14 Apr PART 2: 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.]
D. QUESTIONS TO PONDER UPON
The tussle involving the work-in-progress regulation of OTT platforms finds space in the current discussion. Nikhil Bhalla v. Union of India which sought censoring of scenes of Netflix series ‘Sacred Games’, Justice for Rights Foundation v. Union of India and Ashutosh Dubey v. Netflix, Inc & Ors are some favourable Delhi High Court judgments which take an expansive view against censorship while answering petitions demanding regulation of OTT content. Similar orders were relayed in Pranay Rai v. Clean Slate Filmz Pvt Ltd[[i]] which dismissed a petition demanding regulation of ‘Paatal Lok’, a web series on Amazon Prime, and Aniruddha Singh v. Union of India & Ors, which dismissed PIL against airing of Alt Balaji series ‘XXX-Season 2’, have been relayed.
In March 2020, the Ministry of Information and Broadcasting (I&B Ministry), signalling its favour towards self-regulation by OTT platforms, gave the Internet and Mobile Association of India (IAMAI) a period of 100 days to formulate a self-regulatory code. The Ministry replicated its dissatisfaction over the Codes phrased by IAMAI, and eschewed them for their absence of classifying ‘prohibited content’, third party monitoring and a set code of ethics.[[ii]]
The Apex Court in Shashank Shekhar Jha vs Union Of India issued notice to the government for regulation of OTT platforms in October, 2020. Thereafter, notification bringing OTT and digital news industry within the ambit of the I&B Ministry was issued by the Cabinet Secretariat in November, 2020. On January 17, 2021, the Ministry summoned Amazon Prime seeking an explanation regarding complaints received by it on alleged mocking and disrespect of Hindu Gods in the new web series ‘Tandav’.
Questions arise on intermediary liability in the year which underwent a worldwide shutdown of physical spaces, translocating to the Internet for all its requirements, at risk of dissemination of fake news and fears and varied threats to a safe cyberspace.
When classes, lectures and webinars are held online on platforms such as Zoom or Google Meet, and someone wishes to proceed with a lawsuit against the speaker, will such a platform also be made a party to the suit? The answer is, they might be. But will they be held accountable? Perhaps not, if they gain protection by safe harbour under section 79. In another scenario, the Gujarat High Court live-streams its proceedings on its Youtube channel. Youtube has in place its own method of checking uploaded content for violations, and has an apparatus to address complaints arising out of the same. For copyright violations a system called Content ID is developed. What happens when someone posts comments which might get them penalised for contempt of court?
As per Ministry of Electronics and Information Technology, Whatsapp is an intermediary within the definition of the IT Act.[[iii]] This raises several questions – Whatsapp is already believed to not impose self-regulations to stop the spread of fake news. To add to it the fact that it, as a subsidiary of Facebook, will now disclose user’s personal information to third parties and affiliates, is like a volcano ready to erupt. Where does this new policy, which has already been challenged in the Delhi High Court and the Supreme Court, fit in with the existing intermediary liability guidelines in the country? In Chaitanya Rohilla v. Union of India,[[iv]] the judge has observed: “If you feel Whatsapp will compromise data, delete Whatsapp.” But is it that simple to move away from a platform used by millions of Indians, not just for chatting purposes but also to circulate information by way of groups, eg class groups or office groups? In fact, the Apex Court has suggested that court summons and notices can be served on persons via Whatsapp. It is something to ponder upon.
Significant changes are sought to be brought by the amendment[[v]] to the Rules, 2011.“By tying intermediaries’ protection from liability to their ability to monitor communications being sent across their platforms or systems, the amendments would limit the use of end-to-end encryption and encourage others to weaken existing security measures,” read the letter of several IT experts sent to IT Minister in January, 2020. “This means that services using end-to-end encryption cannot provide the level of monitoring required in the proposed amendments. Whether it’s through putting a ‘backdoor’ in an encryption protocol, storing cryptographic keys in escrow, adding silent users to group messages, or some other method, there is no way to create ‘exceptional access’ for some without weakening the security of the system for all,” it further opined.
