The Supreme Court’s decision in the Shreya Singhal case striking down the draconian Section 66A has garnered much applause and rightly so. The decision, in fact, re-emphasises the need to respect the fundamental freedom of speech and expression that every citizen is entitled to.
The massive impact of the decision to strike down Section 66A, to some extent, dwarfed some other observations of the Court concerning an equally important provision of information technology, one that can influence e-commerce positively. Section 79 of the Information Technology Act deals with the liabilities of an ‘intermediary’.
Intermediaries, simply put, are companies such as Google, Twitter, Quikr, etc, which do not create any content but provide a platform for online exchange. The internet is a colossal library of vast and varied information shared or created by millions of users across the world. For many, the internet is a boundless virtual market-place where goods and services can be availed, exchanged or traded. An intermediary facilities the process of sharing or exchange, without itself creating the content or being the source of the information, as the case may be.
In 2008, the managing director of Bazee.com was arrested in connection with a third-party user’s offer for sale of an obscene video-clip on its website. The IT Act was then amended and, under Section 79, intermediaries were exempt from liability for its users’ content but subject to certain caveats. Section 79 provided that if upon receiving actual notice or on being notified by the government that any content accessible through the intermediary is being used to commit an ‘unlawful act’, the intermediary does not disable access to that content, the exemption granted under the IT Act would not apply. Therefore, this provision has two legs, one which relates to the intermediaries’ obligation on receiving ‘actual knowledge’ of the content being illegal and the other which gives the government unhindered power to decide the legality of content and demand its removal.
In the Shreya Singhal case, Section 79 was assailed on two basic counts. First, on receiving notice, the intermediary is required to exercise its own judgment on whether or not the content is unlawful. This is a burden which only competent courts must discharge and an intermediary is not capable of judging whether content is unlawful. Second, the expression ‘unlawful acts’ is being misused to impose restrictions which are not constitutionally permitted having regard to the fundamental right of the freedom of speech and expression.
In its ruling, the Supreme Court has held that an intermediary has ‘actual knowledge’ and is required to disable any content only on receiving an order from a court directing it to do so. With respect to the government’s power to direct the intermediary to remove content, the court held that the government would be bound by the restrictions carved out under Article 19(2) of the Constitution of India.
The Supreme Court’s ruling would undoubtedly be a welcome relief to intermediaries who routinely receive notices to take down third-party content, some genuine, some ill-motivated. Unfortunately, the task of deciphering the genuine notices from the ill-motivated ones was left to the intermediary. Many considered Section 79, as understood prior to the Shreya Singhal judgment, to be impractical as it required the intermediary to invest significant resources to deal with third-party notices, analyse and examine these notices, exercise judgment on the legality of the content in question, and finally opt to either remove it or not. In short, intermediaries were expected to perform the duties of a judicial body. If that were not enough, after performing the unreasonable task of deciding whether to retain any content or not, the intermediaries run the risk of being sued by the content creator, where content is removed or hauled up by the authorities for not removing content which the authorities believe to be illegal.
The judgment seeks to take care of these concerns and appears to have ironed out these anguish-inducing issues by holding that only upon receipt of a court order will the intermediary be required to remove the offending content.
The concept of intermediary liability in India has been brought in line with the international position, is no longer burdensome and should encourage e-commerce websites, particularly start-ups.
In the midst of the ongoing and heated debate on net neutrality, the Shreya Singhal judgment is definitely a victory of sorts for netizens. Cheers to the Indian judiciary.
Naresh Thacker is partner and Rhia Marshall Banerjee is associate manager, Economic Laws Practice
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