25 March 2015

The Challenges to the Constitutionality of Various IT Law Provisions

    This post focusses on what the judgment could mean for intermediaries. Personally though, my fav parts are Para. 40 which reiterates the limits of various free speech restraints, and the fabulously-crafted Paras. 14 to 19 which point out that free speech in the US is not absolute and, in effect, say: 'By all means, consider the First Amendment to the US Constitution when you talk of FoE in India but don't go gaga about it.' 

On March 24, 2015, the Supreme Court issued a judgment relating to batch of writ petitions which challenged the constitutionality of Section 66A of the Information Technology Act, along with that of Sections 69A and 79 of the same statute and their subordinate legislation, as well as of Section 118 of the Kerala Police Act. Section 66A of the Information Technology Act was held to be unconstitutional for substantive reasons as was Section 118 of the Kerala Police Act (which criminalised the causing of ‘annoyance to any person in an indecent manner’) for analogous reasons. Section 69A of the Information Technology Act and the Rules under it were upheld as being constitutional as were the provisions of and under Section 79 of the Information Technology Act albeit, in the latter case, with caveats.

Section 66A of the Information Technology Act which was passed as part of a larger amendment apparently in quick response to terrorism in 2009 (as Ajit Balakrishnan has narrated in his book The Wave Rider) has been removed from the body of laws in force, and is no longer particularly interesting (except to those persons who are already being prosecuted under it). In explaining why the Section failed the tests required of a law to be constitutional, Nariman, J writing the judgment on behalf of himself and Chelameswar, J, inter alia examined the Section against Article 19(2) of the Constitution of India which lists those grounds upon which a law may legitimately restrain the right to freedom of speech and expression granted unto citizens of India in Article 19(1)(a) of the Constitution. In doing so, he not only made a series of statements strongly in support of free speech but, critically, also seems to have recognised that the free speech right includes the right to receive information: ‘It is clear,’ the judgment says, ‘that the right of the people to know – the market place of ideas – which the internet provides to persons of all kinds is what attracts Section 66A.’

Section 69A of the Information Technology Act which made its way into the limelight on account of a history of the questionable blocking of online content was found to be constitutional, as were the Rules under it. In essence, the Section empowers the Central Government (or any of its authorised officers) to direct, in writing, any Government agency or intermediary to block (or have blocked) public access to any online information upon being satisfied that it is ‘necessary or expedient so to do 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 relating to above’ and provided the Rules related to blocking are followed. The provisions do not have as many safeguards as comparable provisions in conventional laws such as the Code of Criminal Procedure, as the Supreme Court recognised. However, the Court held that the lack of additional safeguards would not make the provisions constitutionally infirm. Given the history of the rather opaque use of blocking laws that they remain in force is not especially comforting although the ruling of their constitutionality appears to be sound.

It is in regard to intermediary liability that the Supreme Court has effectively modified the law. The concerns relating to intermediary liability were encapsulated in challenges to Section 79 of the Information Technology Act and to Rules 3(2) and (4) of the 2011 Intermediary Guidelines; in broad strokes, the requirement under these provisions that intermediaries take down prohibited user-generated content (as defined in Rule 3(2) of the Intermediary Guidelines) upon receiving actual knowledge of their upload was narrowed to require intermediaries only to take down content ‘upon receiving actual knowledge from a court order’. In effect, this means that the ‘actual knowledge’ contemplated by Rule 3(4) if the Intermediary Guidelines must be from a court order (per Para. 118 of the judgment) as must the ‘actual knowledge’ contemplated by Section 79(3)(b) of the Information Technology Act. Other parts of the statutory provision, however, remain unchanged, and Section 79 of the Information Technology has been held to be valid ‘subject to Section 79(3)(b) being read down to mean that an intermediary upon receiving actual knowledge from a court order or on being notified by the appropriate government or its agency that unlawful acts relatable to Article 19(2) are going to be committed then fails to expeditiously remove or disable access to such material’ would cause the intermediary to lose the benefit of the safe harbour contained in Section 79(1) of the Information Technology Act.

What this means is that intermediaries are under far less pressure than prior to the issue of the judgment to take down specific content upon having the receipt of a complaint stating impugned content is prohibited in terms of Rule 3(2) of the 2011 Intermediary Guidelines or is being used to commit an unlawful act, as the case may be. The responsibility to take down content was especially onerous not simply because prohibited content has been defined in extremely broad terms in the Intermediary Guidelines but also because the burden of determining the legality of content (under both Section 79(3)(b) and the Intermediary Guidelines) was effectively placed on the intermediary – although an intermediary has only ever been under an obligation to remove illegal content (as opposed to content which an arbitrary person imagines is prohibited), having to make their own determinations in this regard seems to have led intermediaries to often play it safe and remove all content in regard to which a complaint had been filed.

