Press Release

INTRODUCTION

On March 25, 2015, the Supreme Court of India struck down Section 66A of the Information Technology Act, 2000 (“Act”) as being unconstitutional. It also struck down a similar provision of the Kerala Police Act and read down the meaning of section 79 of the Act and its rules.

The ruling is a huge victory for free speech in India in as much as Section 66A used very broad language in criminalizing information sent through electronic communication.

SECTION 66A

This provision, which was introduced by an amendment in 2009, made it a criminal offence to send information which was “grossly offensive” or had a “menacing character”. It also criminalized emails which caused “annoyance” or “inconvenience”. The language of this provision was obviously very broad and in fact, wider than India’s not insubstantial provisions on hate related speech. There had also been several cases where seemingly innocuous conduct had led to people being arrested and facing criminal charges.

The court held that the provision violated the fundamental right to free speech. Under India’s Constitution, free speech is subject to eight grounds of “reasonable restrictions”. The court considered that only one of them, public order, could possibly justify the provision. The court held that the provision did not have a proximate connection to maintaining public order. Further, the language was open-ended and undefined and that virtually any opinion on any subject could be covered by the provision.

For the same reason, the court also struck down a provision in the Kerala Police Act which also referred to causing “annoyance”.

Surprisingly, the court did not apply the doctrine of severability to save one part of Section 66A which used similar words such as annoyance, inconvenience, etc, but required two other ingredients – that the sender must know that the information is false and that it must be sent persistently.

SECTION 69A

The court held as constitutionally valid, the statutory right of the government to block websites, finding that there were sufficient safeguards built in to the provision and the rules. The safeguards include that the grounds for blocking related to the reasonable restrictions on the right to free speech, that there is an elaborate process specified and that there has to be a reasoned order which can be challenged in court.

SECTION 79

The court also held as constitutionally valid but read down the meaning of section 79 and the rules issued there under. This provision provides a safe harbor for intermediaries from liability under all Indian laws in relation to content of others. Unfortunately, the safe harbor is unavailable if the intermediary, on receiving knowledge or on being notified by the government of unlawful content, fails to expeditiously take down such content.

The provision has been assailed on the ground that it forces the intermediaries to determine for themselves whether content is lawful or not, thereby putting themselves in a judicial role. The court read down the provision to hold that “knowledge” refers to knowledge of a court order only.

Surprisingly, having approved section 69A because of the safeguards built in, the court overlooked the fact that similar safeguards are not provided when the government sends notice to an intermediary under section 79. Further, the court missed an opportunity to prescribe a notice and take down procedure (for example, as provided in the USA’s DMCA) which would make it possible for persons to approach intermediaries directly rather than being forced to approach courts or the government.

CONCLUSIONS

Overall, this is a big victory for free speech in India and particularly in the context of user generated content on the internet. The failure of the court to do a deeper analysis of the need for notice and take down procedures and it permitting the government the unlimited right to require intermediaries to take down content are unfortunate aspects of the judgment.