Tech Law Forum @ NALSAR

Category: Intermediary Liability

The Fate of Section 230 vis-a-vis Gonzalez v. Google: A Case of Looming Legal Liability

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[This article is authored by Harshitha Adari and Akarshi Narain, 2nd year students at the NALSAR University of Law, Hyderabad. It analyses the arguments in Gonzalez v. Google, a case that came before the United States Supreme Court, in the context of the judgment’s consequences on Internet free speech.]

Section 230 of the Communications Decency Act is the pillar of internet free speech. It provides “interactive computer services” such as video platforms, social media networks, blogs, and other platforms hosting third-party speech- broad immunity from liability for the content posted by users. It states that “no user or provider of an interactive computer service shall be treated as the speaker or publisher of any information provided by another information content provider.” This protection promotes free internet speech and immunizes service providers and users for removing objectionable content. The drafters of this legislation recognize that an internet unfettered by government regulation is a non-negotiable for free speech to thrive online. However, two pending cases before the US Supreme Court, Gonzalez v. Google and Twitter v. Taamneh, challenged the scope of this law’s protections.

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IT AMENDMENT RULES 2022: An Analysis of What’s Changed

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[This post is authored by Sohina Pawah, a second-year student at the NALSAR University of Law, who is also an Editor for the TLF]

INTRODUCTION

Back in June 2022, the Ministry of Electronics and Information Technology (“MeitY”) had first released the proposed amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules 2021”) for public consultation. Recently, the MeitY notified the Amendments to Parts I and II of the IT Rules 2021 by introducing the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2022 (“IT Amendment Rules, 2022”). The IT Amendment Rules 2022 aim at the regulation of social media intermediaries by increasing the burden of their compliance, and ensuring that the safe harbours provided to them are not abused. On the whole, the Rules aim at strengthening the protective framework for the “netizens’ interests” by prioritising their fundamental rights under Articles 14,19, and 21 of the Indian Constitution.

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Traversing the Contours of Safe Harbour: Comparison of India and US (Part II)

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This is the second part of a two-part post authored by Kavya Jha and Ananya Singh, fourth-year law students at RGNUL, Punjab. The first part can be found here.

In light of the ongoing attempts to provide intermediaries with the right degree of protection, this essay seeks to juxtapose the Indian approach to safe harbour protection with the American approach. It argues that both these jurisdictions have taken opposite but extreme approaches: while India has narrowed down the safe harbour protection from what was originally intended by the legislature, the American courts have interpreted the safe harbour provisions so expansively that an imbalance has been created in favour of the intermediaries. The essay, thus, recommends a balanced approach to providing safe harbour protection to intermediaries.

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Traversing the Contours of Safe Harbour: Comparison of India and US (Part I)

Posted on by Tech Law Forum NALSAR

This is the first part of a two-part post authored by Kavya Jha and Ananya Singh, fourth-year law students at RGNUL, Punjab. 

In light of the ongoing attempts to provide intermediaries with the right degree of protection, this essay seeks to juxtapose the Indian approach to safe harbour protection with the American approach. It argues that both these jurisdictions have taken opposite but extreme approaches: while India has narrowed down the safe harbour protection from what was originally intended by the legislature, the American courts have interpreted the safe harbour provisions so expansively that an imbalance has been created in favour of the intermediaries. The essay, thus, recommends a balanced approach to providing safe harbour protection to intermediaries.

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Fighting “Unlawful” Content: Moderation and the New Intermediary Guidelines

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[This post has been authored by Sanjana L.B., a 4th year student at Symbiosis Law School, Hyderabad.]

Introduction

In January 2021, India had the highest number of Facebook users at 320 million. This was followed by the United States of America (“USA”), with 190 million users. As of February 2021, about 53.1% of the population of Myanmar were active social media users. These numbers are not only indicative of internet penetration, but also of the audience for user-generated content on platforms like Facebook. This article focuses, firstly, on the need for content moderation on social media by looking at harmful precedents of inefficient moderation, and secondly, on the Indian Government’s approach to content moderation through the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Intermediary Guidelines”) and recent developments surrounding the regulation of social media content in India.

