MouthShut V/s Union Of India - Supreme Court -

12Technology(Duediligenceobservedbyintermediaries guidelines) Rules, 2011 is annexedherewith and marked as ANNEXURE P-2 (Pages53-60)k.That on 11th April, 2011, the 1st 11,intermediaries,inexercise of the powers conferred by clause (zg) ofsub- section (2) of section 87 read with subsection (2) of section 79 of the InformationTechnology Act, 2000 (21 of 2000). A true copy ofthe Technology (Intermediaries Guidelines) Rules,2011, notified on 11th April, 2011 is annexedhereto and marked as ANNEXURE P-3 (Pages 6168)l.That Rule 3 of the impugned rules prescribes duediligence to be observed by the intermediary.Sub-rule (1) of rule 3 mandates intermediaries topublish rules and regulations, privacy policy anduser agreement for access or usage of theintermediary's computer resource. Sub-rule (2) ofrule 3 mandates the intermediary to inform usersthe kind of information that cannot be hosted,uploaded,modified,published,transmitted,

13updated or shared.Sub-rule (4) of rule 3requires the intermediary to take action within n of sub-rule (2) within 36 hours,upon obtaining knowledge by itself or on beingbrought to actual knowledge by an affectedperson.m.That after the notification of the impugned Rules,the 1st Petitioner's website has received ons from various parts of the country.Private parties have started writing to the 1stPetitioner to remove genuine reviews in case theybring to light certain negative aspects of aproduct or service, often categorizing them asdefamatory or harassing. Further, on a refusal tocomply with such requests, the 1st Petitioner isbeing flooded with legal notices instructing the 1stPetitioner to remove any negative reviews or elseface defamation charges claiming damages to thetune of Rs. 2000 (Rupees two thousand) croresand criminal proceedings. Although, even prior tothe notification of these impugned rules, the 1stPetitionerwasreceivingsuchrequests,thenumber of requests have increased after the

14notification. A true copy of the notice sent to thePetitioner by a builder M/s Kumar BuildersConsortium dated 27-11-2010 is annexed heretoand marked as ANNEXURE P-4 (Pages 69-71)n.It is submitted that the 1st Petitioner and itsemployees have also started receiving threateningcalls from various police officials of various statesin India asking them to remove adverse reviews orcomments from their website and to provide thedetails of the member who has authored adversereviews. Expressing inability to take such anaction in absence of a written request signed bythe relevant authority or a court order, the 1stPetitioner has so far refused to comply with suchrequests and threats. However, the threats havecontinued and the police officers have threatenedto arrest the Petitioner No.2 under Section 66A ofthe Information Technology Act, 2000. It issubmittedthatuserauthenticationontheInternet is difficult and the 1st Petitioner cannotconfirm and does not confirm user identity withcertainty. Further, even if it were theoreticallypossible, it is this aspect of the Internet thatmakes it possible for users to express themselves

15freely without the fears that normally plagueindividuals in the offline ing to use Information Technology Act,2000 to “jail” him on his refusal to remove“unwanted content.” True copies of the letterssent to the Petitioner by Cyber Crime Cell, TamilNadu dated 16.03.2012 and by Cyber CrimePolice Station Hyderabad City dated 17.03.2012are annexed herewith and marked as ANNEXUREP-5 (COLLY) (Pages er are increasingly receiving threateningphone calls, often at the middle of the nightasking them to take down content. This scenariohas had a negative effect on employee morale andhas made running the operations difficult for the1st Petitioner.q.It is submitted that the impugned Rules impose asignificant burden on the 1st Petitioner forcing itto screen content and exercise online censorshipwhich in turn impacts the Freedom of speech and

16expression of its customers thereby risking a lossof its large consumer base or incurring legal costsand facing criminal action for third party, usergenerated content.It is submitted that while aprivate party may allege that certain content s are usually made by judges andcan involve factual inquiry and careful balancingof competing interests and factors, the 1stPetitioner is not well-positioned to make thesetypes of determinations but is being forced toadopt an adjudicative rolein making suchdeterminations. It is submitted that as per theimpugned rules the 1st Petitioner is required totake an action within thirty six (36) hours ofreceiving arequest by an aggrieved person.However, the 1st Petitioner is incapable of makinglegal leproviding for an affected party to complain aboutthe posted content does not afford a right ofhearing to the user who posted the content whichis removed by the Intermediary. There is no“putting back” provision for the content to reappear if the complaint was frivolous. This allows

17people to file multiple frivolous complaints againstany kind of material, even falsely (since there isno penalty for false complaints), and keep somematerial permanently censored.s.It is submitted that the impugned rules in ictionontheimposefreedomofexpression of the users of these websites andsuch restrictions make it unviable to operate thewebsites. Hence the present Writ Petition.3.That the Petitioner has got no other alternative remedyexcept to file the present Writ Petition before thisHon ble Court. The Petitioner is filing the present WritPetition on the following amongst other Grounds.4.GROUNDSi)Because the Constitutional bench of this Hon’ble Courtin Kavalappara Kottarathil and Kochunni alias MoopilNayarreportedVs. States of Madras andin[1963]Article 32 eldthatfortheenforcement of those rights and makes the remedialright itself a fundamental right. Article 13(1) declaresthat "All laws in force in the territory of Indiaimmediatelybeforethecommencementofthis

