Category Archives: Internet Freedom

Net Neutrality and Public Highways

(My thanks to Malavika Prasad for bringing this case to my attention)

With the recent release of the Telecom Regulatory Authority of India’s [“TRAI”] “Consultation Paper” on the regulatory framework for over-the-top [“OTT”] services, net neutrality is up for sustained debate in India. Previously, I had written about how net neutrality, in the context of the internet, should be understood as a core free speech issue, and it might be helpful to consider the controllers of the “gateways” to the internet (or, in other words, the owners of the infrastructure of speech on the internet) as having public obligations of non-discriminatory access (even though they might be private parties). The idea of public obligations inhering upon private parties because of their control of public infrastructure, or their performing of a public function, has been upheld by the American Supreme Court in Marsh vs Alabama and by the Indian Supreme Court in the concurring judgment of Mohan J. in Unnikrishnan.

In the net neutrality debate this time, another bit of imagery has been doing the rounds: that of a public highway. It is permissible to charge a toll for the use of a highway, the rate of which might be proportional to how much one uses – so goes the analogy – but it is impermissible to charge differential toll rates based upon the make of the car you drive, or depending upon whether you’re going to work, or to vacation.

This is a particularly interesting analogy, because, as it turns out, the Indian Supreme Court has ruled upon precisely this point: that of non-discriminatory access to public highways. Saghir Ahmed vs State of UP, decided in 1954 by a five-judge bench, involved a constitutional challenge to the UP Road Transport Act, which allowed the State government to take exclusive control of running and operating road transport services within the state, if it believed such a step to be necessary in the public interest. Or, in other words, it allowed the State government to create a transport monopoly by executive fiat – which it actually did, for a part of the road network.

In deciding upon the validity of the State government notification, as well as the constitutionality of the Act, the Court noted:

“According to English law, which has been applied all along in India, a highway has its origin, apart from statute, in dedication, either express or implied, by the owner of land of a right of passage over it to the public and the acceptance of that right by the public . In the large majority of cases this dedication is presumed from long and uninterrupted user of a way by the public, and the presumption in such cases is so strong as to dispense with all enquiry into the actual intention of the owner of the soil and it is not even material to enquire who the owner was.

In response to the Attorney-General’s argument that the rights of commercial passage over a highway were determined by the Motor Vehicles Act, the Court observed:

“But the right of the public to use motor vehicles on the public road cannot, in any sense, be regarded as a right created by the Motor Vehicles Act. The right exists anterior to any legislation on this subject as an incident of public rights over a highway. The State only controls and regulates it for the purpose of ensuring safety, peace, health and good morals of the public. Once the position is accepted that a member of the public is entitled to ply motor vehicles on the public road as an incident of his right of passage over a highway, the question is really immaterial whether he plies a vehicle for pleasure or pastime or for the purpose of trade and business. The nature of the right in respect to the highway is not in any way affected thereby and we cannot agree with the learned AdvocateGeneral that the user of a public road for purposes of trade is an extraordinary or special use of the highway which can be acquired only under special sanction from the State.”

A few things ought to be noted:

(1) Although Saghir Ahmed was a case about State action, and consequently, implicated the petitioners’ Article 19(1)(g) and 14 rights, the Court’s logic here is based upon the nature of the utility (public highway) rather than the nature of the owner. In the first excerpted paragraph, the Court makes it clear that the question of ownership is immaterial, since whatever property rights the owner has, he is deemed to have intended to give up his right to the extent that passage requires.

(2) The power of the State to control and regulate the public utility must be for the purposes of ensuring safety, peace, health and morals.

(3) The nature of the use of the public utility (i.e., in this case, whether commercial or for pleasure) does not affect the scope of the right of use in any way.

(4) The right stems from long and uninterrupted prior use, presumably stretching back to the beginning of road networks, and consequently, being somehow part of the very nature, or essential characteristic, of a “road”.

Note the striking similarities with the net neutrality debate, with respect to each of the elements. There is, of course, a danger with pushing any analogy too far, but the vocabulary of the TRAI Consultation Paper itself conjures up an image of the internet “highway”. In paragraph 2, it states:

“The term over-the-top (OTT) refers to applications and services which are accessible over the internet and ride on operators’ networks offering internet access services e.g. social networks, search engines, amateur video aggregation sites etc.”

And, in para 3:

Carriage is separated from content in internet networks, enabling OTT content and application service providers to deal directly with end users.”

A full elaboration, of course, would need significant unpacking. What, precisely, is the public highway here? Is it the spectrum? And is the argument then that a spectrum auction by the original owner (i.e., the government) does not carry with it complete rights of ownership, but rather, attendant obligations that act as limits upon those rights. One of those obligations being to provide non-discriminatory access to a public utility, whose public character remains unchanged despite the ownership being in private hands. Of course, such an argument would also need to establish the analogy between roads and the internet, both in terms of their public character (perhaps not so difficult), and the establishment of a right of non-discriminatory access through a long period of uninterrupted usage (perhaps harder in the case of the internet).

 

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Filed under Article 12: Meaning of "State", Internet Freedom, Net Neutrality, Public goods

The Striking Down of Section 66A: How Indian Free Speech Jurisprudence Found its Soul Again

In the best piece of free speech news since 1960, the Supreme Court on Tuesday struck down Section 66A of the IT Act, that criminalised “grossly offensive”, “menacing” and “annoying or inconvenient” speech over the internet. There has been a substantial degree of commentary about the judgment over the last two days. In this post, I will attempt a detailed excavation of the many fascinating strands of the judgment, from the point of view of free speech doctrine.

Use of American First Amendment jurisprudence

A month ago, I wrote a rather exasperated post about a bizarre Delhi High Court decision allowing the police to pull down political posters from the walls of private property, on the ground that “Delhites have short fuses”, and that political posters could therefore be a threat to public order.  In particular, when American free speech jurisprudence was cited before Justice Endlaw, he refused to consider those cases, on the ground that while the American First Amendment is “absolute” (“Congress shall make no law… abridging… the freedom of speech”), Article 19(2) is subject to reasonable restrictions. This cavalier dismissal highlights the highly opportunistic manner in which the Indian judiciary has engaged with American First Amendment law over the years. On occasions when it helps to buttress a point, judges have shown no compunctions in quoting the grand, eloquent pronouncements of the American judiciary on the freedom of speech; but of course, American First Amendment law has historically been far more speech-protective than its Indian counterpart. Consequently, when judges wishing to uphold far-reaching restrictions upon the freedom of speech are faced with contrary American cases, instead of engaging with the reasoning and demonstrating why it is invalid or inapplicable, they invariable invoke the “First Amendment is an absolute!” trope, and save themselves the trouble of having to consider contrary reasoning.

