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On the Unfortunate Rise of the Indian SLAPP Suit
http://editors.cis-india.org/a2k/blogs/unfortunate-rise-of-india-slapp-suit
<b>It is not news in this country when the law or other institutions of the state, are used as tools by which to threaten or intimidate citizens into submission to a particular course of action or to a particular point of view. Unfortunate as that is, today’s post will deal with the rising incidence of SLAPP suits, an abuse of the adjudicatory process that is also a feature in a number of jurisdictions elsewhere.</b>
<p style="text-align: justify; ">Our interest in them arises from two sources. The first is the particular damage that this device is able to do free speech. Its effects were quite picturesquely described in the following terms by the Delhi High Court in <a href="http://www.indiankanoon.org/doc/996620/"><i>M/S. Crop Care Federation Of India v. Rajasthan Patrika (Pvt) Ltd.</i></a> “Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined.” [<i>Rajasthan Patrika </i>in turn borrowed this language from <a href="http://elr.info/sites/default/files/litigation/21.21071.htm"><i>Gordon v. Marrone</i></a>, a case in the New York Supreme Court.] The second is <a href="http://spicyipindia.blogspot.in/2013/05/the-times-publishing-house-threatens-to.html">this</a> piece of news.</p>
<p style="text-align: justify; "><b>About the Phenomenon</b><br />The term “Strategic Lawsuits Against Public Participation” is rather self-explanatory. Nevertheless, some of its features bear the explicit articulation:</p>
<p style="text-align: justify; "><i>First</i>, there is always, and necessarily, a power imbalance between the parties in such cases: the plaintiff or complainant will always have greater and often disproportionately greater access to the resources necessary to enter and sustain a litigation, in addition to social, political or corporate power. A simple shorthand for SLAPP suits will always be Deep Pockets v. Free Expression. And so it has been in India, as <a href="http://www.downtoearth.org.in/content/want-be-fried">this article</a> evidences.</p>
<p style="text-align: justify; "><i>Second</i>, there is always one object: to intimidate a target into silence or apology by way of legal action or the threat of it. SLAPPs are a win-win play for those that employ them: targets are likely to bow to the pressure given that they will not have access to the resources to mount a legal defense. Even where the defendants’ (relatively scarce) resources are diverted to the defense of their speech, even assuming that the threat and costs of litigation, the civil damages and/or penal consequences do not intimidate them, their opportunity cost will be considerably higher than that of the other party. Given the ordinary rigours of the adjudicatory process and the ubiquitous delays associated with it in India, however, the harassment function of the SLAPP is <i>always</i> achieved.</p>
<p style="text-align: justify; "><i>Third</i>, SLAPP suits are always characterized by a flimsy, frivolous or even non-existent cause of action. They will have done their damage irrespective of, and before, the outcome of the suit is decided. The question of legal tenability, and in these cases, its absence is really not one of any relevance. The real damage is done by forcing defendants to bear the trouble (monetary and otherwise) with preparing and mounting the legal response/defense itself, rather than by the litigation’s ultimate success or failure. A little amusing then that in the latest instance, which I describe later in this post, it is a law student, presently in law school and writing for a legal blog who finds herself on the receiving end of such threats.</p>
<p style="text-align: justify; "><b>Defamation SLAPPs</b><br />Defamation is a classic tool by which contrary opinions are sought to be silenced by those in (political, social or corporate) power. Rajeev Dhavan argues <a href="http://hindu.com/2003/12/12/stories/2003121201851200.htm">here</a> that defamation is becoming an increasingly popular tool by which the “politics of exposé” and whistleblowers participating in it are being threatened. [SLAPPs in India have arisen on the back of other causes of action as well. See, for instance, the case of <a href="http://indiankanoon.org/doc/1327342/"><i>S. Khushboo v. Kanniammal</i></a><i> </i>and <a href="http://www.hindu.com/thehindu/thscrip/print.pl?file=20100604271104000.htm&date=fl2711/&prd=fline&">Frontline</a> discussing it.] Lawrence Liang details a number of older instances in which defamation has been used in Indian courts to silence speech <a href="http://kafila.org/2009/02/25/bloggers-and-defamation/">here</a>.</p>
<p style="text-align: justify; ">Much more recently, <a href="http://www.indiankanoon.org/doc/562656/"><i>Tata Sons Ltd. v. Greenpeace International</i></a>, involved intellectual property and defamation claims in a game designed to bring attention to the threat to Olive Ridley turtles from developmental activity in Orissa. The IIPM saga that rose to prominence in February this year is another instance of such litigation. It is also one that carries the added ignominy that a university, whose function one would presume is to foster critical thinking and the ability to constructively respond to criticism, would sue for defamation against criticism and use the state apparatus to employ opaque means by which to silence the allegedly offending content online [see <a href="http://www.medianama.com/2013/02/223-iipm-website-blocks/">here</a> and <a href="http://www.frontline.in/static/html/fl3005/stories/20130322300503700.htm">here</a>]. IIPM also demonstrates how SLAPPs will involve what have been <a href="http://tehelka.com/dont-slapp-free-speech/">called</a> “creative ways” to abuse of process: more than one suit can be filed, and they can be filed in more than one jurisdiction or in jurisdictions in which it is difficult for the target of the suit to appear or defend him or herself.</p>
<p><b>On Attempts at Silencing Academic Opinion</b><br />While the Activist v. Corporation trope is by now a tired one, it appears that the incidence of SLAPP proceedings, both civil and criminal, against commentators and academics are on the rise:</p>
<p style="text-align: justify; ">Ajay Shah’s case has been a well-documented one [see <a href="http://www.firstpost.com/blogs/why-mcx-should-get-off-its-high-horse-on-ajay-shah-370882.html">here</a> and <a href="http://www.business-standard.com/article/economy-policy/ajay-shah-moves-sc-in-mcx-defamation-case-110051000201_1.html">here</a>], and one in which the Bombay High Court <a href="http://www.indiankanoon.org/doc/913903/">did not appear to appreciate</a> the SLAPP dynamic. Closer to home, Shamnad Basheer [see <a href="https://dl.dropboxusercontent.com/u/52076311/Natco%20Pharma%20Vs.%20Shamnad%20Basheer%20%28Petition%29%20copy.pdf">here</a> and <a href="http://spicyip.com/docs/Written-statement-Natco-defamation-suit.pdf">here</a>] a professor at NUJS and founder of SpicyIP saw a defamation SLAPP suit for what appears to be an exercise in only academic analysis.</p>
<p style="text-align: justify; ">As of the 21<sup>st</sup> of this month, it was reported that a student contributor at the same blog, Aparajita Lath faces similarly suspect allegations of defamation from a newspaper [see <a href="http://spicyip.com/docs/Defamation-notice.pdf">here</a> and <a href="http://spicyip.com/docs/defamation-response.pdf">here</a>]. Here is a case not of Activist v. Corporation or Whistleblower v. Government, but of Academic Opinion v. Press. There is a special and truly unfortunate irony in the press having recourse to tools like the defamation suit, and even more egregiously, the criminal complaint.</p>
<p style="text-align: justify; "><b>Why We Worry</b><br />A number of rights of the target are ordinarily affected by SLAPP suits. In what was a <a href="http://news.bbc.co.uk/2/hi/uk_news/4266741.stm">significant case</a> for the United Kingdom involving a defamation suit brought by McDonald’s against two authors of a pamphlet criticizing it, the European Court of Human Rights (‘ECtHR’) recognized in <a href="http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{%22fulltext%22:[%22steel%20and%20morris%20v%20united%20kingdom%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-68224%22]}"><i>Steel and Morris v. United Kingdom</i></a> a number of the following rights:</p>
