Inside 79(3)(b), the content blocking provision with many legal grey areas

On January 4, the Department of Telecommunications (DoT) notified Apple and Google to remove two apps — Airalo and Holafly — that were selling international SIMs without getting an NOC from the department. In December 2022, acting on inputs from the National Payments Corporation of India (NPCI), Indian Computer Emergency Response Team (CERT-In) and the ministry of home affairs, the DoT notified Google to remove Indycaller, a caller spoofing app, from Play Store.

DoT’s notices were sent to internet intermediaries, as social media companies, app stores and e-commerce platforms are called. These are not bound by DoT’s licences and are instead governed by the Ministry of Electronics and Information Technology (MeitY). The notices were sent under Section 79(3)(b) of the Information Technology Act, 2000 (IT Act), a provision legal experts say has created a grey area for who can direct intermediaries to remove content, for what reason, and if it can be challenged.

The issue, experts and officials told HT, pertains to legal ambiguities in the parent act as well as the IT Rules notified in 2021, and the complicated nature of internet regulation, where several harms and violations --- such as the instances cited above – do not explicitly fall under IT Act’s Section 69A, which is the main section to deal with blocking or removing content.

Read here: Derek O’Brien moves bill to criminalise online abusive content against women

“Section 79(3)(b) erects a blocking process separate from Section 69A with a much lower threshold for issuing takedown notices and grants power to a much larger swathe of ministries, departments and law enforcement agencies,” Pavit Singh Katoch, general counsel at Inshorts, said.

Section 79 in itself lays down conditions for an intermediary to claim safe harbour protections from liability for third party content. Section 79(3)(b) says that such protection is not available if the intermediary fails to remove or disable access upon being informed by the “appropriate” government or “its agency”.

Section 69A of the IT Act, on the other hand, allows the IT ministry to get any online content blocked in India for reasons six reasons related to India’s national security, foreign relations, and public order. Under this, and Rule 16 of the IT Rules, only the IT, and Information and Broadcasting secretaries can issue blocking orders to intermediaries and publishers, respectively. This blocking process requires written orders that are also reviewed by a review committee.

Section 79(3)(b) notices, on the other hand, have no such safeguards.

HT spoke to at least ten people who regularly deal with Section 79(3)(b) but except two people, none agreed to go on record fearing repercussions.

Who can send the notice?

The Supreme Court had read down Section 79(3)(b) in the Shreya Singhal judgment of 2015 and ruled that “actual knowledge” refers only to a court order or a notification from an appropriate government or its agency. The court also said that Section 79(3)(b) notices could only be issued for the “reasonable restrictions” mentioned in Article 19(2) of the Indian Constitution.

But Rule 3(1)(d) of the IT rules, notified in 2021, arguably expanded the scope by allowing notices against “any” information which is “prohibited under any law for the time being in force”, in addition to Article 19(2) grounds.

“Rule 3(1)(d) is 100% in violation of the Supreme Court’s Shreya Singhal judgement. All fears that were raised by the petitioners in the case, including over-blocking by intermediaries, have been realised,” one of these experts said.

Other experts, except Priyadarshi Banerjee, partner at Delhi-based Banerjee & Grewal Advocates, agreed. Banerjee differed, saying: “The judgment dictated whose intimation would count as ‘actual knowledge’. Intimation by private individuals was excluded and ‘actual knowledge’ was restricted to court orders or government notices. That is still maintained”.

Banerjee based his position by stating that illegality of content is not determined by Section 79 or Rule 3, but by other laws. “If you have a problem with inclusion of content prohibited under any other law, you don’t have a problem with Section 79 or Rule 3, but with the parent act that determines the illegality,” he said.

But, crucially, Banerjee said Section 79(3)(b) does not give power to block; it only defines the consequences for an intermediary that does not comply with a Section 79(3)(b) notice. “The appropriate government/agency must find its blocking power from elsewhere in the law else the detailed blocking procedure, with the safeguards, under Section 69A, would be entirely redundant,” he said.

This, Banerjee explained, means that the DoT can order illegality to be stopped if the law governing the department empowers it to do so. “If these authorities had such a power in the physical world, merely because that same illegality is now continued in cyberspace, these agencies cannot be denuded of their power to take effective steps,” he said.

