Recently, the Supreme Court of India’s came out with a landmark judgment in Shreya Singhal & Ors v. Union of India that struck down the much abused Section 66A of the Information Technology Act. This barbaric act authorized police to arrest people for posting “offensive” content online. The two judge bench upheld that this law ‘clearly affects’ the fundamental right to freedom of speech and expression (Article 19 (1) (a)) enshrined under the Indian constitution.
When the Indian society saw a rise in spate of arrests, several free speech activists along with industry lobbyists came out and challenged the arbitrary powers which the IT Act conferred on the government. Some of the popular cases which targeted the general public were:
So, just in three months of the current year, four more people have been booked under this section. Apart from this section, more petitions were filed challenging two other provisions of the same act namely Section 69A (website blocking) and Section 79 (intermediary liability).
What Really Constitutes Section 66A?
The original Information Technology Act, 2000 did not have the provision of the section 66A. It was in the year 2008, inserted. However, this section received President’s assent in the year 2009. Below find the section’s pernicious reach:
Section 66 A – Punishment for sending offensive messages through communication service or a communication device
Any person who sends by means of a computer resource or a communication device —
(a) Any information that is grossly offensive or has menacing character; or
(b) Any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device,
(c) Any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years along with fine.
The terms electronic mail and electronic mail message includes any information (text, audio, images, video) created or transmitted through a computer system, computer resource or any communication device.
Why Was The Need Felt to Declare Section-66A as UNCONSTITUTIONAL?
Section 66A, the draconian provision in the IT Act, has led to the arrest of many people in the past for posting ‘objectionable’ content on the Internet. However, the Supreme Court struck it down proclaiming, “What may be offensive to one may not be offensive to another. What may cause annoyance or inconvenience to one may not cause annoyance or inconvenience to another.”
What Speech is protected After This Decision?
The Apex court in its judgement said: “Primarily, there are three types of speech viz. Discussion, advocacy and incitement. Discussion and advocacy are at the heart of Article 19 (1) (a) and are unquestionably protected. As soon as the speech turns into incitement, it can be reasonably restricted”.
Are We Still Free in Speaking Our Mind on the Internet?
To answer this question, let us take a look at the other two sections of the Act which were kept intact in the Supreme Court verdict.
Section 69A & Website Blocking
This section empowers ‘the government and its agencies’ to block websites on any of the following six grounds (Reasonable Restrictions – Article 19 (2)) namely –
- In the interest of sovereignty and integrity of India
- Security of the State
- Defence of India
- Friendly relations with foreign states
- Public order
- Preventing incitement to the commission of any cognizable offence relating to above.
In my opinion, the Supreme Court has overlooked the overall impact it could have on websites, if a situation may arise. Since there is no judicial review, the validity of blocking a website will lie on the basis of what the government (or its agency) might think. Also, the rules contained in the Act say: “All blocking requests and directions are to be kept confidential”. So, there lies the issue of transparency as to how many blocking directions have been issued and the reason thereto.
While the Supreme Court deems fit to quash Section 66A for it curtailed the rights of viewers, readers and listeners, it failed to consider the impact of Section 69A on the very same segment. Therefore, Judicial Review, transparency and block page notifications are essential to identify if the blocking of a website is valid.
Section 79 & Intermediary Liability
Section 79 (3) (b) of the Act postulates: “The intermediaries may lose their immunity from persecution if after receiving a takedown notice, they do not remove content in any of the three circumstances –
- If they have actual knowledge that third-party information within their control is being used to commit an unlawful act;
- If a court order requires takedown of content;
- If a government notification requires takedown.
Literally, the responsibility to decide the content to be offensive is based on the interpretation of intermediary. So, to escape liability they prefer blocking more stuff than required – hence curbing free speech.
Although today is the time to celebrate as one may freely speak online without any fear of illegitimate prosecution. But, there is still a need to re-examine the contours of the aforementioned sections that bear direct impact on free speech-scape. For that, the government and all associated stakeholders need to introspect and create new procedural safeguards which will ultimately pave way for a better transparent world.