Background
On July 9, 2024, Asian News International (“ANI”) filed a civil suit before the Delhi High Court against Wikimedia Foundation, which runs the popular free online encyclopaedia Wikipedia. The suit is for defamatory statements about ANI published on Wikipedia.
The alleged defamatory statement asserted that “ANI has been criticized for having served as a propaganda tool for the incumbent central government, distributing materials from a vast network of fake news websites, and misreporting events.”[1] ANI has sought to restrain Wikipedia from publishing such defamatory content and is seeking INR 2 crores in damages. It has also alleged that Wikipedia, through its representatives, was actively attempting to remove such defamatory edits and alter content and should thereby be deprived of safe harbour protection since it is not operating as an intermediary.
On September 5, 2024, the Delhi High Court issued a contempt notice to Wikipedia for not divulging information about the users who made the allegedly defamatory edits on ANI’s Wikipedia page.[2] Justice Navin Chawla has now threated to block Wikipedia’s operation in India if it continues to violate the orders of the court.
This case brings up the issue of whether Wikipedia satisfies the required eligibility conditions to receive the refuge of safe harbour. Wikipedia is the largest and most-read reference work in history. This judgment may have considerable implications for the functioning of Wikipedia in India and the unbridled flow of free and user-generated information on the internet.
The Active-Passive Test
The first point to examine is whether any attempted removal of allegedly defamatory content by an intermediary from its platform entitles the intermediary to safe harbour protection or deprives it of the same. To answer this, let us dig deeper into the concepts of active and passive intermediaries that have been developed globally and in India.
Section 79 of the Information Technology Act, 2000 (“IT Act”) exempts intermediaries from liability for third-party content if their functions are limited to just providing access to users to their platform, or not initiating, selecting or modifying the transmissions/ receivers of such transmissions, conducting ‘due diligence’, observing guidelines that may be prescribed by the Central Government, and disabling access to any unlawful material upon receiving actual knowledge of the same.
This provision in part takes inspiration from internet-related frameworks in the EU. The EU’s approach to intermediary liability was first sanctified in the E-Commerce Directive, 2000[3]. This directive seeks to extend safe harbour to online services which function as a conduit, caching or hosting service. Online services that serve as a “mere conduit” will not be liable for third-party information as long as they “do not initiate the transmission of information, do not select the receiver of the transmission and do not select or modify the information contained in the transmission.” Online services that provide a caching facility will not be liable for “any automatic, intermediate and temporary storage” of third-party information. Online services that provide a hosting function which stores information provided by various users will not be liable for such third-party information if they do not have “actual knowledge” of illegal information and upon obtaining such knowledge, remove access to such information expeditiously. This position has now also been replicated in EU’s new Digital Services Act, 2022 (“DSA”)[4].
In 2010, the European Court of Justice in the case of Google v. Louis Vuitton[5]laid down that activity of the intermediary should be merely technical, automatic, neutral and passive. If an online service has control over the information or deliberately collaborates with the recipients of a service, then they will lose their safe harbour exemption.
In the case of L’Oreal v. eBay[6], the European Court differentiated between an online service that just hosts prices of products and provides their general information and an online platform that not only offers the prices of products but also assists in optimising the presentations of the products and promotes offers. The court ruled that the former online service would be entitled to exemption from liability whereas the latter service would not be entitled to such exemption. The judicial pronouncements in EU seem to restrict safe harbour protection to only those intermediaries whose functions are passive in nature.
The DSA is intended to serve as an updated version of the two-decade old E-Commerce Directive. It encourages online services to undertake proactive moderation of hosted content and will not deprive them of safe harbour protection for such measures.[7] This position is principally in conflict to the “passivity” principle espoused by courts in EU. Thus, the line between an active and a passive intermediary has got further blurred in the EU.
In India, in the Christian Louboutin[8] judgement, a single judge of the Delhi High Court limited the benefits of safe harbour principles only to passive intermediaries i.e., entities that serve as mere conduits or passive transferors of information. Any active contribution by an online service was held to remove the “ring of protection” granted by Section 79. This judgment was in line with the principles espoused by the European Courts of Justice.
However, in the Amway India[9] case, the division bench of the Delhi High Court stated that in its present form, Section 79 of the IT Act does not distinguish between active and passive intermediaries with respect to safe harbour provisions. This case set aside the rationale opined in the Louboutin judgment and also deviated from the legal principles laid down in EU. The division bench in Amway judgment did not offer any detailed reasons for removing the active and passive distinction between intermediaries. It merely held that this distinction was not envisaged under Section 79.
