Information Gatekeepers and Article 19(1)(a) of the Indian Constitution

I have put a draft of my paper titled ‘Gatekeeper Liability and Article 19(1)(a) of the Indian Constitution on SSRN. You can read it here. It will eventually be published in the NUJS Law Review.

Alternatively, this essay (written for a UPenn/ CIS/ ORF publication) based on the paper sets out my argument briefly.


The press was once the most important medium of mass communication. Indira Gandhi understood this well and used the gatekeeping function of large media houses to prevent citizens from accessing critical information. The press’s function as an information gatekeeper is protected by jurisprudence, but this protection is articulated as ‘freedom of the press’, making it a medium-specific protection. As the Internet increasingly replaces the press as the most important source of information for citizens, structural protections need to extend online. The online intermediary may be the new avatar of the information gatekeeper, third parties who perform an essential function in transmitting information from speakers to audiences – they are potential choke points that the state can use to cut off flows of information.

Aside from the press freedom norms, much of our freedom of expression jurisprudence deals with the state’s relationship with the speaker. The contours of our freedom of expression rights have formed in this context. It is relatively easy for the judiciary to grasp how statutory provisions like section 66A of the Information Technology Act impact freedom of expression. Here the law targets the speaker directly and any unjust application or chilling effect is more visible. It is also more likely to be resisted by the target of regulation, since the speaker is always interested in her own right to speak.

Indirect regulation of speech is quite different. The law is aimed at information gatekeepers, who may choose not to publicise censorship and who may not be as interested in protected the speech as the original speaker. Scholars have described these gatekeepers as the ‘weakest link’, through which speech is most vulnerable to state excesses.

Information gatekeepers and Indian law

It is common enough for states to use ‘middle-men’ to enforce change in behaviour when it is difficult to control the primary offender’s conduct directly. For example, since it is difficult to directly compel minors to avoid drinking, the law targets alcohol-sellers, leveraging their gatekeeping function to cut off the supply of alcohol to minors.

Information gatekeepers were used to regulate the flow of information even in the pre-digital world. Publishers and booksellers were held liable for circulating banned publications in many countries including India. India has a particularly pernicious rule criminalizing the circulation of obscene content. This comes from the Supreme Court’s judgment in Ranjit Udeshi v. State of Maharashtra, that is well known for its interpretation of obscenity law in the context of D.H. Lawrence’s ‘Lady Chatterley’s Lover’. The other critical element of this judgment received almost no attention – the liability of a bookseller for the circulation of obscene content.

D.H. Lawrence was never prosecuted in India for his book. The ‘Lady Chatterley’s Lover’ case in the Supreme Court was about the liability of the owners of Happy Book Stall, a bookshop at which ‘Lady Chatterley’s Lover’ was sold. The Supreme Court said the booksellers were liable for circulation of the obscene content even if they argued that they were unaware that a book contained such content. Consider what this means: booksellers cannot plead ignorance of obscene content within any of the books they sell, and will be liable nonetheless. The state only has to prove that the booksellers circulated obscene content, and not that they did so knowingly. It is lucky that this part of the Supreme Court judgment went largely unnoticed since it could easily be used by the intolerant file criminal complaints that shut down large bookstores all over the country – all they need to do is look for a few books that the law would categorise as obscene. Booksellers would then have to scour every page and paragraph of each book they sell to weed it out content that might get them arrested – this would make it very difficult to do business.

Online intermediaries as information gatekeepers

Intermediary liability first received attention in India after the infamous ‘DPS-MMS’ explicit video, featuring two minors, ended up being sold on The Managing Director of the company that owned the website was arrested. The fact that he had no knowledge that this content was shared on the website was irrelevant thanks to the Supreme Court’s ‘Lady Chatterley’s Lover’ verdict. This situation made it clear that if the law applicable to bookshops continued to apply to online intermediaries, online platforms would not be able to function in India. A platform like Facebook or Youtube hosts too much user content to be able to sift through it and proactively filter out everything obscene.

