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Landmark Intermediary Liability Decision from the Indian Supreme Court

Recently, the Supreme Court of India issued a landmark decision regarding the constitutionality of several provisions included in the Indian Information Technology Act ("IT Act"). The provisions dealt with content removal online and blocking orders. According to the Supreme Court, vague standards for blocking and removing content online are unconstitutional. Additionally, content blocking must be mandated only by a reasoned order from a judicial, administrative or governmental body and must be transparent.

The case was brought before the Supreme Court by two young ladies arrested by the police for posting on a social networking site critical comments about a city shutdown. Actually, one of these two young women just reinforced the original comment by "liking" it.

First, the Indian Supreme Court struck down provisions heavily censoring online speech through the implementation of amorphous and overbroad standards. Specifically, the Court declared Section 66A of the Information Technology Act as unconstitutional. Section 66A allowed both criminal charges against users and the removal of content by intermediaries based on allegations that the content was “grossly offensive or has menacing character”, or that false information was posted “for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will." The Court noted that Section 66A did not qualify as a reasonable restriction on freedom of expression by being vaguely worded and allowing misuse by the police.

Second, the Supreme Court construed Section 79 of the IT Act in such a manner that removal of content online may only occur if an adjudicatory body issues an order compelling intermediaries to remove the content. Section 79 of the IT Act provided that safe harbors from liability for online intermediaries could be suspended if the intermediary fails to take down content upon “receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit [an] unlawful act”. The recent Indian Supreme Court interpretation of Section 79 shields intermediaries from liability unless they fail to comply with an order directing them to remove the illegal content, rather than merely a private party request. According to the Manila Principles, this may still be a very unsatisfactory arrangement as "content must not be required to be restricted without an order from a judicial authority." In particular, the judgment still maintains in place Section 69A of the IT act that provides the government with the "power to issue directions for blocking for public access of any information through any computer resource [ . . . ] [w]here the Central Government or any of its officers specially authorised by it in this behalf is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above." However, this is still a victory for online freedom of expression as the Indian Supreme Court clarifies that private parties should not be able to force content offline just by sending a notice to online intermediaries. 

Finally, the court stated that transparency standards should apply to blocking orders and all website blocking orders should be made public.

The full text of the Indian Supreme court judgment can be found here.

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