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Intermediary Liability and Freedom of Expression: Need for Balance

Introduction

Section 2(1)(w) of the Information Technology Act, 2000 (IT Act) defines the term “Intermediary” as- “any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record.”. Intermediaries include 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. The continuous growth of internet services has resulted in determining the liability of these intermediaries with regards to the harmful and controversial content posted by a third party. The question which arises here is: should the intermediaries be made liable for such content or should they be protected under Right to Freedom and Expression enshrined under Article 19(1) of the Indian Constitution.

Should Intermediaries Be Made Liable?

Recent incidents including the use of messaging services like WhatsApp to spread hate speech against certain groups in the society and using social media platforms to disseminate fake news has shed light on the role played by such intermediaries. There have been demands for taking stringent actions against them and to hold them liable for anything which is posted or disseminated through their platform. Intermediaries function as middle-men who act like a bridge between the content creator and provide for the desired platform for transmitting such content. They don’t actually play a role in creating any content which is stored on their platform, with their job being to act as a bridge between the content creator and consumers. Making intermediaries liable for each and everything posted by a third party is excessively unreasonable due to the vast amount of data produced by them. This not only makes it impossible to track every act that qualifies as harmful or controversial but also impinges upon the freedom of speech and expression of the users as well as the intermediaries.

Laws Dealing with Intermediary Liability

Section 79 of the Information Technology Act, 2000 provides intermediaries “safe harbour” for content generated by any user on its platform. It provides conditional immunity to the intermediary under the “due diligence doctrine”, irrespective of the nature of the content. This in no way implies that absolute immunity is provided to intermediaries, as even they are mandated under the ‘notice and takedown’ regime to remove any content upon receiving “actual knowledge” if such content is unlawful . If it fails to do so within a stipulated period of 36 hours under Rule 3(4) of the Information Technology (Intermediary Guidelines) Rules, 2011, the immunity provided under safe harbour can be snatched away, making the intermediary directly liable for its inability to remove the information which was being used to commit an unlawful act. In Shreya Singhal vs. UOI, it was held by the Supreme Court that “intermediary upon receiving actual knowledge from a court order or on being notified by the appropriate government or its agency that unlawful acts relatebale to Article 19 (2) are going to be committed then fails to expeditiously remove or disable access to such material”. This clearly states that the intermediary is not bound to act upon its own discretion. Thus, an intermediary would no longer lose safe harbour protection if it refused to take down content on its platform pursuant to a written intimation by any party that the concerned content was unlawful. It only needs to fulfil the conditions under Section 79 upon receiving a court order or notification from government, otherwise it cannot be made liable and would continue to enjoy protection under safe harbour. This protects the right to freedom of speech and expression of the third parties as well as the intermediaries to deal with data which is not harmful in nature. Intermediaries can be made liable under the relevant provisions in India but that doesn’t necessarily involve compromising freedom of speech and expression.

A similar form of protection is conferred upon the intermediaries in U.S. under §230 of the Communications Decency Act 1996 (CDA) and §512 of the Digital Millennium Copyright Act. The provision is an example of internet utopianism which provides absolute immunity to providers and users of ‘interactive computer services’ from any type of liability that might arise from the flow of third party content on such service providers’ platforms. This aptly reflects the importance given to the free speech clause under First Amendment of the U.S. Constitution, which gives the intermediaries the freedom to self-regulate on their platform without any external interference.

The Information Technology [Intermediaries Guidelines (Amendment) Rules], 2018

The Information Technology Intermediary Guidelines (Amendment) Rules, 2018 have been proposed by the Ministry of Electronics and Information Technology which aims at strengthening the online regulatory framework. Even though the guidelines have not come into force yet, they pose a serious challenge to the freedom of speech and expression of the intermediaries as well as the users.

Rule 3(2) of the guidelines lists certain terms including “harmful”, “obscene” and “hateful” and an intermediary is prohibited from hosting or displaying anything pertaining to these terms. This is clearly in contravention to the right to Freedom of Speech and Expression due to their vague and subjective nature . Any intermediary can be prohibited from dealing with legitimate material which doesn’t relate to any of the terms mentioned in Rule 3(2) and yet bear the brunt of liability due to sheer ambiguous language of the provision. This clearly contradicts the judgment given in Express Newspapers (Private) Ltd. and Anr. Vs. The Union of India (UOI) and Orsthat “if any limitation on the exercise of the fundamental right under Art. 19(1)(a) does not fall within the four corners of Art. 19(2), it cannot be upheld.” In the same judgement, the court also held that freedom of speech and expression includes freedom of propagation of ideas. The list of vague terms listed in Rule 3(2) can be considered as ultra vires under the Constitution for they do not provide clarity which is a pre-requisite under reasonable restrictions under Article 19(2).

Rule 3(5) of the Rules puts a mandate on intermediaries to provide information and assistance to government agencies pertaining to security of state, cybersecurity and investigation of offences. This traceability requirement poses a major challenge to intermediaries including WhatsApp which use end-to-end encryption to protect privacy of its users. Thus, introduction of such a requirement would rupture the encryption, leading to violation of privacy of the users. This would be in contravention with the Supreme Court judgement of KS Puttaswamy v. UOI, in which the Apex Court held that “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.” The bench held that informational and communicational privacy constitutes overall privacy of an individual and any form of illegal and unauthorized use of such information without the consent of users would be violative of his privacy.

Conclusion

Content regulation on internet is a must in today’s expanding cyberspace. But this should not be at the cost of impinging upon right to freedom of speech and expression, which is one of the most important fundamental rights in a democratic country. The current framework under the IT Act, 2000 and the Intermediary Guidelines, 2011 provide adequate protection to the intermediaries from any form of arbitrary liability which can be imposed upon them. This doesn’t mean that these legislations provide absolute immunity to the intermediaries, as some of the provisions are excessive and arbitrary in nature, thus putting excessive burden on the intermediaries. Moreover, the Intermediary Guidelines, 2018 might prove to be antithetical to the very idea of freedom of speech and expression due to the insertion of unreasonable and demanding provisions. The changes proposed by the it seem extremely problematic which need major overhaul to protect the right under Article 19.


Title Image source: IPRMENTLAW


This article has been written by Bitthal Sharma. Bitthal is a third year law student at Rajiv Gandhi National University of Law.