The petition has been filed by a non-profit making industry body challenging the constitutionality of Section 79(3)(b) of the Information Technology Act, 2000 and sub-Rules (2)(b), 4 and 7 of Rule 3 of the Information Technology (Intermediary Guidelines) Rules, 2011. The petitioner alleges that these provisions are violative of Article 14, 19 and 21 of the Constitution and thereby unconstitutional.
The petitioner’s primary argument is that the intermediaries do not create content themselves but provide platforms on which its users can create content and accordingly any liability for content generated by a user cannot be shifted upon intermediaries. Petitioner has argued that such a liability will stifle the Internet economy which according to a report by McKinsey contributes to 5% of India’s GDP growth.
While challenging the constitutionality of Section 79(3)(b) of the IT Act, petitioner has argued that by making the intermediary’s immunity under Section 79(1) contingent upon removal of material it deprives intermediaries the opportunity to be heard when notified by the Government or its agency, nor does it allow the intermediaries to exercise its rights and contentions under the law to retain the material when a private party seeks its removal, including where the Take Down request is based on a bald assertion or on insufficient. This also leads to censorship on the Internet and infringement of the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution. The section also goes beyond the permissible grounds mentioned in Article 19(2) on which free speech could be restricted.
The section has also been challenged on the basis of unreasonableness that the treatment of the said section is different from other similar provisions such as Section 52(1)(c) of the Copyright Act, 1957.Under the copyright act, when an intermediary receives a written complaint from a copyright owner that the transient copy of the work stored by the intermediary is an infringing one, the intermediary must refrain from facilitating access to the copy of the work for a period of 21 days. In the event the copyright owner fails to secure an order from a competent Court to support his claim, the intermediary may resume facilitating access to the material. No similar such protection has been provided to intermediaries under Section 79(3) making it unreasonable and violative of Article 14 of the constitution.
The petitioner has argued that Rule 3(2)(b) and Rule 3(2)(f) of the Intermediaries Guidelines is ultra vires to Section 79(3)(b) since it goes beyond the legislative mandate of requiring intermediaries to disable content which is ‘unlawful’ and creates new categories of substantive proscriptions which are not defined anywhere, and consequently is liable to be struck down. The petitioner also challenges Rule 3(2)(b) as the rule is ambiguous and cites the Thirty First Report of the Committee on Subordinate Legislation to support its contention. Petitioner has also argued that need for such an ambiguous provisions is unneeded in light of well settled laws for similar offences under Indian Penal Code.
The petitioner has challenged Rule 3(2)(f) on the basis that its ambiguity in terms such as “grossly offensive” or “menacing” is vulnerable to capricious use since and should be struck down on grounds of being deleteriously arbitrary and vague.
Petitioner has also challenged the validity of Rule 3(4) of the Intermediaries Guidelines as it requires intermediaries to act suo moto and thereby imposing upon them an obligation to pro-actively monitor data/information and also subjecting it to lose the immunity that is granted to it under Section 79(1). This is in clear contrast to international law prescribed in General Comment No. 34 on Article 19 and contrary to EU Directive on ECommerce 2000/31/EC issued on June 8th 2000, on whose lines Section 79 was ostensibly amended.
Rule 3(7) has also been challenged on the ground that it goes beyond the scope of Section 79(2)(c) and beyond the scope of assistance that intermediaries are required to offer to law enforcement agencies under Section 69. It has also been alleged as a means of invading user’s privacy guaranteed under Article 21 of the Constitution due to lack of a substantive law that permits sharing of such information in accordance with principles of due process.
Accordingly petitioner has prayed that:-
Declare Section 79(3)(b) of the Information Technology Act, 2000 as illegal and ultra vires Articles 14 and 19 of the Constitution;
Declare sub-Rules 3(2)(b), 4 and 7 of Rule 3 of the Information Technology (Intermediary Guidelines) Rules, 2011 as illegal and ultra vires Articles 14, 19 and 21 of the Constitution; and
Issue such other appropriate writ, order or directions as this Hon’ble court may deem just and proper to issue in the circumstances of the case.