Free Speech & Violent Extremism: Special Rapporteur on Terrorism Weighs in

Written by Nakul Nayak

Yesterday, the Human Rights Council came out with an advance unedited version of a report (A/HRC/31/65) of the Special Rapporteur on protection of human rights while countering terrorism. This report in particular deals with protecting human rights while preventing and countering violent extremism. The Special Rapporteur, Ben Emmerson, has made some interesting remarks on extremist speech and its position in the hierarchy of protected and unprotected speech.

First, it should be noted that the Report tries to grapple with and distinguish between the commonly substituted terms “extremism” and “terrorism”. Noting that violent extremism lacks a consistent definition across countries and in some instances any definition at all, the Report goes on to liken it to terrorism. He also acknowledges the lack of understanding of the “radicalization process”, whereby innocent individuals become violent extremists. While the report does not suggest an approach to defining either term, it briefly contrasts the definitions laid down in various countries. However, there does seem to be some consensus on the ambit of violent extremism being broader than terrorism and consisting a range of subversive activities.

The important section of the Report, from the perspective of free speech, deals with incitement to violent extremism and efforts to counter it. The Report cites UN Resolution 1624(2005) that calls for the need to adopt legislative measures as effective means of addressing incitement to terrorism. However, the Report insists on the existence of “serious human rights concerns linked to the criminalization of incitement, in particular around freedom of expression and the right to privacy.”[1] The Report then goes on to quote the UN Secretary General and the Special Rapporteur on Free Expression laying down various safeguards to laws criminalizing incitement. In particular, these laws must prosecute incitement that is directly related to terrorism, has the intention and effect of promoting terrorism, and includes judicial recourse, among other things.[2]

This gives us an opporutnity to discuss the standards of free speech restrictions in India. While the Supreme Court has expressly imported the American speech-protective standard of incitement to imminent lawless action in Arup Bhuyan, confusion still persists over the applicable standard in any justifying any restriction to free speech. The Supreme Court’s outdated ‘tendency’ test that does not require an intimate connection between speech and action still finds place in today’s law reports. This is evident from the celebrated case of Shreya Singhal. After a lengthy analysis of the public order jurisprudence in India and advocating for a direct connection between speech and public disorder, Justice Nariman muddies the water by examining section 66A of the IT Act under the ‘tendency’ test. Some coherence in incitement standards is needed.

The next pertinent segment of the Report dealt specifically with the impact of State measures on the restriction of expression, especially online content. Interestingly, the Report suggests that “Governments should counter ideas they disagree with, but should not seek to prevent non-violent ideas and opinions from being discussed.”[3] This brings to mind the recent proposal of the National Security Council Secretariat (NSCS) seeking to set up a National Media Analytics Centre (NMAC) to counter negative online narratives through press releases, briefings, and conferences. While nothing concrete has come out, with the proposal still in the pipelines, safeguards must be implemented to assuage chilling effect and privacy concerns. It may be noted here that the Report’s remarks are limited to countering speech that form an indispensible part of the “radicalization process”. However, the NMAC covers negative content across the online spectrum, with its only marker being the “intensity or standing of the post”.

An important paragraph of the report- perhaps the gist of the free speech perspective in the combat of violent extremism- is the visible unease in determining the position of extremist speech glorifying and advocating terrorism. The Report notes the Human Rights Committee’s stand that terms such as “glorifying” terrorism must be clearly defined to avoid unnecessary incursions on free speech. At the same time, the “Secretary General has deprecated the ‘troubling trend’ of criminalizing glorification of terrorism, considering it to be an inappropriate restriction on expression.”[4]

These propositions are in stark contrast to India’s terror legislation, the Unlawful Activities Prevention Act, 1967. Section 13 punishes anyone who “advocates, … advises … the commission of any unlawful activity …” An unlawful activity has been defined in section 2(o) to include speech acts that

• supports a claim of “secession of a part of the territory of India from the Union” or,
• “which disclaims, questions … the sovereignty and territorial integrity of India” or,
• rather draconically, “which causes … disaffection against India.”

It will also be noted that all three offences are content-based restrictions on free speech i.e. limitations based purely on the subjects that the words deal in. Textually, these laws do not necessarily require an examination of the intent of the speaker, the impact of the words on the audience, or indeed the context in which the words are used.

Finally, the Report notes the views of the Special Rapporteur on Free Expression on hate speech and characterizing most efforts to counter them as “misguided”. However, the Report also “recognizes the importance of not letting hate speech go unchecked …” In one sense, the Special Rapporteur expressly rejects American First Amendment jurisprudence, which does not acknowledge hate speech as a permissible restriction to free speech. At the same time, the Report’s insistence that “the underlying causes should also be addressed” instead of being satisfied with mere prosecutions is a policy aspiration that needs serious thought in India.