Fortunately, the amendment of the Information Technology Act (IT Act) gave Internet intermediaries immunity from this liability for third party content. The immunity was conditional. Intermediaries that edit or otherwise have knowledge of the content that they transmit are not immune from liability. To remain immune from liability, intermediaries must comply with certain legal obligations to take down content or block it in response to government orders or court orders. These obligations also leverage the gate-keeping function of these intermediaries to regulate online content – internet service providers and online platforms can ensure that certain kinds of content are inaccessible in India.

Why gatekeepers matter

Although information intermediaries existed in the pre-internet information ecosystem, their role is critical in the context of online content – several intermediaries mediate our access to online content. Some of these, like the gateways through which the Indian network connects to the global network, are located in India and are easy for the government to control since they are subject to onerous licenses and are few enough in number for the state to be able to control all of them successfully. Other intermediaries like Facebook or Google, are online platforms, and most of these have offices outside Indian jurisdiction.

Discussions about freedom of expression that focus on the direct relationship between the state and the speaker are not helpful in this context. This kind of reasoning tends to ignore the collateral effects of certain kinds of regulation of speech – the ‘Lady Chatterley’s Lover’ case case is a classic illustration of this with its tremendous impact on the liability of all booksellers and later on and other web based platforms.

As the new media make gatekeepers and intermediaries more critical to the controlling the flow of information, we need to focus on other dimensions of freedom of expression if we are ensure that effective safeguards are put in place to protect speech. Our jurisprudence on freedom of the press offers some degree of protection to newspapers so that regulation of their business structure cannot be used to influence their content, but this form of gatekeeper protection is limited to the press. There are information gatekeepers other than the press in India, and it is time that we think carefully about protecting the information ecosystem. Free speech principles need to accommodate themselves to a media ecosystem that is increasingly dependent on information gatekeepers.

Freedom of expression and access to information

It is time that our jurisprudence started focusing more on citizens’ rights to access information. Although this right that has been recognized in India, it needs to be outlined in more detail. In the well-known judgment in Shreya Singhal v. Union of India, which struck down section 66A of the Information Technology Act, the Supreme Court failed to deal with intermediary liability adequately because it did not use the lens of access to information and gatekeeper liability. Using traditional jurisprudence that focuses on the direct impact of regulation of speech, the court gave content-creators the right to a hearing and a right to appeal blocks and removals of their content wherever possible. However, it completely disregarded the rights of citizens to access online content.

The content blocking system in India makes all government blocking orders confidential. This means that when an intermediary is required to block content under the IT Act, users might imagine that the decision was a private decision made by the intermediary. Since the intermediary is unlikely to be willing to spend resources battling for the various kinds of content it hosts, any blocking process that counts on the intermediary to offer up sufficient resistance to unconstitutional blocking orders errs egregiously. The law must offer those who are actually affected – the publishers and the readers of the information – a chance to fight for content that they have the right to circulate and access. Of these, the publishers of information do have some right to make their case before the government committee making the blocking decision thanks to the Supreme Court’s decision in Shreya Singhal v. Union of India. But this judgment does nothing for citizens who could lose access to a wealth of information if the government might unreasonably blocks content created by someone in another country. The content publisher would not be in a position to defend its content in India, and citizens have not been given any avenue to defend their rights to view the content before the government committee making the decision.

The focus on access to information has been discussed many scholars, from Alexander Meiklejohn onwards. Amartya Sen has written about the salience of public discourse in a democracy. Robert Post and Jack Balkin have articulated in the detail the importance of focusing on the free flow of information or access to information, rather than on the right of individual speakers. The right we refer to as ‘freedom of expression’ is about much more than the freedom to say what one pleases. It is the foundational principle from which our rules about free flow of information have been built.


