Category Archives: Intermediary Liability

The Right to Be Forgotten – An Explanation

Ed. Note.: This post, by Ashwin Murthy, is a part of the NALSAR Tech Law Forum Editorial Test 2016.

The right to be forgotten is the right of an individual to request search engines to take down certain results relating to the individual, such as links to personal information if that information is inadequate, irrelevant or untrue. For example, if a person’s name is searched on Google and certain information appears relating to that person, the person can request Google to remove that information from the search results. This has its largest application in crime and non-consensual pornography (revenge porn or the distribution of sexually explicit material depicting a person without their consent). If X committed a petty crime and a person searching X’s name finds this petty crime, it leads to an obvious negative impact to X, in terms of job prospects as well as general social stigmatisation. X can ask the providers of the search engine to remove this result, claiming his right to be forgotten. The right is not necessarily an absolute right – in its current stage of discussion it merely applies to information that is inadequate, irrelevant or untrue and not any and all information relating to the person. Further there lies a distinction between the right to privacy and the right to be forgotten – the right to privacy is of information not available to the public while the right to be forgotten is removal of information already available publicly.

            Proponents of the right to be forgotten claim that it is a person’s right to have such outdated or immaterial information deleted from the Internet, or at least from the results of search engines. Photographs, comments, links shared – these are all things that people post in their youth (and sometimes at a not so young age) without a second thought. These people should have the right to delete such content from the Internet to protect their right to privacy and consequentially their right to be forgotten, protecting them from unnecessary backlash at rather innocuous actions. For example, a Canadian doctor was banned from the United States when an internet search showed that he experimented with LSD at one point of time in his life. With the right to be forgotten he can erase such pages from the results of the search engine. Victims of revenge and involuntary porn would have an easy mechanism to ensure that such objects are removed from the internet, a task that is difficult to achieve without such a right.  Critics however claim that this right to be forgotten is a substantial setback to the freedom of information and free speech. Any information spread on the Internet would have the potential to be taken down due to legitimate or seemingly legitimate claims of the right to be forgotten, regardless of the qualitative value of the information. Further, the right to be forgotten would impede with a person’s right to know. The easiest way to discover the background of a person is to Google them. This is especially relevant when employing someone or entering into an agreement of trust. If a person is looking for a security guard and a Google search shows that the applicant for the job is or was a thief, then this information on the Internet is of great use to this person hiring such a man – information that would otherwise not be available to the person. Removing this information denies the person their right to know and access this information. Also, implementation of such a right is technically difficult, forcing a complex algorithm to be developed to correctly identify what sites and results should and should not be removed in the event of a claim of right to be forgotten, especially considering the permanency of content on the Internet with the reposting and reproduction of content that occurs today. Locating every site to remove the content is technologically difficult.

            This right has its premier legal backing in the case of Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González, a decision by the Court of Justice of the European Union (CJEU). In the case, the Spanish citizen Gonzalez wished to remove a Google search result of an auction notice of his repossessed house that was fully resolved with and thus irrelevant. The Court held that the search engine (Google) must consider requests of removal of links and results appearing from a search of the requestor’s name under the grounds of the search result being irrelevant, outdated or excessive. The Court thus clarified that while people do possess this right to be forgotten, it is not absolute and must be balanced against other fundamental rights, including the freedom of expression. Thus the CJEU stated that assessment on the same must be decided on a case-to-case manner. This is line with an EU Regulation, the General Data Protection Regulation (GDPR), in providing only a limited form of the right to be forgotten. Originally this only applied to European countries – Google delisted search results only from European domains (google.fr, google.de, etc). Thus if a European citizen requested removal of a result, it would be removed from all European domains but nowhere else. CNIL, France’s data protection regulator, went to the length of fining Google for not removing the requested search results from all domains of Google worldwide, not just the French domain. While Google is fighting this case in France’s highest court, this is a symbol of a slow recognition of a far more expanded form of the right to be forgotten, applicable to search results worldwide.