This Report on violent extremism (as distinct from terrorism) is much-needed and timely. The strong human rights concerns espoused, with its attendant importance attached to a context-driven approach in prosecuting speech acts, are a sobering reminder about the many inadequacies of Indian terror law and its respect for fundamental rights.

Nakul Nayak was a Fellow at the Centre for Communication Governance from 2015-16.

[1] Para 24.

[2] Para 24.

[3] Para 38.

[4] Para 39.

Parliamentary Standing Committee on a New Online Hate Speech Provision

Written by Nakul Nayak

(My thanks to Mr. Apar Gupta for providing this lead through his Twitter feed.)

Amidst the noise of the winter session of Parliament last month, a new proposal to regulate online communications was made. On December 7^th, the Parliamentary Standing Committee on Home Affairs presented a status report (“Action Taken Report”) to the Rajya Sabha. This report was in the nature of a review of the actions taken by the Central Government on the recommendations and observations contained in another report presented to the Rajya Sabha in February, 2014 – the 176^th Report on the Functioning of the Delhi Police (“176^th Report”). In essence, these reports studied the prevalent law and order condition in Delhi and provided recommendations, legal and non-legal, for fighting crime.

One of the issues highlighted in the 176^th Report was the manifest shortcomings in the Information Technology Act. The Report noted that the IT Act needed to be reviewed regularly. One particular suggestion given by the Delhi Police in this regard related to the lack of clarity in the definition of the erstwhile sec. 66A. The police suggested that “[s]everal generalized terms are being used in definition of section 66A of IT Act like annoyance, inconvenience, danger, obstruction, insult, hatred etc. Illustrative definition of each term should be provided in the Act with some explanation/illustration.”[1] Note that this report was published in 2014, more than a year before the Supreme Court’s historic ruling in Shreya Singhal finding sec. 66A unconstitutional.

An important proposition of law that was laid down in Shreya Singhal was that any restriction of speech under Art. 19(2) must be medium-neutral. Thus, the contours of the doctrines prohibiting speech will be the same over the internet as any other medium. At the same time, the Court rejected an Art. 14 challenge to sec. 66A, thereby finding that there existed an intelligible differentia between the internet and other media. This has opened the doors for the legislature to make laws to tackle offences that are internet-specific, like say phishing.

The Action Taken Report notes that as a result of the striking down of sec. 66A, some online conduct has gone outside the purview of regulation. One such example the report cites is “spoofing”. Spoofing is the dissemination of communications on the internet with a concealed or forged identity. The Report goes on to provide a working definition for “spoofing” and proposes to criminalise it. If this proposal falls through, spoofing will be an instance of an internet-specific offence

Another example of unjustifiable online conduct that has been exonerated post-Singhal is hate speech. Hate speech laws is a broad head that includes all such legal regulations that proscribe discriminatory expression that is intended to spread hatred or has that effect. The Report states that all online hate speech must be covered under the IT Act through an exclusive provision. It has suggested that this provision be worded as follows

whoever, by means of a computer resource or a communication device sends or transmits any information ( as defined under 2 (1) (v) of IT Act )

1. which promotes or attempts to promote, on the ground of religion, race, sex, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between 
religious, racial, linguistic or regional groups or caste, or communities, or
2. which carries imputations that any class of persons cannot, by reason of their being members of any religious, racial, linguistic or regional group or caste or community bear true faith and allegiance to constitution of India, as by law 
established or uphold the sovereignty or integrity of India, or
3. which counsels advices or propagates that any class of persons shall or should be by reason of their being members of any religious, racial, language or religion group or caste or community or gender be denied or [sic] deprived of their rights as 
citizens of India, or
4. carries assertion, appeal, counsel, plea concerning obligation of any class of 
persons, by reasons of their being members of any religion, racial, language or religion group or caste or community or gender and such assertion, appeal, counsel or plea causes or is likely to cause disharmony or feeling of enmity or hatred or ill-will between such members or other persons.”

shall be punishable with ………”

A mere perusal of these provisions reveals that they are substantially similar to the offenses covered under sec. 153A and sec. 153B of the Indian Penal Code, which along with sec. 295A of the IPC form the backbone of penal regulations on hate speech. In this backdrop, it would appear that the proposed insertion to the IT Act is redundant. The Action Taken Report justifies the inclusion of this proposed provision on the ground that the impact caused by the “fast and wider spread of the online material … may be more severe and damaging. Thus, stricter penalties may be prescribed for the same as against similar sections mentioned in IPC.” However, if the rationale is to employ stricter penalties to online content, then the Report could very well have suggested amendments to sec. 153A and sec. 153B.

