Free speech victory

The commercial & constitutional implications of Sec 66A judgment

A two-member bench of the Supreme Court delivered a judgment with major constitutional and commercial implications when it struck down the contentious Section 66A of the Information Technology (IT) Act. Key provisions in the equally controversial Section 79 were diluted, although another section, Section 69, which allows secret censorship of websites, was deemed valid. The judgment reaffirmed that laws governing cyberspace could not violate the fundamental right of freedom of speech. Judges J Chelameswar and Rohinton F Nariman said that Section 66A was unconstitutional and violated the rights of freedom of speech and freedom of knowledge. Section 66A is framed very broadly. It had a provision for sending citizens to jail for up to three years for sending annoying or "offensive" messages through electronic means. It has been used in multiple instances to jail people who have criticised or lampooned political leaders. The latest incident involved a teenager who shared an allegedly derogatory opinion of the Uttar Pradesh politician Azam Khan. In an earlier case, two teenage girls were jailed in Maharashtra for expressing disapproval of a bandh called by the Shiv Sena upon the death of the late Balasaheb Thackeray.

The Supreme Court held that Section 66A was unconstitutional in that it didn't fulfil the criteria for reasonable restrictions on free speech as laid down in Article 19(2). This is despite pleas by two successive governments to retain the section. The court further said that governments could change, but laws remain on the books - and so there was no guarantee that a future government would use Section 66A responsibly. However, the Supreme Court did uphold two other sections that have been used to violate freedom of speech and right to knowledge. The Bench deemed that Section 69, ("procedure and safeguards for blocking of access of information by public"), which grants the government powers to secretly censor and block websites, was valid. Hence, the government can continue to block websites on the basis of criteria that it does not need to publicly or privately justify. There is also no review process by which the owner of such blocked content is intimated, let alone allowed to appeal against a block.

There are major commercial implications, too. Section 79 of the IT Act, which lays down the "intermediary guidelines" for removing content to avoid liability, has been diluted, or "read down". Earlier, internet service providers or sites had to remove "offensive content" within 36 hours of any notice being received, or else be held liable. In effect, anybody could arbitrarily send such a notice. The apex court's judgment holds that such content removal is only necessary on the basis of a court order, or upon the intermediary being notified by the appropriate government agency. Section 79 had been used to browbeat websites into removing negative consumer reviews of shoddy products, or poor services, or even negative financial analysis of corporate balance sheets. This judgment doesn't go as far as the free speech advocates might have hoped. But it certainly reduces the chilling effect of those rules on free expression.