18Constitution, in so far as they are inconsistent with theprovisions of this Part, shall, to the extent of suchinconsistency, be void"; and Article 13(2) prohibits theState from making any law which takes away orabridges the rights conferred by Part III of theConstitution and declares that any law made incontravention of that clause shall, to the extent of thecontravention, be void.ii)Because Sub rules (2) and (4) of Rule 3 of theimpugned rules violate the fundamental right tofreedom of speech and expression guaranteed tocitizens by Article 19(1)(a) of the Constitution of Indiaand are thus void and unconstitutional in view ofArticle 13 of the Constitution of India.iii)That Sub-rule (2) of Rule 3 mandates intermediaries toplace restrictions on the kind of content that a usercan post by listing a broad list of information.Sub-rule (2) of Rule 3 mandates users not to hostinformation included in a broad list that hilic, libelous, invasive of another's ,disparaging, relating or encouraging money laundering

19or gambling, or otherwise unlawful in any mannerwhatever.iv)That Sub-rule (4) of rule 3 of the impugned rulesmandates that the intermediary, on whose ished, upon obtaining knowledge by itself or beenbrought to actual knowledge by an affected person re about any such information as mentioned insub-rule (2) above, shall act within thirty six hours todisable such information that is in contravention ofsub-rule (2).v)That the subject matter of information listed in subrule (2) of rule 3 is highly subjective and could result inwide interpretation.Sub-rule (2) of rule 3 hasprovisions that are beyond reasonable restrictions n of India. Clause (2) of Article 19 ctions on the exercise of the right conferred by thesaid sub clause in the interests of the sovereignty andintegrity of India, the security of the State, friendlyrelations with foreign States, public order, decency ormorality or in relation to contempt of court, defamationor incitement to an offense. Thus, any restrictions that

20can be made on the right of citizens to freedom ofspeech and expression can only be within the ambit ofclause (2) of Article 19. The list ofunacceptableinformation listed under Sub-rule(2) of Rule 3 thatincludes information considered as grossly harmful,harassing, blasphemous, invasive of another's ,disparaging, relating or encouraging money launderingor gambling, or otherwise unlawful in any manner isbeyondanyreasonableimposed under Articlerestrictionsthatcanbe19 (2) of the Constitution ofIndia. Any unreasonable restrictions on fundamentalrights, that are imposed by a statute or executiveorders are liable to be struck down as unconstitutionalby a competent court. This Hon'ble Court has held inExpress Newspapers (Private) Ltd. and Anr. Vs. TheUnion of India (UOI) and Ors., AIR 1958 SC 578 that ifany limitation on the exercise of the fundamental rightunder Art. 19(1)(a) does not fall within the four cornersof Art. 19(2) it cannot be upheld. The Hon'ble Courtfurther held that there can be no doubt that freedom ofspeech and expression includes freedom of propagationof ideas.vi)That “Freedom of speech and expression” guaranteedunder Article 19(1)(a) has been held to include the right

21to acquire and disseminate information. It includes theright to communicate it through any available mediawhether print or electronic. The Hon'ble SupremeCourt has given a broad dimension to Article 19(1)(a)by laying down that freedom of speech under Article19(1)(a) not only guarantees freedom of speech andexpression, it also ensures the right of the citizen toknow and the right to receive information regardingmatters of public concern. In light of the aboveobservation, it is submitted that the the impugnedrules impose restrictions on the right of freedom ofspeech and expression which have no sufficient nexuswith the grounds laid down for restriction of freedom ofspeech and expression.vii)This Hon'ble Court has laid down in a catena ion, the court should keep in mind the socialsetting of the country so as to show a completeconsciousness and deep awareness of the growingrequirements of the society, the increasing needs of thenation. The websites like that of the 1st Petitioner andother sites which provide citizens a platform to voicetheir opinions and to view the opinions expressed byothers have a great role to play in the currentenvironmentinfosteringpublicdiscoursesand

22debates.Any unreasonable restrictions on users inexpressing their views online will be a violation of theirright to freedom of speech and expression.viii) It is submitted that in judging whether a statute isconstitutional the effect that the statute will have onthe fundamental rights of citizens has to be examined.The effect of impugned rules will be strict censorshipby intermediaries of content posted by users. Such anaction by the intermediaries will affect the fundamentalright of freedom of speech and expression guaranteedby Article 19(1) of the Constitution of India.A five-judge bench of the Hon'ble Supreme Court held inBennett Coleman & Co. Vs. Union of India (UOI),AIR1973 SC 106, (1972) 2 SCC 788 has held that:“The true test is whether the effect of the impugnedaction is to take away or abridge fundamentalrights. If it be assumed that the direct object of thelaw or action has to be direct abridgment of theright of free speech by the impugned law or actionit is to be related to the directness of effect and notto the directness of the subject matter of theimpeached law or action.”As the direct effect of the impugned rules will becurtailment of the freedom of expression of users ofwebsites like that of the 1st Petitioner and other

