The implications to do with Facebook’s move of removing illegal content in India

By Asheeta Regidi

Facebook recently stated that it has changed the way it handles requests to remove illegal content in India. ET reports that Facebook will now remove illegal content only if it gets a legal government or court order directing it do so. It will continue to remove content that violates its Community Standards , and it is only in the case of content that does not violate its Community Standards, but violates local laws, then Facebook will not remove the content without a government or court order. This change in policy was in view of the judgment of the Supreme Court given in the landmark 2015 case of Shreya Singhal v. Union of India, known more famously as the case that quashed Section 66A of the Information Technology Act, 2000.

What Indian laws are applicable to removal of content? Section 69A of the IT Act , 2000 gives the government the power to issue directions for blocking public access of any illegal content. This section is used, for example, to block websites in India. A direction under this section can only be passed under certain special circumstances, such as a security threat or if the content can incite communal violence. Detailed procedure is prescribed for the passing of such an order under the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009.

Section 79 of the IT Act provides immunity to intermediaries (for example, websites like Facebook) for any illegal content posted by third parties. Under this section and the Information Technology ( Intermediaries Guidelines ) 2011, if an intermediary receives ‘actual knowledge’ of any illegal content posted on it, it is obligated to remove such content within 36 hours. On failing to do so, the intermediary will lose its immunity from being sued. Illegal content under this section is much broader than that under Section 69A. It can include, for example, content that is offensive, obscene or defamatory.

What did the Shreya Singhal judgement change? In the Shreya Singhal case, in addition to questioning the legality of Section 66A of the IT Act, it also questioned the validity of Section 69A and 79 of the IT Act. The court upheld the validity of Section 69A. It noted that there were adequate procedural safeguards in place, such as the requirement of a hearing of all parties involved, which includes the person putting up the content before passing the order. These will prevent any arbitrary decisions from being made.

In the case of Section 79, the court upheld its validity, but with a few changes. Formerly, the ‘actual knowledge’ received by an intermediary under this section could come from anywhere, be it the government, a court, an NGO or a person. For example, a Facebook user reporting offensive content will be taken as giving Facebook ‘actual knowledge’, imposing the obligation to remove the offending content within 36 hours. The court changed this, and interpreted ‘actual knowledge’ to be received only when the take down request is accompanied by a court order or government direction.  If on receiving a court order, the intermediary fails to remove the content within 36 hours, then it will lose the immunity granted to it under Section 79, making it open to be sued.

The purpose of this change to Section 79 is not to protect users from arbitrary removal of content, but to protect intermediaries from the liability arising from non-removal of illegal content within 36 hours. Intermediaries are under huge pressure to remove content. Facebook reports 14,971 take down requests from India alone, in the July-December 2015 period, which is the second highest number of requests in the world. Similar laws have also been passed internationally in countries like Chile, Brazil and Argentina.

Can Facebook continue to remove content based on its Community Standards even without a court order? Under Section 79, unlike under Section 69A, an intermediary is required to apply its own mind in assessing if the content is indeed illegal or not. The only thing that the Shreya Singhal judgment affects is Facebook’s immunity if it refuses or fails to remove content on the basis of a court order within 36 hours. It does not, in any way, prevent an intermediary like Facebook from removing illegal content or from applying its own mind to decide whether to remove content. Therefore, Facebook does not need a court order to be able to remove content. Its removal of content based on violation of its Community Standards, even in the absence of a court order directing it to do so, is perfectly legal.

Is a person affected by wrongful removal of content entitled to compensation? It can happen that content was removed wrongfully, or that the removal caused loss to the person who posted the content. Take for example, a painter who puts up a painting for the purpose of gaining publicity, and this is removed by Facebook because it is illegal. If the painting was removed by Facebook in pursuance of a court order or government direction, the painter can file a writ challenging this order. He will have to prove that the removal of the painting violates his fundamental right to freedom of speech and expression. If he wins, the order can be set aside and the painting can be put back online. Apart from this, he will have no other remedy and no claim to compensation.

In the case of removal of content by Facebook itself based on a violation of its Community Standards, the painter may be able to appeal to Facebook and argue his case for the legality of the content. However, as per Facebook’s terms and conditions , users have granted Facebook permission to remove any content which Facebook feels violates any of its terms and policies, including the Community Standards. While a user can sue Facebook in a US court, it is unlikely that he will receive any compensation whatsoever in view of this authorisation.

What is Facebook’s liability if it refuses to comply with a court order? A refusal to comply with orders will make Facebook liable as an intermediary in India. In the case of a government order passed under Section 69A, Facebook will be punishable with imprisonment of upto seven years and a fine. In the case of a court order or government direction to remove content under Section 79, Facebook will lose its immunity as an intermediary, and will be liable to be sued. The suit can be by anyone, including people affected by the removal or non-removal of the content.

Is there scope for a stand-off between Facebook and the Indian Government? Facebook’s Community Standards are quite extensive in their rules against illegal content. It prohibits, for example, threats, bullying, criminal activity, graphic content and hate speech. It appears that such extensive restrictions will not leave much scope for content which falls outside of the ambit of the Community Standards, and violates local laws. However, in reality the scope of such content is quite large.  For example, standards for obscene or offensive content vary from one country to another, and also one individual to another. Take for example, M.F. Hussain’s controversial ‘Bharat Mata’ painting. This may not violate Facebook’s Community Standards, but may be considered offensive in India (Note: The example of the Bharat Mata painting is only an illustration . The painting has been held to be legal in India by the Delhi High Court ). It is possible that Facebook may take a stand against a court order and refuse to comply with it, similar to Apple’s refusal to comply with the FBI’s requests. Facebook, in fact, as per its Community Standards, reserves the right to review such requests, and only if Facebook itself finds that the content is illegal under local laws, will it comply with directions. The results of a stand-off between Facebook and the Indian government will have to be seen.

The author is a lawyer with a specialisation in cyber laws and has co-authored books on the subject.