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All Posts | Mar 25,2015

Au revoir, Section 66A

On March 24, 2015, the Supreme Court of India took an unambiguous stand in favor of free speech on the Internet by striking down the now infamous Section 66A of the Information Technology Act, 2000 (IT Act) as unconstitutional. The momentous verdict, delivered by Justices J Chelameshwar and R F Nariman, was the culmination of constitutional challenges to various provisions of the IT Act raised by ten separate writ petitions, all of which were heard together by the Court. Section 66A was doubtless the most controversial amongst the challenges, as it had drawn much criticism on account of allowing the arrest of citizens over on-line content deemed annoying, offensive inconveniencing and so on. Several highly publicized arrests of political dissenters under Section 66A added further momentum to calls for reform.

In its judgment, the Supreme Court observed that liberty of free speech and expression are cardinal values of paramount significance to the constitutional process in democracies. Mere discussion or even advocacy of a cause, howsoever unpopular, are at the heart of Article 19(1)(a) [Right to Freedom of Speech and Expression] of the Constitution, and it is only when such discussion or advocacy reaches the level of incitement that Article 19(2) [reasonable restrictions on Fundamental Rights] kicks in. The Court, unconvinced by the Government's assurance that Section 66A would only be used in a responsible manner, held that the Section not only failed the 'clear and present danger' test, but also bore no proximate relation to any of the subject matters enumerated under Article 19(2), especially to public order. Moreover, the Court found every expression used in Section 66A to be nebulous and imprecise, and held that the global reach of the Internet can neither restrict the content of Article 19(1)(a), nor justify its denial. As a result, Section 66A was held to be vague, over-broad, violative of Article 19(1)(a), and not saved by Article 19(2). The Section was accordingly struck down as unconstitutional. Also struck down was Section 118(d) of the Kerala Police Act, which, like Section 66A, sought to penalize those causing 'annoyance' through telephone calls, messages, mails and so on. The Court said that what has been said about Section 66A of the IT Act would directly apply to Section 118(d) of the Kerala Police Act, and struck it down as unconstitutional.

Aside from striking down Sections 66A and 118(d), the Supreme Court also read down Section 79 of the IT Act and Rules notified thereunder viz. the Information Technology (Intermediaries Guidelines) Rules, 2011. Section 79 provides 'safe harbor' protection to Internet intermediaries against liability arising from user-generated content, and the Rules outline certain conditionalities on which safe harbor protection under Section 79 hinges. Among these conditionalities was a requirement that intermediaries, when notified by any affected party of the existence of contravening content on their networks, must expeditiously take-down said content. Failure to do so would forfeit the safe harbor protection provided under Section 79. In the present judgment, the Supreme Court held that Section 79 and the Rules are to be read down so that content take-downs must necessarily be preceded by either a court order or a Government directive to the effect. This injects significant safeguards into the notice and take-down procedure, as intermediaries will no longer be required to remove content on the basis of vexatious and at times malicious third-party complaints. Non-serious complaints will be filtered out by the legal process, and this in itself is a huge step forward.

Having struck down Section 66A and read down Section 79 and the Rules, the Supreme Court however refrained from striking down Section 69A of the IT Act and Rules framed thereunder. Section 69A, along with the Rules, lay down the legal and procedural frameworks surrounding the blocking of on-line content from public access. The constitutionality of these provisions were assailed by the petitioners on several grounds, including that they afforded no opportunity for pre-decisional hearing and that they lacked procedural safeguards. The Supreme Court begged to differ on these counts, and held that Section 69A unlike 66A is a narrowly drawn provision with adequate safeguards. Further, the Court held that the mere absence of certain additional safeguards does not make the provisions constitutionally infirm. Section 69A and the Rules framed were accordingly held to be constitutionally sound.

In any event, this judgment by the Supreme Court will doubtless find a well-deserved place in the annals of Indian legal history. In fact, this is the first time since the 1960s that the Supreme Court has struck down a central legislative provision as violative of free speech. Netizens all over the country can now heave a much needed sigh of relief as they no longer need to risk personal liberty over 'annoying' or politically contentious content uploads. Also bound to be jubilant are India's Internet intermediaries, whose legal burdens have been considerably lightened due to the injection of some timely, if not overdue, safeguards into India's intermediary liability regime.

