Bar & Bench: Can Abhishek Manu Singhvi file a case of defamation against the social media websites for posting the contents of the CD on their websites?
Apar Gupta: Yes, he can certainly do so for secondary liability, however the primary liability will be affixed against the actual users. Social media websites are only a platform. The case would be on firm legal footing if he gave notice to the social media websites as to the precise URL which contained the defamatory contents and they failed to act within 36 hours to take it down as per the Information Technology (Intermediaries Guidelines) Rules, 2011. I would also anticipate that if such a case was filed, social media websites would plead innocent dissemination as a defense.
Pranesh Prakash: Again, I must clarify that social media websites have not posted the contents of the CD on their websites. Users of social media websites have done so.
Should Mr Singhvi be able to? The answer, I believe, should depend on whether the social media platforms were informed about the conduct of unlawful activity on their platforms and still chose not to remove it. The determination of unlawful activity should ideally be from a court. This, I believe is the correct interpretation of Section 79(3) of the IT Act, which deals with intermediary liability.
Unfortunately, the Information Technology (Intermediary Guidelines) Rules don’t require all that. The rules seem to construe all takedown requests as constituting ‘actual knowledge’ of unlawful activity. (This was freely abused by a researcher working with CIS last year by getting perfectly legal material removed.)
Bar & Bench: Justice Katju has pressed for regulation of social media. Do you think the social media should be regulated to some extent? If yes, do we have the technology to do it?
Apar Gupta: I disagree with Justice Katju inasmuch he calls for more legislation and laws to curb social media websites. Respectfully, his understanding of Urdu poetry does not extend to how the Internet works. He has previously supported the idea of pre-screening of content before it is posted online. However, I do support his idea that we need more consultation to devise legal regulation for the Internet.
Pranesh Prakash: Social media should be regulated by the same penal laws that we have for other media, and they already are. That which is unlawful offline is also unlawful online. The procedure will have to change depending on the medium. But not whether some act is unlawful or not. So, the fact is, social media already is regulated by existing laws on speech.
Do we have technology to block YouTube and block Twitter? Yes. Should they be deployed? Not unless we wish to stop being a democracy and emulate Iran and China.
Bar & Bench: Do you think the IT Act needs to have specific provisions in the context of social media and in that regard does the Act need to be amended at the earliest?
Apar Gupta: We need to amend the Act to have more extensive safe harbours in wake of the MySpace judgment. Specifically moving beyond copyright, we need to make it harder for Plaintiffs to drag internet companies which rely on user generated data to court. A leave to sue provision, where a Plaintiff has to show actual fault on part of the intermediary is a must. Going with this even the litigation enabling Information Technology (Intermediaries Guidelines), 2011 need to go. Laws should not view social media from the perspective that it is inherently dangerous. Let us keep the debate balanced.
Pranesh Prakash: No. No intelligent differentiation can be drawn between content I upload on Twitter and content I upload on a micro blog hosted on my own servers. In popular parlance, the former is referred to as social media, while the latter is not. The former is user-generated content, while the latter is not. If I commit the same unlawful act by uploading content to both Twitter’s server and to my own, there is no reason why they should be treated differently. There is no need for ‘social media’ specific regulation.
Bar & Bench: Are the people viewing/publishing the contents of CD on various social networking websites liable?
Apar Gupta: As per press reports the clip contains pornographic contents. The law treats pornography as an aggravated form of the offence of obscenity. Hence, most directly Sec 292 of the Indian Penal Code and Sec.67 and 67A of the Information Technology Act, 2000 will apply to people who “publish” the contents. This would include people who upload the contents and even share the links on twitter since it would amount to distribution.
However, people who view the contents won’t be liable. The Bombay High Court has already held in Vinay Kumar v State of Maharashtra that, “Simpliciter viewing of an obscene object is not an offence under clause (a). It becomes an offence only when someone has in possession such object for the purposes of sale, hire, distribution, publicly exhibiting or putting into circulation. Thus, even assuming that there was a cassette of obscene film or that it was in the computer and was on the screen at the time the raiding party reached the bungalow, in my opinion, the petitioners cannot be charged under Section 292 of IPC.”
Pranesh Prakash: I am not aware of any court making a determination of whether the contents of the CD is obscene or defamatory. If it is, then publishing it online where others can view it is an offence.
Viewing defamatory speech is not an offence. Viewing obscene material offline is not an offence. Viewing obscene material electronically might be an offence depending on how broadly “causes to be transmitted” is construed in Section 67 of the IT Act. For further clarification: Under the scheme of things in India, videos themselves are not legal or illegal, but the act of doing certain things (selling, publishing, transmitting, etc.) is illegal. Keeping that in mind, the video is:
a. Not illegal under Section 66E, which deals with invasion of privacy by capture and transmission of voyeuristic clips.
b. Difficult to say under Section 67, which deals with obscenity. If it is obscene, ie, “lascivious, appeals to the prurient interest”, etc, then it might well fall under Sections 292, 293, and 294 of the Indian Penal Code (IPC) as well.
c. Not illegal under Section 67A, which deals with sexually explicit videos, since the sexual acts in this video / these videos is implicit, and not explicit.
Bar & Bench: Is the self-regulation of social media enough?
Apar Gupta: Obviously not. We need a better post-notification take down system, which makes the interaction on the legality as well the liability of it flow directly between the effected parties, i.e. the author of the content or the person posting it and the person aggrieved by it.
Pranesh Prakash: No. A speedy notice-and-takedown mechanism should be legislated.
Bar & Bench: Section 79 of the Intermediaries Rules mandates the intermediaries to take down the defamatory content within 36 hours of receiving a complaint. The intermediaries did not follow this and the content was widely circulated on the internet. Can the intermediaries be sued for this?
Apar Gupta: They will only take down the content once they receive actual knowledge. As per the Information Technology (Intermediaries Guidelines) the 36 hours is counted from the time from they receive a digitally signed email with the complaint or they receive a regular mail. I do not know whether they have complied or not complied with any such notice, or whether such a notice was ever sent to them. On the contrary there are press reports that such clips were taken down repeatedly by social media websites.
Pranesh Prakash: The Rules under Section 79(2) do so. Those rules have been challenged in a High Court, and an MP has raised a motion in the Rajya Sabha calling for the Rules to be annulled by Parliament.
I have not read any reports that suggest that Mr. Singhvi sent any complaints under the Intermediary Guidelines Rules, which were subsequently ignored, and hence, I am not clear how.
Bar & Bench: Lastly, MP P Rajeev has moved a motion to annul the Information Technology (Intermediaries Guideline) 2011. Your thoughts.
Apar Gupta: It’s a laudable move. I think this shows our parliamentary process in the best light. The Information Technology (Intermediaries Guidelines), 2011 are serious threats to our online freedoms and are so shoddily drafted that they need to be annulled.
Pranesh Prakash: I support his motion, and we have a page up on our website.
This article has been republished from BarandBench.com. Firstpost.com regularly features content from Bar & Bench.