What is disconcerting, however, is the assumption that because incendiary content is posted online, its effect will be “more severe and damaging”. Indeed social media has had a hand in the spread of violence and fear in tense situations over the last few years, starting from the North East exodus to the Muzzafarnagar riots and up to as recently as Dadri lynching. Yet, the blanket assertion that online content is more damaging does not take into account many variables like

• the influence of the speaker – A popular public figure with a large following can exercise much more influence on public behaviour in an offline medium than a common man can on social media,
• the atmospheric differences between viewing online content in your house and listening to speech at a charged rally, or
• the internal contradictions of online speech, like the influence exerted by a 140 character tweet vis-à-vis a communally sensitive video (note here that the Supreme Court itself has emphatically recognized the difference between motion picture and the written word in stirring emotion in KA Abbas).

The Report could perhaps benefit from a more nuanced understanding of hate speech. A well-recognized effort in that direction is Prof. Susan Benesch’s Dangerous Speech framework. Prof. Benesch has devised a five-point examination of incendiary speech on the basis of the speaker, the audience, the socio-historical context, the speech act, and the means of transmission. This characterises the effects of the alleged hate speech in a more organized manner, allowing for a more informed adjudication on the possible pernicious effect that said speech might have.

An interesting question of debate could well centre on the proposed enhanced penalty for online hate speech. Would greater penalty for online speech (as opposed to offline speech) attract the ire of the doctrinal stance of medium-neutrality of the Court? Note that the Court in Shreya Singhal only mentions that the standards of determining speech restriction must be medium-neutral. Yet, the premise of enhanced penalties is based on the greater speed and access of online speech, which is necessarily internet-specific. Will a Court’s adjudication of penalties for criminalized speech amount to a standard or not?

Retweeting akin to Fresh Publication?

The Report also suggests that any person who shares culpable online content “should also be liable for the offence”. This includes those who “innocently” forward such content. Thus, for instance, anyone who retweets an original tweet that is later criminalized, will also be found liable for the same offence, as if he originally uploaded the content. According to the Report, “[t]his would act as a deterrent in the viral spread of such content.”

Forwarding of content, originally uploaded by one individual, is a popular feature in social media websites. Twitter’s version is called ‘Retweet’, while Facebook’s version is called ‘Share’. When a person X shares a person Y’s post, it may mean one of two things

1. X endorses said opinion and expresses the same, through the mask of Y.
2. X conveys to his followers the very fact that Y remarked said content. (In fact, many individuals provide a disclaimer on their Twitter profiles that Retweets do not necessarily meant endorsements.)

In an informative academic article, Nandan Kamath, a distinguished lawyer, termed people who forward information as “content sharers”, characterizing them as “a new breed of intermediaries”. Kamath goes on to liken content sharing to linked quotations and not as fresh publications. In doing so, he calls for restricted liabilities to content sharers. Kamath also examines the UK position on prosecution for social media content, which is multi-faceted, requiring “evidential sufficiency” and “public interest”.

The observations of the Action Taken Report appear linear in their stance of criminalizing all content sharing where the expression may be culpable. In doing so, it assumes all content sharing to amount to original speech. This approach turns a blind eye to instances where a sharer intends the post as a linked quotation. The Report would do well to take these concerns into account, thereby developing a more nuanced policy.

Nakul Nayak was a Fellow at the Centre for Communication Governance from 2015-16.

[1] Para 3.10.2

The Anatomy of Internet Shutdowns – III (Post Script: Gujarat High Court Verdict)

Written by Nakul Nayak

Earlier in this blog I had written at length about the legal backdrop in which any mobile Internet shutdown may be grounded and the constitutional questions surrounding Gujarat’s repeat application of this strategy as a public disorder shield in the Patidar reservation agitation. Three days back, the Gujarat High Court, in an Order to a public interest litigation, upheld the constitutional validity of the Internet ban. In this post, I go on to critically analyse the Order of the Court.

Before moving on to substance, an important question of accountability must be highlighted. I had lamented in my initial two posts (here and here) as well about how the issuance of notifications of the Internet shutdowns have been shrouded in secrecy, nearly impossible to access. This ostensibly played itself out in Court when the Government Pleader, in response to an argument, submitted that “the notification for blocking of internet facility on mobile phones from 25^th August 2015 onwards was without there being any notification, is not correct. She submitted that the notification was already issued …”[sic] It is quite possible that the Petitioner, as I, was unable to find the impugned notification. However, a check of all government websites during the shutdown did not display any such notification to my best knowledge. It is hoped that as a matter of course the Government shall publish all such notifications in the public domain at the earliest instance.

