We will shortly be uploading the transcripts in the matters of ); Peoples Union for Civil Liberties v. U.O.I. & Ors., W.P. (Crl.) No. 199/2013 and Anoop M.K. v. U.O.I. & Ors., W.P. (Crl.) No. 196/2014
Date: 10th December 2014
Internet and Mobile Association of India & Anr. v. U.O.I. & Anr., W.P. (C) No. 758/2014
Section(s) Challenged: S. 79(3) and the Information Technology (Intermediaries guidelines) Rules, 2011
Arguing Counsel: Mr. K.K. Venugopal
Mr. K.K. Venugopal restricted his arguments to Section 79 of the IT Act and to Rule 3 of the IT (Intermediaries Guidelines) Rules, 2011 (IT Rules).
Mr. Venugopal emphasized that an intermediary is defined in Section 2 of the IT Act which was amended in 2009. According to him it subsumes of every aspect of Internet Service Providers (ISPs). He clarified to the Bench that he was appearing on behalf of the Internet & Mobile Association of India.
Mr. Venugopal argued that the intermediaries provide a platform on which anyone can upload data like their views, messages, advertisements, etc. He contended that the intermediaries are passive actors as they don’t know as to what is the content and they also do not initiate the content.
Mr. Venugopal argued that approximately 3 lacs messages and 100 hours of video are uploaded every minute and it is not possible for the intermediaries to monitor each and every thing therefore, some sort of protection should be there for the intermediaries. He contended that Article 19(1)(a) of the Constitution is involved here.
Mr. Venugopal submitted that Section 69-A of the IT Act expressly provides for intervention as per Article 19(2) of the Constitution. Thereafter he, read out Section 79 of the IT Act.
To all these arguments Justice Chelameswar responded that if the violative content is brought to the notice of the intermediary or ISP then it can be filtered.
Thereafter, Mr. Venugopal further contended that everyone who is concerned with internet is covered by Section 79. He also contended that the aricle ‘the’ before ‘unlawful act’ could not have been used in the language of Section 79(3)(a) without defining what such unlawful act includes, anywhere before. He had the same issues with Section 79(3)(b).
To this Justice Chelameswar inquired as to what is meant by ‘actual knowledge’ used in Section 79(3)(b)?
Mr. Venugopal replied that actual knowledge meant that if someone communicated to the intermediary about the violative content. He further explained by way of an example that if someone complains that he was defamed by the violative message then actual knowledge would be if the intermediary is informed about this.
To this, Justice Bobde raised the point that is Section 500 of the IPC a defence to this?
Mr. Venugopal further contended that the immunity provided under Section 79(1) is subject to Section 79(3). He claimed Section 79(1) to be highly important for the functioning of the internet and submitted that the intermediaries have immunity under Section 79 and without this immunity the internet would collapse as it is too vast. He also submitted that the platform being provided by the intermediaries could be anything including the internet. Therefore, he contended that any restriction on such immunity as imposed under Section 79(2) or Section 79(3) must be in conformity with Article 19(2) of the Constitution.
To this, Justice Chelameswar inquired that did the intermediaries have no control over the information being uploaded on the platform provided by them.
Mr. Venugopal replied saying that in the newspapers there is an editorial function.
Justice Chelameswar interrupted saying that the intermediaries no doubt have the fundamental right to carry on business but would carrying on such business constitute freedom of speech on the part of intermediaries.
Justice Bobde further added by way of an example that in the case of a telephone exchange the intermediary that is to say the exchange is neither the speaker nor the listener. So, when the intermediary does not express anything by itself then how can it constitute freedom of speech under Article 19(1)(a) on the part of the intermediary. He asked Mr. Venugopal that does the intermediary express anything when it is not the owner of the property which is available on its platform, it cannot alter it, it cannot damage it, etc.
Mr. Venugopal expressing his concern said that Section 79(3) itself says that the intermediary has control therefore, if the Government tells the intermediary to remove some content then it has remove it.