<p style="text-align: justify; ">First, there is the right to free expression itself. Violations of this right would arise on two levels, although the second may not be actionable. First, there is the right of the defendant to the SLAPP suit. <i>Steel and Morris </i>affirmed that the fact that the defendants to the defamation suit were not journalists did not mean that the scope of their free speech protection would differ [¶89]. Instead, it held that “the limits of acceptable criticism” where “large public companies” were concerned was wider than those that would otherwise apply [¶ 94]. India’s Supreme Court has, <a href="http://articles.timesofindia.indiatimes.com/2009-02-24/india/28004608_1_criminal-proceedings-ajith-criminal-case">in one notable instance</a>, disagreed on the proposition that bloggers should have similar rights to journalists. Next, there is the chilling effect: others placed similarly to the targets of SLAPP suits would self-censor to avoid legal retaliation for their views and the significant cost of defending themselves.</p>
<p style="text-align: justify; ">The importance of <i>Steel and Morris</i> however comes from this latter set of holdings. The ECtHR found that the right to fair trial, in civil and criminal cases, which included the right of access to court and to justice presumed an “equality of arms” as between contesting parties [¶ 59]. It held to this effect on the understanding that European Convention on Human Rights, the underlying rights instrument, was a guarantee of <i>practical </i>and <i>effective </i>rights. In the circumstances of that case, it found that since the financial disadvantage of the defendants in the defamation suit disallowed them the opportunity to mount an effective defence, there was a clear inequality of arms with McDonalds that rendered the trial unfair for the purpose of Convention Article 6 (1) [¶72].</p>
<p style="text-align: justify; ">The IIPM blocks add a further dimension to the problem. When the content complained against is online, India’s lack of clear legal principles to determine, and more crucially limit, where the cause of action will have arisen and can be tried will only exacerbate the blogger’s situation, given the arguably global spread of an audience for online content.</p>
<p style="text-align: justify; ">A final point about this trend, particularly as it relates to silencing academic comment, is that it is a dangerous one, and one against which we must all speak out: these cases, in which the challenged content offers studied comment against the powers that be, will be a good acid test for the strength of our speech protections as they fall squarely within the class of speech which constitutional protections seek to maximize and disinhibit. It should be the very minimum that the Article 19(1)(a) guarantee entails.</p>
<p>More on this in a second post.</p>
<p style="text-align: justify; "><i>Disclosures: Aparajita Lath is a student of NUJS, as are a number of us on the Free Speech Initiative. In addition, I serve on the Board of Editors of the NUJS Law Review along with her. This post, however, is intended to reflect on the growing (and increasingly visible) incidence of the SLAPP suit and its effect on our freedoms to comment and criticize and to have access to articulations of the contrarian view.</i></p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/unfortunate-rise-of-india-slapp-suit'>http://editors.cis-india.org/a2k/blogs/unfortunate-rise-of-india-slapp-suit</a>
</p>
No publisherujwalaIntellectual Property RightsAccess to Knowledge2013-06-05T06:55:41ZBlog EntrySuper Cassettes v. MySpace
http://editors.cis-india.org/a2k/blogs/super-cassettes-v-my-space
<b>The Delhi High Court’s judgment in Super Cassettes v. MySpace last July is worrying for a number of reasons. The court failed to appreciate the working of intermediaries online and disregard all pragmatic considerations involved. The consequences for free expression and particularly for file sharing by users of services online are especially unfavourable. </b>
<p style="text-align: justify; ">The judgment<a href="#fn*" name="fr*">[*]</a>is extremely worrying since it holds MySpace liable for copyright infringement, <b>despite</b> it having shown that it did not know, and could not have known, about each instance of infringement; that it removed each instance of alleged infringement upon mere complaint; that it asked Super Cassettes to submit their songs to their song identification database and Super Cassettes didn't.</p>
<p style="text-align: justify; ">This, in essence, means, that all 'social media services' in which there is even a <b>potential</b> for copyright infringement (such as YouTube, Facebook, Twitter, etc.) are now faced with a choice of either braving lawsuits for activities of their users that they have no control over — they can at best respond to takedown requests after the infringing material has already been put up — or to wind down their operations in India.</p>
<h2 style="text-align: justify; ">The Facts</h2>
<p style="text-align: justify; ">Aside from social networking, MySpace facilitates the sharing of content between its users. This case concerns content (whose copyright vested in T-Series) was uploaded by users to MySpace’s website. It appears that tensions between MySpace and T-Series arose in 2007, when T-Series entered into talks with MySpace to grant it licenses in its copyrighted content, while MySpace asked instead that T-Series register with its rights management programme. Neither the license nor the registration came about, and the infringing material continued to be available on the MySpace website.</p>
<p style="text-align: justify; ">Specifically, T-Series alleged that cases for primary infringement under section 51(a)(i) of the Copyright Act as well as secondary infringement under section 51 (a) (ii) could be made out. Alleging that MySpace had infringed its copyrights and so affected its earnings in royalties, T-Series approached the Delhi High Court and filed a suit seeking injunctive relief and damages. In proceedings for interim relief while the suit was pending, the court granted an injunction, but, in an appeal by MySpace, added the qualification that the content would have to be taken down only on receipt of a specific catalogue of infringing works available on MySpace, rather than a general list of works in which T-Series held a copyright.</p>
<h2 style="text-align: justify; ">The Defence</h2>
<p>While other arguments such as one around the jurisdiction of the court were also raised, the central issues are listed below:</p>
<ol>
<li style="text-align: justify; ">Non-Specificity of Prayer<br />T-Series’ claim in the suit is for a blanket injunction on copyrighted content on the MySpace website. This imposes a clearly untenable, even impossible, burden for intermediaries to comply with.</li>
<li style="text-align: justify; ">Knowledge<br />MySpace argued that no liability could accrue to it on two counts. The first was that it had no actual or direct knowledge or role in the selection of the content, while the second was that no control was exercised, or was exercisable over the uploading of the content. Additionally, there was no possible means by which it could have identified the offending content and segregated it from lawful content, or monitored all of the content that it serves as a platform for.</li>
<li style="text-align: justify; ">Intermediary status and Safe Harbour Protection<br />In relation to its status as an intermediary, MySpace raised several arguments. First, it argued that it had immunity under section 79 of the IT Act and under the US Digital Millennium Copyright Act (US DMCA). Another argument restated what is arguably the most basic tenet of intermediary liability that merely providing the platform by which infringement could occur cannot amount to infringement. In other words, the mere act of facilitating expression over internet does not amount to infringement. It then made reference to its terms of use and its institution of safeguards (in the form of a hash filter, a rights management tool and a system of take-down–stay-down), which it argued clearly reflect an intention to discourage or else address cases of infringement as they arise. MySpace also emphasized that a US DMCA compliant procedure was in place, although T-Series countered that the notice and take down system would not mitigate the infringement.</li>
<li style="text-align: justify; ">Relationship between MySpace and its Users<br />Taking from previous arguments about a lack of control and its status as an intermediary, MySpace argued that it was simply a licensee of users who uploaded content. The license is limited, in that MySpace is only allowed to alter user-generated content so as to make it viewable.</li>
</ol>
<h2 style="text-align: justify; ">Outcomes</h2>
<ol>
<li style="text-align: justify; ">Infringement by Facilitation<br />The court concluded that infringement in terms of section 51 (a) (ii) had occurred in this case, since web space is a “place” in the terms required by the section and there were monetary gains in the form of ad revenue. The argument as to a lack of knowledge of infringement was also rejected on the ground that MySpace’s provision for safeguards against infringement clearly established a reason to believe that infringement will occur. Also referenced as evidence of knowledge, or at least a reason to believe infringement would occur, is the fact that MySpace modifies the format of the content before making it available on its website. It also tested for infringement by authorization in terms of section 14 read with section 51 (a) (i), but concluded that this did not arise here.</li>