On substantive law, the Court issued three major holdings. Of relevance to us here are two issues. First, the Court adjudicated on what would be the correct law that governed the Internet shutdown in Gujarat. Petitioners argued that it would be sec. 69A of the IT Act (blocking powers) as opposed to sec. 144 of the CrPC (preservation of public order). As I noted in my first post, the application of sec. 69A to state bans on internet communication seems unlikely since sec. 69A requires Central Government direction. We find in paragraph 15 of the Order that the impugned notification suspending all mobile data access was issued by the Commissioner of Police, City of Ahmedabad (and not any Central Government authority). Without taking note of this nuance, the Court went on to analyse sec. 144 of the CrPC and sec. 69A of the IT Act. Eventually, the Court concluded that “the area of operation of Section 69A is not the same as that of Section 144 of the Code.” The Court reasoned that

Section 69A may in a given case also be exercised for blocking certain websites, whereas under Section 144 of the Code, directions may be issued to certain persons who may be the source for extending the facility of internet access.

This sentence is important because it expressly states that blocking powers under sec. 69A is applicable only to access to specified websites and not to access to the web itself. Does this, by extension, also mean that Internet shutdowns may only be exercised through sec. 144 orders? This remains to be seen. With no reference to either the Indian Telegraph Act or the Unified Access License in the Order, it seems too early to conclude anything yet.

The other important issue before the Court was overbreadth; that whether the state ban on mobile Internet was unreasonably excessive. Before proceeding to the ruling, it is prudent to recount that in Shreya Singhal, Nariman J. held that “restrictions on the freedom of speech must be couched in the narrowest possible terms.” This is not limited to the statute-book application of the law but also to its executive application. Readers would also recall that in my second post I had speculated that the Gujarat mobile Internet ban suffered from overbreadth in treating all mobile apps (communication or otherwise) the same and restricting their access.

In our present case, the Court held that the restrictions to freedom of speech by the mobile Internet ban were minimal (and thus presumably narrowly tailored) because citizens still had access to the internet through broadband and wifi. This is a classic case of viewing the glass half-full or half-empty. On the one hand, the complete mobile data disruptions could be seen as absolute and affecting all smartphone users. On the other hand, as the Court has done, these data disruptions could be seen as reasonable as there is no complete ban on the Internet (with the provisions of broadband and wifi) but only on a particular mode of technological access to the same. In legal standards, the former perspective may be seen to be speech-protective while the latter speech-restrictive.

It is unfortunate that the Court chose the latter view, however what is abysmal is its reasoning. The Court’s reasons rested on two limbs. First, it held that as a matter of course, the executive authority should be allowed to devise its own manner of regulation. Secondly, and shockingly, the Court found

that there are [sic] number of social media sites which may not be required to be blocked independently or completely. But if Internet access through mobiles is blocked by issuing directions to the mobile companies, such may possibly be [sic] more effective approach found by the competent authority.

This is a textbook example of overbreadth. The Court concedes that there was no necessity to block all social media sites, though it was well worth the set off with a “possibly” more effective approach of counter-action. The requirement that restrictions on free speech be narrowly tailored obviously have no-takers. The Court also shares no analysis on why restrictions to access to other apps (say internet banking or hotel reservation) should also pass constitutional muster.

By finding that mobile Internet shutdowns are reasonable, the Court also does not take heed to the classes that rely exclusively on mobile data as their source of Internet communication/activity. I will go out on a limb and assert that it’s the less-privileged that fall within this class, without the knowledge or the resources to operate a computer with broadband internet. Consider also that 56% of all phones in Gujarat are smartphones.

As we progress towards an age where Internet on-the-go becomes more important than ever, it is all the more necessary to steer clear of rulings that submit to internet shutdowns.

Nakul Nayak was a Fellow at the Centre for Communication Governance from 2015-16.

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.

Introduction

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 Baazee.com. 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 Baazee.com 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.

Conclusion

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.

References

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)

Terms under 66A Open Ended: Supreme Court

On 13^th April, the set of ten petitions challenging various section and rules of the Information Technology Act, 2000 came up for hearing before a Supreme Court bench of Justices J. Chelameswar and R.F. Nariman. An overview of these cases, which will define the contours of free speech over the Internet in India can be found here. These set of cases challenge among other things sections 66A, 69A, 79(3) and 80 of the Information Technology Act and the Information Technology. (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 and the Information Technology (Intermediary guidelines) Rules, 2011.

