Shreya Singhal, and how Intermediaries are simply Intermediaries Once Again – Striking down the Chilling Effect

The concept of ‘intermediary liability’ in all its nuances, as I have written before, is one of the bulwarks of the internet as we know it, including one of the aspects of it that we all know and love – the power it gives to each and every individual to exercise their right to free speech. In fact, it is that very power that even I am exercising right now as a blogger, even as part of an academic institution. This post looks into the Shreya Singhal and Ors. v. Union of India judgment, the contentions raised therein by intermediaries, and the consequences it has for intermediaries and internet-users alike. We will be looking at the Section 69A issues in a separate post.

Intermediary Liability is quite fragile and multifaceted a concept, balancing multiple interests on multiple fronts. To name the broadest stakeholders, intermediary liability balances the rights of the users (of the internet), against the profit incentives of the intermediary, and the policing of the government. An extremely interesting instance of the last part of this can be seen in the 2013 House of Lords’ Select Committee on Communications’ Report on Media Convergence. As per the report, the Committee essentially states that the best way for regulating content on the internet is through the intermediaries alone.

In India, we now follow a different model. Up till last week, we followed a rather shaky and quite criticised notice-and-takedown regime under Section 79 of the Information Technology Act and the Rules promulgated under it, but that changed with the Shreya Singhal judgment.

Arguments made by the Petitioners

The contentions that had been raised by the petitioners in the Shreya Singhal case were that Rule 3(4) of the Guidelines required the intermediary to exercise its own judgment regarding the legality of the information in question, and then disable whatever information was in contravention of Rule 3(2) of the same. The petitioners also argued that there were no safeguards provided for intermediaries under the 2009 Rules made under S. 69A. Furthermore, sub-rule (2) of Rule 3 was also argued to be vague and overbroad, and to have no relation with the subjects specified under Art. 19(2) of the Constitution of India.

Similar contentions were raised with S. 79(3)(b) as well, with regards to how it asks the intermediary to judge the legality of the content in question – and not just legality, but whether they fall under the unnecessarily broad category of ‘unlawful acts’.

The Court’s Judgment

The Court rightly concludes, on the basis of its analyses, that S. 79 is an exemption provision for the intermediary. Thus, it has to be necessarily seen in the context of the offences under the Act, such as S. 69A. As S. 69A in no way calls for the intermediary to make its own decisions about the legality of content. Furthermore, the Court had concluded earlier in the judgment that blocking orders under S. 69A can only be passed either by a competent Court or by a Designated Officer after complying with the 2009 Rules.

On this basis, the Court has struck down the notice-and-takedown regime. Now, the intermediary is only required to remove content after it receives a notice regarding the same. Furthermore, the ‘unlawful acts’ for which such orders can be made have also been read down to only the grounds allowed under Art. 19(2). The Court here has specifically stated that content can only be taken down after an order has been passed by a competent authority. Thus, the twofold judgement of the Court here is that:

  1. a) intermediaries are required to block access to or remove content only once they receive an order from the competent authorities, and
  2. b) such an order can only be passed on the basis of the grounds laid down under Art. 19(2).

What it Means for Intermediaries and the Users

Thus, the liabilities of the intermediaries under S. 79(3)(b) and Rule 3(4) of the Intermediary Liability Guidelines have been read down to only when they ignore a direct order from either a Court or a Designated Officer, which has been passed on the grounds enumerated under Art. 19(2). This is, without a doubt, a huge victory for intermediaries across India. Along the lines of the incentive theory explanations that I have used before, this is at the absolute edge of the spectrum – the intermediary is, in this case, not required to block any content as per anything less than a court order. Therefore, the intermediaries can host as much content as their technology allows them to, and only take it down when they get the proper orders. They face no liability for their content, but only for the direct disobedience of orders. Thus, under this model, the intermediaries are incentivised to host as much content as they can.

But at the same time, this also means that the onus of judging content lies, now, entirely on the shoulders of the Courts. And as we have mentioned before, the Courts have a dubious track record when it comes to copyrighted content and online pirated copies. Thankfully, the beauty of this judgment is that even with the above ‘overzealousness’, so to say, of the Courts when it comes to pirated content, there will be no chilling effect on the intermediaries! This is because they do not have to make decisions regarding legality of content, they only have to follow the orders of the Court. Therefore, they will not face the ‘fear’ of being found liable for any ‘grey area’ content that passes under their radar. Thus, there is an indirect but extremely positive effect on the free speech of the users.

The Court makes a note of an interesting contention when it notes the arguments made by the petitioners, that “intermediaries by their very definition are only persons who offer a neutral platform through which persons may interact with each other over the internet”. And that is exactly what the Court has done here – created neutral gatekeepers of the internet, or at least as neutral as companies with vested economic interests can be. The onus and liability for the legality of the content is now on the Courts and the Designated Officers, and no long rest in the hands of the intermediaries. Facebook is, then, just Facebook once again, and no longer has to judge the legality of the content its users put up.

And that is an a huge step forward for free speech in India, because, along with protecting free speech at the first, direct level of the user through striking down 66A, the Court has also promoted the free speech of the users through the second, indirect level, through striking down the chilling effect that found its home in the notice-and-takedown regime, going far beyond what I, at least, had expected from it. And it has thus, perhaps, taken the first step in paving the way for true freedom of speech on the Internet in India.

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