The Supreme Court judgment substantially loosened the noose of due diligence obligations around intermediaries
The Supreme Court (SC) decision in the Shreya Singhal v. Union of India matter, rendering Section 66A of the Information Technology (IT) Act, 2000, unconstitutional, has been lauded by the civil society. However, what has escaped scrutiny, is the impact of the judgment on due diligence obligations of intermediaries under Section 69A and Section 79(3)(b) of the Act.
What is Section 79?
Section 79 of the IT Act grants general exemption to intermediaries (such as Google, Facebook, etc.), from liability related to third party information hosted, stored, transmitted or published on their platform. The basis of this exemption is that intermediaries only provide platforms for users to interact and publish information, and do not themselves, generate such information, and should thus, not be liable for unlawful acts committed by third party users on their platform. This argument seems prima facie fair. However, law does recognise the need for intermediaries to exercise reasonable judgment and due diligence in maintaining their respective platforms. Accordingly, Section 79 makes this exemption subject to certain conditions, including, inter alia the following:
* The intermediary should have observed due diligence while discharging its obligations under the IT Act; and
* The intermediary, upon receiving actual knowledge, or on being notified by the appropriate Government that any information, data, communication link residing in, or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, should have expeditiously removed or disabled access to that material or that resource, without vitiating the evidence in any manner.
The aforementioned obligations of the intermediary are further buttressed by provisions under the Information Technology (Intermediaries Guidelines) Rules, 2011. Rule 3(2) of the Guidelines requires intermediaries to apprise their users to not host, display, upload, modify, publish, transmit, update or share any information that may be violative of any law. Rule 3(2) of the Guidelines provides an inclusive list of acts that are prohibited.
Rule 3(4) of the Guidelines, read with Section 79(3)(b) of the IT Act, provides that an intermediary, on obtaining knowledge by itself, or having been brought to actual knowledge by an affected person, must act within 36 hours to disable such information that is in contravention of Rule 3(2) of the Guidelines.
In effect, Rules 3(2) and 3(4), read with Section 79(3)(b), grant intermediaries the right to sit in judgment on the reasonableness of content hosted on their platform, which may, in some cases, lead to an unreasonable restraint on the freedom of speech and expression of users of their platform. It is mainly, this arbitrariness, which was challenged by the petitioner, in the Judgment.
What were the petitioner’s arguments?
The petitioner’s arguments were:
* Section 79(3)(b), read with Rule 3(2) of the Guidelines, imposes restrictions on the freedom of speech and expression of citizens, that go well beyond the permissible ‘reasonable restrictions’ contained in Article 19(2) of the Constitution of India, and must therefore, be struck down as unconstitutional.
* On a reading of Rule 3(2), one would observe that statements such as, “violates any law for the time being in force”, or “communicates any information which is grossly offensive or menacing in character”, go well beyond the restrictions permitted under Article 19(2), which only permits reasonable restrictions in the interests of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
* Section 79(3)(b), read with Rule 3(4) of the Guidelines allows the intermediary to exercise its own discretion while deciding whether certain content is violative of Rule 3(2) of the Guidelines.
What did the SC decide?
While upholding the validity of Section 79(3)(b), the SC has significantly read down the meaning of the term ‘actual knowledge’ as contained in the provision. Agreeing with the petitioner’s argument, the SC held that Section 79(3)(b) of the IT Act and Rules 3(2) and 3(4) of the Guidelines are required to be read down as follows:
* Rule 3(2) would be read down to prohibit only such content that violates the ‘reasonable restrictions’ laid down in Article 19(2) of the Constitution.
* Rule 3(4) would be read down to mean that the intermediary is only required to expeditiously remove or disable access to certain material upon receiving actual knowledge, which was interpreted to imply a) receipt of a court order, or b) receipt of notifications by the appropriate governments, or their agencies, stating that acts in violation of Article 19(2) are being committed.
This substantially loosens the noose of due diligence obligations around intermediaries, under the IT Act. Thus, an intermediary would now, only be liable for failure to “expeditiously remove or disable access” to third-party content, if a court order, or a government-notification in this regard, has been made available to the intermediary.
What impact will it have on users and intermediaries?
The judgment is a relief for giant intermediaries like Google, granting them respite from the colossal task of acting upon millions of take-down requests at any given point of time, while analysing the legitimacy of each request.
However, the flip-side is that the only recourse available to users like us now, is to approach legal and bureaucratic corridors for redressal of our grievances. Considering that the legal and administrative procedures in India are already infamous for their inordinate delays, this development is unlikely to usher in a welcome change as far as genuinely-affected users are concerned. Moreover, binding the intermediaries solely to take-down notices issued by courts, or governments, renders the in-built mechanism of reporting abuse directly to intermediaries more or less redundant. The judgment has, unfortunately, not addressed the practical implications that this change may have on genuine cases of online abuse and lacks balance in that respect.
The author is an associate with JSA, Advocates and Solicitors. Views are personal