            The right to be forgotten is not alien to India either – the first case of the same was a request in 2014 to the site Medianama.com to remove certain content, however this request was soon dropped. In 2016, a man raised a request before the Delhi High Court for a valid request for removal of his personal information from Google search results of a marital dispute. The Court recognized this claim and sent an inquiry to Google, to be replied to by September 19th. However, there is currently no legal framework present in India for the same nor does the landmark EU judgement apply in India.

            The right to be forgotten remains a nascent right, not fully developed or fleshed out. There are debates as to the pros and cons of such a right, and the extent to which such a right can and should be granted. However there is a clear rise as to its relevance in the technological and legal fields and will undoubtedly crystallise into a comprehensive right in the near future.

For further reading:

  1. The Audacious ‘Right to Be Forgotten’, Kovey Coles, CIS-India
  2. The Right to Be Forgotten, EPIC
  3. Debate: Should The U.S. Adopt The ‘Right To Be Forgotten’ Online? (audio), NPR

TORRENTS: THE LEGAL RAMIFICATIONS

Ed. Note.: This 101, by Kaustub Bhati, is a part of the NALSAR Tech Law Forum Editorial Test 2016.

Have you ever used a torrent to download something not available freely? You must have. Ever wondered how it works and why there is so much fuss about it being illegal and people using it might face legal sanctions?

A torrent is typically a file sharing method in which large media files are shared between private computers by gathering different pieces of the file you want and downloading these pieces simultaneously from people who already have these files. This process increases the download speed manifold. An example would be if 5,000 people are downloading the same file then it doesn’t put much pressure on the main server itself but what happens is that every individual use contributes upload speed which in turn ensures that the file transfer is fast. The download, hence, doesn’t really take place from the main server but from the 4999 other users currently downloading. This is typically known as P2P or Peer-to-Peer sharing method.[1]

Now since the invention of torrents in 2001 by Bram Cohen, it is being used to share a massive no. of files everyday some of which are copyrighted materials such as video games, movies and songs which should technically be paid for but are being distributed freely. This loss of revenue for the copyright-holding companies and the subsequent law-suits brings us to the forefront of our discussion: The Legal issues.

The torrent is not wholly illegal as the general misconception is. It can be used to share files across different people legally but the line is drawn when it comes to copyrighted content because then it amounts to Intellectual property theft. Almost 97 – 98% hosting companies (the companies which provide the link rather than host the content themselves) do not allow hosting torrents, and most of them are simply afraid of the word torrent. In India too, the authorities are catching up, Sec 66 of IT Act provides for 2 years of imprisonment and fines for people who download pirated media from the internet.

The Cyber Cell Department catches this illegal downloading by paying some IP Troll companies which lets them join the hosts of people downloading torrents allowing them to see the IP addresses and hence come knocking on their door steps. This leads to another legal issue as the IP address only tells WHERE the file is being downloaded and not WHO is downloading and also what would be done if the downloader was a minor? These are some problems faced by the prosecution in the court of law.

One of the major problems that can be seen globally is the difference in copyright laws in different countries giving rise to file-sharing sites such as The Pirate Bay to swim through this crack by saying that no laws of the host country i.e. where the servers lie, are being violated and hence everything is legal. Internet sites like Pirate Bay even posts legal notices sent to them by companies like Sony, DreamWorks and Electronic Arts on their site accompanied by mocking retorts.[2]

The prominent arguments presented in favour of the sites like these are that the sites themselves are not illegally distributing copyrighted materials but are functioning just like any other search engine like google or yahoo providing relevant search results to a query after which the users themselves are responsible for the acquisition of the materials in question and they themselves should be held liable and not the intermediaries. While Sweden in its judgement against co-founders of Pirate Bay refuted this, countries like Netherlands, Ukraine, India and the privacy-conscious Switzerland have become new piracy havens due to the exact same loopholes in the law deeming the intermediaries as not guilty of what their customers do.

While countries like Japan have severely strict laws entailing a 10-year imprisonment for uploading and a 2-year imprisonment for downloading illegal content[3], Germany is also not far behind, imposing a fine of €1000 fines or more if even a single instance of a copyrighted material is downloaded through BitTorrent.