As I’ve tried to argue before, a refusal to engage with judicially trained minds grappling with very similar issues achieves nothing but stifling exposure to a range of rigorously thought-through and developed viewpoints, and harms the overall quality of reasoning. More importantly, though, the argument that the First Amendment is an absolute, and 19(2) contains reasonable restrictions, is a canard. The First Amendment is not absolute. No American judge, apart from Hugo Black, and possibly William Douglas, has held it to be. The First Amendment permits regulation of incitement to imminent lawless action, obscenity, fighting words, true threats, blackmail, copyright infringement, insider trading, consumer fraud and commercial speech. This was clearly understood by the framers. In the Constituent Assembly Debates, Ambedkar himself observed:

“It is wrong to say that fundamental rights in America are absolute. The difference between the position under the American Constitution and theDraft Constitution is one of form and not of substance. That the fundamental rights in America are not absolute rights is beyond dispute. In support of every exception to the fundamental rights set out in the Draft Constitution one can refer to at least one judgment of the United States Supreme Court.”

He then specifically went on to cite an American judgment on restrictions upon free speech – Gitlow vs New York.

In Paragraphs 14 to 19, Justice Nariman clinically demolishes the aforementioned canard. Citing Chaplinsky vs New Hampshire, the classic American judgment affirming that the First Amendment is not absolute, he correctly points out that the American Supreme Court has never given literal effect to the “make no law” phrase. He then correctly notes that the crucial difference between the American and Indian positions is that while in the United States, a compelling public interest must be demonstrated in order to regulate speech, in India, a restriction must be covered by the eight themes specified in Article 19(2). In other words, there could be occasions when the Indian Constitution protects more speech than the American! In any event, subject to this rider, Justice Nariman notes:

“Viewed from the above perspective, American judgments have great persuasive value on the content of freedom of speech and expression and the tests laid down for its infringement.”

And this is exactly as it should be. There is much to disagree with in American free speech law. But what is undeniable is that over a hundred years, American judges have crafted a deep, thoughtful and complex set of principles for understanding the purposes of the freedom of speech in a constitutional democracy. We might reject their principles completely, but we need to engage with them.

Public interest cannot be a ground for restricting speech

In specifying that under the Constitution, speech can be restricted only under one of the eight listed grounds under Article 19(2), Justice Nariman states twice that “public interest” is not one of the grounds, and so cannot be invoked to justify a speech restriction. In paragraph 21, he notes:

“Under our constitutional scheme, as stated earlier, it is not open to the State to curtail freedom of speech to promote the general public interest.”

Immediately after, he cites Sakal Papers vs Union of India in support of this proposition.

This might sound like an innocuous statement, but it is critically important. This is because, over the years, judges have repeatedly ignored the fact that Article 19(2) exhaustively lists eight grounds of restriction, and that public interest is not one of them (unlike in Article 19(6)). Judges have upheld restrictions upon the nebulous grounds of “public interest” and “social interest”. In Ranjit Udeshi vs State of Maharashtra, for instance, while upholding obscenity law, Justice Hidayatullah traveled beyond the terms of the Constitution to observe that the freedom of speech “is subject to reasonable restrictions which may be thought necessary in the interest of the general public.” He then used that to elide the “decency and morality” clause with “public morality.”

In K.A. Abbas vs Union of India, while upholding a regime of pre-censorship upon cinema, that same Justice Hidayatullah observed:

“… social interest of the people override individual freedom. Whether we regard the state as the paren patriae or as guardian and promoter of general welfare, we have to concede, that these restraints on liberty may be justified by their absolute necessity and clear purpose. Social interests take in not only the interests of the community but also individual interests which cannot be ignored. A balance has therefore to be struck between the rival claims by reconciling them. The larger interests of the community require the formulation of policies and regulations to combat dishonesty, corruption, gambling, vice and other things of immoral tendency and things which affect the security of the State and the preservation of public order and tranquillity.”

In In Re Arundhati Roy, the contempt of court case, the Court held:

“… whether there can be a balancing between the two public interests, the freedom of expression and the dignity of the court.”

Examples may be multiplied, but there is a clear pattern here. The worst free speech judgments of the Supreme Court have come when the Court has traveled beyond its brief, collapsed the specific terms of 19(2) into a boundless and boundlessly manipulable vision of “public” or “social” interest, and then upheld the far-reaching restrictions that the government has sought to impose. There come times in the history of any constitutional court, when jurisprudence becomes so utterly untethered from the constitutional text and principles, that what is most urgently needed is simply a reaffirmation of the basic meaning of text and structure. In doing so, Justice Nariman has performed the incalculably important service of re-orienting free speech jurisprudence back towards its fundamental goals and purposes: interpreting the Constitution of a liberal-democratic polity.

“In the interests of”, “tendency”, and the requirement of proximity

Article 19(2) permits “reasonable restrictions” “in the interests” of the eight prescribed themes. The major contestation in Indian free speech law has turned upon the interpretation of “reasonable” and “in the interests of”. In Ramji Lal Modi and Virendra, two cases decided in 1957, the Supreme Court stated that the phrase “in the interests of” was wider in ambit than the phrase “for the maintenance of”, and consequently, authorised the government to regulate any speech that had a “tendency” towards, for instance, public disorder. In Modi, the Court upheld S. 295A on the ground that intentional outrage to religious feelings had the “calculated tendency” (sic!) to disrupt public order. In Virendra, the Court held prior restraint upon the press under the colonial era Press (Emergency Powers) Act to be constitutional, for the same reason. A plea that there must be proximity between speech and disorder was expressly rejected in Modi.

The word “tendency” is pernicious and damaging. It speaks back to American free speech jurisprudence in the 1920s, when the Supreme Court used a “bad tendency” test to persecute anti-war dissenters, trade-union leaders, leftists and pacifists of various hues. Understanding the sheer unworkability of this test, the Court abandoned it in the 1940s, adopting Justice Holmes and Brandeis’ test of “clear and present” danger. The reason is obvious: “tendency” can mean just about anything, from imminence to the faintest causality. If I start smoking now, I will have a tendency to cancer, even though cancer may set in forty years later. But “tendency” has attained an ubiquitous place in Indian speech restricting laws. The Contempt of Courts Act, for instance, criminalises speech that can have the “tendency” of lowering the repute of the Court; S. 292 of the IPC criminalises material that “tends” to deprave or corrupt. And so on.

