How many online postings do you read each day that you find annoying? Offensive? Insulting? The answer is probably many, but most likely you simply ignore, discredit, or refute them. This is what free speech is meant to look like in a democracy. This is what free speech should look like in India, the world’s most populous democracy and, as of 2013, home to the world’s third largest internet user population.
But until last month, posting content online found to be “offensive” or “annoying” in India could land one in prison. Then on March 24, India’s Supreme Court delivered a landmark decision striking down an amendment to the Information Technology Act (IT Act) of 2008, Section 66A, that had been responsible for hundreds of arrests since it came into effect in 2009. Worryingly, many of the arrests under the law were for content that did little more than criticize public officials, something that is fundamental to the very idea of free speech. And to make matters worse, according to the New York Times, government officials had explicitly requested that sites like Facebook, Twitter, and Google screen for such content.
As artists, writers, and other freedom of expression advocates know, defining exactly what qualifies as offensive or annoying, and to whom, is a slippery slope. This slippery slope could lead to nearly every expression of speech having the potential to be offensive to someone. The language of Section 66A cited offensive content as “that which causes annoyance, inconvenience, danger, obstruction, insult, injury, enmity or ill-will.” All of these terms have the potential for serious misuse by causing seemingly innocuous content to be identified as one of the aforementioned terms and censored.
The Supreme Court rightfully ruled that since terms used in Section 66A were “open-ended” and “undefined,” Section 66A is unconstitutional. Justice RF Nariman, one of the two judges presiding over the case, stated that “the public’s right to know is directly affected by Section 66A.” While the two-judge bench of the Supreme Court clarified that this judgment does not rule out the possibility of regulating online speech in general, any restriction on freedom of expression must be based on rational provisions.
The review of Section 66A began with law student Shreya Singhal, who was the first to file a petition arguing that the law violated the fundamental right of freedom of expression and freedom of speech. Singhal challenged the law in November 2012 after Mumbai resident Shaheen Dhada was arrested for complaining on Facebook that city services were to be shut down during the funeral of politician Bal Thackeray. Renu Srinivasan was also sent to jail simply for “liking” Dhada’s Facebook critique. Both women were later released on bail.
While the positive ruling on Section 66A is welcomed, content-blocking, the notice and takedown procedues for content-blocking, and the liability of intermediaries like Google and Facebook remain issues of serious concern in India. The Court has refused to rule against the government-ordered blocking practice permitted under Section 69A of the IT Act and the Information Technology Rules, 2009. According to the judgment, the Indian government’s online content-blocking practice and its review and appeal mechanisms are consistent with constitutional standards. The Court refused to address concerns about the secrecy under which the Indian content-blocking process occurs based on confidentiality rules about government blocking orders. At the moment, content providers have no notification or judicial recourse if their content is blocked or taken down.
It also upheld Section 79, which holds intermediaries liable for complying with government blocking or takedown requests. The provisions of Section 79 lead to a situation where the private intermediary is charged with deciding if the content on their website constitutes lawful content or if it violates the provisions of Section 79. According to India’s Center for Internet and Society, “previous studies have shown that, when placed in such a position, intermediaries prefer overbroad blocking to escape liabilities” leading to the censoring of content across the board. This can result in readers having access only to extremely censored content.
These provisions, as well as provisions in the Indian Penal Code, mean that the police and the government can still easily find a way to punish authors and remove content considered objectionable.
In general, the March 24 ruling should be considered a victory. But this victory remains marred by the fact that limits on content are obscured due to an ongoing lack of transparency. While this is a good first step, the Indian government must combat the lack of transparency, make greater efforts to further strengthen free speech online, and align its intermediary liability and content-blocking laws with international standards.