Justice Bobde said that the intermediary can withhold access in such a case. He further held that when the intermediary is only giving access to others being a mere facilitator it is not by itself expressing anything and therefore, there is no question of Article19(1)(a) being available to the intermediary in this case.
Mr. Venugopal argued that the latter part of Section 79 provides for taking down of information by the intermediary on being put to notice by the Government. He also discussed Section 69-A which provides for blocking of content. He submitted that if the entire page is to be blocked on account of a violative message then such restriction has to be in conformity with Article 19(2). He contended that the impact of blocking under Section 69-A and of taking down content under Section 79 is the same and therefore, the rights of the ISPs are also similar. He also pointed out that the rights of the ISPs suffered in blocking under Section 69-A but it is not so in the case of Section 79.
Mr. Venugopal contended that a very wide power has been given to the State under Section 79 and the ISPs only provide a platform for the users to interact.
Justice Bobde again reiterated that the ISPs have a fundamental right to do business but do not have the right to freedom of speech under Article 19(1)(a) because as an ISP they are not expressing anything.
Justice Chelameswar added to this giving an example that say a man provides microphone, loudspeakers, etc. for a public meeting. Now here such person is only providing an equipment and not expressing anything himself.
Mr. Venugopal clarified that in the case of a person providing microphone, loudspeakers, etc. he himself is not retaining any part of the speech made by someone else. However, in the case of ISPs they can retain the speech that has been expressed on the platform provided by them.
On this, Justice Chelameswar inquired if the ISPs also retained the property in the content uploaded on their platform.
Mr. Venugopal replied saying that virtual platform is in the nature of something like the Tata Press Book but because an ISP retains the content it comes under its control. It can choose to take it down, block it or let it be as it is. He also said that though, the owner of such speech has expression but as the ISP is retaining such speech on its platform, distributing it among its subscribers, controlling it and can also destroy it therefore, controlling such speech becomes part of free speech of an ISP under Article 19(1)(a).
Justice Bobde replied to this saying holding that such content is definitely speech however, it is not the expression of the ISP. He explained with help of an example saying that if a radio station is started and an interview is broadcasted on it then the radio station has merely distributed it to its listeners and the radio station is neither the person who interviewed nor the person who was interviewed.
Mr. Venugopal responded saying that the ISPs are facilitators. They have control over speech which is hosted on their platform. Through the internet they disseminate information. They need not know what the content of such speech or information is. They also do not need to hold property in such content. Despite all this, it constitutes speech of the ISPs because they are disseminating it.
Justice Bobde clarified to this submission saying that disseminating the content is the occupation of an ISP and not its speech.
Mr. Venugopal responded and said that disseminating speech of others constitutes speech of the ISP. In support of this submission he contended that the ISPs or the intermediaries are conduits and they deal with speech.
To this, Justice Bobde said that ISPs or intermediaries do business with speech but they do not as such have speech.
Justice Chelameswar referred to the judgment in the case of Sakal Newspapers.
Mr. Venugopal contended that the Court struck down an attempt to curve newspapers. He also referred to a judgment having the citation (1995) 5 SCC 139. He specifically referred to Paragraphs 9, 19, 22 (especially the latter part of Paragraph 22) and 27. He contended that advertisements are the life blood of free media as they generate most of the revenue for the newspapers and most of the costs are paid from them. In support he also contended that Article 19(1)(a) applies to publication in a telephone directory.
Mr. Venugopal conceded that though there was no question of speech being expressed by newspapers in the case of Sakal Papers but a bar on limiting the number of advertisements that could be published in a newspaper clearly attracted Article 19 (1)(a) and violated it.
Mr. Venugopal also referred to the judgment by Justice A. P. Sen in the case of Bennett Coleman.
Justice Bobde said that in such a speech as we are concerned with in the present case there are 4 people involved. First is the speaker, second is the recorder (this might be the speaker also), third is the reproducer and the fourth is the listener. He said in newspapers there are news items which also contain views of the editor himself. Therefore, the newspaper itself speaks as the reporting also is done by the reporter himself. He also said that the advertisements are the words of the seller therefore, a question arises as to whose speech is actually involved.