Fortunately, we did not have to wait as long as the US to push back against the idea of “tendency”. In Ram Manohar Lohia’s Case (1960), the Supreme Court cleverly “distinguished” precedent, and held that there was a requirement of proximity between speech and the threatened disorder, and that the connection must not be remote, arbitrary or fanciful. In Lohia, a law criminalising instigating people to not pay their taxes was struck down, because it was held not to have a proximate connection to public disorder. Subsequent cases have tightened this test – in S. Rangarajan, the Court held that the connection must be that of a “spark in a powder keg”, and in Arup Bhuyan, that there must be “incitement to imminent lawless action.” But “tendency” has also continued to be invoked by the Courts with alarming regularity. Soon after Lohia, the Court upheld the crime of sedition in Kedar Nath Singh (1962), on the ground that the State could legitimately criminalise speech that had a “tendency” to public disorder.

As in the case of “public interest”, we can immediately see that “tendency” has been responsible – again – for some of the most regressive and speech-restricting decisions of the Indian Supreme Court.

In the 66A judgment, Justice Nariman emphatically adopts the requirement of proximity. He cites Ram Manohar Lohia’s case, highlighting the need for an “intimate connection” between speech and the prohibited 19(2) category.

Incitement vs advocacy: Collapsing “tendency” into imminence

The requirement of an intimate connection is expressed by Justice Nariman in the form of a crucial distinction: between advocacy and incitement. In paragraph 13, he observes:

Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. It is at this stage that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder…”

The distinction between “advocacy” and “incitement” is grounded in the idea of proximity, or imminence. For instance, my “advocating” a violent revolution against the State by writing articles in magazines, or even delivering public lectures, does not constitute “incitement”. However, my whipping up a mob into a frenzy and directing it to imminent violent action does. The enquiry is contextual, and is clearly limited to emergent, specific situations. In other words, Justice Nariman emphatically rejects the proposition that an idea, or a message, can be criminalised because of its communicative content. It is only when there is a relationship of immediacy between speech and action – “speech brigaded with action”, in the words of Justice Douglas – that the law can kick in. I have argued elsewhere that this view is consistent with our most basic ideas of individual autonomy and responsibility. But what is most interesting here is that Justice Nariman then collapses “tendency” into the incitement requirement. He says that it is at the stage of incitement when the law kicks in, to curtail speech that tends to cause disorder.

In other words, the concept of “tendency” that motivated the Court in Modi, Virendra and Kedar Nath Singh is emphatically discarded here. Justice Nariman holds that even if speech has a “tendency” to disorder (say, for instance, a revolutionary tract), that in itself is not a ground for restriction: there must, further, be incitement. To come back to my smoking example – I have a tendency to cancer when I start smoking, but cancer is “imminent” (or “inexorable”) only at a much, much later stage.

Thus, even while maintaining continuity with precedent, by continuing to use “tendency”, Justice Nariman effectively knocks the bottom out of the entire rationale for upholding 295A and sedition.

In paragraph 36 onwards, he buttresses this by collapsing tendency into the American “clear and present danger” test, even citing Modi and Kedar Nath Singh! In paragraph 41, he concludes the public order enquiry by holding:

“Viewed at either by the standpoint of the clear and present danger test or the tendency to create public disorder, Section 66A would not pass muster as it has no element of any tendency to create public disorder which ought to be an essential ingredient of the offence which it creates.”

There is a small quibble here: in paragraph 37, Justice Nariman observes:

“The test of “clear and present danger” has been used by the U.S. Supreme Court in many varying situations and has been adjusted according to varying fact situations. It appears to have been repeatedly applied, see- Terminiello v. City of Chicago 93 L. Ed. 1131 (1949) at page 1134-1135, Brandenburg v. Ohio 23 L. Ed. 2d 430 (1969)”

Strictly speaking, this is incorrect. The “clear and present danger” test was found to be prone to gross abuse during the McCarthy years, when the Court invoked it to convict communist party members and other dissidents. Far from using “clear and present danger”, Brandenburg vs Ohio was the case that rejected it, in favour of a more stringent “incitement to imminent lawless action” test. The Brandenburg standard was adopted by the Supreme Court in 2011, in Arup Bhuyan’s Case. In that respect, it is something of a pity that Justice Nariman endorses “clear and present danger” instead of Brandenburg. Nonetheless, it is also arguable that his disquisition on the distinction between “advocacy” and “incitement” effectively speaks to a Brandenburg level of protection, going forward.

Meaning of Public Order

The term “public order” is a term of art. In Romesh Thappar, independent India’s first free speech judgment, it was defined as “a state of tranquility which prevails amongst the members of a political society.” In Ram Manohar Lohia vs State of Bihar (a different case that also involved Ram Manohar Lohia), the Court conceptualised three concentric circles: “law and order” being the widest, “public order” being narrower, and “security of the state” being the narrowest. Thus, a disruption of public order is something graver than merely breaking a law, or disrupting “law and order”. In the free speech judgments since Lohia, however, this definition has been largely ignored (the Delhi High Court case cited above is a classic example). As in the case of rejecting “public interest” as a ground of restriction, the Court’s endorsement of Lohia provides a crucial reaffirmation of the fact that constitutional terms – especially terms that limit fundamental rights, cannot be arbitrarily expanded, and the Court must adjudicate constitutionality specifically upon the touchstone of their defined meanings.

On a combination of all these factors – that the terms of S. 66A did not establish a proximate link with public order, as defined, the Court held that Article 19(2) did not save that section, at least insofar as public order was concerned. The same analysis was applied to defamation, and decency and morality – the Court reaffirming its recent judgment in Aveek Sarkar’s case. The government’s attempt to escape unconstitutionality by adding an exhaustive set of guidelines (see para 48) was correctly rejected, on the ground that this was tantamount to rewriting the whole section. Consequently, the Court struck it down.

Vagueness

In Grayned vs Rockford, the American Supreme Court defined a vague statute as one which ensured that persons of “ordinary intelligence… have no reasonable opportunity to know what is prohibited.” In Kartar Singh v. State of Punjab, the Supreme Court – citing this case – observed that “it is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values… laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Such a law impermissibly delegates basic policy matters to policemen and also judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.”

There are, therefore, two problems with vague statutes. One is a rule-of-law problem: citizens do not have a fair chance to plan their affairs. The second is a delegation problem: the executive is given far too much discretion to implement vague laws on the ground. We have seen both issues at play with the abuse of S. 66A over the years.

While in K.A. Abbas, the Supreme Court admitted that vagueness could be a ground for striking down a law, it did not do so (despite the Central Guidelines for film certification, which were at issue, being bizarrely overbroad.) In Baldeo Prasad, the Court struck down a law that criminalised goondas, but did not define who a “goonda” was. But the 66A judgment is the first time – to my knowledge – that the Court has struck down a speech-restricting law on the grounds of vagueness. Crucially, the Court observes that it is not possible for the legislature to cast “a net large enough to catch all possible offenders and leave it to the Court to step in and say who could be rightfully detained and who should be set at liberty.”