Section 66A was an example of what Jack Balkin characterises as ‘old school’ regulation of speech. This consists of criminal penalties, injunction and damages aimed directly at the speaker or publisher. The Supreme Court’s treatment of section 66A reflects its comfort with this form of regulation and its implications for freedom of expression.

Intermediary liability, and the use of Internet gatekeepers to control the flow of online information follows a different system: it uses control over the infrastructure or platforms of speech to exercise control over speech. Jack Balkin characterizes this as ‘new school’ regulation. Through ‘collateral censorship’, a third party is made to block or remove a primary speaker or publisher’s speech. For example, a government order or a court order requiring that certain online content be blocked, does this by requiring and internet service provider or online platform to censor the information. New school regulation works necessitates co-operation of these third party intermediaries like internet service providers and online platforms with the government, and this can be achieved by compelling them to co-operate through the law or by using softer means to co-opt them.

New school regulation must be assessed in terms of the collateral harm that it causes. It is not a question of whether online pornography should be blocked or not anymore. It is a question of whether the process used to get intermediaries to block the pornography can be abused to block constitutionally protected speech. We have already recognized the collateral effects of structural regulation in the context of press freedom, and the Supreme Court has barred certain kinds of structural interference with the media that might impact their reporting. It is time to create a version of this principle for online speech, and to think in terms of access and free flow of information.


Ranjit Udeshi v. State of Maharashtra

Shreya Singhal v. Union of India

Secretary, Ministry of Information & Broadcasting, Govt. of India v. Cricket Association of Bengal, (1995) 2 SCC 161.

Sakal Papers v Union of India

Amartya Sen, Idea of Justice, 321-337 (2009)

Chinmayi Arun, Gatekeeper Liability and Article 19(1)(a) of the Constitution of India, NUJS Law Review [forthcoming-2015]

Jack Balkin, ‘Old School/ New-School Speech Regulation’, 127 Harv. L. Rev. 2296

Jack Balkin, ‘The first amendment is an information policy’, Hofstra Law Review 41 (2013)

Robert Post, Participatory Democracy and Free Speech, 97 Virginia L. Rev. 3 (2011).

Seth Kreimer, Censorship by Proxy: the First Amendment, Internet Intermediaries, and the Problem of the Weakest Link, Penn Law: Legal Scholarship Repository (2006)

Cannot Block all Pornographic Material over the Internet: Centre informs the SC

The petition filed by Mr. Kamlesh Vaswani asking for a ban of all pornographic material over the internet came up for hearing today before a three judge bench headed by the Chief Justice RM Lodha.

Mr. Vijay Panjwani, the advocate appearing on behalf of Mr. Vaswani started the arguments by citing examples of how countries like China and Pakistan have banned pornography. The Chief Justice responded saying “What China, Pakistan or any other country does is not our concern. We have to see the problem and remedy it with respect to our own society.”

Mr. Vaswani with his lawyer Mr.  Panjwani in the Court today

Mr. Vaswani with his lawyer Mr. Panjwani in the Court today

Additional Solicitor General, L. Nageswara Rao, appearing for the Centre explained to the court that pornographic videos and images are uploaded outside India. When they receive a complaint, they contact the concerned intermediary (such as Google) and ask them to block the content. He further stated that he has discussed the problem with the Government (DeitY) whose major problem is that even if the content is removed from one place online it is uploaded again in multiple different places. The court seemed to sympathise with this difficulty faced by the Government in enforcement and Justice Nariman even compared the problem to the sprouting of a Hydra’s head.

The Chief Justice stated that “the Centre should not be so helpless and ideally the law should develop faster than the technology”. He however admitted that “technology will always develop faster than law as the human mind is very fertile and innovative’. He also added a cautionary note stating that ‘though technology can do wonders but it can also lead to destruction”. Justice Kurian Joseph stated that these things lead to prurient interests in the younger generation and to rising instances of sexual exploitation.

