Indian Supreme Court Overturns Law Barring ‘Offensive Messages’ Online

The article by Niharika Mandhana published by Wall Street Journal on March 24, 2015 quotes Sunil Abraham.

A two-judge panel voided a part of India’s Information Technology Act that made it a crime to share information through computers or other communications devices that could cause “annoyance, inconvenience” and “enmity, hatred or ill will.”

Announcing the ruling in a crowded courtroom in the Indian capital, Justice Rohinton Nariman said the law’s provisions were too vague and didn’t provide “clearly defined lines” for law-enforcement officials. “What is offensive to one person may not be offensive to another,” he said.

The court also ruled that Internet companies, such as Facebook and Google, could be required to remove or block access to online content only if ordered to do so by a court or by a notification from the government. Previously, they were expected to act when they had “actual knowledge” of allegedly illegal materials.

Free-speech activists had long argued against the broad language in the law, which was enacted in part as an effort to prevent the incitement of violence among different religious and ethnic groups in the world’s second-most-populous nation.

On Tuesday they applauded the decision.

“This provision was hugely problematic for anyone using the Internet in India and that is gone,” said Sunil Abraham, head of the Bangalore-based Center for Internet and Society. “The court has removed the additional, unconstitutional limits to free speech.”

India’s Information Technology minister, Ravi Shankar Prasad, said in a televised interview after the ruling that the government “supports free social media.”

“If the security establishment needs a response in cases of terrorism, extremism, communal violence, the government will take a view after wider consultations,” Mr. Prasad said. “But only with adequate safeguards.”

Enforcement of the law has sparked controversy for years. In 2012, a 21-year-old was detained after complaining on Facebook about the effective shutdown of Mumbai for the funeral of a right-wing Hindu leader. Another person was also detained for “liking” her comment.

That year, political cartoonist Aseem Trivedi was also charged under this law for his work lampooning Parliament. Mr. Trivedi said Tuesday that the court’s decision would “put a stop to years of misuse of the law by the government and politicians.”

“It sends a strong message that Indian law is with free speech,” Mr. Trivedi said.

According to a recent report by Facebook, the U.S. social media company blocked 5,832 pieces of content in the second half of 2014 on requests from Indian law-enforcement agencies and the government.

That was up from 4,960 pieces blocked from January to June last year. Facebook said it restricted access in India to a lot of “anti-religious content” and “hate speech that Indian officials reported could cause unrest and disharmony.”

J. Sai Deepak, a New Delhi-based lawyer involved in the case, said Tuesday’s decision was a significant victory for Internet companies in India. He said the law’s implementation—which earlier was “subject to the vagaries of the political winds of the state,” he said—would now be guided only by the free-speech rules laid down in the Indian constitution.

The order, however, rejected an argument by free-speech advocates that information shared on the Internet must be treated the same way as other kinds of speech, such as a live address or printed material. The court said lawmakers could create a separate law to deal with online speech because such content, unlike others, “travels like lightning and can reach millions of persons all over the world.”

But the current law, the court said, was too vague and included terms which “take into the net a very large amount of protected and innocent speech.” The law “is cast so widely that virtually any opinion on any subject would be covered by it,” the order said.

—Newley Purnell contributed to this article.