After citing a copious degree of American and Indian jurisprudence to establish the principle of vagueness, Justice Nariman correctly observes, in paragraph 69, that “judged by the standards laid down in the aforesaid judgments, it is quite clear that the expressions used in 66A are completely open-ended and undefined.” Further contributing to the vagueness are the absence of mens rea, and a series of terms (such as “obstruction”, “danger” or “annoyance”) which are ingredients of an offence in the Indian Penal Code (that of public nuisance), but have become offences in themselves in the IT Act (para 72). Justice Nariman distinguishes other IPC provisions that use identical terms (such as Ss. 294 and 510) on similar grounds, and ends by noting the sheer subjectivity of the words that constitute offences under the IT Act:

“… every expression used is nebulous in meaning. What may be offensive to one may not be offensive to another. What may cause annoyance or inconvenience to one may not cause annoyance or inconvenience to another. Even the expression “persistently” is completely imprecise – suppose a message is sent thrice, can it be said that it was sent “persistently”?”

Over-breadth and the Chilling Effect

Over-breadth is a concept that is closely connected with – but not identical to – the chilling effect. A statute is over-broad if – in the words of the Indian Supreme Court in Chintaman Rao vs State Madhya Pradesh,  “the language employed is wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting the right. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly void.”

Over-breadth directly implicates the reasonableness requirement of Article 19(2). In State of Madras vs V.G. Row, the Supreme Court held that a “reasonable restriction” under Articles 19(2) to (6) would have to satisfy the requirements of proportionality: “the nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.” It is clear that if a statute proscribes conduct that is much broader than what is permitted under Article 19(2), on the ground that there is some – tenuous – connection between the two, there is good reason to argue that the restriction is disproportionate.

While in Chintaman Rao, the Court struck down a statute for being over-broad, over-breadth as a constitutional concept has not yet managed to acquire a foothold in Indian constitutional jurisprudence. Here again, Justice Nariman’s judgment breaks new ground by expressly invoking over-breadth as a ground for striking down a speech-restricting statute. In paragraph 83, he observes:

Information that may be grossly offensive or which causes annoyance or inconvenience are undefined terms which take into the net a very large amount of protected and innocent speech.

And, in paragraph 86:

“[66A’s restrictions] fall foul of the repeated injunctions of this Court that restrictions on the freedom of speech must be couched in the narrowest possible terms.”

This is not all, however. Justice Nariman makes a further, crucial link: between vagueneness and overbreadth, and the chilling effect. The chilling effect refers to a situation where, faced with uncertain, speech-restricting statutes, which blur the line between what is permitted and what is proscribed, citizens are likely to self-censor, in order to be definitively safe. In the words of Justice Brennan, writing in New York Times vs Sullivan, citizens will “tend to make only statements which steer far wider of the unlawful zone… thus dampen[ing] the vigour and limit[ing] the variety of public debate.” In other words, the chilling effect – which applies across different areas of free speech law – ensures that self-censorship will extend even to entirely legitimate speech, and will impoverish the public discourse – the sustenance and enrichment of which is the entire point of free speech in the first place.

Yet again, it is crucial to note here that although past Indian cases have made vague references to the chilling effect (R. Rajagopal and Khushboo), again, the 66A judgment is the first that uses the concept to arrive at a positive legal outcome. In paragraph 83, after examining all the myriad kinds of speech that 66A will reach, Justice Nariman observes:

“Such is the reach of the Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total.”

And, in paragraph 90:

“We, therefore, hold that the Section is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of overbreadth.”

Article 14 and differences by medium

One last point remains to be noted. The core of the government’s argument was that the internet is a very different medium from print or cinema, and that consequently, the government should be allowed greater leeway to regulate it. In paragraph 27, Justice Nariman lists some of the facets of the government’s contention: that the internet has a much greater (global) reach, it reaches both literate and illiterate people, even cinema has pre-censorship rules (but the internet doesn’t), rumours can spread to “trillions” (sic!) of people, there is much greater scope for invasion of privacy, the internet provides much greater shelter to anonymity, there are no internal regulatory norms, and that the spread is much more rapid.

In contradistinction, the challengers made precisely the opposite argument. They contended that since S. 66A lacked the kinds of procedural and other safeguards present for the regulation of print media, there was an Article 14 violation of equality. According to the challengers, a principle of equivalence must apply across media of communication.

Interestingly, Justice Nariman rejects both contentions. He rejects the Article 14 argument, holding that the internet is indeed a medium with some unique qualities, and that it is possible that there might be certain offences that can only take place online. In paragraph 28, he notes that the government is entitled to draft narrowly-drawn provisions that specifically speak to those offences (such as website blocking). But in the very same paragraph, he also notes:

“[the differential nature of the internet would not]  relax the Court’s scrutiny of the curbing of the content of free speech over the internet. While it may be possible to narrowly draw a Section creating a new offence, such as Section 69A for instance, relatable only to speech over the internet, yet the validity of such a law will have to be tested on the touchstone of the tests already indicated above.”

In effect, what kind of speech might be restricted is agnostic to media. Furthermore, when it may be restricted (i.e., the 19(2)) principles, and the relationship of proximity) is also impervious to the difference in media. The only place where this difference might be relevant is where the medium itself allows for certain kinds of offences (such as spam, or phishing) that were not possible before, and in such circumstances, the State may frame a law, which will nonetheless be tested on the anvil of Article 19(2).

This raises the following question: in K.A. Abbas, the Court held pre-censorship to be valid in the case of cinema on the ground that films had a much more striking impact upon the average “illiterate” Indian viewer. In other words, the difference in medium was held to justify a difference in the form of the restriction – in particular, doing away with the proximity test, or at least, diluting it to an unrecognisable degree. The logic of Justice Nariman’s judgment, I would suggest, knocks the bottom out of the prior-restraint regime of film-censorship. It is not as if films permit the commission some specific kinds of offences that were not possible before (unlike the internet). In fact, the Court’s reasoning in K.A. Abbas was specifically based on an (unproven) assumption of how an “illiterate” audience reacts differently to the written word and the visual image. Cases after K.A. Abbas (such as Anand Patwardhan’s Case) have rejected the “illiterate Indian trope”, thus undermining the foundations of that holding. The 66A judgment, however, rejects that form of reasoning entirely.

Consequences

Constitutionally, what follows? I would suggest the following. Ever since Ram Manohar Lohia, there has been a gradual, incremental chipping away at the philosophical foundations of some of our most regressive, speech-restricting laws. Consider the following:

(a) Ramji Lal Modi upheld 295A on the ground that proximity was irrelevant, specifically rejected an over-breadth argument, and held that deliberate insults to religion had a “calculated tendency” to cause public disorder.

