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.
Part II: The American Approach
Considering its robust free speech laws and the fact that several major online platforms originate from there, the US proves to be a relevant jurisdiction to discuss in the context of intermediary liability and safe harbour protection. Primarily governed by Section 512 of the Digital Millennium Copyright Act (“DMCA”) and Section 230 of the Communications Decency Act (“CDA”), intermediary liability and safe harbour protection in the US establish an “internet utopianism” by protecting intermediaries from content created by third parties and fostering free speech.
Digital Millennium Copyright Act
Section 512 of the DMCA limits liability for copyright infringement of online service providers (“OSPs”) involved in four activities: transitory communications, system caching, storing information on its network at the direction of the user, and using information location tools. For transitory communications, the term service provider covers entities that offer “transmission, routing, or providing of connections for digital online communications.” For all other purposes, the term is defined more simply and broadly as “a provider of online services or network access, or the operator of facilities.” Further, the provision specifies two general conditions of being eligible for the protections: the OSP must firstly, implement a policy that terminates subscribers and accounts who are repeat infringers and secondly, accommodate “standard technical measures”, i.e., technical measures that copyright owners use to protect their work. Apart from these general conditions, conditions specific to the four activities, such having knowledge of infringement, are provided.
The American courts have given an expansive interpretation to the safe harbor protection under Section 512. For instance, in Viacom Int’l, Inc. v. YouTube, Inc. (“Viacom”) the Court, while limiting YouTube’s liability for its related videos function, extended the protection to activities that are “closely related” to the four activities mentioned in Section 512. Similarly, knowledge requirements have been narrowly interpreted by the courts to minimize liability of OSPs. In Viacom, the Court distinguished between actual knowledge (a subjective knowledge of infringement) and red flag knowledge (knowledge of “facts that would have made the specific infringement “objectively” obvious to a reasonable person”). It held that for both actual and red flag knowledge, there should be “specific knowledge” of particular and identifiable infringing activity, for without specific knowledge, expeditious removal of the infringing item is not possible. A year later, in UMG Recordings. v. Shelter Capital Partners (“UMG”), the Court noted that if it was enough for an OSP to have a general knowledge of copyrighted content that could be circulated on its platform to meet knowledge requirements, then Section 512 would be a “dead letter”. Further, in effect the Courts in both Viacom and UMG rejected the distinction between active and passive hosting.
In May 2020, the US Copyright Office released a public study to evaluate the effectiveness of Section 512. The study recommended tightening of eligibility standards by, inter alia, limiting the safe harbour protection to the four activities provided for in the legislation, excluding OSPs with unwritten repeat infringer policies and making knowledge requirements broader by reducing the degree of knowledge required by the OSPs.
Communications Decency Act
Section 230 of the CDA, which has been termed as “one of the foundational laws behind the modern Internet”, limits the liability of a provider or user of an interactive computer service by excluding them from the ambit of a “publisher or speaker of any information provided by another information content provider.” It also protects an OSP acting as a “good samaritan” by restricting objectionable material.
While DMCA provides a safe harbour to intermediaries against copyright infringement claims, the provision under the CDA is broader and limits liability of intermediaries against claims of defamation, privacy, torts and negligence for third party content. The term “interactive computer service”, as defined in the provision, has a wide ambit and includes OSPs that republish third party content, such as social media platforms, blogs, search engines and Internet service providers.
Much like Section 512 of the DMCA, Section 230 of the CDA has been expansively interpreted by the courts. The American Courts have recognized that the knowledge requirement is deeply rooted in the First Amendment, and an OSP cannot be held liable unless there was knowledge of the contents of publication. In Zeran v. America Online, the Court held that an OSP would be protected even if it had notice of defamatory content as the legislative intent behind Section 230 was to provide a broad protection to OSPs to foster free speech on the internet. Being one of the earliest litigations involving the provision, the expansive interpretation taken in this case has been often followed since.
One of the first cases to limit the scope of Section 230 was in 2008. While specifying that “passive conduits,” including search engines using user-generated criteria to filter its content, would be given the safe harbour protection under Section 512, the Ninth Circuit Court of Appeal ultimately held that providing dropdown with illegal content amounts to development of content, and would not be protected under Section 230.
