Author: Kolla Venkata Praneetha, Koneru Lakashmaiah University

This paper discusses the legal aspects of Internet censorship and the constitutional remedies which are available to individuals and entities having their fundamental expression rights limit by the State and private entities. With internet access so necessary to public discourse, the means by which governments and platform intermediaries limit Internet speech effectively introduces constitutional questions. The paper reviews the doctrinal trajectory of the protection of free speech in the digital sphere, it highlights the themes for free speech protections under the Indian Constitution, while looking beyond India for comparative examples from the United States and the European Union. The paper uses a doctrinal and comparative approach to analyse the way courts have reacted to governmental blocking orders, to an intermediary liability model and to content-takedown regulations. A deep critique is given of the constitutional significance of key decisions like those of Shreya Singhal v. Union of India and Anuradha Bhasin v. Union of India. The paper comes to the conclusion that current remedial mechanisms are not in accordance with resisting the wide variety of censorial harm and posits doctrinal innovations based on proportionality, transparency and participatory government.

Keywords:

online censorship, free speech, constitutional remedies, internet shutdowns, intermediary liability, proportionality, fundamental rights

In the twenty first century the internet has largely transformed the internet into the primary arena for the exercise of free expression. In more and more countries the use of content-blocking orders, internet shutdowns, and platform regulation is increasingly being used as a means of social control and introduces painfully delicate issues on the compatibility of such measures with constitutional right of speech, expression and access to information. Of the 156 countries that had internet shutdowns during the period, India had the largest number of such shutdowns, with over 550 cases being reported since 2012.

The phenomenon is referred to as ‘state sponsored digital silencing' by scholars and can be defined as the deliberate censorship of people's online speech by public and/or private institutions that have legal or technology authority. The issue of online censorship is multi-faceted. It is a nuanced issue that extends beyond just the traditional framework of free speech versus state control issues to the new "platform intermediaries vs speech" issues—and the new argument of public discourse without governmental accountability for platform intermediaries. The judicial dimension of this question is explored in the following parallel — the petition with writs, the challenge via constitution and also the challenge under statute. This paper continues in this manner: Part II examines current in the field and judicial speech and thought regarding freedom of speech and online censorship. The methodology used is explained in Part III. Part IV deals with the constitutional framework of the rights of expression, the mechanisms of online censorship and the remedies available within the constitutional framework. The policy implications and Reform are discussed in Part V. Part VI ends with thought about future directions for the field

The legal scholarship related to online censorship can be categorized as follows: constitutional, cyber, and human rights law. The freedom of expression on the Internet is rooted in classical free speech theory at the core level. In Romesh Thappar vs State of Madras the Supreme Court of India has held that freedom of speech and press is essential to all other freedoms in a democratic polity.

This principle has been expanded to other media, including broadcast and electronic media, in later judgments, and later to the internet, in Faheema Shirin v. State of Kerala, where the Kerala High Court held that the right to access internet is part of the right to education and right to privacy guaranteed under Article 21.

The landmark judgment in Shreya Singhal v Union of India has been the most authoritative by a court in India on the issue of online freedom of speech. The Supreme Court declared Section 66A of the Information Technology Act, 2000, to be unconstitutional because of its vague, overbroad and indefinite terms: “grossly offensive,” “menacing” and “causing annoyance,” which limited the right to free speech, thus burdening legitimate speech without any compelling state interest. The Court's application of the doctrines of vagueness and overbreadth to internet speech regulations represented an important doctrinal advance.

International jurisprudence is also of interest. In Reno v. American Civil Liberties Union the United States Supreme Court gave strong First Amendment protection to internet speech, and denied paternalistic control of content.

The European Court on Human Rights has also ruled, under Article 10 of the European Convention on Human Rights, that blocking measures online must be subject to strict scrutiny, and procedural safeguards. In General Comment No. 34, the UN Human Rights Committee has stressed that restrictions on expression via the Internet should be lawfully prescribed, necessary, and proportionate, and should not be discriminatory in effect.

