Introduction – Intermediary Liability in India
Given the wide ambit of Intermediaries, Content Liability for Intermediaries needs to be brought within scope. This is of importance given the number of fake/hate posts being posted on Social Media. The test to determine whether an intermediary is to be held liable or not for content liability can be the ‘Test of Pecuniary Gain’, which is basically whether an intermediary is financially benefitting from the posting of the content or not. If yes, then the intermediary needs to put in robust system(s) for approval of the content, including quality control, as can be prescribed by the Government of India and regular audits of such systems by appropriate authorities.
WHO ARE INTERMEDIARIES?, SECTION 79 OF IT ACT, 2000
NEED FOR AMENDMENT
Section 79 of the IT Act, 2000 needs to be amended to clearly define the ambit and scope of Intermediaries. A key suggestion here is that Section 79 can be amended to prescribe the threshold of ‘due diligence’ with regards to an intermediary’s liability.
Intermediaries are important players of the Internet world, and this step will go a long way in making them responsible for actions such as third party content being posted on their platforms.
CONTENT LIABILITY
A clear section on Content Liability for corporates and individuals needs to be provided for in the IT Act, 2000. This is imperative especially since there is no section dealing with such actions post Section 66A being struck down in Shreya Singhal vs Union of India. There needs to be a defined criteria, ingredients, and definition of Content Liability in the IT Act, 2000. The term needs to be clearly defined and made a non-bailable offence to be a deterrent for the society.
The ‘Test of Pecuniary Gain’ can be the key standard used to determine when an intermediary is responsible for third-party content, demanding that platforms earning from third-party content provide thorough content moderation methods. Explicitly revising the Section 79 IT Act,2000 to set intermediary responsibilities and due diligence standards will bring the much-needed clarity. Additionally, the lack of a specific provision on Content Liability after the Shreya Singhal judgment only buttresses the case for a better legislative fix. The Inclusion of Content Liability provisions in the IT Act, 2000 and classifying such Section 295 and 298 violations on these digital platforms as non-bailable offences will go a long way in deterring misuse of these digital platforms. Some of these reforms will provide better legal certainty whilst also ensuring intermediaries act responsibly, balancing free speech with the need to prevent harm online.
Corrida Legal is helping intermediaries ensure adherence to content liability regulations via expert legal guidance, including conducting due diligence under the IT Act, 2000, as mandated under Section 79. We ramp-up intermediaries with robust content moderation policies, conduct regulatory audits, and devise risk mitigation strategies for legal cover, all this without hampering the operation scale.
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