23websites the impugned rules are liable to be struckdown.ix)That this Hon’ble Court considered the issue ofrestrictions on freedom of speech in detail in SakalPapers (P) Ltd. Vs. The Union of India, AIR 1962 SC305. The Hon’ble Court held in para 31 of thejudgment that :“the right to freedom of speech and expressioncarries with it the right to publish and circulateone’s ideas, opinions and views with completefreedom and by resorting to any available meansof publication, subject again to such restrictions ascould be legitimately imposed under clause (2) ofArticle 19.”This Hon’ble Court further held that“ The correct approach in such cases should be toenquire as to what in substance is the loss orinjury caused to the citizen and not merely whatmanner and method has been adopted by theState in placing the restriction”.x)This Hon'ble Court has held in S.Rangarajan v. P.Jagjivan Ram, (1989) 2 SCC 574 that “the commitmentto freedom demands that it cannot be suppressed unlessthe situations created by allowing the freedom arepressing and the community interest is endangered. The

24anticipated danger should not be remote, conjectural orfar-fetched. It should have a proximate and direct nexuswith the expression. The expression of thought shouldbe intrinsically dangerous to the public interest. In otherwords, the expression should be inseparably like theequivalent of a 'spark in a power keg'." The impugnedrules result in censorship of a broad spectrum ofinformation without looking at the effect such speechwould have on the public interest.xi)The impugned rules result in removal of any contentthat is disliked by any person or is not in his interest.This Hon'ble Court has held in Naraindas v. State ofMadhya Pradesh [1974] 3 SCR 624 that:“It is our firm belief, nay, a conviction whichconstitutes one of the basic values of a freesociety to which we are wedded under ourConstitution, that there must be freedom not onlyfor the thought that we cherish, but also for thethought that we hate. As pointed out by Mr.Justice Holmes in Abramson v. United States, 250U.S. 616: “The ultimate good desired is betterreached by free trade in ideas--the best test oftruth is the power of the thought to get itselfaccepted in the competition of the market.” Theremust be freedom of thought and the mind must

25be ready to receive new ideas, to critically analyseand examine them and to accept those which arefound to stand the test of scrutiny and to rejectthe rest.”.This Hon’ble Court has held in AjayGoswami v. Union of India, AIR 2007 SC 493 that“We observe that, as decided by the AmericanSupreme Court in United States v. PlayboyEntertainment Group, Inc, 146 L ed 2d 865, that,“in order for the State to justify prohibition of aparticular expression of opinion, it must be ableto show that its action was caused by somethingmore than a mere desire to avoid the discomfortand unpleasantness that always accompany anunpopular viewpoint.”The impugned rules curtail the right to freedom ofexpression of users of the 1st Petitioner’s website bymandating removal of content just because a person oran organisation finds it not to his liking. Thus theimpugned rules go beyond the permissive limits tofreedom of speech and expression that can be imposedby a statute. It is submitted that Sub-rules (2) and (4)of Rule 3 of impugned Rules, 2011 are violative of thefundamental right to freedom of speech and expressionguaranteed under Article 19(1) of the Constitution ofIndia and are liable to be struck down.

26xii)Because the impugned rules impose unreasonablerestrictions on the 1st Petitioner’s right to practice anyprofession, or to carry on any occupation, trade orbusiness as guaranteed by Article 19 (1) (g) of theConstitution of India by forcing upon it to acquire anadjudicative role which leads to censorship or sufferlitigation or criminal liability or both at the hands ofthe Respondent and private parties.xiii) Because the impugned Rules impose a significantburden on the 1st Petitioner forcing it to screen contentand exercise online censorship which in turn impactsthe Freedom of speech and expression of its customersthereby risking a loss of its large consumer base orincurring legal costs and facing criminal action forthird party, user generated content.It is submittedthat the 1st Petitioner is made to choose between theoption of taking down content which could in turnresult in losing the confidence of its users or the optionof taking a legal risk of criminal prosecution by lettingthe content stay online for numerous posts every day.Thus, the impugned rules make it difficult for thePetitioners to run their business. It is submitted thatwhile a private party may allege that certain content isdefamatory or infringes copyright, such determinationsare usually made by judges and can involve factual

27inquiry and careful balancing of competing interestsand factors. The 1st Petitioner is not well-positioned tomake these types of determinations but is being nations. It is submitted that as per theimpugned rules the 1st Petitioner is required to take anaction within thirty six (36) hours of receiving arequest by an aggrieved person, however 1st Petitioneris incapable of making legal determinations.xiv) I

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