Internet shutdowns, the most extreme form of online censorship, have been the subject of scholarship, with a focus on their devastating effects on political communication, economic activity and emergency services. Researchers like Akdeniz have reported that the use of shutdowns is disproportionate in conflict zones and during elections and is counter to international human rights standards. In India, it was ruled directly by the Supreme Court in the case of Anuradha Bhasin v. Union of India, which held that the internet serves the right to information, and that a prolonged, indefinite ban is unconstitutional.

The issue of the constitutional accountability of private platforms as censorial actors is a gap in the literature. But there is no direct constitutional involvement in private censorship (unless the state is involved), except for platforms such as Meta and Google that have become so influential in public discourse that other scholars, such as Balkin, have begun advocating for the use of the rules of speech as norms for algorithmic governance.

Indian courts have not finally resolved the question of whether online platforms are constitutionally bound by constitutional obligations under the horizontal dimension of fundamental rights, which this paper aims to clarify.

This paper uses primarily a doctrinal methodology along with an additional comparative legal analysis. The doctrinal methodology relies on a systematic examination of primary sources of law, which include sources of law that include: constitutional provisions, statutes, delegated legislation and judicial decisions relating to online censorship and constitutional remedies in India (Ie. judicial decisions relating to online censorship may include U.S. Supreme Court decisions related to censorship). The interpretation of the sources of law uses traditional canons of constitutional construction, which include purposive interpretation, proportionality analysis and structural reasoning.

The primary sources of law that are relevent include: Article 19(1)(a) and Article 19(2) of the Constitution of India, the Information Technology Act 2000 and its amendments section 69A the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 and the IT (Procedure and Safeguards for Blocking of Access of Information by the Public) Rules 2009. The judicial decisions of the Supreme Court and of the High Courts represent the majority of the doctrinal material analysed for the purposes of this paper.

The comparative element seeks to evaluate the applicability in India of constitutional jurisprudence from the U.S., and the European Union's legislative framework (in particular, the Digital Services Act 2022). The purpose of comparing U.S. and E.U. constitutional jurisprudential and legislative frameworks is to identify best practices, doctrinal innovations and structural solutions for the reform of Indian law. The comparative analysis does not include collection of empirical data, and therefore, the findings of this paper are based solely upon legal analysis, as opposed to field research. Given the objectives of this paper, it is appropriate to rely upon the doctrinal adequacy of empirical information..

Article 19(1)(a) of the Indian Constitution gives all citizens the right to freedom of speech and expression. The Supreme Court has interpreted this as meaning that all citizens have an absolute right to publish and disseminate information, to access information on an Internet-enabled device, to publish and receive information in newspapers and magazines, and to have freedom of the press. The Constitution has been applied by the courts to include access to the Internet as a form of speech/publication and is protected under Article 19(1)(a). At the same time, privacy - as determined in K.S. Puttaswamy v. Union of India—is a fundamental right which includes the right to have confidential communications via the Internet. Privacy and free speech rights intersect in the online world, creating a broad and complicated normative area that requires courts to carefully navigate.

Pursuant to Article 19(2), the State can impose appropriate restrictions/restrictions on the right to free speech if such restriction is necessary for the following reasons: a. Sovereignty b. Security c. Maintenance of Public Order d. Decency and Morality e. Contempt of Court f. Defamation g. Incitement to an Offence The Supreme Court has also determined that any restrictions imposed on the right to freedom of speech in accordance with Article 19(2) must be narrowly tailored to achieve a compelling governmental interest and proportionate to the injury being addressed. The Supreme Court has repeatedly stated that the anticipated danger or harm must exist for the state to impose a restriction on the right of freedom of speech as provided for in Article 19(1); this statement dates back to S. Rangarajan v. P. Jagjivan Ram.

Online censorship in India is carried out based on many different statutory mechanisms. The most excessive of these is found in Section 69A of the Information Technology Act 2000, which gives the Central Government the ability to order that any type of online content be blocked on the basis of any of the following grounds: (a) sovereignty; (b) security of the country; (c) public order; (d) morality; and (e) friendly relations with foreign countries. The Blocking Rules of 2009 create the process by which such actions can be taken, by establishing a process whereby any action taken by the government is reviewed by a committee made up of representatives from various ministries of the central government. Despite the protections included in the Blocking Rules, there are many instances in which the government uses the emergency procedure to bypass these protections and issue blocking orders without giving notice or providing for committee review.

