What 66A Judgment Means For Free Speech Online

Geetha Hariharan's article was originally published in the Huffington Post on March 26, 2015.

This week India's Supreme Court redefined the boundaries of freedom of speech on the internet. With the Court's decision in Shreya Singhal & Ors. v. Union of India, Section 66A of the Information Technology Act, 2000, has been struck down in entirety and is no longer good law. Through a structured, well-reasoned and heartening judgment, the court talks us through the nuances of free speech and valid restrictions. While previously, intermediaries were required to take down content upon suo moto determination of lawfulness, Section 79(3)(b) of the Act -- the intermediary liability provision -- has been read down to require actual knowledge of a court order or a government notification to take down content. Section 69A of the Act and its corresponding Rules, the provisions enabling the blocking of web content, have been left intact by the court, though infirmities persist.

The Supreme Court's decision comes at a critical moment for freedom of speech in India. In recent years, the freedom guaranteed under Article 19(1)(a) of the Constitution has suffered unmitigated misery: Wendy Doniger's The Hindus: An Alternative History was banned for hurting religious sentiments, publisher Orient Blackswan fearing legal action stayed its release of an academic work on sexual violence in Ahmedabad, the author Perumal Murugan faced harsh criticism for his novel One Part Woman and chose to slay his authorial identity.

"The Supreme Court's decision comes at a critical moment for freedom of speech in India. In recent years, the freedom guaranteed under Article 19(1)(a) of the Constitution has suffered unmitigated misery."

The tale of free speech on the Internet is similar. In response to takedown requests, intermediaries prefer to tread a safe path, taking down even legitimate content for fear of triggering penalties under Section 79 of the IT Act. The government has blocked websites in ways that transgress the bounds of 'reasonable restrictions' on speech. Section 66A alone has gathered astounding arrests and controversy. In 2012, Shaheen Dhada and her friend were arrested in Maharashtra for observing that Bal Thackeray's funeral shut down Mumbai, Devu Chodankar in Goa and Syed Waqar in Karnataka were arrested in 2014 for making posts about PM Narendra Modi, and a Puducherry man was arrested for criticizing P. Chidambaram's son. The misuse of Section 66A, and the inadequacy of other provisions of the IT Act, were well-documented.

Section 66A: No longer draconian

In a writ petition filed in 2012, the law student Shreya Singhal challenged the constitutionality of Section 66A on grounds, inter alia, of vagueness and its chilling effect. More petitions were filed challenging other provisions of the IT Act including Section 69A (website blocking) and Section 79 (intermediary liability), and these were heard jointly by justices Rohinton F. Nariman and G. Chelameshwar. Section 66A, implicating grave issues of freedom of speech on the internet, was at the centre of the challenge.

"It is difficult -impossible, in fact - to foresee or predict what speech is permitted or criminalised under Section 66A. As a result, there is a chilling effect on free speech online, resulting in self-censorship."

Section 66A makes it a criminal offence to send any online communication that is "grossly offensive" or "menacing", or false information sent for the purposes of causing "annoyance, inconvenience, insult, injury, obstruction, enmity, hatred, ill will", etc. These terms are not defined. Neither do they fall within one of the eight subjects for limitation under Article 19(2). It is difficult -impossible, in fact - to foresee or predict what speech is permitted or criminalised under Section 66A. As a result, there is a chilling effect on free speech online, resulting in self-censorship.

With yesterday's decision, the Supreme Court has struck down Section 66A on grounds of vagueness, excessive range and chilling effects on speech online. What is perhaps most uplifting is the court's affirmation of the value of free speech. In the midst of rising conservatism towards free speech, the Court reminds us that an "informed citizenry" and a "culture of open dialogue" are crucial to our democracy. Article 19(1)(a) shields us from "occasional tyrannies of governing majorities", and its restriction should be within Constitutional bounds enumerated in Article 19(2).

What speech is protected?

There are three types of speech, the court says: Discussion, advocacy and incitement. Discussion and advocacy are at the heart of Article 19(1)(a), and are unquestionably protected. But when speech amounts to incitement - that is, if it is expected to cause harm, danger or public disorder- it can be reasonably restricted for any of these reasons: public order, sovereignty and integrity of India, security of the State and friendly relations with foreign states.

" The Union of India argued that Section 66A is saved by the clauses "public order", "defamation", "incitement to an offence" and "decency, morality". But as the court finds that these are spurious grounds."