The arguments in the matter were made in December 2014 before a bench of Justices J. Chelameswar and S.A. Bobde, however due to change in the composition the bench the arguments have started afresh. A number of advocates including Mr. Soli Sorabjee, Mr. Prashant Bhushan, Mr. Sajan Poovayya and Mr. K.K. Venugopal have argued before the previous bench.

Similar to the arguments before the last bench, today’s arguments started with Assistant Solicitor General, Mr. Tushar Mehta placing certain material before Justice Nariman in a sealed cover. The material was was similar to what was previously placed before Justices Chalmeshwar and Bobde. ASG stated that these are the kind of information that are sought to be blocked and political dissent, extreme humour or contrary opinion cannot be blocked. He further added that all the provisions under the Act should be read in context of art. 19(2) of the Indian Constitution. The ASG asked the bench to peruse the material, however the bench stated that they will do so after hearing the petitioners.

On being asked by Ms. Karuna Nundy, who is representing PUCL, that the petitioners be provided a copy of the same, the ASG submitted that the material is confidential and is only for the perusal of the bench and cannot be handed over. However, the bench asked the ASG to provide the petitioners with a copy with a caveat of it not being circulated. Subsequent to this, the petitioners were supplied with the copy of the material, however it was taken back from them before the day’s proceedings concluded. (We have not been able to verify whether the material was returned later).

For the petitioners, Mr. Prashant Bhushan started the arguments in the matter of Common Cause v. Union of India. Mr. Bhushan’s arguments were largely the same as before the previous bench and can be found here. On the subject of s. 69A, J. Nariman observed that the grounds were a copy paste of restrictions under art. 19(2) of the Indian Constitution, however, he agreed that the reasonableness would still need to be tested.

J. Chalmeshwar observed that even though all the offences may be covered under the Indian Penal Code, the slight distinction is that the offences are committed through a computer communication. He further added that technology is certainly a distinguishable medium and distinction based on a medium can be provided though it will still have to conform to art. 19(2). On Mr. Bhushan’s submission that a medium cannot decide the contours of a fundamental right, J. Chalmeshwar observed that while that it true, it can decide the restrictions on that right. To this J. Nariman added that content of a right is different from the content of the restriction.

J. Nariman also asked all the petitioners to see which terms under section 66A can fall within the restrictions of art. 19(2) and also to look at the cases of John Doe v. US, Schenck v. United States and Abrams v. United States. The bench also observed that all the expressions under s.66A even though provided under Indian Penal Code are open ended whereas under IPC they are qualified and have some aspect of mensrea. J. Chalmeshwar stated that s. 66A rolls too many offences under one section and the clarity provided under IPC is not provided in the present section and it might be preferable to provide more clarity as to what situations are covered.

The ASG reiterated and requested the bench to puruse the material that has been placed before the bench and stated that the material was outrageous and offended sentiments of all the religions, be it Hinduism, Christianity or Islam. The ASG also informed the bench that the Centre Government has prepared a set of draft guidelines for application of S. 66A.

The hearing in the matter continues on 14th January.

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

Notes of Proceedings- I: Shreya Singhal v. Union of India, W.P. (Crl.) No. 167/2012

The final arguments in the set of Shreya Singhal cases which challenge the constitutionality of various sections of the Information Technology Act, 2000 case were being heard by a Supreme Court Division Bench comprising Justice  J. Chelameswar and Justice S.A. Bobde.

Over the next few days we will be publishing our notes of the proceedings.

Date: 9th December 2014 

The Assistant Solicitor General (ASG) Mr. Tushar Mehta informed the Court that they have filed the reply in the lead petition (Shreya Singhal) and certain connected matters. However, since there were a number of connected matters, they will need more time to go through those and file replies.

Subsequent to this the ASG handed over a number of documents in a sealed envelope to the bench and requested the bench to pursue the material that has been blocked. The lawyers of the petitioners objected to not being given a copy of the same.

Subsequent to this, the bench see to have quickly saw the material and asked the lawyers to start the arguments.

The ASG stated that the petition and the challenges to s. 66A are based on some stray incident and abuse of power. To this J. Chalmeshwar replied saying that the abuse is ‘egregious’ and should be checked. The ASG clarified that the Government is not justifying the abuse.

One of the lawyer for a petitioner pointed out that for banning a book a notice under CrPC has to be provided, however when the e-book of the same is to be banned no such requirement is there. The ASG also stated that though some of the petitions were genuine some of them were not so and that there was ‘shadow boxing’ by some social media sites.

Subsequent to this Mr. Soli Sorabjee started his arguments in lead matter of Shreya Singhal v. Union of India, W.P. (Crl.) No. 167/2012

Shreya Singhal v. Union of India, W.P. (Crl.) No. 167/2012

Section Challenged: S. 66A of the IT Act

Arguing Counsel: Mr. Soli Sorabjee

Mr. Sorabjee’s written submission can be found here.

