In 2015, I led the team which challenged the intermediary liability regime (as it existed then) on behalf of the Internet and Mobile Association of India in W.P (C) No. 758/2014, which was decided along with the batch of Shreya Singhal petitions which challenged Section 66A and 69A of the Information Technology Act, 2000. Specifically, in the said petition, the constitutional validity of Section 79(3)(b) of the Information Technology Act, 2000 and the Intermediary Guidelines, 2011 were challenged. Upon delivery of the much-awaited decision on March 24, 2015, I had written that while the judgement was certainly a welcome and necessary step forward in preserving the democratic nature of the internet and to ensure that unconstitutional limitations were not imposed on exercise of free speech and expression citing the nature of the medium, the Supreme Court did miss a historic opportunity to strike a more comprehensive and nuanced position in so far as intermediary liability was concerned. This was evident from the cursory manner in which the Supreme Court dealt with the challenge to Section 79(3)(b) of the Information Technology Act, 2000 and Rule 3 of the Intermediary Guidelines, 2011. The entire discussion relating to these provisions was limited to the last six paragraphs of the decision i.e. Paras 112-118, apart from the holding in Para 119(c). The analysis of the parent provision i.e. Section 79(3)(b) itself was undertaken only in Paras 116 and 117 of the judgement.

In Para 116, the Court observed that in contrast to the takedown mechanism under Section 79(3)(b), blocking of content on websites under Section 69A of the Act was possible (a) through issuance of a reasoned order by a Designated Officer applying the procedural safeguards provided under the Act and the 2009 Rules or (b) under the order of a competent court directing the Designated Officer to block a website or content on a website. Importantly, the Court noted that under Section 69A, unlike under Section 79(3)(b), an intermediary was not expected to adjudicate on blocking of content under the provision. This led the Court, in Para 117, to read down “actual knowledge” under Section 79(3)(b) to mean receipt of a Court order directing the intermediary to expeditiously remove or disable access to content. To this extent, the judgement provided much-needed respite to intermediaries who were caught in the crossfire between the issuer of the notice and their users to whom they were bound by the terms of use of their portals.

However, while the analysis of “actual knowledge” in the opening lines of Paragraph 117 was in the context of issuance of a takedown notice by a private party, which was read down to mean ‘actual knowledge’ obtained through receipt of a court order, there was no reference in the analysis to a takedown being required as a consequence of “notification by the appropriate Government or its agency”. The reference to government notification found its way only at the fag end of Paragraph 117 and that too in the context of Article 19(2). Extracted below is the relevant excerpt:

“Also, the Court order and/or the notification by the appropriate Government or its agency must strictly conform to the subject matters laid down in Article 19(2). Unlawful acts beyond what is laid down in Article 19(2) obviously cannot form any part of Section 79. With these two caveats, we refrain from striking down Section 79(3) (b).”

Again, takedown through government notification was included in the operative findings of the Court in Para 119(c) were as follows:

“(c)Section 79 is valid subject to Section 79(3)(b) being read down to mean that an intermediary upon receiving actual knowledge from a court order or on being notified by the appropriate government or its agency that unlawful acts relatable to Article 19(2) are going to be committed then fails to expeditiously remove or disable access to such material. Similarly, the Information Technology “Intermediary Guidelines” Rules, 2011 are valid subject to Rule 3 sub-rule (4) being read down in the same manner as indicated in the judgment.”

The language of Paragraphs 117 and 119(c) lend credence to the view that receipt of or constructive notice of a notification of an appropriate government or its agency too would amount to actual knowledge. Unfortunately, the Court did not examine the constitutionality of the use of government notifications to cursorily take down content. In addition to this, the further observation of the Court that Orders of the Court and Government Notifications “must strictly conform to subject-matters laid down in Article 19(2) and that unlawful acts beyond what is laid down in Article 19(2) obviously cannot form any part of Section 79”, has given rise to three different interpretations of the judgement:

• Interpretation 1: Since Court Orders and government notifications must conform to Article 19(2), it must obviously only relate to content that attracts Article 19(1)(a). Therefore, receipt of court order or government notification as actual knowledge is a safeguard that applies only to content which falls under Article 19(1)(a). The consequence of this is that mere cease and desist notices would continue to constitute actual knowledge in relation to content which falls outside the ambit of Article 19(1)(a). This defeats the very ratio of the Supreme Court which was to not put the intermediary in the position of an adjudicator of the lawfulness of any content.
• Interpretation 2: Since, according to the Supreme Court, unlawful acts beyond what is laid down in Article 19(2) obviously cannot form any part of Section 79, the very applicability of Section 79 and the immunity granted thereunder does not extend to any unlawful act which falls outside Article 19(2). This obviously exposes intermediaries to legal action to unlawful acts which fall outside the ambit of Article 19(2) despite them playing the limited role of intermediaries.
• Interpretation 3: Court orders or government notifications constitute actual knowledge in all cases and in relation to all kinds of content. Where the content is relatable to Article 19(1)(a), the limitations and safeguards of Article 19(2) apply to Court orders as well as Government notifications.

In this author’s opinion, the third interpretation is perhaps the most faithful to the language and intent of Section 79, as well as to the Supreme Court’s ratio behind reading down the meaning of actual knowledge and introducing Article 19(2) in the context of free speech. That being said, one hopes the constitutional validity of taking down content summarily through mere government notifications is taken up for reconsideration in the future.