14 Apr PART 1: COMMUNICATIONS DECENCY ACT, SECTION 230 VIS-À-VIS INDIAN LAW ON INTERMEDIARY LIABILITY
[By Vrinda Baheti. The author is a student of Law Centre II, Faculty of Law, University of Delhi.]
“The Internet is the first thing that the humanity has built that humanity does not understand, the largest experiment in anarchy that we ever had.” – Eric Schmidt
Facing severe fire from politicians in the US, and in the backdrop of outgoing President Trump’s accounts being banned by various Internet platforms, Section 230 of the Communications Decency Act (CDA), 1996 deals with providing broad immunity to interactive computer services for the content posted by its users. CDA, 1996 was enacted to overturn the judgment in Stratton Oakmont, Inc. v. Prodigy Servs. Co. which determined interactive computer services to be liable as ‘publishers or speakers.’
In this article, several aspects are enunciated in brevity to understand the impact of the legislation and the hot-headed opposition that it is facing under Part I. Part II deals with the counterpart of the provision in India that is narrower in comparison.
B. PART I: CDA 230
S 230 (c)(1), CDA, 1996 bellows the following: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”.
In essence, when a citizen, proffering their right to freedom of speech and expression, guaranteed by the First Amendment, in the US, posts comments on, for example, Twitter and Facebook, the latter won’t be liable for a legal issue amounting from the act. The term ‘interactive computer services’ confers a blanket protection to not only internet services providers (ISPs) but any website or online service which publishes materials posted by users to render use of that service.
The primary aim of the legislation, introduced at a time when major troubles which now dominate the cyber world did not exist, was flourishment of free speech in the online world of the Internet to nurture a nascent industry.[[i]] This has been construed in the landmark case of Zeran v. America Online, Inc. and thereafter in Fair Housing Councils v. Rommates.com. Thereby, the provision bars civil liability and protects websites from lawsuits and instills a fear-free environment for development of the online community, with the exception of those violations relating to intellectual property claims including copyright transgressions, sex work related content and contraventions of federal criminal law. In another leading judgment, Facebook was held not liable by the US Court of Appeals in 2019 for violent attacks that were linked to the Facebook account of a militant Islamist group.
COVID-19 saw the Internet as the primary source of connectivity for work, education and entertainment. It attracted various lawsuits dealing with the section; notable among these was rejection of Facebook’s mandamus petition by the Texas 14th Court of Appeals which sought immunity from three sex-trafficking claims. Another petition for writ of certiorari was denied by the US Supreme Court in October, 2020 in Malwarebytes, Inc. V. Enigma Software Group Usa, LLC. This was one of the few cases, as the court itself articulated, which denied immunity for content driven by anti-competitive motives.
‘The internet has changed dramatically in the 25 years since Section 230’s enactment in ways that no one, including the drafters of Section 230, could have predicted.’[[ii]] The build-up regarding the section in the US has been cogently captured by Jeffrey D Neuburger in the National Law Review. In June, 2020, the US Department of Justice identified potential reforms to the provision to ‘incentivize online platforms to police responsibly content that is illegal and exploitive while continuing to encourage a vibrant, open, and competitive internet.’[[iii]]
An attempt is made to understand the reasons supporting the law, and those opposing it:
Supporting – Calling it a ‘Good Samaritan’ protection, supporters of section 230, CDA, 1996 refer to it as ‘twenty six words that created the internet’.[[iv]] The First Amendment stands as the bulwark of protection of freedom of speech in the United States. Defenders of the statutory provision argue that any alteration could cripple online discussion.[[v]]
The underlying defense of the supporters is stipulated in free speech and the intention of the Internet to thrive;[[vi]] companies fear the tiresome, lengthy and unmeritorious litigations that may ensue in the attenuation or absence of the law. Internet Association (IA), representing Big Tech companies like Google, Facebook, Amazon rests its case: ‘The best of the internet would disappear without CDA 230.’