Mr. Sorabjee started with the legislative history of the IT Act. He stated that the Act was enacted in 2000 and read out the preamble of the Act stating that the purpose of the Act was to provide legal recognition and encourage e-commerce and to give effect to a United Nations General Assembly resolution A/RES/51/162 on the Model Law on Electronic Commerce.

Subsequent to this Mr. Sorabjee drew the bench’s attention to the original Act of 2000 and went to various sections including S. 66 and 67. He then read out sections 66E inserted through the amended act and stated that there was no issue with it since it was covered by Article 19(2) of the Indian Constitution.

Mr. Sorabjee argued that section 66A of the Act was not covered by Article 19(2). He stated that though he agrees that no right is absolute, however for a restriction under Article 19(2) three prerequisite must be there:

• There must be a law
• The restriction must be under one of the grounds specified under Article 19(2)
• The restriction should be reasonable and not vague

He referred to the case of Sakal Papers [1962 (3) SCR 842] to put forth his point and read out paragraphs from page 868. He stated that the terms under s. 66A were vague and nebulous.

Referring to the documents provided in sealed cover at the start of the hearing, Mr. Sorabjee stated that even if after the perusal of the content of these documents it emerges that these are in the interest of general public and s. 66A is used in the interest of general public, this will still not be enough for the restrictions as interest of general public is not a ground under art.19 (2). He referred to the cases of Romesh Thapar and R. Rajagopal.

J. Chalmeshwar pointed out that on a bare reading of the section under 66A (b) the information must be false and the person sending it should know it is false and the information should be sent persistently. If the information is true this does not allow and a stray instance of sending such information may not attract this.

Mr. Sorabjee stated that the terms used in the section are vague and stated by an example that if some minister is not carrying out his duties properly and someone points that out, that may be grossly offensive to the minister. To this J. Chalmeshwar observed that what is offensive is a matter of value judgment and same speech can have different meanings in different context.

J. Chalmeshwar then asked Mr. Sorabjee if grossly offensive could be brought under the decency head found in art. 19(2). Mr. Sorabjee stated that we cannot stretch the grounds provided and the Freedom of expression should be preserved and given the widest amplitude. J. Chalmeshwar asked what’s the meaning of decency under 19(2)? To this Mr. Sorabjee replied that it the standard of reasonable person in a society to which J. Chalmeshwar agreed. J. Chalmeshwar subsequently stated that whether any reasonable man will come to a conclusion whether particular information is grossly offensive or not is an individual choice but can just on that count can we say that the provision is unconstitutional? Mr. Sorabjee pointed to s. 67 of the Act and stated that decency and the said section can cover obscenity. To this J. Chalmeshwar stated that then we need to look whether ‘grossly offensive’ as provided has any meaning and is supposed to cover any acts which are beyond the scope of S. 67. Mr. Sorabjee stated that there is no objective standard and what is grossly offensive depends on person to person and in this case on the opinion of a statutory authority. J. Bobde stated that it depends on the statutory authority only for the purpose of initiating the proceedings however the final decisions is with the courts whether the person is guilty or not. Mr. Sorabjee stated that in that case there will be a chilling effect.

J. Chalmeshwar stated that supposed that the law (s. 66A) is declared unconstitutional, then if a person gets an offensive message everyday, nothing can be done about it. Mr. Sorabjee said if a statement is offensive without being indecent or lascivious it falls outside the scope of Art. 19(2). J. Clameshwar said that a lot of statements can be offensive without being indecent and Mr. Sorabjee replied that then it is outside the scope of art. 19(2).

Moving on to s.66A(b) Mr. Sorabjee stated that the terms are very vague and subjective. J. Bobde stated that under IPC what is punishable is intimidating message sent from one person to another and on the Internet what seems to be a problem is that these messages are not sent to a particular person lot of times. Assuming that a message if a general threat to a community, then a person cannot go under IPC because the authorities will say that it is not directly targeted to you. Mr. Sorabjee that it is already covered under s. 153A IPC. J. Chalmeshwar stated that IPC states whoever by words written or spoke and does not talk about electronic communication.