(b) Kedar Nath Singh upheld sedition (124A) on the ground that disaffection against the government had the “tendency” to public disorder.

(c) K.A. Abbas upheld pre-censorship of films on the ground of how the medium differently affects viewers; it rejected a challenge to the Censorship Guidelines on the ground of vagueness, and did not even consider an over-breadth argument.

(d) Contempt of court judgments (unfortunately, rather consistently) have held that certain forms of criticism against the court have a “tendency” to undermine justice.

(e)  Apart from Rajagopal’s Case, which is limited to public officials, the Supreme Court is yet to examine defamation law on the touchstone of Article 19(1)(a), and a criminal law of defamation continues to exist on the statute books. In countries such as the US, Canada, South Africa, and England, the “chilling effect” of the common law of defamation (strict liability) has been expressly invoked to limit its reach, and its propensity to be used as a tool of harassing journalists and investigative reporters.

At the same time, however:

(a) Ram Manohar LohiaS. Rangarajan and Arup Bhuyan (the latter two coming after Modi and Kedar Nath Singh) have insisted on a proximity requirement between speech and disorder.

(b) Chintaman Rao and Kameshwar Prasad have struck down statutes on over-breadth grounds (while not directly invoking the concept).

(c) Rajagopal’s case has incorporated the Sullivan rule to protect writers from civil defamation claims brought by public officials, and indirectly invoked the chilling effect.

This latter group of judgments, it is clear, have indirectly, implicitly undermined the foundations of the former. The 66A judgment makes it direct and explicit. Proximity, over-breadth, vagueness and the chilling effect are all expressly invoked to strike down a statute. They have been specifically incorporated into Indian free speech jurisprudence, and may be invoked in future free speech claims.

So perhaps, at long last, the time has come to rethink fifty-year old judgments upholding blasphemy and sedition laws, rethink criminal defamation, throw off the oppressive fetters of civil defamation and contempt of court, and attack the censorship guidelines of both cinema and cable TV.

This judgment lays the constitutional, legal and philosophical terrain to do all of that. It creates the ground upon which we can erect a progressive, liberal understanding of free speech, based upon a vision of individuals as responsible and autonomous beings, who do not need “protection” from moral corruption, and who do not need a paternalistic State or court telling them what they need to read, see or here. Individuals, one and all, worthy of dignity and equal concern and respect.

This is the first judgment since 1960 that unequivocally affirms every one of those propositions.

It is the judgment that has given Indian free speech law its soul back.

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The Supreme Court’s IT Act Judgment, and Secret Blocking

As has been widely reported by now, yesterday the Supreme Court delivered a landmark judgment striking down Section 66A of the Information Technology Act, reading down S. 79 (intermediary liability) and upholding S. 69A (blocking of websites). I will be writing a detailed analysis of the jurisprudence behind the Court’s striking down of S. 66A in a while. In this post, however, I want to briefly comment on S. 69A and secret blocking.

S. 69A of the IT Act authorises the government to block access to websites, on grounds that roughly overlap with (but are not identical to) Article 19(2) of the Constitution (reasonable restrictions upon the freedom of speech). S. 69A(2) specifies that the procedure and safeguards for carrying out blocking will be specified. Pursuant to this, “Blocking Rules” were framed in 2009. The Blocking Rules prescribe who can make a blocking request, set up the (executive) authorities that will examine the requests, provide an opportunity for pre-decisional hearings for the intermediaries (and/or, if they can be traced, originators), and lay out the process for blocking. There are three crucial aspects that must be noted:

(a) The Rules do not provide for an appeals process.

(b) Rule 15 requires that Designated Officer to maintain records of blocking requests and actions taken, but

(c) Rule 16 stipulates that “strict confidentiality shall be maintained regarding all the requests and complaints received and actions taken thereof.”

As is obvious, the main problem with the Blocking Rules (among many others) is their secrecy. The rules require notice to the intermediary, but naturally, intermediaries are bound to be far more interested in avoiding confrontations with the government, and in self-preservation, than in defending the freedom of speech. Furthermore, Rule 16 requires confidentiality, thereby raising the presumption that nobody beyond the intermediaries ought to know about a block. For instance, when the Software Freedom Law Centre attempted to get access to blocking orders for 1208 blocked websites in 2013, it was denied on Rule 16 grounds. As has been well-documented, it is often difficult to even find out that a non-accessible website has been blocked, and even more difficult to find out why that has happened.

In this context, what does the Court’s judgment, upholding both S. 69A and the Rules in their entirety, mean? At Medianama, Nikhil Pahwa argues that in effect, secret blocks will now continue, just as they were happening before.

There are, however, two important aspects that ought to be noted.

First, consider Rule 8 of the Blocking Rules:

On receipt of request under rule 6, the Designated Officer shall make all reasonable efforts to identify the person or intermediary who has hosted the information or part thereof as well as the computer resource on which such information or part thereof is being hosted and where he is able to identify such person or intermediary and the computer resource hosting the information or part thereof which have been requested to be blocked for public access, he shall issue a notice…”

The text of the Rule uses the phrase “person or intermediary”, thus implying that notice may be sent to either the originator or the intermediary. This – as explained above – is deeply problematic. In his article, Nikhil writes:

If my site is blocked, don’t I have the right to know why it’s been blocked? Mobango.com, a company owned by the People Group (Shaadi.com), was blocked in India for six months and didn’t know why for the longest time. Where was their Committee hearing? Where was the hearing for Vimeo, Github, Dailymotion (read), Imgur (read)? Shouldn’t they be informed of the process of getting a block removed?”

In Paragraph 110 of the judgment, however, the Court notes:

“It is also clear from an examination of Rule 8 that it is not merely the intermediary who may be heard. If the “person” i.e. the originator is identified he is also to be heard before a blocking order is passed.”

In other words, the Court takes the disjunctive “or” in the Rule, and effectively transforms it into a conjunctive “and”. It therefore seems to be the case that henceforth – insofar as they can be identified, originators must also be notified of blocks, and given the opportunity to challenge them.

I would suggest, however, that the logic of the judgment goes even further. Consider Paragraph 109, where the Court holds S. 69A and the rules constitutional:

“It will be noticed that Section 69A unlike Section 66A is a narrowly drawn provision with several safeguards. First and foremost, blocking can only be resorted to where the Central Government is satisfied that it is necessary so to do. Secondly, such necessity is relatable only to some of the subjects set out in Article 19(2). Thirdly, reasons have to be recorded in writing in such blocking order so that they may be assailed in a writ petition under Article 226 of the Constitution.”

