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Intermediary liability and their increasing accountability

Updated: Feb 20, 2022

Written by: Surya Sriram



“Technology has the potential to increase the efficacy of decision-making and problem-solving if harnessed and implemented correctly”[1].


—By SUNEERA MADHOK (ORF)



Introduction


Internet penetration in India is increasing rapidly over the past few years. This rapid increase in access to the internet integrating and connecting people to the world at large. With people connected to the world at large, the operating of businesses is also changing. Many platforms have emerged in terms of doing e-commerce, content sharing and creating, and to the extent of even employing the internet. More people going online also brought some hardships in terms of increasing online offences and in turn brought hardships to the policymakers. Among many innovative platforms, some platforms just connect people to others may be socially or economically. These platforms can be considered as intermediaries which connect people to people, business to business, and even businesses to people. Due to many reasons, the data inflow of such intermediaries is so huge that it is difficult to track and restrict those creating hardships. But on the other side, when these intermediaries are creating huge profits out of the people, it creates some responsibility to be reasonable, and follow rules and regulations. Hence, ultimately the hardships are witnessed by the policymakers to provide proper legislation to deal with the evolving social and technological advancements. The need for discussion is arousing due to the changing government's approach towards intermediary platforms witnessed by recent events like the government altering the status of microblogging platform Twitter, where the intermediary status has been ended under the IT Act[2]. Also, the government enacted Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 in the recent past which clearly illustrate the altered approach. To analyze this changing approach, we need to consider the laws and events that causing the change.


Laws and Lacuna


In India, some laws and sub legislations regulate intermediaries. Firstly, intermediaries are defined under S.2(w) of the IT Act which includes anyone who "receives stores or transmit an electronic record", or provides any service relating to it "on behalf of other". This definition is very broad considering the present times as it can include any participant in an online network[3]. Section 79 of the IT Act provides the conditional ‘safe harbor’ “for any third-party information, data, or communication link made available or hosted by him”, which is subjected to sub-section (2) and (3). This section came into force by the virtue amendment to IT Act in 2008. The intermediary liability or obligation arouses from section 79(3)(b) of the IT Act which envisages a 'notice take down' system upon order of a court or notified by government or any agency. In the Shreya Singhal case, it was further interpreted to make such unlawful acts, notified by concerned authorities, relatable to Article 19(2) of the constitution[4]. The liability for some offences is also covered in legislations like Copyright Act, 1957, POCSO, 2012, Prevention of Insults to National Honour Act, 1971, IT Act, and even IPC. In 2011, the intermediary guidelines were issued which were to be followed for entitlement of safe harbor under section 79 of IT Act, 2008. Rule 3 of the guidelines provided for some due diligence requirements that are to be followed by the intermediaries.[5]


In a 2011 study[6], some lacunae in the laws were outlined which stated; there was no class distinction between the qualifications and due diligence requirement that need to be followed by different intermediaries. As there is a difference in the nature of service of every intermediary, it was infeasible to comply with 36 hours' takedown notice. There was procedural uncertainty as the procedures not clearly established. There was no obligation to provide a reasoned decision for acceptance or rejection of a takedown notice. Consequently, ambiguity and lacunae in existing laws created the requirement of evolved law. Finally, in 2021 new rules for intermediaries were enforced by the government.


New intermediary rules


The government has recently enforced Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. These rules addressed some lacunae as outlined in the above-mentioned study of 2011. There was a class distinction for different intermediaries as the due diligence for different intermediaries is distinguished. Some of these requirements include; identifying the "first originator" of content upon notification of authorities, appointing a grievance officer to resolve issues in 15 days, filing monthly compliance reports for complaints received and action taken, for social media platforms. For digital news platforms, self-regulatory bodies need to be set up to oversee compliance to the Code of ethics, they need to adhere to the Cable TV Networks (Regulation) Act, etc. OTT platforms need to classify the content into five age-based categories, and there should be an age verification mechanism for adult-rated content.[7] There is a mention of increased due diligence and additional due diligence for significant social media intermediaries, and grievance redressal mechanisms were also imposed. Ultimately the law requires online intermediaries to earn the privilege of 'safe harbor', under section 79 of the IT Act, by fulfilling those duties and responsibilities[8], otherwise would witness the fate of Twitter as mentioned initially.

Conclusion


Evolving technology and improving connectivity, and online intermediaries’ role in that, has become a policy concern. Some studies identified new and emerging online harms that need to be addressed with necessary legislations otherwise would lead to judicial interference in policymaking. A comparative view of laws prior to the 2021 guidelines and the present laws shows the shifting trend towards intermediary responsibility. The 2021 guidelines have partially met the lacunae in the laws as highlighted in the 2011 study, mentioned above, which again emphasizes the huge scope of improvement in the existing laws regulating the intermediaries. Some of the rules under new intermediary guidelines, not addressed in the article, has the potential to provide unrestricted authority to the government. In the end, the emphasis should be on harnessing technology in a correct way which would be possible by the virtue of effective laws.

[1]SUNEERA MADHOK, 2021, “Democracy: Debugging in process”, retrieved from (https://www.orfonline.org/expert-speak/democracy-debugging-process/#_edn23) [2]Manas Tiwari, “Twitter loses its intermediary status in India, here is what it means” (2021), retrieved from (https://www.indiatoday.in/technology/features/story/twitter-loses-its-intermediary-status-in-india-here-is-what-it-means-1815491-2021-06-16) [3] Varun Sen Bahl, Faiza Rahman and Rishab Bailey, “Internet intermediaries and online harms: Regulatory Responses in India”, Data Governance Network, NIPFP (2020). [4]MalvikaKapilaKalra, (2019), “Intermediary Liability under the Information Technology Act: Time for an Amendment?”, retrieved from (https://www.barandbench.com/columns/intermediary-liability-under-the-information-technology-act-time-for-an-amendment). [5]Saumya Kapoor, (2020), “Tracing the development of "intermediary liability" in India”, retrieved from (https://www.lexology.com/library/detail.aspx?g=be8df572-55b1-499a-85cf-8b44b59ee0bc). [6]Rishabh Dara, “Intermediary Liability in India: Chilling Effects on Free Expression on the Internet 2011”, Centre for Internet & Society (2011). [7] Ministry of Electronics and IT, ”Government notifies Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021”, retrieved from (https://pib.gov.in/PressReleseDetailm.aspx?PRID=1700749). [8]Prashant Reddy, “New IT Rules: The Great Stretching of ‘Due Diligence’ Requirements Under Section 79”, The Wire (2021), retrieved from (https://thewire.in/tech/new-it-rules-the-great-stretching-of-due-diligence-requirements-under-section-79).

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