Thereafter, the Court rose for lunch at 1:00 p.m.
After lunch, Mr. Venugopal resumed his arguments and contended that Section 69-A of the IT Act deals with intermediaries. He said both Section 69-A and Section 79 would deal with the same topic. Section 69-A requires blocking and Section 79 require taking down. He contended that in Section 69-A and Section 79(3)(b) the word used is ‘information’. He further submitted that the right under Section 69-A has to be in consonance with Article 19(2) of the Constitution.
Justice Chelameswar sought a clarification on Section 79(3)(b) regarding as to what was meant by ‘without vitiating the evidence’.
To this, Mr. Venugopal responded saying that the violative material must be preserved but should be made inaccessible to the public.
Mr. Venugopal contended that upon being notified by the Government that a particular information available on the ISP’s platform is violative, the ISP has to take that information down and the Government is also not required to give any reasons for such take down notice. To this, Mr. Venugopal expressed his apprehension that what if such violative content is a criticism of the Government in power and its policies. He contended that there might be a subjective opinion of the Government to this.
To this, Justice Chelameswar clarified saying that Section 79 is not creating any offence. It is only giving immunity to the ISP.
Mr. Venugopal contended that development is essential for a Democracy and the internet aids such development. Internet is essential as a public utility for the benefit of the public and its use is enormous.
Mr. Venugopal emphasised that an intermediary does not initiate the content and it is not in his knowledge therefore, he cannot monitor or control it from being uploaded. He pointed out that the ISP is an innocent party and is a passive actor.
Justice Chelameswar said that prosecution does not follow from Section 79.
Mr. Venugopal heavily stressed on the point that Section 79(1) is an essential pre-requisite of internet service. So far as Section 79(2) and Section 79(3) are concerned the restriction embodied in them must be relatable to Article 19(2). Also, the fetters under Section 69-A must be traceable to Article 19(2). He stressed that Section 79(1) could be a standalone provision. However, restrictions could be there as to the content. He contended that freedom of speech can be curbed only for reasons as provided in Article 19(2).
Mr. Venugopal argued that an ISP is extremely vulnerable and is highly likely to be prosecuted each time a complaint is made. He pointed out that there is unlimited area for take down. He also pointed to the fact that there exist no means for testing whether the purported act is unlawful or not. He argued that the word “unlawful” is not capable of a particular meaning in this case. Also, what is unlawful has not been defined in the Act.
Mr. Venugopal next contended that everyone is entitled to object to the content posted on the platform provided by the ISP. So, on a mere complaint of someone that an ISP being put on notice to take down unlawful content has not done so expeditiously, the ISP now should go to the Court, engage a Counsel, bear the expenses and the agony of waiting. He raised a question that can free speech be restricted based on the ipse dixit of an interested party? He suggested that instead of this any retired High Court judge can be appointed to expeditiously examines the written representation made by an aggrieved party.
To this, Justice Chelameswar pointed out that a provision of this sort already existed in the IT Act that is to say Section 50 which provides for a Cyber Appellate Tribunal headed by a Judge of a High Court, a retired Judge of a High Court or qualified to be a Judge of a High Court.
On this point Mr. Venugopal added that Sections 48 and 57 of the IT Act also might be of some relevance.
Mr. Venugopal next argued that a high arbitrary power had been given to the Government under Section 79. He said that a political party in power governs the country and decides policies. Therefore, it will ensure that its policies are not subjected to criticism and all such content would thus, be controlled by the Government. The innocent ISP would have to go and defend himself in a Court of law and the greatest punishment is to face a criminal trial and the repeated adjournments therein.
To this, Justice Chelameswar replied saying that no one in this country actually bothers about a criminal case.
Mr. Venugopal cited the judgment in Pepsi case bearing the citation (1998) 5 SCC 749 on hardships faced in trials. However, he couldn’t find the relevant paragraph in it wherein this aspect was expressly talked about.
