Creating Authority of Law Over a New Technology: Reflections from Shreya Singhal


This is the second research note from Smarika Kumar, one of the short-term social media research fellows at The Sarai Programme.

 
The life of law is built upon the interpretation of words, terms, phrases in language, along with the claims of precision in relevant contexts. More than ever, analogies are a potent tool in legal interpretations understandings of technology and technical regulation. The present post hopes to illustrate this assertion through bringing out some such analogies and contemplation on what underlay the formation of such analogies in Shreya Singhal v. Union of India [1] , and lastly some speculation on what might be its implications.

Shreya Singhal was a petition brought before the Supreme Court of India to challenge the constitutionality of Sections 66A, 69A and 79 of the Information Technology Act, 2000. Section 66A criminalised a variety of online speech on broad grounds, Section 69A allowed the State the powers of blocking content on the internet and Section 79 made internet intermediaries like websites and internet service providers (ISPs) responsible for the takedown of internet content from their fora upon received complaints from anyone regarding such content. Finally decided in March 2015, the Supreme Court judgment struck down Section 66A as unconstitutional, upheld Section 69A and rules framed under it as constitutional, and read down the provisions of the rules under Section 79. The judgment was perceived as a landmark one in many circles as the bastion of free speech ruling in India, and with good reason.

Posing a Different Standard of “Reasonable” through Differentiating Technologies

In Shreya Singhal, the constitutionality of Section 66A was challenged, among others, on the grounds of Article 19(1)(a) of the Constitution, which guarantees the Right to Freedom of Speech and Expression to all citizens, and also on the grounds of Article 14 which guarantees the Right to Equality. Article 19(1)(a) is however subject to certain “reasonable restrictions” under grounds specified in Article 19(2) of the Constitution. One of the primary questions before the Supreme Court in the case then was whether what is “reasonable” under Article 19(2) should actually depend on the medium through which speech or expression is conducted?

The defendant-Government argument to this effect was that internet as a medium, is very different from the media which existed prior to it. Consequently, the standard of what is a “reasonable” restriction for speech and expression on the internet should be different from a “reasonable” restriction under Article 19(2) for other prior media technologies. In support of this contention, the Government submitted various points of difference between the internet and other media before it. These included the wide reach of the internet as opposed to print media, the accessibility of internet to illiterate as well as literate people, as opposed to print media, the assertion that the internet is teeming with “rumours” and “false images” as opposed to the “truth” of broadcast media, the possibility of anonymity, invasion of privacy, sexual harassment or of abuse through the internet as opposed to print or broadcast media and the low cost and ease of access to internet when compared to both print and broadcast media.[2]

It is through the carving of such differences between internet and other technologies that the Government submission sought to assert that there is a need for a different regulatory framework for the internet—different from what was applicable to prior technologies, and that such a framework accordingly should have different standards of what amounts to a “reasonable” restriction within it.

The interesting point here about the Court proceedings is how they build on the idea of what is “reasonable” in law through an understanding of the internet via analogies with other prior technologies. Validation for this was sought in the Government arguments through the invocation of cases where the regulatory design framework for prior media technologies like film, and television had been discussed.

Notably, the 1978 Supreme Court judgment of K.A. Abbas v. Union of India [3], which considered the constitutionality of pre-censorship for films, is cited by the Additional Solicitor General (ASG) for the Government of India [4]. In K.A. Abbas, the Court upheld the constitutionality of a pre-censorship regime for films even though such pre-censorship of books or print media was not constitutional. The rationale for this was found in the greater affective impact which films can have on people, over books. Films can “deeply stir” in a way writing, speeches, paintings and sculptures cannot. Accordingly, the Court states that there is an almost universal recognition that motion picture must be treated differently from other forms. The justification for this differential treatment is rationalised:

“This arises from the instant appeal of the motion picture, its versatility, realism (often surrealism), and its coordination of the visual and aural senses. The art of the cameraman, with trick photography, vista vision and three dimensional representation thrown in, has made the cinema picture more true to life than even the theatre or indeed any other form of representative art. The motion picture is able to stir up emotions more deeply than any other product of art. Its effect particularly on children and adolescents is very great since their immaturity makes them more willingly suspend their disbelief than mature men and women. They also remember the action in the picture and try to emulate or imitate what they have seen. Therefore, classification of films into two categories of ‘U’ films and ‘A’ films is a reasonable classification.” [5]

By citing K.A. Abbas in this context, the ASG in Shreya Singhal seeks to use the precedential language of law to justify that the standards of legal concepts may change with changing media technologies.

