Category: Internet Freedoms

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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BBC Documentary Ban: Yet Another Example of the Government’s Abuse of its Emergency Powers

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[This post by Paras Khetan and Anish Gupta, 2nd year students at NLSIU, Bangalore, explains how the  order blocking the BBC Documentary is violative of the IT Act and the rules thereunder. It also brings forth the larger problem of constant abuse of the government’s emergency powers under the IT Rules.]

Introduction

Recently, the government issued an order blocking the airing of the BBC documentary titled, ‘India: The Modi Question.’ The government invoked its emergency powers under Rule 16 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code Rules, 2021 (‘IT Rules’) to direct YouTube and Twitter to block URLs that enabled access to the documentary. The government in its order cited the impact of the documentary to “undermine the sovereignty and integrity of India” as the ground for banning the documentary. While the validity of the order is currently under challenge in the Supreme Court, the authors are writing this paper in anticipation of the judgement and suggest how the Court should decide the matter at hand. We argue that the government order is plagued with illegality for violating the provisions of the Information Technology Act, 2000 (‘IT Act’) and the rules thereunder. The order does away with the safeguards relied upon by the landmark judgement in Shreya Singhal v Union of India while upholding the constitutionality of Section 69A. We shall also conceptualise and situate the recent happenings into the larger paradigm of executive aggrandizement and the constant abuse of emergency powers by the government.

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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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Regulating Real Money Games: Examining Alternatives to Prohibition (Part I)

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[This is the first part of a two-part post authored by Mitali Kshatriya, a fourth-year law student at RMLNLU, Lucknow. Part II can be found here]

The Indian Gaming Industry is expected to swell to $2.8 Billion with an annual growth rate of 40%. Indian gamers have a 13% share of global game sessions and are expected to add 40 million online gamers during 2020−22. A significant part of India’s gaming industry consists of real money gaming. The increasing popularity of real money games has led to problems such as addiction, misleading advertisements, overspending by users etc. This has led states enacting knee-jerk legislations imposing blanket bans on real money games.

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Right to Privacy at the Mercy of the Executive: Part II

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[This two-part essay has been authored by Aarya Pachisia, a 4th-year law student at Jindal Global Law School. Part One can be found here.]

Continuing the argument of how the executive seeks to control different actors under the Bill, this article focuses on executive control over the citizens. I advance the argument in two parts. First, I argue that under section 35 of the Personal Data Protection Bill, 2019  (‘the Bill’), a notification by the executive can exempt any stage agency from obtaining consent to process data of the citizens. There is no oversight mechanism envisaged by the Legislature under the Bill, as recommended by the Committee to validate or invalidate such notifications. Second, I argue that the Bill also considerably dilutes the consent framework under the Bill and drifts away from the concept of allowing the data subject to exercise control over personal data at every stage. 

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Right to Privacy at the Mercy of the Executive: Part I

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[This two-part essay has been authored by Aarya Pachisia, a 4th-year law student at Jindal Global Law School. Part Two can be found here.]

Technology is advancing at lightning speed, making privacy violations inevitable. Today, machine learning software is sophisticated enough to predict one’s sexual orientation, political and religious affiliation merely by processing their likes on Facebook. The Whatsapp Snooping scandal is another instance, where WhatsApp has filed a case in the court of California against the NSO group for hacking targets’ phones through the app. The case brought to light that unchecked power and absence of proper legal mechanism can lead to gross violations of right to privacy.

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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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Metadata by TLF: Issue 20

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Welcome to our fortnightly newsletter, where our reporters Harsh Jain and Harshita Lilani put together handpicked stories from the world of tech law! You can find other issues here, and you can sign up for future editions of the the newsletter here.

Facebook-Australia standoff ends as both parties agree to truce

Facebook has reached an agreement with the Australian Government and will restore news pages in the country days after restricting them. The decision follows negotiations between the tech giant and the Australian Government, which is set to pass a new media law that will require digital platforms to pay for news. The law, if passed, will make digital platforms pay local media outlets and publishers to link their content in news feeds or search results. Under the amendments, the Australian Government will give digital platforms and news publishers two months to mediate and broker commercial deals before subjecting them to mandatory arbitration under the proposed media law. Both Google and Facebook have fought against the media law since last year. Google previously threatened to remove its search service from Australia in response to the proposed law. But the company has since struck commercial deals with local publishers including the Murdoch family-owned media conglomerate News Corp. Facebook, for its part, followed through with a threat to remove news features from Australia.

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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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