Mr. Venugopal thereafter, argued on the IT Rules. He took strong objection to Rule 3(2)(b), Rule 3(3), Rule 3(4) and Rule 3(7).
At this juncture Justice Bobde asked Mr. Venugopal to give examples of intermediaries.
In response Mr. Venugopal handed over copies of a bound volume of types of online intermediaries to the Bench as well as to the opponent and named a few like Facebook, Twitter, Google, Flipkart and Yahoo.
Thereafter, Justice Bobde asked that are these intermediaries being harassed?
To which, Mr. Venugopal replied in the affirmative saying that they are regularly being called to the police stations.
Mr. Venugopal handed over copies of a report prepared by Google titled Google Transparency Report India which accounts for the take down requests received by Google and its sister concerns during the period between January 2013 and June 2013. As per this report there were 25 take down requests received from the police out of which 4 were received by Youtube, 3 by Google Images and 1 by Google +. 5 requests were received under the head ‘Reasons Unspecified’. No reasons whatsoever have been given by the Government or the police for these requests. He contended that the grand total of the take down request in India for each quarter only for Google and its sister entities would be approximately 500.
To this Justice Chelameswar responded that going by this figure also out of billions of streams only 500 or even say 1000 have been found to be objectionable.
Mr. Venugopal highlighted the issue of the debilitating effect of prosecution on the ISPs.
To this Justice Chelameswar said that Section 79 only says that the objectionable content should be removed upon receiving information.
Mr. Venugopal further contended that as per the transparency report by Google for the period between January 2013 and June 2013 the take down requests for content being defamatory were approximately 200. Similarly, for hate speech they were 157 and all these were received by Youtube. Likewise, for the content constituting religious offences the number was 160 out of which 146 requests were received by Youtube.
Justice Chelameswar responded back saying that immediately after receiving the take down request the ISP does not face prosecution. He has the option of removing it before prosecution.
Mr. Venugopal cited an incident where there was an alleged offensive content wherein it was expressed that the Quran is responsible for promoting hatred between different religions. A lady Judge who was on the verge of retirement issued take down notice because of which violence broke out in Srinagar in which 1 person lost his life. The Division Bench called for the file and set aside the take down notice. Mr. Venugopal pointed out that there was a lot of grey area in Section 79 and there is no adjudicatory body to look into these cases. He emphasised that reasons have to be stated for the take down notice. There should be an adjudicatory body which can initially order ex-parte temporary taking down of the content and thereafter can look into the matter to decide if the claim by the aggrieved party claiming the content to be offensive is false or true. He further contended that there has to be some application of mind while issuing notice of taking down as there is a huge extent available for abuse of this power under Section 79. He stressed that the internet is doing a great service. He said that the number of prosecutions does not matter that is to say even if the ISP is liable to be prosecuted and not actually being prosecuted still it has a chilling effect on free speech. To this extent the latter part of Section 79 violates Article 19(1)(g) of the Constitution. On this point he stressed that the matter is prejudged, take down notice is issued, no reasons are stated and there is no application of judicial mind. He expressed concern over the fact that the ISP or the intermediary upon receiving the take down notice cannot even give notice to the owner of the content being asked to be taken down. Hence, such owner is totally excepted.
Mr. Venugopal vehemently argued that Section 79(1) is an integral law. However, Section 79(3)(b) is violative of Article 19(1)(g) and Article 19(1)(a) and it is arbitrary and also violates Article 14 of the Constitution.
Justice Chelameswar was in agreement with the submission of Mr. Venugopal that the absence of a neutral adjudicatory body is a concern which must be addressed.
Mr. Venugopal said that how can someone summarily apply his mind and issue a take down notice.
