Intermediary liability and the future of the Internet in India

Sunday, October 14, 2007 at 2:48 PM

Posted by Rishi Jaitly, Policy Analyst - Google India

"Intermediary liability" may sound like something you'd only hear about in a law school torts class, but its meaning is both important and easy for all Internet users to understand.

It's the principle that Internet middlemen -- like ISPs, website hosting companies, search engines, email services, social networks, and other neutral hosts of information sent, posted or uploaded by others -- should not be held legally liable for their users' content. Put another way, it's the principle that the person who created the content is the person deemed responsible for it, and that it would be both unjust and impractical to hold companies whose systems happen to automatically transmit or store the content responsible for words they didn't write, pictures they didn't take, or videos they didn't create.

Still puzzled? Think about the telephone system. We don't hold the telephone company liable when two callers use the phone lines to plan a crime. For the same reasons, it's a fundamental principle of the Internet that you don't blame the neutral intermediaries for the actions of their customers. Rather, the standard recognized worldwide is that Internet intermediaries are responsible to take action when they are put on notice of unlawful content through proper legal channels.

This principle has been the subject of much recent debate as India takes a fresh look at its technology laws.

The government of India is looking to amend the Information Technology Act of 2000, the law which governs the web. As I've written before, the Department of Information Technology's proposed amendment to Section 79 of the IT Act would mark a fundamental shift in Indian law as it relates to intermediary liability, and go a long way towards promoting innovation on the Internet.

Under the proposed amendment, intermediaries like Google would not be held responsible for problematic content on their systems that they did not create. Instead, intermediaries would be protected so long as they follow appropriate lawful process after being notified of the content in question (in the copyright context, this is known a "notice-and-takedown" regime). This principle has been embraced in all the leading democracies of the world.

Unfortunately, last month the Indian Parliament's Standing Committee on Information Technology issued its own report challenging this proposed amendment:

"...Under the proposed amendments, the intermediaries/service providers shall not be liable for any third party information data.... The Committee do not agree with this. What is relevant here is that when [the] platform is abused for transmission of allegedly obscene and objectionable contents, the intermediaries/service providers should not be absolved of responsibility. The Committee, therefore, recommend that a definite obligation should be cast upon the intermediaries/service providers in view of the immense/irreparable damages caused to the victims through reckless activities that are under taken in the cyberspace by using the service providers' platform. Casting such an obligation seems imperative...." (pp. 54-55)

While we thank the Committee for its hard work and thoughtful deliberations, we're troubled by this tone and line of thinking. If implemented, these recommendations would create a hostile environment in India for Internet services, and for the entrepreneurs and innovators working to create the next set of revolutionary Internet technologies for Indian users.

For intermediary websites to be held liable for the "reckless activities" of others is fundamentally unjust, ignores the origin of the content, misunderstands the size and scale of the Internet, and fails to appreciate the great benefits yielded to the vast majority of Indian users by these information platforms.

At Google we take issues like cybercrime, the transmission of illegal content, and its harm on victims very seriously. We work with government authorities to ensure Google's platforms in India are not used illegally and that they are in full compliance with our own terms and conditions. We also work diligently to ensure our own community standards (like orkut's, for example) are not violated on our sites.

It would be technologically infeasible for ISPs and web companies to pre-screen each and every bit of content being uploaded onto our platforms, especially as the amount of information coming online increases exponentially in India and around the world. More importantly, imposing such a burdensome standard would crush innovation, throttle Indian competitiveness, and prevent entrepreneurs from deploying new services in the first place, a truly unfortunate outcome for the growth of the Internet in India.

It is possible that this portion of the Committee's report is based on a misapprehension of the intent of the proposed amendment. Specifically, the Committee may have believed that the proposed amendment would provide absolute immunity to Internet intermediaries, and wished to stress the need for a clear obligation to react promptly when put on notice of unlawful content. If this was, in fact, the case, the Committee's intent, its report would be consistent with the proposed amendment, and in line with global best practices. If not, the Committee's position would likely result in the hobbling of the Internet in India. For that reason, we intend to seek clarification of the Committee's understandings and intent.

The choice for the Indian government is stark: If it wishes to enable Indians to have access to cutting-edge Internet services, and to promote innovation on the Internet, the Department of Information Technology should uphold the principle of qualified safe harbors for Internet intermediaries.