It is creditable that the Supreme Court has attempted to balance intermediary liability with freedom of expression in the Shreya Singhal case, but new procedural safeguards are required

The jubilation with which the Shreya Singhal case has been greeted is justified on several counts, most of them to do with free speech jurisprudence and the criminalisation of speech through clumsily drafted laws like the infamous Section 66A of the Information Technology Act. On the other hand, the Supreme Court’s conclusions about intermediary liability have been greeted with mixed feelings. While the court has read down parts of the law to ensure that non-governmental parties cannot easily remove online content by force, it has left the process followed by the government to block content largely untouched, with only a few statements that might force a little improvement in the system.

What does the ruling really mean for government-ordered blocking of online content or third-party takedown requests?

Online intermediaries may be Internet service providers who connect us to the Internet; or online platforms such as Facebook, Google Search or InstaGram that enable us to publish and circulate content. Intermediary liability makes these bodies liable for user-generated content that they publish or circulate. Since these intermediaries deal in huge volumes of content, it is impossible for them to monitor it all individually. This is why the IT Act grants them immunity from liability for the content that they circulate or publish. This immunity does not apply to intermediaries such as newspaper websites or curated blogs or aggregation websites that perform any editorial or content-monitoring function.

Although requiring online intermediaries to monitor all the content they circulate is unsustainable, the fact remains that their co-operation is necessary for the removal of certain kinds of harmful speech such as child pornography. This is why most countries have a system that allows them to ask intermediaries to block or take down specified illegal content. The Indian IT Act created such a system, enabling the government to ask for the blocking of content and set up a process for content removal by intermediaries.

The Supreme Court examined the system to see if it lacked safeguards that would prevent misuse resulting in blocking of legal and constitutionally protected content. The court then read down the Intermediary Guidelines, which required intermediaries to take down content at the behest of any third party user.

After the Shreya Singhal verdict, non-governmental parties will need to obtain a court order to get an intermediary to take down content. This is progress, since the old notice and take-down system resulted in the removal of perfectly legitimate content by intermediaries in a bid to avoid the risk of litigation. It is a significant step for our jurisprudence that the Supreme Court already recognises that online content can be affected by indiscriminate user-notices because intermediaries lack the constitutional legitimacy, resources, or incentives to identify which user-notices are valid in law.

Blocking by government order

However, amid the celebration of the Shreya Singhal verdict are notes of dissatisfaction. These relate to the way in which the Supreme Court has handled government-ordered blocking of content. The court has declared that the blocking process has several safeguards preventing its abuse. Some of the safeguards that it has listed were not apparent from a plain reading of the law, so the clarifications are a welcome step.

For example, the court has read the Blocking of Access rules to mean that written reasons shall be provided in each blocking order so as to permit a writ petition challenging the order if necessary. Government blocking orders have not offered written reasons consistently thus far, so the obligation emerging from this judgment may improve the process and may allow intermediaries to reject orders that do not list reasons in writing.

The court also read Rule 8 to mean that the right to a pre-decisional hearing before issuing a blocking order extends to the content creator or originator. This right to a hearing for authors of content was certainly not clear from the language used in Rule 8, so the judgment potentially improves the accountability of the blocking system by recognising this right. Since Rule 8 requires the government to make all reasonable efforts to identify such a person, this judgment potentially opens the door to challenges of particular blocking orders on the basis that reasonable effort was not made to offer the content originator an opportunity to be heard.

However, the Supreme Court has placed a lot of faith in an opaque government process based on an erroneous understanding of the capacities of the different parties involved. For example, the government content-blocking safeguards have been declared effective on the assumption that the blocking system offers a reasonable opportunity to be heard and to appeal an unconstitutional blocking decision.

This is, however, misleading. It assumes that the content-originator will be contacted and given a reasonable opportunity to contest the blocking of the content. In the alternative, it assumes that the intermediary will defend the content adequately before the government committee. Both assumptions are far off the mark.

The nature of the Internet, with its anonymity and geographic spread, makes it likely that the content-originator may not be contacted, may be in another country or may lack the resources to make her case. Intermediaries will not adequately defend the content since they tend to avoid spending resources on defending third-party content. This makes it likely that the information that we are able to access will continue to be affected unreasonably by government blocking orders.

The blocking process continues to be shrouded in secrecy owing to Rule 16 of the Blocking of Access rules, which requires that confidentiality be maintained around all blocking orders. This rule was challenged in the Shreya Singhal case but the Supreme Court left it untouched. For originators and readers to realise that their content has been blocked by a government order, the hosting page should at the very least carry a notification of the government-ordered block along with reasons.

Rethink traditional safeguards

This is the first time that the Supreme Court has attempted to balance the legitimate usage of intermediary liability with freedom of expression concerns. Given the complex nature of online intermediary liability, this is a creditable beginning.

Yet, the nature of the Internet requires the creation of new procedural safeguards that will enable users access to other, more traditional, safeguards such as a hearing and the opportunity to appeal a bad decision. In many ways, transparency and a notification of blocking on the site are the digital age’s version of the written government notices that support our rights in the offline world. Our regulatory framework and our understanding of fair process need, therefore, to evolve to keep up with the advances in the digital world.

(Chinmayi Arun is Research Director, Centre for Communication Governance, National Law University, Delhi.)

In many ways, transparency and a notification of blocking on the site are the digital age’s version of the written government notices that support our rights in the offline world