Internet intermediary liability in India has been prescribed by the Information Technology Act, 2000 (IT Act 2000) that is the cyber law of India. It has seen many ups and downs and finally it faced an unjustified and undesirable onslaught from none other than the Supreme Court of India. Clearly, the Supreme Court of India erred in delivering the judgment that created more troubles for India than solutions. It is clearly counter productive in the long run and Indian government needs to act urgently in this regard if sufficient steps have not already been undertaken by it.
The present techno legal requirements of India mandate for a stronger cyber law due diligence (pdf) for various stakeholders in India rather than a weak one. But the judgment of Supreme Court came as a big blow to the cyber law due diligence regime of India. Perry4Law Organisation (P4LO) made a strong techno legal representation to the Indian government regarding revisiting the cyber law due diligence and Internet intermediary liability obligations of various stakeholders in India. P4LO was assured by Indian government that its suggestions would be duly considered while drafting new laws and amending the existing cyber law of India.
Internet intermediaries like Google, Facebook, Twitter, etc are complying with laws of different countries. Surprisingly, when it comes to India, they are not at all interested in complying with Indian laws. Unfortunately, Indian government was not properly represented before the Supreme Court during the Section 66A case and this resulted into a wrong decision. In fact, Supreme Court was misled by stating that Internet intermediaries are not required to manage online contents in other jurisdictions. As a matter of fact, European Union, US, UK, etc have further made stringent the requirements to remove inappropriate online contents hosted on Internet intermediary platforms. However, due to industrial lobbying, the cyber law due diligence and Internet intermediary liability was made ridiculously weak in India.
When EU is enforcing right to be forgotten, India is treading in an altogether wrong direction of weak cyber law that requires urgent re-enactment. In one unfortunate case, a victim’s morphed picture was posted on Facebook and police did little to get it removed. The victim could not directly approach the Facebook as Supreme Court has ridiculously read down Section 79 making it impotent. She ultimately committed suicide and this is the net consequence of a bad decision on the part of Indian Supreme Court and inaction on the part of Indian government to bring suitable provisions in the IT Act 2000. We hope such incidence would not be repeated in future and Indian government would urgently do something in this regard.
Indian government has taken some positive steps in the direction of making Internet intermediaries and foreign companies amendable to Indian laws. India has formulated the Geospatial Information Regulation Bill, 2016 to regulate all stakeholders including foreign companies. Similarly, Perry4Law Organisation (P4LO) has been suggesting for long to make companies like Google, Facebook, Twitter, etc liable for India laws including for tax laws and cyber law. Now tax liability of companies like Google has increased in India and they may further be subjected to Indian laws through future legislations. To mitigate the adverse effects of Section 66A judgment, Indian government must urgently bring suitable amendments in the IT Act 2000 as was conveyed to P4LO.
Another area that requires suitable regulation pertain to social media and their activities having an impact within Indian territories. We have no dedicated social media regulations in India as on date. In many cases, abuse of social media in India has proved fatal for the internal security, personal property and lives of Indian citizens. Section 66A judgment has further weakened the provisions that can force the social media platforms to take down objectionable contents. Victims and public spirited individuals can no longer ask directly such social media platforms to take down objectionable contents under the IT act 2000. It smacks of double standard that social media platforms and foreign companies are bound to follow laws of all other countries regarding taking down of objectionable contents but they oppose doing the same in India. The social media laws in India need clarity and codification by Indian government.
This is a time to allow class action suits and proceedings in India against social media platforms and foreign companies rather than allowing them to twist and bypass Indian laws. The least Indian government can do is not to bow before the pressure created by industrial lobbying of these foreign companies in India. Through a collective pressure tactics of media reports and indutrial representations, these foreign companies are able to get what they want. If they fail at the government level, they approach the Supreme Court and misled it in passing judgments that are against national interest and interest of Indian citizens in the long run. In one such propaganda the foreign companies and their industrial lobbying groups have once again started targeting the proposed Goods and Services Tax (GST) Act 2016. This is because the proposed GST Act has grouped the Internet intermediary platforms/websites such as Facebook, YouTube, Twitter and online reviewers in the category of “agents” and has made them liable/responsible for inappropriate contents on their websites.
As per Section 2(2) of the proposed GST Act, an “agent” means a person who carries on the business of supply or receipt of goods and/or services on behalf of another, whether disclosed or not and includes a factor, broker, commission agent, arhatia, del credere agent, intermediary or an auctioneer or any other mercantile agent, by whatever name called, and whether of the same description as hereinbefore mentioned or not. This is a good definition by design and purpose and it should be further expanded in favour of Indian revenue generation.
Some have argued that this this definition of agent and other provisions in the GST Act could contradict the safe-harbour provision of the IT Act 2000, which exempts online platforms from being responsible for third-party or user-generated content if the Internet intermediary complies with certain conditions. Firstly, this is a baseless assumption as availing of the safe harbour by an Internet intermediary depends upon compliance of provisions of the IT Act 2000 at the first place. No Internet intermediary is absolutely immuned under the IT Act 2000 or any similar law in other jurisdictions through safe harbour provisions. On the other hand, EU and other countries have recently made the provisions of safe harbour more stringent and this has made the Internet intermediaries more responsible and law abiding in these jurisdictions. Bit when it comes to India, these Internet intermediaries raise lots of hue and cry and put pressure upon Indian government to make laws and provisions that are counter productive.
Secondly, Indian government itself is in the process of reformulating the provisions that were struck down or read down by the Supreme Court in Section 66A case. When Perry4Law Organisation (P4LO) we made a legal representation to Indian government, we were assured that new provisions would be formulated very soon and our inputs would be used for the same. When Section 79 of the IT Act 2000 itself would be amended and made compatible with the Geospatial Bill, GST Act and other similar future laws, there would be no confusion or controversy left that can be agitated by these industrial lobbies. Perry4Law Organisation (P4LO) once again strongly recommend that the IT Act 2000 in general and section 79 in particular must be suitable amended by Indian government as soon as possible for smooth functioning of Indian cyberspace. The best bet is to ensure a techno legal framework that incorporates all these suggestions and conditions.