The ASG informed the court that the problem has been placed before the Cyber Regulation Advisory Committee constituted under Section 88 of the Information Technology Act. The committee was currently examining the matter and one of the ways can be to ask all the big intermediaries to have servers in India. The ASG also categorically informed the court that it cannot pass orders to block all the pornographic websites.

The Court explained to Mr. Vaswani that if his prayer (which includes declaring section 66,67,69,71,72,75,79 and 80 of the Information Technology Act unconstitutional) is accepted in its entirety all the preventive measures currently present to regulate the production, distribution and transmission of the pornography will no longer exist and the spirit of the petition will be lost. The Chief Justice also added that that any measure to regulate porn will have to be within the constitutional framework and the Court cannot be expected to make law. The bench stated that ‘there needs to be a synthesis of law, technology and governance for effective control of pornography over the Internet and the law alone will not be effective if it is not enforceable’.

The bench acknowledged that it was dealing with a complex issue and that there may be multiple methods to achieve the result of regulating pornography over the internet. It directed the Government to place the writ petition before the Cyber Regulation Advisory Committee, so that they can assess the issues that are placed before the Court and come back with its views after four weeks.

(Sarvjeet is a Project Manager and Research Fellow at the Centre for Communication Governance at National Law University, Delhi)

A Blanket Ban on Porn will violate Articles 19 & 21 of the Constitution: Government informs the Supreme Court

On 5th May, 2014 the Supreme Court bench of Justices B.S. Chauhan and and J. Chelameswar heard the petition filed by Kamlesh Vaswani, requesting the court to block all websites with pornographic content and to direct intermediaries to proactively monitor and block all pornographic content on the Internet.

Additional Solicitor General (ASG), Mr. K.V. Vishwanathan appearing for the Government stated during his oral arguments that the blocking mechanism exists under section 69A of images the Information Technology Act (‘IT Act’). However, under the present mechanism, websites can be blocked only upon fulfilling certain parameters and after following the procedure laid down in section 69A read with Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009. It was further stated by the ASG that the various grounds under section 69A on which content can be blocked does not include obscenity. 

Mr. K.V. Vishwanathan then explained that a blanket ban is technically not feasible and that if ISPs try to block content by search words even ‘good literature’ will be blocked. He illustrated this by stating that if the search word is sex, everything containing the word sex on the internet will be blocked. He also brought the attention of the court to problem of over-blocking by stating that a blanket ban may lead to a block on medical literature. All this, the Government pointed out, will be a violation of Article 19(1)(a) of the Constitution.

The Government also argued that proactively monitoring and blocking content will be a violation of right to privacy under Article 21 of the Constitution, as the ISPs will have to go through all the content over the internet to screen for objectionable content including VoIP calls. Additionally, the ASG informed the court that under Section 88 of the IT Act, the Government has already constituted a Cyber Regulations Advisory Committee and either the committee on its own or a sub-committee appointed by it can come up with a time bound report about the whole issue.

By way of constructive suggestions, the ASG submitted before the Court that, pornographic material can be blocked by pre-installing specific software in all the computers. However, it will need to examined as to how the government can direct all the manufacturers to install it.

Advocate Vijay Panjwani appeared for Mr. Kamlesh Vaswani while respondent no. 4, ISPAI was represented by advocates Rahul Narayan and Shivain Vaidalingam. The Court has directed the matter to be listed after two weeks.

(Sarvjeet is a Project Manager and Research Fellow at the Centre for Communication Governance at National Law University, Delhi)

What’s problematic with Porn Ban?

On Monday, 5th May, a Bench of Justices B.S. Chauhan and J. Chelameswar of the Supreme Court will hear a petition filed by Kamlesh Vaswani, an Indore based lawyer, which seeks among other things, directions to the Government to frame a specific law and a national policy on pornography, to make viewing pornography an offence and to direct intermediaries to proactively monitor and block all pornographic content on the Internet.  .

