Chaitanya Ramachandran, who has blogged for us previously over here
and here,
has sent us this excellent guest post analyzing the extent of intermediary liability
in the context of defamation lawsuits. The specific backdrop to this post is first the recent litigation by Parle
against Facebook, Twitter & Google, second
the problems being faced by Mouthshut.com and third the pending appeal before the Supreme Court against the
decision of the Andhra Pradesh High Court where the Court refused to quash criminal
summons issued to Google in a defamation case filed by an asbestos firm in A.P.
Intermediary Liability and
Defamation – Finding the Right Balance between Free Speech and Reputational
Interests
By Chaitanya Ramachandran
The issue of intermediary liability for defamatory content has come
to prominence following two recent
developments. The first is a case recently instituted
in the Bombay High Court by Parle Agro against Google, Facebook and Twitter (see
here
for the full story), in which Parle has alleged that these Internet companies
should be liable as intermediaries for “promoting” defamatory content, which in
this case was a viral post alleging that Parle’s popular mango drink Frooti is
contaminated. The second is the revelation by Mouthshut.com (a popular review
website) of the large number of takedown requests and legal notices it has
received to date from companies that are unhappy with reviews of their products
(details available here).
These developments must be viewed in the context of increasing hostility
towards social media websites from various interest groups in India; corporates
are only the latest to join the ranks of political, religious, and other groups
that routinely demand that social media websites take down “offensive” content.
The Problem With Notice
and Takedown under the IT Rules
This worrying trend has been fueled in India by the Information
Technology (Intermediaries guidelines) Rules, 2011, which correspond to
s.79 of the IT Act, the main statutory provision governing intermediary
liability. The rules specify the standard of “due diligence” expected of
intermediaries, and, inter alia,
require user agreements to prohibit the uploading of defamatory content. While
this is not a particularly burdensome requirement in itself, its primary means
of enforcement – namely the notice and takedown regime under rule 3(4) – is
deeply flawed. Intermediaries who have received takedown notices must “act
within thirty six hours and where applicable, work with [the] user or owner of
such information to disable such information…”.
This provision gives any “affected person” carte blanche to issue a takedown notice to an intermediary, who in
turn has virtually no choice but to comply for fear of losing safe harbour
protection (the need for intermediaries to act swiftly has been stressed by the
AP High Court in this
judgment). Therefore, this is an
effectively unilateral notice and takedown regime that leaves the power of
“affected persons” to issue takedown notices (including frivolous or
unwarranted ones) virtually unchecked. By contrast, the new notice and takedown
regime for copyright infringement (which we previously blogged about here)
requires copyright holders to undertake to file suit within 21 days of the
take down request, failing which the intermediary may legally reinstate the
content that was taken down. By burdening
notice issuers with an obligation to file suit, this system ensures that all
claims will ultimately be evaluated by a court of law, and also, to an extent,
discourages aggrieved parties from issuing frivolous notices. The regime under
the IT Rules does not impose an equivalent obligation on notice issuers.
Unsurprisingly, Mouthshut.com has filed a petition in the Supreme
Court challenging
the IT Rules. Significantly, the bench observed during an
interim hearing that curbs on freedom of speech should be restricted to those
permitted by Article 19(2) of the Constitution. Given that the notice and
takedown regime under the IT Rules potentially permits affected persons to
exceed the scope of the established Constitutional restrictions on free speech
in a completely private process, a very strong case exists for the existing
rules to be struck down.
Intermediary Liability and
Defamation
Although the existing notice and takedown regime for defamatory
statements is flawed, this is not to say that all claims against intermediaries
for defamatory content are without substance. With respect the Bombay High
Court case, there is no doubt that a false statement relating to the purity of
Parle’s products has the potential to cause vast losses to Parle, especially as
summer is a crucial sales period for soft drinks like Frooti. The difficult question is, where should the
line be drawn between Parle’s reputational and commercial interests and
Facebook’s interest in avoiding the massive costs and impracticability of
policing its website for defamatory content?
This is not a new problem; the law of defamation has always had to
grapple both with authors who make defamatory statements and publishers who,
knowingly or unknowingly, disseminate them. However, the analogy between
Internet intermediaries and print media publishers is not perfect. A single
Internet intermediary can potentially reach a much larger number of readers
than a single print publisher; at the same time, the number of posts or
webpages hosted by intermediaries like Facebook and Google must surely be
orders of magnitude larger than the number of articles published by a print
publisher. This is probably why disgruntled groups regularly target
intermediaries. Individual authors are responsible for creating viral posts
such as the one targeting Parle; but the only practical way of controlling the
damage done by such posts is to target the intermediary, who has some power to
control the dissemination of the material.
Intermediaries may be targeted in two ways. The first is the notice and takedown situation described above, in
which the intermediary is not itself found liable for defamatory content as
long as it complies with a takedown notice under the applicable legal
framework. The advantage of a well-designed notice and takedown system is that
it does not require intermediaries to police their services, albeit at the cost
of having to comply with takedown notices. The second way in which intermediaries may be targeted is fault-based;
a situation in which intermediaries are deemed to have knowingly published
defamatory material, and are sued in their capacity as publishers. A notice and
takedown situation may evolve into a fault-based situation if the intermediary
refuses to comply with a legitimate takedown request, although this view is
contestable. For example, earlier this year, the English Court of Appeal decided that
Google would be liable as a publisher of defamatory content where it failed to
comply with a takedown notice within a “reasonable time”.
However, in the typical case of a user authoring a defamatory post
that subsequently goes viral, the petitioner’s remedy should ordinarily be
restricted to a timely takedown. Of course, the problem is that the existing
framework is unworkable, and needs to be replaced with a balanced regime that
circumscribes the power of notice issuers. Parle may be genuinely aggrieved, as
may be some of the parties that have issued notices to Mouthshut.com
(especially those that are victims of fake reviews or sabotage by their
competitors), but the solution cannot be to sue intermediaries for “promoting”
defamatory content where their role has not gone beyond hosting such content
without actual knowledge of its defamatory nature. This would only continue the
trend of chilling free speech online, and would also adversely affect Internet
companies’ incentives to innovate by providing newer and better tools for
people to communicate.
Conclusion
The law as it exists today in India does not adequately protect the
interests of Internet intermediaries in cases where their users post defamatory
content. It is essential for the law to lead the way by laying down robust
norms protecting the interests of intermediaries, because there is a worrying
amount of hostility towards social media in India today. The best way of striking
a balance between protecting the reputational interests of parties that find
themselves being defamed and protecting free speech online may be to redesign
the notice and takedown regime under the IT Act. A well-designed system would
permit genuinely aggrieved parties to require a takedown of content pending
final determination by a court of law, while simultaneously discouraging
frivolous notices by, for example, explicitly restricting the grounds to those
currently recognized under Article 19(2).
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