#sextrafficking | Liable vs. Accountable: How Criminal Use Of Online Platforms And Social Media Poses Challenges To Intermediary Protection In India – Media, Telecoms, IT, Entertainment | #tinder | #pof | #match



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Abstract

The term “Cybercrime” feels particularly outdated
nowadays. It is used to signify (comparatively) humdrum acts like
online obscenity, identity theft, or financial malfeasance. Now,
there is an argument that the Internet enables (or even abets)
extreme cases of criminality, such as rioting, hate speech,
terrorist recruitment, targeted fake news, illegal lobbying, and
unprecedented thefts of personal data. A number of these cases
involve online platforms and intermediaries (being used as primary
tools for commission of crime), the new gatekeepers of the
Internet.

Countries around the world are struggling to apply old legal
paradigms to these new problems. The concept that an intermediary
is only a neutral “pipeline” for information is no longer
sacrosanct. Germany’s new social media law makes the social
media platform liable for the content they carry. The Indian
Supreme Court and the Ministry of Electronics and Information
Technology have repeatedly called for the regulation of
intermediaries providing Internet platforms. In fact, the Supreme
Court has in the past made intermediaries responsible for actively
monitoring platforms, to ensure that they are compliant with child
and women protection laws.

It is becoming evident that the old standard of intermediary
liability will not survive the reality of the new Internet. In a
country like India, where more than half a billion people have
access to the Internet, these issues will be at the forefront of
regulation in the near future. It is also important not to overlook
the transformative potential of Internet access in India. Laws that
indiscriminately inhibit the openness and accessibility of the
Internet will benefit no one. It would be better if these laws were
written in partnership with intermediaries, rather than being
handed on from high with a flawed understanding of how the Internet
works.

This chapter examines two questions in the context of growing
calls for regulation in India:

Are we moving from a “did-not-know”
standard to a “ought-tohave- known” standard, and to what
extent is this practical?

Do we need a new hypothesis of intermediary
liability, which is limited but varies with degrees of potential
harm?

Evolution of Intermediary Protection “Safe
Harbour”

The law should allow internet platforms to stay out of
editorial decisions so that people can share and speak
freely.
” – Wikimedia
Foundation

The United States dominates in a study of governance landscape
for online intermediaries, as US law provides robust protections
for speech, rooted in the First Amendment to the United States
Constitution. This is coupled with the fact that most leading
Internet companies are based in the US.

Tellingly, US law relating to intermediary protection evolved as
a result of defamation cases. In Cubby vs. CompuServe Inc.
(1991), a New York district court applied defamation liability laws
to an Internet service provider hosting an online news
forum.1 CompuServe argued that it was a distributor, not
a publisher, and therefore could not be liable without knowledge.
The court noted that the requirement for a distributor to have
knowledge of the contents of a publication, before liability can be
imposed for distributing that publication, is deeply rooted in the
US First Amendment. Since no specific facts were shown indicating
that CompuServe knew or had reason to know of defamatory content,
it was held to be not liable for such content.

An intermediary’s knowledge was again at question in
Stratton Oakmont vs. Prodigy (1995). This time, the New
York State’s Supreme Court established that the intermediary,
Prodigy Services, who published a “Money Talk
bulletin board, clearly made decisions regarding content, and had
uniquely arrogated to itself the role of determining what
is proper for its members to post and read on its bulletin
boards
“.2

In 1996, the Stratton decision led the US Congress to
pass Section 230 of the Communications Decency Act in order to
protect Internet intermediaries from liability for third-party
content. Section 230 states that “No provider or user of
an interactive computer service shall be treated as the publisher
or speaker of any information provided by another information
content provider
“. That is to say, online intermediaries
that host or publish content are protected against a range of laws
that might otherwise be used to hold them legally responsible for
what others say and do.

Section 230 of the Communications Decency Act, 1996, was a
seminal step; it has been called “The Law that Gave Us the
Modern Internet
“.3 Following the US’ lead,
a number of other jurisdictions have taken a pro-intermediary
stance when providing for or interpreting safe harbour
provisions.

