Twitter recently flagged the United States' (US) President's tweets as inaccurate. This led to an uproar in the White House. Next, the President passed an executive order reconsidering qualified immunity to internet Intermediaries. In India, the MEITY published "draft rules" in December 2018 to tighten its grip on intermediaries.
Are intermediaries mere bulletin boards with no control over the content posted on them?
The Information Technology Act, 2000 ("IT Act"), along with the Information Technology (Intermediary Guidelines) Rules, 2011 ("Intermediary Guidelines"), provide for safe harbor provisions for Intermediaries in India. The definition of an 'intermediary' has been amended with an increased scope from its initial form to include "any person, who on behalf of another person, receives, stores or transmits any particular electronic record or provides any service with respect to that record."
Section 79 of the IT Act specifically builds in the safe harbor protection in India by providing safeguard to Intermediaries against any liability for information, data or communication link made available by any third parties. Further, Section 79 (2) lists out the requirement to avail such safe-harbor protection, stating that the Intermediary Guidelines need to be complied with, by Intermediaries. The Intermediary Guidelines sets out a requirement for due diligence that has to be undertaken by Intermediaries to avail the safe harbor protection under the IT Act.
In the US, Section 230 of the Communications Decency Act, 1996 provides immunity to online services, including Intermediaries, from liability for transmission of any third party content. It specifically states that providers of an 'interactive computer service' will not be treated as publishers of third-party content. The section further provides that such online services may moderate and remove, in 'good faith' offensive or obscene third-party content. This has led to a generation of platformspecific 'community guidelines' and policies with respect to content suitability on each such platform. This is a notable deviation from India's position on regulation of Intermediaries as the IT Act does not provide for content moderation practices.
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