All Posts | Mar 25,2015

The 66A Rigmarole

The recent arrest of a writer in Karnataka over alleged Facebook posts making sexist and derogatory comments about a social activist on Facebook, has once again fuelled the long running debate over the requirement and reasons of insertion of section 66A.

Bharat Gyan Vigyan Samiti(BGVS) is an NGO that strives to empower people by spreading scientific knowledge. N Prabha, who is a secretary at BGVS, had posted a scientific research paper on Facebook hoping it would lead to a healthy and meaningful dialogue. A few sections of the research paper questioned Hindu vedic rituals and 'Satana Dharma'(eternal religion).This apparently angered V R Bhat, a daily columnist in Bangalore, who posted comments allegedly stating that "people like her should be caught by their hair, their faces burnt and raped." What followed was protests in all of Karnataka, staged by BGVS units who demanded Bhat's immediate arrest. According to newspaper reports, volunteers from BGVS also approached chief minister Siddaramaiah and submitted a memorandum demanding the arrest of V R Bhat for making derogatory remarks against Prabha. Consequently, Bhat was arrested by the Karnataka Police and now faces charges for sexual harassment, abetment, criminal intimidation, and causing intentional insult while knowing that it will lead to breach of peace, under the Indian Penal Code(IPC) as well as Section 66A of the IT Act (sending messages that may be offensive/ menacing/ annoying/ inconvenient/ dangerous/ obstructive/ insulting/ injurious/ criminally intimidating/likely to cause enmity, hatred or ill will/deceptive/misleading) What's more, the Karnataka Police also plans to book him under the Goonda Act, owing to numerous complaints made against him. As per newspaper reports, Prabha in her statement to the police said that even a threat of rape is a crime against women. The police told the media that the provisions under the IT Act will attract immediate arrest of an offender.

While Bhat's comment probably deserves all the condemnation it received, given the sexist and intimidating language of the Internet post used against the lady secretary at BGVS, it is imperative not to overlook the consequences of misinterpretation of S. 66A and its unwarranted implementation so far. The ambiguous words used in Section 66A is the greatest challenge with words such as "offensive/ menacing/ annoying/ inconvenient/ dangerous/obstructive/insulting/injurious/criminally intimidating/likely to cause enmity, hatred or ill will/deceptive/misleading"being open to interpretation by the law enforcement authorities. A vaguely worded law is subject to wide and inconsistent interpretations by the executive and the judiciary, given our diverse and multi-cultural society, thereby causing social and perhaps legal imbalance.

The ambiguity of the provision has resulted in its abuse an umpteen number of times. More often than not it is seen that whenever a complaint for an offence is made before police authorities, and as long as it relates to the digital domain, provisions from the IPC are clubbed with Section 66A. This could be attributed to the wide -worded language of 66A which fails to set definite standards for its application and the attempt to cast a wide net so that the accused is held guilty of one offence or the other. In the present case too, the columnist has been charged for 'criminal intimidation' and 'insult' twice, i.e. once under the IPC and then under 66A. This is the problem with 66A whose existence seems redundant in the presence of already existing laws under the Indian Penal Code. Sometimes, in cases where an accused is charged with an offence that is non-cognizable under the IPC, police authorities use 66A, which is a cognizable offence, to effect immediate arrests.

When the Information Technology Act was amended in 2008, the then Union Minister for Communications and Information Technology emphasised the need for protection of women online and said that the introduction of Section 66A was directed towards achieving this goal amongst others. However, in implementation this has not quite been the case, and the adverse impact Section 66A has had on free speech is widely acknowledged. The wide spread arrests under this provision have raised havoc as far as the digital domain is concerned.