Indian Laws on Intermediaries

India enacted its intermediary protection laws four years after
the US, as part of its Information Technology Act, 2000. Section 79
of the Information Technology Act, 2000 (“IT
Act
“), provides intermediaries with qualified
immunity from liability under all other laws.

Intermediary” is defined widely to mean
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
“.

The “intermediary defense” under Section 79
is available as long as intermediaries follow prescribed due
diligence requirements and do not conspire, abet or aid an unlawful
act. The protection under Section 79 lapses if an intermediary with
actual knowledge” of any content used to commit
an unlawful act, or on being notified of such content by the
Government, fails to remove or disable access to the unlawful
material. The due diligence requirements to be observed by
intermediaries under Section 79 are prescribed in the Information
Technology (Intermediary Guidelines) Rules, 2011
(“Intermediary Rules“). The intermediary
is required to publish rules and regulations, a privacy policy and
a user agreement for access or usage of its computer resources.

In 2015, in Shreya Singhal vs. Union of India, the
Supreme Court of India read down the term “actual
knowledge”, used in Section 79, to mean that the intermediary
would be required to remove or disable access to unlawful material
only upon receiving knowledge that a court order has been passed
asking the intermediary to do so, or upon receiving notification
from an appropriate government. This broadly follows the concept in
Section 230 of not attributing knowledge or liability to an
intermediary without good cause. It is interesting to note that the
decision in Shreya Singhal was couched, in part, in terms
of the fundamental right of free speech.

The Breakdown of the “Safe Harbour”

The principal of safe harbour for intermediaries has held for
more than two decades, but is now increasingly questioned. This is
a function of both time passing, and of the wider form this
protection has taken. The Communications Decency Act, 1996, was
enacted due to concerns over pornography on the Internet. US courts
have since interpreted it expansively, granting broad immunity even
from civil rights violations.4 The biggest challenge to
the Intermediary’s safe harbour rule has been from laws aiming
to prevent online sex trafficking. In 2017, the Stop Enabling Sex
Traffickers Act (“SESTA“) amended the
protection in Section 230. This Act specifies that provisions
protecting providers from liability shall not limit civil action or
criminal prosecution relating to sex trafficking of children or sex
trafficking by force, fraud, or coercion.

In the EU, efforts are being made to compel intermediaries to
combat hate speech on their platforms. A new German
Netzwerkdurchsetzungsgesetz (an Act to Improve Enforcement
of the Law in Social Networks) aims to do just that. It applies to
all Internet platforms that enable users to share content. It
requires such platforms to delete manifestly unlawful content
within 24 hours of a complaint. This makes the platform liable to
make such determination itself, within a very short period of time.
Content that is not ‘manifestly’ unlawful can be deleted in
a longer timeframe, within seven days.

The law relating to intermediaries evolved at a very different
time (when online bulletin boards were the norm) to address a very
different need (applying the publishers’ liability for
defamation standard to the Internet). The “library vs.
newspaper
” debate that dominated the ’90s has lost
relevance in an age where the Internet has replaced not just the
library and the newspaper, but the post office, the television, the
landline phone and the cinema. As developments in the US and the EU
show, the safe harbour for intermediaries cannot be applied in all
cases.

In India, the derogation from an absolute theory of intermediary
liability has come from two sources: copyright protection laws; and
public order offences. Following the Supreme Court’s decision
in Shreya Singhal, the Delhi High Court in MySpace
Inc. vs. Super Cassettes Industries Ltd.
5 seems to
hold that in cases of copyright infringement, a court order is not
necessary, and an intermediary must remove content upon receiving
knowledge of the infringing works from the content owner. As such,
it seems that the intermediary protection provided in the
MySpace case was considerably less than the
actual knowledge” requirement under Section 79
of the IT Act, as read by Shreya Singhal.