Facebook CEO released a White Paper in February 2020, highlighting the nascent approach that the company wants the lawmakers to take regarding ‘Online Content Regulation’, asseverating the need for platforms being called global intermediaries which will change constantly. Twitter CEO Jack Dorsey has cautioned, ‘Eroding the foundation of Section 230 could collapse how we communicate on the internet.’ The tech giants conceded that perhaps an update in the law, carefully planned out and considered, may be helpful.
Opposing – Opponents contest that because of the wide interpretation of courts of section 230, plaintiffs often sit at the deep edge of the cliff with no means of recovering from injuries due to online content.[[vii]]
Democrats want stricter policing of the Big Tech companies who, aided by the provision, avoid taking active responsibility to combat extremism, abuse and information[[viii]] and tackle harassment.[[ix]] The desire for reforming the law primary arose after the mass shooting in New Zealand Church was live streamed and posted on Facebook, Youtube, Twitter and Instagram.[[x]] President elect Joe Biden voiced his support of revoking ‘immediately’ the law that advocates companies to propagate ‘falsehoods they know to be false.’[[xi]]
When Twitter fact-checked outgoing President Donald Trump’s tweet back in May, 2020, it tread way for active vocalization of his distinct disapproval of the provision. His claim was hinged in the belief of the Republicans that the immunity has ‘censored conservatives’ and ‘violated the spirit of the law’.[[xii]] While Trump’s executive order was released in May, 2020, could he have foreseen the scenario of January, 2021 when his accounts would be blocked and/or temporarily suspended, and even permanently suspended from Twitter following the gruesome Capitol Hill siege.
Justice Clarence Thomas had warned: “Extending S. 230 immunity beyond the natural reading of the text can have serious consequences. Before giving companies immunity from civil claims for ‘knowingly host[ing] illegal child pornography,’ … or for race discrimination … we should be certain that is what the law demands.”[[xiii]] Au contraire to protecting free speech, the extensive immunity is claimed to facilitate harassment in the cyber space.[[xiv]]
UK is ready for its newly established Digital Markets Unit to start work in April, 2021 to regulate the ‘ironclad grip’ of Big Tech in the cyber space, ensuring that businesses are fairly treated and users practices more choice and control over their data. More information on the same can be accessed on Cooley, which announces the framework of the regime and lists out upcoming attempts to regulate digital platforms by the European Commission and Germany. It is now apposite to make a brief reference to the counterpart provision in India.
C. PART II: SECTION 79, IT ACT
The Information Technology Act, 2000 (IT Act) is the primary legislation in India governing liability of intermediaries, or ‘middle men’, in relation to online services on which users can publish content. Provisions were enacted after the Delhi High Court in Avnish Bajaj v. State fastened the director of the website with liability for a user of the website having posted obscene materials. The judgment was later overturned by Supreme Court[[xv]] who opined that the director was made an accused mainly because at that time, section 79 did not exist.
Recognised as ‘essential cogs in the wheel of exercising the right to freedom of expression on the Internet’, intermediaries are defined under section 2 (1)(w) of the IT Act as ‘any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record,’ Thereby, search engines like Google, social networking websites like Twitter, Facebook, Pinterest, blogging platforms like Blogspot, WordPress, online streaming sites like Youtube (under Google), OTT platforms like Netflix, Amazon Prime, payment sites like Paytm, market places like Amazon, Flipkart, Myntra, auction sites like eBay and Olx, all get covered by this definition.
Extent of liability of intermediaries in certain cases was brought forth by section 79 revised by the Amendment Act of 2008, which provides a ‘safe harbour’ or condition immunity to intermediary. The provision lists that intermediaries shall not be liable for any third party information, data or communication link made available or hosted by them,[[xvi]] in lieu of only those acts done for facilitation and providing access, subject to the provisions of sub sections (2) and (3). Where it initiates transaction, creates or modifies such data and does not observe due diligence, it is no longer protected by the safe harbour clause.[[xvii]] Protection is further contingent on the intermediary removing any unlawful content once notified of same by appropriate Government or its agency or upon receiving actual knowledge.[[xviii]]
Literature on the law and its accompanying Rules[[xix]] is intricately expounded in the words of various authors[[xx]] and the same is not delved into. The relevance of the provision in connection with section 230, CDA, 1966 is sought and for that reason, some precedents are touched upon.
