[This is the first part of a two-part article authored by Saurav Kumar, a third-year student from Dr. RML National Law University, Lucknow. The second part can be found here.]
On February 25th, 2021, the government of India published the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“the IT Rules”) under the Information Technology Act, 2000 (“IT Act”). The Rules primarily aim to control Over-The-Top Platforms, digital media, and social media. Multiple High Courts and the Supreme court have pending litigations that not only use the Rules to sue tech giants but also challenge the very constitutionality of the Rules.
A single judge’s ruling declaring Google LLC to be a “significant social media intermediary” (“SSMI”) under the IT Rules, 2021, was challenged by Google LLC in the High Court of Delhi on June 2, 2021. This case warrants monitoring because it is a powder keg that could have an impact on India’s 622 million internet users, who are estimated to exceed 900 million by the end of the year. For the average person, search engines are similar to the entrance to the internet, and they use them virtually daily.
The judgment was given by a single judge, in X v. Union of India & Ors. which has been discussed below in two parts, with Part-I analysing the present stance and its consequences and Part-II analysing the arguments submitted by Google and finding a way forward.
A petition was filed before the Hon’ble Delhi High Court by the victim stating that the accused illegally posted some of her pictures and images, collected from Instagram & Facebook, on a certain pornographic website, without her knowledge or consent.
The single bench judge, in this case, used the new IT Rules to order that the infringing content be de-indexed and de-referenced globally within 24 hours. “Search engines Google Search, Yahoo Search, Microsoft Bing, and DuckDuckGo” were served the order. The primary emphasis here will be on the applicability of the IT Rules, even though the instructions’ application on a global scale has also been contested. When rendering the decision, the judge primarily referred Rules 3(2)(b), 3(1)(j), 4(8), and Rule 7. In essence, the decision treats Google as a “major social media middleman,” setting the stage for their eventual inclusion in the scope of the IT Rules. To avoid this, Google has referred to the Judge’s interpretation and ruling as having been “misinterpreted and misapplied under the IT Rules.”
Consequences of the present stance
Under the new IT Rules, a Social Media Intermediary (“SMI”) means an intermediary which primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify, or access information using its services. Deeming Google as an SSMI would entail it adhering to the special due diligence requirements outlined in the IT Rules, such as the requirement to keep user registration information on file for at least 180 days (Rule 3(h)) and the requirement to give law enforcement access to user and content information within 72 hours of a request (Rule 3(j)). Google would also be considered an SSMI because it has more than 50 lakh users. Even more rules must be followed by SSMIs than by SMIs, including the appointment of a Chief Compliance Officer (Rule 4(1)(a)), who may be criminally liable should Google fail to comply with the IT Rules, and the designation of a nodal contact person (Rule 4(1)(b)), whose sole responsibility is to work with law enforcement to ensure compliance with government requests (content takedown, user data requests, etc.). This decision has several ramifications since, in addition to the regulatory burden that comes with being an intermediary, which Google currently carries, it now also must bear as a social media middleman.
Clearly, disregarding any of these regulations would result in the termination of the safe-harbour provision that all intermediaries had access to under the purview of the IT Act. As per Section 79(1), no intermediary can be held accountable for any third-party data or information housed by them, while bearing in mind the conditions provided in Sections 79(2) and (3). As a result, Section 79(1) gives intermediaries a safe harbour and legal immunity. Therefore, if the safe-harbour provision were to be repealed, Google’s legal status would change from one of an intermediary to one of a publisher, making them vulnerable to claims and legal action for information published or stored on their platform. Safe-harbour clauses are specifically regarded as necessary for the operation of any intermediary on a global scale. Let’s look at their primary points now that we are familiar with the case’s consequences and importance.
The second part analyses Google’s arguments, future discourse and a comparative review with other jurisdictions