The Supreme Court of India has over the past one year passed various orders in the case of Sabu Mathew George v. Union of India & Ors. [WP(C) 341/2008] that are undermining internet freedom, particularly the right of free expression online. The case concerns allegations that search engines are acting in contravention of S. 22 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act (hereinafter referred to as “the Act”) insofar as they are showing results relating to sex determination kits and techniques. A series of orders passed in the case throw up the worrying prospect of undermining intermediary liability exemptions, and hence increasing censorship without proper safeguards.
Information on the orders of the Court
The Supreme Court, in its order dated 19.09.2016, following the submission of the Solicitor General of India, directed the respondents to develop a, “technique so that the moment any advertisement or search is introduced into the system, that will not be projected or seen by adopting the method of auto-block.” This, “doctrine of auto-block”, as per the Supreme Court, shall ensure that no one can access information that is prohibited under the Act. Such a doctrine of auto-block would also be supported by the blocking of the auto-completion of the search query. In order to develop these techniques, a list of words was approved for which auto-completion and results would be blocked and a warning would be showed. The Supreme Court also stated that this has to be an in-house procedure introduced by search engines to pro-actively filter content. To further prevent contravention of the Act, the Supreme Court in its Order dated 16.11.2016 stated that a nodal agency should be set up which will provide search engines the details of the website to be blocked because they were acting in contravention of the Act. This would be without the court examining the legality of specific requests. A further report on the hearing on 16.02.2017 as reported by the Center for Communications Governance is available here.
Conflict with the Shreya Singhal Judgement and International Norms
The orders of the Supreme Court in the Sabu Mathew case suggest that intermediaries can be held liable even for information without prior knowledge. This is surprising, considering the landmark judgment of the Supreme Court in the case of Shreya Singhal v. Union of India, where S.79(3)(b) of the Information Technology Act was read down by the Supreme Court to mean that an intermediary can be held liable only when, “the intermediary upon receiving actual knowledge that a court order has been passed asking it to expeditiously remove or disable access to certain material must then fail to expeditiously remove or disable access to that material”.
The decision of the Supreme Court also conflicts with the view expressed by a host of committees on Internet rights and freedom of speech. The UN’s Special Rapporteur on Freedom of Opinion and Expression has expressly stated that
“[w]hile a notice-and-takedown system is one way to prevent intermediaries from actively engaging in or encouraging unlawful behavior in their services, it is subject to abuse by both State and private actors. Users who are notified by the service provider that their content has been flagged as unlawful often have little recourse or few resources to challenge the takedown. Moreover, given that intermediaries may still be held financially or in some cases criminally liable if they do not remove content upon receipt of notification of users regarding unlawful content, they are inclined to err on the side of safety by over-censoring potentially illegal content. Lack of transparency in the intermediaries’ decision making process also often obscures discriminatory practices or political pressure affecting the companies’ decisions. Furthermore, intermediaries, as private entities, are not best placed to make the determination of whether a particular content is illegal, which requires careful balancing of competing interests and consideration of defences.”
Concerns that arise from the case
We at the IFF are concerned with the developments in the Sabu Mathew George case and consider it problematic for a host of reasons.
Firstly, the doctrine of auto-block can easily lead to legitimate information being censored. Even if the website uses the words in a legal manner, access is blocked because of the mere presence of the questionable terms. This leads to censorship of potentially legal information, and thereby dilutes the right of freedom of speech and expression.
Secondly, the nodal agency established as per the 16.11.2016 order goes against the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009. This is because Rules prescribe that there will be a Committee for the examination of requests for blocking access will review each blocking request and verify whether or not it is in lines with S.69A of the IT Act. There is no such review committee as per the Sabu Mathew George case as the Nodal Agency is merely responsible for intimation of the request to the intermediary. Furthermore, as per the rules, intermediaries are provided a 48-hours window to respond to the request for blocking, whereas the Sabu Mathew George orders only provide for a 36-hours window.
Thirdly, the nature of the ban is more generic than content-specific. The very basis of the censorship is a list of words and their combinations that have been censored, and these words in themselves may not necessarily be illegal - and could in fact often result in censorship of medical literature and other likely legitimate discussions pertaining to this subject.
In light of these reasons, the Sabu Mathew George orders have caused a deep apprehension that the safeguards provided to intermediaries under the IT Act and as per the Shreya Singhal case would be diluted and would no longer effectively protect the intermediaries. Therefore, we urge that the Union Government - after obtaining legal opinion of its law officers - should make the following submissions in Court by filing a counter affidavit to support the rights of Internet users:
- That the doctrine of auto-block and blocking of auto-complete not be used as it leads to over-censorship and impacts the right of freedom of speech and expression. The doctrine of auto block is a dangerous act of censorship which would lack proper safeguards.
- Restate the safe harbors for intermediaries as contained in the judgment of Shreya Singhal v. Union of India and argue against their dilution. The position of law with respect to intermediary liability stated in Shreya Singhal should not undermined by carving out exemptions as being attempted in the Sabu Mathew George.