As they say, one should take stock once the dust settles. It’s been some time that the honorable Supreme Court delivered the landmark judgment in the Shreya Singhal matter (‘SC judgment’) and struck down the controversial Section 66A of the Information Technology Act, 2000 (‘IT Act’). After this landmark judgment, the Supreme Court has been once again defended personal liberties in the country. But it is the apex court’s decision on ‘intermediary liability’ that deserves some more attention to better understand the fine line concerns which are left unaddressed.
The Intermediaries are entities that provide service with respect to an electronic record, such as storing or transmitting data. Consequently, entities such as telecom service providers (like Bharti, Vodafone, Idea etc.), ISP’s, search engines (Google, Bing etc.), social media sites (Facebook, Twitter etc.) etc. qualify as ‘intermediaries’ under the IT Act.
Given that intermediaries deal with bulk third-party data, can they be held liable if such third party data is unlawful? For instance, can a search engine be held liable for showing objectionable results when the user himself is searching for objectionable data? Not necessarily, and therefore this immunity is also covered under S. 79 of the IT Act, pursuant to which an intermediary need not be held liable for third party content.
However, for an intermediary to enjoy such immunity, it is required to exercise ‘due diligence’; the scope of which has been outlined in the Information Technology (Intermediaries Guidelines) Rules, 2011 (‘Guidelines’).
One of such diligence measures prescribed under the Guidelines is to expeditiously remove/disable access to information that violates any law of the country upon obtaining knowledge regarding objectionable content, by itself orby an affected person.
This is where it gets tricky as the intermediary needs to adjudicate whether a particular content is really unlawful upon coming to know by itself or being brought to actual knowledge.
While dealing with other issues in the SC judgment, SC recognized that obligations of the intermediary lacked proper safeguards, which also impacted legitimate online content in many cases and ran against the fundamental right to freedom of speech and expression. The court also recognized the hardship faced by an intermediary when it is required to monitor millions of messages and hundreds of requests from a varied audience (like religious groups, political parties) as to what they think was objectionable before deciding to take down such content.
In a welcome step, the SC decided that the obligation to act upon receiving ‘actual knowledge’ needs to be read down to mean – receiving actual knowledge from a court order or on being notified by the appropriate government. It also held that such orders can only be passed if they can be justified as one of the grounds on which the fundamental right to freedom of speech can be curtailed under the Indian Constitution. Such orders cannot be passed lightly.
While the SC judgment brings significant relief to the existing problems of intermediaries of ‘playing judge’, it raises several other issues:
If the intermediaries were to await a court/government order in every case to decide on next steps, the scope and need of appointing a grievance officer under the Guidelines for redressing complaints, becomes redundant.
It appears that the SC in its judgment has concentrated only on certain type of intermediaries i.e. social media sites dealing in voluminous content (e.g. Google, Facebook). However, trying to fit all intermediaries within that cast-in-stone policy, may not be the correct approach. For instance, should an online market place wait for a court order before taking off allegedly counterfeit drugs from the website or should it act expeditiously to avoid a potentially life threatening sale of spurious drugs, as a first reaction?
Given the above, while the SC ruling is certainly a step in the right direction and brings relief to social media sites, more clarity is required to ensure intermediaries can function freely, but with responsibility.
While there are news reports that suggest that the Government is planning amendments to the IT Act subsequent to the judgment, one only hopes the Government (as part of its initiative to simplify doing business in India) tries to address the aforesaid issues and reinforces the faith of the global community for undertaking of IT and e-commerce business in India.
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