It is the “thirdly” that is crucial. The Court specifies that blocking orders must be reasoned, and in writing, so that they may be challenged under Article 226. Now, who may challenge a blocking order? Obviously, an intermediary and/or the originator are entitled to do so. But consider also paragraph 20 of the judgment, when the Court starts its examination of S. 66A:

“It is clear, therefore, that the petitioners are correct in saying that the public’s right to know is directly affected by Section 66A. Information of all kinds is roped in – such information may have scientific, literary or artistic value, it may refer to current events, it may be obscene or seditious. That such information may cause annoyance or inconvenience to some is how the offence is made out. It is clear that the right of the people to know – the market place of ideas – which the internet provides to persons of all kinds is what attracts Section 66A.”

The underlined portions tap into an established principle of Indian free speech jurisprudence: that Article 19(1)(a) guarantees not only the rights of speakers to express themselves, but also the rights of listeners (or, in the case of the internet, viewers) to access information (other Constitutions – such as the German and the South African – expressly include listeners’ rights as an aspect of the freedom of expression).

For instance, in LIC vs Manubhai D. Shah, while dealing with the rejection of a right of reply, the Supreme Court noted: “such an attitude on the part of the LIC can be described as both unfair and unreasonable; unfair because fairness demanded that both view points were placed before the readers, however limited be their number, to enable them to draw their own conclusions and unreasonable because there was no logic or proper justification for refusing publication… the respondent’s fundamental right of speech and expression clearly entitled him to insist that his views on the subject should reach those who read the magazine so that they have a complete picture before them and not a one sided or distorted one…

And, in State of UP vs Raj Narain, Justice Mathew, in his concurring opinion, noted:

In a Government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries.”

Examples can be multiplied, but suffice it to say that the right to information, and its corollary, the rights of readers and viewers to access information, constitute part of the right to freedom of expression under Article 19(1)(a). But if that is true, then a website block implicates the constitutional rights not only of intermediaries and originators, but also of the general public – each member of which, for that reason, has the right to challenge the blocking under Article 226, as the Court specifically upheld. Now, it is impossible to challenge a blocking order unless one has access to it. Consequently, when the Court says that blocking orders must be reasoned and in writing, so that they may be challenged under Article 226, it follows by necessary implication that the blocking orders must be made available to the public.

The doctrine of necessary implication is well-accepted in statutory interpretation. A statute is understood to contain not only what is express, but also that which is necessary to effectuate its “object or purpose”, or to make effective the rights (or privileges) that it grants. This doctrine would apply with even greater force to subordinate legislation, such as the Blocking Rules. Consequently, it may well be argued that even though the Court did not expressly overrule Rule 16, the logic of its judgment – in light of settled jurisprudence on Article 19(1)(a) – means that it did so impliedly. Admittedly, neither necessary implication nor implied overruling are to be lightly invoked, but in this case, not only does this conclusion seem to follow inexorably from the Supreme Court’s Article 19(1)(a) jurisprudence, but the fact that what is at issue is a subordinate legislation, the normal presumptions against necessary implication/implied overruling are consequently weaker.

This, of course, is probably an over-optimistic reading of the judgment. So perhaps the best way of settling this issue might well be through a clarification petition.

 

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Report on the Intermediary Guidelines

The Software Freedom Law Centre has just published an analysis of the Information Technology (Intermediary Guidelines) Rules, 2011. This is a fairly extensive empirical and doctrinal report about the effects of the Intermediary Guidelines on various aspects of internet freedom. The full report may be downloaded here.

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Two Arguments against the Constitutionality of S. 66A

(This post first appeared on the CIS blog, here)

In the immediate aftermath of the elections, free speech issues have come to the fore again. In Goa, a Facebook user was summoned for a post warning a second holocaust if Modi was elected to power. In Karnataka, a MBA student was likewise arrested for circulating an MMS that showed Modi’s face morphed onto a corpse, with the slogan “Abki baar antim sanskaar”. These arrests have reopened the debate about the constitutional validity of Section 66A of the IT Act, which is the legal provision governing online speech in India. Section 66A criminalises, among other things, the sending of information that is “grossly offensive or menacing in character” or causes “annoyance or inconvenience”. The two instances cited above raise – not for the first time – the concern that when it comes to implementation, Section 66A is unworkable to the point of being unconstitutional.

Like all legal provisions, Section 66A must comply with the fundamental rights chapter of the Indian Constitution. Article 19(1)(a) guarantees the freedom of speech and expression, and Article 19(2) permits reasonable restrictions in the interests of – inter alia– “public order, decency or morality”. Presumably, the only way in which Section 66A can be justified is by showing that it falls within the category of “public order” or of “morality”. The precedent of the Supreme Court, however, has interpreted Article 19(2) in far narrower terms than the ones that Section 66A uses. The Court has held that “public order” may only be invoked if there is a direct and immediate relation between the offending speech and a public order disturbance – such as, for instance, a speaker making an incendiary speech to an excited mob, advocating imminent violence (the Court has colloquially stated the requirement to be a “spark in a powder keg”). Similarly, while the Court has never precisely defined what “morality” – for the purposes of Article 19(2) – means, the term has been invoked where (arguably) pornographic materials are concerned – and never simply because speech has “offended” or “menaced” someone. Indeed, the rhetoric of the Court has consistently rejected the proposition that the government can prohibit individuals from offending one another.

This raises two constitutional problems with Section 66A: the problems of overbreadth and vagueness. Both doctrines have been developed to their fullest in American free speech law, but the underlying principles are universal.

A statute is overbroad when it potentially includes within its prohibitions both speech that it is entitled to prohibit, and speech that it is not. In Gooding v. Wilson, a Georgia statute criminalized the use of “opprobrious words or abusive language”. In defending the statute, the State of Georgia argued that its Courts had read it narrowly, limiting its application to “fighting words” – i.e., words that by their very nature tended to incite an imminent breach of the peace, something that was indisputably within the power of the State to prohibit. The Supreme Court rejected the argument and invalidated the statute. It found that the words “opprobrious” and “abusive” had greater reach than “fighting words”. Thus, since the statute left “wide open the standard of responsibility, so that it [was] easily susceptible to improper application”, the Court struck it down.

A statute is vague when persons of “ordinary intelligence… have no reasonable opportunity to know what is prohibited.” InGrayned v. Rockford, the American Supreme Court noted that a vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” There are, therefore, a number of problems with vague laws: one of the fundamental purposes of law is to allow citizens to plan their affairs with a degree of certainty. Vagueness in legislation prevents that. And equally importantly, vague laws leave a wide scope of implementing power with non-elected bodies, such as the police – leading to the fear of arbitrary application.

