Supreme Court upholds online right to freedom of
expression and clarifies instances where intermediary is obliged to
take down/ block online content
In a landmark judgement on March 23, 2015 on the Information
Technology Act 2000 ("IT Act"), the
Supreme Court reinforced the strength of the Indian democracy and
the independence of the judiciary.
The IT Act is a legislation that was enacted to provide legal
recognition to electronic commerce and amend certain other
legislations which had an impact on electronic commerce and
e-governance. However, certain provisions of the IT Act have been
felt to be draconian in the manner that they impacted individual
freedom, particularly the fundamental right to freedom of
There have been various instances where provisions of the IT Act
have been thought to be overbroad and capable of abuse. Over the
years there has been severe criticism from the general public and
In this progressive judgement, the Supreme Court has struck down
as unconstitutional provisions which were in violation of
fundamental rights and has held that "the law should not
be used in a manner that has chilling effects on the "freedom
of speech and expression".
The broad contours of this judgement are as follows:
Section 66A that made the sending or posting of
communications that were allegedly unacceptable (such as messages
which were 'grossly offensive') punishable has been struck
down as unconstitutional
Section 69A and the related rules that permits the
government to block for access by the public any online information
in the interest of sovereignty and integrity of India, defence of
India, security of the state, friendly relations with foreign
states or public order or for preventing incitement to the
commission of any cognizable offence. This provision has been
upheld on the ground that the provision is constitutional and
provides adequate safeguards.
Section 79 and the Intermediary Rules that dealt with
the obligation of intermediaries to remove / block access to any
content that was deemed unlawful has been clarified to mean that
intermediaries need to only take down content upon recei pt of a
court order or administrative order.
For a detailed analysis of this judgement, please
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