Over Regulating Intermediaries: Threat To Free Speech?

Editor’s Note: This article was written before the Personal Data Protection Bill was approved by the Union Cabinet with undisclosed changes to the Draft version of the Bill which this author has based their opinions on. Therefore, some opinions expressed below may no longer be applicable under the revised Bill. You can check all the articles of this series here.

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In August 2017 Justice Abhay Manohar Sapre very poignantly noted, while reading out the judgment on the Puttaswamy case that “right to privacy of any individual is essentially a natural right, which inheres in every human being till he/she last. It is indeed inseparable and inalienable from human beings.

In other words, it is born with the human being and extinguishes with the human being”.  The right to privacy is a fundamental right that is distinctly connected with human dignity by securing their inner thoughts and expressions from any form of unwanted intrusion.

Today, the internet has become a part of everyone’s lives as compared to the impact it had even a decade ago. People from all backgrounds, genders and ages have an online presence. Whether it is for business purposes or personal, most conversations and communications amongst people happen online. From buying groceries to speaking to your mother at the other end of the world, everything can be achieved with a good internet connection, a usable device and an online communication platform.

Along with this increase in communication, comes a boost in public expression. The internet has made it possible for people to express their thoughts, opinions and arguments on everything in the world – from avocados to the US elections – to the world at large. These expressions spark debates, encourage conversations and lead to discussions amongst like-minded people, helping people feel a sense of community and camaraderie.

It is clear with the widespread use of the internet across all communities, societies and sectors that the pervasiveness of the internet is worldwide, making it a vertical form of business and not horizontal anymore. The internet and social media have become a staple part and act as the foundation of human expression in today’s times.

Your Amazon reviews have the same impact as your Facebook status update i.e. they both help you communicate your personal opinions to those who you voluntarily want to convey them to. Therefore, freedom of expression is highly dependent on the freedom to express over social media. Therefore, making the internet a safe and free space is essential to uphold this fundamental right that is allowed for each human being.

The platforms mentioned above have been termed as intermediaries, which is a platform for user-generated content. They use the capabilities of the web to act as platforms where information is shared. Intermediaries are themselves not seen as publishers of content but rather serve as the place where user content is shared. The question that arises with the growth of intermediaries is the accountability that they have on the content that is shared on their platforms.

What responsibilities and protections come with hosting Indian user content and how liable are they for the content shared. The amendments to the draft IT Intermediary Guidelines, 2018 initiated a new debate on the curbing or censoring of this content equalling to the violation of the content creators freedom of speech and expression.

Excessive Delegation

The proposed draft rules have gone beyond the scope of the provisions of the parent act and erodes the safe harbour protection available to intermediaries under section 79 of the IT Act. As noted in the landmark judgement of Shreya Singhal v. Union of India, the intermediary is called upon to exercise its own judgment under Rule 3 sub-rule (4) and then disable information, when intermediaries by their very definition are only persons who offer a neutral platform through which persons may interact with each other over the internet.

Thus, it then solely depends upon the intermediaries subjective sense, to take down content, which has a chilling effect on freedom of speech and expression. The requirement for intermediaries to subjectively determine the legality of an expression should be replaced with an objective test. The objective test should be such that it does not create an obligation for the intermediary to go into the adjudication of a legal claim or into the investigation of facts and circumstances.

Lack of Procedural Safeguards

The rules are procedurally flawed as they ignore elements of principles of natural justice and lacks safeguards. Under the rules, the third party provider of information whose expression is censored is not informed or made aware about the takedown, let alone given an opportunity to be heard before or after the takedown. There is no redressal mechanism for the aggrieved user or third party uploading or providing the content, to appeal the decision of the Government agency in the courts.

Complying with Article 14 Of The Constitution

Reasoned state action must recognize that their liabilities must necessarily vary with the specific type of service that each provides. The Intermediary Guidelines fail to do so, and are consequently incompatible with Article 14. There needs to be a classification made with respect to the type of intermediaries. A singular watertight formula cannot be applied to all intermediaries. There needs to be a tactical separation between User Generated Content space and Curated Content providers. The guarantee of “equal protection of laws” requires equality of treatment of persons who are similarly situated, without discrimination inter se. It is a corollary that people differently situated cannot be treated alike.

Once the government recognises different types of intermediaries, a differential regulation needs to be established as well. Intermediaries can be classified into:

• ISPs
• Data processing and web hosting providers
• Internet search engines and portals
• Ecommerce intermediaries and online aggregators
• Social Media and Messaging Platforms/Participative Networking Platforms.

Distinct classes of intermediaries should be created and due diligence requirements be assigned as per the functions performed by each of intermediaries.

The guidelines mandate intermediaries to disable access to ‘unlawful’ content without the requisite procedural safeguards under Rule 3(8). Moreover, the guidelines leave it on intermediaries to remove the content from their platforms proactively, which could amount to censorship. The issue with proactively trying to censor content is that its effects can spill over into censorship and impact the freedom of speech, internet is supposed to enhance and enable.

Additionally, these rules have not been understood context of Section 79 of the IT Act which is an enabling provision. It needs to be clarified that these guidelines do not create new offences but instead provide the intermediaries a safe harbour to avoid taking liability for most offences.

In order to combat this gap in the regulation and the blatant violation of human rights a balanced approach needs to be taken where when intermediary platforms are used for the transmission of allegedly obscene and objectionable contents, the intermediaries/service providers should not be absolved of responsibility. And at the same time when they take down content that does not fit into the category of offensive/obscene/threatening, they should be answerable to the creator of the content and via the due process of law provide evidence and reasoning for their actions.

It is clear that a definite obligation should be cast upon the intermediaries/service providers in view of the irreparable damages caused to the victims through reckless activities that are undertaken in the cyberspace by using the service providers’ platform and make them accountable for the actions they take based on their assumptions or interpretations. Casting such an obligation seems imperative, seeing as how the aggrieved party has no legal recourse or direct contact with the said platform managers.

[The article is co-authored by Kazim Rizvi and Maanya Vaidyanathan, Policy and Engagement Manager at The Dialogue.]