“Once, reputation was hard-earned and carefully guarded. Today, your reputation can be created or destroyed in just a few clicks.”[i]
Cyberspace interactions are on the verge of becoming a norm. These interactions have become a cradle for various cybercrimes like, Cyber stalking, Cyber Abuse, Cyber Targeting and Cyber Defamation. It becomes imperative to revamp the laws relating to cyberspace interaction due to the trigger induced by the pandemic which has tremendously increased the use of such interactions. There will be an upsurge in tort-based lawsuits including privacy torts and defamation after the pandemic eases down.
Facebook and Twitter and various Social Media platforms are such cyberspace interactions which have documented cases of defamation and other cybercrimes. The recent “Bois Locker Room” incident and the trailing incident of the suicide of a 17-year-old boy calls for a revamp of Cyber Laws in India.
While there are various blogs and papers which advocate for a balance between fundamental rights and the IT Act rules, to tackle the problem at hand, yet many have failed to address the abuse of internet for cyber targeting and cyber victimization, which underscores the debate of strengthening the existing laws. For example, while dealing with defamation we do have legislations which have worked quite effectively. However, defamation in cyberspace is poorly dealt, since, crimes in cyberspace, like cyber defamation, is not restricted by geographical boundaries.
II. CYBER DEFAMTION VIS-À-VIS U.S LAWS
Section 230(c)(1) of the Communications Decency Act of 1996 has been the locus of many lawsuits in the U.S and has been heavily criticised for its majorly abused wide scope.[ii] It reads as: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”[iii] Communication Decency Act, 1996,is the law which governs cyber defamation in the US. Another piece of legislation which dealt with same is Communication Act of 1934. Title II of the Communication Act was amended by adding Section 230.
Blumenthal vs. Drudge is an important case to be discussed when we analyse the applicability of Section 230.[iv] The court had specifically outlined the purpose of Section 230. The court stated that the primary purpose of Section 230 was to overrule the New York State court decision in Stratton Oakmont Inc. vs. Prodigy Services Co..[v] The Stratton case was a defamation case which had held Prodigy Services, an internet service provider, liable as a publisher of defamatory material. This case triggered the legislative authority to enact an immunity for the ISPs and thus Section 230 was added.
While discussing the applicability of Section 230 of the Communications Decency Act, we cannot miss to analyse the ratio laid down in the case of Zeran vs. America Online Inc.[vi] The court stated that the enactment of Section 230 was “to remove disincentives to self-regulation fearing that the spectre of liability would deter service providers from blocking and screening offensive material.” The imposition of publisher liability on a service provider is barred by Section 230. This creates a pregnable atmosphere by eliminating the possibility of check on the editorial and self-regulatory functions of the service provider. This brings us to the paradox posed by the American approach.
III. THE PARADOX IN THE AMERICAN APPROACH
Immunity in a case involving the Communications Decency Act must pass a three-part test. Firstly, the defendant must be a “provider or user” of an “interactive computer service.” Secondly, the cause of action asserted by the plaintiff must treat the defendant as the publisher or speaker of the harmful information at issue and thirdly the information must be “provided by another information content provider,” i.e., the defendant must not be the “information content provider” of the harmful information at issue.[vii]
The piece of legislation has been widely criticised for the broad ambit of immunity it provides. Various scholars have also pointed out the paradox in American Law of Defamation. If an article is published in a newspaper defaming a private individual, the paper would be liable. However, if the same defamatory article is published on an online internet site it would not be similarly liable due to the immunity provided by Section 230 of Communications Decency Act.[viii] This makes internet a viable weapon to target individuals and tarnish the reputation of the victims as Section 230 immunises them from publisher liability.
IV. INDIAN LAWS AND ITS RESONANCE WITH THE AMERICAN PARADOX
The exemptions of the liability of intermediary are outlined in Section 79 of the IT Act, 2000.[ix] The said provision has been analysed and has been conclusively remarked to be a vague piece of legislation. The ambiguity arising out of the provision has replicated the paradox faced in American due to Section 230 of the Communications Decency Act.
