Introduction
In the present era, social media platforms and internet service providers are indispensable as they are instrumental in the facilitation of globalised communications and connections, information dissemination, marketing and advising, community building, political and social activism, customer support, education and research etc. Due to the plethora of roles, a humongous amount of information is being shared via them throughout the internet. This indispensability however leads to vulnerability of these platforms and service providers. Many a times, they don’t have the capability to control exponential sharing. This lack of control turns these platforms into a safe haven for misinformation and fake news, cyberbullying and harassment, sexually explicit and pornographic content, privacy infringement etc.
More often than not, the liability of cybercrimes or failure to take down controversial content also falls upon them. To eradicate their liability when they have complied with due diligence standards, several countries including India have introduced safe harbor provisions. This article seeks to jurisprudentially analyse the safe harbor provision present in India in the light of landmark and latest judgements.
Origin of Safe Harbor Provision and its Jurisprudence in India
To lay the background for the origin of safe harbor provision, it would be pertinent to define intermediaries as per the prevalent rules and legislations. Under section 2(1)(w) of Information Technology Act, 2000. The intermediary is defined as “any person who on behalf of another person receives, stores or transmits an electronic 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.”
Furthermore, the term “significant social media intermediary” is defined in clause (v) of Section 2(1) as “a social media intermediary having number of registered users in India above such threshold as notified by the Central Government”, and the threshold is currently set at 50 lakhs by Notification dated February 25, 2021, issued by the Ministry of Electronics and Information Technology. By all measures, YouTube or Google LLC, qualify as “significant social media intermediaries” and are thus presumptively covered by Rule 4(4) of the Intermediary Guidelines Rules.
There are at least two types of mechanisms that offer protection to online intermediaries. According to the general principles of civil and criminal law, the obligation of the intermediary is rejected, for it being a generalist. This version affects the majority of countries in the world because intermediaries can be held liable for website content regardless of whether they directly supported criminal activity, i.e., contributory liability, or whether they did so indirectly by having the ability to manage it and profiting directly from it. Many African nations as well as certain regions of South America use this generalist approach.
Safe harbor is the second explanation for intermediary responsibility. A safe harbor is a position that is secure, such as one that is offered to intermediaries so that, subject to their online behaviour, they are not held responsible for the actions of their customers. By doing so, protection from liability is dependent upon circumstances, which can be very complex and intense, that are either specific to a certain aspect, such as copyright or trademark law, or they are designed to deal with a variety of actions and liability for various legal topics that apply across different domains. For this reason, protection of intermediates is addressed in Section 79 of the IT (Amendment) Act, 2008. One may argue that it is a safe harbour development based on an EU Directive.
In addition, those making the case for limiting intermediaries’ liability emphasise that they are “mere conduits of information” rather than content producers or facilitators. They also point out that given the volume of information passing through their servers, it may be impossible for intermediaries to manually verify the legality of all the content. The requirement to exclude intermediaries from liability in specific circumstances led to the development of safe harbor regulations. Furthermore, the 2008 amendment act which amended section 79 substantially, came as a reaction to the decision in Avnish Bajaj v. State (“Bazee case”) given by the Delhi High Court. Prior to the amendment, the intermediaries were held easily liable for customer’s conduct. The managing director of the website Bazee.com, which included an ad for sale of a mobile phone video clip containing pornographic content involving teens, was denied his petition to have the criminal charges against him dismissed by the court. The court determined that the website had prima facie failed to conduct due diligence. The court cited two reasons for its decision: 1) Because it did not have filters to filter out pornographic information; and 2) It lacked a policy to forbid the listing, exhibition, or sale of such material on the internet. Even though the judgement did not expressly address Section 79 of the IT Act, it amply illustrated the risks that intermediaries confront.
Jurisprudence of Section 79
By way of the 2008 amendment, Section 79(1) overrides provisions of any other law for the time being in force but subjects itself to clauses (2) and (3) granting exemptions to intermediaries under certain circumstances. Further, Section 79(2) explains the conditions to be fulfilled for claiming exemption. Section 79(2)(a) targets the passivity of intermediaries wherein it can only provide access to a communication system over which information made available by third parties is temporarily stored or hosted. Further, section 79(2)(b) which is separated by “or” makes it clear that intermediary must not have initiated the transmission, selected the receiver of transmission, and selected or modified the information contained within the transmission. This provision points towards classification of intermediaries into active and passive ones.
The Delhi High Court in the case of Christian Louboutin SAS v. Nakul Bajaj and Ors. (“Louboutin Case”) drew the distinction between an active and a passive intermediary. The Single Judge Bench ruled that whether an e-commerce platform qualifies for safe harbor protection under Section 79(1) would depend on whether it operates the platform in an “active” or “passive” manner. The Court listed a number of factors, including the identification of the seller and providing details of the seller; providing quality assurance, authenticity guarantees, or storage facilities; aiding in the booking of the product (including call centre assistance); creating the listing of the product; packaging the product with its own packing; transporting the product; delivering the product; and advertising products on the platform, among others, in which the e-commerce entity by its involvement becomes either an active or a passive intermediary. The court also observed that when an e-commerce website is involved in or conducts its business in such a manner, which would see the presence of a large number of the elements enumerated above, it could be said to cross the line from being an intermediary to an active participant. Further, it was decided that any active contribution by the platform or online marketplace completely removes the ring of protection or exemption which exists for intermediaries under Section 79.
