The question therefore becomes – is it time we look beyond the ‘internet’ as it exists, to newer models of communication? The ‘models’ I refer to here are not absolutely novel – nothing under the sun is. These models still rely on the TCP/IP protocol, still use parts of the ‘internet’, still use the network laid down for it – learn from it, and improve it. These models, in fact, bring to mind the original image that was created of the internet, so much so that we can actually call these models of communication the legacies of the ideas of the ‘original internet’, challenging the dominance of the ‘neo-internet’. So is it time we focus on these models, develop them, and mark the decline of the ‘neo-internet’?
The fundamental idea of the Schumpeterian model of Creative Destruction images a continuous cycle of Creation and Destruction of monopolies, presenting a continuous story of capitalism. Of course, the entirety of the Schumpeterian economic discourse is a very complex issue, and I have my issues with parts of it, but I am using the Schumpeterian analogy here as it is relevant to the point I will be making here. The breaking point of a monopoly starts, in this limited context, with a new technology that ‘decentralises’ power, therefore challenging the existing ‘monopoly’. And this is where the Internet comes in.
The TechLawForum@NALSAR is happy to bring you a detailed two-part post by Jyoti Panday of Centre for Internet and Society, Bangalore, on the role played by Intermediaries in countering abuse on the internet. Jyoti is a graduate of Queen Mary’s University, London. Her work focuses on the interaction between intermediaries, user rights, and and freedom of expression.
The Internet can be a hostile space and protecting users from abuse without curtailing freedom of expression requires a balancing act on the part of online intermediaries. As platforms and services coalesce around user-generated content (UGC) and entrench themselves in the digital publishing universe, they are increasingly taking on the duties and responsibilities of protecting rights including taking reasonable measures to restrict unlawful speech. Arguments around the role of intermediaries tackling unlawful content usually center around the issue of regulation—when is it feasible to regulate speech and how best should this regulation be enforced?
The concept of ‘intermediary liability’ in all its nuances, as I have written before, is one of the bulwarks of the internet as we know it, including one of the aspects of it that we all know and love – the power it gives to each and every individual to exercise their right to free speech. In fact, it is that very power that even I am exercising right now as a blogger, even as part of an academic institution. This post looks into the Shreya Singhal and Ors. v. Union of India judgment, the contentions raised therein by intermediaries, and the consequences it has for intermediaries and internet-users alike. We will be looking at the Section 69A issues in a separate post.
Intermediary Liability is quite fragile and multifaceted a concept, balancing multiple interests on multiple fronts. To name the broadest stakeholders, intermediary liability balances the rights of the users (of the internet), against the profit incentives of the intermediary, and the policing of the government. An extremely interesting instance of the last part of this can be seen in the 2013 House of Lords’ Select Committee on Communications’ Report on Media Convergence. As per the report, the Committee essentially states that the best way for regulating content on the internet is through the intermediaries alone.
Last week, the Supreme Court of India in its judgment in the case of Shreya Singhal and Ors. v Union of India has decreed S. 66A of the Information Technology Act unconstitutional in its entirety, and at the same drastically restricted the ambit of Ss. 69A and 79 by reading into them the jurisprudence of Art. 19(1) (a) and 19(2). It has at the same time struck down the notice-and-takedown regime, replacing it with a system with more oversight, as we will see in following posts.
We will shortly be coming out with separate, detailed posts on each of the separate dimensions of the judgement, including but not restricted to the Free Speech issues, the Intermediary Liability issues, and the Website blocking concerns. But before we start on to that, a short word of caution.
1. Dot wants to be the Wikipedia of location mapping, Napier Lopez, TheNextWeb.
2. Hardware Designs Should be Made Free: Here’s How to Do It, Richard Stallman, WIRED.
1. We Can Now Build Autonomous Killing Machines. And That’s a Very, Very Bad Idea, Rober McMillan, WIRED.
2. Blocking online porn: who should make Constitutional decisions about freedom of speech?, Chinmayi Arun, Scroll.in.
1. Securing a future for Digital India, Arun Mohan Sukumar, The Hindu.
2. SC orders Google, Yahoo! And Microsoft to stop advertisements relating to sex determination, Apoorva Mandhani, LiveLaw.