<li style="text-align: justify; ">Reading away section 79?<br />The court accepted the argument made by T-Series to the effect that sections 79 and 81 of the IT Act must be read together. Since section 79 would be overridden by section 81’s non-obstante, the effect would be that rights holders’ interests under the Copyright Act will erode intermediaries’ immunity under section 79. </li>
<li style="text-align: justify; ">Due Diligence<br />The court rejected the argument that the provision of due diligence or curative measures post-infringement would be sufficient. Specifically, the contention that the quantum of content being uploaded precludes close scrutiny, given the amount of labour that would be involved, was rejected. Content should not immediately be made available but must be subject to enquiries as to its title or to authentication of its proprietor before it is made available. In fact, it holds that, “there is no reason to axiomatically make each and every work available to the public solely because user has supplied them unless the defendants are so sure that it is not infringement.” (Paragraph 88).</li>
</ol> <ol> </ol>
<p style="text-align: justify; ">There is also an attempt to distinguish the Indian framework from the DMCA. While that law calls for post-infringement measures, it is argued that in India, on reading section 51 with section 55, the focus is on preventing infringement at the threshold. In response to the case that it would be impossible to do so, the court held that since the process here requires MySpace to modify the format of content uploaded to it to make it viewable, it will have a reasonable opportunity to test for infringement.</p>
<h2 style="text-align: justify; ">Analysis</h2>
<h3>Accounting for the Medium of Communication</h3>
<p style="text-align: justify; ">The court’s analysis of the issues begins with a predictable emphasis on how the law of copyright would operate in the context of what is termed “internet computing”, peppered with trite statements about “the virtual world of internet” creating “complexit[ies]” for copyright law. The court appears to have entered into this discussion to establish that the notion of place in section 51 (a) (ii) should extend to “web space” but the statements made here only serve to contrast starkly against its subsequent failure to account for the peculiarities of form and function of intermediaries online. Had this line of argument been taken to its logical conclusion, after the character of the medium had been appreciated, the court’s final conclusion, that MySpace is liable for copyright infringement, would have been an impossible one to arrive at.</p>
<h3 style="text-align: justify; ">And What of Free Speech?</h3>
<p style="text-align: justify; ">As it had argued before the court, intermediaries such as MySpace have no means by which to determine whether content is illegal (whether by reason of amounting to a violation of copyright, or otherwise) until content is uploaded. In other words, there is no existing mechanism by which this determination can be made at the threshold, before posting.</p>
<p style="text-align: justify; ">The court does not engage with the larger consequences for such a scheme of penalizing intermediaries. Censoring patent illegalities at the threshold, even if that were possible is one thing. The precedent that the court creates here is quite another. Given the general difficulty in conclusively establishing whether there is an infringement at all due to the complexities in applying the exceptions contained under section 52, it should not be for ordinary private or commercial interests such as intermediaries to sit in judgment over whether content is or is not published at all. In order to minimize its own liability, the likelihood of legitimate content being censored by the intermediary prior to posting is high.</p>
<p style="text-align: justify; ">The consequences for civil liberties, and free speech and expression online in particular, appear to have been completely ignored in favour of rights holders’ commercial interests.</p>
<h3 style="text-align: justify; ">Consequences for Intermediary Liability and Safe Harbour Protection</h3>
<blockquote class="pullquote" style="text-align: justify; ">Even if every instance in question did amount to an infringement of copyright and a mechanism did exist allowing for removal of content, the effect of this judgment is to create a strict liability regime for intermediaries.</blockquote>
<p style="text-align: justify; ">In other words, the court’s ruling will have the effect that courts’ determination of intermediaries’ liability will become detached from whether or not any fault can be attributed to them. MySpace did make this argument, even going as far as to suggest that doing so would impose strict liability on intermediaries. This would lead to an unprecedented and entirely unjustifiable result. In spite the fact that a given intermediary did apply all available means to prevent the publication of potentially infringing content, it would remain potentially liable for any illegality in the content, even though the illegality could not have been detected or addressed.</p>
<p style="text-align: justify; ">What is perhaps even more worrying is that MySpace’s attempt at proactively and in good faith preventing copyright infringement through its terms of use and in addressing them through its post-infringement measures was explicitly cited as evidence of knowledge of and control over the uploading of copyrighted material, at the threshold rather than ex post. This creates perverse incentives for the intermediary to ignore infringement, to the detriment of rights holders, rather than act proactively to minimize its incidence.</p>
<p style="text-align: justify; ">A final observation is that the court’s use, while pronouncing on relief, of the fact that MySpace makes a “copy” of the uploaded content by converting it into a format that could subsequently be hosted on the site and made accessible to show evidence of infringement and impose liability upon MySpace in itself is a glaring instance of the disingenuous reasoning the court employs throughout the case. There is another problem with the amended section 79, which waives immunity where the intermediary “modifies” material. That term is vague and overreaches, as it does here: altering formats to make content compatible with a given platform is not comparable to choices as to the content of speech or expression, but the reading is tenable under section 79 as it stands.</p>
<p style="text-align: justify; ">The result of all of this is to dislodge the section 79 immunity that accrues to intermediaries and replace that with a presumption that they are liable, rather than not, for any illegality in the content that they passively host.</p>
<h3 style="text-align: justify; ">Effect of the Copyright (Amendment) Act, 2012</h3>
<p style="text-align: justify; ">Since the judgment in the MySpace case, the Copyright Act has been amended to include some provisions that would bear on online service providers and on intermediaries’ liability for hosting infringing content, in particular. Section 52 (1) (b) of the amended Act provides that “transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public” would not infringe copyright. The other material provision is section 52 (1) (c) which provides that “transient or incidental storage of a work or performance for the purpose of providing electronic links, access or integration, where such links, access or integration has not been expressly prohibited by the right holder, unless the person responsible is aware or has reasonable grounds for believing that such storage is of an infringing copy” will not constitute an infringement of copyright. The latter provision appears to institute a rather rudimentary, and very arguably incomplete, system of notice and takedown by way of a proviso. This requires intermediaries to takedown content on written complaint from copyright owners for a period of 21 days or until a competent rules on the matter whichever is sooner, and restore access to the content once that time period lapses, if there is no court order to sustain it beyond that period.</p>
<p style="text-align: justify; ">This post does not account for the effect that these provisions could have had on the case, but it is already clear, from the sloppy drafting of section 52 (1) (c) and its proviso that they are not entirely salutary even at the outset. At any rate, there appears to be nothing that *<i>determinatively*</i> affects intermediaries’ secondary liability, <i>i.e.</i>, their liability for users’ infringing acts.</p>
