You might not have realised it, what with Uber and religious conversions dominating the news, but a case currently being heard in the Supreme Court could alter the way the internet works in India. It has received some coverage, most notably because of the court’s stern stance on internet censorship and the Bharatiya Janata Party’s apparent U-turn on the issue, but a broader look at the overall case reveals just how broad its ambit is.
The apex court is currently hearing a clutch of petitions all pertaining to freedom of speech on the internet. The petitioners include everyone from advocacy groups like the People’s Union for Civil Liberties and Common Cause to websites like Mouthshut.com. Even Bangladeshi author Taslima Nasreen and Member of Parliament Rajeev Chandrasekhar are petitioners in the case. All of them are calling, in some way or the other, for shackles to be taken off of free speech online.
The most prominent challenge is to section 66A of the Information Technology Act. That’s the provision that has allowed people to be arrested simply for making fun of politicians online or for “causing annoyance”. Section 66A has been well covered in the Indian media, thanks to the government's admission of the frequent misuse of the powers it gives the police. The BJP’s supporters even likened this provision to the Emergency when it was in the Opposition, but indications now suggest that the government will seek to defend its constitutionality.
But this case isn’t just about 66A. The petitioners have also taken issue with a number of other sections in the IT Act that they believe are unconstitutional, as well as various other provisions from different laws that seek to restrict the kind of content that can go online. If the Supreme Court ends up delivering a verdict that covers all of these laws, it could fundamentally alter how the internet works in India and what free speech could mean for our digital future.
Here’s a look at the other sections being challenged, with arguments excerpted from the various petitions filed against them:
*Information Technology Act, section 69A
Power to block any content
Section 69(A) of the act allows the government to block any website or internet service, without giving the creator or provider of the content a chance to defend the material or even to get it unblocked. It effectively gives the authorities the power to censor without having to give any explanations for why it has done so.
Why it should go: “It does not provide any effective remedies of redressal for the legal entities/members of the public whose information, generated, transmitted, received, stored or hosted on any computer resource, is blocked for access by the public or caused to be blocked for access.”
*Information Technology Act, section 79(3)
Punishment for platforms like YouTube that don’t censor
This provision says that an “intermediary” such as YouTube or Facebook could face punishment in case it does not actively censor material that the government or any third party complains about. The intermediary has no opportunity to be heard if a private party demands that some content should be taken down.
Why it should go: “Section 79(3)(b) in its current form hands a motivated party a lethal tool to bring the business of an intermediary to a grinding halt by flooding it with baseless take-down notices with impunity.”
*Information Technology Act, section 80
Carte blanche to arrest anyone who commits a cybercrime
If there’s even an apprehension that someone is about to commit any offence under the IT Act, this provision gives powers to police officers to arrest that person without a warrant. Essentially, just saying that someone might be about to commit a cybercrime would be enough for a policemen to arrest them even before any actual content has been uploaded.
Why it should go: “There can be no scientific formula or objective guideline, which could give any guidance to a police officer in arresting any person in a public place who is about to commit an offence/cybercrime…section 80 is capable of patent abuse and allows a police officer of the rank of an Inspector to arbitrarily exercise the powers conferred by it.”
*Intermediary Rules, 2011 -- Rules 3(2), 3(3), 3(4) and 3(7)
Onus on platforms like YouTube and Facebook to censor content
These rules add even more restrictions on how intermediaries operate, essentially passing most of the work to them. Among other things, they require companies like Facebook and YouTube to tell their users not to upload content that might be “blasphemous”, “disparaging” or “grossly harmful.”
They require these intermediaries to summarily remove any such content, with the presumption that these companies are monitoring all of their content themselves. They also mandate assistance to authorities not just to take down problematic content but also to “prevent cyber security incidents.”
Why it should go: Portions of the rules require “pre-screening of user-generated content, which is beyond the scope of any restriction that may be imposed on the users’ freedom of speech and expression”. Because the rules also include broad categories for problematic content, they leave “untrammelled and unguided discretion in the hands of the executive as also motivated third parties”.
*Kerala Police Act, section 118(d)
Punishing those who “cause annoyance” by sending mails
Much like section 66A, this provision of the Kerala Police Act makes it illegal to cause annoyance to anyone in an “indecent manner” by sending messages or mails by any means. Also like 66A, it was meant to be a safeguard against stalkers and spammers, but has been used instead as a way of suppressing certain kinds of speech.
