Intermediary liability in the context of the Shreya Singhal judgment

by Joshita Pai

The ruling of the Supreme Court in Shreya Singhal marked the demise of the draconian section 66A of the Information Technology Act 2000. The impugned provision caught nationwide attention after the arrest of two girls over a facebook post. The post was a comment on the inconvenience caused by the shutting down of the city during the death procession of the then Shiv Sena Chief, Mr. Bal Thakeray. The nullification of the provision which was sought after in a string of petitions owing to its vagueness and scope of misuse, reinstated the extension of the right to free speech in the virtual media.

The judgment also dealt with provisions aside from section 66A, which did not receive its due in the discourse. The Court upheld the validity of section 69A which empowers the Government to block websites and disable access to content stating that it is within the realm of article 19(2). Section 79(3)(b) of the Act which lays down the safe harbour provisions for intermediaries was also read down by the court. The IAMAI(Internet and Mobile Association of India) challenged the said section in the petition alongwith Rule 3(2) and 3(4) enlisted in the IT (Intermediary Guidelines) Rules, 2011. The judgment brought about the elimination of compelled private censorship at the hands of the intermediaries and verified the constitutional legitimacy of the provisions that affect intermediary liability. This paper analyzes the notable flexibility and expansion with respect to intermediary liability as a result of the ruling.

The Legal Landscape After the Judgment: 

Blocking Orders

The Court upheld the constitutionality of the provisions enabling website blocking. Section 69A of the Act grants powers to the Central Government to “issue directions for blocking of public access to any information through any computer resource”. The IT (Procedure and safeguards for Blocking for Access of Information by Public) Rules, 2009 allow the blocking of websites by a court order, and sets in place a review committee to review the decision to block websites as also establishes penalties for the intermediary that fails to extend cooperation in this respect.[i] The Court abstained from striking down the provision on grounds of unconstitutionality[ii] stating that the blocking rules provided for in 2009 Rules made for adequate procedural safeguards.[iii]

The court however, clarified that the grounds for blocking the websites is within the realm of article 19(2). After analyzing the section, the Court concluded that the blocking orders under section 69A can only be passed either by a competent Court or by a Designated Officer after complying with the 2009 Guidelines. The Court also noted the importance of recording the reasons for blocking, in writing.  The judgment reflects that the Rules pertaining to the section do not suffer from any constitutional infirmity.

Blocking of websites, however as a whole though fosters collateral censorship. Blocking of websites in bulk on grounds of piracy and other potential illegal content may often amount to a blanket ban on speech preventing lawful content, and this may result in a disproportionate measure.. The practice of issuing blocking orders has become more prominent. In December, 2014, the DoT ordered the blocking of 32 websites acting under section 69A.[iv]Further, Rule 16 of the 2009 Rules requires the blocking request and reasons to remain confidential and this is against the constitutional right  to know and is a hindrance in ensuring transparency in the procedure.

In any event, the presence of a three layered authority to decide upon the blocking of website and subjecting it to article 19(2) has made section 69-A a narrowly tailored provision.

Effective Safe Harbour Provisions:

Section 79 while extending immunity to intermediaries from liabilities, fastens statutory  stipulations to be fulfilled by the intermediary. The safe harbour provisions were proposed by Expert Committee in 2005[v] which is inspired by the EU Directive, 2000.[vi] The determination of the liability of the intermediary rests on the conditions laid down in 79(2)(b) whereunder the intermediary is required to be a mere facilitator and does not participate in the creation or subsequent modification of the content. The provision was laid down following the Bazee.com case where the CEO was arrested for the presence of an obscene MMS on his site.[vii]

Section 79(3)(b) precludes intermediaries from claiming immunity if “upon receiving actual knowledge, or on being notified by the appropriate Government or its agency” of any unlawful content, the intermediary fails to take action. The petition put forth by the IAMAI challenged the constitutionality of this provision on the grounds that it compels the intermediary to exercise its own discretion upon obtaining actual knowledge of the impugned content. The petition while challenging section 79(3)(b), also questioned the validity of the 2011 Rules pertaining to due diligence to be exercised by intermediaries. Rule 3 of the 2011 Rules provide for the due diligence to be discharged by the intermediaries. The Court upheld the requirement of comprehensive drawing up and publishing privacy policy and user agreements. Rule 3(4) provides for the removal of content on obtaining knowledge or actual knowledge of any content mentioned in Rule 3(2).

