of a complaint.
And should the person decide to file a case, although there are no shortage of provisions under which it may be possible to do so, content laws are often extremely difficult to navigate especially if one lacks the resources to do so.
Over the long haul, it is extremely likely that we will need well thought-out laws which are capable of sensibly addressing situations which arise online (such as trolling) that neither leave persons in need of assistance at the mercy of intermediaries running online platforms (which, it must be said, are often large companies with far more power than the individual), nor contemplate the harsh penalties of criminal law where such penalties may not be warranted.
The fact of the matter is that being abused online is often not the same as being targeted offline and the existing offline laws may be insufficient. Unlike abusers in ‘real life’, online trolls often attack their targets in packs, and with almost no effort having to be put either into tracing the contact information of their target or into directing their abuse at that person.
As democratizing as the Internet and social media platforms on it are, they also have their downsides: almost anyone, including complete strangers, can be abused almost immediately without forethought or consideration.
And although each individual instance of such online abuse may not rise to the level of the target wanting or being able to invoke the criminal justice system, online abuse does take a toll.
Ideally, there should be a way to be able to suppress abuse and trolling without necessarily having to invoke criminal law or to rely on the relevant intermediary.
In that light, the Supreme Court’s refusal to treat print and online content at par may be nothing short of providential even though it does not appear that we are anywhere close to developing an alternative legal framework within which the responses to online offences are accessible, reliable and proportionate.
The Supreme Court judgment is an extremely important step towards creating a viable legal framework for online interactions and transactions, but it should only be an early chapter, not the last word in the story.
Nandita Saikia is a lawyer who works on media and content law.
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