Argument: The Kerala legislature can’t decide what counts as illegal speech online especially when the field is occupied by central legislation, in the form of the IT Act. It also creates an offence without examining whether the alleged culprit intended to cause “annoyance” or not, known in judicial parlance as mens rea.
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The apex court is currently hearing a clutch of petitions all pertaining to freedom of speech on the internet. The petitioners include everyone from advocacy groups like the People’s Union for Civil Liberties and Common Cause to websites like Mouthshut.com. Even Bangladeshi author Taslima Nasreen and Member of Parliament Rajeev Chandrasekhar are petitioners in the case. All of them are calling, in some way or the other, for shackles to be taken off of free speech online.
The most prominent challenge is to section 66A of the Information Technology Act. That’s the provision that has allowed people to be arrested simply for making fun of politicians online or for “causing annoyance”. Section 66A has been well covered in the Indian media, thanks to the government's admission of the frequent misuse of the powers it gives the police. The BJP’s supporters even likened this provision to the Emergency when it was in the Opposition, but indications now suggest that the government will seek to defend its constitutionality.
But this case isn’t just about 66A. The petitioners have also taken issue with a number of other sections in the IT Act that they believe are unconstitutional, as well as various other provisions from different laws that seek to restrict the kind of content that can go online. If the Supreme Court ends up delivering a verdict that covers all of these laws, it could fundamentally alter how the internet works in India and what free speech could mean for our digital future.
Here’s a look at the other sections being challenged, with arguments excerpted from the various petitions filed against them:
*Information Technology Act, section 69A
Power to block any content
Section 69(A) of the act allows the government to block any website or internet service, without giving the creator or provider of the content a chance to defend the material or even to get it unblocked. It effectively gives the authorities the power to censor without having to give any explanations for why it has done so.
Why it should go: “It does not provide any effective remedies of redressal for the legal entities/members of the public whose information, generated, transmitted, received, stored or hosted on any computer resource, is blocked for access by the public or caused to be blocked for access.”
*Information Technology Act, section 79(3)
Punishment for platforms like YouTube that don’t censor
This provision says that an “intermediary” such as YouTube or Facebook could face punishment in case it does not actively censor material that the government or any third party complains about. The intermediary has no opportunity to be heard if a private party demands that some content should be taken down.
Why it should go: “Section 79(3)(b) in its current form hands a motivated party a lethal tool to bring the business of an intermediary to a grinding halt by flooding it with baseless take-down notices with impunity.”
*Information Technology Act, section 80
Carte blanche to arrest anyone who commits a cybercrime
If there’s even an apprehension that someone is about to commit any offence under the IT Act, this provision gives powers to police officers to arrest that person without a warrant. Essentially, just saying that someone might be about to commit a cybercrime would be enough for a policemen to arrest them even before any actual content has been uploaded.
Why it should go: “There can be no scientific formula or objective guideline, which could give any guidance to a police officer in arresting any person in a public place who is about to commit an offence/cybercrime…section 80 is capable of patent abuse and allows a police officer of the rank of an Inspector to arbitrarily exercise the powers conferred by it.”
*Intermediary Rules, 2011 -- Rules 3(2), 3(3), 3(4) and 3(7)
Onus on platforms like YouTube and Facebook to censor content
These rules add even more restrictions on how intermediaries operate, essentially passing most of the work to them. Among other things, they require companies like Facebook and YouTube to tell their users not to upload content that might be “blasphemous”, “disparaging” or “grossly harmful.”
They require these intermediaries to summarily remove any such content, with the presumption that these companies are monitoring all of their content themselves. They also mandate assistance to authorities not just to take down problematic content but also to “prevent cyber security incidents.”
Why it should go: Portions of the rules require “pre-screening of user-generated content, which is beyond the scope of any restriction that may be imposed on the users’ freedom of speech and expression”. Because the rules also include broad categories for problematic content, they leave “untrammelled and unguided discretion in the hands of the executive as also motivated third parties”.
*Kerala Police Act, section 118(d)
Punishing those who “cause annoyance” by sending mails
Much like section 66A, this provision of the Kerala Police Act makes it illegal to cause annoyance to anyone in an “indecent manner” by sending messages or mails by any means. Also like 66A, it was meant to be a safeguard against stalkers and spammers, but has been used instead as a way of suppressing certain kinds of speech.
Argument: The Kerala legislature can’t decide what counts as illegal speech online especially when the field is occupied by central legislation, in the form of the IT Act. It also creates an offence without examining whether the alleged culprit intended to cause “annoyance” or not, known in judicial parlance as mens rea.