Expression and Information Technology

Note the structure, because it is the same three-part test used in [Privacy and Surveillance]: a law, a listed aim, and necessity. Note also that the list of aims in article 19(3) is closed. A restriction serving an aim not on the list fails whatever its merits.

Constitution of India, article 19(1)(a), guarantees freedom of speech and expression, and article 19(2) permits reasonable restrictions on eight enumerated grounds. That list too is closed, which is the pivot of the Indian case.

The Indian case

Shreya Singhal v. Union of India, AIR 2015 SC 1523, (2015) 5 SCC 1, decided on 24 March 2015 by Chelameswar and Nariman JJ, judgment by Nariman J.

Facts. Writ petitions challenged section 66A of the Information Technology Act 2000, inserted by the 2008 amendment, which punished sending by a computer resource or communication device information that was grossly offensive or had menacing character, or that the sender knew to be false but sent for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will. The petitions followed arrests for material posted online, and also challenged section 69A and the Blocking Rules 2009, section 79 and the Intermediary Guidelines Rules 2011, and section 118(d) of the Kerala Police Act.

Held, on section 66A. It is struck down in its entirety, being violative of article 19(1)(a) and not saved under article 19(2). The Court held it unconstitutional on the ground of overbreadth, because it takes within its sweep protected speech and speech that is innocent in nature, and is therefore liable to be used so as to have a chilling effect on free speech.

Held, on the rest of the scheme. Section 69A and the Blocking Rules 2009 are constitutionally valid. Section 79 is valid subject to section 79(3)(b) being read down to mean that an intermediary, on receiving actual knowledge from a court order or on being notified by the appropriate government or its agency that unlawful acts relatable to article 19(2) are going to be committed, then fails expeditiously to remove or disable access to the material; the Intermediary Guidelines Rules 2011 are valid subject to rule 3(4) being read down in the same way, the knowledge spoken of being only through the medium of a court order. Section 118(d) of the Kerala Police Act is struck down as violative of article 19(1)(a) and not saved by article 19(2).

Why it matters here. It is the clearest Indian instance of the sequence this paper describes: a technology creates a capability; Parliament legislates in wide terms because it cannot foresee the uses; a court cuts the legislation back on constitutional grounds. It also decides the practical question for every platform, by making a court order, rather than a private complaint, the trigger for an intermediary's duty to remove. A candidate should note both halves of the decision. Answers that say only that section 66A was struck down leave out the part that governs everyday practice.

A warning about the text. The consolidated copy of the Information Technology Act served by India Code still prints section 66A. It is void, and a candidate who paraphrases it as live law has made an error that the judgment itself forecloses.

Restriction in the new forms

The older law of speech contemplated a prosecution after publication, or a licence before it. Technology produced four mechanisms that fit neither description, and they should be distinguished in an answer because their legal treatment differs.

1. Blocking. The State orders access to specified material disabled. In India this is section 69A, upheld in Shreya Singhal, the Court noting the safeguards in the section and the Rules. It is prior restraint in substance and is treated as permissible where the statutory conditions are met.
2. Intermediary liability. The State makes the carrier answerable for what the user says, which converts a private platform into a censor with an incentive to remove first and ask later. The Shreya Singhal reading down of section 79(3)(b) is the answer to that incentive.
3. Shutdown. Access is suspended for a region or a population, restricting not one speaker but everybody's right to seek and receive. It is treated under proportionality, and the leading Indian authority is queued for Module IV.
4. Private moderation. The largest volume of restriction is imposed by platforms under their own terms, where no State action is involved and the human rights framework operates, if at all, through the State's duty to protect rather than its duty to respect. This is the point developed in [The State's Duty to Regulate Technology].

Worked example

A State issues an order requiring platforms to remove, within six hours of a complaint from any government officer, content that is "likely to disturb public tranquillity", failing which the platform loses its protection from liability for all user content.

Which right, and whose? Article 19(1)(a) and article 19(2) of the Covenant, of the person whose content is removed; and the right to seek and receive of everybody who would have read it. The second is usually forgotten and is the stronger point where the removal is at scale.

Legality. Is "likely to disturb public tranquillity" precise enough that a person can foresee what is prohibited? Shreya Singhal struck down section 66A partly because terms such as "grossly offensive" and "annoyance" left a person of ordinary intelligence unable to know what was forbidden.

Legitimate aim. Public order is on the list in both article 19(3) and article 19(2) of the Constitution, so the aim is available.

Necessity and proportionality. Six hours with liability for the whole platform on failure is an incentive to remove everything complained of without examining it, which is the structural objection to intermediary liability. The reading down in Shreya Singhal addresses exactly this by requiring a court order.

Overbreadth and chilling effect. The two doctrines the case turns on. The scheme reaches protected speech along with unprotected, and its effect is that speakers avoid lawful speech for fear of the consequence. Both are grounds of invalidity in themselves, independent of whether the power is in fact abused.

What it does NOT mean

It does not mean online speech has a special or lesser protection. The right applies through "any media"; the medium changes the analysis of proportionality, not the standard.