While overbreadth and vagueness are problems that affect legislation across the board, they assume a particular urgency when it comes to free speech. This is because, as the American Supreme Court has recognized on a number of occasions, speech regulating statutes must be scrutinized with specific care because of the chilling effect: when speech is penalized, people will – out of fear and caution – exercise self-censorship, and the political discourse will be impoverished. If we accept – as the Indian Courts have – that a primary reason for guaranteeing free expression rights is their indispensability to democracy, then the danger of self-censorship is one that we should be particularly solicitous of. Hence, when speech-regulating statutes do proscribe expression, they must be clear and narrowly drawn, in order to avoid the chilling effect. As the American Supreme Court euphemistically framed it, “free speech needs breathing space to survive.” Overbroad and vague speech-restricting statutes are particularly pernicious in denying it that breathing space.

There seems to be little doubt that Section 66A is both overbroad and vague. However ill-judged a holocaust comparison or a morphed corpse-image may be, neither of them are like sparks in a powder keg, which will lead to an immediate breach in public order – or “immoral” in the way of explicit pornography. We can therefore see, clearly, that the implementation of the law leaves almost unbounded scope to officials such as the police, provides room for unconstitutional interpretations, and is so vaguely framed that it is almost impossible to know, in advance, what actions fall within the rule, and which ones are not covered by it. If there is such a thing as over-breadth and vagueness par excellence, then Section 66A is surely it!

At various times in its history, the Supreme Court has acknowledged the problems of overbreadth, vagueness and the chilling effect, but never directly incorporated them into Indian law. As we have seen, each of these elements is connected to the other: over-broad and vague speech-regulating statutes are problematic because of the chilling effect. Since Section 66A is presently being challenged before the Supreme Court, there is a great opportunity for the Court both to get rid of this unconstitutional law, as well as strengthen the foundations of our free speech jurisprudence.

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Net Neutrality, Free Speech and the Indian Constitution – III: Conceptions of Free Speech and Democracy

(This post first appeared on the CIS blog, here)

In the modern State, effective exercise of free speech rights is increasingly dependent upon an infrastructure that includes newspapers, television and the internet. Access to a significant part of this infrastructure is determined by money. Consequently, if what we value about free speech is the ability to communicate one’s message to a non-trivial audience, financial resources influence both who can speak and, consequently, what is spoken. The nature of the public discourse – what information and what ideas circulate in the public sphere – is contingent upon a distribution of resources that is arguably unjust and certainly unequal.

There are two opposing theories about how we should understand the right to free speech in this context. Call the first one of these the libertarian conception of free speech. The libertarian conception takes as given the existing distribution of income and resources, and consequently, the unequal speaking power that that engenders. It prohibits any intervention designed to remedy the situation. The most famous summary of this vision was provided by the American Supreme Court, when it first struck down campaign finance regulations, in Buckley v. Valeo“the concept that government may restrict the speech of some [in] order to enhance the relative voice of others is wholly foreign to the First Amendment.” This theory is part of the broader libertarian worldview, which would restrict government’s role in a polity to enforcing property and criminal law, and views any government-imposed restriction on what people can do within the existing structure of these laws as presumptively wrong.

 

We can tentatively label the second theory as the social-democratic theory of free speech. This theory focuses not so much on the individual speaker’s right not to be restricted in using their resources to speak as much as they want, but upon the collective interest in maintaining a public discourse that is open, inclusive and home to a multiplicity of diverse and antagonistic ideas and viewpoints. Often, in order to achieve this goal, governments regulate access to the infrastructure of speech so as to ensure that participation is not entirely skewed by inequality in resources. When this is done, it is often justified in the name of democracy: a functioning democracy, it is argued, requires a thriving public sphere that is not closed off to some or most persons.

Surprisingly, one of the most powerful judicial statements for this vision also comes from the United States. In Red Lion v. FCC, while upholding the “fairness doctrine”, which required broadcasting stations to cover “both sides” of a political issue, and provide a right of reply in case of personal attacks, the Supreme Court noted:

“[Free speech requires] preserv[ing] an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee… it is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here.”

What of India? In the early days of the Supreme Court, it adopted something akin to the libertarian theory of free speech. In Sakal Papers v. Union of India, for example, it struck down certain newspaper regulations that the government was defending on grounds of opening up the market and allowing smaller players to compete, holding that Article 19(1)(a) – in language similar to what Buckley v. Valeo would hold, more than fifteen years later – did not permit the government to infringe the free speech rights of some in order to allow others to speak. The Court continued with this approach in its next major newspaper regulation case,Bennett Coleman v. Union of India, but this time, it had to contend with a strong dissent from Justice Mathew. After noting that “it is no use having a right to express your idea, unless you have got a medium for expressing it”, Justice Mathew went on to hold:

What is, therefore, required is an interpretation of Article 19(1)(a) which focuses on the idea that restraining the hand of the government is quite useless in assuring free speech, if a restraint on access is effectively secured by private groups. A Constitutional prohibition against governmental restriction on the expression is effective only if the Constitution ensures an adequate opportunity for discussion… Any scheme of distribution of newsprint which would make the freedom of speech a reality by making it possible the dissemination of ideas as news with as many different facets and colours as possible would not violate the fundamental right of the freedom of speech of the petitioners. In other words, a scheme for distribution of a commodity like newsprint which will subserve the purpose of free flow of ideas to the market from as many different sources as possible would be a step to advance and enrich that freedom. If the scheme of distribution is calculated to prevent even an oligopoly ruling the market and thus check the tendency to monopoly in the market, that will not be open to any objection on the ground that the scheme involves a regulation of the press which would amount to an abridgment of the freedom of speech.

 

In Justice Mathew’s view, therefore, freedom of speech is not only the speaker’s right (the libertarian view), but a complex balancing act between the listeners’ right to be exposed to a wide range of material, as well as the collective, societal right to have an open and inclusive public discourse, which can only be achieved by preventing the monopolization of the instruments, infrastructure and access-points of speech.

Over the years, the Court has moved away from the majority opinions in Sakal Papers and Bennett Coleman, and steadily come around to Justice Mathew’s view. This is particularly evident from two cases in the 1990s: in Union of India v. The Motion Picture Association, the Court upheld various provisions of the Cinematograph Act that imposed certain forms of compelled speech on moviemakers while exhibiting their movies, on the ground that “to earmark a small portion of time of this entertainment medium for the purpose of showing scientific, educational or documentary films, or for showing news films has to be looked at in this context of promoting dissemination of ideas, information and knowledge to the masses so that there may be an informed debate and decision making on public issues. Clearly, the impugned provisions are designed to further free speech and expression and not to curtail it.

