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KEY TAKEAWAYS

  • Section 79 of the Information Technology Act provides the intermediaries with protection against liability from any third-party content.
  • Safe Harbour Immunity is nothing but protection granted to the intermediaries from any unlawful content posted by the users and misuse of the platform by them.
  • However, the intermediaries are needed to take action against unlawful content and take it down within a stipulated time.
  • The purpose of Safe Harbour Immunity also extends to ensure that the Fundamental Rights of online users and consumers are not impinged upon through unreasonable restrictions on legitimate material posted by them.
  • Twitter was stripped of Safe Harbour Immunity due to its failure in complying with the IT Rules of 2021.

INTRODUCTION

The Government of India, Ministry of Electronics and Information Technology had given 3 months to the Significant Social Media Intermediaries (SSMIs) to comply with the IT Rules of 2021. The Social Media giants had to comply with the rules to avail the exemptions given by Section 79 of the Information Technology Act of 2000 which offers protection to the intermediaries.

There was a petition filed before the Delhi High Court against Twitter Inc. due to its failure to take down two derogatory tweets. In this petition, the MEITy submitted that Twitter cannot avail the protection of Safe Harbour under Section 79 of the IT Act as it failed to comply with the IT rules fully.

Keep reading to know more about Safe Harbour Immunity, the liability of the intermediaries and the need for such protection and why Twitter was stripped of the Safe Harbour Immunity.

SAFE HARBOUR IMMUNITY IN INDIA

The Information Technology Act, 2000 or IT Act is the primary law dealing with cyber-crime, electronic commerce and liability of intermediaries for misuse of the platform done by third parties. Section 79 of the IT Act provides ‘Safe Harbour Protection’ to the intermediaries for any third-party content. Conditional immunity is provided to the intermediaries under the ‘due diligence doctrine’ irrespective of the nature of the content.

However, this doesn’t mean that absolute protection is provided to the intermediaries. They still have the duty to remove any content under a ‘notice and takedown’ system which requires them to remove information that does not fulfil the condition of being lawful upon receiving actual knowledge. Failure in taking down the unlawful content would make the intermediary directly liable for its inability to remove the content which was being stored and transferred through its platform. The intermediary can take protection under Safe Harbour if it fails to take down the unlawful content within a stipulated period amounting to 36 hours, as per Rule 3(4) of the Information Technology (Intermediary Guidelines) Rules, 2011.

In the case of Shreya Singhal vs. Union of India, the Hon’ble Supreme Court held that “Intermediary upon receiving actual knowledge from a court order or on being notified by the appropriate government or its agency that unlawful acts relatable to Article 19 (2) are going to be committed then fails to expeditiously remove or disable access to such material”. This implies that the intermediary is not under the obligation to observe the regulation of the content.

The intermediary would not lose safe harbour protection if it refuses to take down unlawful content on its platform in light of a written intimation by any private party. Section 79 would ensure safe harbour protection to the intermediary when there is compliance with the conditions. This helps protects the Right to Freedom of Speech and Expression of the third parties as well as the intermediaries to deal with data that is lawful.

The Information Technology Intermediary Guidelines (Amendment) Rules of 2018 proposed by the Ministry of Electronics and Information Technology (MEITy) aim at boosting the online regulatory framework and curbing fake news on online platforms. However, they haven’t really been of much help because of the Safe Harbour Immunity under Section 79. The guidelines are aimed at taking away the conditional freedom granted to the intermediaries from any unnecessary liability and enabling them to function efficiently. The rules are aimed at widening the obligations of these intermediaries.

Rule 3(2) of the 2018 Rules enlists certain terms like ‘harmful’, ‘obscene’ and, ‘hateful’. An intermediary cannot deal with such information. It can be barred from hosting legitimate material which doesn’t relate to any of the terms mentioned in Rule 3(2) and yet is held liable due to unclear language of the provision.

As per Rule 3(5) of the guidelines, intermediaries are supposed to trace the origin of any unlawful information hosted by them as may be required by authorized government agencies. The reasoning behind such an insertion is to curb fake news and the spreading of unlawful information and bring the individuals involved in its dissemination to justice.

Even though the intention of such a provision is bona fide, it is difficult for social media platforms such as WhatsApp to detect any unlawful content due to the presence of end-to-end encryption. Hence, tracing any such information created by a third party would not only be impossible but also run the risk of being in violation of the judgement pronounced by the Supreme Court in K.S. Puttaswamy v. Union of India. In this landmark case before the Supreme Court, it was held that the right to privacy is a fundamental right under Article 21 of the Indian Constitution.

