In stark contrast, the other provision of the
IT Act, which has now been read down by the Supremes, namely Section 79(3)(b), has not received its due in popular discourse.
This is perhaps because this provision required and still requires attention to
nuances. The challenge to the provision was mounted on behalf of internet
intermediaries solely by the Internet and Mobile Association of India (IAMAI)
in W.P(C). 758/2014 in the same batch of IT Writ Petitions. This challenge was
critical owing to the
integral nature of intermediaries to the internet ecosystem and the role they
place as disseminators of free speech and expression of internet users. With
the internet increasingly becoming the medium of choice
for expression of social, cultural and political views outside of the
mainstream media, attention must be paid to the clamps imposed on
intermediaries which facilitate free speech.
IT Act, which has now been read down by the Supremes, namely Section 79(3)(b), has not received its due in popular discourse.
This is perhaps because this provision required and still requires attention to
nuances. The challenge to the provision was mounted on behalf of internet
intermediaries solely by the Internet and Mobile Association of India (IAMAI)
in W.P(C). 758/2014 in the same batch of IT Writ Petitions. This challenge was
critical owing to the
integral nature of intermediaries to the internet ecosystem and the role they
place as disseminators of free speech and expression of internet users. With
the internet increasingly becoming the medium of choice
for expression of social, cultural and political views outside of the
mainstream media, attention must be paid to the clamps imposed on
intermediaries which facilitate free speech.
According to the IT Act, an intermediary “means any person who on behalf of another person receives, stores or
transmits that record or provides any service with respect to that record and
includes telecom service providers, network service providers, internet service
providers, web hosting service providers, search engines, online payment sites,
online-auction sites, online market places and cyber cafes”. Clearly, any
restrictions on the ability of intermediaries to host content would have an
immediate, direct and adverse bearing on the the internet user’s freedoms under Article
19(1)(a). This is the pith and substance of IAMAI’s challenge to Section
79(3)(b).
transmits that record or provides any service with respect to that record and
includes telecom service providers, network service providers, internet service
providers, web hosting service providers, search engines, online payment sites,
online-auction sites, online market places and cyber cafes”. Clearly, any
restrictions on the ability of intermediaries to host content would have an
immediate, direct and adverse bearing on the the internet user’s freedoms under Article
19(1)(a). This is the pith and substance of IAMAI’s challenge to Section
79(3)(b).
Section 79(3)(b) which applies to internet
intermediaries, prior to being read down by the Court, used intermediaries as
proxies to impose constitutionally impermissible restrictions on free speech
i.e. restrictions which are beyond Article 19(2). Therefore, it was the contention of IAMAI that,
if Section 66A is liable to be struck down for imposing direct restrictions on
an internet user’s free speech and expression which are beyond the pale of
Article 19(2), it stands to reason that such or similar restrictions imposed on
the user indirectly through intermediaries under Section 79(3)(b), are equally ultra vires Article 19(2). In other
words, what cannot be done directly, cannot be done indirectly either, the
litmus test being the direct and immediate consequence of the restrictions
under Section 79(3)(b) on curtailment of the internet user’s freedoms under
Article 19(1)(a).
intermediaries, prior to being read down by the Court, used intermediaries as
proxies to impose constitutionally impermissible restrictions on free speech
i.e. restrictions which are beyond Article 19(2). Therefore, it was the contention of IAMAI that,
if Section 66A is liable to be struck down for imposing direct restrictions on
an internet user’s free speech and expression which are beyond the pale of
Article 19(2), it stands to reason that such or similar restrictions imposed on
the user indirectly through intermediaries under Section 79(3)(b), are equally ultra vires Article 19(2). In other
words, what cannot be done directly, cannot be done indirectly either, the
litmus test being the direct and immediate consequence of the restrictions
under Section 79(3)(b) on curtailment of the internet user’s freedoms under
Article 19(1)(a).