Is Protecting Internet Intermediaries and Forgetting their Users Wrong

Ed Note: The following is a guest post by Abhijeet Singh Rawaley, a student of NALSAR University of Law.

The law surrounding online intermediary liability in cases concerning copyright infringement has posed a major interpretive challenge in Indian jurisprudence. The division bench of the Hon’ble High Court of Delhi in its 2016 December judgment attempted to resolve the same in MySpace Inc. v. Super Cassettes Industries Ltd. While the case dealt with a host of issues in copyright law, this post shall limit its analysis and critique the judgment on its discussion and holding concerning the role played by online intermediaries. It is devoted to understanding as to how we can create a framework of internet governance that not only protects intermediaries where they deserve and merit protection from liability, but also makes them more accountable and responsible actors who wield significant command over a valuable media such as the internet. The interpretative impediment in the case arose due to the prima facie discord between Section 79 and the proviso to Section 81 of the Information Technology Act, 2000.

Both the provisions were brought in through the landmark amendment of 2008 (that came into effect in 2009) which transplanted the “safe harbour” provisions and the “notice-and take-down regime” into the Indian law dealing with the internet. The seminal significance of the exemption granted to online intermediaries for any third-party content hosted by them cannot be disputed. Intermediaries are the channels, forums and platforms through which the internet becomes what it is. They are legally defined in Section 2 (1) (w) of the IT Act as entities which “receive, store or transmit” information on behalf of any other person through the internet. The section then provides a non-exhaustive illustrative list of “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” as intermediaries.  In Rishabh Dara’s words, online “intermediaries are widely recognized as essential cogs in the wheel of exercising the right to freedom of expression on the Internet”. Provided that they fulfil certain due-diligence conditions, Section 79 exempts intermediaries by precluding their liability arising due to any third-party content hosted by them. Taking the significance of IT Act to a very high position, its Section 81 enacts that the IT Act “shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force,” However, the exemption granted by Section 79 and the non obstante contained in Section 81 is apparently taken for a toss by the proviso to Section 81. This proviso crafts what seems to be a very special protection over and above the IT Act for the specific operation of the rights conferred by the Copyright Act, 1957 and the Patents Act, 1970. The sections were misconstrued to mean that the intermediaries, regardless of their due-diligence, could still be held liable for copyright and patent infringing third party content hosted by them.

In specific reference to technology law, the case of MySpace v. SCIL principally dealt with the question of whether the proviso to Section 81 negates and nullifies the exemption granted to intermediaries by Section 79. The Court held that it did not because, as per it, Section 79 granted only a “measured privilege” in favour of an online intermediary and not a “blanket immunity from liability.” It however did not classify the actors involved on the landscape of internet on the basis of their personalities. While Section 79 only exempts intermediaries, it leaves the door open for third-party uploaders to be liable for the copyright infringing content uploaded by them. This nonetheless implies that an intermediary will be liable for the wrongful content that it itself uploads.

Rationalizing the insertion of the proviso to Section 81, the Court observed that but for it, the copyright holders “would have been unable to pursue legal recourse” to protect their copyrights. This goes on to show how the Court without explicitly referring to it, applied the common law principle of ubi jus ibi remedium (where there is a right, there is a remedy) to the virtual space. It harmoniously read Section 79 with the proviso to mean that the former restricts claims of copyright (and concomitantly the remedies that flow from it) against intermediaries as a specific class of actors on the internet. Of course, this exclusion of claims against intermediaries does not happen by itself. The scheme of the law manifests a quid pro quo where intermediaries can avail the benefit of protection under Section 79 only by fulfilling the conditions set out in Sections 79 (2) and (3) and abiding by the due-diligence framework created in the Information Technology (Intermediaries Guidelines) Rules, 2011 as clarified in 2013. This framework of due diligence builds on the principle of self-regulation and mandates intermediaries to put in place specific “rules and regulations, privacy policy and user agreement for access-or usage of the intermediary’s computer resource” by its users. It makes intermediaries the arbiters of complaint notices received from any person who may be aggrieved with such information hosted by them which comes within the four corners of Rule 3 (2) of these rules.

Apart from covering cases of intellectual property infringement, the ambit of information subject to control under the 2011 Rules ranges from blasphemy to defamation to obscenity to such information which may be invasive of another’s privacy, to such that may threaten the unity, integrity, defence, security or sovereignty of India.  What is most problematic about the process to control the information coming within the ambit of Rule 3 (2) is that the ‘notice and takedown’ regime established by Rule 4 does not mandatorily require the forwarding of a notice received to the user who is alleged to have uploaded the objectionable content violative of Rule 3 (2). The regime to disable the objectionable content coming within the purview of Rule 3 (2) only suggests that the intermediary may work either with the uploader of information or the complainant. Since the involvement of the complainant is achieved simpliciter at the first instance of receipt of its complaint, there is no mandatory countervailing obligation on the intermediaries to approach their users who upload the allegedly objectionable content. Hence, the regime to protect the affected person’s rights fails to take into account the uploader’s perspective and thus makes a mockery of the cherished principle of audi alterum partem (hear the other side). While the requirement to hear the other side may have little value in grave cases which concern crimes such as publishing content which may be pornographic or invasive of someone’s privacy, it is nonetheless important in cases concerning copyright infringement. When the uploader of allegedly copyright infringing content is not given a chance to respond to a take-down notice, his possible plea of ‘fair use’ is altogether ignored. Therefore, it is submitted that the notice and take-down regime should be overhauled to extend its coverage to mandatorily take into account the response of uploaders of content to the notices received. This would only go on to ensure that the virtual web space becomes more fair to the different stakeholders that it caters to. An argument might be made that the ordinary contractual remedies may provide some say to the uploader of content (user of the intermediary) to allege breach of his contract with the intermediary.  But, the pursuit of those remedies will entail only a post-facto engagement between the two important stakeholders and will be digitally very inefficient considering how publication and removal of content on the internet can otherwise be efficaciously administered through reworking the take-down mechanism.

Hence, while we do focus on protecting intermediaries from being liable for third-party content hosted by them, we must also not ignore their larger than life existence or dominance on the internet. While the judgment in MySpace v. SCIL is indeed a laudable one when it comes to protecting intermediaries, it only does a lip service when it tangentially touches upon the aspect of protecting their users who upload the information. While the Court recognized how intermediaries provide the channels of information, one must not forget that these channels would be worth nothing sans the information that they host. There is a need to make intermediaries more responsible and accountable to protect and promote the speech and expression of internet users. Therefore, while our support to exempting intermediaries from being liable for third-party content should be resolute and dutiful, it must not happen at the cost of muting and ignoring their users who are the ordinary people using the internet.

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