Application of the Same Standard of “Reasonable” through Questioning of Apparent Differences between Internet and Prior Technologies

The Supreme Court in Shreya Singhal however refuses to accept the argument that medium-specificity is the guide to the standard of the “reasonable” in law. It is interesting to look at notes on the final oral arguments in the case to filter certain exchanges between the idea of a technologically-neutral standard of the “reasonable” and a technologically-specific standard of the same:

Justice RF Nariman: Is the standard for judging the same, or does it depend on the medium?

Additional Solicitor General: Threshold of imminent danger should be less, as on the internet we don’t know what target it will have, and who is accessing the information, internet is more accessible…

Justice RF Nariman: You can create a new offence based on new technology but parameters of Article 19(2) will have to be the same – how do these change while judging?

Additional Solicitor General: If the speech that Ram Manohar Lohia made was on the Internet, then proximate danger test should change-
Judges question this presumption, they ask who will access this speech anyway, you me and others who are interested….
[6]

It is noteworthy here that in response to the contention by the ASG that internet is more accessible than prior technologies, and therefore should be governed by a different standard of “reasonable,” in what constitutes the threshold of “imminent danger”, the judges interrogate the very assumption that the “internet is more accessible.” In this manner the Bench questions the very premise that the internet is different from prior technologies. Such questioning enables the Bench to rationalise the application of the same standard of the “reasonable” to the internet, as was applicable to other media.

The Authority of Law: What Is Reasonable Must Be Technologically Neutral

Need for 66A is made out by what you are saying , but whether test meets the standards of Article 19(1)(a) will not change.
– Justice RF Nariman
[7]

The tension between the two imaginations of internet as (i)unlike prior media, as argued by the ASG and as (ii) not unlike prior media, as is perceived by the Bench, is what produces the jurisprudence of Shreya Singhal, whereby the standard of “reasonable” restrictions under Article 19(2) are pronounced to be technologically neutral by the Court. Even while the presumption that the internet is different from prior technologies is questioned by the Bench in the final oral arguments, the judgment notably is not based on the understanding that the internet is same as other media in its characteristics or usage. Rather, it is found upon the idea that the standard for what is “reasonable” under Article 19(2) should stand irrespective of the medium a particular case concerns itself with. I argue that such culmination of the tension between the two imaginations becomes necessary in order to preserve the authority of law over technological development. To develop this thought, let us look at the notes on the final oral arguments on the same issue continuing on another day. The question in the Court has remained, Would standards under Article 19(2) differ based on the medium one is talking about?:

The Additional Solicitor General cites judgments in Romesh Thapar, VG Row, Ramji Lal, Virendra, Ram Manohar Lohia, Hamdard Dawakhana, Sakal Newspapers, KA Abbas, Indian Express Newspapers, and S Rangarajan to argue that what is “reasonable” under Article 19(2) changes – He cites Rangarajan to say that a movie motivates thought ,action, leads to high retention etc, has a unique capacity to disturb and arouse….movies can’t be equated with other modes of communication, thus attempting to argue that internet needs to be treated differently when regulation is concerned as well. He then says there are American judgments that also back this up…

Justice Chelameswar, referring to the argument that a new medium requires different standards of reasonableness asks the Additional Solicitor General if years of judicial wisdom can be nullified by one stroke. [8]

What one observes here is that the idea that changing technology should result in changing standards of law, seems to present a challenge to the very authority of law itself. This challenge becomes stark when Justice Chelameswar posits “years of judicial wisdom” against the idea of “different standards of reasonableness” with changing technology, as if one undermines the other. This is a curious position, because the argument by the ASG actually cites such “years of judicial wisdom” to lend force to the Government’s point that judicial precedent supports the idea that changing technology results in changing standards of the law. But the Bench identifies opposition between the notion that standards of what is “reasonable” change with technology and of judicial precedent. This is a clue to the perception of the Bench that changes in technology and the subsequent clamour for change in regulatory standards pose a threat to the authority of judicial wisdom, and thereby in a larger sense, to the authority of law.

In response to this perceived opposition of legal authority and changing technology, the ASG attempts to locate the authority of law in its capability to foresee and govern changing technologies. The vagueness of the terms employed in Section 66A are then posed to be wide only so as to enable responsiveness of law to changing technologies. Sample this exchange in the final oral arguments:

Justice RF Nariman: Does the judgment in VG Row allow for ‘reasonable’ to be read differently?

