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.

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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.

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?