Sub-Rule 9 of Rule 3 of the Information Technology (Intermediary Guidelines (Amendment) Rules), 2018
Is it Constitutional or Practicable?
FIFTH PLACE ARTICLE: The author, Rushika M is a third year student at St. Joseph's College of Law, Bengaluru.
The Central Government has proposed to replace the Information Technology (Intermediary Guidelines) Rules, 2011 with the Information Technology (Intermediary Guidelines (Amendment) Rules), 2018. The draft of the same has been taken up for consideration by the Hon’ble Supreme Court of India in the case of Whatsapp Inc. v. Janani Krishnamurthy [1]. Sub-rule 9 of Rule 3 of the proposed draft is particularly objectionable for being violative of Article 19 of the Constitution of India and for diluting the safe harbour provisions available to intermediaries under Section 79 of the Information Technology Act, 2000. The aforementioned sub-rule places a prior restraint on freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution. Further, the proactive role assigned to intermediaries is violative of their right to trade and occupation under Article 19(1)(g) of the Constitution. Besides this, the sub-rule is in direct contravention of the judgement in Shreya Singhal v. Union of India. Finally, owing to the rudimentary stages of development of automated technology, not only is the implementation of the technology is a practical obstacle for intermediaries, but further, since no particular ‘technology based automated tool’ is specified nor have the terms ‘automated mechanism’ and ‘automated controls’ been defined in the rule, the type or technology to be deployed cannot be deduced. In light of the same, the proposed provision must be critically approached and the decision of the Hon’ble Supreme Court will be pivotal in determining the future of intermediaries in India.
1. Introduction
Presently, the Hon’ble Supreme Court of India is hearing a matter on intermediary liability in the case of WhatsApp Inc. v. Janani Krishnamurthy. A recent development in the case is the decision of Hon’ble Court to examine the draft proposal of the Information Technology (Intermediary Guidelines (Amendment) Rules), 2018 before hearing the matter at hand. While the draft was received with widespread criticism from stakeholders and legal luminaries alike, Sub-rule 9 of Rule 3 of the draft rules being particularly objectionable is the focal point of this article.
2. Information Technology (Intermediary Guidelines) Rules, 2011
An ‘Intermediary’, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes [2].
From the abovementioned, it is evident that an intermediary is merely a facilitator or a medium through which other persons can send, transmit, receive, store or carry out similar functions relating to electronic records and that the intermediary itself plays no proactive role in the entire process. This being the reason, Section 79 of the Information Technology Act, 2000 provides a safe harbour provision that exempts intermediaries from liability for any third-party information, data, or communication link made available or hosted by such party. However, a significant pre-condition to availing the benefits of this section of the Information Technology Act, 2000, is for the intermediary to observe due diligence while discharging its duty under the Act.
In this context, the Central Government, in exercising its powers under Section 87 of the Information Technology Act, 2000 read with Section 79 of the Act, enacted the Information Technology (Intermediary Guidelines) Rules, 2011 that provides the conditions of due-diligence that an intermediary must observe in order to avail safe harbour. On 24th December, 2018, the Central Government released a Draft of The Information Technology [Intermediary Guidelines (Amendment) Rules], 2018 that is proposed to replace the Information Technology (Intermediary Guidelines) Rules, 2011.
3. Sub-rule 9 of Rule 3 of The Information Technology [Intermediary Guidelines (Amendment) Rules], 2018
Sub-rule 9 of Rule 3 of the Information Technology [Intermediary Guidelines (Amendment) Rules], 2018 states as follows:
‘(9) The Intermediary shall deploy technology based automated tools or appropriate mechanisms, with appropriate controls, for proactively identifying and removing or disabling public access to unlawful information or content.’
This sub-rule proposed in the 2018 Amendment is prima facie unconstitutional.
First, the proposed sub-rule envisages a practice of placing ‘prior restraint’ on the information being made available through intermediary services. This is a stark violation of the right to freedom of speech and information guaranteed under Article 19(1)(a) of the Constitution of India. The Indian judiciary has been severely critical of this practice of prior restraint for purposes other than those articulated in Article 19(2) and has consistently held it to be unconstitutional through its various judgements including landmark cases such as Brij Bhushan v. State of Delhi [3], R. Rajagopal v. State of Tamil Nadu [4], and S. Rangrajan v P. Jagjivan Ram [5].
In the case of My Space Inc. v. Super Cassettes Industries Ltd. [6], the Court opined ‘If an intermediary is tasked with the responsibility of identifying infringing content from non-infringing one, it could have a chilling effect on free speech.’ Further, it was held that such ‘unwarranted private censorship would go beyond the ethos of established free speech regimes.’