The other challenge to intermediary protection has been the use
of platforms in criminal activities. Incidents of lynching and mob
violence have been reported from videos and messages circulated on
the WhatsApp platform in India.6 The Indian
Government’s Ministry of Electronics and Information Technology
has taken up these matters with WhatsApp on at least two occasions,
asking it to find effective solutions to the misuse of its
platform.7 Most worryingly for intermediaries such as
WhatsApp, the Government has indicated that if they do not find
such solutions, they are “liable to be treated as
abettors
” and “face consequent legal
action
“. In the worst case scenario, this may mean that
intermediaries are prosecuted as abettors under the Indian Penal
Code.

Preserving the Safe Harbour

We seem to be living in the sunset of the traditional theory of
intermediary protection. A blank-cheque approach to intermediary
protection has led to a global backlash. Given the growing number
of Internet users in India, the serious impact that
intermediaries’ passive role has on society and politics is
coming under increasing scrutiny from regulators. It is more than
likely that a regulatory alternative will emerge which will water
down the overarching protections available to intermediaries.

The question, then, is what would this regulatory
alternative be, and could intermediaries drive the discussion to an
alternative that balances their liability, the freedom of speech of
their users, and law enforcement requirements?

Possible ways forward have been shown by a combination of the
German Netzwerkdurchsetzungsgesetz, and jurisprudence
around copyright content removal. Intermediaries may have to take a
proactive role in policing and removing certain kinds of content.
So long as there is broad consensus on what these
“high-risk” types of content are, intermediaries should
be allowed to evolve an internal self-regulatory mechanism to track
and address such content. Obvious examples are child-harming
content, and material that incites violence, religious intolerance
or enmity, etc. As noted in the German
Netzwerkdurchsetzungsgesetz, such content should be
banned/removed expeditiously within 12–24 hours. For content
that is not obviously a part of such illegal categories, a longer
process of adjudication/discussion can be specified. An example of
the latter would be copyright violation.

In terms of process, it may be useful for intermediaries to come
together and design a cross-platform format that can be used by
users to report such illegal content. A growing body of such
reports can then be used to analyse the trends of removal of
content, and can slowly become the basis for any guidelines for
self-regulation. Such “increased” or
“pro-active” diligence on the part of the intermediaries
should be recognised in any future law as being sufficient a
criterion to preserve the safe harbour defence. Oneoff
“misses” in removing high-risk content should not impose
liability on intermediaries if they can demonstrate that a process
was available. Admittedly, this will be a subjective determination,
but as we have seen in the case of GDPR, some level of subjectivity
and application of judgment has become unavoidable in the growing
body of new legislation governing online behaviour.

Conclusions

Inaction on the issue of intermediary liability will not be an
option for much longer. In the absence of a solution from the
industry, governments and regulators may go for an extreme
“banning” approach, or try to affix “criminal
liability” on intermediaries. The Indian government has
already referenced the criminal act of “abetting” in
connection with WhatsApp. At the same time, the Indian Supreme
Court has, in the Prajwala case, shown willingness to work
with intermediaries to come up with solutions to online content
problems. The choice may come down to intermediaries, in whether to
work alongside regulators and evolve the next standard of
intermediary liability, or to take up a reactive, defensive view to
the regulations that are laid upon them.

Footnotes

1. 776 F. Supp. 135 (S.D.N.Y. 1991).

2. 1995 WL 323710.

3.
https://www.theatlantic.com/business/archive/2013/09/thelaw-that-gave-us-the-modern-internet-and-the-campaign-tokill-
it/279588/.

4. The Overexpansion of the Communications Decency
Act Safe Harbor
, Joey Ou, Hastings Communications and
Entertainment Law Journal, 455 Volume 35 Number 3.

5. 2017 (69) PTC 1.

6. Viral WhatsApp Messages Are Triggering Mob
Killings In India
, July 18, 2018, Lauren Frayer,
https://www.npr.
org/2018/07/18/629731693/fake-news-turns-deadly-in-india.

7. The Ministry issued two press releases in this regard,
on July 3, 2018 and on July 19, 2018.

Originlly published in ICLG Telecoms, Media & Internet Laws
2019 www.iclg.com

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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