While the reading down of the provisions relating to intermediary liability certainly help intermediaries, they do not, by any means, offer them a ‘free pass’. To analyse the implications of the reading down, it may be worth categorising intermediaries as (1) content aggregators and search engine service providers, (2) as SocMed intermediaries, and (3) as eTail intermediaries, with eTail intermediaries being further divided into mere platform providers and those which take a more active role in sales such as by delivering products.

The implications for content aggregators, search engines and the like seem clear enough: if there is a court order or notification from the government or its agency, take down the impugned content. In the case of SocMed intermediaries, the reading down appears to be tremendously helpful in terms of facilitating their support of their users’ right to free speech. Unfortunately, what it also means, for now, is that individual users who are targeted with, say, trolling or other abuse may have to rely on the internal policies of the intermediary upon whose platform they have been targeted for the removal of content which abuses them unless they have the inclination and resources to obtain a court order to have content removed. (The Supreme Court did, however, note, whilst weighing whether or not Section 66A of the Information Technology Act was constitutional and repelling an 'equality before law' Article 14 challenge, that there are intelligible differentia between print and online media, which means that, although there is no such law currently in place, there is room for sui generis regulation to be framed which could compel SocMed intermediaries to address online abuse targeted at the individual without necessary recourse to the courts.)

In the case of eTailers, an intermediary would be able to avail of the safe harbour contemplated in Section 79 of the Information Technology Act if it only provided access ‘to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted’ and did not, sacrificing some nuance, initiate, curate or edit the transmission. What this presumably means is that although an intermediary may not be obliged to take down a listing of a product (which is infringing or counterfeit) without a court order or notification from the government or its agency (per the reading down of Section 79(3)(b) of the Information Technology Act), should an intermediary recommend to a user a product in respect of which a mere complaint by a rights owner had been made, it could conceivably fall foul of Section 79(2) of the Information Technology Act read with Section 79(3)(a) which prohibits intermediaries from conspiring, aiding, abetting or inducing the commission of an unlawful act, and lose benefit of the safe harbour. So, although an intermediary may not be required to take down a product listing upon the receipt of a rights owner complaint in relation to it, it may be prudent for it not to recommend that specific listing to its users whether through a panel displaying ‘Recommended Products’ at the bottom of pages displaying other product listings, via curated eMails or otherwise.

The judgment of the Supreme Court is definitely strongly in support of free speech. However, it appears to have a very specific kind of free speech in mind: discussion by individuals. The thrust of the judgment is not to enhance the free speech right, if indeed it can be called that, of corporate intermediaries to conduct trade. And although it cannot be faulted on that ground, intermediaries would do well to realise that the ultimate intended beneficiaries of the judgment appear to be individuals exercising their right to free speech and engaging in a culture of discussion, and not so much intermediaries in and of themselves.



The legal provisions relating to intermediary liability in/under the Information Technology Act are:
Information Technology Act, Section 79. Exemption from liability of intermediary in certain cases:
(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.
(2) The provisions of sub-section (1) shall apply if—
    (a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or
    (b) the intermediary does not—
      (i) initiate the transmission,
      (ii) select the receiver of the transmission, and
      (iii) select or modify the information contained in the transmission;
    (c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.
(3) The provisions of sub-section (1) shall not apply if—
    (a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act;
    (b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.
Explanation.—For the purposes of this section, the expression “third party information” means any information dealt with by an intermediary in his capacity as an intermediary.]

2011 Intermediary Guidelines, Rule 3: Due diligence to be observed by intermediary.
The intermediary shall observe following due diligence while discharging his duties, namely:—
(2) Such rules and regulations, terms and conditions or user agreement shall inform the users of computer resource not to host, display, upload, modify, publish, transmit, update or share any information that—
    (a) belongs to another person and to which the user does not have any right to;
    (b) is grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, paedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever;
    (c) harm minors in any way;
    (d) infringes any patent, trademark, copyright or other proprietary rights;
    (e) violates any law for the time being in force;
    (f) deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;
    (g) impersonate another person;
    (h) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource;
    (i) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation.
(4) The intermediary, on whose computer system the information is stored or hosted or published, upon obtaining knowledge by itself or been brought to actual knowledge by an affected person in writing or through e-mail signed with electronic signature about any such information as mentioned in subrule (2) above, shall act within thirty-six hours and where applicable, work with user or owner of such information to disable such information that is in contravention of sub-rule (2). Further the intermediary shall preserve such information and associated records for at least ninety days for investigation purposes.

Clarification:
Per a clarification to the Rules issued on March 18, 2013, “The Indian intermediaries have implemented these Rules. However some Industry Associations have requested for a clarification on the words “…..shall act within thirty-six hours…” as mentioned in sub-rule (4) of Rule 3. It is clarified that the intended meaning of the said words is that the intermediary shall respond or acknowledge to the complainant within thirty six hours of receiving the complaint/grievances about any such information as mentioned in sub-rule (2) of Rule 3 and initiate appropriate action as per law”
(This post is by Nandita Saikia and was first published at Indian Copyright.)

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