Big win for freedom of speech. Really?
The article was published in Bangalore Mirror on March 29, 2015.
The Shreya Singhal v. Union of India ruling on the Information Technology Act 2000 (ITA) was truly a historic moment in Indian free speech jurisprudence. Few anticipated the striking down of the draconian Sec. 66A in its entirety, for introducing additional unconstitutional limits to free speech through its vague and imprecise language. The Supreme Court also read down Sec. 79(3)(b) and the intermediary liability rules — requiring a court order or a government notification to take down content and relieving intermediaries of the responsibility for determining legality of content. However, the court left the provision for website blocking, 69A, as it stood.
66A criminalised those that use a computer resource or a communication device to send one of the three classes of information listed below — some of which was redundant as they were already offences under the IPC (sections indicated in brackets below) or other sections of the ITA:
- Information that was grossly offensive or menacing in character;
- False information for causing annoyance, inconvenience, danger, obstruction, insult, injury [44], criminal intimidation [506], enmity, hatred [295A] or ill will.
- Annoying or inconvenient message - to deal spam OR to deceive or to mislead the addressee or recipient about the origin of such messages - presumably for phishing, which incidentally is dealt with more properly in Sec. 66D of ITA.
The regulatory vacuum created by the striking down of 66A can be addressed by parliament by ITA to reintroduce a well-crafted anti-spam provision that does not infringe upon human rights.
The intermediary liability section 79 and the associated rules were introduced to encourage free speech by granting immunity to intermediaries for content created by their users, unless they failed to act on take down notices. However, this provision proved to have a chilling effect on free speech, with risk-aversive intermediaries over-complying with takedown notices as they were unable to distinguish between legal and illegal content. Shreya Singhal solves half the problem - whether intermediaries decide either to remove or retain content in response to take down notices sent by non-government entities and individuals they remain immune from liability. But government entities can continue to censor speech using takedown notices without any oversight, transparency or adherence to the principles of natural justice. The recently launched Manila Principles developed by the CIS and others gives a more complete set of best practices that could be used to fix Sec. 79 through an amendment. For example - "abusive or bad take down notices should be penalized."
Website-blocking under 69a is mostly an opaque procedure as per the letter of the law as it does not require the user to be informed [because the alternative of informing the intermediary is deemed sufficient], and given a chance to be heard, and a secrecy rule prevents all documentation related to the procedure from being disclosed to the public. There is both an optimistic and a pessimistic view on what the bench has said when it upheld this section. Constitutional law expert Gautam Bhatia is of the view that the judge has made informing the user mandatory and has also overridden the secrecy provision by requiring a written order that can be assailed through writ petitions. But a more pessimistic reading is that the bench found the section constitutional and was satisfied with the safeguards and was only reiterating the procedure in the judgment. The trouble is the opacity of the procedure is worse than the current text of the law - there is no evidence that users have ever been notified and RTI requests for documentation related to block orders have been rejected using the secrecy rule.
Does the striking down of 66A mean that speech on the internet is completely free and completely unregulated? No, several provisions that regulate speech online and offline still exist within the ITA, the IPC and other laws. Within the ITA - infringing the privacy of individuals [ 66E], transmission of obscene material [67], including sexually explicit material [Sec. 67A], and also child pornography [67B], the Cyber Cafe Rules which require intermediaries to install web filters.
In the IPC, several sections regulate speech that define closely the intent and ingredients required in a precise way, something 66A did not do. Sedition is defined in Sec. 124A, with restrictions on speech in the case of causing hatred, contempt or disaffection towards the state. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language etc is criminalised [153A], and imputations or assertions prejudicial to national integration are also prohibited [153B]. Certain restrictions on speech have also been made in terms of protecting the privacy and dignity of individuals for ex. disclosure of a victim's identity in sensitive cases [228], insulting the modesty of a woman [509]. Defamation [499] and conduct intended to cause public mischief by way of statements, rumours, reports [505] remain criminalized; and in 2013 cyber stalking [354D] has also been added.
[with inputs from Vidushi Marda] The author is the director of The Centre for Internet and Society