Supporters of Section 66A argue that the Indian Penal Code is incapable of addressing crimes committed online considering the variety of crimes that are likely to take place on the Internet given its wide scope. However it must be noted that the various terms used under Section 66A are already dealt with under the IPC and as a result, their inclusion under Section 66A becomes redundant. Further, offences that might not attract a heavy punishment under the IPC become grave and cognizable offences under Section 66A. For instance, offences such as criminal intimidation which is a non-cognizable offence under the IPC, becomes cognizable under Section 66A. However, as has been observed in the present case, in implementation Section 66A is used by police authorities even though there might be other statutory provisions already in place to deal with the issues. This could be attributed to the reason mentioned earlier that 66A tends to be used by authorities for effecting immediate arrests. In the present case the columnist has been charged with criminal intimidation, insult, sexual harassment under the IPC, then one wonders about the necessity of also charging him under Section 66A. The comment made by the police inspector about the use of 66A highlights this provision's susceptibility to wanton abuse. While comments made by the authorities such as this one sound as preposterous as the provision itself, they speak volumes about the mind frame within which the authorities of our country function. The present case depicts the problem of misogyny, which cannot be treated with a provision like Section 66A, but requires an overhaul in the mindset of our society.

All Posts | Aug 24,2014

SFLC.in’s Submission To The Consultation Paper on Media law

In May 2013, the Law Commission of India had issued a Consultation Paper on Media law, where the Commission invited comments from stakeholders and the general public on laws pertaining to governance of Indian media. Though the Consultation Paper dealt primarily with issues such as cross media ownership, paid news, fake sting operations, trial by media and regulation ofgovernment owned media, the Commission also sought comments on the following questions related to social media, Section 66A of the IT Act and criminal defamation laws:

Social Media and Section 66A of the Information Technology Act, 2000:


  1. Should the existing law be amended to define what constitutes "objectionable content"?

  2. Should Section 66A of the IT Act be retained in its present form or should it be modified/ repealed?
  3. Is there a need for a regulatory authority with powers to ban/suspend coverage of objectionable material? If yes, should the regulatory authority be self-regulatory or should it have statutory powers?

Defamation

  1. Should there be modifications in the law of civil and criminal defamation as it applies to journalists? If so, what should these modifications be?

The consultation paper can be accessed at www.lawcommissionofindia.nic.in/views/Consultation%20paper%20on%20media%20law.doc)

SFLC.in made a submission before the Law Commission in response to the above questions. SFLC.in also noted in the submission the problems with the current intermediary liability regime in India. SFLC.in's submission is available here.

All Posts | Feb 20,2014

Supreme Court and The IT Act

Since its introduction back in October 2000, the Information Technology Act has proved to be a highly controversial piece of legislation. In its thirteen-odd years of operation, the Act has managed to draw considerable criticism from the legal community and the general public. It is alleged to contain a whole spectrum of flaws, shortcomings and pitfalls ranging from being inefficient in tackling cyber crimes to placing unfair curbs on the civil liberties of citizens.

Making matters worse, a 2008 Amendment introduced to the Act the now-infamous Section 66A, which reads:

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 and with fine.

The offence under 66A being cognizable, police authorities were initially empowered to arrest or investigate without warrants, based on charges brought under the Section. This resulted in a string of highly publicizedarrestsof citizens for posting objectionable content online, where the 'objectionable' contents were more often than not, dissenting political opinions. Some relief against this was granted in the form of an advisory issued by the Central Government in January 2013, which said no arrests under 66A were to be made without prior approval of an officer not below the rank of Inspector General of Police. However, the advisory was mostly ignored by authorities since it was issued by the Central Government while law and order is for the State Governments to administer.

Apart from Section 66A, the Information Technology (Intermediaries Guidelines) Rules, 2011 have also seen their fair share of criticism. While Section 79 exempts intermediaries from liability in certain cases, the Rules water down these exemptions and force intermediaries to screen content and exercise on-line censorship. Additionally, the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 provide for blocking of web pages without proper publication or notice to public containing the reasons for blocking. The process of blocking is undisclosed and fails to meet Constitutional safeguards of natural justice.

Matters have now come to a head before the Apex Court, where a series of cases have been scheduled to be taken up together, all challenging various aspects of the IT Act and associated Rules, among which Section 66A features with much prominence.

Shreya Singhal v. Union of India - Concerned by the recurring arrests made under Section 66A, this petition was filed in public interest before the Supreme Court challenging the constitutionality of 66A. The petitioner argues that the impugned Section is too broad in its sweep and contains several undefined words/terms, making it susceptible to wanton abuse. This creates a 'chilling effect' where citizens are severely disincentivized from exercising their constitutionally protected right to free speech for fear of frivolous prosecution. Thus, Section 66A is violative of Articles 14, 19 and 21 of the Constitution of India that guarantee citizens the Fundamental Rights to equality, free speech and life respectively. In addition to declaring Section 66A as unconstitutional, the petitioner urges the Court to issue a guideline stipulating the treatment of all offences involving free speech concerns as non-cognizable. [Read more]

In the course of proceedings, the Supreme Court through an interim order directed the State Governments to ensure compliance with the Central advisory issued in January 2013, thereby ensuring that no arrests under Section 66A are made without prior approval.