The Supreme Court’s order on Monday will be crucial, as the petition is problematic on multiple grounds: some of the reliefs claimed by Mr. Vaswani, such as the new law and policy, are outside the court’s domain; while others, like directing intermediaries to  proactively monitor and block online pornography, will have other serious consequences. A major issue is the absence of an objective standard defining pornography. The Supreme Court has in the past held that pornography is an aggravated form of obscenity. However, in the absence of any clear statutory definition, it has held that the task of what is obscene has to be determined by the courts from case to case. Thus, the obscenity standard under the Indian law is complex and requires legal competence to apply: something that intermediaries will simply be incapable of doing.

Besides proactive monitoring and blocking, Mr. Vaswani has also requested the Court to strike down section 79 of the Information Technology Act, 2000 (“IT Act”), commonly known as the ‘safe harbour provision’, which protects intermediaries from liability arising from content posted by third parties. If the Court allows this, it would mean that intermediaries like Dailymotion or Facebook will be liable for pornographic videos uploaded by their users. These intermediaries being business entities, will have greater incentive to protect themselves from liability than to preserve access to protected speech. In the absence of an objective standard and faced with the scenario of assessing very high volumes of material in a very limited time frame, they are likely to err on the side of caution in removing any material which, according to them, might be pornographic. This will lead to over-blocking, potentially affecting legal content, (for instance, websites providing information on HIV-AIDS), which will violate the right to freedom of expression both of users whose legitimate content ends up being taken down, as well as those who will lose access to this constitutionally protected speech.

By issuing such an order, the Supreme Court also risks overstepping its boundaries under the Constitution. Blocking of websites is an executive function under section 69A of the IT Act. Likewise, enacting laws regulating pornography is a purely legislative function. Neither of these, under the Constitution, can be appropriated by the judiciary. The Supreme Court has over the years attempted to strike a fine balance between judicial activism and judicial restraint, with the consensus seeming to be that the Court can issue directions to the Executive only in the complete absence of active law to provide for the effective enforcement of basic human rights – a situation described as a “legislative vacuum”.An example of this is the Court’s 1997 decision in Vishaka v. Union of India, where it issued guidelines to deal with sexual harassment at the workplace in the absence of any law on the point.

On the other hand, where a law already exists, the Court has generally declined to intervene. As recently as this March, a Bench of the Supreme Court (which, incidentally, Justice Chauhan was also a part of) in Pravasi Bhalai Sangathan v. Union of India, taking note of this legal position,refused to frame law banning hate speech on the ground that there were existing provisions under the Indian Penal Code and other laws to deal with it. Likewise, the regulation of pornographic material in India is far from being a legislative vacuum. Sections 67 and 67A of the IT Act respectively penalise transmission of obscene and sexually explicit material in the electronic form, while section 67B similarly criminalises child pornography. In this situation, given that there is a law clearly in force, an intervention by the Court would be an unfortunate breach of its own principles.

In a situation where it is technologically impossible to effectively monitor content online, and in the absence of a clear definition of pornography, any direction issued by the Court to intermediaries to block pornographic content will adversely affect the fundamental right to freedom of speech and expression. Moreover, the Court should follow its own precedents laying down that it is not for the Courts to frame policies or run the administration of the country and it cannot rewrite laws made by the legislature. Online pornography is a matter that Parliament has, in its wisdom, legislated upon to the extent provided for in the IT Act. It is hoped that the Supreme Court will similarly exercise wise judgment and decline to interfere in the matter.

(Manish and Sarvjeet are Fellows at the Centre for Communication Governance at National Law University, Delhi)

Apex Court inquires whether Government of India departments can issue directions for blocking pornographic sites

On 21st April 2014, the petition filed by Kamlesh Vaswani asking for a ban on all pornographic websites, came up for hearing before a Supreme Court bench of Justices BS Chauhan and J Chelameswar. In its previous order the bench had asked the four government respondents (Union of India, Ministry of Communications & Information Technology, Ministry of Information & Broadcasting and the Department of Telecom) to file their replies within 3 weeks.

