Introduction
The freedom of speech and expression is guaranteed under Article 19 of the ICCPR and is indispensable for the citizens of a free and democratic society. This right in the Indian context, is provided for, under Art. 19(1)(a) of the Indian Constitution. However, the freedom of speech is not absolute and can be lawfully restricted, when such restriction is necessary and in pursuance of a legitimate aim. In this article, we are going to talk about Regulation Of social media intermediaries vis-À-vis the right to free speech.
The use of social media intermediaries like Facebook and Instagram has dramatically increased the amount of online social interactions, linking billions of people, encouraging the interchange of opinions, and giving prominence to ideas that would otherwise be disregarded by traditional media.
However, the problem that accompanies is that social media can be misused to spread violent messages, comments, and hateful speech. As a result, governments of different states have taken up the responsibility of regulating these social media intermediaries. In India, such regulatory guidelines have been provided by the Information Technology Act, 2000. The legislation has undergone significant changes over the years, one of the recent development of which has been codified under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rule 2021.
What Are Internet Intermediaries?
The term “Intermediary” refers to a facilitator of information across the Internet between the creator of content and the consumer of data. They primarily relate to businesses that mediate transactions and put third parties in touch with one another through the use of the internet. They provide third parties with access to the content, products, and services on the Internet that were created by third parties, as well as host, transmit, and index that content. In addition, they provide services that are based on the Internet.
How does social media effect freedom of speech? Given the easy access and widespread availability of social media platforms teamed with their capability to disseminate information within a matter of seconds, arises the question of the liability of such intermediaries for providing a platform to publish harmful content or to act as secondary publishers of the said content. It also raises concerns regarding violations of freedom of expression and the right to privacy as a consequence of imposing liability on social media intermediaries.
Liability Of Social Media Intermediaries
Intermediary liability is essentially referred to as the liability incurred by a social media network for providing a platform for harmful content to be published. The concept of intermediary liability can be better comprehended by understanding the two different categories of intermediaries, namely active and passive intermediaries. The distinction between these two kinds of intermediaries lies in the degree of control the intermediary exercises over the content posted by its users. This distinction was first elucidated by the European Court of Human Rights in the landmark judgement Delfi AS v. Estonia.
Active Intermediaries
Intermediaries which exert a substantial degree of control over the content posted by their users are categorised as active intermediaries. In active intermediaries, the content is provided by the users, but the role of the intermediary is not merely to transmit, store or publish the material on behalf of the user- rather it plays an active role in the ‘organisation and functioning of the websites and platforms’. A website or platform involved in the proactive monitoring of the user content by means of soliciting, modifying and removing the said content performs an essentially ‘active’ function and qualifies as an active intermediary.
Owing to their proactive monitoring and filtering of content, active intermediaries become secondary publishers of the content posted on their platforms and hence, also become responsible for the harmful or inciteful nature of the content so posted. On the virtue of exercising editorial control or becoming secondary publishers of the content, the intermediaries also become liable for the illegal nature of the content posted and thus, invoke the responsibility of its nature in a way similar to the primary publisher.
Passive Intermediaries
In contrast to their active counterparts, passive intermediaries exercise no or little control over the content posted on their platforms. Passive intermediaries are “mere conduits”, which play an entirely technical and passive role of ‘merely’ providing a platform for ideas and news to be exchanged between third parties. They do not exercise any editorial control over the content posted on their platforms and are not involved in the proactive monitoring of the content.
Internet intermediaries cannot be held liable for the content not ‘selected solicited or modified’ by them; and hence, passive intermediaries cannot be held liable for the content posted on their platforms, regardless of the nature of the content.
Validity Of Intermediary Guidelines
The Ministry of Electronics and Information Technology and the Ministry of Information and Broadcasting notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 on 25th February, 2021. These rules fundamentally change the way internet is experienced in India and usher in government control rather than regulation over digital news platforms.
In India, the Information Technology Act, 2000 is the primary legislation concerning intermediary liability. Section 79 of the Act granted safe harbour protection to intermediaries for content posted by third parties on their platforms. It also provides conditional immunity to intermediaries under the ‘due diligence principle’, as a consequence of which intermediaries are required to remove any content under the ‘notice and takedown’ regime within 36 hours of receiving ‘actual knowledge’ about the unlawful or illegal nature of the content.