Section 79 of the said Act has been termed has a “safe harbour” for intermediaries since it provides conditional immunity to them from liability of third-party acts. However, this immunity is subject to Section 79(2) and 79(3) of the Act. The tussle between ‘freedom of speech and expression’ and ‘regulation of the internet’ has made scholars critically analyse the role of the intermediaries. The intermediaries are the one who facilitate the transmission of content by the third parties on the internet. A ‘notice and take down’ regime is envisaged in Section 79(3)(b)of the Act.[x] In the case of Shreya Singhal vs. Union of India[xi], the Supreme Court defined Section 79(3)(b) and thus the ‘notice and take down’ regime would require the intermediary to take down unlawful content upon receiving actual knowledge of its existence. The Centre for Internet and Society, India, have concluded that the take-down notices which empowers the intermediaries to take down the content from the internet has proved to have a “chilling effect” on free speech on the internet.[xii]
Established community standards and the prevailing policy agreements set the background for the intermediaries’ decision to act upon a reported data. The community standards envisaged by the platform is no less than a two-faced sword. They might not deem anything to be inappropriate which according to us may be so and in addition to that they might declare something to be inappropriate and in violation of their agreement and standards and can restrict our ambit of freedom of speech according to their whims and fancies. There is an absence of a legal regime which works fruitfully to regulate the content and eliminate the user-reported content.
Despite the framework laid down by the IT Act and the amendments to the Information Technology (Intermediaries Guidelines) Rules 2011, proposed by the Ministry of Electronics and Technology in 2018, to tackle various issues, the laws pose ambiguity and lack cogency. Cyber Laws are at a nascent stage of development; however, the rate in the growth and use of cyberspace interactions in India has increased exponentially. We need to race through this pandemic with breakthrough legislative steps and changes. Cyber torts have always been universal in nature and along with strong legislation we need evolution and growth of Cyber Jurisprudence. While addressing the role of intermediaries we feel that the presence of a Cyber Jurisprudence would help us navigate smoothly to a better and safer cyberspace mechanism.
Cybercrimes are no more restricted to a few groups of people who have the privilege of an internet facility. During Covid-19 era cyberspace interactions has become a norm without any alternative at our disposal. This increases the possibility of abuse without a legal remedy at our rescue. It cannot be stressed further that post Covid-19 era demands a strong framework of cyber laws, to regulate the content, and a balance for freedom of speech.
Laws targeted to cope up real world activities have not translated beneficially in cyberspace. This has increased the risk of cyber victimization phenomenally. The cyber attacker can be in no physical contact with the victim, he maybe across the state, across the country or across the globe.[xiii] Our criminal justice system has its genesis in the colonial era of Indian history. While the legislation had always needed an update, no such necessity outshined the sense of urgency brought by the covid-19 pandemic.
[i]Michael Fertik and David Thompson, Wild West 2.0: How to Protect and Restore your Online Reputation on the untamed Social Frontier 2 (2010).
[ii]Communications Decency Act, § 230(c)(1), 1996.
[iv]Blumenthal vs. Drudge, 992 F. Supp. 44 (D.D.C. 1998).
[v]Stratton Oakmont Inc. vs. Prodigy Services Co., (1995) WL 323710.
[vi]Zeran vs. America Online, Inc., 129 F.3d 327 (4th Cir. 1997).
[vii]Vakul Sharma: Information Technology Law and Practice: Cyber Laws and Laws relating to E-commerce, 6th Edition, (2017).
[viii]David A. Myers, Defamation and the Quiescent Anarchy of the Internet: A Case Study of Cyber Targeting, 110 Penn. State Law Review, pp. 667, (2006).
[ix]Information and Technology Act, § 79, 2000.
[x]Information and Technology Act, § 79(3), 2000.
[xi]Shreya Singhal vs. Union of India, (2015) 5 SCC 1.
[xii]https://cis-india.org/internet-governance/intermediary-liability-in-india (June 05, 2020, 22:34 IST).
[xiii]Jacqueline D. Lipton, Combating Cyber-Victimization, Berkeley Technology Law Journal, Vol. 26, pp. 1113, (2011).
ABOUT THE AUTHOR(S)
Aditya Shekhar is a second year law student at National Law University Jodhpur.
Abhishek Choudhary is a second year law student at National Law University Jodhpur.
In-content picture credits: mkcybersecurity.com