Shielding the Messengers: Internet on Trial in India

This post is part of our ‘Shielding the Messengers’ series, which examines issues related to intermediary liability protections, both in the U.S. and globally. Without these protections, the Internet as we know it today–a platform where diverse content and free expression thrive–would simply not exist.

Facebook, Google, and seven other companies are standing trial in India on criminal charges that they didn’t censor material created by their users and are therefore liable for that content.

At the heart of this case are critical questions: Will the Indian laws that were designed to protect the companies that host user-generated content on the Internet be respected by the courts and government? If not, how can an Internet rich in diverse content and free expression survive in India? How will home-grown innovation in new kinds of social media and interactive services thrive?

In short, not only are Google and Facebook on trial in India, the Internet – and the laws that govern it – are as well.

Background: Internet Intermediaries Under Indian Law

To understand the current case, it’s necessary to look back to 2000, when India passed its first Internet-era legislation, the Information Technology Act, creating broad liability for intermediaries that host user content.

In 2008, the CEO of Bazee.com (now eBay India) was arrested because a video posted to the service by a random user was sexually explicit and allegedly in violation of India’s expression laws. The high-profile case raised the specter that fear of liability for content they did not create or actively distribute would prevent blog platforms, social networks, and other such “intermediaries” from being developed in India or moving and investing there. The case inspired the creation of a safe harbor regime that was loosely modeled after the EU E-Commerce Directive.

On its face, the new safe harbor regime written into Section 79 of the Information Technology Act of 2008 allows a wide range of intermediaries to avoid liability for content created by others. These protections for intermediaries have been largely limited by a set of implementing rules that the Indian government released in 2011. But some protections remain in place. For example, it’s crystal clear that intermediaries like blog-hosting platforms and social networks are protected from liability for hosting “prohibited content” created by their users as long as they “remove or disable access” to this content within 36 hours of acquiring actual knowledge that it is accessible via their sites or services. The rules further state that actual knowledge can be acquired through self-investigation or notification submitted by others.

The Current Prosecution: Contrary to Indian Law and Harmful to Free Expression and Innovation

This brings us back to the charges brought against Google, Facebook, and the seven other companies. The complainant, a journalist named Vinay Rai, was upset about content that allegedly mocked religious figures. Rather than using the notice-and-takedown process outlined in Section 79, Rai brought criminal charges against the online services that hosted the content.

This should be an open and shut case. None of the companies were notified they were hosting the material in question and there’s no evidence they had actual knowledge about the existence of the material. The law is clear: These intermediaries cannot be held liable for this content.

Indeed, if the complainant had truly wanted to have the problematic content removed, and if the content were truly prohibited under law, then notifying the companies using the notice-and-takedown procedures would have been a surefire way to achieve this goal. In fact, this was precisely the type of situation Section 79 was written to resolve.

But the government’s decision to authorize the prosecution, along with the summons order issued by Judge Sudesh Kumar in this case, suggests that some in the Indian government are turning a blind eye to the law of the land.

The summons, for example, doesn’t even acknowledge the protections that exist for intermediaries. It instead focuses on the lewd and lascivious nature of the material that individuals post to these platforms. Then, it makes a fantastical leap to a finding that the companies being prosecuted—intermediaries that did not create this content, had no actual knowledge of it, and are explicitly protected by law for liability for it—“are liable to be summoned for facing trial[.]”

It’s important that the court recognize the existing protections for intermediaries in Indian law and understand they aren’t byproducts of legislative accident but instead reflect a clear policy goal: the promotion of innovation and the diversity of online content. For example, users post over sixty hours of video to YouTube every minute. If the risk of liability compelled YouTube to manually examine each video before being posted online, YouTube could not operate as an open forum for user expression. The same is true of the countless forums and blogs where users post hundreds or thousands of comments every hour in India.

For platforms that host less content, filtering obligations can also pose burdens: Startups and smaller players will likely lack the resources to comply with such mandates. Imposing significant compliance costs on would-be innovators would dramatically alter the competitive market for online services – one that has flourished from Bangalore to San Francisco due to the Internet’s low barriers to entry – and reduce the availability of platforms for expression.

The existence of undesirable content in hidden corners of the Internet is the price we pay for a diversity of online content and services and for a thriving, innovative domestic Internet industry. The Indian legislature has already made a policy choice that a flourishing Internet economy is worth this cost. We ask the court to respect that decision.

While Google and Facebook have petitioned to have the case against them quashed, it is hard to predict the next steps in this already drawn out process. But one thing is clear: No less than the future of innovation and diverse online content in India – and by virtue of the global nature of the Internet, the diversity of content available to all Internet users – is at stake.