India: Intermediary liability regime, a historic opportunity missed by the Supreme Court – J Sai Deepak

13 05 2015

India Supreme-Court1Ever since the pronouncement of the judgment by the Supreme Court [pdf] on March 24, 2015 in what I prefer to call the “IT Writ Petitions” (since they went beyond Section 66A of the Information Technology Act, 2000), a lot has been written on mainstream and alternative forums on the striking down of Section 66A (see this Inforrm post).

This attention is approriate because the draconian nature, vagueness and unreasonableness of section 66A were writ large. The number of instances in which the now erstwhile provision had proven its susceptibility to abuse, bears testimony to the dangers it posed to free speech and hence its fundamental constitutional infirmity (I have written on Section 66A earlier).

In stark contrast, the other provision of the IT Act, which has now been read down by the Supremes, namely Section 79(3)(b), has not received its due in popular discourse. This is perhaps because this provision required and still requires attention to nuances. The challenge to the provision was mounted on behalf of internet intermediaries solely by the Internet and Mobile Association of India (IAMAI) in W.P(C). 758/2014 in the same batch of IT Writ Petitions. This challenge was critical owing to the integral nature of intermediaries to the internet ecosystem and the role they place as disseminators of free speech and expression of internet users. With the internet increasingly becoming the medium of choice for expression of social, cultural and political views outside of the mainstream media, attention must be paid to the clamps imposed on intermediaries which facilitate free speech.

According to the IT Act, an intermediary

means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web hosting service providers, search engines, online payment sites, online-auction sites, online market places and cyber cafes”.

Clearly, any restrictions on the ability of intermediaries to host content would have an immediate, direct and adverse bearing on the the internet user’s freedoms under Article 19(1)(a). This is the pith and substance of IAMAI’s challenge to Section 79(3)(b).

Section 79(3)(b) which applies to internet intermediaries, prior to being read down by the Court, used intermediaries as proxies to impose constitutionally impermissible restrictions on free speech i.e. restrictions which are beyond Article 19(2).  Therefore, it was the contention of IAMAI that, if Section 66A is liable to be struck down for imposing direct restrictions on an internet user’s free speech and expression which are beyond the pale of Article 19(2), it stands to reason that such or similar restrictions imposed on the user indirectly through intermediaries under Section 79(3)(b), are equally ultra vires Article 19(2). In other words, what cannot be done directly, cannot be done indirectly either, the litmus test being the direct and immediate consequence of the restrictions under Section 79(3)(b) on curtailment of the internet user’s freedoms under Article 19(1)(a).

In order to lend perspective to the challenge to Section 79(3)(b), it is important to understand that the internet as we know it today, is increasingly driven by User Generated Content (the other UGC) which is monumental in sheer diversity and scale. Numbers perhaps tell the story better- every minute almost 360,000 tweets are published on Twitter, 30,000 edits are made to Wikipedia, Facebook users share 684,478 pieces of content and more than 100 hours of video are added to YouTube. These mind-boggling numbers are in fact responsible for contributing to an emerging area in information management systems, namely Big Data.

Given these numbers, it is practically impossible for intermediaries such as Google, Twitter or Facebook to pre-screen content or exercise any kind of ex ante editorial control. This also means that intermediaries cannot vouch for or take responsibility for the legality of the content being uploaded or transmitted or published on their platforms. And yet in 2004, no less than the Chief Executive Officer of Baazee.com, Avnish Bajaj, was arrested for the offer of sale of an obscene video clip made on the portal by a user.

To address such instances and to ensure that intermediaries are not held liable for content created/published by their users, the definition of “intermediary” was effected (which is the current version) through the Information Technology (Amendment) Act, 2008 and Section 79 of the Act was amended to carve out a safe harbor for intermediaries from liability arising from User Generated Content.  As part of the amendment, in return for the safe harbor, a corresponding “takedown” (removal of content) obligation was cast on intermediaries under Section 79(3)(b), which was challenged by IAMAI in its petition that led to the provision being read down by the Court.

Section 79(3)(b) has two prongs- the first relates to a takedown notice upon receipt of ‘actual knowledge’ of the illegality of content hosted by the intermediary, and the second envisages a takedown notice issued by a Government or its authorised agency to the intermediary. Both prongs give rise to different but equally grave concerns. The problem with the first prong is that although it borrows the term ‘actual knowledge’ from the EU Directive on E-Commerce 2000/31/EC dated 8th June, 2000, it is nowhere defined in the Indian statute.