With respect to Section 79(3)(b) Mr. Venugopal raised a question as to what is meant by actual knowledge. He said that actual knowledge is basically the information that a particular message is contributing in the commission of an unlawful act. He said that the ISP gets a letter saying that a particular message is unlawful and not that the Government has knowledge that it is unlawful. He stressed that no investigation is done and once such a letter is received the ISP is constrained to take the content off its platform. He argued that the owner of such content must be informed and be heard.
Mr. Venugopal again came back to the IT Rules. He again mentioned Rule 3(3) and Rule 3(4). Thereafter, he argued on Rule 3(2)(b) and said it is not mentioned in the rule as to to whom is the information harmful and to what extent? To whom is it harassing, how is it harassing and to what extent? He said the words mentioned in Rule 3(2)(b) are not legal terminologies. He contended with regard to the word blasphemous being mentioned in this rule as to what is blasphemous to one may not be so to another. Again, with respect to the word obscene used in this rule he contended that what is obscene to one person might not be so to another. He stressed that there has to be some safety valve for these ISPs.
Thereafter, the Bench rose for the day at 04:00 p.m. and the matter was listed for the next day i.e., 17th December 2014.
Mr. K.K. Venugopal at the outset he brought to the notice of the Bench that in the Taslima Nasrin matter i.e., WP (Cri.) 222 of 2013 closure report had been filed. As per the closure report the police did not even know as to what was there in the tweets of Taslima Nasrin. He submitted that despite this filing of the closure report the concerned Magistrate was disposing of the matter.
To this the Court directed the concerned Magistrate to dispose of the matter within 4 weeks from the date of the order i.e., 17th December 2014.
Mr. Venugopal thereafter, resumed his arguments in WP(C) 758 of 2014.
Mr. Venugopal responded to the question posed by the Bench on 16th December 2014 that does a conduit’s transmission of content of someone else constitute free speech of the conduit itself, by citing a full Bench decision of the Madras High Court in a case wherein Press Emergency Powers Act was challenged; the citation being AIR 1951 Mad. 70. He specifically referred to Paragraphs 4 and 10. He also cited another latest decision based on this judgment bearing the citation (2014) 9 SCC 485. He referred to Paragraph 36 on Page 505 of this judgment.
Thereafter, Mr. Venugopal discussed the scope of Section 79, IT Act. He contended that an intermediary communicates information and a receiver receives it. This process if seen as a whole constitutes a fundamental right of the intermediary to do this. He again pointed out that restrictions under Section 79 will have to be consistent with Article 19(2) of the Constitution.
Mr. Venugopal submitted that under Section 69-A, IT Act instead of blocking the whole page only the particular message should be blocked. He again expressed the concern over the fact that the Government will merely say that bring down a particular content and the ISP would be constrained to bring it down. He argued that if the ISP wanted immunity from being prosecuted then it had to comply with the Government’s order and take down the information on no reasons being given by the Government for doing so.
He again laid greater stress on his previous argument that Section 79(1) is in greater public interest. Without this provision no intermediary would dare to provide such a platform. An intermediary is an innocent party so far as content is concerned. Without the internet free communications of ideas and thought would not take place and the economy and the development of the country would collapse. He also argued that if freedom of speech existed without Section 79(1) then it would also exist with Section 79(1) being there.
Justice S.A. Bobde posed a question to Mr. Venugopal that what do the ISPs do in addition to transmitting the content? They merely transmit and that is all.
To this, Mr. Venugopal responded saying that the ISPs set up the infrastructure. Then, as per Rule 3 of the IT Rules they set out the terms and conditions. Then, these terms and conditions are informed to the users. Then, the users have to subscribe to these terms and conditions. Then, the users have to sign an online agreement by clicking on the tab which says ‘I Agree’.
To this, Justice Jasti Chelameswar on a lighter note responded saying that no-one actually reads these terms and conditions as they are quite lengthy and they simply click the tab which says ‘I Agree’.
Adding to this, Justice Bobde replied by saying that this is the technical aspect of how the ISP does it. He again posed the same question saying as to what is the contribution of the ISP to the content say a video hosted on its platform? He himself replied saying nothing. He further added that it may be delayed transmission but nevertheless it is still mere transmission only.
