[This is the second part of a two-part article authored by Saurav Kumar, a third-year student from Dr. RML National Law University, Lucknow. The first part can be found here.]
Arguments Submitted by Google
Google views itself as an “aggregator,” primarily distinct from SMIs, and as such, views itself as outside the scope of the IT Rules, 2021, applications. They have argued that while search engines operate autonomously thanks to “crawlers,” they only play a little passive part in how well they actually work. These are programs that run automatically and examine a website’s content. They then arrange the websites’ analysed data in an “index” that resembles a library catalogue. Similar content is grouped together by “crawlers,” and the entire process is thought to be passive and fully automated.
It has been suggested that “Index” refers to a library catalogue. Being comparable to one, they do not include the information itself but merely the location of a certain piece of information. This is the key difference between them and “publishers,” as the latter only categorise already published content, whereas “indexes” do the opposite. The key distinction between “search engines” and “publisher websites” is to how both entities handle their own content. The former does not publish, host, or control it; it just indexes it. On the other hand, the latter hosts material on a digital platform under the control of the owner. In these circumstances, the website owner is regarded as the “publisher” of the content. According to representatives of Google, search engines are merely a reflection of the data that is accessible online, and the Delhi High Court’s judgment contains requirements that would cause Google to be designated as an SSMI.
Validity of Google’s Appeal and Future Discourse
Legal scholars concur that Google’s argument has substance, but these opinions are not without concern. The main issue is that, despite not being a social media intermediary, Google is still an intermediary as per Section 2(1)(w) of the IT Act (as verified by themselves), and as was already mentioned, it has more users than the required 50 lakhs to qualify as an SSMI as announced by the government under Rule 2. (v). Therefore, once it is held that Google is an SMI, it automatically becomes an SSMI. Another issue is the fact that the scope of the Rules has significantly expanded as a result of the inclusion of the term “online engagement” in Rule 2(w). According to legal experts, they may even be applicable on any digital platform that promotes communication, including email, chat rooms, online games, search engines, etc. Google might be held possibly accountable if the IT Rules 2021 are applied broadly since it permits users to communicate with one another through ancillary functions like evaluating any establishment or book on Google. Consider the Google reviews tool to help explain. When searching for a book on Google, such as The Lord of the Rings, the sub-section “Audience Reviews” may be seen on the right side of the page. Readers can interact with each other by leaving reviews under this topic, which serves as a heading. This is only one possible location where people might be able to converse with one another.
The Ministry of Electronics and Information Technology, in contrast to the aforementioned worry, released the “Frequently Asked Questions on The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021” (hereafter referred to as “FAQs”). According to FAQ 12, intermediaries involved in business transactions, like search engines, are normally outside the purview of SMIs. The operative phrase here is “usually,” which implies that this exclusion is not unambiguous and may ultimately be subject to legislative and judicial interpretation. The High Court’s ruling in the current case makes the same point clear.
As was previously noted, Google appealed the Judge’s decision to the Delhi High Court on June 2, 2021. They had used the majority of the previously mentioned defences; in addition, they had drawn attention to the stark distinction between an “aggregator” and a “significant social media intermediary,” and they had requested an interim order to safeguard them from any potential coercive action under the IT Rules, 2021. The Centre, Facebook, the plaintiff whose photographs were released, the Internet Service Providers’ Association of India, the pornographic website where the images were leaked, and the Delhi government were the only parties to receive notice in the same matter after this motion was denied (parties involved in the first case). Despite being dismissed by the Court, the author thinks that Google’s claims have a strong and secure legal foundation. They have validity and are supported by international jurisprudential precedents.
A glance over other jurisdictions
For instance, British courts have not deemed Google to be an SMI and have observed that search engines are a “different kind of internet intermediary.” The court rejected a defamation case brought against Google by accepting the defence that search engines are merely facilitators rather than publishers in Metropolitan International Schools Limited. This ruling also observed that courts in Spain had taken a similar stance, holding in the Palomo case that search engines could not be held accountable for propagating third-party content. Even courts in the United States specifically in Re. Perfect 10, acknowledged Google’s function as an index when they ruled that they couldn’t be held accountable for the alleged IP infringement because they hadn’t actually distributed the infringing information in question, only hosted links to other parties’ infringement-related websites.
It should be observed that the Indian government retracted its request in a letter to Apple to comply with the IT Rules, 2021, around July 15, 2021. This may be a sign that the government believes that the scope of SSMI should be limited to social media platforms and no other intermediaries, which is how the average person would initially understand them. Search engines and other comparable non-social media intermediaries, in the author’s opinion, should be excluded from the definition of Significant Social Media Intermediaries as stated in the IT Rules 2021. The author agrees with this point of view.
Unfortunately, given the ambiguity of the IT Rules and the FAQs, the aforementioned cannot be determined in an absolute or definite manner. The IT Rules, 2021’s ambiguity, and misunderstanding serve as a reminder of the necessity for increased communication between the state and intermediaries. All eyes are currently focused on the Delhi High Court’s ruling since it might determine whether Google qualifies as an “aggregator” or a “major social media middleman,” as well as establish a key precedent for all other search engines in India.