Importantly, the legal and operational challenges with the use of the term have been clinically captured in a study undertaken in the European Union.  This study correctly notes that the term is capable of being interpreted and has been interpreted in a few jurisdictions to mean that intermediaries are expected to sit in judgment over the legality/unlawfulness of content impugned in a takedown notice. Clearly, this is beyond the wherewithal of intermediaries, which establishes the unreasonableness of this mandate. Echoing the validity of this contention, the Court read down ‘actual knowledge’ to mean knowledge of a court order directing the intermediary to expeditiously remove or disable access to the impugned content.

The second prong of Section 79(3)(b) firstly suffers from vestation of adjudicatory powers in the executive to determine illegality of content, which is problematic. Secondly, the use of the term “unlawful” in Section 79(3)(b) enlarges the scope of restrictions to beyond the specific categories identified in Article 19(2). In response to the second concern, the Court drew parity between the executive’s (only the Central Government) power to block content under Section 69A and the executive’s power to direct takedown on content under Section 79(3)(b) and implicitly noted that the limitation of Article 19(2) applied to the executive’s power under both provisions.

This is perhaps the most positive outcome on the issue of intermediary liability because by reading in Article 19(2) to restrictions imposed on intermediaries under Sections 69A and 79(3)(b), the Court has accepted the argument of the intermediaries that the test to be applied to any law is whether it directly impacts free speech, regardless of who such restrictions may be applied through (in this case through intermediaries). Importantly, even if such restrictions are imposed in return for immunity to intermediaries under Section 79(1), such perceived largesse to intermediaries does not legitimize the transgression of the boundaries set by Article 19(2). This position has received the thumping endorsement of the Supreme Court.

That being said, although the Court has encumbered the executive’s takedown power under Section 79(3)(b) by reading in Article 19(2), the fundamental question of the executive’s constitutional competence to direct such takedown was not addressed, perhaps because the Court was already convinced of such competence during its analysis of Section 69A. Be that as it may, the consistent thing to do would have been to include in Section 79(3)(b) the de minimis procedural safeguards provided for under Section 69A and the blocking Rules, or the safety vales under Sections 95 and 96 of the Code of Criminal procedure, 1973 (which deal with the Government’s power to ban books/publications). This is so because, unlike Section 69A, Section 79(3)(b) does not provide for a hearing either to the intermediary or the creator of the content prior to the takedown, nor is  there a provision for appeal under the Act from such a takedown (except for a Writ Petition).

It is surprising that after taking detailed cognizance of the procedure laid down for blocking under Section 69A, the Court did not apply the same yardstick and due process to Section 79(3)(b). Critically, having recognized the reader’s right to receive information/content in its analysis of Section 66A, the Court ought to have taken note of the adverse effect of a summary executive takedown on the right of the internet audience to receive content, even if such notice is within the metes and bounds of Article 19(2). Had these concerns been addressed, the verdict would have been far more comprehensive on Section 79(3)(b) is concerned.

All in all, although the Court has addressed some primary concerns of intermediaries relating to Section 79(3)(b), thereby rendering their immunity more meaningful, the Court could have dealt with the other equally important concerns which have a concrete and critical bearing on the intermediary liability regime in India. This would have made India a much more attractive destination for investments by intermediaries given the potential of the internet economy and e-commerce. Perhaps, the egregious language and consequence of Section 66A drew the Court’s attention much more than the layered issues posed by Section 79(3)(b) and the Intermediary Rules. After all, out of 122 pages of the judgment, 109 pages have been devoted to Section 66A and a like provision of the Kerala State Police Act. Only the final paragraphs of the verdict, paras 112-118, deal with the issue of intermediary liability.

It is undeniable that the judgement is a welcome one and is expected to further the cause of democratization of the internet in a tangible manner. However, given the opportunity the IT Writ Petitions represented in undertaking a comprehensive overhaul of the IT Act on a range of related issues, each of which has a critical bearing on freedom of speech and expression on the internet, it appears that the Supreme Court has passed up a wonderful opportunity, which may not present itself in the future.

Disclosure: I was part of the team that represented a consortium of internet intermediaries, namely the Internet and Mobile Association of India in the Supreme Court in W.P(C) 758/2014 which challenged Section 79(3)(b) and the Intermediary Rules. Mr Saikrishna Rajagopal of Saikrishna & Associates argued the petition. All opinions expressed here are personal and academic.

This post originally appeared on the Demanding Mistress blog and is reproduced with permission and thanks


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