Section 66A, however, does not meet the legal standards for any of the limitation-clauses under Article 19(2), and so is unconstitutional. The Union of India argued that Section 66A is saved by the clauses "public order", "defamation", "incitement to an offence" and "decency, morality". But as the court finds that these are spurious grounds. For instance, Section 66A covers "all information" sent via the Internet, but does not make any reference (express or implied) to public order. Section 66A is not saved by incitement, either. The ingredients of "incitement" are that there must be a "clear tendency to disrupt public order", or an express or implied call to violence or disorder, and Section 66A is remarkably silent on these. By its vague and wide scope, Section 66A may apply to one-on-one online communication or to public posts, and so its applicability is uncertain. For these grounds, Section 66A has been struck down.

For freedom of speech on the internet, this is fantastic news! The unpredictability and threat of Section 66A has been lifted. Political commentary, criticism and dialogue are clearly protected under Article 19(1)(a). Of course, the government is still keen to regulate online speech, but the bounds within which it may do so have been reasserted and fortified.

Section 69A and website blocking

Section 69A empowers the government and its agencies to block websites on any of six grounds: "in the interest of sovereignty and integrity of India, defense of India, security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence relating to above". The blocking procedure is set out in the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009. It requires that a Committee for Examination of Request (CER) examines each blocking request, and gives the content-generator or host 48 hours to make a representation. The Secretary of the Department of Electronics and Information Technology then issues the blocking direction to the intermediary.

"[The court has] failed to consider the impact of Section 69A and its Rules. Our free speech rights as listeners are equally affected when legitimate websites containing information are blocked. Transparency, blockpage notifications and judicial review are essential to determine whether each blocking direction is valid."

Now, the Supreme Court decision has left Section 69A and its Rules intact, stating that it is a "narrowly drawn provision with several safeguards". However, the Court has overlooked some crucial details. For instance, no judicial review is available to test the validity of each blocking direction. Moreover, Rule 14 of the Blocking Rules requires that all blocking requests and directions are kept confidential. This means that neither the content-generator, nor the reader/listener or general public, will have any idea of how many blocking directions have been issued or why. There is no standard blockpage display in India, either, and this further aggravates the transparency problem.

Lamentably, the Supreme Court has not considered this. Though the court has recognised and upheld the rights of viewers, readers and listeners in its decision on Section 66A, it failed to consider the impact of Section 69A and its Rules on readers and listeners. Our free speech rights as listeners are equally affected when legitimate websites containing information are blocked. Transparency, blockpage notifications and judicial review are essential to determine whether each blocking direction is valid.

Section 79 and the intermediary as a judge

Section 79 provides a safe harbour for intermediaries: if they abide by the requirements of Section 79(2), they retain immunity. But under Section 79(3)(b), intermediaries can lose their immunity from prosecution if, after receiving a takedown notice, they do not take down content in three circumstances: (1) if they have actual knowledge that third-party information within their control is being used to commit an unlawful act (i.e., by suo moto deciding the lawfulness of content); (2) if a court order requires takedown of content; (3) if a government notification requires takedown. Rule 3(4) of the Intermediaries Guidelines Rules, 2011 has a similar provision.

"The Supreme Court has wisely put an end to private adjudication of lawfulness. Section 79(3)(b) and Rule 3(4) have been read down to mean that the intermediary must have actual knowledge of a court order or government notification."

This leads to a situation where a private intermediary is responsible for deciding what constitutes lawful content. Previous studies have shown that, when placed in such a position, intermediaries prefer overbroad blocking to escape liability. As readers, we can then only access uncontroversial content. But the freedom of speech includes, as the European Court of Human Rights emphasised in Otto-Preminger Institut, the freedom to "offend, shock and disturb".

In Shreya Singhal, the Supreme Court has wisely put an end to private adjudication of lawfulness. Section 79(3)(b) and Rule 3(4) have been read down to mean that the intermediary must have actual knowledge of a court order or government notification. Even if an intermediary chooses not to act in response to a private takedown notice, it will retain its immunity under Section 79.

With Shreya Singhal, India has reaffirmed its protections for freedom of speech on the internet. One may now freely speak online without fear of illegitimate and unconstitutional prosecution. However, a re-examination of the blocking procedure, with its infirmities and direct impact on speech diversity, is essential. But today, we celebrate!