The recent criticism directed towards the proposed amendments to the Information Technology (Intermediaries Guidelines) Rules 2018 has, once again, put the issue of legal immunities for social media tech giants operating in this country in the spotlight. Simply put, the existing rules, drafted under Section 79 of the IT Act, offer legal immunity to intermediaries like Facebook, WhatsApp and YouTube for any content published or transmitted, on or through their platforms, by their users. With the new draft rules, GoI intends to make it tougher for them to retain the extraordinary immunity vested in them under Section 79.
One would think that this is a sensible policy, given the irresponsible behaviour demonstrated by some of these companies. Yet, public comments from various quarters can give the impression that GoI is planning to ‘kill the internet’, and that freedom of speech would not exist in India if it weren’t for these ‘evangelists of free speech’ from Silicon Valley. Nothing can be further from the truth.
Most of this criticism ignores the fact that the immunities provided are an extraordinary subsidy not provided to the traditional media, which are liable for all content published or transmitted on their print, broadcasting or digital platforms. By providing these social media companies with legal immunity, Indian law essentially shifts the cost of regulation from them to the Indian taxpayer. Because if these tech giants are not going to invest in policing content, it will be the Indian State that will have to invest resources to take down illegal content through rather expensive routes, which include mandatory judicial orders.
This absurd state of affairs has ensued because of the Supreme Court’s 2015 judgment in the ‘Shreya Singhal vs Union of India’ case, where it read Section 79 to extend immunities to intermediaries till such time the government, or citizens, approached a court and secured an order to take down content. Prior to the case, the law gave intermediaries 36 hours, after being informed of illegal content, to take down content, or run the risk of joint liability with the person posting the content.
At Harm’s Length
The fundamental principles of tort — a civil wrong that can be considered as a ground for a lawsuit — are quite simple. Anybody carrying out an act that has potential to cause harm, has the ‘duty of care’ to ensure that such harm does not take place. And if such harm occurs, the person will be responsible for the damages that may be caused.
Aprecedent can be found in the 1932 ‘Donoghue v. Stevenson’ case in Britain, where a ginger beer manufacturer was held liable when a customer fell ill after drinking a bottle that contained a snail. The court held that the manufacturer owed a duty of care to ensure that its products did not contain substances that could harm consumers, and that it would be liable for damages suffered by aconsumer.
Over the years, different courts have evolved various theories of liabilities, depending on the type of product involved. For example, after the 1984 Bhopal gas tragedy, Indian courts moved to an ‘absolute liability’ standard while dealing with cases involving dangerous or hazardous products.
How would these theories of tort law play out in the context of products being designed by companies like Facebook and WhatsApp if immunities under Section 79 did not exist? What is the standard of duty of care owed by these companies to people using their products?
The fake news industry that thrives on WhatsApp is especially worrying. In these circumstances, should it not be the burden on these social media tech giants to design products with safeguards that can prevent large-scale disorder and violence?
The reason that these Silicon Valley companies don’t feel inclined to design products better suited to India’s realities is because provisions like Section 79 provides them with immunity from any legal liability, until a court decides whether any content is required to be taken down or not.
So why does India provide these internet giants with such subsidies, when it doesn’t even extend the same immunities to its own media organisations who actually operate locally? Because India, like other countries, thought it unwise to impose expensive obligations to monitor all content on internet companies that were still young at the time these intermediary policies were being debated. It’s now time India rolled back these subsidies.
Behind the Silicon Vale
If the existing design of the products — especially, say, end-to-end encryption for groups of 256 people on WhatsApp —are too expensive from a legal liability perspective, it is up to these companies to redesign them to reduce their legal liability. It is not the job of countries, especially developing ones like India, to subsidise these Silicon Valley behemoths.
To that end, the new draft Intermediary Guidelines is a step in the right direction. But if GoI means business, it should introduce a law in Parliament enabling Indian courts to impose fines ‘that hurt’ on these companies every time they fail to contain content-sharing that leads to public disorder or enables violence.
(The writer is senior resident fellow, Vidhi Centre for Legal Policy, New Delhi)
Originally Published – https://economictimes.indiatimes.com/blogs/et-commentary/india-must-stop-providing-immunities-to-social-media-giants-it-doesnt-provide-its-own-traditional-media/