Mr. Venugopal clarified by responding that the ISP collects, stores and communicates the information. It is a fountain of knowledge. It is far more significant than newspapers, television, etc. It is a communicator of news, social events, etc. It plays a greater part than television, cinema, newspapers, etc.
Justice Bobde responded saying these attributes are of mechanical system and not of human being. He asked does the ISP choose what to communicate? He further said that ISP has a choice negative in character as to what to block.
Mr. Venugopal responded saying that the content automatically goes through, however, it is the ISP’s will to allow a subscriber to subscribe to its platform by imposing certain terms and conditions upon the subscriber and only after he agrees to these terms and conditions can the subscriber subscribe to the ISP’s platform. Mr. Venugopal further contended the ISP controls the entirety of the communication as it is thrown open to the public to object to such information which has been provided on the ISP’s platform. He tried to distinguish this system from the newspapers by saying that the newspapers may allow certain news items to be published in them and out of these the newspapers can delete some of the news items and latter issue a corrigendum and apology in the next day’s edition of the newspapers.
Mr. Venugopal argued that the IT Rules compelled the ISP to have a format of guidelines in the fashion as provided under Rule 3(1) and Rule 3(2). Mr. Venugopal in support said that to this extent the ISP can ensure that its subscriber complies with such rules.
Thereafter, Mr. Venugopal handed over copies of Google’s Terms of Service and Facebook’s Community Standards to the Bench as well as the other Counsels appearing in the batch of petitions.
Mr. Venugopal read out the Google’s Terms of Service to demonstrate that these Terms of Service are elaborate. Thereafter, he read out the Facebook’s Community Standards and contended that Facebook is a very important platform as it is a venue for social intercourse between friends, family, relatives, etc. He also handed over copies of Facebook’s Statement of Rights and Responsibilities to the Bench as well as the other appearing Counsels and read them out. On the basis of these documents he contended that there is a question of self restraint involved and it is practiced.
Mr. Venugopal contended that it was a far cry on the part of the Government to say that the ISP should take down whatever content the Government says that it should take down without giving reasons or else the ISP would lose its immunity as available to it under Section 79(1).
Mr. Venugopal contended that though there is no need for the Government to interfere but even assuming that there are areas where such interference is required then, it will have to be consistent with Article 19(2) of the Constitution otherwise no one will even be able to give adverse comments about the policies of the Government.
Thereafter, digressing from the main controversy the Bench and Mr. Venugopal discussed the system of internet and of blocking content in China and North Korea.
Mr. Tushar Mehta intervened and contended that the Government does not prohibit and Section 79 does not provide for restraining people from accessing information. In support of his submission he cited an example of OLX.Com and said that suppose a person picks up a profile photo of someone from her Whats App account or Facebook account and uploads it on OLX giving the caption “For Sale” and the husband of this lady brings this to the notice of the intermediary that is to say OLX.Com and OLX.Com does not take down such photo. Now in such a situation Section 79 says that if the husband of this lady initiates a criminal action then OLX.Com, the intermediary in this case shall not get the immunity provided under Section 79(1).
Mr. Mehta further contended that it is only after an aggrieved party initiates a legal action that the intermediary loses its immunity. However, the other defences of the intermediary are still available to it.
Mr. Mehta assured that the Government even remotely does not seek to restrain free speech by way of this provision and contended that Section 79 does not provide for any penal action.
Justice Bobde was in complete agreement with these submissions of Mr. Mehta.
Mr. Venugopal argued that Section 79(1) standalone has to be de-linked from freedom of speech. He contended that the Government controls as to what is done under freedom of speech.
Justice Bobde told Mr. Venugopal that what the latter part of Section 79 provides is that if there is some content on the ISP’s platform that any citizen or the Government finds objectionable and the Government issues a take down notice and if the ISP does not take it down then if a legal action is initiated by such aggrieved citizen or the Government, the defence available to the ISP under Section 79(1) shall no longer be available.