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Breaking Encryption and Violating User Privacy: Is there a Way Out?

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[This post has been authored by Shamik Datta and Shikhar Sharma, first year students at NALSAR University of Law and National Law School India University respectively.]

How the IT Rules break End-to-End Encryption

End-to-end encryption ensures that intermediaries or third parties don’t have access to the content of the message and identity of the communicating parties. However, Rule 4 (2) of the new Informational Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules 2021 specifies that all ‘significant social media intermediaries’ must enable the traceability of the first originator of a message. The collected information may be used if and when required by a court of competent jurisdiction or competent authority under Section 69A of the Information Technology Act, 2000. The information derived via the breaking of end-to-end encryption may be used to investigate offences abetted or caused by the spread of fake news. This includes open-ended offences like disturbing ‘public order’, which are broad in their scope, and thus, leave a wide scope for their blatant misuse and arbitrary interpretation. The proviso to Rule 4(2) states that intermediaries are not required to reveal the content of the message, or any other related information. However, under Rule 4 of the IT (Procedure and Safeguards for Interception, Monitoring and Decryption) Rules, 2009, the government possesses the power to demand the revelation of the content of electronic messages. The government could, upon identifying the user under the 2021 Rules, ask the intermediary to decrypt the content of other messages of the same user under the 2009 IT Rules citing “public order” (for example, citing the history of the user as a fake news spreader). This would render the proviso to Rule 4(2) of the 2021 Rules meaningless. Therefore, when the information about the first originator is gathered via enabling traceability and powers to disclose the content of the message is exercised, it leads to a break in end-to-end encryption. This destroys the very purpose of the cryptographic keys and encryption protocols developed over the years to encode the messages and safeguard the identity of their sender. 

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The Internet and Marginalised Genders: A Comment in view of the Intermediary Guidelines, 2021

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[Varsha Singh is a fifth-year law student and contributing editor at robos of Tech Law and Policy, a platform for marginalized genders in the technology law and policy field. This essay is part of an ongoing collaboration between r – TLP and the NALSAR Tech Law Forum Blog and is the third post in the series. Previous entries can be found here.]

We live an increasingly online everyday life. Today, internet platforms are at the helm of conversations, dominating interactions and impacting relationships between social actors. These platforms’ power and control play a role in furthering fundamental values such as the right to communication and access to knowledge and information. Policies that govern this control, both at self-regulatory and state levels, should ensure the protection of such rights and freedoms while ensuring that users can reap these platforms’ benefits. The Ministry of Electronics and Information Technology recently published Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 to regulate intermediaries. While these guidelines adversely affect users’ rights and freedoms in general, the adverse effect is amplified manifold when it comes to marginalised genders, especially in light of India’s socio-political and cultural contexts.

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Facebook and its Oversight Board: Regulatory Attempts in an Impractical Relationship

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[Lian Joseph is a fourth-year law student and contributing editor at robos of Tech Law and Policy, a platform for marginalized genders in the technology law and policy field. This essay is part of an ongoing collaboration between r – TLP and the NALSAR Tech Law Forum Blog. Posts in the series may be found here.]

Facebook’s Oversight Board (OB) was instituted to respond to the growing concerns regarding Facebook’s inadequate content moderation standards. The company has been alleged to have proliferated and played an important role in several instances of human right violations, hate and misinformation campaigns related to elections and COVID 19 among other issues. The introduction of the OB – the Facebook Supreme Court, as it has been dubbed – was met with a lot of skepticism, with many arguing that it was an attempt to deflect actual accountability. The Board was established as an independent body with a maximum of 40 members, separate from Facebook’s content review process with the power to review decisions made by the company and suggest changes and recommendations. Notably, the OB will be reviewing cases that are of grave concern and have potential to guide future decisions and policies. Appeals can be made by the original poster or the person who previously submitted it for review or by Facebook itself referring matters.

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