This decision to steer away from the notion that only passive intermediaries are eligible for safe harbour protection was significant, as it laid the grounds for more proactive monitoring of content by intermediaries on their platforms, eventually leading to the framing of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules (“2021 IT Rules”), 2021. These inter alia laid down clear prescriptions relating to content monitoring that need to be adhered to by intermediaries if they are to enjoy the protection of safe harbour.
In light of this legal sanction to play an active role in content monitoring, Wikipedia’s act of attempting to remove/ alter the alleged defamatory content may in and of itself not be sufficient grounds to deprive it of safe harbour protection.
The Future of Safe Harbour
The issue of whether Wikipedia will be liable for defamation of ANI in reference to existing defamation laws in India will not be analyzed here. We leave that determination to judges of the Delhi High Court. However, to fully understand the intricacies of the safe harbour regime in India, let us assume that the statements on Wikipedia against ANI were in fact defamatory in nature.
Rule 3(1)(b)(xi) of the IT Rules lays down that an intermediary must undertake reasonable efforts to cause users on its platform to not publish or upload any information that violates any law in India. This means that the defamatory statements on Wikipedia will by default not make them liable for violation of the IT Act and IT Rules. Instead, the court will have to look at the moderation measures that Wikipedia had in place generally, and, specific to this case, whether they took reasonable measures to prevent the offence of defamation from occurring on their platform.
While the answer to this question will most likely depend on a factual analysis of the merits of the case, there are other interesting observations that emerge. Content moderating and safety related obligations of intermediaries have been incrementally getting more extensive by way of rules under the IT Act, including the 2021 IT Rules and the recent amendments to it. These have now reached a point where they appear to be clashing with the original safe harbour mandate to take a hands-off approach.
Even in the instant case, Wikipedia’s actions of attempting to remove/ alter the alleged defamatory content may be explained by the fact that they are now required to proactively “cause users” not to post certain forms of content, on account of recent amendments to Rule 3(1)(b) of the 2021 IT Rules. This was not the case earlier, where the obligation only extended to “informing users” not to post such content. Presumably, the policy intent is to make intermediaries more responsible for content on their platform. This position was even reiterated by the previous Minister of State for MeitY, Rajeev Chandrasekhar a number of occasions in the past, in the context of the proposed Digital India Bill (“DIB”), that is touted to replace the IT Act and by extension, India’s intermediary safe harbour regime.[10]
All this being said, 2024 has brought with it a number of significant developments. News reports indicate that the DIB may no longer be considered in its present draft form[11]. Further, post the general elections, the scope for policy stocktaking and potential realignment may have increased in the Central Government. The time may perhaps be ripe for an introspection on the evolutionary trajectory that the safe harbour regime in India has taken, and whether this requires a course correction that addresses some of the inconsistencies and conflicts that may have crept into it.
In particular, a policy call will sooner or later have to be made over the role that the government envisages intermediaries to play in the digital ecosystem. A larger role (in line with existing trends) – making intermediaries more accountable for the content on their platforms, may contribute to a safer internet, but on the other hand may place wide discretionary powers in relation to content control and censorship in the hands of intermediaries. A smaller role for intermediaries will require them to adopt a more hands-off approach vis-à-vis the content on their platforms and intervene only upon receiving state directions. This will not only be more reasonable for intermediaries to implement (especially the smaller players) but will also be more fundamentally aligned with intermediary safe harbour as a concept. It would however require the state to play a correspondingly larger role in content moderation and ensuring internet safety.
With digital penetration growing by the day, and the emergence of technologies that make the digital world more immersive, interactive and all-pervasive, the role of intermediaries in the internet ecosystem will continue to remain central in the times to come. The role that these intermediaries play in the Indian cyberspace is therefore a subject that policymakers must pay due attention to and resolve sooner rather than later.
[1] Delhi High Court issues summons to Wikipedia in defamation suit by ANI (barandbench.com).
[2] ‘Will shut your business’: Delhi HC issues contempt notice to Wikipedia | Company News – Business Standard (business-standard.com).
[3] eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32000L0031.
[4] Regulation – 2022/2065 – EN – DSA – EUR-Lex (europa.eu).
[5] Google France SARL and Google Inc. v Louis Vuitton Malletier SA (C-236/08).
[6] L’Oreal SA & Ors. v. eBay International AG & Ors., (C-324/09 decision, July 12, 2011).
[7] Article 7 of the Digital Services Act.
[8] Christian Louboutin v. Nakul Bajaj, (2018) 253 DLT 728.
[9] Amazon Seller Services v. Amway India Enterprises, (2020) 267 DLT 22.
[10] Press Information Bureau (pib.gov.in).
[11] Digital India Bill likely to be delayed, government may opt for smaller, urgent regulations (moneycontrol.com).