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  • Writer's pictureUtkarsh Agrawal

Emerging controversies in Indian Courts around Free Speech in the context of Public Law and Tech

The use of technology in administrative decision making by state and corporate raises a pertinent and complex question, whether or not our existing public laws are fit for protecting the individual rights guaranteed to citizens through the constitution of India and further judicial pronouncements. This decision making, among all things, has changed the course of regulation of free speech as from conventional sense where the only government could restrict it on certain grounds, but now with the emergence of internet intermediaries to exercise the right to free speech, the users are constantly defending their free speech on social media.

While earlier only the state could punish the user for exceeding his right of free speech on limited grounds, now it shares this burden with the help of internet intermediaries by asking them to take down your speech on their platform. It is a kind of collaboration in free speech regulation. This was necessitated by the lowering of the benchmark to exercise free speech in the public domain. Earlier mediums of public media including press and television had editorial filters while current mediums like social media lack the same. Hence, even the government allows internet intermediaries to preemptively censor the content with help of automated technologies such as artificial intelligence according to a set of guidelines. Recently, Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021were released by the central government for the same purpose.

Social Media platforms have become a medium to access and exercise the right to free speech and become a means of expression of self. The restrictions on free speech in Article 19(2) of the Constitution are on the sovereign state and are still subject to judicial review, but when the platforms make such decisions on the behalf of states, it opens them to be used for political gains and rendering state useless. Earlier, free speech through technology was restricted to radios, TV channels and it was their prerogative to decide what and when to publish subjective to certain safeguards. A remedy against the state could only be brought when there is a violation of Article 19(2) of the Constitution and can’t be brought against a non-state entity.

Jack Balkin has described it as a triangular structure of the present model of regulating free speech. On two ends are users and government, while on the third are internet intermediaries including social media, payment gateways, e-commerce websites etc.

The use of technology in deciding what must or what must not be allowed to be published or the involvement of tech social media players to decide by the way of vaguely worded “terms and conditions” designed by themselves leaves the user in a lurch whose free speech has been so curtailed. The user is clueless as to the remedies available to him and despite the law of the land being superior to the terms and conditions of said tech companies, no clarity by the legislature puts him on the course to directly approach the judiciary which in absence of laws is overburdened to either to use laws like Information Technology Act 2000 (enacted originally to facilitate e-commerce) or to read newer facets in existing rights granted by law.

The problem arises as until now, the “terms and conditions” are in form of a contract which the user enters into when signing up for services of these platforms. One such case arose in 2019 when Twitter suspended the account of Senior Advocate Sanjay Hegde over a picture of August Landmesser in the header and subsequently over the translation of Gorakh Pandey’s poem “Usko faansi do” (Translation: Hang Him). The user approached Delhi High Court in writ jurisdiction under Article 226 of the Constitution. The problem is that since the dispute arose pursuant to a contract between parties which is standard and heavily skewed in favour of platforms and contains dispute resolution provisions, it leaves the user at a disadvantage. The remedies are damages through a civil suit which is difficult to ascertain and to bring the dispute to closure.

The lack of appropriate remedy despite the state-resembling nature of such social media intermediaries needs to be looked into by constitutional courts, especially, when their presence in human interaction is all-pervasive. The question arises that whether their “terms and conditions” can violate law of the land. Even though, the contractual nature between the tech provider and the user is within the ambit of letter of the law but the de-facto effect on the ground is resulting in a curb on free speech.

In Anuradha Bhasin v Union of India, the court held that the internet is a medium to exercise free speech and any restriction on the medium has to pass the test of reasonability under article 19(2) of the constitution. The inclusion of tech providers as the medium and aligning their “terms and conditions” within the reasonableness of the restrictions allowed on free speech is the next logical step.

The hypothesis requires a reinterpretation of the constitution by the judiciary in line with the claim that it is a living document. The pertinent example is Katz vs the United States, where the court extended the 4th amendment rights against unlawful search and seizure to any private space where there is a reasonable expectation of privacy. The judiciary in India has earlier read new facets of rights which were not expressed in the constitution in the context of new circumstances, most recently being the recognition of the right to privacy in KS Puttaswamy v Union of India.

If we take a look at the Indian court’s tryst with free speech issues in the context of technology, courts have sided with free speech from as early as Shreya Singhal v Union of India in which court, on the one hand, struck down section 66A of Information Technology Act 2000 in which court recognised that the restrictions on free speech which are enumerated in article 19(2) of the constitution shall also be applied when the same speech is made by use of technology. The provisions and interpretations of free speech were extended to technological space in recognition of emerging mediums of expression.

