(Report by Divya Srinivasan and Manish)
The Centre for Communication Governance at National Law University Delhi in association with the Global Network Initiative, Washington D.C., organised a panel discussion on Intermediary Liability & Freedom of Expression at the India International Centre Annexe, New Delhi on 26 March, 2014. The panel consisted of three experts: Shyam Divan, Senior Advocate, Supreme Court of India; Siddharth Varadarajan, Journalist and Senior Fellow, Centre for Public Affairs and Critical Theory, New Delhi; and Jermyn Brooks,Independent Chair, Global Network Initiative, Washington D.C.
The objective of the panel was to focus on the Indian legal framework governing Internet platforms, and explore questions related to the liability of Internet intermediaries for online speech and the balance that should be involved in regulations affecting user-generated content, in the context of the civil liberties, key to democracy, in particular free speech and privacy. The discussion was aimed at drawing connections between this ostensibly Internet-related issue and the traditional media, to highlight recurring issues and useful perspectives.
The Vice-Chancellor of National Law University Delhi, Professor Ranbir Singh, delivered the opening remarks, beginning with a brief introduction to the University and its commitment to research in this field. He then laid out the context of the discussion which was framed in anticipation of the Supreme Court of India taking a decision about online intermediary liability in the near future. This decision will have significant consequences for the rights of Indian citizens to freedom of expression and their right to receive information through the Internet. He provided an overview of the ongoing petitions before the Supreme Court, particularly those filed by MouthShut.com, Rajeev Chandrasekhar and People’s Union for Civil Liberties, challenging the Information Technology (Intermediaries Guidelines) Rules 2011, and the Procedure and Safeguards for Blocking for Access of Information by the Public Rules 2009, as being ultra vires both the Constitution as well as the Information Technology Act, 2000 itself.
Professor Singh explained the safe harbour framework for intermediaries in Section 79 of the Information Technology Act, which recognises that while intermediaries need protection from any obligation to actively monitor content, their co-operation is also necessary for the removal of illegal content. He outlined the ‘due diligence’ obligations of intermediaries that the safe harbour protection is subject to, the ambiguity surrounding what is meant by ‘due diligence’, and highlighted the problems caused by the 2011 Rules. Instead of clarifying what is meant by ‘due diligence’, the Rules create a notice and takedown system, forcing intermediaries to be excessively cautious such that they prefer removing content to challenging a takedown notice [See Pritika Rai Advani’s ‘Intermediary Liability in India’ for a detailed discussion on the notice and takedown procedure]. Professor Singh concluded by emphasising the disastrous consequences this would have for free speech and the critical role of the Supreme Court in protecting this crucial fundamental right.
Mr. Shyam Divan provided an overview of the constitutional scheme governing freedom of expression in India, and the exhaustive list of grounds mentioned in Article 19(2) under which Parliament can impose reasonable restrictions on the freedom of speech and expression. He listed the four options available to the Supreme Court while adjudicating the cases that Professor Ranbir Singh had discussed: (i) striking down the entire law as unconstitutional; (ii) giving time to the Government to amend the provision to bring it in line with the Constitution; (iii) striking down only the offending provision in the law, and not the whole statute; (iv) dismissing the petition if the law was found to be valid. He mentioned that in the present litigation, the Rules would have to survive two challenges: firstly, that of validity under the Information Technology Act, (i.e.) the Rules were consistent with and within the scope of the Act; and secondly, that of validity under Articles 19(1) (a) and 14 of the Constitution.
Mr. Divan then discussed the constitutional infirmities in the 2011 Rules in detail. He pointed out the absence of legal certainty and the use of language, such as “grossly harmful, harassing or otherwise unlawful in any other manner” which has resulted in a vague law. He also made reference to a Parliamentary committee report which made similar observations regarding the vagueness of the Rules and recommended that these terms be defined. Moreover, the Rules seek to regulate speech on grounds that are far beyond the scope of the restrictions contemplated by Article 19(2) of the Constitution, such as speech that “deceives the addressee”or “impersonates another person”. Mr. Divan also pointed out that the excessively short time frame of 36 hours for taking down content results in an indirect form of censorship by the intermediaries themselves, who will opt for the easy way out, and take down the content in almost all cases. He concluded by suggesting that despite the Supreme Court’s largely satisfactory record at protecting freedom of speech, this problem is unlikely to attain final resolution with a judgment by the Supreme Court as the issue of intermediary liability is one of transnational importance, necessitating the development of an international convention or protocol dealing with issues of intermediary liability.
Mr. Siddharth Varadarajan drew upon his experience as a journalist and editor of a newspaper and a website, highlighting the paradox in India when it comes to the Executive’s approach in treating different forms of the media in different ways. He pointed out that the same police authorities, who on more than one occasion had failed to take any action against people making hate speeches in front of crowds and inciting violence, have become excessively sensitive with regard to online speech and are arresting people for merely “liking” comments made on Facebook. He also raised concerns about increasing threats to freedom of expression in India, alluding to Penguin’s decision to pulp Wendy Doniger’s book in the face of protests from fringe groups.
Mr. Varadarajan argued that speech on the Internet is inexplicably being held to a higher standard in India than speech in conventional media, and that in framing the 2011 Rules, India has moved away from international best practices. He observed that these Rules placed a lot of pressure on intermediaries, and in a situation where even Penguin, which despite being the largest publishing house in the country, did not contest a case even in the lower Court, one could not expect intermediaries to stick their necks out to protect free speech. He expressed hope that the Supreme Court will strike down the Rules as unconstitutional, suggesting that if the restrictions on Internet speech are allowed to stand, there is every danger of them being extended to speech in the traditional media as well.
Mr. Jermyn Brooks wrapped up the panel by providing an overview of Global Network Initiative’s activities and explaining the challenges in law reform relating to free expression on the Internet, given the lag between technology and the law. He opined that the 2011 Rules are not just constitutionally unsustainable in India, but also fall foul of international standards. He also pointed out that the Rules are affecting the emancipating, wealth-creating nature of the Internet and emphasised the need to focus on the adverse economic impacts of having these restrictions in place. He suggested that this could be used as a means to convince politicians to reform the law, but acknowledged that in India, since one did not expect politicians to grapple with reforms in the law on intermediary liability, the only remedy lay in challenging the validity of the Rules in Court.
The panel was followed by an open discussion where the panellists responded to queries from the audience and members of the audience who were experts in the field offered their comments on the panel discussion.