Reading Down Of Section 79(3)(b) And Rule 3(4) By Supreme Court In The Present Manner Is Counter Productive In Long Run: Praveen Dalal

Praveen Dalal-Managing Partner Of Perry4Law And CEO Of PTLBThe judgment of Shreya Singhal v. Union of India (24th March 2015), Writ Petition (Criminal) No.167 Of 2012 (PDF) has been delivered but its interpretation and consequences are yet to be analysed. The Cyber Crime Investigation Centre of India (CCICI) has been covering the problematic aspects of the judgment one by one. The same have been provided in the form of extended analysis of the tweets of Praveen Dalal at Twitter.

CCICI has already covered his opinions that say that Supreme Court’s Judgment on Section 66A is a big blow for Cyber Law Due Diligence in India and Modi Government must urgently bring suitable Amendments in the IT Act 2000. In this post CCICI is analysing another opinion of Praveen Dalal that maintains that reading down of Section 79(3) (b) by Supreme Court in the present manner is “Counter Productive” in long run.

A detailed analysis is not within the scope of this article and we are deliberately refraining from doing the same. However, if Narendra Modi government proposes an amendment in the Information Technology Act, 2000 (IT Act 2000) or if the Supreme Court reviews its judgment, we would be sharing our detailed analysis with them at appropriate stage.

Let us first analyse what the judgement has said about Section 79(3) (b) at para 117. It reads that Section 79(3) (b) has to be read down to mean that 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. This is for the reason that otherwise it would be very difficult for intermediaries like Google, Facebook etc. to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not. We have been informed that in other countries worldwide this view has gained acceptance, Argentina being in the forefront. 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).

Similarly, at para 118 it has been mentioned that the knowledge spoken of in the Rule 3(4) of Information Technology (Intermediaries Guidelines) Rules, 2011 must only be through the medium of a court order. Subject to this, the Information Technology (Intermediaries Guidelines) Rules, 2011 are valid.

In short, the Supreme Court has held that 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.

According to Praveen Dalal, Supreme Court committed number of mistakes in this regard. The first being removal of “Locus Standi” of “Victims or Affected Persons” to “Directly Approach” the Intermediary to get the objectionable contents removed. The Court has forced all the “Cyber Victims” to first go to the concerned Court and get a “Favourable Order”. If they are lucky enough to get the same after years of litigation, then they have to approach the Intermediary and only thereafter such objectionable contents can be removed. Even then it is up to the Intermediary to respect the order of the Court or to contest the same and go to appeal. You can understand the ordeal of the victim in these circumstances.

The second problem with this reading down approach of Supreme Court is that it would increase further load upon the Judiciary that is already overburdened and facing a mammoth backlog of cases, opines Praveen Dalal. Further, this reading down method of Supreme Court is also going contrary to the objectives of National Litigation Policy of India that intends to reduce litigations in India, informs Praveen Dalal.

Thirdly Supreme Court has unreasonably extended protection to Intermediaries like Google, Facebook, etc that are actively violating laws of India, informs Praveen Dalal. Social media websites and other Intermediaries must be made amenable to Indian laws rather than exempting them from the same. For instance, G-Mail must be blocked in India for both general and official purposes as it abets and encourages commission of cyber crimes in India. In fact, India government has already enforced a ban on private e-mail services for official communications. Foreign companies are taking advantage of conflict of laws in cyberspace and this is causing problems for Indian government. The present decision of Indian Supreme Court would further increase these problems, opines Praveen Dalal.

There are many more issues with the present reading down approach of Supreme Court that we would discuss if any review petition is filed or if the amendment exercise by Indian government is undertaken. The bottom line is that reading down of Section 79(3)(b) and Rule 3(4) by Supreme Court in the present manner is counter productive in long run and this situation must be redressed by Indian Government either through an Amendment or Validation Act, suggests Praveen Dalal.

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