Striking down a provision is not deregulation. Shreya Singhal upheld the blocking power and preserved intermediary liability in a narrowed form. It replaced a bad rule with a workable one.

Private removal is not censorship in the constitutional sense, because the constitutional guarantee runs against the State. That is a reason to reach it through the duty to protect and through regulation, not a reason to treat it as unimportant, since it is quantitatively the largest restriction there is.

And the right to hold opinions is absolute. Article 19(1) has no limitation clause, which matters when a technology proposes to infer or influence what a person thinks rather than to restrict what they say.

Quick revision

• UDHR article 19 and ICCPR article 19(2): freedom to seek, receive and impart information and ideas through any media and regardless of frontiers. The technology expanded the first two, which the older law neglected.
• ICCPR article 19(1), the right to hold opinions without interference, is absolute. Article 19(3) permits restrictions only if provided by law and necessary for a closed list of aims: rights or reputations of others, national security, public order, public health or morals.
• Constitution: article 19(1)(a) with the eight grounds in article 19(2), also a closed list.
• Shreya Singhal (2015): section 66A struck down in its entirety, violative of article 19(1)(a), not saved by article 19(2), on the ground of overbreadth because it sweeps in protected and innocent speech and has a chilling effect. Section 69A and the Blocking Rules 2009 valid. Section 79 valid subject to section 79(3)(b) being read down to require actual knowledge by court order or government notification; rule 3(4) read down likewise. Section 118(d) of the Kerala Police Act struck down.
• India Code's consolidated Act still prints section 66A. It is void.
• Four new mechanisms of restriction: blocking, intermediary liability, shutdown, private moderation.

Test yourself

1. Which two of the three activities protected by article 19 were transformed by information technology, and why does that matter? The freedom to impart information and the freedom to seek and receive it. When the means of mass publication were expensive, the freedom to impart belonged in practice to those who owned presses and broadcasting licences, and the freedom to seek and receive was confined to what those owners chose to publish. Technology made imparting nearly costless and made seeking a real activity. It matters because it establishes that the relationship between this technology and this right is not only one of threat: the same development that supplied new means of restriction also enlarged the substance of the right, which is the dual use proposition applied to expression.

2. Set out what was decided in Shreya Singhal, on all four matters before the Court. Section 66A of the Information Technology Act 2000 was struck down in its entirety as violative of article 19(1)(a) and not saved by article 19(2), on the ground of overbreadth, because it takes within its sweep protected and innocent speech and is liable to be used so as to have a chilling effect. Section 69A and the Blocking Rules 2009 were held constitutionally valid. Section 79 was held valid subject to section 79(3)(b) being read down, so that an intermediary's duty arises only on actual knowledge received through a court order or on notification by the appropriate government or its agency that unlawful acts relatable to article 19(2) are going to be committed; the Intermediary Guidelines Rules 2011 were held valid subject to rule 3(4) being read down in the same manner. Section 118(d) of the Kerala Police Act was struck down as violative of article 19(1)(a) and not saved by article 19(2).

3. Explain overbreadth and chilling effect, and why each is a ground of invalidity independent of actual abuse. A provision is overbroad when its terms reach beyond the speech that may legitimately be restricted and take in speech that is protected or innocent. A chilling effect is the consequence that speakers, uncertain where the line falls and unwilling to risk prosecution, refrain from lawful expression. Each is independent of actual abuse because the injury is done by the existence of the provision rather than by its enforcement: a person who does not speak because of a law that might reach them has lost the right without any prosecution occurring, and the loss cannot be repaired by an assurance that the power will be used sparingly, since the assurance does not restore the certainty the speaker lacked.

4. Why is intermediary liability a structural threat to expression, and how did the Court answer it? Because it places the cost of a wrong decision entirely on one side. A platform that removes lawful content loses nothing, while a platform that leaves unlawful content in place risks liability for everything its users say, so any rule that makes liability turn on a private complaint gives the platform an overwhelming incentive to remove first and examine afterwards. The censor is then a private party with no duty to the speaker and no procedure the speaker can invoke. The Court answered it by reading down section 79(3)(b) so that the intermediary's obligation is triggered only by actual knowledge through a court order, or by notification from the appropriate government or its agency relating to acts covered by article 19(2), and by reading rule 3(4) of the Intermediary Guidelines Rules 2011 in the same way.

5. Why does it matter that the list of permissible aims in article 19(3) is closed? Because it removes from the State the argument that a restriction is justified by some purpose it considers valuable but that the instrument does not name. A restriction on expression must be provided by law and necessary for respect of the rights or reputations of others, or for the protection of national security, public order, public health or morals, and no other aim will do. A State that restricts speech to protect the dignity of an office, to prevent embarrassment, or to preserve an official account of events is therefore defeated at the second stage without any inquiry into proportionality. Article 19(2) of the Constitution works in the same way with its own eight enumerated grounds, which is why so much Indian argument is about whether a restriction can be fitted into one of them.