At the latest hearing, the Union of India filed its counter- affidavit. The court has now directed the Secretary of the Department of Telecommunications (DoT) (Ministry of Communications & Information Technology) to file an affidavit within one week stating whether DoT or any other department is competent to issue directions to the Internet service providers to block pornographic websites.

In response to the Government informing the Supreme Court that it is difficult to block pornographic websites, the bench came down heavily on the Centre and told the ASG that ‘we don’t expect this kind of argument. You are a mighty government. You issue the direction for blocking these sites, or else, we have to issue the direction, though it is not the court’s job to run the administration. When the problem of pornography is brought to your notice, why don’t you take action’. The bench also asked the Government ‘why can’t you control and regulate websites?” to which the ASG responded by saying that ‘we don’t know which of them should be blocked’.

Additional Advocate General PP Malhotra appeared for the Union of India while respondent no. 4, ISPAI was represented by advocates Rahul Narayan and Shivain Vaidalingam. The next hearing of the case is scheduled for 28th April 2014.

See also:

– Cases in which India’s Supreme Court will define contours of free speech online

– One Man’s Pornography is Another Man’s High Art: Internet Service Providers tell Supreme Court in the Porn Petition

– Report on panel discussion on Intermediary Liability & Freedom of Expression

(Sarvjeet is a Project Manager and Research Fellow at the Centre for Communication Governance at National Law University, Delhi)

One Man’s Pornography is Another Man’s High Art: Internet Service Providers tell Supreme Court in the Porn Petition

Would photographs of Khajuraho be termed as porn?

Would photographs of Khajuraho be termed as porn?

On 27th January, 2014 the Supreme Court heard the petition filed by Kamlesh Vaswani requesting the court to pass an order to block websites with pornographic content in the country. The petition seeks among other things, to make viewing pornography a non-bailable and a cognizable offence. (Here and here are television discussion on the PIL, featuring the petitioner Mr. Kamlesh Vaswani) Currently, while the creation and distribution of porn are criminalised in India, consumption is not.

Of the 5 respondents only the Internet Service Providers Association of India (ISPAI) has filed a reply. The Supreme Court has therefore asked the other respondents (Union of India, Ministry of Communications & Information Technology,  Ministry of Information & Broadcasting and the Department of Telecom) to file their within 3 weeks. The bench of Justices BS Chauhan and J Chelameswar has also asked the respondents for a specific response addressing child pornography over the internet in their reply. During the hearing the lawyer appearing for the Union of India informed the court that they have requested for composition of a technical committee, to provide them with guidance on the issue. In a previous hearing the government had informed the court that it would find it difficult to block international porn sites viewable in India.

ISPAI has stated in its reply that there is “no unanimously accepted definition of pornography and the boundaries of the same are amorphous.” ISPAI’s response highlights the problem and states that “one man’s pornography is another man’s high art”, using AIDS awareness websites and photographs of Khajuraho as examples of how explicit material is not always pornography. ISPAI has stated in its reply that “ISPs neither create content of any sort, nor do they own, promote, modify or edit it. They are mere authorized service providers who provide customers access to internet. ISPs are mere conduits and they cannot be made liable for the contents they do not own. It would be akin to making liable telecom companies for conversations people have on their network”.

ISPAI has argued in its written response that ISP’s ought not block without specific orders from the courts or government because “such blocking would tantamount to pre-censorship of contents without authority of law and could unfairly limit the fundamental rights of the customers and may expose them to liability under civil laws”.

Advocates Rahul Narayan and Shivain Vaidalingam appeared for ISPAI in the matter and the court has fixed 10th March 2014 as the next  date of hearing.

(Sarvjeet is a Project Manager and Research Fellow at the Centre for Communication Governance at National Law University Delhi)