LIC v. Manubhai D. Shah is even more on point. In that case, the Court upheld a right of reply in an in-house magazine, “because fairness demanded that both view points were placed before the readers, however limited be their number, to enable them to draw their own conclusions and unreasonable because there was no logic or proper justification for refusing publication… the respondent’s fundamental right of speech and expression clearly entitled him to insist that his views on the subject should reach those who read the magazine so that they have a complete picture before them and not a one sided or distorted one…” This goes even further than Justice Mathew’s dissent in Bennett Coleman, and the opinion of the Court in Motion Picture Association, in holding that not merely is it permitted to structure the public sphere in an equal and inclusive manner, but that it is a requirementof Article 19(1)(a).

We can now bring the threads of the separate arguments in the three posts together. In the first post, we found that public law and constitutional obligations can be imposed upon private parties when they discharge public functions. In the second post, it was argued that the internet has replaced the park, the street and the public square as the quintessential forum for the circulation of speech. ISPs, in their role as gatekeepers, now play the role that government once did in controlling and keeping open these avenues of expression. Consequently, they can be subjected to public law free speech obligations. And lastly, we discussed how the constitutional conception of free speech in India, that the Court has gradually evolved over many years, is a social-democratic one, that requires the keeping open of a free and inclusive public sphere. And if there is one thing that fast-lanes over the internet threaten, it is certainly a free and inclusive (digital) public sphere. A combination of these arguments provides us with an arguable case for imposing obligations of net neutrality upon ISPs, even in the absence of a statutory or regulatory obligations, grounded within the constitutional guarantee of the freedom of speech and expression.

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Net Neutrality, Free Speech and the Indian Constitution – II: Private parties, public obligations

(This post first appeared on the CIS website, here)

To sum up the previous post: under Article 12 of the Constitution, fundamental rights can be enforced only against the State, or State-like entities that are under the functional, financial and administrative control of the State. In the context of net neutrality, it is clear that privately-owned ISPs do not meet the exacting standards of Article 12. Nonetheless, we also found that the Indian Supreme Court has held private entities, which do not fall within the contours of Article 12, to an effectively similar standard of obligations under Part III as State organizations in certain cases. Most prominent among these is the case of education: private educational institutions have been required to adhere to standards of equal treatment which are identical in content to Article 14, even though their source lies elsewhere. If, therefore, we are to impose obligations of net neutrality upon private ISPs, a similar argument must be found.

I will suggest that the best hope is by invoking the free speech guarantee of Article 19(1)(a). To understand how an obligation of free speech might operate in this case, let us turn to the case of Marsh v. Alabama, an American Supreme Court case from 1946.

Marsh v. Alabama involved a “company town”. The “town” of Chickasaw was owned by a private company, the Gulf Shipbuilding Corporation. In its structure it resembled a regular township: it had building, streets, a sewage system, and a “business block”, where stores and business places had been rented out to merchants and other service providers. The residents of the “town” used the business block as their shopping center, to get to which they used the company-owned pavement and street. Highway traffic regularly came in through the town, and its facilities were used by wayfarers. As the Court noted:

In short the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation.”

Marsh, who was a Jehovah’s Witness, arrived in Chickasaw with the intention of distributing religious literature on the streets. She was asked to leave the sidewalk, and on declining, she was arrested by the police, and charged under an anti-trespassing statute. She argued that if the statute was applied to her, it would violate her free speech and freedom of religion rights under the American First Amendment. The lower Courts rejected her argument, holding that since the street was owned by a private corporation, she had no constitutional free speech rights, and the situation was analogous to being invited into a person’s  private house. The Supreme Court, however, reversed the lower Courts, and found for Marsh.

Four (connected) strands of reasoning run through the Supreme Court’s (brief) opinion. First, it found that streets, sidewalks and public places have historically been critically important sites for dissemination and reception of news, information and opinions, whether it is through distribution of literature, street-corner oratory, or whatever else. Secondly, it found that private ownership did not carry with it a right to exclusive dominion. Rather, “the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm. Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation.” Thirdly, it noted that a large number of Americans throughout the United States lived in company towns, and acted just as other American citizens did, in their duties as residents of a community. It would therefore be perverse to deny them rights enjoyed by those who lived in State-municipality run towns. And fourthly, on balance, it held that the private rights of property-owners was subordinate to the right of the people to “enjoy freedom of press and religion.”

No one factor, then, but a combination of factors underlie the Court’s decision to impose constitutional obligations upon a private party. It mattered that, historically, there have been a number of spaces traditionally dedicated to public speech: parks, squares and streets – whose public character remained unchanged despite the nature of ownership. It mattered that individuals had no feasible exit option – that is, no other place they could go to in order to exercise their free speech rights. And it mattered that free speech occupied a significant enough place in the Constitutional scheme so as to override the exclusionary rights that normally tend to go with private property.

The case of the privately-owned street in the privately-owned town presents a striking analogy when we start thinking seriously about net neutrality. First of all, in the digital age, the traditional sites of public discourse – parks, town squares, streets – have been replaced by their digital equivalents. The lonely orator standing on the soap-box in the street corner now tweets his opinions and instagrams his photographs. The street-pamphleteer of yesteryear now updates his Facebook status to reflect his political opinions. Specialty and general-interest blogs constitute a multiplicity of town-squares where a speaker makes his point, and his hearers gather in the comments section to discuss and debate the issue. While these examples may seem frivolous at first blush, the basic point is a serious one: the role of opinion formation and transmission that once served by open, publicly accessible physical infrastructure, held – in a manner of speaking – in public trust by the government, is now served in the digital world, under the control of private gatekeepers. To that extent, it is a public function, undertaken in public interest, as the Court held in Marsh v. Alabama.

The absence of an exit option is equally important. The internet has become not only space of exchanging information, but it has become a primary – non-replaceable source – of the same. Like the citizens of Chickasaw lacked a feasible alternative space to exercise their public free speech rights (and we operate on the assumption that it would be unreasonably expensive and disruptive for them to move to a different town), there is now no feasible alternative space to the internet, as it exists today, where the main online spaces are owned by private parties, and access to those spaces is determined by gatekeepers – which are the ISPs.

The analogy is not perfect, of course, but there is a case to be made that in acting as the gatekeepers of the internet, privately-owned ISPs are in a position quite similar to the corporate owners of they public streets Company Town.

In the last post, we saw how it is possible – constitutionally – to impose public obligations upon private parties, although the Court has never made its jurisprudential foundation clear. Here, then, is a thought: public obligations ought to be imposed when the private entity is providing a public function and/or when the private entity is in effectively exclusive control of a public good. There is an argument that ISPs satisfy both conditions. Of course, we need to examine in detail how precisely the rights of free expression are implicated in the ISP context. That is the subject for the next post.

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