It has to be mentioned here that the government’s primary argument was that the internet is a very different medium and restrictions working in conventional media may fail to achieve the same results as on the internet and thus excess provision require to manage free speech on this medium are justified in comparisons to media like press and cinema. Its reach and lack of pre-censorship rules, the scope of anonymity and mass spread of rumours along with the larger invasion of people’s privacy makes it different from other mediums and thus petitioner’s arguments of equality do not hold relevance. Petitioners made the opposite argument, however, the court rejected both. Some offences like phishing and spamming are unique to the internet while others, as mentioned in article 19(2) of the constitution, are similar.

The fundamental right to free speech in its conventional sense is a right exercisable against the state and not exercisable against citizens and corporations. This vertical application of free speech rights emboldens the tech providers to treat the matters of free speech as contractual transactions to be breached at will since most of such contracts are standard and click-wrap or browse-wrap with no negotiations with the user. The “terms and conditions” as they stand and as and when they are updated must be agreed upon. When the internet intermediary platforms are new public spaces, why the protections for free speech do not extend to it and if they do, how to avail of said protections?

Another, significant decision in the said case was to recognise the intermediary nature of social media and to restrict the application of takedown provision in the case of actual knowledge, which will be assumed only on the receipt of a notice from the government or in a form of a court order. It upheld that only the state can put restrictions on free speech, that too on limited grounds enumerated in article 19(2) of the constitution, and intermediaries can ignore the notices by other users which in turn will affect the free speech of other users and enjoy safe harbour protections.

In MySpace Inc v Super Cassettes Industries Ltd, SCIL brought a claim against MySpace, an internet intermediary which allows users to upload and share media, for links of copyrighted material on the platform without authorisation and its non-removal despite notices. While a single judge bench ruled in favour of SCIL but the decision was soon overturned by a division bench on grounds that MySpace is covered under the definition of the intermediary under section 79 of Information Technology Act 2000, where section 79(2)(b) states provides for exemption from liability, provide the intermediary does not

1. Initiate the transmission

2. Select the receiver of the transmission

3. Select or modify the information contained in the transmission

Thus, the intermediary was not held to be liable as it was beyond its capability to determine the nature of content when it is just a facilitator of free speech. The same argument did not hold in Christian Louboutin SAS v Nakul Bajaj where the intermediary was found violative of conditions set in section 79 of the Information Technology Act 2000 and thus not granted safe harbour protections. He did not fulfill the conditions laid out in section 79(2)(b) of the Information Technology Act 2000 and thus held liable for the copyright infringement.


With the rise and advent of the internet in the world and India, free speech regulation has become complicated. The government is relying increasingly in internet intermediaries to regulate free speech on its behalf. The main reasons for the same are technological and logistical incapability of the governments and another is the usage of internet intermediaries as an extended arm of the government-controlled via strict regulations. The bargaining power of the user in this triangular conundrum is minimal and the user is left at mercy of the “terms and conditions” of these intermediaries since the status quo is in favour of the government.

With the contractual nature of free speech restrictions on internet intermediaries, the government with the help of internet intermediaries is de facto able to exercise the restraint on free speech, which is otherwise not allowed to do so and its previous attempt at that has failed in the context of Shreya Singhal v Union of India in case of section 66A of Information Technology Act 2000.

The courts are needed to recognise the increasing relevance of internet intermediaries and continue to re-interpret the constitutional rights in light of the advancements in technology and the internet. The extension of free speech rights horizontally to internet intermediaries or the liability of the state in case of curb on free speech by the internet intermediaries must be looked into. The contract-based model of transactional free speech with internet intermediaries, which are wider than the restrictions specified in article 19(2) of the constitution, needs to be revisited at the earliest.

The judicial courts remain the last resort of the users as the governments are increasingly relying on internet intermediaries to do their bidding, sneaking in the restrictions on free speech which they would otherwise not do. Governments, unlike earlier times, is letting the internet intermediaries do their bidding by collaboration, coercion or fear of sanctions. The latest intermediary guidelines are a case in point.

The courts have made a great start by upholding the safe harbour rules for intermediaries and providing them with a free ecosystem to negotiate with users, but it has to be made sure that such negotiation in the user contract is not unconscionable in the fact that the user has to surrender his fundamental rights to become the part of a marketplace of ideas. Similar constraints have to be imposed on governments by the courts to break the potential of nexus between government and internet intermediaries for which the state resembling functions of intermediaries have to be recognised.

The latest intermediary guidelines 2021 give us an insight into this relationship where the government by way of regulation aims to manage the flow of ideas on social media and digital media. The petitions against the same are pending in multiple high courts and the citizens are looking towards the courts to check if they’d be freed from the “terms and conditions” this time.

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