The recent decision in Shreya Singhal v Union of India by the Indian Supreme Court striking down the much maligned Section 66A of the Information Technology Act, 2000 (IT Act) is undoubtedly a watershed judgment in Indian Constitutional jurisprudence.

The notorious Section 66A of the IT Act had criminalized the posting of any information which was inter alia 'grossly offensive' , 'menacing', 'causes annoyance', 'obstruction', 'insult', 'hatred'. While the true legislative intent underlying the enactment of this provision was to target the menace caused by spam and phishing activities on the internet, it drew the spotlight for all the wrong reasons.

The notoriety of Section 66A had made headlines due to the arrest of two young girls following the demise of Mr. Bal Thackeray, long-time leader of the Shiv Sena, a strong regional political party in Maharashtra. While one of the girls was imprisoned for having posted a comment on Facebook regarding the city wide lockdown called for by the Shiv Sena, the other girl was arrested for 'liking' the comment.

The Supreme Court had clubbed a bunch of petitions moved by persons aggrieved by the rampant abuse by the police and other executive authorities, challenging Section 66A as being unconstitutional. The Supreme Court once again reinforced its position as the guardian of the Indian citizen's fundamental rights when it struck down Section 66A as violating the right to free speech and expression. While the Supreme Court came down heavily on the constitutionality of Section 66A, it must not be forgotten that what really prompted the challenge is an abuse of Section 66A by the Government to curtail classical free speech.

A closer reading of the judgment however reveals that it could have wider ramifications in a realm much beyond the traditional free speech context. Amidst the various challenges that were posed to the apex court as regards provisions contained in the IT Act, a petition moved by the IAMAI (Internet & Mobile Association of India) sought to have another provision in the IT Act struck down as being unconstitutional. The petition challenged Section 79 of the IT Act which grants an exemption to intermediaries from being held liable for third party information which is hosted through their platforms on the internet. As this article will discuss, while ruling on the intermediary section, the Supreme Court eviscerated well-established mechanisms for countering online counterfeiting. This article argues that while the intent of the Supreme Court was noble, it did not perhaps fully consider the ramifications of its decision specifically in the context of Section 79 of the IT Act and, as a result, on online counterfeiting.

Please read the full article  here.

Originally published on The Legal 500

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