Further, Rule (9) which calls for ‘Pro-active content monitoring’ further adds to the responsibility of the intermediaries. The intermediaries are required to proactively identify and remove or disable public access to unlawful information or content. This is not a practical solution to censor online material owing to the huge volume of information stored and processed by online intermediaries and there’s a possibility of private censorship which might occur in the future, which will not only be in violation of numerous judgements but also will dilute the ‘notice and takedown’ system under Section 79.

WHY IS IT NECESSARY

It cannot be denied that there are people who misuse technology, especially social media. It might be for anything – to spread fake information, to harass someone, bully people, anything, you get the point. The intermediaries, otherwise, have to bear the brunt of the actions of their users. So, in order to protect intermediaries from the illegal and unlawful acts of others using the platform, protection is granted to them in form of Safe Harbour Security.

Such an immunity exempts intermediaries who are a host of the platform, who store and disseminate data, from any form of liability. But it won’t be applicable if they were aware of any illegal content being stored and transmitted on the platform that was not acted upon by them in a reasonable time span.

The purpose of Safe Harbour Immunity also extends to ensure that the Fundamental Rights of online users and consumers are not impinged upon through unreasonable restrictions on legitimate material posted by the users and hosted by the intermediaries.

In recent times, various other jurisdictions are introducing strict laws to bypass the mechanism and imposing excessive self-regulation duties as well as a liability upon the intermediaries and the safe harbour is gradually subsiding.

TWITTER STRIPPED OF SAFE HARBOUR IMMUNITY – WHY

Trinamool Congress MP Mahua Moitra and Journalist Swati Chaturvedi were alleged to make some derogatory tweets. These were tweets –

Mahua Moitra: “Welcome to our Susu Potty Republic! Drink Gaumutra, smear cow dung, & flush the Rule of Law down the toilet @DelhiPolice issue notice to Twitter & land up in their offices for rightly calling out @BJPs fake document s manipulated media. Go figure.”

Swati Chaturvedi: “If Bobde had been Chief Justice of the Supreme Court, Modi would have been able to appoint his favourite Gujarat IPS, official Rajesh Asthana. What a huge difference a CJI who follows the law makes”

A petition was filed against Twitter Inc. for its failure to take action against the said tweets. Twitter had told the Delhi High Court that tweets do not come under the category for which Twitter takes actions under its policies, rules and terms of service. In reply to the petition, Twitter held that as an intermediary, tweets were not something that Twitter could be an ‘arbiter’ of. The petition also sought against Twitter for its failure to appoint a Resident Grievance Officer as directed by the MEITy Rules 2021. On this, Twitter submitted that it was directory and not mandatory and further subject to ‘just exceptions’. Twitter also submitted that it had appointed a Resident Grievance Officer on May 28th, however, the said officer withdrew his candidature on June 21st before it could be finalized. It further submitted that it received and acknowledged complaints within 24 hours and disposed of the same within 15 days according to the rules.

Ministry of Electronics and Information Technology, Government of India, in its affidavit, informed the Hon’ble Delhi High Court that Safe Harbour Immunity is no longer available to Twitter as it hasn’t fully complied with the IT Rules of 2021. Section 79 of the IT Act provides Safe Harbour Immunity to the intermediaries from any third party information, data or communication hosted by it. This means social media giants like Twitter will not be held liable for any misuse of the platform by a third party unless they initiate the transmission or modify the information contained in the transmission. Twitter being a Significant Social Media Intermediary (SSMI) is obligated to comply with the Rules of 2021 to be allowed to avail exemptions from liability u/s 79 of the IT Act. Despite been given 3 months to comply with the Rules, Twitter failed in doing so. And as per Rule 7 of the 2021 rules, provision of Section 79 will not be available in case the intermediary fails to comply with the rules and will be liable for punishment under any law time being in force in respect to the offending content.

CONCLUSION

Social Media has become an inseparable part of life with billions of users. But with development of technology, has also exposed us to different threats and has also boosted cyber-crime. However, at the end of the day, the intermediaries are just content providers and not creators and should not be made to bear the brunt of the users unless they were aware of the unlawful content. The intermediaries should be provided sufficient protection but at the same time, it should be ensured that the Right to Freedom of Speech and Expression should not be infringed.


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