The Supreme Court this week sparked off celebrations across the internet with its decision in Shreya Singhal v. Union of India striking down draconian Section 66A of the Information Technology Act, 2000. Widely criticised for overbreadth, vagueness and its chilling effect on speech, the Section has been notoriously invoked to target statements made by ordinary citizens in, at best, lukewarm criticism of prominent political leaders.
The decision has free speech activists excited for several reasons. It brings clarity and coherence to our free speech jurisprudence and by unequivocally embracing several rigourous tests to demarcate the sphere of constitutionally permissible restrictions on speech, introduces a much needed vitality to our civil liberties law. In this two part post I highlight the major features of the judgment, but more importantly, try to analyse its repercussions for intellectual property law enforcement. Part I skims through the courts findings in relation to Section 66A and Section 69A of the IT Act, 2000. Part II tackles the much more convoluted question of Section 79 and intermediary liability.
Section 66A not within the ambit of reasonable restrictions under Article 19(2)
Section 66A made it a criminal offence to send electronically any information that is ‘grossly offensive’, ‘menacing’, causes ‘annoyance’, ‘obstruction’, ‘insult’, ‘hatred’ amongst other things. It neither defines any of these words nor gives any indication of their import. In holding the section to be unconstitutional, the court takes several steps.
First, the court rejected the government’s argument that those aspects of the internet that distinguish it from more traditional media would require a ‘lesser standards of reasonableness of restrictions.’ Rather it cited Secretary Ministry of Information & Broadcasting, Government of India v. Cricket Association of Bengal to hold that regardless of whether the internet as a space is so unique that it warrants its own regime of regulation, the “wider range of circulation of information or its greater impact cannot restrict the content of the right” of free speech and expression under Article 19(1)(a).
Secondly, the court considered each of the grounds listed under Article 19(2) to test for the nature and reasonableness of the restriction. On the question of public order, it invoked the ‘clear and present danger’ test and read it along with the Indian law requirement of ‘tendency to create public disorder’ to imply a necessary proximity between the speech and the alleged disturbance to tranquillity. It then drew a distinction between ‘advocacy’ and ‘incitement’, finding that only the latter, which speaks of a certain imminence, could fall within the ambit of Article 19(2).
Thirdly, the court considered the argument on vagueness and found that several terms in Section 66A (i) did not give clear enough guidance so that persons could reasonably understand what is permissible and impermissible conduct, and (ii) excessively delegates policy matters to “regular police men and judges to resolve on an ad hoc and subjective basis.”
Fourthly, it held that Section 66A suffered from overbreadth in that it was wide enough to capture within its net a large range of permissible speech. The court linked both the concepts of vagueness and overbreadth with that of the ‘chilling effect’, which is to say that when the law suffers from serious ambiguity and is cast in wide terms, the subjects of the law (all internet users, in this case) are likely to self censor and restrict their speech far within the realm of permissible speech from the fear of falling foul of the law. This, in effect, limits the sphere of permissible speech which, in turn, diminishes the quality of discourse in the public sphere, by, for example, weeding out “any serious opinion dissenting with the mores of the day.” See Gautam Bhatia’s post on Indian Constitutional Law and Philosophy for a detailed analysis on the Constitutional law aspects of the judgement.
Section 69A and website blocking orders
In response to the Article 14 challenge, the court found that the internet as a medium is sufficiently distinct from other media by reason of its wide reach and ease of access (without onerous costs or editorial filters) so as to constitute an intelligible differentia thereby permitting internet targeted regulation. The court then upheld the provisions related to website blocking that were also up for challenge. Section 69A permits the Central government or any officer authorised in this regard, to direct an intermediary to block access to the public to any website on the ground that it is ‘necessary or expedient’ to do so in the interest of (i) the sovereignty and integrity of India, (ii) defence of India, (iii) security of the State, (iv) friendly relations with foreign states, (v) public order or (vi) preventing incitement to a cognizable offence relating to the above. It is pertinent to note that none of these categories would include intellectual property infringement. The government passed the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 to operationlise a formal system for website blocking under Section 69A. Geeta Hariharan of the Centre for Internet and Society explains the procedure laid out in these ‘Blocking Rules’ here.
The court upheld Section 69A and these rules on the ground that the provisions were narrowly drawn and that elaborate procedure laid down under these Rules is sufficient safeguard against the utilisation of the law to curb permissible speech. Further, it also held that an additional protection since “reasons have to be recorded in writing in such blocking order so that they may be assailed in a writ petition under Article 226 of the Constitution.” This latter bit is crucial in light of Rule 16 of the Blocking Rules which provides for “strict confidentiality” regarding all complaints and action taken in pursuance thereof. This Rule has been specifically invoked to deny information relating to blocking orders, even under RTI.
John Doe Orders v. Website Blocking Orders
Even though neither Section 69A nor the Blocking Rules apply to the context of intellectual property, copyright infringement has formed the basis of several court orders (the FIFA World cup case, the ‘3’ movie case, the Star News case, the Singham case) authorizing the blocking of whole websites ‘likely’ to be hosting infringing content. This has been on the basis of the common law remedy of a John Doe order – an ex parte ad interim injunction order wherein the plaintiff has the liberty to add defendants to the array of parties even after the filing of the suit. However, as Ananth Padmanabhan argues here, outside the virtual world, John Doe orders only authorise wide search and seizure powers to gather evidence of direct infringement pursuant to which new defendants are identified and arrayed as parties to a suit. The website blocking orders that have been granted by various High Courts, on the other hand, have been against entire websites, even on the mere likelihood that the website will host infringing content.
It certainly can be said of these orders that “it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of overbreadth.” The ruling by the court then could become an important basis for challenging website blocking by way John Doe styled court injunction orders.
More importantly, apart from creating an overbroad and draconian website blocking regime for copyright infringement cases, the court is bypassing the regime on intermediary liability. In Part II of this post I will consider the impact of this judgment on this question.