This is not the first time that the amended provisions of the IT Act 2000 and the IT (Intermediaries Guidelines) Rules, 2011 have been challenged. The rules were released by the government in April 2011, and laid down detailed procedures for regulation of intermediaries and online content.
A bench of justices J. Chelameswar and A.K. Sikri, while issuing notice to the central government, tagged the cases with others of a similar nature, including ones by MouthShut.com, a consumer review website, and Shreya Singhal, a public interest litigant who challenged the constitutionality of Section 66A in support of Shaheen Dhada, who was arrested for criticizing the shutdown of Mumbai after the death of Shiv Sena supremo Bal Thackeray in 2012.
Section 66A of the IT Act punishes sending offensive messages through communication services, including posts on social media websites like Facebook.
“We’re very happy at MouthShut that IAMAI decided to take a stand regarding this," said Faisal Farooqui, chief executive officer of MouthShut.com.
The petition, which runs into 1,100 pages according to those familiar with the case, seeks to challenge Section 79(3)(b) of the Information Technology Act. The section holds an Internet service provider (ISP) responsible for content which may be unlawful, published by third parties (not the ISPs) when they’ve been intimated by the government. It takes away the safe harbour rule, which protects ISPs from being sued because of third party actions.
According to a statement by IAMAI, the industry lobby approached the apex court for “objective interpretation of the laws". Referring to the court agreeing to hear the petition, the statement said, “This admission today allows the industry an opportunity to argue for a clear Safe Harbour Provision for the intermediaries, which is an essential pre-condition of a thriving digital content business."
“In my view, the court may be sympathetic to this particular situation because there is a body of research and evidence that demonstrates that the private censorship regime instituted by Section 79A that places unconstitutional limits of freedom of speech and expression," said Sunil Abraham, executive director of the Centre for Internet and Society (CIS), India, a non-profit organization involved with research in freedom of expression, privacy and open access to literature.
On 27 April 2012, CIS-India had released a paper which, among other things, listed why the IT Rules 2011 could have a “chilling" effect on intermediaries. No much has changed since. The paper argued that not all intermediaries have sufficient legal competence or resources (or the willingness to devote such legal resources) to deliberate on the legality of an expression, as a result of which, intermediaries have a tendency to err on the side of caution. It also pointed out that the qualifications and due diligence requirements of different classes of intermediaries have not been clearly defined in the Rules resulting in uncertainty in the steps to be followed by the intermediary. It noted that depending on the nature of a service, it may be technically unfeasible for an intermediary to comply with the takedown within 36 hours.
“The chilling effect can primarily be attributed to the requirement for private intermediaries to perform subjective judicial determination in the course of administering the takedown. From the responses to the takedown notices, it is apparent that not all intermediaries have sufficient legal competence or resources to deliberate on the legality of an expression, as a result of which, such intermediaries have a tendency to err on the side of caution and chill legitimate expressions in order to limit their liability," the paper said.
Another privacy lobby body, SFLC.in, had submitted feedback to the government when the draft IT Rules were put up for consultation but said that “when the final Rules were notified we found that most of our concerns were not addressed and that the Rules exceeded the scope of the parent act".
In a July paper, SFLC.in reiterated that “Words and phrases like grossly harmful, harassing, blasphemous, disparaging and “harm minors in any way" are not defined in these Rules or in the Act or in any other legislation. These ambiguous words make the Rules susceptible to misuse…(and have a) chilling effect on free speech rights of users by making them too cautious about the content they post and byforcing them to self-censor…As technology evolves at a fast pace, the law should not be found wanting. The law should be an enabling factor that ensures that citizens enjoy their right to freedom of speech and expression without any hindrance. India, being the largest democracy in the world should lead the world in ensuring that the citizens enjoy the right to express themselves freely online."
SFLC.in is a donor-supported legal services organization that brings together lawyers, policy analysts, technologists, and students.
According to a March study commissioned by the Global Network Initiative, a multistakeholder group of companies, civil society organizations, investors, and academics and conducted by Copenhagen Economics, an economic consultancy, the GDP contribution of online intermediaries may increase to more than 1.3 % ($ 241 billion) by 2015, provided the current liability regime is improved.
In another development, hearing a petition asking to take down pornographic website, the court deemed it fit to send it to an advisory committee that has been set up under Section 88 of the Information Technology Act. The petition, filed by lawyer Kamlesh Vaswani in 2013, asked for a direction to the central government to block pornography websites, platforms, links or downloading. Speaking to reporters, Vaswani’s lawyer Vijay Panjwani said, “as on date, there are 4 crore pornographic websites. For 18 months, the government has not blocked them."
The central government informed the committee was considering several options to address the issue of including methods used in the US and UK. This case was being heard by a three-judge bench headed by the chief justice of India R.M. Lodha, who said that to address these technological issues, a “synthesis of law, technology and governance is required."
Leslie D’Monte contributed to this story.
On 23 March 2012,P. Rajeeve, a member of Parliament, had moved a motion in Rajya Sabha to annul the Intermediaries Guidelines Rules on grounds they are “ultra vires to the parent Act". He had argued that in the absence of statutory definitions, intermediaries are forced to perform adjudicatory functions that they are not equipped to handle, which amounts to private censorship.
Shreya Singhal vs Union of India: Shreya Singhal’s case was admitted shortly after the much publicized arrest of Shaheen Dhada in Mumbai. The Supreme Court was asked to strike down Section 66A of IT Act, 2000. Singhal also sought guidelines so that offences concerned with free speech are treated as non-cognizable under criminal law. On 20 November 2012, Dhada was arrested for criticizing the shutdown of Mumbai after Bal Thackeray’s death .
Mouthshut.com vs Union of India: The Mouthshut.com petition challenges the IT (Intermediaries Guidelines) Rules, 2011, which implies a notice and take down regime for third party/ user content hosted by intermediaries.
Dilipkumar Tulsidas Shah vs Union of India: Dilipkumar’s petition sought guidelines to ensure police have standard operating procedures to deal with complaints related to Section 66A and other offences listed under the IT Act.
Rajeev Chandrashekar v. Union of India: Chandrashekar sought declaration of Section 66A of the IT Act and Sections 3(2), 3(3), 3(4) and 3(7) of the IT (Intermediaries Guidelines) Rules, 2011 ultra vires the constitution. This petition is also attached to Singhal’s case.