A notice-and-takedown regime, in consonance with the US law, began whereby intellectual property owners could send notices to intermediaries to take down content which violates their rights. The regime was ushered with the Delhi High Court judgment in MySpace Inc. v Super Cassettes Industries Ltd, wherein court clarified the meaning of ‘actual knowledge’ to include a specific notice or a red flag, not necessarily limiting it to a court order, and the Supreme Court judgment which ‘brought the IT Act to life’ wherein intermediary was required to take down content upon notification and not at its own discretion.
In 2019, a single Judge of Delhi High Court held that courts in India have power to direct orders to intermediary platforms on a global basis to take down defamatory content. In Vyakti Vikas Kendra, Indian Public Charitable Trust v. Jitendra Bagga complainant alleged defamatory materials being posted on websites owned by or under Google, and court issued directions to the company to take down the content. Before the amended S 79 came into effect, a suit in the same regard was instituted against Google. It was observed that Google cannot claim exemption either under Section 79 of the Act (as it stood originally) or Section 79 of the Act (after the amendment) because despite having received notice about dissemination of defamatory material and unlawful activity, it did not make any effort to block the material. The judgment was upheld in appeal to Supreme Court.
The 2018 Christian Louboutin judgment by the Delhi High Court is called a ‘watershed moment in intermediary liability jurisprudence in India’. The court analysed S 79 in its totality, expanded the due diligence requirement and laid down tests to ascertain trade mark and copyright infringements against e-commerce platforms, which was later applied in L’Oreal v Brandworld & Anr. and Skullcandy Inc. v Shri Shyam Telecom & Ors. (Shopclues). In Amazon Seller Services v. Modicare, the Division Bench of the Delhi High Court reversed the order of the Single Judge[[xxi]] and ensued relief to online platforms from the restraints imposed by the Single Judge, thereby allowing e-commerce platforms to list products of direct selling entities like Amway, Modicare and Oriflame without their consent.
On the issue of amalgamation of freedom of speech and expression under Article 19(1)(a) of the Constitution of India, reasonable restrictions imposed on it by Article 19(2), and the IT Act, Shreya Singhal case[[xxii]] is perhaps worded in the most ideal manner in consonance with rule of law. With this postulation of free speech, the IT Act comes into line with legislations around the world governing and regulating speech on the Internet in a world that has evolved to largely be on the Internet.
Continued in Part II…
[v] Daisuke Wakabayashi, Legal Shield for Social Media is Targeted by Lawmakers, The New York Times, May 28, 2020.
[viii] Sriram Lakshman, Why are Democrats and Republicans opposed to Section 230 of the Communications Decency Act?, The Hindu, January 17, 2021.
[ix] Supra note v.
[x] Elizabeth Lopatto, The mass shooting in New Zealand was designed to spread on social media, The Verge, March 15, 2019.
[xii] Dan Patterson, What is “Section 230”, and why do many lawmakers want to repeal it?, CBS News, December 16, 2020.
[xiv] Supra note vii.
[xv] Criminal Appeal No. 1222 of 2016.
[xvi] Section 79(1), Information Technology Act, 2000, Act No. 21 of 2000.
[xvii] Section 79(2), Information Technology Act, 2000, Act No. 21 of 2000.
[xviii] Section 79(3), Information Technology Act, 2000, Act No. 21 of 2000.
[xix] Draft amendment in 2018 by Information Technology [Intermediary Guidelines (Amendment) Rules], 2018 has been posted by Ministry of Electronics and Information Technology.
[xxi] 2019 SCC OnLine Del 9061: (2019) 260 DLT 690.
[xxii] (2013) 12 SCC 73.
[xxiii] Shishir Gupta, I&B ministry starts work on self-regulation law for OTT platforms, online news, Hindustan Times, January 16, 2021.