Rajeev Chandrashekhar v. Union of India - Filed by a serving Member of Parliament, Rajeev Chandrashekhar, this public interest petition seeks to declare Section 66A and certain provisions of the Information Technology (Intermediaries Guidelines) Rules, 2011 as unconstitutional. The petitioner points out that Section 66A is ambiguous in its phraseology and imposes statutory limits on the exercise of internet freedom. Further, the Intermediaries Guidelines Rules are similarly ambiguous and require private intermediaries to subjectively assess objectionable content. They actively water down the exemptions from liability granted to intermediaries by Section 79 of the IT Act, and prescribe unfeasibly minuscule time-frames for the removal of objectionable content. Section 66A of the Act, and the Rules are thus violative of Articles 14, 19 and 21 of the Constitution and the petitioner prays that they be declared as such. [Read more]

Common Cause v. Union of India - Spurred by the 66A arrests, this petition was filed in public interest before the Supreme Court challenging the constitutionality of Sections 66A, 69A and 80 of the IT Act. It is argued that the grounds for incrimination under 66A are beyond the scope of reasonable restrictions on Fundamental Rights allowed by Article 19(2) of the Constitution. In addition, the vagueness of language invites blatant transgressions of Fundamental Rights. Section 69A, which effectively enables State-censorship of the internet, neither provides for a redressal mechanism on censorship, nor does it contain provisions with respect to unblocking of blocked content. Further, Section 80 of the Act grants unbridled powers to the police to arrest or investigate without warrant, any person suspected of having committed an offence under the Act. The petitioner argues that these provisions stand in violation of Articles 14, 19 and 21 of the Constitution, and are thus liable to be set aside. [Read more]

Dilipkumar Tulsidas v. Union of India - This petition was filed before the Supreme Court in public interest, based on the lack of a regulatory framework for the effective investigation of cyber crimes, coupled with a lack of awareness regarding cyber crimes on the part of police authorities. In the absence of proper procedures for investigation and safeguards, citizens are vulnerable to police harassment. There is also no uniformity in cyber security control and enforcement practices. While the IT Act has provided that any police officer of the rank of sub-inspector can investigate cyber offences, there are no provisions for training or knowledge for such officers in order to properly equip them to handle cyber crimes. The petitioner thus prays that the Supreme Court formulate, and also direct the respondents to formulate an appropriate regulatory framework of Rules, regulations and guidelines for the effective investigation of cyber crimes, keeping in mind the Fundamental Rights of citizens. He also prays that the Court direct the respondents to carry out awareness campaigns particularly for investigating agencies, intermediaries and the judiciary regarding the various forms of cyber crimes sought to be penalized. [Read more]

People's Union for Civil Liberties v. Union of India - This writ petition was filed in public interest before the Supreme Court as there are instances of complaints under Section 66A of the IT Act as well as misuse of the Rules framed under the Act all over the country despite the SC directing compliance with the Central Advisory in Shreya Singhal v. UoI. Due to the vague and undefined purported offences contained within 66A, the power to punish speakers and writers through arrest and threat of criminal trial is at the first instance granted to complainants with offended sentiments and police officials.

A significant proportion of the offences in Section 66A do not even fall within the permissible categories of restriction in Article 19(2) of the Constitution. Further, the Intermediaries Guidelines Rules provide for vague and undefined categories that require legal determinations and effective censorship by private online service providers. The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 provide for blocking of web pages without proper publication or notice to public containing the reasons for blocking. The process of blocking is entirely secret and ex facie fail to meet constitutional safeguards of natural justice. The petitioner argues that these provisions violate Articles 14, 19 and 21 of the Constitution and requests their suspension. In the alternative, the petitioner requests the notification of certain guidelines towards ensuring their fair operation. [Read more]