Additional Solicitor General: Indian judgments deal with this question incidentally. In The U.S.- Metromedia Inc. v San Diego– says that each medium presents its own problems, also Pacifica, Kovacs v Cooper 336 US 77(1949)- here J Jackson in the context of regulation of soundtracks says that moving picture, radio, soundtrack…each has a law in itself

Justice RF Nariman: In this case the court also said that freedom of speech does not involve freedom to drown out speech.

Additional Solicitor General: ‘Grossly offensive’ is one part of 66A- ‘data’ has a different meaning, ‘information’, ‘annoyance’, all have different meanings

Additional Solicitor General addresses the question of vagueness as a ground for declaring a provision unconstitutional. Says that court should give a meaning to word from its legislative intent, and that certain words are incapable of precise definition, and that in some situations the legislature, in its wisdom keeps the language vague to take care of future contingencies

Additional Solicitor General quotes the ECHR case of Linden to say that law must keep pace with changing circumstances, he talks of the notion of foreseeability… [9]

There are then at least two ideas of what allows for the authority of law to sustain here: One is embodied in Justice Chelameshwar’s statement (supported by Justice RF Nariman [10] ) concerning the transcendental nature of legal standards irrespective of the media it is applied to; the other is embodied in the ASG’s submission that for each medium with its specifically distinct features and usage, legal standards need to transform to effectively engage in governance of that medium.

The first idea is based on the assumptive foundation that law is independent of the technology it governs—the authority of law in this case then seems to derive from law’s ability to stand on its own in face of an ever-changing society… “The truth is immutable”… and the authority of law seems to derive from its immutability as far as its application to very different technologies is concerned.

It is then this idea of legal authority in relationship to changing media technologies which founds the jurisprudence in Shreya Singhal to rule that the standards of “reasonable” in Article 19(1)(a)/19(2) framework are not dependant on the medium on which speech is being considered. As seen in the previous section of the present blog post, the same outcome whereby Section 66A is pronounced unconstitutional could be achieved by merely questioning the premise that the internet is different from prior technologies. But that would have given rise to jurisprudence whereby law was still dependant on technology in laying down its own standards—in which case, only because the internet is no different from prior media that it should not be governed by different standards of what is “reasonable.” In an imagination where the authority of law is seen embedded in its immutability, such jurisprudence would have failed to hold up its own authority—because it would imply that legal standards would change if internet was in fact different from prior technologies. In changing the terms of this very discourse—in moving from the question of whether the internet is same or different from prior technologies, to, does it even matter?, law reinstates its authority over newer and changing forms of technologies.

Locating Sites of Regulation through Medium Specificity: Differing Standards for the Right to Equality

Immutability, in a fashion thus becomes what holds up the authority of law in the Shreya Singhal judgment. The notion of immutability of legal standards is what enables the Court to pronounce that the standards of “reasonable” restrictions under Article 19(2) are the same for internet as for any other media. A seeming paradox however emerges when one compares this with the jurisprudence on Article 14 of the Constitution reasoned in the case. Article 14 guarantees the Right to Equality for everyone, and was used as a ground to challenge the constitutionality of Section 66A, based on the argument that regulatory standards different from other media, should not apply to the internet. Article 14 additionally allows for the interpretation that “unequals cannot be treated as equals”—accordingly, different regulatory standards for the internet may be allowed if (i) there is an intelligible differentia in a reasonable classification which marks the difference in regulation, and (ii) the classification has rational nexus to the objective sought to be achieved.

It is for these reasons that KA Abbas can justifiably allow for pre-censorship for films, but not for print media, without the violation of the Right to Equality. The reasonable classification in this regard is founded on the affective implications of film, as opposed to print, thus forming an intelligible differentia. This point of differentiation between film and print—that one has greater instant appeal and realism through the “coordination of the visual and aural senses,” thus becomes a site for regulation. The entry point of law for the regulation of film is then constructed before, rather than after, the visual and aural senses of viewers have been coordinated. But this also begs the question: Medium specificity is obviously being taken into consideration in order to frame the intelligible differentia of Article 14, which then leads to different regulatory standards for each medium. And this is upheld by the Court in the same judgment which holds that the standards of regulation under Article 19(2) cannot be medium specific.

Justice RF Nariman: Logically it is difficult to sustain this argument- 19(1)(a) applies to all forms of speech, how can you suddenly distinguish between forms?

