Section 66A: Why SC got rid of one of India's most oppressive censorship laws

In a landmark judgment today, the Supreme Court decided upon a constitutional challenge to three provisions of the Information Technology Act: Sections 66A, 69A and 79. All these provisions have attained a unique degree of notoriety in recent times, for their effect on suppressing online freedom of speech and expression. Section 66A criminalises online communication that is "grossly offensive", has a "menacing character", or causes "inconvenience or annoyance". Section 69A authorises the government to block websites, and through a set of rules, lays out the procedure for doing so. And Section 79 deals with the situations where online "intermediaries" (ie, search engines, social media platforms etc.) must "take down" illegal speech that internet users might have posted, and are being hosted by their platforms.

The Supreme Court held that Section 66A violated the constitutional right to freedom of speech and expression, and was therefore void. It upheld Section 69A and the blocking rules. And it upheld Section 79, but limited its scope by "reading it down". Each of these decisions will have widespread effects, not merely upon online speech, but upon censorship and the freedom of speech and expression across media.

Section 66A

Article 19(1)(a) of the Indian Constitution guarantees the right to freedom of speech and expression. Article 19(2) allows the government to make a law that imposes "reasonable restrictions" upon that freedom, in the interests of eight specified categories. These include "public order", "decency or morality", "defamation", and so on. The principal challenge to Section 66A was that the terms it used - "grossly offensive", "menacing", causing "annoyance" - were so broad, that they had a much greater ambit than the 19(2) categories, such as "public order", or "defamation". Consequently, Section 66A's prohibitions were wide enough to allow restrictions of speech that were never contemplated by the Constitution. The government attempted to rebut this argument by pointing to the unique nature of the internet, how it facilitated rapid dissemination of messages, and how its reach was unparalleled. Consequently, the government argued that it ought to have greater leeway when it comes to curtailing the internet, than it does for other media such as print and film.

The court rejected this argument. It accepted the fact that the internet was a unique medium, with its special characteristics, and that consequently, it might need specific laws (such as laws on website blocking). But that, in itself, did not authorise the government to broaden the scope of its censorship of content. The government would have to demonstrate how Section 66A fell within the categories of Article 19(2).

The court held that the government had failed to discharge its burden, for three reasons. First, it held that although Article 19(2) contemplates reasonable restrictions in the interests of public order, or morality, or defamation, it is not enough for there to be a vague or far-fetched connection between the nature of the restriction, and the goals sought to be advanced by Article 19(2). If the government argues, for instance, that it is restricting speech in the interests of public order, then it must demonstrate that there is a proximate connection between the restriction and the maintenance of public order.

This led the court to draw a crucial distinction: between advocacy and incitement. Following well-established principles of both American and Indian free speech jurisprudence, the Court held that advocacy of ideas - no matter how distasteful - could not be curtailed, but when it rose to incitement - ie, when there was a degree of imminence, or immediacy, between the speech and the threatened public disorder, that when the state could step in. Another way of looking at it (as the court held) was that there must be a "clear and present danger" before speech can be curtailed. The government was unable to show how "offensive", "menacing" or "annoying" speech constituted a clear and present danger to public order (or to any of the other Article 19(2) categories), or how "offensive speech" amounted to incitement to public disorder. Therefore, Section 66A, as it stood, was unconstitutional.

Secondly, the court held that the terms of Section 66A were impermissibly vague. Vagueness, in law, affects three important constitutional values. The first is the rule of law. If citizens do not know what a law punishes and what it permits, they will be unable to plan their lives with any degree of certainty. The constant abuse of Section 66A, with arrests for Facebook posts and likes, bears eloquent witness to this. The second is that the vaguer a law, the more discretion it allows to the police - and other executive authorities - in implementing it, and the greater threat there is to individual rights. This, again, has been evident for the last few years, with numerous frivolous arrests for perfectly innocuous and legitimate online speech. And the third is something called the "chilling effect". The vaguer the law, and the fuzzier the boundaries between the permitted and the prohibited, the more likely a citizen is to over-compensate, and steer so clear of the prohibited zone, that he or she will end up self-censoring even perfectly legitimate speech. This constitutes a severe harm to the public discourse. The court held that terms such as "grossly offensive", "menacing" and "annoying" were impossibly vague and subjective, and consequently, unconstitutional.