<hr />
<p style="text-align: justify; "><i>Disclosure: CIS is now a party to these proceedings at the Delhi High Court. This is a purely academic critique, and should not be seen to have any prejudice to the arguments we will make there.</i></p>
<hr />
<p>[<a href="#fr*" name="fn*">*</a>]. Super Cassettes Industries Ltd. v. MySpace Inc. and Another, on 29 July, 2011, Indian Kanoon - Search engine for Indian Law. See<a class="external-link" href="http://bit.ly/quj6JW"> http://bit.ly/quj6JW</a>, last accessed on October 31, 2012.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/super-cassettes-v-my-space'>http://editors.cis-india.org/a2k/blogs/super-cassettes-v-my-space</a>
</p>
No publisherujwalaAccess to KnowledgeCopyrightIntellectual Property RightsIntermediary LiabilityFeatured2012-10-31T10:27:36ZBlog EntryConstitutional Analysis of the Information Technology (Intermediaries' Guidelines) Rules, 2011
http://editors.cis-india.org/internet-governance/constitutional-analysis-of-intermediaries-guidelines-rules
<b>Ujwala Uppaluri provides a constitutional analysis of the Information Technology (Intermediaries' Guidelines) Rules notified in April 2011, and examines its compatibility with Articles 14, 19, 21 of the Constitution of India.</b>
<h2>Summary of Salient Provisions</h2>
<p style="text-align: justify; ">The <b>Information Technology (Intermediaries’ Guidelines) Rules, 2011</b> (‘<b>the Intermediary Guidelines</b>’)<b> </b> were notified in April, 2011 as rules enacted in exercise of powers conferred under section 87(2)(zg) read with Section 79 of the Information Technology Act, 2000 (as amended) (‘<b>the IT Act</b>’).</p>
<p style="text-align: justify; ">Rule 2 of the Intermediary Guidelines imports definitions for key terms from the IT Act. Notably, this includes an importation of Section 2 (w) by <b>Rule 2 (i)</b>, which defines “intermediary” broadly in the following terms:</p>
<p style="text-align: justify; ">“<i> “intermediary”, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes;</i>”<i> </i></p>
<p style="text-align: justify; ">Rule 3 whose margin note indicates that it is limited to due diligence measures to be adhered to by intermediaries nevertheless also raises other liabilities by creating a regime to censor content, pre-publication as well as once content has been made publically available online.</p>
<p style="text-align: justify; "><b>Sub-rule (2) of Rule 3</b> inventories the classes of content which are deemed actionable, with only clause (i), clause (c), clause (e) and, arguably clause (h), of that rule addressing the national interest, public order and security restrictions cognizable under Article 19(2) of the Constitution. The remainder of grounds includes private claims such as content which “belongs to another person”<a href="#fn1" name="fr1">[1]</a>, or otherwise infringes proprietary rights<a href="#fn2" name="fr2">[2]</a>, or is “defamatory”<a href="#fn3" name="fr3">[3]</a>. Still others are terminologically indeterminate and purely subjective, with the terms “grossly harmful”, “harassing” and “disparaging” being examples.</p>
<p style="text-align: justify; ">This sub-rule also includes a number of redundancies. While there is reference to libelous as well as defamatory content in clause (b), it is well established that Indian law does not admit of the former concept, instead dissolving the common law distinction between the two to treat them alike.<a href="#fn4" name="fr4">[4]</a> There is also clause (e), which prohibits content which is all ready illegal for violating the provisions of an existing statute and the residuary phrasing of the clause (b)’s reference to content which is “otherwise unlawful in any manner whatever”.</p>
<p style="text-align: justify; ">The sub-rules immediately following the list in Rule 3(2) address the consequences of users publishing content listed in that rule:</p>
<p style="text-align: justify; "><b>Sub-rule (3) of rule 3</b> provides that intermediaries will not knowingly deal in any manner whatsoever, whether by hosting, publication, transmission or otherwise, with any content of the types that are listed in the previous clause.</p>
<p style="text-align: justify; "><b>Sub-rule (4) of rule 3</b> creates a complaints mechanism in respect of content incompatible with Rule 3 (2) by requiring intermediaries to disable access to offending content within 36 hours of obtaining knowledge themselves or on being brought to “actual knowledge” by an “affected person”. The Intermediaries Guidelines do nothing to clarify what would amount to “actual knowledge”, to indicate in unambiguous terms, which parties would have sufficient <i>locus</i> to bring complaints in order to be deemed an “affected person” for the purposes of these provisions or to suggest that there is a procedure or timeline for action by the intermediary, such that requirements such notice to the author of the content and time for the preparation of a defence by the author and/or the intermediary are accounted for. Rule 3 (4) also requires that all information which is taken down be preserved, along with “associated records” for a duration of atleast ninety days for investigative purposes.</p>
<p style="text-align: justify; "><b>Sub-rule (5) of rule 3 </b>mandates that intermediaries inform users that non-compliance with the Intermediary Guidelines, <i>inter alia</i>, is a ground for the exercise of their right to terminate access or usage rights and remove non-compliant content.</p>
<p style="text-align: justify; ">Finally, <b>sub-rule (11) of rule 3 </b>requires intermediaries to name Grievance Officers to receive complaints on any matters relating to the computer resources made available by the intermediary, including for non-compliance or harm in terms of Rule 3 (2). This officer is bound to respond to the complaint within one month from the date of receipt of the complaint.</p>
<p style="text-align: justify; ">In the result, the Intermediary Guidelines create a two-track system by which private censorship is legitimized online. In the first place, intermediaries can take down content on their own motion where they are of the opinion that the content falls under any of the grounds enumerated in Rule 3 (2) or, alternatively, do so in response to a complaint, in terms of Rule 3 (4).</p>
<p style="text-align: justify; ">In addition to the provisions relating to censorship, the Intermediary Guidelines also provide for information to be given over to government agencies making a request with lawful authority and in writing under <b>sub-rule (7) of rule 3</b>, for data protection measures in accordance with the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Information) Rules, 2011 notified under Section 43A of the IT Act to be adhered to (<b>sub-rule (8) of rule 3</b>) and for intermediaries to report and share information realting to cyber security with CERT-In (<b>sub-rule (9) of rule 3</b>).</p>
<h2>Areas of Infirmity</h2>
<p style="text-align: justify; ">It is doubtful whether the Intermediary Guidelines could pass constitutional muster, on several grounds:</p>
<h3>Compatibility with Article 19 (1) (a) and (2)</h3>
<p><i>(a) Applicability of Article 19 (2) to Rule 3 (2) Grounds</i></p>
<p style="text-align: justify; ">In <i>Romesh Thappar v. State of Madras</i><a href="#fn5" name="fr5">[5]</a> the Supreme Court held that the freedom of speech and expression under Article 19(1)(a) includes the freedom to propogate and disseminate ideas. It also held that very narrow and stringent limits govern the permissibility of legislative abridgment of the right of free speech. Ordinarily, any abridgement of free speech by means of censorship must be compatible with one or more of the grounds provided for under Article 19 (2), and the Supreme Court held in <i>Express Newspapers (Private) Ltd. v. Union of India</i><a href="#fn6" name="fr6">[6]</a>that limitations on the exercise of the Article 19(1)(a) right which do not fall within Article 19(2) cannot be upheld.</p>
<p style="text-align: justify; ">Further, the right to free speech applies across all media, and the internet is no exception. In <i>Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal</i><a href="#fn7" name="fr7">[7]</a>, the Supreme Court reflected the understanding that where media are different, such that the treatment accorded to them must be different in accordance with that indicia of difference, it will treat them as such in order to uphold fundamental rights. More specifically, in <i>Ajay Goswami v. Union of India</i><a href="#fn8" name="fr8">[8]</a>, the Supreme Court opined (in <i>obiter</i>) that the internet, as a unique medium of expression, deserved a different standard of protection than other mediums that have preceded it.</p>
