User Generated Content, as the name suggests is content uploaded by users of a website rather than the administrator(s). In all probability you have spent countless hours browsing through one of these websites. UGC based websites include everything from YouTube, Facebook, Tumblr, Instagram, etc. to Buzzfeed, ScoopWhoop and the like. Any website with an ‘upload’ or ‘submit content’ option can be considered to be a website which relies on User Generated Content. Most of these sites see heavy traffic everyday as millions of internet users upload or share information. These websites have become integrally attached to our way of life. Social media has veritably become the fifth pillar of democracy in the time of our lives. Internet as a technology offers a place where ideas, opinions, and views are exchanged unlike any other instance in human history. Social media platforms and websites play a crucial role in facilitating the ease of expression our generation enjoys. However, the current legal position in India relating to Internet Service Providers (ISPs ) is not only smothering innovation in this field, but is also jeopardizing the future of pre-existing platforms which are essential to maintain a free flow of ideas. This article highlights the issues related to liability of intermediaries (websites) for user generated or third party content. This part deals with problems of lack of a clear and practical law as regards liability of ISPs for Copyright violation.
The Joint Declaration on Freedom of Expression and the Internet by the UN Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media, the Organization of American States (OAS) Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples’ Rights (ACHPR) Special Rapporteur on Freedom of Expression and Access to Information states that freedom of expression must apply to the Internet in the same way it applies to all other media. Further, that ISPs must not be held responsible for content generated by third parties; nor may they be required to control user-generated content. They shall be held responsible only when they fail to exclude content when directed to do so in a lawful court order, issued in accordance with due process, and provided that they have the technical capacity to do so.
Accordingly, safe harbour is given to ISPs which do not actively contribute, facilitate, or remove content upon getting court orders. In India, Safe Harbour is covered by section 79 of the IT Act 2000. Under this section, a service provider is not liable for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention. It is a fairly reasonable immunity given to a service provider.
However, the problem emerges when one looks at the proviso to section 81 of the IT Act which states that nothing contained in the IT Act shall restrict any person from exercising any right conferred under the Copyright Act, 1957 or the Patents Act, 1970. The effect is that there is widespread confusion as to whether intermediaries even have a de facto safe harbour under Indian law. In Super Cassettes India Ltd. v. MySpace, the court held the service provider liable for copyright infringement. Section 51(a)(ii) of the Copyright Act was applied in this case as the plaintiff relied on the proviso to section 81 of the IT Act to contend copyright violation.
The provisions of safe harbour under the IT Act have proven to be incapable of providing immunity to an intermediary, if that intermediary can be proceeded against under the Copyright law. Sections 51 (a) (ii) and 63 of the Copyright Act exist even if a person has fulfilled all requirements under section 79 and if the intermediary can be made liable under the Copyright Act. In effect, there is no substance in saying that Indian law truly follows the safe harbour rule. The consequence of this loophole is one big problem for websites such as MySpace and YouTube, which have no other option but to face multiple lawsuits which include frivolous actions for content posted by users. This lack of an effective safe harbour provision can be traced to the existence of multiple laws governing the same area of law. The way in which the Indian parliament has left this lacuna in the safe harbour law makes it very difficult for websites based in India to operate without apprehensions of being held liable for not complying with unduly onerous requirements of checking for copyright infringement before uploading content on the internet. This spells chaos especially for websites where most content is user uploaded and where uploaded content runs into thousands of Gigabytes on an average day of business.
To make things worse, the Indian government has shown no restraint in its attempts to gain control over the content that can be posted and viewed online. It is important to take note of the Information Technology (Intermediaries Guidelines) Rules, 2011 in this regard. These rules are currently under challenge in the Supreme Court in MouthShut.com (India) Pvt. Ltd. v. UOI. The government has repeatedly used these rules to elicit user information from websites such as Yahoo, Google and Facebook. They develop the standards of due diligence under section 79 of the IT Act by requiring ISPs to upload privacy policies and user agreement which prohibit users from uploading or transmitting content which is “grossly harmful, obscene, blasphemous, defamatory, disparaging or harmful to minors and any unlawful content.” Moreover, the ISP is not supposed to “knowingly” publish any such content. Further, under Rule 3(2), it is required that the ISP initiates action within 36 hours of receiving knowledge of infringement.
