Cast Adrift without Safe Harbor: The Risks of Ignoring IT Act Protections (PART 8)
THE MANILA PRINCIPLES – A COMPARATIVE ANALYSIS
The Manila Principles is a set of guidelines out-lining safeguards that must apply in all legal frameworks on intermediary liability. The document was launched at RightsCon, Southeast Asia – a multi-stakeholder conference held in Manila, Philippines in 2015 – by a coalition of Internet rights activists and civil society organizations. The main purpose of the Manila Principles is to encourage the development of interoperable and harmonized liability regimes that can promote innovation while respecting users’ rights in line with the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the United Nations Guiding Principles on Busi-ness and Human Rights.[1]
The six broad principles are as follows.[2]
(1) Intermediaries should be shielded by law from liability for third-party content.
(2) Content must not be required to be restrict-ed without an order by a judicial authority.
(3) Requests for restrictions of content must be clear, be unambiguous, and follow due process.
(4) Laws and content restriction orders and practices must comply with the tests of necessity and proportionality.
(5) Laws and content restriction policies and practices must respect due process.
(6) Transparency and accountability01 must be built in to laws and content restriction policies and practices.
By virtue of offering safe -harbour protection to Internet intermediaries under Section 79 of the IT Act, India can be said to comply with the first of these principles (Intermediaries should be shielded by law from liability for third-par-ty content). The immunity enjoyed by intermediaries is of course conditional, and there is ambiguity in law that make compliance far from easy, yet immunity under law is nevertheless provided for.
The second of the Manila principles (content must not be required to be restricted without an order by a judicial authority) is more or less respected under Indian intermediary liability laws, as intermediaries are required to take-down content only on receiving a court order or Government directive asking them to do so. Though government directives are not orders by judicial authorities, it must be noted that Indian laws do not ask intermediaries to exercise their own judgment in taking down content. Intermediaries are no longer obligated to remove content on receiving notices from any affected third- party. Rather, an independent determination as to whether or not particular content should be removed is taken by the judiciary or executive, then conveyed to intermediaries (for takedowns in situations of IP disputes, there still exists a notice-and-takedown regime, at the behest of the rightsholder).[3]
The third Manila principle (requests for re-strictions of content must be clear, be unambiguous, and follow due process) does not see much compliance in the Indian legal frame-work. It can be argued that takedown orders issued by the judiciary or executive or those received under the Copyright Act are bound to be clear, unambiguous and in compliance with due process, in that the orders will always clearly direct takedowns, specify the particular content to be removed and be authorized by relevant law. However, intermediaries also receive what are effectively takedown orders through other channels, such as Section 91 of the CrPC, which does not have the requisite checks and balances in place against abuse.
The fourth principle (laws and content restriction orders and practices must comply with the tests of necessity and proportionality) is not fully observed in India, most notably in cases of alleged copyright infringement. Indi-an courts routinely issue website blocking orders to intermediaries like ISPs on the basis of petitions alleging copyright infringement against a large number of websites at once. It is not uncommon for such orders to target thousands of websites and URLs at the same time, a large number of which may not even contain in-fringing material. As the lists of websites and URLs to be blocked are so populous, it can be said with certainty that no detailed examinations of alleged infringements are undertaken before issuing take-down orders, and even in cases where copyright infringement does exist, whole websites are frequently directed to be taken down even if specific URLs within these websites will suffice.
The fifth Manila principle (laws and content restriction policies and practices must respect due process) is not fully observed in India. With respect to legal provisions specifically related to intermediary liability i.e. Section 79 of the IT Act and the Intermediaries Guidelines Rules, deviations from due process include the absence of opportunities for content creators to defend their content, and the absence of means to restore content that has already been removed. As for provisions that are unofficially used to direct content takedowns like Section 91 of the CrPC, the question of due process does not even arise because such provisions are not rightfully to be used for this purpose.
The final Manila principle (transparency and accountability must be built in to laws and content restriction policies and practices) too does not find compliance in India, especially with regard to content taken down under Section 69A of the IT Act. Rules framed under Section 69A stipulate that strict confidentiality must be maintained around complaints made, orders issued and action taken under the provision, and reasons for takedowns are never disclosed to the public. Websites and URLs blocked under Section 69A simply state that blocking order have been received from the Government. Moreover, requests made under the Right to Information Act for details on blocked content are consistently turned down by citing the confidentiality clause built into the regulation.
In review, India’s compliance with the Manila principles, though improved over the past few years, is still wanting in many respects.
By Siddharth Dalmia
The StartUp Sherpa
+91-9971799250
dalmiasiddharth1994@gmail.com
[1] Manila Principles on Intermediary Liability, MANILA PRINCIPLES, https://www.manilap-rinciples.org/ also accessible at Appendix [.] [2] Ibid [3] IP Effect - Distinguishing Actual Knowledge from Shreya Singhal, discussed previously
