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Definitions and Explanations – the Concept of ‘Incentives’
An intermediary is an internet-based service provider, which provides its users with a platform to upload all and any types of content, ranging from text to videos. Some of the more popular examples of intermediaries would be Facebook, YouTube, Twitter, WordPress and Blogspot. The term ‘intermediary’ is defined under the Information Technology Act (‘IT Act’) as follows: “ “intermediary”, with respect to any particular electronic records, 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”.
Now, the reason why these intermediaries offer the services they do is simple – they want to make a profit. But isn’t the use of such a service an excercise of the Right to Freedom of Speech by its users?
The interactions between these two concepts is where the idea of ‘Intermediary Liability’, arguably one of the central foundations of the Freedom of Speech on the Internet, comes in. The concept of Intermediary Liability itself is based on economic incentives. While we, as individuals, have the incentive to say what we wants to say, and put effort into ensuring that it is appropriately disseminated, an intermediary does not have such an incentive. Thus, on one hand the individual will go out of his way to make sure what he says is being heard, perhaps even at a risk to his or her person, but on the other hand, an intermediaries usually does not have an incentive to promote the free speech of their subscribers and users. As noted earlier, the incentive of these intermediaries is usually commercial. (This being the rule, there are certain notable exceptions such as Pirate Bay).
Therefore, for the intermediary, ensuring the continued existence of its service comes first. Thus, under a strict liability regime, when an intermediary knows that there is a risk of it being shut down because it is hosting ‘risky’ content, it would simply refuse to host it, or it would take it down on the first complaint it receives, possibly without even checking it.
This fear of the intermediary of being blocked if it does not comply with the takedown request creates a chilling effect on free speech. That is, it makes intermediaries less likely to host content that is in a legal gray area, and might violate laws and obligations that govern the intermediary, due to a fear of prosecution.
Wide recognition and acceptance of the above concepts has led to a certain level of protection being given to intermediaries to promote Free Speech, which absolves them of any liability for content that they simply host but do not directly promote or support, i.e, for content they do not practice ‘editorial control’ over. This was even noted in the UN Special Rapporteur’s Report in 2011. Such implementation of the principle of Intermediary Liability mitigates the ‘risk’ faced by intermediaries, and even creates an incentive for them to host as much content as they can, even if it was to be in the legal gray area, since that would get their website more traffic, and thus more profit. This specific perspective on Intermediary Liability is quite popular in the United States, and is enshrined in Section 230 of the Communications Decency Act and the precedents set out under it.
The Indian Laws on Intermediary liability, detailed below, do not quite meet this standard. These laws have been heavily criticised, and their effect on intermediaries was cataloged by Rishab Dara in his paper on Intermediary Liability in India, in which he notes a distinct chilling effect on free speech in India as a consequence of these laws. In his research, he sent takedown notices to 7 intermediaries, from which 6 over-complied with the notices, despite apparent flaws in the notices. (I recommend reading the full paper for further details).But a restriction on the fundamental right to free speech given in the Indian Constitution requires that the freedom of speech and expression be restricted only when it is absolutely necessary, and even then only through due process of law.
Intermediary Liability Laws in India
In India, Intermediaries are accorded a certain level of protection from prosecution for content hosted by them under the Section 79A of the Information Technology Act, and under the much criticized Information Technology (Intermediaries’ Guidelines) Rules, 2011 enacted by the Central Government under the same. These rules (specifically, Rule 3 (4)) provide for a thirty-six hour notice-and-takedown procedure, under which people can inform intermediary about certain types of actionable content (giver in Rule 3 (2)), and the intermediary is held to be not liable if it is removed withing thirty-six hours. Intermediaries are also accorded protections under other legislations such as the Copyright Act
Crucially, if intermediaries knowingly host actionable content, or if they fail to comply with a takedown request within 36 hours, they can be held liable for it. But as long as they comply with the requirements of the Rules, they should ideally not be liable. In such a situation, it is the actionable content which is taken down, not the intermediary itself (something which was illustrated in the case of R K Productions v BSNL (Madras High Court) before the Rules came into effect).
The actionable content herein includes the following:
a) content which belongs to another person;
b) content which is grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever;
c) content which harms minors in any way;
d) content which infringes any patent, trademark, copyright or other proprietary rights;
e) content which violates any law for the time being in force;
f) content which deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;
g) content which impersonates another person;
(h) content which contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource;
(i) content which threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation
1. CIS Para-wise Comments on Intermediary Due Diligence Rules, 2011, Pranesh Prakash, CIS-India.
2. Constitutional Analysis of the Information Technology (Intermediaries’ Guidelines) Rules, 2011, Ujwala Uppaluri, CIS-India.
3. Intermediary Liability in India, Rishab Dara, Google Policy Fellowship at CIS-India.