<p style="text-align: justify; ">Rule 3 (2) of the Intermediary Guidelines, which lists the grounds for censorship, is not complaint with Article 19 (2) for two reasons:</p>
<p style="text-align: justify; "><i>First</i>, many of the grounds mentioned have no constitutional basis whatsoever. Rule 3 (2) prohibits, <i>inter alia</i>, content which “grossly harmful”, “harassing”, “invasive of another’s privacy”, “hateful”, “disparaging”, “grossly offensive” or “menacing”, in addition to content which is simply illegal, and should be actionable <i>ex post</i> rather than prohibited <i>ex ante </i>(content infringing intellectual property under Rule 3 (2) (d), for example). Most of the terms employed are not legal standards, but merely subjective indicators of personal sensitivities, while still others though legal do not figure in Article 19 (2). Since the whole scheme of the Intermediary Guidelines is premised on these extra-constitutional grounds, they are, as a whole, subject to being to being struck down.</p>
<p style="text-align: justify; "><i>Second</i>, the restriction is unreasonable because instead of preserving rights online in accordance with <i>Ajay Goswami</i>, the Intermediary Guidelines unjustifiably abridge the right to speak and receive information on the internet. The Intermediary Guidelines overreach in their scope, by including as actionable content which is not itself punishable when communicated via any other medium. For example, disparaging speech, as long as it is not defamatory, is not criminalised in India, and cannot be because the Constitution does not allow for it. Similarly, content about gambling in print is not unlawful, but now all Internet intermediaries are required to remove any content that promotes gambling.</p>
<p style="text-align: justify; "><i>(b) Nature of Censorship: Directness of Censorship and Legitimacy of Private and Prior Censorship</i></p>
<p style="text-align: justify; ">In judging whether a statute is constitutional, the effect that the statute will have on the fundamental rights of citizens must be examined. The Supreme Court held in <i>Bennett Coleman & Co. v. Union of India</i><a href="#fn9" name="fr9">[9]</a> that the test was to examine whether the <i>effect</i> of an impugned action was to abridge a fundamental right, notwithstanding its object.</p>
<p style="text-align: justify; ">Further, while it is true in light of the Supreme Court’s holdings in <i>Prakash Jha Productions v. Union of India</i><a href="#fn10" name="fr10">[10]</a><i> </i>that pre-censorship is permissible within the Indian constitutional scheme, this permissibility is qualified. Prior censorship may be undertaken only within closely regulated circumstances, such as under the grounds in the Cinematograph Act, 1952, and even then, only by an appropriately empowered governmental entity.</p>
<p style="text-align: justify; ">The Intermediary Guidelines create mechanisms for the abridgement of the freedom of speech which amount to indirect and unjustifiable prior censorship, contrary to Article 19 (2):</p>
<p style="text-align: justify; "><i>Firstly</i>, while the state does not itself censor under these rules, it has empowered private, commercial entities to do so <i>vide </i>the Intermediary Guidelines. These rules thus transfer the executive power of censorship to private intermediaries. This amounts to an indirect form of censorship for the purposes of the <i>Bennett Coleman </i>test and has the result of increased censorship on the Internet because the state granted legislative sanction to such a system, although it does not censor by itself or through a state agency. The Intermediary Guidelines, and specifically Rule 3 (4) read with Rule 3 (2), place a burden on intermediaries to decide on the lawfulness of content as a pre-condition for their statutory exemption from liability. An intermediary, on receiving a complaint, to ensure that it continues to receive the protection offered by Section 79 of the IT Act, will be forced to disable access to the content posted by a user. Thus, the direct effect of the rules will be strict censoring of content posted on-line by users. The rules will have a direct effect on the fundamental right of freedom of speech and expression guaranteed under Article 19(1) of the Constitution unreasonable restrictions on fundamental rights, that are imposed by a statute or executive orders are liable to be struck down as unconstitutional.</p>
<p style="text-align: justify; "><i>Secondly</i>,<i> </i>while prior censorship is permissible only in a strictly limited range of cases, the Intermediary Guidelines allow for an unrestrained and unlimited degree of prior and arguably invisible censorship. Rule 3 of the Intermediary Guidelines clearly envisages such a system of prior censorship. Whereas the consequences for passively displaying content incompatible with Rule 3(2) would be a complete waiver and dissolution of the Section 79 immunity that would ordinary accrue to neutral intermediaries, intermediaries or complainants have no obligation in respect of ensuring the tenability of complaints and the grounds cited in them. The Intermediary Guidelines do not draw a distinction between arbitrary actions of an intermediary and take-downs subsequent to a request. Further, the inclusion of a residuary clause in Rule 3 (2) (b) allowing pre-censorship of content which is “unlawful in any manner whatever”, also indicates that the Intermediary Guidelines allow the use of the exceptional instrument of not only allows private censorship, but that they actively encourage it as the default rule rather than the exception without any justification whatsoever.</p>
<p style="text-align: justify; "><i>(c)</i><i> Vagueness and Overbreadth: Possibility for Over-Censorship</i></p>
<p style="text-align: justify; ">Vagueness in the terms of a restriction to free speech is grounds for it to be struck down, even where the ground is apparently broadly constitutional. The Supreme Court held in <i>Sakal Papers (P) Ltd. v. Union of India</i><a href="#fn11" name="fr11">[11]</a> that the Constitution must be interpreted in order to enable citizens to enjoy their rights to fullest measure, subject to limited permissible restrictions. In <i>Romesh Thapar</i><a href="#fn12" name="fr12">[12]</a><i> </i>the Supreme Court also held that a legislation authorizing the imposition of restrictions on free speech in language wide enough to cover restrictions which are permissible as well as extra-constitutional will be held to be wholly unconstitutional.</p>
<p style="text-align: justify; ">The grounds listed in Rule 3 (2) of the Intermediary Guidelines are highly subjective, private interest grounds which are not defined either in the Intermediary Guidelines or in the IT Act itself. These include terms such as “grossly harmful”, “harassing”, “invasive of another’s privacy”, “hateful”, “disparaging”, “grossly offensive” or “menacing”. Consequently, the Intermediary Guidelines constitute unreasonable restrictions on freedom of speech, with Rule 3 (2) containing vague terms which, in addition to falling beyond the purview of Article 19(2), cover only private and subjective grounds, incapable of objective definition or application.</p>
<p style="text-align: justify; ">Further, the Intermediary Guidelines do no precisely define the term “affected person” employed in Rule 3 (4). Thus, complaints from <i>any</i> party, including those uninvolved or unaffected by content must all be complied with, without qualification.</p>
<p style="text-align: justify; ">In the result, the vagueness of the grounds in Rule 3 (2) and the diffuse terminology of “affected person” leaves Rule 3 (2) grounds serving as placeholders for whatever claim a complainant, having no <i>locus</i> whatsoever, chooses to bring, without regard for whether it is constitutional or even legal. Online content is thus treated as presumptively illegal and take down of content as the presumptive course of action. Additionally, there is a further consequence to the vagueness and overbreadth of the terms in Rule 3 (2): because of the indeterminacy in the grounds listed thereunder, intermediaries tasked with enforcing the law will tend to err on the side of caution and censor, rather than keep speech accessible online. There is empirical evidence to show that cautious intermediaries will over-censor and over comply with complaints in order to avoid liability under Section 79 of the IT Act.<a href="#fn13" name="fr13">[13]</a></p>
<p style="text-align: justify; "><i>(d) Contravention of International Human Rights Norms & Horizontal Application</i></p>