What constitutes actual knowledge is open-ended. The Court thereupon, read down actual knowledge in section 79 to denote an order from a competent court asking for the expedite removal of the content or disablement of access to the website.[viii] The Court also read down ‘knowledge’ in Rule3(4) to imply only a court order. This implies that the removal of content under section 79 can be ordered by a court or by a notice from the Government or an appropriate government agency.

This ruling effectively disables the practice of private censorship of content and enables transparency in execution of takedown notices. The Court further declared that the grounds on which the intermediary obtains actual knowledge from a court order or is notified by the appropriate government agency is subject to article 19(2) and consequently, all other grounds outside its purview fail. This is unquestionably a milestone in encouraging constitutional protection to intermediaries.

The Court reaffirmed the constitutionality of the provision as a whole. A few setbacks continue to remain insofar as this provision is concerned. Under section 79, the intermediary must also comply with government restriction orders and the procedure for notice of takedown is not entirely transparent and devoid of procedural safeguards which are provided for under section 69A.The Manila Principles provide that “intermediaries must not be required to restrict content unless an order has been issued by an independent and impartial judicial authority that has determined that the material at issue is unlawful”.[ix] The Principle proposes excluding executive action while determining the liability of intermediaries. The Principles propel a strongly deregulated liability regime and while that may be a far stretch, the need for procedural safeguards affecting this section is paramount.

Rule 3(2) provides for various grounds upon which an intermediary would be required to take down the impugned content. Rule 3(2)(b) specifically is phrased vaguely, containing words such as “blasphemous” and “disparaging”. According to the judgment, the ruling in section 79(3)(b) is applicable to the Rule 3(4). This implies that only upon obtaining knowledge from a Court order or appropriate agency which is satisfied that the grounds squarely fall within article 19(2), is the intermediary liable to takedown the content.[x]Further, Rule 3(2)(d) provides for removal of content if it infringes a copyright or patent. Section 81 of the Act however, explicitly excludes copyright law from its ambit. The position on this needs to be clarified since the bye-law is in blatant violation of its parent act. It is also important to consider the standardized format of policy and user agreements provided for by Rule 3(2). The policy format contemplated by a search engine would in all likelihood be distinct from the user agreement on social networking sites. The Court abstained from exploring the procedural nuances which has been left for another

Conclusion

The judgment is of immense significance. It lays fences of article 19(2) firmly in section 79 and Rule 3(4). The reading down of actual knowledge removes dubious interactions with non-governmental entities and to a large extent ensures transparency. The Court did not delve into the issue of collateral casualties and this could be attributed to the fact that most of the instances of website blocking deal with those websites which primarily carry infringing or pirated material. There is a dearth of tailor made procedures for different kinds of intermediaries. The issue of disabling the confidentiality clause in blocking orders also remains and the Shreya Singhal judgment would have been a fitting framework to deal with it. Nonetheless, the outcome of the ruling is positive in the context of  the intermediaries and has made the concerned provisions, crisp and relatively less ambiguous. The recent judgment by the European Court of Human Rights in Delfi v. Estonia[xi] is however, a serious blow to active intermediaries since the Grand Chamber found no violation of Article 10 with respect to the unlawful content posted in the comment section, and attributed the same to the editorial control in the hands of the intermediary. The Shreya Singhal judgment is in stark contrast, a step forward in embracing the right to free speech and expression.


Joshita Pai is an alumnus of HNLU


end notes

[i] The Supreme Court Judgment in Shreya Singhal and What It Does for Intermediary Liability in India? http://cis-india.org/internet-governance/blog/sc-judgment-in-shreya-singhal-what-it-means-for-intermediary-liability

[ii]Shreya Singhal v. U.O.I., Writ Petition (Criminal) No.167 OF 2012, para 109.

[iii]Rules 7,8, 14 of the Intermediary Guidelines, 2009.

[iv] http://cis-india.org/internet-governance/blog/blocking-websites.pdf

[v] http://deity.gov.in/content/report-expert-committee-amendments-it-act-2000-3

[vi] EU Directives on E-Commerce 2000/31/EC issued on June 8th 2000

[vii]Avnish Bajaj v. State, 150 (2008) DLT 769; Aneeta Hada v. Godfather Travels and Tours Pvt. Ltd. , AIR 2012 SC 2795

[viii]Shreya Singhal, para 117.

[ix]Manila Principles, 2.a, accessible at: https://www.manilaprinciples.org/

[x] Shreya Singhal, para 119

[xi] (Application no. 64569/09)

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