[Answered]Discuss the significance of Supreme Court judgement in Shreya Singhal case. Examine whether Draft Intermediary Rules by the Ministry of Information and Technology is against the principles of this judgement.

Recently, in a landmark ruling, India’s Supreme Court held that citizens’ right to freedom of speech using the internet are constitutionally protected. The verdict is in line with, Shreya Singhal case judgement in which the Supreme court had nullified Section 66A, terming it vague and unconstitutional. This judgement is significant as it safeguard fundamental right of freedom of speech.

Significance of Supreme Court judgement in Shreya Singhal case:

1. Liberty- a cardinal constitutional value: In the judgment, the court held that the liberty of thought and expression is a cardinal value of paramount significance under the Constitution.
2. Free speech: According to the Supreme Court, discussion or advocacy of a particular cause, no matter how unpopular, is at the heart of the right to free speech. It cannot be curbed on the ground of causing public disorder unless such discussion or advocacy reach the level of incitement.
3. Reasonable restrictions: The court held that only reasonable restrictions can be imposed as contained under Article 19(2). The mere causing of annoyance, inconvenience, danger, etc. or being grossly offensive or having a menacing character are not offences under the Indian Penal Code at all.

Issues in Draft Intermediary Rules violating the principles of Shreya Singhal judgement:

1. Prohibition by intermediaries: Shreya Singhal clarified that competent public authorities, not private platforms, should decide whether online speech is violating certain law. The Intermediary rules in opposite give authority to intermediaries such as Facebook, Google, WhatsApp, and others to decide what is violative and what to remove.
2. Freedom of speech: The Shreya Singhal case upheld that freedom of speech is ultimate constitutional right and must not be curbed except under reasonable restrictions. The intermediary rules require each intermediary to publish terms of use to prohibit the user from hosting certain content. This put restrictions decided by private intermediaries and may not be reasonable as described by the constitution. Research, including in India, has shown that these platforms often simply honour invalid requests from accusers, improperly silencing legal speech, or cutting off customers’ access to legitimate businesses.
3. No mechanism to correct mistakes: The Court in Shreya Singhal said that, binding decisions about what content violates the law should come from courts or appropriate government agencies following fair processes. The proposed Rules depart from this principle:

• Under rules intermediaries, has to act on government demands in just 24 hours, with no mechanism to correct mistakes or clarify confusing orders. Many public interest groups like Human Rights Watch have pointed out that this would lead to over-compliance and unnecessary removal of lawful expression.
• The Rules also require platforms to build automated tools to proactively police and remove internet users’ speech which may be arbitrary. Many researchers have warned, even the best filters can make serious mistakes, leading to wrongful removals. Software filters are thus no substitute for human judgement and proper review by courts or government authorities. In particular, filters can’t understand the context in which material appears.

Way forward:

1. Public review: The intermediary rules should be open for careful public review. Government must incorporate all import suggestions and remove controversial rules.
2. Clarification: Instead of intermediaries the government must clarify what is violative and against the public order.
3. Reasonable restrictions: It must be notified under the rules that any content or speech must be removed if it leads to any incitement as mentioned under Shreya Singhal case.
4. Time to prove innocence: Enough time must be given to an individual to clarify his/her content and speech. Instead of 24 hours, 72 hours should be given to act on government’s demands under the rules.

Thus, the draft rules need to be amended. These draft rules must be in line with various judgments given by the Supreme Court (SC) to deal with malicious online content. There are some concerns but there is also scope to make regulations better and improved.