These were some of the legal ramifications regarding the use of torrents, in an era when everyone wants everything to be freely available with just a click, Peer-to-peer file sharing has become a platform for political activities against intellectual property laws and has sparked movements such as the anti-copyright movement advocating complete or partial remission of current legislations. In the end, the ball is thrown towards the general masses to catch and in turn be implicated in illegal activity or let it fall and support the rights of the creators of the content we so want to see.

[1] Carmen Carmack,” How BitTorrent Works”, http://computer.howstuffworks.com/bittorrent1.html

[2] Dennis H, A Pirates’s Life in Sweden, https://yalelawtech.org/2011/02/23/a-pirates-life-in-sweden/

[3]Japan introduces piracy penalties for illegal downloads, http://www.bbc.co.uk/news/technology-19767970

Shreya Singhal, and how Intermediaries are simply Intermediaries Once Again – Striking down the Chilling Effect

The concept of ‘intermediary liability’ in all its nuances, as I have written before, is one of the bulwarks of the internet as we know it, including one of the aspects of it that we all know and love – the power it gives to each and every individual to exercise their right to free speech. In fact, it is that very power that even I am exercising right now as a blogger, even as part of an academic institution. This post looks into the Shreya Singhal and Ors. v. Union of India judgment, the contentions raised therein by intermediaries, and the consequences it has for intermediaries and internet-users alike. We will be looking at the Section 69A issues in a separate post.

Intermediary Liability is quite fragile and multifaceted a concept, balancing multiple interests on multiple fronts. To name the broadest stakeholders, intermediary liability balances the rights of the users (of the internet), against the profit incentives of the intermediary, and the policing of the government. An extremely interesting instance of the last part of this can be seen in the 2013 House of Lords’ Select Committee on Communications’ Report on Media Convergence. As per the report, the Committee essentially states that the best way for regulating content on the internet is through the intermediaries alone.

In India, we now follow a different model. Up till last week, we followed a rather shaky and quite criticised notice-and-takedown regime under Section 79 of the Information Technology Act and the Rules promulgated under it, but that changed with the Shreya Singhal judgment.

Arguments made by the Petitioners

The contentions that had been raised by the petitioners in the Shreya Singhal case were that Rule 3(4) of the Guidelines required the intermediary to exercise its own judgment regarding the legality of the information in question, and then disable whatever information was in contravention of Rule 3(2) of the same. The petitioners also argued that there were no safeguards provided for intermediaries under the 2009 Rules made under S. 69A. Furthermore, sub-rule (2) of Rule 3 was also argued to be vague and overbroad, and to have no relation with the subjects specified under Art. 19(2) of the Constitution of India.

Similar contentions were raised with S. 79(3)(b) as well, with regards to how it asks the intermediary to judge the legality of the content in question – and not just legality, but whether they fall under the unnecessarily broad category of ‘unlawful acts’.

The Court’s Judgment

The Court rightly concludes, on the basis of its analyses, that S. 79 is an exemption provision for the intermediary. Thus, it has to be necessarily seen in the context of the offences under the Act, such as S. 69A. As S. 69A in no way calls for the intermediary to make its own decisions about the legality of content. Furthermore, the Court had concluded earlier in the judgment that blocking orders under S. 69A can only be passed either by a competent Court or by a Designated Officer after complying with the 2009 Rules.

On this basis, the Court has struck down the notice-and-takedown regime. Now, the intermediary is only required to remove content after it receives a notice regarding the same. Furthermore, the ‘unlawful acts’ for which such orders can be made have also been read down to only the grounds allowed under Art. 19(2). The Court here has specifically stated that content can only be taken down after an order has been passed by a competent authority. Thus, the twofold judgement of the Court here is that:

  1. a) intermediaries are required to block access to or remove content only once they receive an order from the competent authorities, and
  2. b) such an order can only be passed on the basis of the grounds laid down under Art. 19(2).

What it Means for Intermediaries and the Users

Thus, the liabilities of the intermediaries under S. 79(3)(b) and Rule 3(4) of the Intermediary Liability Guidelines have been read down to only when they ignore a direct order from either a Court or a Designated Officer, which has been passed on the grounds enumerated under Art. 19(2). This is, without a doubt, a huge victory for intermediaries across India. Along the lines of the incentive theory explanations that I have used before, this is at the absolute edge of the spectrum – the intermediary is, in this case, not required to block any content as per anything less than a court order. Therefore, the intermediaries can host as much content as their technology allows them to, and only take it down when they get the proper orders. They face no liability for their content, but only for the direct disobedience of orders. Thus, under this model, the intermediaries are incentivised to host as much content as they can.

