What is intermediary liability?
Interactive websites like blogging platforms, social media and e-auction sites host user-generated content. Sometimes content posted by users could be illegal like content infringing on someone's copyright or pornographic content. The legislation under which the publishing of such content is considered as an offence could have provisions that impose liability on these platforms irrespective of the fact that the content was not generated by them. The Delhi High Court, while considering a petition to quash the criminal proceedings against Avnish Bajaj, the CEO of Baazee.com, the e-auction site where a user had put a pornographic MMS for sale, found that the website which hosted the MMS could be held to be liable for 'Sale etc... of obscene books' under Section 292 of IPC as well as Section 67 of IT Act, 2000 relating to publishing of information which is obscene in electronic form.
What is meant by safe harbour protection?
The intermediaries like ISPs, web hosts, social networking sites and blogging platforms play an important role in dissemination of information by providing tools and platforms that allow users to access the Internet, host content, share files and transact business. Websites like Blogspot, Youtube and Facebook only provide a platform for users to post their content, and do not have any editorial control over this content. Governments across the world realised that these intermediaries required to be given protection from legal liability that could arise out of illegal content posted by users, considering the importance of these intermediaries in the online space and the fact that their mode of operation was quite different from the traditional brick-and-mortar business,. Countries like the US and members of the European Union now provide protection to intermediaries from such user generated content. The Digital Millennium Copyright Act (DMCA) and the Communications Decency Act in the US and the Directive on Electronic Commerce in the EU provide protection to intermediaries from liability arising out of content posted by users of their services. Such protection is often termed as a 'safe harbour' protection.
Do intermediaries enjoy safe- harbour protection in India?
The amended Section 79 of the Information Technology Act, 2000 gives the intermediaries protection from liabilities that could arise out of any legal action initiated on the basis of user generated content. The intermediaries get protection from legal liability that could arise from any action of users that is considered illegal as per the IT Act, 2000 or any other legislation.
The safe harbour protection available to intermediaries is conditional upon their observing due diligence while discharging their duties and observing guidelines issued by the Government in this regard. These guidelines have now been issued in the form of the Information Technology (Intermediary Guidelines) Rules, 2011. Hence these rules are very important from the standpoint of liability of intermediaries.
How do the intermediary rules operate?
The new intermediary rules mandate the intermediaries to impose a set of rules and regulations on users. The rules further specify the terms of such regulations and this includes a broad list of categories of content which should not be posted by users.
The crux of the rules is that any person aggrieved by any content on the internet can ask the intermediaries to take down such content. The intermediaries on receiving such a complaint are obliged to remove access to the content within a period of 36 hours from the time of receipt of the complaint. The rules do not provide for the creator of the content to respond to this complaint. In fact, the rules do not even provide for the intermediaries to inform the user who posted the content regarding the complaint. The intermediaries which do not comply with a take-down notice loses the protection from any legal liability that could arise over the content.
The process of operation of the rules is explained in this diagram.
What is the kind of content that is restricted under the rules?
The rules mandate users not to host information included in a broad list that includes information that is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever, harm minors in any way or infringes any patent, trademark, copyright or other proprietary right. These words are too ambiguous and could result in broad interpretation.
These terms are so confusing. Are they defined anywhere?
The major issue with the intermediary rules is that the terms describing unlawful content are very ambiguous and are not defined either in the rules or in the IT Act, 2000. In fact most of these terms are not defined in any statute for that matter. Sflc.in has complied a definition of these terms for easy reference. (Link to definitions)
Apart form the restrictions on content, do the rules affect the rights of users in any other way?
The rules also deal with government's power to access user information from the intermediary and the power of the intermediary to disconnect user access. The Rules mandate that intermediaries have to co-operate with government agencies and provide information to them for the purpose of verification of identity, or for prevention, detection, investigation, prosecution etc when a request has been made by the agency in writing. This power granted to the Government agencies do not have any system of checks and balances to safeguard the interests of users.
The rules also mandate the intermediaries to inform the users that their services can be terminated if they violate the terms of service. This provision could have far serious consequences than the three strikes legislation that has been introduced in countries like France, South Korea and Taiwan.
How do these guidelines affect ISPs?
ISPs come under the definition of intermediaries and these rules apply to them. ISPs do not have any control over the content which is posted on the internet by a user as the ISPs only provide a conduit or a pipe for a user to connect to the internet. ISP cannot in anyway modify or delete content that has been posted on a web-page as the access to that completely rests in the hand of the user who has posted the content or the website/web-page host. Making an ISP liable for content is like making a telephone operator liable for any conversation that occurred on a phone line.
Moreover, take-down notices, if sent to ISPs, could result in taking down of entire websites instead of the individual pages that has the alleged illegal content, as the ISPs may not be able to restrict access to individual pages.
A major issue is that often ISPs could be mandated to block access to certain websites on the internet due to complaints by users relating to publication of any content which has been specified in the guidelines as unlawful, but blocking by an ISP will not have much of an effect because those websites or blogs can be still accessed, thanks to services like RSS Feed, VPN and other methods like use of Google translate, Google transcoder and Feedburner. Thus, blocking of sites by ISPs turn out to be completely ineffective, if the user has got some basic knowledge of how websites work.
Will these guidelines affect interactive websites?
The guidelines are skewed entirely against the creator of the content. The rules also do not place any burden on the complainant to produce evidence in support of the complaint and also do not provide for any penalty on sending frivolous complaints. The rules could soon result in intermediaries being flooded with complaints burdening them with the task of examining these. Also there are certain kinds of websites like online forums and service rating sites like 'Trip advisor' where the major purpose of running that website is to provide a platform to the user to express his view. Frivolous complaints could make the operation of such sites unviable.
How will these rules affect users?
These guidelines could result in a back-door censorship mechanism on the internet. These intermediary rules result in placing the onus on intermediaries to restrict content posted on the internet. As intermediaries run the risk of losing their safe harbour protection if content is not removed on receiving a complaint, they will err on the side of caution and this will result in removal of perfectly legal content. Thus, the rules curtail the freedom of the users to express their opinions which ultimately fails the purpose of having an interactive website as such platforms are aimed at allowing users to voice their opinion and to write anything that is in their mind. In addition to that the rules will result in violation of the right to privacy of users as the intermediaries could be forced to part with user information without any checks and balances. The rules could also result in arbitrary disconnection of services to users based on frivolous complaints.