Internet Intermediaries and Online Harms: Regulatory Responses

DGN Policy Brief 07 December 2020 Internet Intermediaries and Online Harms: Regulatory Responses in Indiai Faiza Rahman and Rishab Bailey Ÿ There is a lack of considered, holistic and evidence-based policy making in the context of designing solutions to address online harms. Ÿ The intermediary liability framework under IT Act should be revisited (or a new law should be enacted), to ensure that calibrated obligations can be imposed on relevant classes of intermediaries, in a risk-based and proportionate manner. Introduction 8. Emerging harms Social media, platforms targeted at (fake news, online children, etc. Ÿ This paper reviews attempts to regulate addiction, etc.) intermediaries in India, with a view to answer three questions: - What are the harms that are driving What harms are being regulated and how? calls for regulation? - What entities are sought to be regulated? Our analysis of the regulatory responses to - What are the obligations imposed on the above harms shows that policy responses, intermediaries? as well as court decisions have largely been Ÿ We carry out a detailed analysis of new and disaggregated. draft legislations, policy documents, court cases, and news reports to identify 7 broad There have been attempts at setting out legal categories of illegal/harmful online activity frameworks targeting certain types of online platforms, though few have been converted that have driven calls for regulation of ii intermediaries in India. The paper also into statute. While a number of government examines emerging harms that are drawing committees have examined specific harms, regulatory attention. The table below lists these rarely discuss the intermediary liability these harms, and identifies the framework in any detail but merely seek to intermediaries who are seen as propagating impose greater obligations on different types or enabling such harms. of intermediaries. S. Harm Intermediary Obligations have typically been imposed No. through executive writ or through court iii 1. Hateful, offensive & Social media (Twitter, Facebook), decisions. The nature of these obligations dangerous content Communication apps (Whatsapp) varies based on the type of harm at hand.iv 2. Obscene content Social media (Facebook, TikTok), That said, the preferred method of dealing Pornographic websites and with online harms is to block access to classifieds, Communication apps content/services. The reliance on blocking is (Whatsapp, Sharechat) problematic, not least due to the often 3. Defamatory content Social media (Facebook, TikTok), excessive or arbitrary nature of such Pornographic websites and interventions, the absence of transparency classifieds, Communication apps (Whatsapp, Sharechat) around such measures, and due to the understandable inability of government and 4. Seditious and Social media (Facebook, Twitter) and court processes to cope with the quantity of terrorism related communication apps (Telegram, content Whatsapp) illegal content. One of the reasons for this could be that the statutory framework under 5. Content harming Communication apps (Whatsapp), democratic Social media (Twitter, Facebook) the IT Act does not provide an adequate range institutions of obligations that can be imposed on intermediaries.v 6. IP infringements E-commerce platforms (Amazon, Darvey's, Kaunsa.com), Classifieds (Olx, etc.) Who is being regulated? 7. Sale/advertisement Search engines (Google, Yahoo) and of regulated goods intermediaries aiding the Section 2(w) of the IT Act contains an and services sale/advertising of regulated goods or extremely broad definition of the term services (Dunzo, classifieds services, “intermediary”.vi All participants in the online etc.) ecosystem, across the layers of the Internet, obligations, which may not always be who transmit/carry or in any way provide a consistent or proportionate. medium of access to and distribution of third party content, are included within its ambit. Ÿ Any legal framework to address online However, intermediaries can be of many harms ought to incorporate a calibrated different types,vii each performing a different approach to casting obligations on role in the digital ecosystem. This functional intermediaries.xv differentiation is not appropriately recognised in the IT Act.viii Ÿ Despite the Supreme Court clarifying that an intermediary can only be required to The issue of classification of intermediaries is take down content upon receiving a court critical as it makes little sense to impose order or directions from a government similar obligations on a range of entities who agency, courts have adopted different provide different functionalities. A risk-based positions in some contexts, such as when approach is more proportionate than adopting dealing with child pornography and rape a one-size fits all policy. This is significant related content.xvi Further, such measures given that regulation of intermediaries can are increasingly being suggested in other affect fundamental rights such as that of contexts such as in the case of intellectual speech and privacy, as well as vital interests property violations. This could point to a such as competition and innovation in the 'slippery slope' problem.xvii digital ecosystem. Ÿ Courts often resort to broad reading of the Globally, while online platforms have typically Section 79 framework or utilise their been subject to less onerous regulation than general powers, including that of contempt, intermediaries who provide access to the to impose new substantive obligations. Internet, in recent years, various jurisdictions Regulatory interventions by the government have increasingly sought to regulate this have been episodic and frequently lacked space. Regulatory proposals usually target transparency. This leads to (a) an platforms based on the specific risks they arbitrariness in application of obligations, pose to the ecosystem.ix (b) imposition of new substantive obligations not contemplated by statute. An overview of cases shows that network and Such attempts may not always strike the transport layer intermediaries are rarely best balance between the various interests involved in content dispute litigation.x Courts in the digital ecosystem. have largely avoided any discussion on the need to classify intermediaries or impose Ÿ The lack of transparency and consistency in horizontal obligations, with the exceptions of application of terms of service by platforms obligations cast on social has been a significant cause for concern. media/communication platforms and search The Section 79 framework needs revision engines, in the context of fake news and to clarify the scope of self-regulatory content that promotes pre-natal sex processes to be adopted by determination respectively.xi intermediaries.xviii The law must impose clear requirements to ensure transparency The government has broadly focused on the and accountability of platforms towards need to regulate 3 'classes' of intermediaries - their users.xix social media platforms,xii e-commerce and classifieds platforms,xiii and communication Ÿ To sum up, the paper points to the need to: platforms.xiv However, no significant legal - impose narrowly tailored obligations on changes have been seen, with the exception intermediaries based on their functions of consumer protection rules being and the risk they pose. promulgated pertaining to e-Commerce - clarify the scope of obligations to be platforms. imposed on platforms, most notably that of ex-ante monitoring/filtering of content, Conclusion the manner of conducting take-downs in different contexts including norms for Ÿ The IT Act framework lacks clarity on coordination with state agencies. whether different obligations can be - Clarify the nature and scope of self- imposed on different classes of regulatory frameworks. interemediaries, as well as the nature and scope of such obligations. Therefore one has seen the creative interpretation of statute resulting in a patchwork of Notes i) This policy brief is based on a paper by Varun Sen Bahl, Faiza Rahman and Rishab Bailey titled “Internet Intermediaries and Online Harms: Regulatory Responses in India”, March 2020, Data Governance Network Working Paper 06, available at https://datagovernance.org/report/internet- intermediaries-and-online-harms-regulatory-responses-in-india ii) Legislative changes have often taken the form of amendments to existing laws, to explicitly bring online platforms within their ambit. For instance, platforms selling pets now must now seek registration as "pet shops", ensure appropriate registration processes for third party sellers, etc. iii) For instance, the government has issued directions to some communication platforms in the context of restricting the distribution of hate speech. Courts have generally refrained from imposing general obligations. Significant duties have been imposed in the context of harms seen as egregious, such as (i) advertisement of pre-natal sex determination kits/services on search engines, (ii) child pornography and rape related content on pornographic websites and social media platforms and (iii) intellectual property infringements on e-commerce platforms. iv) These include, for instance, the imposition of automated filtering mechanisms, identifying users who post illegal content (or in some cases carrying out surveillance on these individuals), appointment of civil society and other independent entities to report on objectionable material, etc. Often, courts have focussed on the need for better liaison between executive agencies and intermediaries. In

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