MouthShut.com (India) Pvt. Ltd. v. Union of India - This petition was filed in before the Supreme Court towards quashing the Intermediaries Guidelines Rules. They force intermediaries to screen content and exercise on-line censorship. While a private party may allege that certain content is defamatory or infringes copyright, such determinations are usually made by judges and involve factual inquiry and careful balancing of competing interests and factors, which the intermediaries are not equipped to make. Thus, it is argued that the Rules liable to be set aside as they contain arbitrary provisions which place unreasonable restrictions on the exercise of free speech and expression, as well as the freedom to practise any profession, or to carry out any occupation, trade or business as guaranteed by Articles 19(1)(a) and 19(1)(g) of the Constitution. They are also liable to be struck down because of their failure to conform to the Statute under which they are made and exceeding the limits of authority conferred by the enabling IT Act. [Read more]

Taslima Nasrin v. State of UP - This petition was filed by Bangladeshi author Taslima Nasrin, seeking to quash an FIR filed against her under Section 66A, on the basis of certain tweets made by her against an Islamic leader and reported in a Hindi newspaper. It is argued that the wide language used in Section 66A, coupled with the use of vague/undefined terms, makes it susceptible to abuse and thus, the Section falls foul of Articles 14 and 21 of the Constitution. It is also accused of placing unreasonable restrictions on free speech. For these reasons, and since the FIR in question was filed without conducting the appropriate preliminary inquiries, the petitioner prays that the FIR be quashed and police authorities directed to take no further coercive action in the matter. [Read more]

Manoj Oswal v. Union of India – The petitioner is a social activist and Unit Head of animal rights’ organization, ‘People for Animals’, and seeks to declare Section 66A of the IT Act as unconstitutional and violative of Article 14, 19(1)(a) and 21 of the Constitution of India. The petitioner argues that Section 66A is vague and ambiguous, does not pass the test of ‘reasonable restriction’ under Article 19(2), and is inconsistent with the object of IT Act. He further submits that Section 66A goes against the settled criminal jurisprudence by prescribing the same punishment for a minor offence as well as for a major offence without having the severity of the offence as a basis for the punishment to be proposed. The petitioner also argues that the fact that a person is amenable to be booked under two different statutes (i.e. the IT Act and other penal acts such as IPC) prescribing two different punishments for the same offence is violative of Article 21 of the Constitution of India. [Read more]

 

Internet & Mobile Association of India v. Union of India – This petition has been filed by IAMAI - an industry association - 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 argues that while under the Copyright Act, an intermediary has to refrain access to content only for 21 days upon receiving a complaint after which the complainant has to secure a court order to support his claim, default of which the content will be accessible again to public at large, no such protection has been offered to intermediaries under Section 79(3)(b) of the IT Act. The lack of protection given to intermediaries under Copyright Act makes Section 79(3)(b) arbitrary and discriminatory and thereby violative of Article 14. Also, the content sought to be restricted under Section 79(3)(b) is violative of Article 19(1)(a) as it has a ‘chilling effect’ over user’s speech. The user is not given any notice of takedown of content or an opportunity to give an explanation and such a restriction goes beyond state’s power to regulate speech under Article 19(2). Rule 2(b) has been alleged to be excessively vague for using terms for which no codified definition exists, and violative of Article 19(1)(a) for making unreasonable restrictions on free speech. Rule 3(4) has been argued to be ultra vires to parent statute as it imposes a proactive duty on intermediaries to monitor user data while no such obligation exists upon intermediaries under Section 79(3)(b). Rule 3(7) has been argued to be violative of the users’ right to privacy recognized as being part of Article 21. The petitioner accordingly has sought from the court that Section 79(3)(b) of IT Act and sub-Rules (2)(b), 4 and 7 of Rule 3 Intermediary Guidelines be declared unconstitutional and violative of Article 14,19,and 21. [Read more]

 

The Supreme Court has directed that the above-mentioned cases will be heard 'on merit' and no direction on the next date of hearing has been issued. The scheduled hearing will be interesting, to say the least, since several substantial questions of law have been raised in the collective, the answers to which will have far-reaching implications on Indian technology law and the civil liberties of its citizens. It is now time to cross our metaphorical fingers and wait for the Apex Court of the country to deliver what will hopefully be a landmark decision that carefully balances the interests of all stakeholders involved in India's technology regulatory framework.