The Information Technology Act- Intermediary Status

Context:

According to some media reports, Twitter has lost its intermediary status in India over non-compliance of the new IT rules that came into effect on May 26.

What does intermediary status mean?

As per Section 2 (1) of the Information Technology Act, an intermediary is a person/entity that receives, stores and transmits information or provides service for transmission of information. This includes telecom service providers, network service providers, internet service providers, search engines, online payment sites, online-auction sites, online-marketplaces and even cyber cafes.

Can social media platforms like Twitter lose the intermediary status?

Intermediaries like Twitter are protected under Section 79 of the Information Technology Act that states that they cannot be held liable for the third party content published on their platform as long as they comply with the legal order to take down content from courts or other authorities.

This means, if a user’s tweets go viral and that results in death or violence, Twitter cannot be held liable just because of it. However, they will have to take down the content if they get a legal order from the court or authorities. This is what termed as safe harbour protection.

According to the government, Twitter has lost this protection by way of non-compliance with the current IT rules.

Why do platforms want safe harbour?

Platforms such as Twitter and Facebook, which have millions of users, argue that they cannot possibly be aware of every post, just as the managing director of Amazon does not always know all the items being sold on the online marketplace. As a result, they cannot be held liable. Removing safe harbour protections would mean that the platforms have to actively police and sensor whatever content is available on their services, which in turn could violate free speech and other fundamental rights.

Who will decide intermediary status?

It is the courts, not the government, who will decide on whether Twitter or other social media intermediaries can lose this status under law.

Why do platforms want safe harbour?

Platforms such as Twitter and Facebook, which have millions of users, argue that they cannot possibly be aware of every post, just as the managing director of Amazon does not always know all the items being sold on the online marketplace.

• As a result, they cannot be held liable. Removing safe harbour protections would mean that the platforms have to actively police and sensor whatever content is available on their services, which in turn could violate free speech and other fundamental rights.

What is the argument against safe harbour?

In contrast, there’s an argument that by using ranking algorithms to determine what gets seen on their platforms, these firms are making editorial judgements. So, if a newspaper is liable for editorial decisions, then why shouldn’t they? There’s also the matter of power here, and the fact that Facebook, Twitter, Google, etc. are ultimately in control of their respective marketplaces and wield more power than an elected government, in determining how information or utility marketplaces work within a country.

The Information Technology Act 2000

The Information Technology Act, 2000 (also known as ITA-2000, or the IT Act) is an Act of the Indian Parliament (No 21 of 2000) notified on 17 October 2000. It is the primary law in India dealing with cybercrime and electronic commerce.

Secondary or subordinate legislation to the IT Act includes the Intermediary Guidelines Rules 2011 and the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

The original Act contained 94 sections, divided into 13 chapters and 4 schedules. The laws apply to the whole of India. If a crime involves a computer or network located in India, persons of other nationalities can also be indicted under the law.

The Act provides a legal framework for electronic governance by giving recognition to electronic records and digital signatures. It also defines cyber crimes and prescribes penalties for them. The Act directed the formation of a Controller of Certifying Authorities to regulate the issuance of digital signatures. It also established a Cyber Appellate Tribunal to resolve disputes rising from this new law. The Act also amended various sections of the Indian Penal Code, 1860, the Indian Evidence Act, 1872, the Banker’s Book Evidence Act, 1891, and the Reserve Bank of India Act, 1934 to make them compliant with new technologies.

Section 66

• In February 2001, in one of the first cases, the Delhi police arrested two men running a web-hosting company. The company had shut down a website over non-payment of dues. The owner of the site had claimed that he had already paid and complained to the police. The Delhi police had charged the men for hacking under Section 66 of the IT Act and breach of trust under Section 408 of the Indian Penal Code. The two men had to spend 6 days in Tihar jail waiting for bail.
• In February 2017, A Delhi based Ecommerce Portal made a Complaint with Hauz Khas Police Station against some hackers from different cities accusing them for IT Act / Theft / Cheating / Misappropriation / Criminal Conspiracy / Criminal Breach of Trust / Cyber Crime of Hacking / Snooping / Tampering with Computer source documents and the Web Site and extending the threats of dire consequences to employees, as a result four hackers were arrested by South Delhi Police for Digital Shoplifting.

Section 66A

• In September 2012, a freelance cartoonist Aseem Trivedi was arrested under the Section 66A of the IT Act, Section 2 of Prevention of Insults to National Honour Act, 1971 and for sedition under the Section 124 of the Indian Penal Code. His cartoons depicting widespread corruption in India were considered offensive.
• On 12 April 2012, a Chemistry professor from Jadavpur University, Ambikesh Mahapatra, was arrested for sharing a cartoon of West Bengal Chief Minister Mamata Banerjee and then Railway Minister Mukul Roy. The email was sent from the email address of a housing society. Subrata Sengupta, the secretary of the housing society, was also arrested. They were charged under Section 66A and B of the IT Act, for defamation under Sections 500, for obscene gesture to a woman under Section 509, and abetting a crime under Section 114 of the Indian Penal Code.
• On 30 October 2012, a Puducherry businessman Ravi Srinivasan was arrested under Section 66A. He had sent tweet accusing Karti Chidambaram, son of then Finance Minister P. Chidambaram, of corruption. Karti Chidambaram had complained to the police.
• On 19 November 2012, a 21-year-old girl was arrested from Palghar for posting a message on Facebook criticising the shutdown in Mumbai for the funeral of Bal Thackeray. Another 20-year-old girl was arrested for “liking” the post. They were initially charged under Section 295A of the Indian Penal Code (hurting religious sentiments) and Section 66A of the IT Act. Later, Section 295A was replaced by Section 505(2) (promoting enmity between classes). A group of Shiv Sena workers vandalised a hospital run by the uncle of one of girls. On 31 January 2013, a local court dropped all charges against the girls.
• On 18 March 2015, a teenaged boy was arrested from Bareilly, Uttar Pradesh, for making a post on Facebook insulting politician Azam Khan. The post allegedly contained hate speech against a community and was falsely attributed to Azam Khan by the boy. He was charged under Section 66A of the IT Act, and Sections 153A (promoting enmity between different religions), 504 (intentional insult with intent to provoke breach of peace) and 505 (public mischief) of Indian Penal Code. After the Section 66A was repealed on 24 March, the state government said that they would continue the prosecution under the remaining charges.

Section 69A

• On 29 June 2020, the Indian Government banned 59 Chinese mobile apps, most notably TikTok, supported by Section 69A and citing national security interests.
• On 24 November 2020, another 43 Chinese mobile apps were banned supported by the same reasoning, most notably AliExpress.

Source: Indian Express

The Information Technology Act