Double-edged sword of diluting 'objectionable' online content rules

The Supreme Court recently made it mandatory for an aggrieved party to seek a court or government order and present it to the intermediary to take down objectionable or unlawful online content.

The judgment watered down the provisions of Section 79(3)(b) of Information Technology Act. The intermediary in this case could be social networking sites such as Facebook or Twitter, or video-hosting sites such as YouTube.

This will facilitate the ease of business in the intermediary ecosystem, which includes e-commerce websites, search engines, social media platforms and content aggregators.

"The intermediaries are not obliged to take down content or block websites unless backed by a court order or government notification," said Ramesh Vaidyanathan, managing partner, Advaya Legal.

Internet & Mobile Association of India (IAMAI), a not-for-profit industry body, filed a writ petition in Supreme Court to provide a safety net to online platforms from an aggrieved party. According to Saikrishna Rajagopal, managing partner, Saikrishna & Associates, a legal firm which represented IAMAI in the apex court: "Expecting an intermediary to take down content - merely because somebody tells it to do so - is expecting it to de facto perform court-like functions.

"This is a judicial function, and therefore should not be discharged by them (the intermediaries)." This also has cost implications for the business.

Legal experts point out that India's intermediary liability framework did not define the term "actual knowledge" in the rules. This led to subjective interpretations, creating an element of discretion - exercised by an intermediary - in the whole take-down process. The intermediaries were also faced with the dilemma: Were they stifling someone else's freedom of speech and expression?

Section 69 (A) of the IT Act recognises the power of the government to ask intermediaries to block access to certain websites or content. But it also comes with many in-built safety valves such as a review mechanism, or a hearing for the aggrieved party. However, any notice to take down of content - even by the government - has to be within parameters of Article 19(2), which relates to freedom of speech.

Some lawyers find that use of the word "unlawful" takes the scope of Section79(3)(b) beyond that of Article 19(2).

The apex court order takes note of the fact that the end objective of both Section 69(A) and Section 79(3)(b) are the same. Therefore if Article19(2) applies to Section 69(A), then it should equally apply to Section 79(3)(b) as well.

Herein come the riders in this judgment. The apex court's order is limited to Article 19(2), and anything to do with freedom of speech. So a trademark infringement - such as sale of counterfeit products on a website - will not be applicable to Section 79(3)(b). The intermediary may have to take down the "aggrieved" content, even without any court order.

Some supporters of free speech and anti-censorship crusaders point out that an aggrieved party has to first knock on the doors of the judiciary for any take down. Given the time-consuming nature of any legal exercise, an eventual win could be pointless.

Agreed Advaya Legal's Vaidyanathan. "It remains to be seen if courts would be able to provide justice to the aggrieved party swiftly," he said

Rajagopal, however, feels that this position is neither an aberration, nor an anomaly, or a departure from the existing legal framework which is applicable to comments published or broadcast on print and electronic media.

TO REMOVE OR NOT

• Section 79 states that an intermediary is liable to "expeditiously remove or disable access" to any third-party information, data, or communication link made available or hosted by it "upon receiving actual knowledge, or on being notified by the appropriate government or its agency" that this is being used to commit an unlawful act

Main arguments raised in the writ petition

• Rule 3(2) and 3(3) of the Information Technology (Intermediaries Guidelines) Rules, 2011, which dealt with take down procedures to be followed, were improper. As a neutral person the intermediary was entailed to exercise its own judgment to disable the flow of information. The terms used in the rules were vague and broad, with absence of procedural safeguards

Judgment

• Section 79 and the Information Technology Intermediary Guidelines Rules, 2011 were held to be constitutional. However, any take down by the intermediary is subject to receiving directions from a court, or a notice from the government or its agency