However, the first expert cited above was clear: rule 3(1)(d) is ultra vires of Section 79, that is, it goes beyond the remit of the parent provision (Section 79) in the statute (IT Act).

Banerjee disagreed on this point, stating that the illegality of the content is established by other laws. This point is illustrated in the blocking orders cited above, where the two international SIM apps, for instance, were violating DoT’s guidelines on how foreign SIMs can be issued in India. Banerjee stressed that rule 3(1)(d) instead falls ultra vires of Section 69A “since a subordinate legislation is creating a parallel mechanism denuding the statutory safeguards under Section 69A”.

Companies appear reluctant to challenge rule 3(1)(d) in courts. “There is no appetite to take the government on. Companies don’t want to be seen as challenging the government as that has very real consequences in terms of investments, contracts, approvals, etc. There is a distinct and clear fear,” the first expert said.

What complicates the legal mix-up further is that a proviso to rule 3(1)(d) says that a notification must be made by an “authorised agency, as may be notified by the Appropriate Government”.

Legal experts are divided about whether this means that appropriate government needs to be specifically notified in the gazette or through a public notification.

In January 2021, before the amendments to the IT rules were notified, Meity’s cyber laws division had issued an office memorandum to a slew of ministries, asking them to “designate a Nodal Officer” “to issue takedown notice to intermediaries” under Section 79(3)(b) and the Shreya Singhal judgment.

To establish the appropriate authority, the appropriate government must issue a gazette notification as per Banerjee. “It is because the executive believes in following the principle of contemporanea exposito [best meaning of a law is given by those who made it],” he said. This is evidenced by Meity’s January 2021 office memorandum, the MHA’s gazette notification in 2018 notifying the National Crime Records Bureau, and the MoHFW’s gazette notification in 2021 notifying an officer (Tobacco Control) as authorised agencies under Section 79(3)(b).

Katoch agreed. “For DoT to be able to issue such notices, it needs to be authorised or designated by the government under Section 79(3)(b),” he said.

Does the MHA notification mean that no entity under MHA can issue a 79(3)(b) notice except NCRB? “In my understanding, that’s what it means until and unless there is a separate notification empowering other agencies under MHA,” Banerjee said.

But the ministry of information and broadcasting and the state government of Tamil Nadu announced designated officers through a public notice in November 2023 and an official order in April 2022, respectively. Experts said that it might not matter. “I have my doubts about their validity but there is a practical difficulty. In the IT Rules, the word ‘notification’ has been used to mean both gazette notifications and intimation,” Banerjee said.

How effective is the 79(3)(b) deterrent?

A Section 79(3)(b) notice is usually issued by law enforcement agencies to get illegal or problematic content taken down. For instance, a Delhi Police officer, on the condition of anonymity, said they issue notices under it against content for which an FIR has not been registered, and all intermediaries tend to comply.

Intermediaries assess each notice for legal validity. If the content mentioned is violative of an extant law, the intermediaries usually comply despite procedural issues with the legal provision itself.

“Courts will have to decide if the order is legal because no order bears the mark of illegality on its face but in the interim period, the intermediary must comply, even if it is under protest,” the first expert said. Bigger intermediaries may push back if there are issues with the format of the notice but they don’t usually raise issues on the substantive parts of the notice, this person said. Smaller intermediaries find it harder to do so owing to pressure from the government and agencies.

While the language of the provision might use the word “notice”, a term from the US’ Digital Millennium Copyright Act, experts agreed that it is effectively an order that intermediaries must comply with. “You may call it either a notice or an order but the effect is that in case the intermediary does not comply, it would lose its safe harbour for that content,” Katoch said.

Banerjee added that the way the law is designed, safe harbour protections are determined for a particular communication. “It’s a fallacy to treat it like a value for an entire entity. For every communication, you must establish if you have satisfied the conditions or not,” Banerjee said.

In other words, intermediaries would have to argue and explain why they cannot be held liable for third-party content, instead of just citing the safe harbour provision — a process that ultimately will be judged in a court of law.