The current Indian law and loophole on user-generated content

The government of India and a Delhi High Court judge are taking a polarizing stand on the issue of pre-screening content being uploaded on websites like Facebook, Twitter, Google+ and being indexed by search engines like Google, Bing and Yahoo. We have had the Telecomm Minister, Kapil Sibal, making demands like pre-screen content being uploaded and the High Court judge threatening China-like ban on websites like Facebook and Google. While the courts will hear the matter in the coming months, Shashi Tharoor, former UN Under Secretary General and currently a Member of Parliament doesn't agree with the High Court's direction. The complaint against the Internet companies is under the following sections of the Indian Penal Code:

• 292 (sale of obscene books etc)
• 293 (sale of obscene objects to young person etc)
• 120-B (criminal conspiracy)

One of India's popular cable news network CNN-IBN spoke to a lawyer who deals within the IT domain. In a question posed to him, he categorically states that companies like Facebook, Twitter, Google and Microsoft are not liable for content indexed by their search engines or uploaded to their websites:

4. According to Indian laws what are the responsibilities and liabilities of intermediaries, such as social networking services, on content posted by users?

Sajan Poovayya: Indian law clearly provides threshold protection and safe harbours to Internet intermediaries. Search engines, web hosting service providers, content sharing service providers etc., who clearly fall within the definition of an Internet intermediary under the Information Technology Act, do not have the responsibility to proactively monitor third party content available on the Internet. A conjoint reading of Section 79 of the IT Act, as amended in 2009, and the Information Technology (Intermediaries Guidelines) Rules, 2011, clearly denotes that an Internet intermediary is not obligated to undertake a pre-screening exercise or proactively monitor third party user generated content, available on its platform.

Search engines merely index information available on the net. In a manner of speaking, a search engine's findings are only reflective of what is available on the net and the law clearly does not impose any liability on a search engine, for the availability of illegal third party content on the net. Even in the case of web hosting services, the law does not impose upon the service provider, the obligation of proactively monitoring third party user generated content available on its platform. There is a threshold protection from liability afforded to such intermediaries, under Section 79. Such protection is not unusual to India and is provided by every mature legal jurisdiction in the world. It is only upon being notified of illegal content being available on its platform, the service provider is expected to review such content and take such content down, if found to be in violation of the laws.

Expecting a service provider to proactively monitor content or pre-screen content, is contrary to the law. Section 79 is clear that the protections and safeguards afforded therein, will be available to a service provider, if and only if the service provider does not monitor and choose the third party user generated content, that will be uploaded. In other words, if you begin to screen and choose content that would be uploaded on your platform, you cease to enjoy the protection from liability afforded under Section 79.

Earlier today, the Wall Street Journal took note of the same by-laws in their article titled Is India Ignoring its own Internet Protections? but pointed out something that I see as a loophole in the IT act:

There are several caveats, of course – the company can’t initiate or solicit the harmful post and can’t coordinate with the offender. Under the rules that India put into place last April to implement the act, companies must remove material that is “grossly harmful, harassing, blasphemous, defamatory” as well as anything “ethnically objectionable, disparaging” or “otherwise unlawful in any manner.”

Whether the Delhi Court, now backed by the Indian government, uses the above reasoning to hold Facebook, Twitter, Google and others responsible will be known soon. Unfortunately, the verbiage used in the law is highly subjective; what may be blasphemous and disparaging to my neighbor might not be to me.