The Article ‘Intermediary Liability – Strengthening/Weakening of the internet in India’ by Manu Shrivastava is thorough research on the benefits and detriments of the internet and the manner in which technological advancement is somehow creating adverse effects on the society. A plethora of situations is available which prove that social media is nowadays used for the completion of… Read More »

The Article ‘Intermediary Liability – Strengthening/Weakening of the internet in India’ by Manu Shrivastava is thorough research on the benefits and detriments of the internet and the manner in which technological advancement is somehow creating adverse effects on the society. A plethora of situations is available which prove that social media is nowadays used for the completion of ill-will towards other nations. Many a time the dignity of womens’ are also affected through the posts on social media.

Intermediary Liability Guidelines 2021 came as a boon to regulate the social media intermediaries. The Author also elucidated the impact of the above-mentioned guidelines on the internet’s full potential. The Author emphasized the key realities which must not be overlooked by the regulators. The author opined that the guidelines failed to achieve their objective due to a lack of creativity and wish to have sensitive rules to deal with this burning issue.

Introduction: Strengthening/Weakening of the internet in India

India is considered to be the world’s “biggest open Internet society,” and many social media companies go to the country to do business. However, there are an increasing number of cases where social media is being used to violate women’s dignity, settle ‘out-of-office’ corporate rivalries, incite malicious or anti-national ‘fake news,’ incite communal riots through religious sentiments, mass distribution of obscene content, financial frauds, and recruitment of youth by terrorist organizations.

The lack of a comprehensive complaint and resolution mechanism that is available to regular social/digital media users exacerbates the abuse of social media. As a result, it was decided to implement Intermediary Guidelines as a vehicle for consumer complaints and redressal powers.

Governments or private litigants can hold digital intermediaries, such as Internet Service Providers, Social media platforms, and websites, liable for unlawful or harmful content created by users of those services, which is known as intermediary liability. Copyright infringements, digital piracy, trademark disputes, network management, spamming and phishing, defamation, hate speech, child pornography, “illegal content,” offensive but legal content, censorship, cybercrime, broadcasting and telecommunications laws and regulations, and privacy protection are all examples of situations where this can happen.

Given the important roles, intermediaries play in society, especially with respect to the plethora of rights at stake, it’s critical to understand their legal responsibilities. According to the Association for Progressive Communications (APC), internet intermediary liability refers to intermediaries’ liability for illegal or harmful activities carried out by users through their services, where they have an obligation to prevent the occurrence of unlawful or harmful activity by users of their services – failing to do so could result in legal consequences such as compulsion orders or criminal sanctions.

Intermediary Liability Guidelines, 2021

In 2021, the Indian Government introduced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, also considered as the ‘intermediary liability guidelines 2021’, under the Parent Act, the Information Technology Act 2000. One of the prime aims of the Intermediary Liability Guidelines 2021 is to regulate social media intermediaries, such as e-communicating services, and media-related intermediaries such as digital media houses, thereby reframing what intermediary liability protection means in the Indian context. This report uses the Internet Impact Assessment Toolkit (IIAT) to assess how the Guidelines may affect the global Internet by impacting what the Internet needs to achieve as an open, secure and trustworthy, globally connected.

Effect of the guidelines

Protections against intermediary liability (also known as “safe harbor“) have been critical to the internet’s growth and innovation as an open and secure medium of communication and trade. These rules will harm end-to-end encryption, significantly increase surveillance, promote automated filtering, and result in a fragmentation of the internet that will harm users while failing to empower Indians by expanding the “due diligence” obligations that intermediaries will be required to follow in order to qualify for safe harbor.

While many of the most onerous restrictions only apply to “major social media intermediaries,” their ripple consequences will be disastrous to freedom of expression, privacy, and security.

The final rules improve on the 2011 original law and the 2018 draught by limiting the scope of some provisions to significant social media intermediaries, requiring user and public transparency, due process checks and balances around traceability requests, limiting the automated filtering provision, and explicitly acknowledging the “good samaritan” principle for voluntary platform guidelines enforcement. However, in their entirety, they set a dangerous precedent for internet regulation and require immediate correction.

What impact will India’s Intermediary Liability Guidelines 2021 have on the internet’s full potential?

  • The Intermediary Liability Guidelines’ Rule 3(1)(d), which requires content to be removed from social media intermediaries, obstructs the Internet’s free reachability. The ambiguous definition of what content may be susceptible to removal makes it difficult for users and social media intermediaries to predict what will be removed.
  • The requirement for traceability for end-to-end encrypted messaging services in Rule 4(2) of the Guidelines should be removed. End-to-end encryption is incompatible with traceability, which has implications for data confidentiality and applications, as well as putting users’ privacy at risk.
  • The Guidelines’ Rule 4(7), which requires users to voluntarily identify themselves to social media intermediaries, inhibits easy internet access and should be removed.
  • Users cannot take their case to a more legitimate entity and ask for content to be reinstated under Rule 4(8). In reality, if courts interfere under Rule 4(8), the framework of Section 79 and the Intermediary Guidelines, which are based on considering intermediaries as neutral even when they voluntarily remove content, would be undermined.

Inferences

The analysis of the Indian Intermediary Liability Guidelines 2021 uncovered a number of ways in which the rules obstruct what the Internet requires to function. It wreaks havoc on the enablers of an open, globally-connected, secure, and trustworthy internet by jeopardizing online convenience, reachability, data confidentiality, reliability, accountability, and privacy. The following conclusions should assist the Indian government in revising its Intermediary Liability Guidelines and rethinking rules to reduce Internet harm.

The issue that the government attempted to solve with the ‘Intermediary Guidelines’ is a real one. At a time when we are increasingly living our lives online, large social media firms wield uncontrolled power over what consumers see online. This problem will not be solved unless regulators acknowledge two key realities:

  1. Current platform moderation procedures lack transparency, accountability, and legal certainty, and disproportionately affect marginalized communities; and
  2. Intermediary immunity is still important for incentivizing intermediaries to moderate content and protect users from horizontal censorship.

Conclusion

The Intermediary Guidelines exhibit a distinct lack of creativity when it comes to regulating internet platforms by depending primarily on intermediary immunity structures. As a result, the new Guidelines not only fail to provide users with effective remedies to remove or keep online content up to date, but they also maintain the status quo in which online platforms are free to exercise arbitrary and dominating power over Indian citizens, with the only meaningful regulatory intervention coming in the form of government content blocking when platforms fail to follow the government’s lead.

The Rules are currently being scrutinized, and various organizations are objecting to them since they are anti-democratic and take away digital rights. The Rules, while strict, will play a significant part in the evolution of social media control mechanisms in the coming days, as will the enforcement action was taken against violations of IT Rules by 2021, which will decide the amount of social media misuse in India in the future.


References

[1] Lucy Rana and Priya Adlakha, Analysis Of The Information Technology (Intermediary Guidelines And Digital Media Ethics Code) Rules, 2021, Available Here

[2] Intermediary Liability, Available Here

[3] Internet Impact Brief: 2021 Indian Intermediary Guidelines and the Internet Experience in India, Available Here


Updated On 2022-06-07T15:41:18+05:30
Manu Shrivastava

Manu Shrivastava

Institute of Law, Nirma University

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