Offensive online? Three years in jail

In 2013 MLDI supported a challenge to the Supreme Court of India to protect freedom of expression online from over-broad legislation in the Information Technology Act of 2010. MLDI and The Software Freedom Law Center were successful in their challenge.

As technology grows in scope and importance in all our lives, the laws which govern it also grow. However, in India in 2011 the laws brought in to regulate this space were over-broad and a threat to both freedom of expression and journalism online.

The issue came about when the laws which had governed digital space (from the year 2000) were replaced by the Information Technology Act of 2010, which came into force in April 2011. The new Act was primarily aimed at regulating ecommerce and preventing cybercrime. However, it also included extremely vague rules which risked criminalising and censoring huge amounts of online content.

Specifically Section 66A of the Act made it an offence, punishable with up to three years imprisonment and a fine, for a person to publish online “any information that is grossly offensive” as well as “any information which he knows to be false, but for the purpose of causing annoyance, inconvenience” or “insult”. The section also criminalised similar content over emails.

This criminalisation of speech was a serious threat to freedom of expression, and created a bizarre situation where a newspaper could safely publish articles in print but would risk criminal prosecution for publishing the same article in an online edition. The Act also allowed for arbitrary blocking and filtering of the internet, and cutting off from the internet as a sanction for copyright violations.

The Act also allowed arresting people without a court order or any involvement of a judicial body. In essence: it was up to the police to decide who was charged. This lead to several arrests which were seen to be politically motivated. There were highly publicised incidents of people being arrested simply for posting content, often on social media, which expressed dissenting political opinions.

Another part of the Act left the responsibility for web content deemed offensive with web hosts and intermediaries (such as internet service providers, blogging platforms or social media companies). Without the capacity to moderate and decide on the merit of content, and faced with the possibility of legal proceedings: there was a strong possibility many intermediaries would simply choose to remove content at the first complaint, creating a de facto censorship, without any legal recourse. Many technology companies also objected to these new provisions.

The Software Freedom Law Center is a donor-funded Indian organization which brings lawyers, software developers, policy makers and students with the aim of protecting freedom of expression online. With support from MLDI they joined a number of other organisations as petitioners and submitted a challenge to those laws at the Supreme Court of India. The petition was argued by Harish Salve, one of India’s foremost public lawyers.

In 2015 the Supreme Court invalidated the controversial Section 66A of the Information Technology Act, declaring it unconstitutional in its entirety. The Court held that prohibiting disseminating information using a computer technology for a purpose intended to cause annoyance, inconvenience or insult did not fall within any reasonable exceptions to the exercise of the right to freedom of expression.

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