In an enlightened judgment that pushes the frontiers of laws envisaged for the regulation of the Internet, the Supreme Court has quashed the controversial Section 66A of the Information Technology Act (amended in 2009) and Section 118(d) of the Kerala Police Act. Section 66A has been repeatedly invoked to staunch dissent and even the mildest criticism of political figures in the country. The section penalised anyone who used the Internet to send messages that were “grossly offensive” and “menacing”, and the scope of the provisions clearly violated constitutional guarantees of freedom of speech. The Supreme Court judgment, delivered by Justices Rohinton Nariman and J. Chelameswar, called the section, “vague” and having a “chilling effect on free speech” guaranteed under Article 19(1)(a) of the Constitution and that could not be read under the reasonable restrictions offered by Article 19(2). By striking down Section 66A (and Section 118(d) of the Kerala Police Act on the same grounds), the Supreme Court corrects a major anomaly in the IT Act framed to govern the Internet in the country.
That said, the judgment has upheld the constitutionality of Section 69A that defines the rules and procedure for the government to block websites based on a set of legislatively provided grounds. While the blocking rules are comprehensive, the lack of transparency in the execution of blocking (Rule 16 states that “strict confidentiality shall be maintained regarding all the requests and complaints received and actions taken thereof”) is a cause of concern. Also, government officers have used Section 69A as a sledgehammer to block entire websites for offending content, instead of the specific URLs. However, the Court did the right thing in reading down Section 79(3)(b) pertaining to intermediary liability by ruling that intermediaries such as Google or Facebook would not be liable for illegal content on their websites unless they failed to comply with a court order asking for takedowns of such content. This should lessen the burden on intermediaries to decide immediately on every request for takedowns of controversial content on their websites. It could have taken this further by striking down provisions such as Rule 3(2)(b) of the Intermediary Guidelines framed under Section 79, which demands that the intermediaries regulate content on grounds that are as vague and subjective (including terms such as “grossly harmful”, “harassing” and “blasphemous”) as is the case with Section 66A. Still, there is no denying that this judgment is a major victory for activists and netizens in the country who have fought long and hard to overturn the draconian provisions of the IT Act. The judgment strengthens democratic freedoms as a whole, especially since the Internet today in India has become a virtual public sphere and a lively arena of discussion and debate.
Courtesy – The Hindu