Mouthshut case: the media got it all wrong

IN Digital Media | 21/08/2013

Commentary on the case were not just superfluous but plain inaccurate,

says MISHI CHOUDHARY, hoping the Supreme Court will yet respond to the plea on intermediary guidelines

The weekend began with much commentary in the newspapers and on the air commentary about the Supreme Court's supposed failure to save the right of free speech, online, this time. Various stakeholders expressed disappointment in the court's failure to stay the Information Technology (Intermediaries guidelines) Rules, 2011 in a petition filed by an online review website calledMouthshut.com.

But the commentary was not only superfluous: it was plainly wrong. The root of the problem was inaccurate reporting of the Supreme Court's actions on Friday.

Mouthshut.com is a consumer review website wherein consumers write and publish their reviews of goods and services. The freewheeling reviews helped drive the website's popularity but the clashes with the businesses over negative reviews grew. Constant refusal to entertain demands for user information led to clashes with the authorities.

Mouthshut followed its policy of removing content only when served with a court order. But the passing of the IT rules armed "any affected person" to merely send an email to them requesting for removal of any content within 36 hours or face losing their "safe harbour" protection as an "intermediary, pay damages, legal fee and court time.

Internet based companies have to walk a fine line between protecting free expression and creating viable services. But Mouthshut's conundrum was particularly acute, because its users' uncontrolled freedom of speech is the heart of its business. An antiseptic website gleaming with positive reviews would have no audience and serve no community of consumers.

So, when the requests for removal of negative reviews and threats of arrests did not stop, Mouthshut realized it must directly confront these oppressive and unjust rules. They approached the Supreme Court with a writ petition to declare the Rules unconstitutional, as violative of the right to free speech and expression and freedom to practice any profession. It was admitted by the court and a notice was issued on their petition in May 2013.

Since then, the number of requests under the IT rules increased exponentially, which led to their filing of an interim application praying that no coercive action be taken under these rules during the pendency of the petition. The Supreme Court heard the application but noted that the prayer was similar to what had requested as relief in the main petition.

The Court therefore held that the new application was merely repetitive of the existing admitted petition. Mouthshut's counsel then decided to withdraw the application. During the arguments, the Court expressed a desire to look for ways to balance the undeniable right to free speech and expression with public order. The Justices quizzed the lawyers about the various ways these rules work, asking also if there are other provisions in the Act that can address blocking of information that can lead to "communal riots" or "child pornography".

Media working under the pressure of deadlines, however, reported the withdrawal of an application as the dismissal of the main petition. There was no dismissal of any application. The petition is very much alive and will come up for hearing once the service in the tagged matters is completed. The Supreme Court is eager to hear all facets of this debate and is looking for assistance to lay out the path of golden mean, where the free speech rights of the netizens are balanced with maintenance of law and public order.

All hope is not lost as was claimed by the media reports. We are certain that the Supreme Court will once again come to the rescue of the right to free speech and expression as its history evinces.

An interesting development that went amiss in media's overzealous, incorrect commentary was the "fake Supreme Court order" (sic) which Mouthshut's team had received from someone claiming to represent Sahara India Pariwar. Mouthshut's counsel brought to the court's notice a takedown request, which purported to be a Supreme Court order. The title of the order stated the case as Shailesh Gupta & Ors. v. Mouthshut.com.

There was no such case pending in the court and a Justice who had retired in 2011 had signed the order! The Court asked Mouthshut to file an affidavit and bring the fake order on record. Such practices being used to privately censor the internet highlight the dilemma of online businesses operating in India.

The petition filed by Mouthshut urges the court to look into the economic impact of these prohibitive rules as well. Let's hope the experts of the field will come to the assistance of the Court and the future reporting will be accurate rather than sensational.

(Mishi Choudhary is the Executive Director, Software Freedom Law Centre, India and Director-International Practice, Software Freedom Law Center, New York).