To this, Mr. Venugopal expressed helplessness and said that in such a case what does the ISP do as an intermediary with its user who is the owner of such alleged objectionable content.
To this Justice Bobde replied that this means that the ISP is only a bystander and does nothing.
Mr. Mehta reiterated by way of a recent example where a tweet was tweeted on Twitter which said that join the extremist group Islamic State of Iraq and Syria (ISIS). He said that in such a case the ISP may be sued as an abettor along with the owner of such tweet as the aggrieved party has its defences and similarly, the ISP as well as the owner of such tweet have their respective defences as well, its just that the immunity available under Section 79(1) to the ISP will be lost.
In agreement with the above Justice Bobde gave another example saying that A says on a social media platform that B is an illegitimate child. B takes strong objection to this as he claims that he is not an illegitimate child. B tells the ISP to take down this information. Now the ISP make take it down or may not take it down as it might agree or might not agree with A. Suppose the ISP does not take it down. Now B sues A and the ISP. In such a case the ISP shall lose the immunity and would not be entitled to claim that it is protected under Section 79(1). Whether it is B or the Government in this case it makes no difference.
Mr. Venugopal argued that if freedom of speech is involved in Section 69-A then it is also involved in Section 79. He contended that the amplitude of any restriction on Section 79(1) has to be traceable to Article 19(2) of the Constitution. He further argued that Section 79(1) is an embodiment of freedom of speech under Article 19(1) (a) and therefore, any restriction on Section 79(1) has to be traceable to Article 19(2).
To this Justice Bobde said that Section 79(1) is curtailed naturally that is to say legally. In support of this he said that some sections under the IPC curtail it and the tort of defamation curtails it.
In reply Mr. Venugopal argued that the IPC offences are traceable to freedom of speech and would be governed by Article 19(2).
Justice Bobde asked that are these not restrictions on Section 79(1)?
Mr. Venugopal responded saying that yes they are but they are permissible restrictions.
Justice Bobde asked Mr. Venugopal that did his argument mean that Section 79(2) raises the Bar and increases restrictions?
Mr. Venugopal replied saying that Section 79(2) provides for impermissible heads of restrictions. He contended that it provides for additional heads that are unlawful and what is unlawful is not known. He argued that there should be some method of judging that whether a particular message is objectionable or not. He argued that it cannot be that the Government while issuing the take down notice neither gives any reasons nor makes available any material.
To this, Justice Bobde said that a question arises as to balancing of individuals’ rights vis-à-vis the intermediaries’ rights. He further asked Mr. Venugopal that can an ISP throw up its hands and say that it has no responsibility as no material has been made available to it by the Government?
Mr. Venugopal contended that if any material is given then at least the ISP can consult its Counsel, give such material to its user who is the owner of the content and within two days revert back if the content is actually unlawful as claimed or not. He argued that the ISP should atleast have tools that is to say the material in order to adjudicate.
Justice Bobde asked Mr. Venugopal that as per him the ISP needs time to find out on the basis of the material. Who will give the ISP this material?
Mr. Mehta intervened and said that Rule 3(4) of the IT Rules gives such time frame and also provides as to what can be done by the intermediaries.
To this, Justice Bobde clarified to Mr. Mehta by way of an example that if a message is posted on the ISP’s platform about terrorist activities in a remote village then, how can the intermediary be expected to go there, investigate and bring the relevant material within 36 hours which is the time frame provided under Rule 3(4).
Justice Bobde also told Mr. Mehta that prima facie the intermediary must take responsibility and must know as to how to discharge that responsibility.
Thereafter, the Bench rose for lunch at 12:00 p.m.
After lunch, at 02:00 p.m. Mr. Venugopal referred to 3 reports which were filed in WP (C) 758 of 2014 to support his submissions in regard to actual knowledge and take down. He referred to the report submitted by the expert Committee appointed by UOI. He also relied on a report dated 8th June 2000 of the European Union on e-commerce to protect freedom of expression. He further referred to a report by the Lok Sabha Committee on Subordinate Legislation. This report also pointed out the ambiguity in Rule 3(2)(b) of the IT Rules to the extent that the grounds therein have not been defined anywhere in the IT Rules or in the IT Act.