But at the same time, this also means that the onus of judging content lies, now, entirely on the shoulders of the Courts. And as we have mentioned before, the Courts have a dubious track record when it comes to copyrighted content and online pirated copies. Thankfully, the beauty of this judgment is that even with the above ‘overzealousness’, so to say, of the Courts when it comes to pirated content, there will be no chilling effect on the intermediaries! This is because they do not have to make decisions regarding legality of content, they only have to follow the orders of the Court. Therefore, they will not face the ‘fear’ of being found liable for any ‘grey area’ content that passes under their radar. Thus, there is an indirect but extremely positive effect on the free speech of the users.

The Court makes a note of an interesting contention when it notes the arguments made by the petitioners, that “intermediaries by their very definition are only persons who offer a neutral platform through which persons may interact with each other over the internet”. And that is exactly what the Court has done here – created neutral gatekeepers of the internet, or at least as neutral as companies with vested economic interests can be. The onus and liability for the legality of the content is now on the Courts and the Designated Officers, and no long rest in the hands of the intermediaries. Facebook is, then, just Facebook once again, and no longer has to judge the legality of the content its users put up.

And that is an a huge step forward for free speech in India, because, along with protecting free speech at the first, direct level of the user through striking down 66A, the Court has also promoted the free speech of the users through the second, indirect level, through striking down the chilling effect that found its home in the notice-and-takedown regime, going far beyond what I, at least, had expected from it. And it has thus, perhaps, taken the first step in paving the way for true freedom of speech on the Internet in India.

[SpicyIP Cross-post] The Fault in our Intermediary Liability Laws

This post was first published on SpicyIP here.

Over the course of 2014, we have seen a multitude of blocking orders pass through the hallowed walls of our courts. Some of the most curious things about these orders are that they were, mostly, ex-parte, John Doe orders, aimed at websites rather than specific content, and the cause of actions was that infringement was ‘likely’ to occur. I’m going to be dealing with the last two of the issues in detail, while the first issue has already been dealt with by Prof. Shamnad Basheer here.

Quick Review

The concept of Intermediary Liability is essentially based on the incentive principle, which is discussed in detail here. To put it simply, intermediaries are usually granted a level of immunity from prosecutions on the ground of their content, contingent on the level of editorial control they practice over their website or service. This immunity is granted because if the intermediaries are to be held liable for each and every item on their website that infringes copyright or breaks any law in force, it creates a ‘chilling effect’ insofar as it creates a disincentive for the intermediary to host content that lies in legal grey areas. This also makes economic sense, as this immunity allows the intermediaries to host more content, and their entire business model is usually based on that.

Therefore, in principle, intermediaries are to be given a fair amount of leeway with the content they host, in the interests of promoting free speech, as long as they do not have ‘knowledge’ of the fact that they are hosting illegal content, and do not exercise any ‘editorial control’ over it. The notice-and-takedown method comes in with regards to the former – if the intermediary receives notice that some content being hosted by them is violating an existing law, they then have a set time-period, which is thirty-six hours in India, in which they have to take the offending content down.

The Law as it Stands

The above principles have, supposedly, been incorporated into the Indian law to a limited extent, with Section 79 of the Information Technology Act and the Intermediary Guidelines framed under it. But in practice, a lot of issues have arisen on this count in the past, one of the most relevant of which is the case of Super Cassettes v. MySpace, which came before the Guidelines were notified.

The Burden on the Intermediaries

Now, the fact is, intermediaries like YouTube, PasteBin, et al., usually do not have the resources to go through all the content that is posted to their services with a fine-toothed comb. Furthermore, asking these intermediaries to decide what should be hosted and what should not be hosted is tantamount to asking them what is legal and what is not legal – that is, asking a private entity to make a judicial decision, that too a decision which directly affects a person’s freedom of speech.