<p style="text-align: justify; ">The censorship regime constructed by the Intermediary Guidelines is non-compliant not only with domestic requirements under the Constitution, but also with India’s obligations under international human rights law under Articles 19 of the Universal Declaration of Human Rights (‘<b>UDHR</b>’) and the International Covenant on Civil and Political Rights (‘<b>ICCPR</b>’), under the UN Human Rights Council’s Report of the Special Rapporteur Frank La Rue on the Promotion and Protection of the Right to Freedom of Opinion and Expression (2011)<a href="#fn14" name="fr14">[14]</a>(‘<b>Special Rapporteur’s Report</b>’) and the UN Human Rights Council Resolution on Internet Freedom (2012)<a href="#fn15" name="fr15">[15]</a> (‘<b>UN Internet Freedom Resolution</b>’).</p>
<p style="text-align: justify; ">While the ICCPR as well as the UDHR guarantee a right to free speech “through any…media of…choice” in their respective Articles 19, the Special Rapporteur’s Report and the UN Internet Freedom Resolution recognize the need for special efforts to be undertaken by states to preserve free speech on the internet. The former document justifies censorship only in the most limited circumstances and makes specific mention of the commercial interests that may be implicated in delivering free speech.</p>
<p style="text-align: justify; ">Through the Intermediary Guidelines, the Indian state creates a system by which the right to free speech can be systematically violated by private and undisclosed entities and even empowers them to do so, without imposing any constitutional safeguards whatsoever. Thus, egregious violations of the right to free speech and expression are a direct and inevitable consequence of the Intermediary Guidelines. To the degree that the Indian Supreme Court has enagaged with free speech online, it appears from <i>Ajay Goswami </i>that it would apply standards consistent with international law obligations to rectify the Intermediary Guidelines to meet them.</p>
<p style="text-align: justify; ">Further, the Indian Supreme Court has held, where necessary for their true enjoyement, that fundamental rights may involve a degree of horizontality in their application. In other words, private action could be guided by fundamental rights, such as in <i>Vishaka v. State of Rajasthan</i><a href="#fn16" name="fr16">[16]</a> which evidences the Supreme Court’s willingness to hold that private entities could be held to constitutional and international human rights law standards where that is necessary for the real rather than illusory enjoyment of fundamental rights.</p>
<p style="text-align: justify; ">As a result, the Intermediary Guidelines are also liable to be struck down for their failure to recognize and account for the role of private interests while empowering them with the right to curtail fundamental rights.</p>
<h3>Compatibility with Article 21</h3>
<p style="text-align: justify; "><i> (a) Adverse Impact on Privacy (and consequently on Free Speech)</i></p>
<p style="text-align: justify; ">A constitutional right to privacy has been read into Article 21’s guarantee of life and personal liberty in several instances by the Supreme Court. The State is consequently under an obligation to refrain from interfering, whether by itself or through any of its agencies, with private lives and spaces. By the same coin, laws which encourage unwarranted state or societal intrusions into private life will contravene the victim’s Article 21 right. In <i>People’s Union for Civil Liberties v. Union of India</i>,<a href="#fn17" name="fr17">[17]</a> the Supreme Court held that Article 21 privacy protected individuals against the interception and monitoring of private communications by the state in the absence of sufficient safeguards.</p>
<p style="text-align: justify; ">Also, an individual’s privacy interests in information relating to him are not dissolved merely because information is not confidential or because another entity has some property interest in that information. In <i>District Registrar and Collector, Hyderabad v. Canara Bank</i><a href="#fn18" name="fr18">[18]</a>, the Supreme Court recognized that even where the search of private documents was concerned, Article 21 protected “persons not places”, <i>i.e.</i>, that the privacy interest did not vest in property or communications but, rather, in the rightsholder himself.</p>
<p style="text-align: justify; ">The Intermediary Guidelines include no limits whatsoever on the scope of disclosures that government agencies can demand or expect to retain, in contravention of Article 21.</p>
<p style="text-align: justify; ">Specifically, Rule 3 (4), which requires data retention for a statutory minimum of ninety days of content taken down as well as “associated records”, violates users’ rights to privacy. In addition to the financial and technical burden (in storing and securing data) imposed by the Intermediary Guidelines in requiring potentially unlimited data retention by intermediaries, there is no clarity as to what or how much information precisely must be held in the form of “associated records”. Instead of subjecting data to limited and closely qualified retention by private intermediaries, and thus limiting the impairment of the fundamental right to privacy to the minimum possible degree necessary, Rule 3 (4) imposes blanket data retention requirements.</p>
<p style="text-align: justify; ">Further, Rule 3 (7), which makes any information held by an intermediary subject to being disclosed to the government upon request is also inconsistent with the requirement that the right to life and personal liberty be violated only in accordance with fair, just and reasonable procedures. Notwithstanding that Rule 3 (7) is consistent with Section 67C of the IT Act and specific rules framed in regard to the surveillance of communications, it is also unconstitutional because it fails to include any safeguards whatsoever in the process of surveillance. These would include, as minimum obligatory conditions in light of <i>PUCL</i>, the requirement that the surveilled be informed of the surveillance and be allowed to challenge its propriety <i>ex ante </i>or its procedural regularity <i>ex post</i>, or atleast administrative or judicial review <i>ex parte</i>.</p>
<p style="text-align: justify; "><i>(b) Non-compliance with Due Process and Natural Justice Requirements</i></p>
<p style="text-align: justify; ">Article 21 explicitly includes a due process guarantee. This means that the right to life and personal liberty, and its constituent rights, can be interfered with only through constitutionally consistent procedures. A cornerstone of fair procedure, compliant with the rule of law, is the notion of natural justice. Consequently, Article 21 contemplates that the procedure by which fundamental rights are curtailed will satisfy natural justice principles.</p>
<p style="text-align: justify; ">In <i>Maneka Gandhi v. Union of India</i>,<a href="#fn19" name="fr19">[19]</a> the Supreme Court held that natural justice was not a rigid or mechanical term, but one that referred to those practices and principles that would ensure<i> </i>“fair play in action”<i>.</i> In addition the Court held that all deviations<i> </i>from natural justice requirements must be supported by a sufficiently justificatory “compelling state interest”. Specifically, in <i>Union</i> <i>of</i> <i>India</i> <i>v.</i> <i>Tulsiram</i> <i>Patel</i><a href="#fn20" name="fr20">[20]</a>, the Supreme Court held that the principle of natural justice required the satisfaction of the <i>audi alteram partem</i> rule, which consisted of several requirements, including the requirement that a person against whose detriment an action is taken be informed of the case against him and be afforded a full and fair opportunity to respond. Finally, in <i>M.C. Mehta v. Union of India</i><a href="#fn21" name="fr21">[21]</a> the Supreme Court held that the absence of due notice and a reasonable opportunity to respond would vitiate any holding to the rightsholder’s detriment. <i> </i></p>
<p style="text-align: justify; ">The Intermediary Guidelines fail to satisfy the requirement of natural justice, and particularly the rights to prior notice as well as that of the affected party to a hearing:</p>
<p style="text-align: justify; ">By requiring that content be taken down swiftly (within 36 hours of complaint, under Rule 3 (4)) and by failing to require the author of the content to be informed of the complaint and its contents, the Intermediary Guidelines violate the author’s right to notice and consequently affect his/her right to prepare and present a defence at all. In practice, authors of content which is the subject of a complaint may never know of the complaint or even of the fact of the take down, given the absence of any mechanism under the rules by which they could have been informed. In a scheme for silent, invisible censorship, authors are never afforded an opportunity to challenge the take down, just as they have no opportunity to rebut the initial complaint. In addition, at any event, it is the intermediary, a biased private entity whose immunity under Section 79 of the IT Act could be called into question based on the outcome, who must make the determination as to the legality of the content.</p>
