The slip between cup and lip

Shwetasree Majumder of Fidus Law Chambers discusses intermediary liability and finding collaborative solutions

Section 66A of the Information Technology Act, 2000, (the IT Act) has been widely dubbed an anti-free speech provision as it has been used to arrest creators/disseminators of online content on the basis of grounds ranging from “information that is grossly offensive or has menacing character”, to content which the disseminator “knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will …”.

Last year, in a historic judgment in Shreya Singhal v Union of India, the Supreme Court struck down section 66A, concluding that it curbs the public’s right to know, as it makes no distinction between mere discussion or advocacy of a particular point of view, which may be annoying or inconvenient or grossly offensive to some, and incitement by which such words lead to an imminent causal connection with public disorder, security of state, etc.

Predictably, the striking down of the provision was primarily on account of the apparent vagueness and subjectivity of its content. Relying on various judgments of the US courts and the Indian Supreme Court and using standards laid down there, the court concluded that the expressions used in section 66A were completely open ended and undefined.

Shwetasree Majumder is the principal at Fidus Law Chambers, a boutique IP and IT practice offering strategic solutions in the contentious and non-contentious domains.