Further, the Supreme Court, in Shreya Singhal v. UOI held that “intermediary upon receiving actual knowledge from a court order or on being notified by the appropriate government or its agency that unlawful acts relatable to Article 19 (2) are going to be committed then fails to expeditiously remove or disable access to such material”.
The Information Technology Intermediary Guidelines (Amendment) Rules, 2018 aimed at strengthening the regulation of intermediaries to curb fake news on online platforms. These draft rules were looked down upon as they were formulated without any consultation or discussion and were not open to amendments pertaining exemptions from liability. These guidelines have diluted the spirit of Section 79 of the IT Act; thereby imposing larger obligations on intermediaries. These restrictions become manifest from the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
Scope Of Intermediary Rules
With the new intermediary guidelines entering the picture, the Government acquires significant power to regulate social media and online news. Parts of these Rules have been condemned for being an attempt to ‘curb criticism’ of the government on the internet. Further, as has been elucidated above, the rules require a social media intermediary to compulsorily take down any content that a government agency asks them to on grounds of security and integrity, decency and morality, being in violation of any law etc.
Due Diligence Obligations- ‘Notice and Takedown’ Requirement
Intermediaries also have the responsibility, upon receiving actual knowledge in the form of an order from a court or notification from an appropriate government authority, that certain information hosted by it is prohibited information, to either remove or disable access to such information within thirty-six hours of the receipt of such an order or notification. This obligation falls under the category of “due diligence.” The need for such an order is not necessary in the event that an individual complains about sexual imagery, in which case the intermediary is obligated to remove the offending information within twenty-four hours of receiving the complaint.
Furnish Information To Government Agencies
Furthermore, a government agency may request any information that intermediaries have access to or control in order to investigate, detect, or prevent cyber security incidents or offences that violate any law. Intermediaries are required to provide this information to the government agency within 72 hours of receiving an order requesting it in this regard.
Regime For Regulation Of Digital Media
The initial intention of the Information Technology Act was not to regulate digital media; nevertheless, the 2021 Rules place a variety of requirements on digital media firms who “carry on the systematic business of making information available within India. These digital media entities would essentially include publishers of news and current affairs as well as publishers of online curated content.” It’s interesting to note that even international news outlets with an online presence in India will be subject to the Code’s regulations.
A three-tiered grievance redressal structure is required to be in place as part of the 2021 Rules in order to process any complaints alleging a violation of the Code. A grievance officer is required to be chosen by the publisher themselves at the Level I complaint level.
If a grievance is not redressed by the Dispute Officer after 15 days, the grievance will immediately be escalated to Level II, which is the self-regulating body of one or more publishers or their associations. At Level III, the 2021 Rules call for the establishment of an Inter-Departmental Committee, which is responsible for listening to complaints regarding the decision of the self-regulating body as well as other complaints regarding violations of the Code.
Critical Analysis Of Intermediary Guidelines
While the intermediary guidelines have played a conspicuous role in initiating dialogue around the regulation of content on social media platforms, they are being seen as a restriction on the right to free speech and expression. Since the Rules were first implemented, a number of applications that challenge the validity of the Rules have been submitted, and these petitions are currently being considered by the high courts of Delhi, Kerala, Karnataka, and other states. Two petitions were recently submitted to the Bombay High Court with the purpose of challenging the Rules on the basis that they exceed the authority granted to them by the Information Technology Act as well as the provisions of Arts. 14, 19(1)(a), and 19(1)(g) of the Constitution of India. Another challenge challenging the constitutional legality of Part II of the Intermediary Rules, 2021 was submitted to the High Court of Kerala.
The primary argument advanced by the petitioners in the aforementioned petitions is that the provisions of the Rules are ex-facie draconian and arbitrary, in that such provisions travel beyond the ambit of the restrictions imposed by Article 19 (2) of the Constitution. In other words, the petitioners contend that the provisions of the Rules violate the Constitution. It was also argued that the Rules have a terrible chilling effect when it comes to their applicability to the internet because they bring about a regime that is manifestly unreasonable and arbitrary, which amounts to an affront to the constitutional guarantee of the right of citizens to exercise their freedom of free speech and expression.
This article is written and submitted by Chhavi Singla during her course of internship at B&B Associates LLP. Chhavi is a B.A. LLB (Hons) 4th year student at Rajiv Gandhi National University of Law.
