Gag Order Syndrome

April 1st, 201312:27 am @    

“Teacher, teacher! The three of them called me ‘an animal with no brain’ in front of the entire class.”

Brings back the memories of early school, doesn’t it? Your school teacher might not have taken it very seriously, but a court in Gwalior did.

gagorderOn February 14, the Gwalior Bench of the Madhya Pradesh High Court issued directions to the Department of Telecommunications (DoT) to block 78 Uniform Resource Locators (URLs) that were alleged to carry content critical of Arindam Chaudhari, the plaintiff, and IIPM, the management institution that he owns. This order was passed ex-parte, that is, without hearing the other parties involved. The ones at the receiving end included media outlets, magazine websites, bloggers and other publishers of online content, who had their websites and blogs blocked without prior notification.

Web-pages of Outlook Magazine, Kafila, The Indian Express, Careers 360, Firstpost, Faking News, the Caravan Magazine and Unreal Times were among the 78 that were blocked. A public notice issued by UGC which derecognizes IIPM’s Management Programme was also ordered to be blocked.

Legal Analysis

  • Is it imperative that on every occasion that online content is blocked, the person or organization posting it, must be intimated?

No. Section 69A of the Information Technology Act, 2000 allows the Controller of Certifying authorities under the Act to block online content in “national interest” or on court orders. In cases of defamation, violations of copyright and trademark law and threats to national security, Courts can direct the CERT-In (Computer Emergency Response Team-India) to block the offensive content. Such orders can be passed ex-parte.

  • Was the order passed by the Court in Gwalior legitimate?

The order in question was passed as an interim injunction in a defamation suit. In defamation cases, generally, the courts apply the Bonnard Rule that was laid down in the landmark defamation case of Bonnard v. Perryman [1891] 2 Ch 269. The rule states that interim injunction should not be awarded unless a defence of justification by the defendant was certain to fail at trial level. Lord Denning in the cases of Woodward and Frasier noted that it would be unjust to fetter the freedom of expression, when actually a full trial had not taken place and that if during trial it is proved that the defendant had defamed the plaintiff, then should they be liable to pay the damages. The Bonnard Rule was followed by the Delhi High Court in Tata Sons Limited v. Greenpeace International & Anr (2011). The Court recognized the significance of the freedom of speech and expression and ruled against awarding interim injunction for blocking allegedly defamatory content. An interesting point in note is that in Greenpeace International, the Court also contemplated a judicial response to the question as to whether different standards of regulatory control must be laid down for posting or publication of defamatory content online. The Court observed that that “publication is a comprehensive term, embracing all forms and mediums – including the Internet”.

The Gwalior Court though in this case departed from this principle.

  • Can the URL of a public notice issued by a statutory body such as the UGC be blocked?

This is the first incident where the URL of a statutory body has been ordered to be blocked by the Court. The public notice states that IIPM is not a university within the meaning of a ‘University’ defined under Section 2(F) of the University Grants Commission Act of 1956. It refers to the derecognition of IIPM as a University. A notice of a statutory body can be blocked or removed upon the writ order passed by either the High Court or the Supreme Court, on the ground that it violates the Constitution.

  As The Hindu succinctly puts it, “…the clampdown goes farther than restricting the freedom of expression and seeks to encourage the freedom of misinformation, too.”

  • Is the blocking of URLs in the present case a first on the part of the judiciary?

Blocking of online content without prior notification is not an unprecedented scenario in the Indian judicial realm. In the previous year, the Madras High Court and the Calcutta High had passed judgements ordering for removal of content from the web.

“At the beginning of last year, the Calcutta High Court passed orders to block over a hundred piratical music websites. The plaintiff, the Indian Music Industry, did not have to file separate injunctions or bring the website owners to court. The Madras High Court, in a similar case, passed a “John Doe” order — essentially a carte blanche — that allowed Copyright Labs (an anti-piracy organisation) to shut down legitimate file-sharing websites for various periods of time.” (From the reports in The Hindu dated February 18, 2013)

In addition, on February 14 and 15, the Department of Telecom, on orders from various courts, had directed Internet Service Providers (ISPs) and telecom Service Providers (TSPs) to block several Facebook pages and Youtube videos linked to the hanging to Afzal Guru.

Where we stand today

After the huge uproar that this instance of blocking URLs created and the subsequent decision of the Union Government to appeal against the order passed by the Gwalior Bench of the Madhya Pradesh High Court, the same Court issued an order for the unblocking of the URLs on February 28, 2013. This article has been written in order to highlight the lack of procedure for blocking web content, as well as the unhealthy trend of blocking websites without hearing the parties concerned. Ex-parte orders in defamation suits do not bode well for a democracy that guarantees the freedom of speech and expression. Due procedure of law is expected in all given situations.

Article by

Tania is pursuing BA.LLB (Hons) from National Law University, Delhi. She believes that versatility and experience are not a gift, they have to be earned. She enjoys reading, dancing, kickboxing and interacting with people.

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