Mr. Venugopal contended that enormous burden has been placed on the intermediaries as the basis of the take down notice is not given and therefore the intermediaries are not able to inform their users who are the owners of the content of such notice of take down.
Justice Bobde inquired that if it is known as to what all has been asked by the Government to be taken down but has not been taken down by the intermediaries and also what is such content which has been asked by the Government to be taken down but has not been taken down by the intermediaries.
To this, Mr. Mehta informed that the Government is in the process of compiling this information and he would place such material on record.
Thereafter, Justice Chelameswar pointed out that the immense speed and reach to media or online information has the ability to facilitate development as well as create nuisance. The standard of judging as what is objectionable and what is not, cannot be the same.
To this, Mr. Mehta contended that the Petitioners wanted free speech and the State was bound to protect it. He prayed that some guidelines maybe lay down by the Bench or if the Bench directs then the Government can also lay them down.
Justice Chelameswar clarified to Mr. Mehta that there can be dissent or criticism of the political activities or policies of the Government in power. Such criticism is allowed and citizens cannot be arrested because of criticizing the policies of the Government. He gave the examples of the Bombay and Calcutta arrests due to opinions expressed on social media. He also said that it would be better if the Government could lay down some statutory guidelines as they would bind everyone.
On this, Mr. Venugopal prayed that in these guidelines not only the ISPs or intermediaries but also the owners of the content who hold property in such content, must be protected. He also prayed that such owners should be given some quick response time within which they could respond to the take down notice issued by the Government.
Mr. Mehta raised the question as to what is annoying. Replying himself he gave an example saying that daily 5 mails are being received by lawyers from two lady litigants. This is irritating. But say someone starts receiving 500 mails or even 50 by someone else claiming that his wife is unchaste and that he saw her with someone else in a inappropriate position then, this will be what can be called annoying and it will surely have to be curbed by the State.
On this, Justice Chelameswar clarified saying that the real question here is as to how it is understood by a policeman.
Mr. Mehta assured that the State does not per se take adversarial action. However, if it is said that 2% of the exercise of one’s fundamental right to free speech is the abuse of such right then the State is duty bound to protect the right of free speech of the citizens but at the same time it has to curb such 2% abuse also.
Mr. Venugopal informed the Bench that draft guidelines have been prepared by Mr. Sai Deepak, Advocate.
On this, the Bench directed that these draft guidelines be exchanged with the other Counsels involved in the batch of petitions. The Bench also directed Mr. Mehta to draft their guidelines with consultation with the Government and exchange them with the other Counsels involved by 25th December 2014. The Bench clarified that if after such exchange there was some difference of opinion then the Bench would consider it. The Bench also gave liberty to all the Counsels to give suggestions as to these guidelines, if any. The Bench also emphasised that these draft guidelines should be discussed and reviewed only between the Counsels and not the parties as the Counsels would have a much better understanding of them from the legal point of view.
Thereafter, the draft guidelines prepared by Mr. Sai Deepak were handed over to Mr. Mehta and Mr. Shyam Divan, Senior Advocate.
Mr. Venugopal clarified to the Bench that these draft guidelines prepared by Mr. Sai Deepak were based on various reports.
The Bench said that even if these draft guidelines had no basis still they would be of relevance.
Thereafter, Mr. Venugopal referred to an article titled : Study on Liability of Internet Intermediaries dated 12th November 2007 authored by Prof. Dr. Gerald Spindler, a Professor at University of Nottingham
Mr. Venugopal specifically referred to Page 14 of this article which talks about the procedure for take down. A copy of this article was handed over to the Bench as well as to the other Counsels appearing in the batch of petitions by Mr. Venugopal.
The matters was listed for on 13th January 2015.