A version of this article appeared in The Hoot on Aug 21, 2013
The weekend began with much commentary in the newspapers and on theair commentary about the Supreme Court’s supposed failure to save theright of free speech, online, this time. Various stakeholdersexpressed disappointment in the court’s failure to stay the Information Technology (Intermediaries guidelines) Rules, 2011 in apetition filed by an online review website calledMouthshut.com. But the commentary was notonly superfluous: it was plainly wrong. The root of the problem wasinaccurate reporting of the Supreme Court’s actions on Friday.
Mouthshut.com is a consumer review website wherein consumers write andpublish their reviews of goods and services. The freewheeling reviewshelped drive the website’s popularity but the clashes with thebusinesses over negative reviews grew. Constant refusal to entertaindemands for user information led to clashes with the authorities.
Mouthshut followed its policy of removing content only when served witha court order. But the passing of the IT rules armed ” any affectedperson” to merely send an email to them requesting for removal of anycontent within 36 hours or face losing their “safe harbour” protectionas an “intermediary”, pay damages, legal fee and court time.
Internet based companies have to walk a fine line between protectingfree expression and creating viable services. But Mouthshut’sconundrum was particularly acute, because its users’ uncontrolledfreedom of speech is the heart of its business. An antiseptic websitegleaming with positive reviews would have no audience and serve nocommunity of consumers. So, when the requests for removal of negativereviews and threats of arrests did not stop, Mouthshut realized itmust directly confront these oppressive and unjust rules. Theyapproached the Supreme Court with a writ petition to declare the Rulesunconstitutional, as violative of the right to free speech andexpression and freedom to practice any profession. It was admitted bythe court and a notice was issued on their petition in May 2013.
Sincethen, the number of requests under the IT rules increasedexponentially, which led to their filing of an interim applicationpraying that no coercive action be taken under these rules during thependency of the petition. The Supreme Court heard the application butnoted that the prayer was similar to what had requested as relief inthe main petition. The Court therefore held that the new applicationwas merely repetitive of the existing admitted petition. Mouthshut’scounsel then decided to withdraw the application. During thearguments, the Court expressed a desire to look for ways to balancethe undeniable right to free speech and expression with publicorder. The Justices quizzed the lawyers about the various ways theserules work, asking also if there are other provisions in the Act whichcan address blocking of information that can lead to “communal riots”or “child pornography”.
Media working under the pressure of deadlines, however, reported thewithdrawal of an application as the dismissal of the mainpetition. There was no dismissal of any application. The petition isvery much alive and will come up for hearing once the service in thetagged matters is completed. The Supreme Court is eager to hear allfacets of this debate and is looking for assistance to lay out thepath of golden mean, where the free speech rights of the netizens arebalanced with maintenance of law and public order.
All hope is not lost as was claimed by the media reports. We arecertain that the Supreme Court will once again come to the rescue ofthe right to free speech and expression as its history evinces.
An interesting development that went amiss in media’s overzealous,incorrect commentary was the “fake Supreme Court order” (sic) whichMouthshut’s team had received from someone claiming to represent SaharaIndia Pariwar. Mouthshut’s counsel brought to the court’s notice atakedown request which purported to be a Supreme Court order. The titleof the order stated the case as Shailesh Gupta & Ors. v. Mouthshut.com.There was no such case pending in the court and the order was signed bya Justice who had retired in 2011. The Court asked Mouthshut to file anaffidavit and bring the fake order on record. Such practices being usedto privately censor the internet highlight the dilemma of onlinebusinesses operating in India. The petition filed by Mouthshut urges thecourt to look into the economic impact of these prohibitive rules aswell. Let’s hope the experts of the field will come to the assistanceof the Court and the future reporting will be accurate rather thansensational.