A Take on Section 66A,69 and 79A
In this article, we will cover other provisions that have attained a degree of notoriety in recent times for their effect on suppressing online freedom of speech and expression but before we get down to such laws let us first shed some light on the difficulties that India as a nation faces in maintaining a balance between keeping the cyber world free of crimes and anti- social elements and at the same time safeguard the right to freedom of speech. India is the largest democracy in the world and perhaps the most diverse country in terms of cultures and religions. It has a past filled with violence and religious riots hence it becomes almost imperative for such a nation to have restrictive laws in place in order to make sure that incidents of the past are not repeated. Having said this, freedom of speech is the fundamental right of every human being which cannot be compromised at any cost. So, India should try and improvise its laws in such a manner that both the harmony is maintained and the freedom of speech remains intact.
March 24th,2015 was truly a pivotal day in the history of Cyber- laws and laws governing Social media in India. It has already been covered in the previous segment of this assignment that in a landmark judgment by the Supreme Court of India struck down Section 66A which gives power to the police to arrest citizens who have posted “Offensive” content on the internet. This should be seen as decent start in improving the existing laws that undermine the right to freedom of speech in the cyber world in India and formulation of laws that are fair to both parties but there is still a long way to go. It must be noted here that although some of the sections of the IT law pose a serious threat to the right to freedom of speech but their existence is very crucial in order to keep the society secured from antisocial elements. The laws have to be modified in such a manner that the crimes on the cyber world are kept in check and at the same time the freedom of speech of the common man is not compromised.
In the recent past there have been a number of instances wherein the freedom of speech of the people has been compromised and as a result many petitions have been filed challenging the constitutionality of sections like 66A, 69A and 79 because of which there has been uproar in the entire nation. Section 66(A) which was on similar lines as the Section 188D of the Kerala police act gave immense power to the police to arrest citizens for content that is seen as offensive, the terms set for which are very vague in nature. Although The Supreme court struck down section 66A there are a lot of sections still in existence that are a major threat to the right to freedom of speech.
What about Section 69A?
Section 69(A) of the IT(Amendment) Act, 2008, allows the central government to block content where it believes that its content threatens the security of the state; the sovereignty, integrity or defense of India; friendly relations with foreign States; public order ; or to prevent incitement for the commission of a cognizable offense relating to any of the above. The Government adheres to a set of rules and protocols while doing so which have been termed as the Blocking Rules. Blocking done under this section is not a take down with which it has been misunderstood many a times. Technically, a take down is defined as the removal of content by an online platform such as twitter, whereas block disables access for a user through an internet service provider such as Vodafone.
The problem with this section is not the blocking of the sites but the manner in which the blocking is done by the government. The government has routinely blocked content on websites in absolute secrecy without the scrutiny of the judicial bodies which is very threatening for the right to freedom to speech. Online blocking was in news recently when on pretext of stopping the spread of propaganda of terrorist groups like ISIS in India the government went on to block entirely innocuous site like Github.com without any pre-decisional hearing to the originator of the content before blocking was carried out. While the rules indicate that if the originator is identified, the hearing is mandatory to be given to him or her. However, in practice it is never followed. In fact, there has not yet been a single instance wherein the originator has been given the pre-decisional hearing before blocking the content. The RTI applications that have been submitted have either not been answered or have come back with an incomplete explanation.
The constitutional challenge put up by the People’s Union for Civil Liberties is not based on the blockings being done but it is done on the manner in which these blocking have been done. The court has rejected the challenge on section 69A stating that under the rules if the originator of the information is identified then he/she is entitled to a 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.
But like how every cloud has a silver lining, the silver lining in this case was that although the courts rejected the challenge to section 69 A, its stress on the need for a written order in case of blocking will certainly increase transparency substantially.
And what about Section 79 ?
Section 79 of the Information Technology Act 2000 says that Intermediaries, websites like Google, Yahoo, Facebook etc are not liable for third party information if they observe due diligence while discharging their duties. It provides immunity to intermediaries and protects them against content posted by users on the site. It seems imperative to immune the intermediaries as it is simply impossible for the sites to monitor the amount of data that gets uploaded every day in real time. Intermediary immunity is essential for the very existence of many of the websites that we have come to depend upon.
However Section 79(3) contains a brutal exception to this 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. There is more to it. If the sites get informed about the offensive content by an affected person then the site has a time limit of only 36hrs to remove that content. This seriously undermines the freedom of speech .The individual is more likely to complaint for some content keeping his/her own personal reasons in mind and the intermediary , under the pressure of section 73, would most likely take down the post. This is a big challenge for this section. If we look from a business perspective of the intermediary, determining whether the content is offensive or not, would result in a great deal of legal liabilities that would hugely impact their profits. An example of an Indian intermediary is mouthshut.com. The company has filed in a petition challenging Section 79.The court responded positively for 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.
Concluding this section of the assignment I would say that yes by striking down Section 66A, the court has done away with one of the most oppressive censorship laws this country has ever known. It is not a complete step but it is definitely a vital first step.
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