Unshackling Expression: A Study on Laws Criminalising Expression Online in Asia

Unshackling Expression: A Study on Laws Criminalising Expression Online in Asia is a research report published on the Internet Democracy Project website on 16 March 2018, authored by Anja Kovacs and Nayantara Ranganathan. It constitutes the India chapter of the Association for Progressive Communications’ (APC) Global Information Society Watch (GISWatch) special issue on laws criminalising expression online in Asia. The chapter maps the legal landscape governing freedom of expression on the internet in India — across criminal law, intermediary liability, network shutdowns, and surveillance. Sunil Abraham is cited within section 4.2 (“Intermediaries and copyright”), for his published analysis of the Copyright (Amendment) Act, 2012.

Article Details
Abstract
Chapter Structure
Chapter Overview
Sunil Abraham’s Cited Contribution
Context and Background
External Links

Article Details

📰 Published in:: Internet Democracy Project (India chapter of APC GISWatch special issue)
📅 Date:: 16 March 2018
👤 Authors:: Anja Kovacs & Nayantara Ranganathan
📄 Type:: Research Report (Book Chapter)
🔗 Publication Link:: Read Online (India Chapter)
🔗 Full Report (PDF):: Download Full GISWatch Report

Abstract

Freedom of expression and opinion online is increasingly criminalised with the aid of penal and internet-specific legislation. This special issue of the Association of Progressive Communications’ Global Information Society Watch brings to light the problematic trends in the use of laws against freedom of expression in online spaces in Asia. The India chapter of the report has been authored by the Internet Democracy Project.

Chapter Structure

The India chapter is divided into six sections:

Methodology — three source types: statutes and rules; higher court case law; media reports of police charges (including cases not resulting in conviction, to capture chilling effects and heckler’s veto dynamics)
Lay of the legal land — legal foundations (Article 19, IPC, IT Act 2000 and the 2008 amendment, Aadhaar Act 2016); governance of online and networked spaces; laws and policies on infrastructure (TRAI, net neutrality); other laws (IPR); draft laws
Criminalisation of online freedom of expression — six grounds: defamation; sedition and national symbols; contempt of court; hate speech; morality, obscenity and sexual expression; intellectual property rights
Other limitations of freedom of expression — five further challenges: government powers to block content (section 69A IT Act); intermediary liability (section 79 IT Act, Intermediary Guidelines Rules 2011, copyright amendments); network shutdowns; net neutrality; digital surveillance
Future violations through draft laws — bills and draft policies of concern
Summary and conclusions

Chapter Overview

The chapter opens by situating its inquiry against three incidents from a six-week period in mid-2017: a Muslim man in Chennai arrested for receiving a WhatsApp message deemed seditious; the Internet Archive blocked across India following a court order obtained by Bollywood film producers seeking to stop piracy; and the 47th internet shutdown of 2017, imposed in Haryana and Punjab ahead of a court verdict in a high-profile criminal case. The authors use these incidents to frame their central argument: that the internet’s potential as a medium for free expression cannot be taken for granted in India, where a deep jurisprudential preference for “ordered security” over free speech — established in State of U.P. v. Lalai Singh Yadav — shapes both legislation and enforcement.

On the striking down of section 66A

The chapter notes that the Supreme Court’s landmark ruling in Shreya Singhal v. Union of India (24 March 2015), which struck down section 66A of the IT Act as violative of Article 19(1)(a), provided significant relief — but that section 66A continues to be invoked by police and lower courts even after the ruling. In addition, six other grounds continue to be used to criminalise online speech in ways the authors consider unacceptable.

On criminal defamation

The chapter examines the civil and criminal remedies for defamation under sections 499 and 500 of the IPC, noting that the criminal remedy is routinely used by powerful actors — politicians, corporations, Bollywood stars — to silence critics and journalists. The Supreme Court in Subramaniam Swamy v. Union of India upheld the constitutionality of criminal defamation, going against a global push away from criminal remedies. The chapter also examines how courts have addressed defamation on the internet specifically, including the question of whether retweeting constitutes “publishing” under section 499 IPC, and the Delhi High Court’s adoption of the Single Publication Rule in Khawar Butt v. Asif Nazir Mir.

On sedition

The chapter documents a stark gap between judicial standards — which require incitement to imminent violence under Balwant Singh v. State of Punjab and Shreya Singhal — and police practice, which regularly books charges of sedition for Facebook posts, WhatsApp messages, and social media activity that comes nowhere close to meeting this threshold. Among the cases cited: a man arrested in Karnataka for receiving a message insulting the prime minister; a former Supreme Court judge (Justice Markandey Katju) booked for a Facebook post about Kashmir; and students at Jawaharlal Nehru University arrested on the basis of videos later found to be doctored.

