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Leading law firms shed light on the cutting-edge practice areas that are receiving the attention of India’s top legal minds


INTERNET PLATFORM LIABILITY

Intermediary liability in India – moving goalposts

The internet has revolutionized the way we interact; however, it has also brought with it a host of problems such as hate speech, terrorist recruitment, fake news, illegal lobbying, and personal data theft. A number of these issues involve the new gatekeepers of the internet, online social media platforms, and their regulation will be at the forefront of legal development in the near future.

Vikram-Jeet-Singh-BTG-Legal
Vikram Jeet Singh

The concept that an intermediary is only a neutral pipeline for information is no longer sacrosanct. Germany’s new social media law, Netzwerkdurchsetzungsgesetz, makes platforms liable for the content they carry. In India, the Supreme Court and the government have repeatedly called for the regulation of intermediaries. The Supreme Court has in the past made intermediaries responsible for actively monitoring content to ensure that they are compliant with child and women protection laws.

There are two questions in the context of growing calls for regulation in India:

  • Are we moving from a “did-not-know” standard to a “ought-to-have-known” standard, and to what extent is this practical?
  • Do we need a new hypothesis of intermediary liability, which is limited but varies with degrees of potential severity?

Section 79 of the Information Technology Act, 2000, provides intermediaries with qualified immunity, as long as they follow the prescribed due diligence requirements and do not conspire, abet or aid an unlawful act. However, the protection lapses if an intermediary with “actual knowledge” of any content used to commit an unlawful act, or on being notified of such content, fails to remove, or disable access to it.

Prashant-Mara
Prashant Mara

The internet has revolutionized the way we interact; however, it has also brought with it a host of problems such as hate speech, terrorist recruitment, fake news, illegal lobbying, and personal data theft. A number of these issues involve the new gatekeepers of the internet, online social media platforms, and their regulation will be at the forefront of legal development in the near future.

The demand for a further dilution of intermediary defence has come from two sources in India — the copyright protection laws; and the public order and heinous offences laws.

Delhi High Court in MySpace Inc v Super Cassettes Industries Ltd seems to hold that in cases of copyright infringement, a court order is not necessary, and an intermediary must remove content upon receiving knowledge of the infringing works from the content owner. It seems that the intermediary protection provided in this case was considerably less than the “actual knowledge” requirement under section 79 of the IT Act, as read by the Supreme Court in the Shreya Singhal case.

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