Bringing Internet Freedom to India
In a historic judgment handed down on Tuesday, India’s Supreme Court recognized the immense importance of freedom of expression in India’s development in the 21st century. In its judgment, the Supreme Court restructured India’s constitutional law on freedom of expression for the internet age.
(To see: Section 66A of the Information Technology Act struck down by the Supreme Court)
We [at the Software Freedom Law Centre] are delighted with this judgment where the judges have once again demonstrated why the Indians have so much confidence in justice. They are committed to constitutional principles, able to adapt to changing times, skillfully understand technology and provide a conducive business environment for transforming a digital India into reality. The judgment cites Shakespeare and excerpts from older, very firm case law covering the span of freedom of speech cases from the United States to older Indian judgments.
The court’s measured and careful treatment of the differences between the three types of speech regulations at issue will guarantee Indian citizens the right to speak freely on public matters; without fear of criminal reprisals. This ruling will also prevent the use of government censorship as a weapon in business competition. The power of the government, subject to due judicial review, to impose constitutionally authorized “reasonable restrictions” on freedom of expression in the interest of national security and public order through Narrowly specific website blocking orders are, however, left untouched.
The judgment of the Court properly rids itself of the generally fearful and anti-internet tone adopted by the judicial officers of the Government of India. The treatment of the Internet by these officers as an area of ”individualistic” and therefore dangerous discourse is as incompatible with the government’s enthusiasm for digital India as it is in conflict with the most basic principles of democracy.
(To see: Government Says Internet Restrictions Should Be Tougher Than Print, TV)
The Court’s ruling, on the other hand, sets a high standard for other democratic societies around the world to emulate, as they strive to enable their citizens to fully benefit from the democratization of communications made possible by the Internet. .
Today, the Supreme Court also reminded us that freedom of speech and of the press is the Ark of the Covenant of democracy. Intermediary companies like Facebook, Twitter and Mouthshut found great relief in this ruling, as now a court order is required for any content takedown.
Section 66A has been struck down in its entirety as unconstitutional and this is a victory for free speech. He identifies the Internet as a marketplace of ideas and correctly describes the expressions used in 66A as completely open and undefined. Recognizing the chilling effect of section 66A, he strikes a blow at it on the grounds of overbreadth and vagueness.
(Also see: How IT law prevents India from producing the next Facebook or Twitter)
Companies like Facebook, Twitter, Mouthshut also found great relief in this judgment. Now, a court order is required to block pages, and an intermediary is only required to remove content if they are notified that a court order has been issued requiring them to promptly remove or disable the access to certain elements. This bodes very well for online businesses that have been inundated with requests to remove all kinds of legal content, as the power to file a complaint has been given to anyone.
The blocking rules that apply to blocking websites under Section 69A have been upheld as the Court finds that there are sufficient safeguards built into the process and that the government must follow them and cannot block any information only on the grounds provided for in Article 19(2). In addition, such restraint orders may be challenged by petition under Section 226 to the High Courts. The Court also recognized that the author of the information (if identifiable) must also be heard before a blocking order is issued.
We hope that the good progress will continue and that the government will seize this opportunity to right the wrongs and facilitate the flow of information and the management of businesses. No more bans!
Mishi Choudhary is a technology lawyer and executive director of SFLC
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