ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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Supreme Court’s Emerging Stance on Online Censorship and Intermediary Liability

Taking Down Cyber Violence

Through the proliferation of rape videos, morphed images, etc, the internet is witnessing increasing instances of violence against women. As websites sometimes claim to be intermediaries which cannot be always held responsible for the nature of content uploaded online, the issue of intermediary liability needs to be addressed urgently. The precedent set by the Supreme Court in this regard in certain cases merits critical examination, in order to pave the way forward for developing an alternate intermediate liability regime, which can walk the tightrope between censorship and the protection of the dignity of women and children in cyberspace.

This paper revisits current debates on the liability of internet intermediaries in India, in the context of violence against women online. Internet intermediaries can be described as entities that facilitate access to the internet or services on the internet (Association Progressive Communications 2014). Common types of intermediaries are internet service providers, search engines, social media networks, etc. Unlike book publishers, internet intermediaries adopt a passive relationship with the content they host. Since they do not exercise editorial control, countries have been encouraged to legislate safe-harbour protections of internet intermediaries from strict or criminal liability (La Rue 2011). Digital corporations have time and again asserted their passivity in relation to the content on their services (Gillespie 2010), and civil society has supported their claim to immunity.1 The crux of the argument is, when intermediaries are treated as gatekeepers by the law, in a bid to reduce their liability, they will over-censor (Center for Democracy and Technology 2010). Their particular legal treatment is argued to be an essential part of free speech online.

In 2008, India introduced significant amendments to the Information Technology Act, 2000 (IT Act), by adopting a notice-and-take-down regime, along the lines of the European Union (EU) E-Commerce Directive 2000/31/EC. So, an intermediary was liable to take down illegal content about which it has “actual knowledge,” acquired through proactive measures, user notification or a government order (Arun and Singh 2010). Such a notice-and-takedown system has been criticised for leaving the decision of the legality of content in the hands of a private entity, that is bound to err on the side of censorship overreach, lest it be held liable for allowing illegal content to remain on its platform (Dara 2011). In 2015, via the landmark Shreya Singhal v Union of India (2015) judgment, the Supreme Court tweaked the intermediary liability regime, by reading down “actual knowledge” to mean a court or executive order.

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Updated On : 15th Jan, 2019

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