Zero tolerance on inaction by intermediaries regarding content harmful to children

Delhi High Court shoots down YouTube’s ‘mere passive observer’ stand, write Pravin Anand, Vaishali Mittal and Siddhant Chamola of Anand and Anand

For some time, the Indian executive and judiciary had taken a view that the intermediary space had to be more strictly regulated to tackle an increasing number of counterfeit products and fake content online.

However, the actual letter of the law, i.e., the Information Technology Act, 2000, and the Intermediary Guidelines, 2011, prescribed a rather low threshold for intermediaries to escape liability for infringing or unlawful content on its platform (i.e. availing safe harbour).

The earlier regime required an intermediary – which had no part to play in the creation of the content, or selection of the recipients of the content – to publish on its website or mobile application a policy that forbade users from uploading any content which inter alia amounted to infringement of third-party IP rights or was harmful to children (among a host of other criteria).

Further, only if an intermediary had actual knowledge of unlawful content on its platform was it obligated to deactivate or “take down” that content. A decision in Shreya Singhal v Union of India (2015) saw India’s apex court hold that an intermediary could gain “actual knowledge” only when it was served with a court order that recognised that the content was unlawful.

The government revamped the regime and introduced its Intermediary Guidelines 2021 (Information Technology [Intermediary Guidelines and Digital Media Ethics Code] Rules 2021). However, the threshold for qualifying for safe harbour remained the same.

It was in October 2022 that India made subtle but seminal tweaks to the intermediary liability law. This was in the form of the two following changes in the due diligence obligation of intermediaries to qualify for safe harbour. With the Indian government having done its part, all eyes were on the Indian judiciary to see how the new rules are enforced.

The Aaradhya Bachchan case

The new rules were put to a preliminary test in a recent order of Delhi High Court in Aaradhya Bachchan v Bollywood Time & Ors. Briefly put, the plaintiff is the 11-year-old daughter and granddaughter of one of the most popular and loved actors in the Indian movie industry. As a member of the famous Bachchan family, she is often chased by the paparazzi.

Recently, things took a turn for the worse, and at least nine channels on YouTube posted fake videos claiming that she was in extremely poor health, with some videos even claiming that she was no more. These videos contained photographs of the child along with her family, with many images being morphed showing her surrounded by wreaths, and morphed images showing the crestfallen family members.

Although take-down notices were filed with YouTube, the videos weren’t delisted as YouTube claimed that it wasn’t able to adjudicate whether the videos were defamatory.

Consequently, a lawsuit was filed against these channels and Google (which runs YouTube) claiming violation of personality rights, defamation, unlawful profiteering through misuse of the Bachchan family name and other relief. The main grievance was against these channels. The grievance against YouTube was not that it ought to have censored the content before it was uploaded, but that it ought to have taken it down once notified through a complaint as per its policy.

The court didn’t pull its punches when it came to expressing its anger at the morbid perversity of the channels on YouTube, who seek to profit from spreading false news about the physical or mental well-being of children. It held that “no technicalities” could come in the way of the court ensuring that justice is done for such children.

The court inquired from Google about its failure to take down the unlawful videos, despite a complaint made by the plaintiff. Google claimed that it had a zero-tolerance policy on child pornography, but for other allegations its mechanism didn’t permit it to take pre-emptive steps. The court shot down this argument as “plainly unacceptable”.

It noted the new amendments to the above-mentioned intermediary liability regime and acknowledged that intermediaries had a heightened obligation to ensure that infringing content, or that which was offensive or harmful to children (among other criteria) was taken down from its platform.

It also pointed to a rather progressive provision, i.e. rule 4 (4) of the Intermediary Guidelines 2021, which mandates “significant social media intermediaries” to use automated tools and other technological measures to pre-screen and take down any content that is identical to content that was previously found to be unlawful. The court held that YouTube ought to comply with this obligation.

These arguments and observations were given on day one of the lawsuit, without the benefit of full pleadings by the parties. Therefore, the court has only expressed a prima facie opinion in the applicability of the new intermediary rules to YouTube. These aspects will be considered in depth on the next hearing.

For the time being, the court has restrained the nine channels from creating or posting any content regarding the health of the young girl, and has ordered YouTube to disable all the identified fake videos and has obligated it to immediately take down any other fake videos regarding the health of the young girl, as and when it is notified.

The new intermediary regime, and the judiciary’s strong approach in enforcing it in the manner intended, is a very encouraging move, and this will help make the internet a much safer and more accountable space.

However, it also throws open practical problems for intermediaries. What are the measures that they must take to ensure neutrality (a hands-off approach), and yet pre-screen and delist content that is violative of its policies? Will these policies have different standards to meet under different legal regimes? Is the broad language of the Information Technology Act, 2000, sufficient to tackle changes in technology which are taking place on a dizzying scale 23 years after its enactment? On the policy front, India is expecting a complete overhaul of its IT laws, through the ushering in of the Digital India act, which is expected to be tabled in parliament in the next few months. The industry, brand owners, individuals and intermediaries, are all tuned in to see how things play out.