Mr. Sorabjee stated that IPC has been interpreted in such a way. He then stated that his main issue with the words grossly offensive and J. Chalmeshwar observed that people in power get annoyed very fast. Mr. Sorabjee stated that this section can be used to have serious political censorship. Mr. Sorabjee then read out the meaning of some of these terms from the Dictionary and stated that there cannot be these vague expression to have restrictions on free speech. J. Bobde stated that based on these vague terms you cannot make criminal offences; these might be unpleasant words however you cannot punish a person under this. Mr. Sorabjee stated that no offence should be there for such terms but definitely not criminal offence. J. Chalmeshwar observed that if a person does not have a sense of humor then even a cartoon can be offensive. Mr. Sorabjee stated that I might have a certain opinion that you may find very unpleasant and offensive.

Mr. Sorabjee then refereed to certain cases of vagueness. State of M.P. v. Baldeo Prasad, 1961 (1) SCR 970 and referred to pages 970 and 979. The case dealt with a section, which provided powers to police to detain ‘gunda’, however the court held who is a gunda is very vague. He then referred to the cases of Harakchand Ratanchand Banthia v. Union of India, 1969 (2) SCC 166 and K.A. Abbas v. Union of India, 1970 (2) SCC 780 and SCOTUS case of Burstyn v. Wilson, where he read out parts of the concurring judgment of J. Frankfurter.

Based on a query by the bench Mr. Sorabjee stated that this section is applying censorship. He the stated that there have been various instances in which the section has been applied in an arbitrary manner and the vagueness is inherent in the said section. He then gave certain examples including of Prof. Mahapatra in Kolkata, the Pahalgar arrests, the Hudhud cyclone case.

He the stated that the said Section has a chilling effect on freedom of speech and expression and is thus violative of art. 19(1)(a). Mr. Sorabjee then explained the concept of chilling effect and cited two cases (R. Rajgopal v. State of Tamil Nadu, 1994 (6) SCC 632; S. Khusboo v. Kanniammal, 2010 (5) SCC 600) in which the Supreme Court has recognized this concept in India. He stated that self censorship is absolutely detrimental to a democracy.

He also stated the case of Cricket Association of Bengal to state that freedom of speech also includes the right to receive information and this has great significance in a country like India.

He concluded that the impugned heads of s. 66A cannot be served and are inextricably linked with other provisions of the said Section, however he would not present detailed arguments on this and leave it to the bench. He also stated that there are sections in IPC, which take care of all the offences under IT Act. J. Chalmeshwar stated that that would require a wider debate and each of those sections will have to be examined and seen whether it meets the requirement of electronic communication and if the petitioners are serious and want to argue that submission the Court will like hear them in detail. J. Bobde stated that another questions which needs to be looked into is whether IPC was found inadequate to deal with these issues and that is why the offences were made under the IT Act and whether this is a special situation which cannot be covered under IPC. Mr. Sorabjee stated that if such is the case then also these grounds should be brought under at. 19(2). J. Clameshwar gave the example of the Dramatic Performances act and stated that visual/spoken expressions might require a certain different and special law.

Supreme Court adjourns IT Act cases for final hearing

Author: Nikhil Kanekal

The Supreme Court of India has decided to bunch together all petitions related to the regulation of free speech online and adjourned them to the first week of January 2014 for a final hearing “on merits”.

A bench comprising justices H. L. Gokhale and Jasti Chelameshwar heard a clutch of petitions on Friday connected with the Information Technology Act, 2000 and IT (Intermediary Guidelines) Rules, 2011. The extent of free speech online, the liability of intermediaries (or platforms which host third party content), the criminal law procedure to be invoked in case of an IT Act-related offence – these are some of the questions of law that will likely be addressed by the court when it deals with these petitions.

One of the main arguments by petitioners is that the restrictions on free speech specified under the IT Act exceed those specified in Article 19(2) of the Indian Constitution.

While the bench seemed to be largely in agreement with the petitioners that section 66A of the IT Act, along with other provisions, need to subjected to judicial review, the judges also cautioned that they need to balance questions of law to ensure that “the state will also have to have some power”.

Referring to recent instances of violence and panic-infused migration, the judges observed, “See what happened in Bangalore and the North East. We will have to look into (the IT Act), but very unfortunate things have been happening in some parts of the country.”

The role of digital media and online communication has been under scrutiny after reports of circulation of controversial material appeared to have sparked rioting and violence, most recently in Uttar Pradesh.

“But this has to be heard and we have to also see whether the advisory given by the central government is adequate,” said the court, in reference to an advisory issued by the government to law enforcement agencies in connection with IT Act offences, earlier this year.

Counsel for the petitioner complained that although all state governments have been made party to this bunch of cases, many of them had not yet responded to notices served through the court’s registry. The court directed all parties to complete the filing of written pleadings before the cases come up for oral argument in January.

