'Consider diluting controversial sec 79(3)(B) of IT Act'

• As a consequence, now under Section 79(3)(b), taking down of content or IT resource will now be possible only under a court order or a government order.

 The Supreme Court of India gave much-needed relief to online portals by rewording the controversial Section 79 (3)(b) of the Act, which determines the liability of online companies, such as Google, Facebook and Twitter, which provide platforms for free speech and expression of views for internet users.

 The move by Supreme Court, which is being termed as historical, will provide relief to online portals from frivolous notices asking them to take down any content which is found objectionable by any quarter of the society.  Now, under Section 79(3)(b) of the Information Technology Act taking down of content or IT resource will now be possible only under a court order or a government order.

 The Internet & Mobile Association of India (IAMAI) a not-for-profit industry body which represents the online and mobile value added services sectors and includes major internet players such as Google, Facebook, Flipkart etc., as its members had also filed a Writ Petition which was clubbed with the other petitions heard by the Supreme Court.

IAMAI was represented before the Supreme Court Bench by Counsel Saikrishna Rajagopal from Saikrishna & Associates who challenged the constitutional fitness of Section 79(3) (b) of the IT Act, 2000 and argued that the section unfairly burdens online platforms for views of its user.

Speaking about the judgment, Saikrishna Rajagopal said, “The Honourable Bench recognized the need to provide a safety net to online platforms from an aggrieved party. The dilution of Section 79 (3)(B) guarantees that online platforms will no more be pressurized by any vested interests until there is a court or government order to take down any disputed comment available online. This landmark judgment will ensure that safety of platform providers for free speech and expression will not be compromised at any cost.”

 Mr. Rajagopal was assisted in his arguments by a senior team of lawyers including J. Sai Deepak, Abhinav Mukherji, Savni Dutt and Rachel Mamatha.

 The controversial Section 79 (3) (b) of the Act had till now required online platforms to immediately take down ‘unlawful content’ upon being notified by an aggrieved party and in the event of failure to do so, the companies risked losing immunity from liability in such cases. It was brought to the Honourable Bench’s notice that it wasn’t always possible for these online media platforms to assess the complex legal and factual issues that may be involved in coming to a conclusion of whether particular content is unlawful or not.

 The legal team headed by Mr Rajagopal argued that79 (3) (b) forced online platforms to exercise ‘court-like’ functions in order to avoid liability. Consequently, the requirement by the Supreme Court that a Court order should be produced in order for an intermediary to take down allegedly unlawful content, is perhaps one of the most significant contributions of this landmark judgment.  “The further qualification by the judgment that the Court order or the direction from the appropriate Government, must relate to one of the specific grounds of Article 19 (2) of the Constitution, is an objective safety valve that ensures any restriction on free speech to be limited to the grounds expressly recognized by the Constitution of India” added Mr Rajagopal.