A supreme court case also denied exemption on ground of online websites being active intermediaries. In Sanjay Kumar Kedia v. Narcotics Control Bureau, in the appeal before Supreme Court, the appellant Sanjay Kumar, the owner of 2 factories Xponse Technologies Limited (XTL) and Xponse IT services pvt. Ltd. was alleged to have found using the network facilities provided by his companies for arranging the supply of banned psychotropic substances online. Further, the investigation report of NCB made it clear that, “websites were not merely acting as a network service provider but were actually running an internet pharmacy and dealing with prescription drugs like Phentermine and Butalbital.” Therefore, the court thereby rejecting the appeal held that, “the appellant and his associates were not innocent intermediaries or network service providers as defined under Section 79 of the Information Technology Act, but the said business was only a camouflage for more sinister activity.”
Further, Delhi High Court in Google LLC v. DRS Logistics (P) Ltd didn’t let Google claim exemption under section 79 when it was found that it actively participates in the usage of third-party trademarks and actively chooses the receivers of the information about links that violate intellectual property rights. Further, Google operates an advertising company with extensive control instead of acting as a passive broker. Therefore, the court held, “Merely because the said business is run online and is dovetailed with its service as an intermediary, does not entitle Google to the benefit of Section 79(1) of the IT Act, in so far as the Ads Programme is concerned.”
Thereafter, comes section 79(2)(c) which makes a condition for observance of “due diligence” and is neither separated by “or” nor “and”. However, this ambiguity was addressed by the Delhi High court by stating that “The use of the words “or” between (a) and (b) makes them disjunctive, although (c) has to co-exist with (a) or (b) whichever is applicable.”. In particular, Clauses (b) and (c) mandate absence of deliberate negligent act on part of intermediary coupled with observance of due diligence. This due diligence is further elaborated in rule 3 and 4 of IT (intermediary guidelines) Rules, 2021. In Aaradhya Bachchan & Anr. v. Bollywood Timer and Another, the court emphasised upon due diligence and duty of social media intermediaries to take down the content categorised as per intermediary guideline rules, 2021 on being informed of it without any lapse of time.
The amended 2021 Intermediary Guidelines Rules further require the intermediary to “make reasonable efforts to cause the user of its computer resource not to host, display, upload, modify, publish, transmit, store, update or share” any such information. The original 2021 Intermediary Guidelines Rules only required the intermediary to request that its user draft an agreement promising not to post the excepted categories of contents. The 2022 Amendment Rules have added the phrase “and shall make reasonable efforts to cause the user of its computer resource” too. Because of this, he argues, the intermediary can no longer claim to be a merely passive observer of the material that is uploaded on its platform and must instead, adopt a more aggressive stance. Also, the words “reasonable efforts” are required to be interpreted in accordance with section 79.
Section 79(3) negates the exemption on fulfillment of certain conditions. According to its clause (a), intermediary must not be involved in conspiracy or abetment or aid or inducement via threats or promise in the commission of unlawful act. Also, clause (b) mandates the intermediary to expeditiously disable access to the material present on its interface without vitiating the evidence in any manner upon receiving “actual knowledge”.
Evolution of jurisprudence of actual knowledge
In Google India Pvt Ltd v. Visaka Industries Limited, an article that was posted by a user and hosted on a Google group was the subject of a criminal complaint from the complainant for allegedly making defamatory remarks about him. To get the criminal charge dismissed, Google used the Andhra Pradesh High Court’s inherent authority. On the basis of Section 79 of the IT Act, Google’s counsel claimed that the company should not be held accountable for the defamatory information since it is only an intermediary offering a platform for end users to publish content. The court determined that Google was unable to assert its exemption under Section 79 of the IT Act, notwithstanding the fact that it did not collude to disseminate defamatory information. The reasoning offered by the court was that because Google had received notification from the person who had been wronged, it was presumed that it knew about the libelous materials it was hosting and yet did nothing to delete or stop its spread. This was construed to be “actual knowledge” under section 79(2).
Further, Delhi High Court by applying these rules in the case of Nirmaljit Singh Narula v. Indijobs held, “the defendant [Hubpages.com] acted in clear non-compliance of the said due diligence obligations under the said rules read with Section 79 of IT Act, 2000 by not removing illegal information even after it obtained actual knowledge of the same when the plaintiff had served a notice on it.”
Ultimately, in Shreya Singhal v. UOI, it was held “Section 79(3)(b) has to be read down to mean that the intermediary upon receiving actual knowledge that a court order has been passed asking it to expeditiously remove or disable access to certain material must then fail to expeditiously remove or disable access to that material.” Also, in para 121, it also explicated as to what an order would mean by holding, “there are only two ways in which a blocking order can be passed – one by the Designated Officer after complying with the 2009 Rules and the other by the Designated Officer when he has to follow an order passed by a competent court.” Therefore, in Section 69-A read with the 2009 Rules, the intermediary using its own judgement as to whether information should or should not be banned is conspicuously absent.
In accordance with the aforementioned settled position, recently Bombay High court in In Applause Entertainment Private Limited v. Meta Platforms Inc. and Others granted ex-parte and interim reliefs as prayed by the plaintiff who owned the proprietary rights over “Harshad Mehta” web series which can be only watched over the OTT platform SonyLIV. Further, these reliefs acted as “actual knowledge” as per section 79 on part of social media handles such as instagram over which short clips of the aforesaid webseries had been shared. Therefore, instagram was bound to take down the content in the aforesaid matter.
Conclusion
The jurisprudence underlying safe harbor provision and due diligence concerning intermediaries in India is very profound and manifests adaptation towards different measures as and when required. The Indian government continues to pass several regulations under the IT Act, to further the developments concerning the aforementioned subject. Further, Indian judiciary has been instrumental in interpreting the statutory provisions underlying therein to fulfill the legislative loophole with respect to section 79 of IT act. On one hand it acts as a safeguard for intermediaries to save them from vicarious liabilities and on the other hand, due diligence standards are becoming intricate and convoluted to be complied with. The underlying jurisprudence due to the ongoing tussle continues to evolve.
