By Rashi Sharma, fourth-year student (5-year B.A.LL.B.), National Institute University, Bhopal
Online intermediaries are platforms which facilitate interactions and transactions between third parties online. Internet service providers, hosting providers, search engines, e-commerce intermediaries, payment intermediaries, and any other entity which receives stores, and transmits information on behalf of another person can be categorised as an intermediary.[1]
Countries base their domestic intermediary liability rules according to the globally recognised Manila Principles. The Manila Principles identify that States must shield intermediaries from liability of third-party content.[2] When complying with the Manila principles, the approach adopted by countries is to either grant an expansive protection (complete impunity) to the intermediary or impose conditional protection. To that end, India has adopted the latter approach.
The Information Technology Act, 2000 (“IT Act”) protects intermediaries from entailing liability for the information of a third-party that the platform hosts, provided the intermediary does not fail to conduct ‘due diligence’.[3] This exemption is necessary to create a degree of a reasonable expectation that can allow the host to function effectively and also ensure the liberty of speech and expression. However, in practice the laws applicable are often cumbersome and ambiguous, resulting in much less effective protection for intermediary platforms.
Section 69 and 79 of the IT Act allow the government to order takedown of objectionable content. According to the Information Technology (Intermediaries guidelines) Rules, 2011 (“IT Rules 2011”), upon failing to comply with the takedown order within 36 hours, the intermediary may also be subject to penalties.[4] While the Supreme Court has clarified the provision stating that the period of 36 hours begins after the intermediary has been duly intimated of the court order which in turn is subject to the test of reasonableness under Article 19(2),[5] the narrow window for taking down the content can and does creates problems for smaller intermediaries which may not have the technical know-how and logistical capacity to process the information.[6]
Additionally, the government has on multiple occasions sought to impose liability on the intermediaries on grounds of public policy, order and threat to the security of the State. In fact, the amended Section 69 authorises government agencies exclusively to obtain decrypted information.[7] This takes away any safe harbour used by platforms like Whatsapp when restricting the government’s knowledge of the information. To that end, the amendments to the IT Rules 2011 proposed in 2018 enable the government to obtain information regarding the origin of material bypassing the end-to-end encryption protection. Moreover, Indian Courts have also been strict in their approach to delimit the scope of Section 79. In Amway India Enterprises Pvt. Ltd. v. 1Mg Technologies Pvt. Ltd.,[8] the Delhi High Court held that Section 79 does not distinguish between active and passive intermediaries, thereby in principle expanding the scope to even impute liability indirectly upon entities that provide mere technical assistance in hosting the third party content. Further, there also exists ambiguity in the case of execution of a domestic order applicable to content hosted globally by a foreign entity. In the event of a domestic court decreeing the takedown of material which is published on a global platform and is accessible globally, there will be concerns regarding the extent to which domestic courts can extend jurisdiction on a foreign entity in such cases. It is unclear as to whether a domestic court in one country can order the takedown of content, which may be objectionable domestically from a platform, thereby blocking access worldwide, and whether there exists enough nexus for courts to establish their jurisdiction. Although, in a recent controversial decision, the European Court of Justice ruled to allow domestic courts of the member states to force Facebook to take down defamatory content and block global access.[9] However, the absence of an international consensus or a domestic decision on the matter, still makes the issue unaddressed.
CONCLUSION
Intermediaries are essential to facilitate freedom of speech and expression online. It is, therefore, necessary to limit the extent of liability that could be associated with content hosted on these platforms. Although, the Indian regime on intermediary liability, primarily Section 79 of the IT Act, enables protection to online hosts, in case the entity can prove that it undertook due diligence, it can be criticised for its vague rules and regulations that would make compliance with the legal notices and court orders burdensome. This may possibly lead to transgression of the fundamental rights and imposition of restriction beyond reasonable under Article 19(2).[10] Thorough, clear and cogent regulations which allow scope for a more practical imposition of liability on intermediaries, such as considering the scope and technical know-how available with the platform or the extent of assistance granted by the intermediary, will make the most productive exercise of online liberty possible.
Endnotes
[1] The Information Act, 2000, No. 21, Acts of Parliament,2000 § 2(w) (India).
[2] Manilla Principles, Manilla Principles, (Aug, 02, 2020, 22:16 PM) https://www.manilaprinciples.org/principles. [3] The Information Act, 2000, No. 21, Acts of Parliament,2000 § 79 (India). [4] Information Technology (Intermediaries guidelines) Rules, 2011, Rule 3(4) India). [5] Shreya Singhal v. Union of India, AIR 2015 SC 1523. [6] Torsha Sarkar, A Deep Dive into Content Takedown Frames, The Centre for Internet and Society (Aug, 02, 2020, 22:17 PM) https://cis-india.org/internet-governance/blog/torsha-sarkar-november-30-2019-a-deep-dive-into-content-takedown-timeframes.
[7] The Information Act, 2000, No. 21, Acts of Parliament,2000 § 69(b) (India). [8] 260 (2019) DLT 690 (India).
[9] C‑18/18, Eva Glawischnig-Piesczek v. Facebook Ireland Limited, 2019.
[10] Common Cause v. Union of India, AIR 2018 SC 1665 (India).