<p style="text-align: justify; ">While there is nothing to prohibit intermediaries from informing authors on the receipt of a complaint, the limited time within which action must be taken means that such intermediaries would risk liability for non-compliance with the compliant and a waiver of their Section 79 immunity, where the content is not taken down, whether because communication does not occur within the 36 hour timeframe or because an author elects to resist takedown. By creating a system in which takedowns necessarily occur in response to complaints, irrespective of their legitimacy, the Intermediary Guidelines presume and rule in favour of the complainants and in favour of (private) censorship instead of presuming in favour of the preservation of the fundamental right to free speech, or even maintaining neutrality between the two ends.</p>
<h3 style="text-align: justify; ">Compatibility with Article 14</h3>
<h2></h2>
<h2></h2>
<p style="text-align: justify; ">The guarantee of “equal protection of laws” requires equality of treatment of persons who are similarly situated, without discrimination <i>inter se</i>. It is a corollary that that persons differently situated cannot be treated alike. <i>In</i><i> E.</i><i> P.</i><i> Royappa</i><i> v. State</i><i> of</i><i> Tamil</i><i> Nadu</i><a href="#fn22" name="fr22">[22]</a><i> the</i><i> Supreme</i><i> Court</i><i> held</i><i> that arbitrary or unfair actions necessarily run counter to Article 14. The Supreme Court explained in M/S</i><i> Sharma</i><i> Transport</i><i> v.</i><i> Government</i><i> of</i><i> Andhra Pradesh</i><a href="#fn23" name="fr23">[23]</a><i> that</i> arbitrary actions are actions which are unreasonable, non-rational done capriciously or without adequate determining principle, reason or in accordance with due judgment. In addition, Article 14 also requires that state action be reasonable. I<i>n</i><i> Mahesh</i><i> Chandra</i><i> v.</i><i> Regional</i><i> Manager,</i><i> U.P.</i><i> Financial</i><i> Corporation</i><a href="#fn24" name="fr24">[24]</a><i> it was held that discretion must be exercised objectively, and that what is not fair or just will be unreasonable, and subject to being struck down as unconstitutional.</i>Additionally, Article 14 also requires that the basis upon which classifications are undertaken for the purposes of same or differential treatment be reasoned and fair. The Supreme Court held in <i>Sube Singh v. State of Haryana</i><a href="#fn25" name="fr25">[25]</a> that the state’s failure to support a classification on the touchstone of reasonability, with the existence of intelligible differentia or the rational basis of achieving a stated object, will be ground for it to be held arbitrary and unreasonable. Finally, all state action having the potential to curtail Article 14 must be reasonable, justifiable, undertaken in <i>exercise of </i>constitutional powers and be informed and guided by public interest. The Supreme Court held to this effect i<i>n</i><i> Kasturi</i><i> Lal</i><i> Lakshmi</i><i> Reddy</i><i> v.</i><i> State</i><i> of</i><i> Jammu</i><i> and</i><i> Kashmir</i><a href="#fn26" name="fr26">[26]</a>.</p>
<p style="text-align: justify; ">The Intermediary Guidelines contravene Article 14 on the following grounds:</p>
<p style="text-align: justify; "><i>First</i>, intermediaries who are not similarly situated are treated alike. Rule 2 (i) imports the IT Act’s omnibus definition of the term “intermediary”, such that all classes of intermediaries, ranging from intermediaries which control the architecture of the internet and the hardware which enables it to run (such as ISPs and DNS providers) to intermediaries that enable content creation, sharing and communications online (such as email clients, content aggregators, social networking services and content hosts), are empowered to censor and are required to comply with complaints regarding content. Intermediaries, for the purposes of the IT Act and the Intermediary Guidelines, thus refer to a large and disparate group of providers of services enabling access to as well as use of the Internet. Reasoned state action must recognize that their liabilities must necessarily vary with the specific type of service that each provides. The Intermediary Guidelines fail to do so, and are consequently incompatible with Article 14.</p>
<p style="text-align: justify; "><i>Second</i>, the Intermediary Guidelines treat the same or similar content across media differently, without apparent justification. More specifically, users of the internet are unfairly discriminated against. All of the Rule 3 (2) grounds which are not explicitly mentioned in Article 19 (2) in particular reflect this discriminatory, unreasoned treatment. To illustrate, the prohibition under Rule 3 (2) on the display of any content online when it relates to gambling treats speakers using the internet differently from speakers communicating this content via any other medium of communication. Given that nothing in the nature of the medium itself attaches a new or different character to the content, criminality or liability must attach to such content in a medium-neutral fashion. So, while content qualifying as seditious under law remains so across media, whether it be print, audio or video broadcast or online, the same as not the case for communications on the internet. In other words, while gambling itself may be prohibited under law, speech or expression involving it is nowhere prohibited under law. While such content is legal and protected across print and broadcasting media, the same content is liable to take down online. This would amount to discriminatory treatment of equal content <i>merely</i> because speakers choose the internet, and the speech occurred online.</p>
<p style="text-align: justify; "><i>Third</i>, the Intermediary Guidelines accord unrestrained discretion in the curtailment of fundamental rights to <i>private </i>functionaries, without any guidance whatsoever. This should have been the sole reserve of the state. In addition to the lack of guidance, the breadth of the grounds for censorship in Rule 3 (2), some of which are<i> themselves incapable of precise and non-subjective application</i>, means that private censorship can occur to an arguably unlimited degree. Expecting compliance with such terms, and attaching liability (for intermediaries) or a curtailment of fundamental rights (for generators of content), without the provision of a right to challenge or even, more fundamentally, be informed is both unreasonable and arbitrary.</p>
<p style="text-align: justify; ">Similarly, Rules 3 (4) and 3 (5) empower intermediaries to take down content without providing any realistic opportunity of hearing to its author. Intermediaries are accorded an adjudicatory role to the intermediary in deciding questions whether or not authors can access their fundamental right to free speech in the process. This role is ordinarily reserved for competent courts or administrative authorities, which are subject to constitutional checks and balances and a general obligation to preserve and promote fundamental rights. Assigning such functions to a self-interested private entity without any accountability whatsoever is both unreasonable as well as arbitrary.</p>
<p style="text-align: justify; "><i>Finally</i>, the Intermediary Guidelines fail to account for the public interest because they directly restrict the public’s freedom of speech and expression, without any justifiable reason, and privilege the personal and not necessarily constitutional sensitivities of private complainants instead. Rule 3(3) in effect vests an extraordinary power of censorship in intermediaries, entities which operate on the basis of private interest and outside the limits of administrative or even the most basic human rights control. Safeguards must apply to power-bearers to the degree and in the manner required in relation to the nature of the power, rather than its holder, if fundamental rights are to be legislatively preserved. While the Supreme Court in <i>A.K. Kraipak v. Union of India</i><a href="#_ftn27">[27]</a> extended the applicability of natural justice principles from judicial bodies alone and quasi-judicial bodies to administrative bodies as well, the applicability of such principles still remains limited to state entities. In other words, there is an acknowledged difficulty in applying public law standards to private, commercial entities.</p>