Additional Solicitor General: You have done this with print, film etc,–a different threshold has been applied. [11]

This apparent paradox is most evident in the above exchange at the final oral arguments for the case: On the one hand, regulatory standards under Article 19(1)(a) are ruled as medium-neutral, but those under Article 14 may be medium-specific. Can one reconcile the two interpretations? The judgment upholds the notion that different regulatory standards for the internet may be framed after all, in consistence with Article 14, but such regulatory standards need to employ the same standards of “reasonable” under Article 19(2) as applicable to other media technologies. In other words, it gives leeway to create new offences specific to the medium of internet as long as they fall under the ambit of “reasonable” in what concerns other media as well. This ability to create new offences is based on the rationale that there is in fact an intelligible differentia, a relevant difference, between the internet and other media. The judgment holds:

“However, when we come to discrimination under Article 14, we are unable to agree with counsel for the petitioners that there is no intelligible differentia between the medium of print, broadcast and real live speech as opposed to speech on the internet. The intelligible differentia is clear – the internet gives any individual a platform which requires very little or no payment through which to air his views. The learned Additional Solicitor General has correctly said that something posted on a site or website travels like lightning and can reach millions of persons all over the world. If the petitioners were right, this Article 14 argument would apply equally to all other offences created by the Information Technology Act which are not the subject matter of challenge in these petitions. We make it clear that there is an intelligible differentia between speech on the internet and other mediums of communication for which separate offences can certainly be created by legislation. We find, therefore, that the challenge on the ground of Article 14 must fail.” [12]

In this manner, the discourse shifts again—from whether the medium is relevant to framing regulatory standards being a legitimate question, it is actually presumed that regulatory standards are actually dependent on the medium. The looming question then becomes—Is the medium under consideration (here, the internet) similar, or different to the media prior to it? This question is solidified in the intelligible differentia requirement of Article 14.

What is the intelligible differentia for the internet with other media? The judgment identifies it as low cost of access, fast speed of access to information posted, and wide reach of the information conveyed through internet. The second requirement of Article 14 being rational nexus of objective of law to the relevant classification; the site of regulation for the new technology is thus identified. The site(s) of differing regulatory standards for internet as the new technology are in this manner narrowed down: These have to be limited to the intelligible differentia posed between the internet and other media.

But where does this leave the authority of law when technologies rapidly change? Because posing legal standards as medium-specific certainly punctures the notion of the “immutability” of law. This is where the more pragmatic idea of location of legal authority in the effective engagement of law in the governance of that medium, as posed by the ASG, perhaps becomes useful. Medium-specific regulatory standards identify the sites of differential regulation within the differences between the new and older media technologies. These differences identified as “intelligible differentia” have the capacity to provide legitimacy to novel legislation for a new medium.

In the present post, I have attempted to identify and trace the processes whereby the regulation for a relatively new technology like the internet is negotiated in law, by examining such negotiations in the matter of Shreya Singhal v. Union of India. I have posed that a fair amount of such negotiation is founded in the analytical comparison of a new technology with prior technologies, and in discerning the similarities and differences between them. In this, I have additionally attempted to trace how law exercises its claim to legitimacy over new technologies—and how this leads to the formation of legal authority in changing spheres of technology. This analysis however is not supposed to foreclose the idea that there might be other modes of negotiation beyond the use of analogies with prior technologies. Additionally themes concerning paradoxical modes of construction of legal authority over the internet remain fuzzy and need more consideration. I hope to explore some of these more deeply in the coming few months.

Notes


[1] http://supremecourtofindia.nic.in/FileServer/2015-03-24_1427183283.pdf

[2] see para 27 of the judgment

[3] See notes by Siddharth Narrain on Government’s submission on 25 February 2015, before the Supreme Court in the Shreya Singhal matter, available at https://ccgnludelhi.wordpress.com/2015/03/28/notes-on-governments-submission-in-the-shreya-singhal-petition/

[4] AIR1971 SC481

[5] See para 44 of judgment in KA Abbas, AIR1971 SC481

[6] See notes by Siddharth Narrain on Government’s submission on 4 February 2015, post-lunch session, before the Supreme Court in the Shreya Singhal matter, available at https://ccgnludelhi.wordpress.com/2015/03/28/notes-on-governments-submission-in-the-shreya-singhal-petition/

[7] ibid

[8] ibid

[9] ibid

[10] ibid

[11] ibid

[12] Para 98 of the judgment

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Published on: July 15, 2015


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