Thirdly, the court held the Section to be unconstitutional because of its "over-breadth". Over-breadth is a technical term, and refers to a law that is framed so widely - or broadly - that it prohibits or restricts speech that the state is entitled to restrict (ie, that falling within the contours of Article 19(2)), and that which the state is not entitled to restrict (everything beyond). If a law suffers from over-breadth in a way that is impossible to separate those aspects coming within 19(2) and those that fall outside, the court will strike it down in its entirety. And this is exactly what the court proceeded to do.

Section 69A and online blocking

Online blocking was in the news recently, when a number of websites were blocked on the stated ground of preventing the spread of the ISIS propaganda, but covered entirely innocuous sites like Github. Section 69A of the IT Act authorises the government to block material that infringes any of the categories under Article 19(2). The procedures for blocking have been set out in a set of rules. They specify the authorities who can request blocking, the procedure by which such requests are to be considered by designated government officers, and how they are to be ultimately decided by a government committee. This Section was challenged on the ground that it did not allow for a pre-decisional hearing to the originator of the information, before blocking was carried out, and that it lacked adequate safeguards to protect the freedom of speech and expression.

The court rejected this challenge. It held that under the rules, as long as the originator of the information could be identified, he was entitled to a pre-decisional hearing. Notably, the court also specified that the reasons for blocking have to be recorded in writing, so that a blocking decision might be challenged before the courts. This is very important, because under Rule 16, it is stipulated that "confidentiality" must be maintained about blocks. It was on this basis, for instance, that in 2013, the government responded to an RTI effect by refusing to disclose the orders and court orders on the basis of which more than 1208 URLs had been blocked. So although the court's wholesale rejection to the Section 69A challenge is problematic, its stress on the need for a written and reasoned order in case of blocking will certainly increase transparency substantially.

Section 79 and intermediary liability

Section 79 of the Act follows a well-accepted rule: that of intermediary immunity. In other words, intermediaries (such as search engines and social networking websites, for instance) cannot be held liable for content posted by individuals who use those sites. The desirability of intermediary immunity is obvious: it is simply impossible for Google, or Facebook, or any other intermediary, to monitor its content in real time. Intermediary immunity is essential for the very existence of many of the websites that we have come to depend upon.

Section 79(3), however, carved out an exception to the rule of immunity. According to this Section, if an intermediary received "actual knowledge" of illegal content that had been uploaded, and if it failed to remove or disable access to that content, it could no longer claim immunity. In accordance with the rules framed under the Act, such "knowledge" could be provided by any "affected person", and the intermediary would have to act within 36 hours.

As is obvious, this is deeply problematic, primarily because it places the burden upon private parties (ie, the intermediaries) to determine whether content they host is illegal or legal. The perils of an incorrect determination include crippling legal liability. Consequently, when faced with a "take-down" request from any individual, an intermediary is likely to act in the interests of self-preservation, and err on the side of caution by removing the "offending" material. This serious curtails the freedom of speech.

The court responded to this problem by "reading down" Section 79. It held that "knowledge", under the Act, was limited to cases when either there was a court order directing take-down, or a government notification. This introduces an important procedural safeguard, since it spares intermediaries from having to decide for themselves when online speech is illegal.

The position is still not entirely satisfactory, because it continues to permit the government to ask for take-down of material without first having to obtain a judicial determination of illegality. In other words, it refrains from placing the judiciary as a mediating authority between the state and the citizen. Nonetheless, the reading down of Section 79 definitely improves the position manifold.

Conclusion

Today's Supreme Court judgement plays a vital role in defending the freedom of speech and expression from authoritarian state action. In striking down Section 66A, the court has done away with one of the most oppressive censorship laws this country has ever known. In introducing important procedural safeguards to the blocking rules and to intermediary liability, it has made those provisions significantly more speech-protective than they were earlier. It is not a complete victory. But it is a vital first step.