Blocking Websites

Therefore, blocking an entire website, rather than just the infringing link, without any evidence to support the claim that the websites supported or sought out illegal content or had reasonable knowledge of the fact that the content hosted by them was illegal, or a high level of editorial control by the owners of the website, flies right into the face of the very principle of Intermediary Liability, and therefore free speech.

When the entire website is blocked, the implication is that its actions have overstepped the bounds of the immunity granted to it, and it is therefore liable for the content that it is hosting. Therefore, the effect of these decisions is that the threshold for the immunity given to the intermediaries is brought down.

Actual infringement/cause of Action

Moreover, in the FIFA broadcast case and the Bang Bang order, there was actually no evidence to support a liability on account of the intermediaries, and the order was passed against these websites because they were ‘likely’ to host the content in question. In all these cases, the question of ‘reasonable knowledge’ and ‘editorial control’ weren’t actually dealt with by the Courts!

The cumulative effect of these cases is that a higher burden is placed on the intermediaries with regards to the content they host. They are therefore required to essentially check all the contenton their websites (which is inherently impractical, and new technologies like YouTube’s ContentID can only do so much) and make a call regarding its legality. If they misjudge anything or let something slip through the cracks, they may face legal consequences.

A Line in the Sand

There is a slight but crucial point that must be pointed out here, a line in the sand of sorts. All of the above cases are cases that involve copyright claims, and with some legitimate claims of copyright violations by the links posted on the website. Therefore, the link between these cases and freedom of speech can be argued to be tenuous.

But the fact of the matter is, the judgments that have been discussed here actually make the law of the land, even if to a fairly limited extent. The ‘chilling effect’ is created in the minds of the owners of the intermediaries regardless of whatever law the cases were about. Intermediaries are necessarily going to think twice about hosting anything remotely in a legal grey area.

Future Developments

Therefore, the law, as it stands today, puts the intermediaries in between a rock and a hard place, and the free speech of the citizens of India at risk. The MouthShut.com case that is currently being argued in the Supreme Court is essentially on the same issues, regarding the burden placed on intermediaries under Section 79 of the IT Act and the Guidelines. The outcome of this case will be crucial for determining the boundaries of free speech on the Internet in India.

The “Bang Bang” Order: ‘Likely’ Copyright Infringement Trumps Intermediary Immunity

(Image Source: https://flic.kr/p/o9EcaJ)

This post examines the order given by the Delhi High Court (DHC), which is the third in a series of worrying orders by the DHC, from the perspective of Intermediary Liability.

In order to ensure no possible online access to Bollywood film “Bang Bang” which released on Oct 2, the Delhi High Court on Sep 30 directed Internet Service Providers (ISPs) to block access to around 90 websites which could have streamed, broadcasted or provided online access to the film. The restraint order was passed by the Court on a suit filed by Fox Star Studios, one of the producers of the film. A separate list of 72 websites was submitted to the High Court by the producer, contending that the movie should be unable to be watched on the internet without its permission and 18 other websites were made parties to the suit by the producers. While the order mentioned 90 websites specifically, it brings ‘other websites as subsequently notified by the producers’ within its purview, thereby making it extremely likely for websites beyond those specifically mentioned to be blocked.  Further hearing on this matter will take place on Nov 21, 2014. Continue reading The “Bang Bang” Order: ‘Likely’ Copyright Infringement Trumps Intermediary Immunity

Intermediary Liability – An Explanation

(Image Source: https://flic.kr/p/o9EcaJ)

Definitions and Explanations – the Concept of ‘Incentives’

An intermediary is an internet-based service provider, which provides its users with a platform to upload all and any types of content, ranging from text to videos. Some of the more popular examples of intermediaries would be Facebook, YouTube, Twitter, WordPress and Blogspot. The term ‘intermediary’ is defined under the Information Technology Act (‘IT Act’) as follows: “ “intermediary”, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes”.

Now, the reason why these intermediaries offer the services they do is simple – they want to make a profit. But isn’t the use of such a service an excercise of the Right to Freedom of Speech by its users? Continue reading Intermediary Liability – An Explanation