1.1 In the landmark judgment of Shreya Singhal v. Union of India ("Judgment"), the Supreme Court of India ("Court") not only upheld the freedom of speech and expression on the Internet but also narrowed down the interpretation of an equally important provision of the law pertaining to protection of online intermediaries like Twitter, Facebook, Whatsapp and other social media platforms ("Intermediaries") from liability as provided for under Section 79 of the Information Technology Act, 2000 ("IT Act").
1.2 With respect to Intermediary, the Court held that Intermediaries are required to take down or block content upon notification – the court has clarified that such takedown will only be upon receipt of an order from a government agency or a court and not at the discretion of the intermediary or on receipt of request by an affected person.
2. POSITION OF LAW BEFORE THE JUDGMENT
2.1 Among other things, Section 79(3)(b) and the rules notified under Section 79 of the IT Act in 2011 ("Intermediary Rules") an intermediary is required to remove / block access to illegal content upon receiving knowledge of such illegality – this knowledge could be obtained by an intermediary on its own (perhaps through monitoring of the content), or communicated to the intermediary by any affected person, or via notification by the government.
2.2 We understand that in this process, lots of frivolous complaints by individuals were made for removal of even the allowed content, and Intermediaries honour these takedown requests even when they were related to something only very trivial. This hampered the freedom of speech and expression over these social media platforms.
2.3 Further, the provision requiring the Intermediary to use its own judgment to deem content to be illegal effectively made an Intermediary a gatekeeper to the internet, giving an Intermediary the discretion to decide upon whether or not certain content should be blocked. Keeping the consequences in mind, to be on the side of caution, Intermediaries exercised this discretion in favour of removing the content. Thus, even the permitted content suffered removal in this process.
2.4 Moreover, it was not very clear whether the intermediary was supposed to act on any and all takedown notifications (from the government as well as private parties).
3. POSITION OF LAW POST THE JUDGMENT
3.1 The Court laid down that the provisions of Section 79(3)(b) and the Intermediary Rules have to be read down. Their interpretation has been narrowed down. By doing so, the Court has clarified that the Intermediary must receive a court order / notification from a government agency for removing specific information / content and only then can it be obligated to take down any content.
3.2 Therefore, Intermediaries would not be obligated to undertake any takedown / removal action upon receipt of third parties' complaints (however grave and severe) even if the complaint on its face merits takedown. This in turn means that, any person aggrieved by content on Facebook or Google blogger will have to approach the government or the courts for relief – they can no longer approach the Intermediary directly to take down content.
3.3 However, the question whether such a reading down hampers individual protection as illegal content (that could potentially cause loss or injury) would continue to be viewed in public domain until a court order or administrative order is received, which may take substantial time, is not answered. So the innocent citizens, who have actually been slandered online on any of the Intermediary, will have to follow the long process by approaching the authorities.
3.4 The Judgment also clarified that the court order and/or the notification by the appropriate government or its agency must strictly conform to the subject matters laid down in Article 19(2) of the Constitution of India. Unlawful acts beyond what is laid down in Article 19(2) obviously cannot form any part of Section 79.
4. SDA COMMENT
4.1 The Judgment has placed limits on private censorship of Intermediaries as a Court order or notification from a government authority or agency would be required prior to removal of content. Also, now there are limits on the invisible censorship of opaque government takedown requests as they must and should adhere to the boundaries set by Article 19(2).
4.2 The Judgment to read down the provisions of Rule 3(4) of the Intermediary Rules and consequently rationalize the benefit of Section 79 of the IT Act to the broad community of Intermediaries is likely to have a significant benefit to Indian companies whose business model is based on the internet.
4.3 It is also contended that by this Judgment, the Court has killed the due diligence obligation of an Intermediaries in India to a great extent, as now Intermediaries instead of being diligent enough in conducting due diligence pertaining to the offensive matter on their websites, will wait for a government notification or order to remove them from their site.
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