Amrita Vasudevan and Anita Gurumurthy
In April this year, the Supreme Court of India made an eagerly awaited ruling on Internet intermediary liability. This case dealt with Internet intermediary liability (search engines - Google Microsoft and Yahoo) in two situations: one; for causing advertisements, and two; for causing organic searches, on pre-natal determination or pre-conception selection of sex (PNDPS) to be displayed on their platforms. In India, publishing, distributing or communicating, or causing (emphasis added) to be published, distributed or communicated advertisements on PNDPS is a punishable offense under Section 22 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PCPNDT Act).
The Court has been clear that intermediaries are responsible for the content that is displayed on their platforms. However, earlier orders from the Court on this case drew sharp criticism of over-censorship, for failing to distinguish advertisements from organic search results and for its recommendation of the controversial ‘doctrine of auto blocking.1 By the latter the court meant that search engines would have to adopt/ develop technologies to proactively filter content that infringes the PCPNDT Act. There were also concerns raised that this doctrine was not in keeping with the precedent set in the Shreya Singhal case, which in fact widened safe harbor of Internet intermediaries by requiring take down of content only after it is confirmed by judicial or executive order.2
The latest ruling by the Apex Court, even as it ostensibly appears to assuage fears about over-censorship, not only circumvents the real concerns of the PCPNDT Act, but also falls short in protecting free speech. The ruling is two pronged. On advertisements, the Court categorically held that intermediaries were responsible to take down such content under Section 22 of the PCPNDT Act. On general content available online on PNDPS, it refrained from giving a similar ruling on the premise that this would lead to the curtailment of the (Internet user’s) “right to access information, knowledge and wisdom and his freedom of expression.”3 The judges were mindful to point out the importance of freedom of expression in the virtual world,4 but in applying the constitutionally protected right, the Court does not go all the way. So, while it directed the respondents to establish an ‘in-house expert body’ to take down content that is violative of Section 22 of the PCPNDT Act and a nodal agency in the government that could flag infringing content to the respondent-intermediary to be taken down, it failed to mention whether the right to be heard (to contest the take-down) will be given to the author of the content or the intermediary. All it states is that intimation will be given to the intermediary.5 The Court also makes no effort to clarify inconsistencies pointed out earlier, on the mechanics of take-down delineated in its ruling, and the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (the Rules). The present (like past) judgments of the Court in this matter do not refer to any framework for the review of blocking orders to ensure conformity to Section 69 of the IT Act - and as has been laid down by the Rules.6
Further, even as the court takes a differentiated approach on advertisement and non-advertisement content, it does not elaborate what an advertisement is and why it must be treated differently from organic search results. The PCPNDT Act is of no real help either, as the explanation to Section 22 only provides an illustrative, non exhaustive, list of what constitutes an advertisement. Would it then be in the intermediary’s discretion to decide what is and is not an advertisement? And in that case, would it be limited to commercial content, as argued by Counsel for the respondents7 (by which we assume the Counsel means sponsored content, which usually shows on the top of the page with the indication ‘Ad’), or would it also include content in the nature of advertisements, which are not paid-for content, and are found in the organic search results? The Court’s order also raises the question of whether and how the nature of the intermediary’s discretion in displaying advertisements affect its liability. In other words, would safe harbor kick in if the selection of advertisements is automated/ based on algorithms? While this issue was not raised in Court in this case, it has been raised by intermediaries in other cases,8 and a more reasoned judgment could have indicated possible answers when confronted with such arguments. Not clarifying this is tantamount to a soft stance on the core concerns of wrongful publication and communication on PNDPS that the law seeks to address, to tackle deeply seated gender-based prejudices.
This absence of a definition of what constitutes an advertisement, in combination with a lack of well-thought out institutional mechanisms seems to suggest an ‘I-know-it-when-I-see-it’ kind of approach by the Court,9 which defeats its logic of avoiding over-censorship by taking a differentiated approach, in the first place. Considering that Section 22 of the PCPNDT Act is a penal provision (allowing three years imprisonment and a fine that can extent to 10,000 rupees for contravention), it is surprising that the Court did not set the exact contours of what an advertisement is. In not engaging with the issue, not only has the Court failed to pin down the vagaries that the online produces, in order to clarify the gendered ethics of digital practices, but, willy-nilly, also allowed the perpetuation of privatized censorship.
The Sabu Mathew case has been listed to come up before the Supreme Court in September for parties to demonstrate their commitment to the order. This tone of finality in its orders leaves one feeling that there is only bleak possibility that the problems raised above will be addressed.
8Google has asserted before the Court of Justice of the EU that the AdWords service is run by a totally automated system and hence not liable -in this case for trademark infringement, http://www.trademarksandbrandsonline.com/article/google-a-battle-of-words