It is relevant to mention that a PIL has been filed in Madhya Pradesh High Court on January 17, 2021 in Maatr Foundation v. Union of India and Ors, contending that Facebook, Whatsapp, Instagram and Twitter are ‘perpetrating communal hatred, hate crimes economic offences, allowing the perpetuation of sexually offensive content, content against religions, Gods and Goddesses, and material defamatory of various wings of the government and the Armed Forces, among others.’[[vi]]
The Central Government has enacted The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 to impose stricter due diligence obligations on intermediaries for regulation of content on online platforms. By demarcating between ‘social media intermediary’ and ‘significant social media intermediary’ on the basis of user size, additional compliance measures have been sought to be pressed through these Rules. To track the first originator of a message containing problematic information, the intermediary of a messaging service is cast the added duty of assisting the relevant law enforcement agency for this purpose. However, this raises the question: whether government agencies would be able to cross through ‘end-to-end encryption’ in order to identify such first originators, and thereby result in a surveillance state? Prima facie, the rule may pave way for exorbitant misuse. To curb sexual offences, intermediaries must employ technology-based measures that can identify such material or further such offence. The Rules stipulate that within three months, an Online Grievance Portal must be established at a three-tier level. It is alleged that such a mechanism may advance government oversight and censorship, for example, by blocking of content.[vii]
In laying out a prima facie comparison of the two provisions in different democracies, it is apparent that exceptions of intermediary immunity envisaged under the CDA, 1966 are fewer in comparison to those under the Indian statute. Intermediaries in India become liable for damages the moment they participate Further, the scope of ‘interactive computer service’ is sweeping in its nature, more so than what is covered in the definition of ‘intermediary’ in India.
It is suggested that the scope of liability under section 79 of the IT Act, 2000 must be revised – be it in accordance with different platforms, or as applying to different kinds of intermediaries, for which purpose the proposed framework of the amendment in Rules, 2011 is debated upon. Following the release of the Draft, certain worries are raised in relation to proactive monitoring of content by intermediaries.[[viii]] Apprehension over ‘notification fatigue’ and ‘consent fatigue’ pursuant to following rules has also been raised.[[ix]] Persons in the legal industry, including the author, are eagerly awaiting the publishing of the final Amendment. A conjoined reading of the Amendment alongside the new Rules will provide a broader view into a balance that is essential between intermediary responsibility and governmental overreach.
Set in their own respective social and cultural scenarios, both countries aim to achieve freedom of speech and expression resonating their respective constitutions, and balancing on a delicate thread, this freedom vis-à-vis any liability that should accrue to owners of online services which witness publishing of content that challenges these provisions.
[i] Writ Petition 5441 (W) of 2020 (CAN 3148 of 2020).
[ii] See Harsh Jain and Sankalp Jain, Regulation of Content on OTT Platforms: An Explainer, Tech Law Forum @ NALSAR, December 21, 2020. See also, Krishn Kaushik, Govt unhappy with self-regulate formula for OTT players, The Indian Express, September 22, 2020.
[iii] Surabhi Agarwal, Government amending IT Act to trace rogue messages on Whatsapp, The Economic Times, November 27, 2019.
[iv] Writ Petition (C) 677/2021 & CM Appl. 1638/2021.
[v] Supra note xix.
[vi] Lydia Suzanne Thomas, Plea in Madhya Pradesh High Court against Facebook, Twitter, Whatsapp, Instagram, Bar and Bench, January 17, 2021.
[vii] Internet Freedom Foundation, Explainer: How the New IT Rules Take Away Our Digital Rights, The Wire, February 26, 2021.
[viii] See Soumyarendra Barik, Proactive Monitoring Can Lead To Mass Private Surveillance, MediaNama, October 31, 2019. See also CCG NLU Delhi, Roundup of Sabu Mathew George vs. Union of India: Intermediary Liability and the doctrine of ‘auto block’, Legally India, February 03, 2017.
[ix] See Tanya Sadana, Intermediary Liability: Evolution of Safe-Harbour Law in India (Part I), Ikigai Law.