The concept of intermediary liability, that is, the liability of an intermediary for the illegality of the content hosted by it, is one of the cornerstones of the freedom of speech in the digital age. The immunity to such liability is mandatory for an effective implementation of the right to freedom of speech. Recent actions by the Delhi High Court, though, raise questions as to the true level of protection accorded by these immunities in India.

The idea behind such immunity from liability is based on ‘incentives.’ The incentive for the individuals lies in having their opinions heard, which implies that they will inevitably put some effort into ensuring that they are disseminated appropriately, sometimes even at a risk to themselves. Contrarily, the primary incentive of intermediaries on the Internet, a category that includes entities ranging from Internet Service Providers to data sharing websites and blog hosting websites, usually lies in ensuring the survival of their service. YouTube, for instance, relies on the free speech of its users for its business model. But if it had to make a choice between either not allowing a certain type of speech on its website or being shut down, it would always go with the latter. And that is exactly why it has a strict policy against child pornography. Essentially, if intermediaries have any interest in free speech, this interest is usually subordinate to the primary interest of survival. There are exceptions to the rule, of course. Pirate Bay is a torrent service that has refused to shut down despite repeated legal action, the arrests of its founders, and multiple domain changes.

It is here that the consequences of non-compliance become important. Under a strict liability regime, if an intermediary knew that there is a risk of it being shut down because it is hosting a certain type of ‘risky’ content, it would simply refuse to host it, since it would not want to risk being shut down. Even if the intermediary did host ‘risky’ content, it will take it down on the first complaint it receives, possibly without even checking it, because it is afraid of the consequences that its service might suffer if it does not comply with the takedown request. This creates a chilling effect on free speech, that is, it makes intermediaries less likely to host content that is in a legal gray area, and might violate laws and obligations that govern the intermediary due to a fear of prosecution. But an effective interpretation of restrictions on a right as fundamental as the right to free speech cannot rest on a ‘might’. An effective interpretation requires that the freedom of speech and expression be restricted only when it is absolutely necessary, and even then only through due process of law. This is even more worrying in the Indian context, since the ‘illegal’ category is quite broad, and includes anything that can be ‘objectionable, obscene, unauthorized or any content infringing copyright, intellectual property etc.’

In order to avoid this chilling effect, a certain level of protection is accorded to intermediaries, which absolves them of any liability for content that they are simply hosting and not directly promoting or supporting. This immunity mitigates the chilling effect, and at the same time allows them to host more content, even risky content, in order to expand their service, at the same time also promoting freedom of speech. This specific perspective on intermediary liability is quite popular in the United States, and a strong immunity for the intermediaries from liability for content hosted by them is set out in the Communications Decency Act along the above lines. A similar immunity is given against content that violates copyright in the ‘safe harbour provisions’ of the Digital Millennium Copyright Act. In fact, the protection accorded to intermediaries under the CDA is so strong that Ripoff Report, a website infamous for its defamatory content, has been repeatedly held to not be liable for any of its posts.

Considering this backdrop to the discussion, recent orders by the Delhi High Court in India regarding copyright infringement and intermediary liability are indicative of a worrying trend. The first of these orders blocked a total of 219 websites, a number that had been reduced from an original 470, that were argued to be ‘likely to infringe’ the rights of Multi Screen Media, the copyright owner, over the telecast of the FIFA 2014 matches. The second order blocked over a hundred websites which were, again, ‘likely to host, stream, broadcast, etc.’ the 2014 India-England Cricket Test Series and could thereby infringe Star India’s copyright. The plaintiffs in the second case even requested that apart from the websites mentioned by them, other ‘similar websites’ should also be blocked.

The protection accorded to intermediaries in India is summarised by a clause in the ISP license that the second order relies on in part. The ISPs are held to not be liable for any of the content on their website, as long as they honour the takedown requests they receive and follow due procedure. Ascertaining the validity of the takedown requests is left to the ISPs. The same immunity to such liability has also been confirmed in the Indian legislations regulating intermediaries, and has been reiterated in various judgments in different High Courts which state that only the URLs which infringe copyright can be blocked, not entire websites.

A few years ago, an earlier order along similar lines allowed Reliance Big Films to serve cease-and-desist orders to protect its movie Singham from illegal distribution. Even though the order came before these immunities came into effect, the Delhi High Court had clarified that the order was aimed not at shutting down file sharing websites, but only at ensuring that the film was not illegally distributed, thereby resulting in the same effect. But unable to ensure compliance, the ISPs went ahead and blocked all popular file- and video-sharing sites, including Vimeo, rather than risking liability. The notice-and-takedown regime, as it now exists, is already under critique. In a recent study carried out by the Centre for Internet and Society, they found that of the 7 intermediaries that had received takedown requests from them, 6 over-complied with the notices, despite the flaws clearly apparent in them.

Crucially, there are two separate cases underway in front of the Bombay High Court and the Supreme Court, respectively. The former is a case against Google, Facebook and Twitter for ‘promoting defamatory content’ against Parle Agro, for a viral post alleging that ‘Frooti’, a drink manufactured by Parle, was contaminated. The latter is a case by MouthShut.com, a popular ‘review website’, challenging the existing rules alleging that it receives a large number of takedown requests and legal notices on a regular basis from companies that are unhappy with the reviews of their products. Furthermore, there has been increasing hostility towards social media from various political and religious groups.

Against this backdrop, these actions by the Court are cause for concern for a few crucial reasons. First, the orders were given out against websites that were ‘likely’ to infringe copyright—there was no hard evidence that they had done so at the time. Second, these orders were passed without any representation from the defendants. The fact that they were passed against John Does raises questions as to whether there will be any effective representation at all, since no one has taken up the defense in the case yet; in both the cases, the defendants are listed as being ‘represented through none’.

Third, and perhaps most crucially, the orders were passed against and, access was blocked to, entire websites, those being the intermediaries, without consideration to the protection accorded to them. The same protection against liability, based on compliance, is also accorded to the ISPs under the ISP License that the second order relied on. In fact, the complaint system put in place under the Intermediary rules, which is similar to the one set up under the DMCA, was not even utilised. The orders, in a sense as complicit in the violation of copyright, with no regard to the immunity accorded to them. To highlight the absurdity of this, the first order originally included Google Documents, Google Video, and the URL shortener ad.fly in the list of blocked websites. Though the Google domains were removed from the order when the list was subsequently shortened, Docs and ‘.gl’ were not accessible in the state of Gujarat through certain ISPs for at least a week.

Such judicial actions create an environment where intermediaries must necessarily stay on the tip of their toes, trying their best to ensure that the content they host is legal, which is a rather broad term in this context since it covers all content deemed to be objectionable, obscene, unauthorized, or violative of copyright. If they fail to meet this standard or to honour takedown requests, they risk getting their entire website blocked. After these orders, all intermediaries are only going to be more eager to comply with the notices. This is a quintessential case of a freezing effect on Free Speech, a concern only exacerbated by reports that the Indian government might require online service providers to locate their servers locally. There are also some concerns that this freezing effect might spread to other forms of content, especially since prosecutions against users for sharing politically and religiously oriented content have been increasing in recent times. The conclusion that online free speech in India is headed towards darker shores, then, seems inevitable.