Due to the lack of transparency in the blocking orders and that they typically are not made public, it is very difficult for anyone affected by a blocking order to challenge it in court. Internet shutdowns, which are usually implemented through the use of the Telecom Suspension Rules, are also implemented without any procedural safeguards such as committee review. District magistrates or senior officials can order an internet shut down if it is determined that a public emergency or public safety issue exists.

The IT Rules 2021 have introduced a number of new regulatory obligations on intermediaries. Some examples of these new obligations include requiring that intermediaries take down certain types of content within a specific timeframe; requiring that intermediaries maintain traceability/identifiability of messages sent using encryption methods and appointing grievance appellate committees. Many commentators have questioned whether these provisions will be applied in a manner that allows the government to regulate the private actions of various platforms, resulting in increased levels of private censorship by platforms.

The primary constitutional remedy for online censorship is the exercise of writ jurisdiction under Article 32 and Article 226 of the Constitution. Citizens aggrieved by a blocking order, shutdown notices, or unconstitutional platform directives can petition the Supreme Court or their respective High Courts for a judicial review of blocking orders to quash it (writ of Certiorari), to compel the disclosure of their blocking order (writ of Mandamus) or restrain prospective censures (writ of Prohibition). However, the effectiveness of writs to remedy online censorship via online plays is limited by a number of structural barriers.

First, as a result of the keeping of blocking orders secret under Rule 16 of the Blocking Rules, affected parties do not know the legal authority on which they are being blocked and cannot successfully bring a claim for lack of standing to challenge blocking orders. In the case of Anuradha Bhasin, the Supreme Court ruled that orders that block the internet must be published and must be subject to judicial review. The Court, however, did not impose upon the state an obligation to notify aggrieved parties before blocking the internet or before implementing any order that blocks internet access for even a short duration of time.

Second, the proportionality doctrine has been increasingly applied by Indian Courts, yet remains under-developed in how it applies to internet restrictions. The Supreme Court in Anuradha Bhasin required consideration of the proportionality of the restriction on internet services but only articulated this requirement in a broad manner, with little detail or guidance for lower courts to develop the doctrine’s application to internet restrictions. Additionally, litigants have relied on their right to life and liberty under Article 21 of the Constitution to assert that access to the Internet is critical in order to continue receiving food, finding jobs, and obtaining healthcare and education. The Maneka Gandhi principle stipulates that all procedures affecting the rights of the individual under Articles 19 or 21 must be fair, just and reasonable. Thus, the Maneka Gandhi principle is an important doctrinal basis for litigants who wish to challenge any executive authority’s restrictions on their access to the Internet on the grounds that such restrictions do not meet the minimum procedural requirements.

The contemporary landscape of censorship is characterized by the increasing use of online platforms to regulate online expression through their discretion in content moderation policies, algorithmic amplification and suppression and enforcing the terms of service for their platform. Unlike government regulation, the actions of private platforms do not involve direct restrictions on constitutional rights because the application of fundamental rights under the Constitution of India is primarily directed at actions of the government.

However, the line between governmental censorship and private censorship is becoming less distinguishable than before and has been demonstrated by the IT Rules 2021. These rules serve to place platforms in the position of an arm of the government by obligating them to proactively monitor content, warn them about the withdrawal of their safeharbour from liability, and place them under the control of government officials who may use those powers to censor content on the platform. The suppression of content when platforms are acting under the jurisdiction of the government or when platforms believe the government will take regulatory action against them can be found to be equivalent to state action under the doctrine of indirect state action in accordance with Sabu Matthew George v Union of India.

The establishment of Grievance Appellate Committees by the IT Rules 2021 — bodies appointed by the government and given the authority to overturn the editorial decisions of platforms — creates a structural intrusion into the editorial discretion of private platforms and raises the question of whether the government is using the architectural framework of the private platform to pursue censorial goals that are otherwise protected from constitutional scrutiny. The procedure for establishing the Grievance Appellate Committees lack the procedural safeguards of independence and have been challenged before various High Courts in India.