<p style="text-align: justify; ">The Intermediary Guidelines thus vest the right to abridge core fundamental rights (under Articles 14, 19 and 21) in private delegates operating outside public law controls that constrain the scope in which the power can be exercised and ensure that citizen interest can be preserved. In the alternative, they also failed to provide for other safeguards to prevent abuse to the detriment of fundamental rights private delegates of governmental power, even as they granted such powers in unlimited terms. As a result, the Intermediary Guidelines evidence thoughtless, arbitrary, unreasoned and unjust state action.</p>
<h3 style="text-align: justify; ">Vires vis á vis the Parent Act</h3>
<p style="text-align: justify; ">While it is permissible within the constitutional scheme for legislative functions of the Parliament to be delegated to a degree, they may be struck down on several grounds. In general, per <i>Indian</i><i> </i><i>Express</i><i> </i><i>Newspapers</i><i> </i><i>(Bombay)</i><i> </i><i>Pvt.</i><i> </i><i>Ltd.</i><i> </i><i>v.</i><i> </i><i>Union</i><i> </i><i>of</i><i> </i><i>India</i><a href="#_ftn28">,[28]</a> subordinate legislation can be challenged not only on any of grounds on which the parent legislation is vulnerable to challenge, but also on the grounds that it does not conform to parent statute, that it is contrary to other statutes or that it is unreasonable, in the sense that it is manifestly arbitrary. Notably, the Court also held here that subordinate legislation is liable to being struck down where it fails to conform to constitutional requirements, or, specifically that “it offends Article 14 or Article 19 (1) (a) of the Constitution”.</p>
<p style="text-align: justify; ">It is a well-accepted proposition that delegated legislation which travels outside the scope of its enabling law will not stand as valid. It was held in <i>Agricultural</i><i> </i><i>Market</i><i> </i><i>Committee</i><i> </i><i>v.</i><i> </i><i>Shalimar</i><i> </i><i>Chemical</i><i> </i><i>Works</i><i> </i><i>Ltd </i><a href="#_ftn29">[29]</a> that a delegate cannot alter the scope of the act under which it has been it has been empowered to make rules, or even of a provision or principle included there under. In <i>State</i><i> </i><i>of</i><i> </i><i>Karnataka</i><i> v</i><i>.</i><i> </i><i>Ganesh</i><i> </i><i>Kamath</i><a href="#_ftn30">[30]</a> the Supreme Court held that “it is a well settled principle of interpretation of statutes that the conferment of rule-making power by an Act does not enable the rule-making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent there with or repugnant thereto”. Similarly, in <i>KSEB</i><i> </i><i>v.</i><i> </i><i>Indian</i><i> </i><i>Aluminium</i><i> </i><i>Company</i><a href="#_ftn31">[31]</a>, it held that“subordinate legislation cannot be said to be valid unless it is within the scope of the rule making power provided in the statute”.</p>
<p style="text-align: justify; ">The Intermediary Guidelines were enacted under Sections 79(2) and 87(2)(zg) of the Information Technology Act, 2000 (as amended). While the latter provision explicitly grants the Central Government rule-making powers by which it can lay out guidelines to be followed by intermediaries in order to comply with Section 79(2), it appears that the rules in their current form appear to have been drafted based on a misunderstanding of Section 79.</p>
<p style="text-align: justify; ">Section 79(2) itself merely clarifies the circumstances in which intermediaries can claim that intermediaries are not liable for content where they do not initiate the transmission of potentially actionable content or select its recipient, modify its contents and observe all necessary “due diligence” requirements under the IT Act and rules.</p>
<p style="text-align: justify; ">The extent to which the Intermediary Guidelines alter the intent and scope of section 79 (or other provisions of the IT Act, in some cases) clearly leaves them <i>ultra vires</i> the parent statute. The specific instances of deviation by the Intermediary Guidelines from the IT Act are listed below:</p>
<p style="text-align: justify; "><i>First</i>, Rule 3 (3) is ultra vires section 79 of the IT Act. Where this rule expressly prohibits the hosting, publication or initiation of transmission of content described in Rule 3 (2), section 79 does not intend any prohibition. All that it does is to waive the immunity otherwise accorded to intermediaries where the conditions specified are not satisfied. In other words, the section is optional, rather than mandatory and punitive: whether or not an intermediary can claim immunity will depend on whether it chooses to comply with section 79 (2).</p>
<p style="text-align: justify; "><i>Second</i>, Rule 3 (4) requires intermediaries to take steps to disable access to within 36 hours of receiving a complaint in relation thereto. This is inconsistent with section 69B of the IT Act, which lays down in detail, the procedure to be followed to disable access to information. Since section 69B is statutory law, Rule 3 (4), being mere delegated legislation, will have to yield in its favour.</p>
<p style="text-align: justify; "><i>Third</i>, Rule 3 (7) is <i>ultra</i><i> </i><i>vires</i> sections 69 and 69B, and falls outside the scope of section 79 (2). Rule 3 (7) provides that intermediaries must comply with requests for information or assistance when required to do so by appropriate authorities. This provision has no relation to the contents of section 79, which regulates intermediaries’ liability for content, and under which these rules were notified. In addition, rules have already been issued under the properly relevant sections, namely sections 69 and 69B, to provide a procedure to be followed by the government for the interception, monitoring, and decryption of information held by intermediaries. Rule 3 (7) is not consistent with the rules under sections 69 and 69B, as it removes all safeguards that those rules included. Under the Information Technology (Procedure and Safeguards for Interception, Monitoring, and Decryption) Rules 2009, for instance, permission must be obtained from the competent authority before an intermediary can be directed to provide access to its records and facilities while Rule 3 (7) makes intermediaries answerable to virtually any request from any government agency.</p>
<p align="left"><b> </b></p>
<hr align="left" size="1" width="33%" />
<p>[<a href="#fr1" name="fn1">1</a>]. Rule 3 (2) (a).</p>
<p>[<a href="#fr2" name="fn2">2</a>]. Rule 3 (2) (d).</p>
<p>[<a href="#fr3" name="fn3">3</a>]. Rule 3 (2) (b)</p>
<p>[<a href="#fr4" name="fn4">4</a>]. Section 499, Indian Penal Code, 1860 (“Defamation” is defined to include both written and spoken words).</p>
<p>[<a href="#fr5" name="fn5">5</a>]. AIR 1950 SC 124.</p>
<p>[<a href="#fr6" name="fn6">6</a>]. AIR 1958 SC 578.</p>
<p>[<a href="#fr7" name="fn7">7</a>]. AIR 1995 SC 1236.</p>
<p>[<a href="#fr8" name="fn8">8</a>].(2007) 1 SCC 170.</p>
<p>[<a href="#fr9" name="fn9">9</a>]. AIR 1973 SC 106.</p>
<p>[<a href="#fr10" name="fn10">10</a>]. (2011) 8 SCC 372.</p>
<p>[<a href="#fr11" name="fn11">11</a>]. AIR 1962 SC 305, ¶31.</p>
<p>[<a href="#fr12" name="fn12">12</a>]. <i>Supra, </i>n.5.</p>
<p>[<a href="#fr13" name="fn13">13</a>]. Centre for Internet & Society, <i>Intermediary Liability in India</i><i>: Chilling Effects on Free Expression on the Internet 2011</i> <i>available at</i> cis-india.org/internet-governance/chilling-effects-on-free-expression-on-internet/intermediary-liability-in-india.pdf.</p>
<p>[<a href="#fr14" name="fn14">14</a>]. UN Document no. A/HRC/17/27.</p>
<p>[<a href="#fr15" name="fn15">15</a>]. UN Document no. A/HRC/20/.13.</p>
<p>[<a href="#fr16" name="fn16">16</a>]. AIR 1997 SC 3011.</p>
<p>[<a href="#fr17" name="fn17">17</a>]. AIR 1997 SC 568.</p>
<p>[<a href="#fr18" name="fn18">18</a>]. (2005) 1 SCC 496.</p>
<p>[<a href="#fr19" name="fn19">19</a>]. 1978 SCR (2) 621.</p>
<p>[<a href="#fr20" name="fn20">20</a>]. AIR 1985 SC 1416.</p>
<p>[<a href="#fr21" name="fn21">21</a>]. AIR 1999 SC 2583.</p>
<p>[<a href="#fr22" name="fn22">22</a>]. AIR 1974 SC 555.</p>
<p>[<a href="#fr23" name="fn23">23</a>]. AIR 2002 SC<i> </i>322<i>.</i></p>
<p>[<a href="#fr24" name="fn24">24</a>]. AIR 1993 SC 935<i>.</i></p>
<p>[<a href="#fr25" name="fn25">25</a>]. (2001) 7 SCC 545, 548, ¶10.</p>
<p>[<a href="#fr26" name="fn26">26</a>].1980 AIR 1992.</p>
<p>[<a href="#fr27" name="fn27">27</a>]. <i>AIR</i> 1970 SC 150.</p>
<p>[<a href="#fr28" name="fn28">28</a>]. AIR 1986 SC 515.</p>
<p>[<a href="#fr29" name="fn29">29</a>]. AIR 1997 SC 2502.</p>
<p>[<a href="#fr30" name="fn30">30</a>]. (1983) 2 SCC 40.</p>
<p>[<a href="#fr35" name="fn31">31</a>]. AIR 1976 SC 1031.</p>
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For more details visit <a href='http://editors.cis-india.org/internet-governance/constitutional-analysis-of-intermediaries-guidelines-rules'>http://editors.cis-india.org/internet-governance/constitutional-analysis-of-intermediaries-guidelines-rules</a>
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No publisherujwalaInternet GovernanceIntermediary LiabilityInformation Technology2012-10-31T08:44:41ZBlog Entry