During the hearing, it emerged that one of the petitioners, Dilipkumar Tulsidas Shah, who had asked the court to pass guidelines to ensure that police officials have a standard operating procedure to deal with complaints and reports related to Section 66A and other offences listed under the IT Act, was no longer alive. However, given that his petition raises a substantial question, the court observed that any party who wants to pursue the case on his behalf or file a fresh petition, could still do so. “Somebody else wants to come, they can – whoever is interested.”

Parties who have filed petitions include Shreya Singhal, Mouthshut.com, Dilipkumar Tulsidas Shah, Common Cause, and Rajeev Chandrashekar. Read more about the petitions here.

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

Author: Nikhil Kanekal

India’s apex court is slated to decide key cases which, one way or another, will have a significant bearing on online free speech and regulation. The cases are in initial stages of hearing and will gain momentum once the court decides to hear them substantially, which, going by its procedure, will likely take some months.

Kamlesh Vaswani v. Union of India

Kamlesh Vaswani’s petition against pornography wants the court to direct the government to declare key sections of the IT Act ultra vires the constitution. He has asked for a national action plan against pornography and a separate law that will exhaustively curb ‘the growing problem of pornography’. He wants the government to insert new sections into the IT Act which will be more stringent and carry heavy penalties for creating, transmitting, storing and viewing pornography. He also asks that these be made non-bailable and cognizable offences.

The crux of the petition concerns the enforcement of an effective bar on access to pornographic content in India. This petition will need to be considered both from the perspective of the jurisprudence on obscenity and free speech, and from the perspective of how far it is possible to completely remove a category of speech/content from the Internet.  There is a range of complications associated with trying to ban content online due to the structure of the Internet. The state and its instruments are not yet sophisticated enough to filter out the narrow range of content that is legitimately banned without including material outside the ambit of illegal content. Although most stakeholders agree that child pornography must be removed from the Internet – it continues to be difficult to enforce universally, owing to the nature of the Internet.

The Rajya Sabha committee has also issued a public call for inputs on this issue.

Shreya Singhal v. Union of India

Shreya Singhal’s case was admittedly shortly after the much publicised arrest of Shaheen Dhada in Mumbai. The Supreme Court has been asked to strike down Section 66A of the Information Technology Act, 2000. This law has been adopted from a similar provision in the United Kingdom’s Communication Act, 2003. However, the Queen’s Bench Division of the High Court has read down this provision in 2012, making the UK more tolerant of free speech online.  Besides asking for Section 66A to be declared ultra vires the constitution, Singhal has requested the court to issue guidelines so that offences concerned with free speech and expression are treated as non-cognizable under criminal law, meaning that police powers are brought under safeguards on areas such as making arrests without a warrant as well as the power to investigate.

Mouthshut.com v. Union of India

The Mouthshut.com petition challenges the Information Technology (Intermediaries Guidelines) Rules, 2011 which effectively creates a notice and take down regime for third party/ user content that intermediaries host. Originally the IT Act was meant to create a safe harbour for intermediaries, to shield them from liability for third party content. This safe harbour is subject to the intermediaries meeting a ‘due diligence’ standard – the rules which were meant to explain what this standard meant, have instead created a whole liability system surrounding contexts in which intermediaries are given notice of objectionable content and do not take it down within the specified time (An academic paper on this aspect, authored by Pritika Rai Advani, is to be published soon). Although intermediaries are permitted in theory to judge content as unobjectionable, the fear of litigation has led to over compliance – this includes taking down legitimate content to avoid expensive and time-consuming law suits. The petition argues that as delegated legislation, the rules are not only unconstitutional but also  go well beyond the scope permitted by the IT Act.

Dilipkumar Tulsidas Shah vs. Union of India

Dilipkumar’s petition asks the court to pass guidelines to ensure that police officials have a standard operating procedure to deal with complaints and reports related to Section 66A and other offences listed under the Information Technology Act. Several police actions under the IT Act thus far have been inconsistent and more abuses of power. A bench comprising justices H. L. Gokhale and Jasti Chelameshwar has decided to hear the Mouthshut.com case along with Shreya Singhal’s petition and Dilipkumar Tulsidas Shah’s petition.

Rajeev Chandrashekar v. Union of India

Chandrashekar wants the court to declare section 66A of the IT Act and sections 3(2), 3(3), 3(4) and 3(7) of the IT (Intermediaries Guidelines) Rules, 2011 ultra vires the constitution. This petition is also attached to Shreya Singhal’s case.

Note: Common Cause and People’s Union for Civil Liberties (PUCL) also plan to file petitions that challenge parts of the IT Act and IT rules, and these petitions are likely to be tagged with Shreya Singhal’s case. We will provide an update about these petitions shortly. Additionally, there are some cases pending before various High Courts concerning provisions of the IT Act and Rules.