This Supreme Court petition could be a big step in the fight for Internet democracy in India
The Internet and Mobile Association of India has contended that certain aspects of the existing legal framework violate our fundamental rights to equality and free expression.
Saurav Datta · Sep 18, 2014 · 04:30 pm
In 2011, Google India approached the Andhra Pradesh High Court in peculiar circumstances. Vishaka Industries Ltd., an asbestos manufacturer in Secunderabad, was angry with a couple of articles written by the coordinator of a group that was demanding a complete ban on asbestos in India. Google incurred Vishaka Industries’ wrath not because it had anything to do with the anti-asbestos campaigners, but because it had hosted pieces they called offensive and defamatory on its list server – what we know as Google Groups.
Despite being only an intermediary, Google was slapped with the same liabilities as a publisher and accused of criminal defamation. In its decision, the court referred to Section 79 (3)(b) of the Information Technology Act, which makes it incumbent upon an intermediary to expeditiously remove or disable access to content as soon as it is notified of “objectionable” content being posted. The court, going strictly by the letter of the law, held that Google would have to face criminal liability and fight the defamation charges in court. And so the matter has stood since then.
But those who fight for freedom of expression on the internet now have reason for cheer. Last month, the Supreme Court issued notice to the government on a writ petition challenging the constitutional validity of the Information Technology (Intermediaries Guidelines) Rules, 2011.
In the writ petition, the Internet and Mobile Association of India has contended that section 79 (3)(b) of the IT Act and certain provisions of Rule 3 of the Intermediary Rules violate the citizen’s fundamental rights to equality and freedom of expression. The IAMAI is an umbrella body representing Internet Service Providers, Internet platforms and businesses, all of whom qualify as “intermediaries”.
The clause in question
Section 79 (3)(b) makes the summary removal of “objectionable content” mandatory, without even the minimal opportunity of a hearing before such material is taken down. First and foremost, the terms used in the legislation are ambiguous: “objectionable”, “defamatory”, “blasphemous”, “harassing”, “disparaging” and “obscene” have not been defined in the Act. This lack of definition is key – under the strict interpretation of the law, a great deal of commentary online is under scrutiny, indeed under threat. We have already seen it used on a number of occasions by people trying to silence those they disagree with.
Section 79(1) ostensibly provides an exemption to intermediaries, saying that they shall not be liable for hosted content created by third parties. But this is rendered meaningless because it is contingent upon the objectionable material being removed first. This demand for immediate removal is non-negotiable; non-compliance with a takedown notice makes an intermediary criminally liable.
Take ‘em down
Take the case of MouthShut.com, a product review website headquartered in Mumbai – a glaring example of how the law blatantly encourages what is commonly known as the “privatisation of censorship”.
Last year, at a conference hosted by the Software Freedom Law Centre, a non-profit working in Internet and software rights, Faisal Farooqui, the CEO of MouthShut.com, revealed that in three years of operation the company has received 790 takedown notices and 240 legal notices from irate individuals and owners of companies. It was additionally saddled with 11 court cases.
He recounted one incident that shows how flawed the law is. Kumar Builders, a construction company, was enraged by the reviews of five people who had booked flats but felt cheated. MouthShut.com hosted the negative reviews. Kumar Builders sent a legal notice that demanded MouthShut.com compensate them Rs 2,000 crore: Rs 400 crore for each of the five reviews.
It gets worse
While Section 79 (3)(b) requires intermediaries to remove content the moment they receive a takedown notice, Rules 3 (2)(b) and (f) and Rule 2(4) cast a more onerous burden.
These rules say the intermediary has to “obtain knowledge (of objectionable content) by itself” and remove this content within thirty-six hours. Trawling the internet in this fashion would require an unfeasible number of man-hours. In addition, it means intermediaries are compelled to act as publishers, editors and censors.
These offensive provisions also give a free hand to corporations to invoke the provisions of copyright law to compel peremptory takedown of content. They do it through “John Doe injunctions”, which essentially are cease-and-desist orders against no particular entity, but against anyone who might in the future violate copyright.
For instance, on the eve of the FIFA World Cup 2014, Multi Screen Media, which owned the exclusive rights to telecast the matches, got the Delhi High Court to order the blocking of 219 websites that were “likely to infringe” its copyright. In 2011, Reliance Entertainment obtained similar orders against any website streaming the films Bodyguard and Singham before they were released. Here lies the catch. The court’s orders were only with respect to these two films, but the available technology does not let an ISP or intermediary keep out only specific films or music. So intermediaries had no choice but to block all the file-sharing websites, many of whose operation had not affected Singham or Bodyguard in any way.
In May 2011, Frank La Rue, the United Nations’ Special Rapporteur on Freedom of Opinion and Expression, noted with concern how intermediaries, which play a fundamental role in enabling Internet users to exercise their right to freedom of expression and access to information, were facing increasing hostility from governments as well as private parties bent upon silencing inconvenient voices. He said this threat was more acute in countries such as India and Brazil, where Internet usage is seeing rapid growth.
It is up to the Supreme Court to ensure that La Rue’s fears are not vindicated.