Critics argue that broad interpretations by the Court run against the original intent of the Congress. There have been several attempts to dilute the protection provided under Section 230. While some legislators have proposed to take the extreme step of repealing the law absolutely, others have introduced Bills to limit the scope of Section 230. The Congress introduced the Fight Online Sex Trafficking Act and the Stop Enabling Sex Traffickers Act (“FOSTA-SESTA”) to overrule the Court’s ruling giving protection to Backpage.com against charges of facilitating illegal sex work. By making OSPs liable for sex trafficking content and activities by users of the website, the FOSTA-SESTA package has diluted safe harbour protection for intermediaries. Further dilutions of Section 230 continue to be proposed; for e.g., the review of Section 230 of the CDA by the U.S. Department of Justice recommends limiting immunity of OSPs by amending the provision to exclude OSPs having knowledge or notice of illegal content from the protection, narrowly defining terms such as “good faith” etc.
Part III—The Tale of Two Cities: Comparative Analysis
Today, the original legislative intent behind the safe harbour provisions in both India and US stands defeated. While American Courts have expansively interpreted the safe harbour protection to defeat Congressional intent to provide a balance between free speech and intermediary liability, recent developments in India, such as the Rules, unnecessarily narrow down the scope of the safe harbour protection provided under section 79.
In India, non-compliance with any of the smallest factors present in the strenuous list of requirements can lead to the intermediaries losing the safe harbour protection. Further, the distinction drawn in Louboutin could be perceived as an example of judicial overreach as the Delhi HC went ahead creating its own distinction under section 79(1) of the Act, going against the intention of the lawmakers. Per contra, a watertight distinction is not drawn between active and passive participants in the US. Considering the Delhi HC has given two contrasting judgements on the issue, there is a need for clarity. To prevent further dilution of the safe harbour protection, the dicta in Amazon should be followed.
An important aspect of safe harbour protection is the good samaritan principle, which allows intermediaries to take down the material which they deem “illegal.” The wide discretion conferred on the intermediaries by virtue of Rule 3(1)(b) of the Rules and Section 230(c)(2) of the CDA might result in widespread private censorship. Therefore, it is pertinent to ensure that the intermediaries are not misusing this option. In Shreya Singhal, the Court tried to address this issue by observing that the ambit of due diligence to be followed by the intermediaries should be restricted to the exceptions mentioned in the Article 19(2) of the Constitution. However, this might prove to be counterproductive as a number of pertinent issues like copyright infringements and misleading advertisements would be excluded. Thus, a balance has to be struck, in both India and US, between the moderating powers of the intermediaries and the freedom of speech of the consumers.
In the US, the DMCA acts as a comprehensive legislation to address intermediary liability with respect to copyright infringements. In India, as discussed above, cases pertaining to the intermediary liability in copyright infringements are increasingly coming up before the courts. However, unlike the US, there is no provision exclusively dedicated to such issues. Due to the lack of clarity over the existing provisions, contradictory decisions have been rendered by the Courts while seeking a balance between the Act and the Indian Copyright Act, 1957. Thus, there is a pressing need for the formulation of law in this regard to achieve uniformity in the safe harbour protection vis-à-vis copyright cases.
The laws pertaining to safe harbour protection are heavily skewed in favour of the intermediaries in the US, whereas, in India they are more favorable for the government authorities. While the former should incorporate some degree of supervision, the latter ought to limit government intervention. In light of the increasing privacy and data retention concerns amidst the introduction of the Rules, it is recommended that a proper legal framework, ensuring a system of checks and balances, should be introduced. An increased role of the judiciary might help in this regard as firstly, it will restrict arbitrary government control over online speech and secondly, it will provide a conducive environment for intermediaries.
In recent years, reliance on intermediaries like search engines, social media platforms, e-commerce platforms, etc. has increased manifold. Yet, the degree of protection that should be available to such platforms remains unclear. The existing safe harbour provisions in India and US were introduced over two decades ago, when the concept of intermediary was nascent. Intermediaries today are not simple forums anymore; they use complex algorithms to promote content. The contours of liability for present-day intermediaries, thus, needs to be defined. To reconcile the needs of intermediaries and those of their users, a balance needs to be struck between the under-protectionist approach adopted by the US and the over-protectionist approach adopted by India.