Secondly, the role of an intermediary is passive and one of non-interference. In lieu of the abovementioned sub-rule, the role of the intermediary would transform into an active one, thereby diluting the very meaning and purpose of an intermediary and hence bringing to an end the trade or business of intermediaries. This is a clear violation of the Intermediaries’ right to carry on trade and occupation under Article 19(1)(g) of the Constitution of India.
In deciding a matter on the validity of pre-screening of content by intermediaries, the Hon’ble Court in the case of Kent RO Systems v. Amit Kotak [7] held that such a requirement would amount to converting the intermediary into a body to determine whether there is any infringement of intellectual property rights or not.’ Upon further enquiring from the Respondent whether such a requirement would bring the business of the Petitioner intermediary to an end, the Court concluded that to require an intermediary to do such screening would be an unreasonable interference with the rights of the intermediary to carry on its business.
Finally, the abovementioned Sub-rule 9 is in violation of the ratio established in Shreya Singhal v. Union of India [8] wherein the Hon’ble Supreme Court clearly held that the burden of deciding the legitimacy of claims and legality of information or date transmitted through the intermediaries’ services could not be placed on the intermediaries. To quote the Hon’ble Court in the aforementioned case, ‘This is for the reason that otherwise it would be very difficult for intermediaries like Google, Facebook etc. to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not.’
In addition to the above, the sub-rule dilutes the provisions of safe harbour to intermediaries under Section 79 of the Information Technology Act, 2000. It is expedient to note that automated tools and mechanisms are in no matter perfect or fully developed. As a matter of fact, the utilization of automated technology by intermediaries is yet in its rudimentary and developmental stages. The existing technology is easy to manipulate and filters can be by-passed with little effort. Hence, the scope and efficiency of automated tools in proactively identifying and disabling public access to unlawful information or content is highly limited. Consequently, the failure of the automated tools or mechanisms would deprive the intermediaries of safe harbour under the proposed Rules.
Further, since automated technology is prone to errors, a likely consequence of deploying such technology is the censoring or take down of legitimate information bearing similarities to copyrighted or patented content, or the take down of information issued in the interest of the general public, thereby exposing the intermediaries to threats of potential lawsuits.
A final drawback of the sub-rule is that it makes no differentiation amongst the different types of intermediaries providing services. Neither does it specify any particular ‘technology based automated tool’ that is to be employed for the purposes stated in the rule, nor does it define ‘appropriate mechanisms’ or ‘appropriate controls.’ Considering the various different types of automated technology being deployed by different types of intermediaries such as social media platforms, internet service providers, e-commerce websites or cyber cafes providing a wide range of services, it is extremely difficult to deduce what the appropriate mechanism or control would be or even if such technology would serve the purpose of all types of intermediary services.
4. Conclusion
In light of the judgements referred herein above and the practical obstacles to the implementation of the conditions laid down in Sub-rule 9 of Rule 3 of the Draft of the Information Technology [Intermediary Guidelines (Amendment) Rules], 2018, it can be clearly inferred that the Sub-Rule 9 of the proposed Rules is in contravention of Article 19 of the Constitution of India.
Further, the provisions of the sub-rule are strikingly contradictory to the very object for which Section 79 of the Information Technology Act, 2000 read with the Information Technology (Intermediary Guidelines) Rules, 2011 was introduced. Any attempt to implement such an ambiguous rule would be severely detrimental to the safe harbour provisions.
The use of ambiguous and undefined terms such as ‘technology based automated tools’, ‘appropriate mechanism’ and ‘appropriate control’ make the deployment of satisfactory technology practically improbable as terms such as ‘appropriate’ are highly subjective and open to varied interpretations.
In light of the above, it is concluded that the proposed sub-rule 9 of rule 3 of the Information Technology [Intermediary Guidelines (Amendment) Rules], 2018 must be critically approached by all.
The decision of the Hon’ble Supreme Court of India in examining the Draft of the Information Technology [Intermediary Guidelines (Amendment) Rules], 2018 in the case of Whatsapp Inc. v, Janani Krishnamurthy [9] being pivotal in determining the future of intermediaries in India, is keenly awaited.
[1] Supreme Court of India, Diary No. 32487/2019
[2] Section 2(w), The Information Technology Act, 2000.
[3] 1950 SuppSCR 245.
[4] 1995 AIR 264.
[5] 1989 SCC (2) 574.
[6] 1 FAO(OS) 540/2011.
[7] CS (Comm) 1655 of 2016.
[8] AIR 2015 SC 1523.
[9] Supra, 1.