The first problem that emerges is that any person on filing a complaint can get any content removed as long as he is able to satisfy the court that there was “knowledge” on the part of the ISP and as has been seen from the decision in Super Cassettes India Ltd. v. MySpace, the standards of “actual knowledge” under Indian law is arbitrary enough to send any ISP into damage control mode in case a copyright infringement complaint is made against it. The reason why these rules can be considered to be an appropriate counterpart to the infamous section 66 A of the IT Act is because of the ambiguity inherent in the terms “grossly harmful” and “obscene”. The problem is that according to these rules and the way that the law has come to be shaped through decisions in different cases, there has been unnecessary censorship of material on the internet and is in the simplest terms nothing but blatantly arbitrary state action. For instance, in 2011, Aseem Trivedi a political cartoonist started a website named cartoonsagainstcorruption.com which was taken down by Mumbai Crime Branch on a complaint by a Mumbai based lawyer that the cartoons on the website were objectionable. In another instance, Mr. Kapil Sibal in 2011 called legal representatives from top ISPs in India an ordered them to begin screening content which was objectionable, he made it clear that he expected ISPs to use personnel instead of technology in weeding out objectionable content. Mr. Kapil Sibal showed the representatives a Facebook page criticizing Congress President Sonia Gandhi and told them that such content was “unacceptable”. Such orders by the government officials to ISPs clearly advance political censorship of the internet at the cost of freedom of expression of the people.
The grounds for restriction of speech have been given in Article 19(2) of the constitution. The words used in the 2011 Rules are wide in scope and run the danger of unscrupulous interpretation. Moreover, legislation in India has seen a series of attempts of regressive interpretation, often with the motive of furthering political objectives, and often through construction of terms such as “public morality” and “obscenity” in a manner which has put individual liberty in serious jeopardy (Sec. 66A of the IT Act is a prime instance however it would not be a digression if one were to look at the erroneous refutation in the SC decision of Suresh Kumar Koushal v. Naz Foundation, of the interpretation of the term “public morality” given by the Delhi HC in its decision in Naz foundation v. NCT of Delhi). Article 19 (2) states that reasonable restrictions on the exercise of the right to free speech may be imposed in the interests of the sovereignty and integrity of India, state security, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. The words used in the IT rules 2011 include speech which is “disparaging” or “objectionable” or “grossly harmful”. The scope of these rules in restricting the kind of speech clearly exceeds that which is sanctioned by the constitutional provision.
These rules are also ultra virus the IT Act itself. The Act mandates a requirement of “due diligence” with respect to infringing material and the burden placed by the Rules on the intermediaries is of a more onerous nature than is practical for the websites to comply with. It is such because in case of ordinary due diligence, an ISP would only have to add filters and reasonably monitor content for infringement by looking at flagged content or content of suspicious nature. However, these rules require an ISP to monitor all content which might be objectionable or harmful even before such content is uploaded online. The Rules suffer two additional problems – One, the rules give a deadline of thirty six hours to remove the content, which is insufficient as most of these websites might be getting content in extremely large volumes; and two, under the present rules there is no classification of categories of service providers. This lack of classification creates confusion. Different websites might have very different type of content and if the law in this regard is not updated, then it will only continue to cause problems for people who wish to engage in serious business online.
The Indian parliament needs to resolve these issues to make the law practical at the least. The following points need to be clarified in order to make the law reasonable:
Firstly, what is the basis of the overriding proviso under section 81 of the IT Act?
And secondly, what is the standard of ‘actual knowledge’ which would attract liability on an intermediary for content uploaded by third parties? (The Viacom case could throw some light in this regard)
(Those interested in reading further on this issue may click here.)