While lessons from the United States may be useful to some extent, they lack comprehensiveness. In the US context, First Amendment only bars government action against individuals and does not constrain the choices made by private platforms. The use of Section 230 of the Communications Decency Act of 1996 as a mechanism for regulating platform content has also been examined in light of the unconstitutional conditions theory. According to this theory, Section 230 was a regulatory condition based on speech that deprived social media platforms of their first amendment right to regulate user-generated content.

The European Union's recently enacted Digital Services Act (DSA) of 2022 can serve as an example of an innovative structure for regulating social media platforms. DSA lays down transparency, procedural and appeal obligations for very large online platforms that ensure users are notified of the reasons for the takedown and have recourse to independent out-of-court dispute resolution systems. The risk-based regulatory architecture adopted by the DSA wherein different types of platforms are subject to varying degrees of regulation can provide valuable insights to India. The Indian policy-makers and courts may take inspiration from the DSA framework while assessing the constitutionality.

The analysis we did shows that there is a problem with the laws about what people can say online in India. On one hand the Supreme Court has said that the government should not be able to stop people from saying what they think without a reason. They should have to follow rules like being fair and making sure it is really necessary. On the hand the way the government actually does it is not fair. They do not tell people when they are stopping something from being online and they make it hard for people to challenge it.

We really need to change the way the government does this. They should have to tell people when they are stopping something from being online and they should have to review it to make sure it is still necessary. The rule that says they do not have to tell people is not fair and it should be challenged in court.

The Supreme Court also said that when the government wants to stop someone from saying something they have to make sure it is really necessary and that it does not stop people from saying what they think. They should have to ask themselves things like: is this really going to help? Did we think about ways to solve the problem? Is this going to hurt people who are not involved? We should also make sure that the companies that run the internet are being fair. The government should make a law that says these companies have to tell people when they are stopping something from being online and they have to give them a chance to appeal. This would help make sure that peoples rights are being protected without the government having to get involved in what private companiesre doing.

Censoring what people can say online is a problem. We showed that even though the courts in India have made some decisions there are still problems with the way the government is doing things. The government is not being transparent about what they're stopping from being online and they are not giving people a chance to challenge it.

Other countries, like the United States and the European Union are also trying to figure out how to deal with this problem. They have tried things but none of them are perfect. India has a system that says the government can only stop people from saying what they think if it is really necessary but we need to make sure that system is working.

We need to change the laws and the way the government is doing things. We need to make sure that peoples rights are being protected and that the companies that run the internet are being fair. The courts already have the power to protect peoples rights. We need to make sure thathey can actually do it. It is not a legal problem it is a matter of making sure that people can express themselves freely.

• European Parliament and Council Regulation 2022/2065, On a Single Market for Digital Services (Digital Services Act), 2022 O.J. (L 277) 1 (EU) [hereinafter DSA].

• Shreya Singhal v. Union of India, (2015) 5 SCC 1 (India).

• Anuradha Bhasin v. Union of India, (2020) 3 SCC 637 (India).

• Romesh Thappar v. State of Madras, AIR 1950 SC 124 (India).

• Faheema Shirin R.K. v. State of Kerala, WP(C) 19716/2019 (Kerala H.C. 2019) (India).

• Reno v. American Civil Liberties Union, 521 U.S. 844, 870 (1997).

• United Nations Human Rights Committee, General Comment No. 34: Article 19—Freedoms of Opinion and Expression, ¶ 34, U.N. Doc. CCPR/C/GC/34 (Sept. 12, 2011).

• Yaman Akdeniz, Freedom of Expression on the Internet: A Study of Law and Practice in OSCE Member States 47–52 (OSCE, 2010).

• Information Technology Act 2000, § 69A (India).

• K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 (India).

• S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574 (India).

• Maneka Gandhi v. Union of India, (1978) 1 SCC 248 (India)

• Sabu Matthew George v. Union of India, (2018) 3 SCC 229 (India).