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(Indra Kumar Lahoti is a third year student at Hidayatullah National Law University and an Associate Editor of The PCLS Blog.) Once regarded as a platform for diverse viewpoints, the internet today is doing more harm than good. The recent controversy where social media giant Twitter fact-checked the American President’s tweet has started a fresh debate on the liability of intermediaries with respect to freedom of speech in the online space. This has again re-ignited the broader question of whether the use of the Internet as a platform for ‘communication’ should be regulated and if so, what are the contours of such regulation and who will be the ‘authority’ to decide such restrictions. A significant part of this discussion revolves around the role and liability of intermediaries ranging from online marketplaces and search engines to online payment websites and network service providers. Safe Harbours in Rough Tides Section 79 of the IT Act provides for a safe-harbour to intermediaries for, “any third party information, data, or communication like made available or hosted by him” subject to observing certain ‘due diligence’ guidelines. The Ministry of Electronics and Information Technology (“Meity”) issued The Draft Information Technology [Intermediaries Guidelines (Amendment) Rules], 2018 (“the Draft Rules”) in 2018 for public comments. This draft was heavily criticized by civil society members, industry, media and online platforms for its vague and overbroad terms. Although these rules were not notified then, reportedly the government is once again considering notifying the same Draft Rules to curb fake news and online sexually explicit content by fixing the liability of intermediaries more strictly. This article will specifically deal with the phrase ‘unlawful content’ which has different connotations and meanings. In 2015, the Shreya Singhal judgment specifically stated that Section 79 and by implication the guidelines framed under it cannot be used to regulate unlawful acts which are not relatable to Article 19(2) of the Constitution. This essentially means that no other law or rules can be framed beyond what the constitution permits in Art 19(2) to restrict free speech. The Draft Rules contain a broad category of contents as “unlawful” which are neither defined in the rules nor in the parent act, which is again contrary to the principles of delegated legislation.
Three Strikes Against Shreya Singhal In the Draft Rules, the word ‘unlawful’ first appears in Rule 3(2) (b), as part of due diligence duty of the intermediary to not host the specific-subject matter on its platform. The phrases like “grossly harmful”, “harassing”, “blasphemous”, “hateful”, “racially”, “ethnically objectionable”, “invasive of another’s privacy”, “disparaging”, “harms minors in any way”, “grossly offensive”, “menacing” and “insulting any other nation” are regarded as unlawful. Although many of these terms directly find their source from Art 19(2) to restrict free speech, such a broad category of content described using terms such as “grossly harmful”, “harassing” and “blasphemous” could have an adverse outcome on the free speech with the intermediaries being forced to remove even lawful and meaningful content. The Supreme Court had struck down Section 66A of the IT Act in Shreya Singhal judgement which contained terms such as “grossly harmful” and “harassing” but such terms still find a place in the Draft Rules. Ironically, the Committee on Subordinate Legislation in 2013 stated in its report the need to ‘define’ these terms within the rules and to ensure that no new category of ‘offences’ is created without defining them. This rule in the present form will have a drastic chilling effect on the freedom of expression of the citizens. It is next used in Rule 3(8) where the intermediary is under obligation to remove content relating to ‘unlawful’ acts relatable to Article 19(2). The rule states that the intermediary shall remove or disable access to the unlawful content within the limit of Art 19(2) within 24 hours on receiving actual knowledge (as laid down in Shreya Singhal) in the form of a court order or being notified by an appropriate government or its agency. This new rule reduces the time period from 30 days to 1 day which will give unfettered power to the executive to remove even lawful content. Ideally speaking, the proposed rules should differentiate between content and have different time periods for different content giving utmost priority in matters related to “sovereignty and integrity of nation”, “security of the state” and “public order”. This new rule also requires the intermediary to preserve information relating to such takedowns for a period of at least 180 days from the earlier 90 days. This period can be further extended if required by a court or authorized agencies. The tension arises as the rule does not describe clearly who “lawfully authorized” agencies are and fails to address the procedural safeguards for extending the time period for retention of information. Moreover, Sec 67C and Sec 69A of the IT Act also deal comprehensively with the preservation and retention of information by intermediaries and blocking of information respectively. The third use of ‘unlawful’ is in Rule 3(9) under which it is the duty of the intermediary to apply automated technology or appropriate mechanism to remove ‘unlawful’ information or content. This is a most absurd rule which will put enormous power in the hands of ‘private’ intermediaries to restrict the free speech of the citizen on the recommendation of some automated machine which is not capable of understanding the nuances of human communication such as sarcasm and irony. As these entities are not state within part III of the Constitution, they are under no legal obligation to respect or protect fundamental rights. Additionally this will further disturb the established principles of natural justice, including the rights to notice and to a hearing. By delegating such power to a private actor, the state is avoiding its responsibility which is against constitutional principles. Every form of speech has some ‘text and context’ within which it should be understood and judged which can never be replaced by a human mind. Further, every nation has its own cultural and social differences from others and a machine is not capable of understanding such deeper nuances of society. This will result in content takedown and censorship of legitimate users which includes journalists, human right activists and civil society members. Conclusion The Shreya Singhal judgement defined the ‘contours’ of free speech which comprises three elements namely; discussion, advocacy and incitement. The former two are constitutionally protected and are regarded as the bulwark of liberty but the latter being the one which promotes violence must be restricted by the ‘state’ in the public interest. This judgement was a landmark moment in India’s free speech jurisprudence and any policy or guidelines should be made in keeping the constitutional and international human rights principles at the forefront. - Indra Kumar Lahoti
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