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SC rules in favour of Freedom of Speech on the internet & restricts liabilities of Intermediaries
25 Mar 2015

In a landmark decision pronounced on 24th March, 2015, India’s Supreme Court has upheld the freedom of speech and expression on the Internet. The decision is being widely celebrated and is receiving praise from individuals and businesses alike. Section 66A of the Information Technology, Act made communicating anything which is ‘grossly offensive’ on the Internet an offence punishable with imprisonment of up to 3 years. The act did not provide any definition for the term ‘grossly offensive’ and left the same open to determination. The court found this definition to be vague and succinctly summarised the issue in the following words:

In point of fact, Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net.  Such is the reach of the Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total.

While we celebrate this victory of freedom of speech and expression let us also have a look on other important issues that were dealt with by the Supreme Court and which shall have a noticeable impact on the Industry and intermediaries in particular.

1.   The court has recognised the Internet as a special mode of communication of information sharing in contrast with all other traditional modes of communications like print, radio, television etc. It has been made clear that any future legislation or government action cannot be called into question solely on the ground that it treats Internet in a different light than other traditional modes of information sharing. The point was brought home by Hon'ble Justice R.F. Nariman in the following words:

          “We make it clear 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.”

It is now clear that although section 66A of the Information Technology Act has been struck down for being vague, the court has not taken away government’s power to regulate the Internet through special legislations, which might treat Technology Companies or Intermediaries differently from companies operating solely through traditional media.

2.  The court has further reduced the intermediaries’liabilities under the Information Technology Act and the Information Technology(Intermediary Guidelines) Rules, 2011. Previously an unreasonable onus was placed on the intermediaries to take down any offending information that might come to their knowledge or which might be brought to their knowledge by any affected person. The court however acknowledged that it would be practically impossible for many large intermediaries like Yahoo, Google and Facebook to actively respond to such requests as the sheer number of such requests will be overwhelming. The court further acknowledge that the intermediaries cannot be burdened with the task of judging which of such requests are legitimate and which are not. Hence the court made it clear that intermediary’s liability to take down any offending information would arise only when such information is communicated to the intermediary through an order of the court.

This clarification given by the court has greatly reduced intermediary liability and more importantly has brought clarity to a grey area in the Information Technology Act. As things stood earlier it was the liability of an intermediary to remove any information which might potentially run foul of Section 79(3) the Information Technology Act or Rule 3 of the Information Technology (Intermediary Guidelines) Rules, 2011. Section 79(3) and the allied Intermediary Rules sought to place the onus of implementation of the state’s laws on the intermediary. Such onerous burden was unnecessarily burdening the intermediary.

This clarity would give confidence to many new intermediaries to enter into the market and take full advantage of the benefits afforded by the Internet. The judgement would also embolden the resolve of existing players to expand their services unfettered.

You can read the entire judgement titled Shreya Singha v/s Union of India here.

Vaijayant Paliwal

[The views expressed in this article are those of the author]