On hate speech

The chapter argues that sections 153A and 505(2) IPC, and section 295A IPC, allow for the criminalisation of speech that is merely “likely” to promote enmity or offend religious feelings — without requiring proof of intent or actual harm. The authors note that this creates a structural heckler’s veto: those who threaten violence in response to speech are effectively empowered, while the speaker is silenced. The most prominent example discussed is the arrest of Shaheen Dada and her friend Rinu Srinivasan in November 2012 for a Facebook post questioning the shutdown of Mumbai following the death of Shiv Sena founder Bal Thackeray.

On morality, obscenity and sexual expression

The chapter examines section 67 of the IT Act and finds that, despite the Supreme Court’s adoption of the community standards test in Aveek Sarkar v. State of West Bengal (2014), police forces continue to misapply the section broadly. A study by Bishakha Datta found section 67 used against clearly political speech; the chapter also notes that obscenity carries higher sentences under the IT Act than under the IPC (up to 3 years on first conviction and a fine of Rs 5 lakh, versus 2 years and Rs 2,000 under the IPC), making it a cognisable offence under the IT Act, with no requirement of prior magisterial permission for arrest.

On intermediary liability

The chapter examines section 79 IT Act and the Intermediary Guidelines Rules 2011, noting that the Rules imposed a notice-and-takedown regime that privatised censorship: any person could file a complaint and the intermediary had to act within 36 hours, without notifying the content author. The Supreme Court in Shreya Singhal read down both the section and the Rules, requiring a court order or government notification before intermediaries are obliged to take down content. The chapter also details ongoing challenges, including the Sabu Mathew George case (on keyword-based blocking of content relating to sex-selective abortions) and the Prajwala case (on pre-screening obligations for sexual violence content).

On network shutdowns

India recorded 47 internet shutdowns in 2017 alone — already three times the 2015 figure with four months left in the year. The chapter notes that network shutdowns are ordered under section 144 of the Code of Criminal Procedure (magistrates’ powers to prevent unlawful assembly) and the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, the latter notified just before the chapter was finalised.

Sunil Abraham’s Cited Contribution

Sunil Abraham is cited in section 4.2 (“Intermediaries and copyright”) in the context of the notice-and-takedown mechanism introduced by sections 52(1)(b) and 52(1)(c) of the Copyright (Amendment) Act, 2012. Those sections require an intermediary to disable access to content upon receiving a written complaint from a rights-holder — for 21 days, or until a court order is received — before any judicial determination of whether the complaint is valid.

The passage in the chapter reads:

As Sunil Abraham has pointed out,¹⁰⁸ the amendment clearly privileges the concerns of intellectual property rights-holders, as the intermediary is obliged under the law to remove the content in question even before the validity of the complaint has been proved. Because of this, the mechanism provided for under the amended Copyright Act is likely to have a chilling effect on free speech. Moreover, the likelihood of ISPs automatically and voluntarily reinstating content once the legal waiting period of three weeks has passed and no court order has been received, is low.

Abraham's colleague Pranesh Prakash goes even a step further. If the complaint turns out to be false – either because the complainant is not the rights-holder or because the content does not entail a violation of the rights-holder's copyright – there is no punishment for the person who filed the complaint. Given this lack of punishment, Prakash has argued, the law is open to widespread abuse: it allows anyone "to remove content from the internet without following any 'due process' or 'fair procedure'."

Clearly, this amendment to the Copyright Act therefore violates the principles of necessity and proportionality that are integral to the validity of any action that seeks to censor content online.

Context and Background

This chapter was produced in 2017 (the GISWatch volume carries the 2017 imprint; the IDP web publication date is March 2018) as part of a comparative study covering multiple Asian countries including Bangladesh, Indonesia, Malaysia, Pakistan, the Philippines, Sri Lanka, Thailand, and Vietnam. It was written at a moment when Shreya Singhal v. Union of India (2015) was still recent — having struck down section 66A and read down the Intermediary Guidelines Rules — but when the broader free speech landscape remained deeply contested.

Sunil Abraham’s cited analysis of the Copyright (Amendment) Act, 2012 relates to work he and his colleagues at the Centre for Internet and Society had been conducting on intermediary liability, ISP blocking, and the copyright régime since at least 2011. His co-author Pranesh Prakash, also cited in the same passage, was at the time head of policy at CIS. The specific concern they raise — that a notice-and-takedown system without penalties for false complaints creates a structural incentive for abuse — remained a live policy issue in subsequent years and fed into debates around India’s intermediary liability framework that eventually produced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

The chapter also sits within a broader moment in Indian digital rights advocacy. CIS had by 2017 built up a substantial body of documented research on government blocking orders, John Doe orders, and ISP compliance patterns, much of it by researchers including Rishabh Dara (whose 2011 study on intermediary takedown behaviour is also cited in this chapter). That empirical foundation underpinned the advocacy arguments around Shreya Singhal and its aftermath, and this chapter draws directly on that body of work.