LESSONS FOR THE INDIAN LIABILITY FRAMEWORK

ACTUAL KNOWLEDGE ● Addressed intermediaries taking on an adjudicatory role and deciding on which content to restrict or takedown ● ● Read down “actual knowledge” to mean that there has to be a court order directing the intermediary to expeditiously remove or disable access to unlawful content online

TYPES OF INTERMEDIARIES ● Court stressed on a standard terms of use as a procedural safeguard-should have insisted on establishing terms of use and content restriction obligations that is proportional to the role of the intermediary ● Provisions should be based on the liability accrued in providing the service, including the impact of the restriction by the intermediary both on access and free speech

LIABILITY PROVISIONED UNDER SECTION 79 & 69A ● S. 79 framed as an exemption provision qualifying intermediary for conditional immunity as long as they fulfil certain conditions ● S.69A does not contribute to immunity for the intermediary rather places additional obligations on the intermediary ● The judgement distinguishes between exemption provision and additional obligations noting “being an exemption provision, it is closely related to provisions which provide for offences including S. 69A”

PROCEDURAL SAFEGUARDS ● NTD established under S. 69 framed with certain safeguards that are not present in NTD procedure under S. 79 ● Government restriction orders: no committee to evaluate the necessity, ruling does clarify that these restriction notices must be within the confines of Article 19(2) ● Could have directed government to state their entire cause of action and provide reasonable level of proof ● Could have addressed issues such as use of extra-judicial measures including collateral pressures to force changes in terms of service, to promote or enforce so-called "voluntary" practices ● Procedural uncertainty around wrongly restricted content remains, including what limitations should be placed on the length, duration and geographical scope of the restriction

ACCOUNTABILITY The judgment could have stressed accountability mechanisms which the procedure would benefit from such as: ● Owner of the information or the intermediary a hearing prior to issuing the restriction or blocking order ● Post-facto review or appeal mechanism in addition to recourse of writ petition ● Providing a recourse to restore or put-back wrongfully removed information ● Establishing penalties for frivolous requests ● Establishing codified recourse for the intermediary to claim damages when abuse can be established

TRANSPARENCY ● Court could have placed requirement of disclosure or transparency on the intermediary including what has been restricted under the intermediary's own terms of service ● Broader issues such as proactive filtering sought by government and private parties-an important consideration given the recent developments around the right to be forgotten in Europe and around issues of defamation and pornography in India

MANILA PRINCIPLES ● The Manila Principles - baseline safeguards and best practices framework that should be considered by policymakers and intermediaries when developing, adopting, and reviewing legislation, policies and practices ● Civil society groups from around the world have come together to propose this framework, based on international human rights instruments and other international legal frameworks and developed through an open consultation process ● Have been developed with aim of protecting freedom of expression and creating an enabling environment for innovation, which balances the needs of governments and other stakeholders

PRINCIPLE 1: Intermediaries should be shielded from liability for 3 rd party content ● Precise, clear, and accessible rules provided by law ● Immunity from liability for third-party content which intermediaries have not modified ● Intermediaries must not be held liable for failing to restrict lawful content nor should they be made strictly liable for hosting unlawful third-party content, ● No requirement to monitor content proactively

PRINCIPLE 2: Content must not be required to be restricted without an order by a judicial authority Intermediaries must not be required to restrict content unless an order has been issued by an independent and impartial judicial authority that has determined that the material at issue is unlawful Judicial orders for the restriction of content must ● Provide a determination that the content is unlawful in the jurisdiction ● Indicate the Internet identifier and description of the unlawful content ● Provide evidence sufficient to document the legal basis of the order ● Where applicable, indicate the time period for which the content should be restricted ● Any liability imposed on an intermediary must be proportionate and directly correlated to the intermediary’s wrongful behavior in failing to appropriately comply with the content restriction order ● Intermediaries must not be liable for non-compliance with any order that does not comply with this principle

PRINCIPLE 3: Requests for restrictions of content must be clear, unambiguous, and follow due process ● No requirement for intermediary to substantively evaluate legality of 3 rd party content ● Orders for restriction of unlawful content must contain: legal basis for claim /Internet identifier and description/ consideration of limitations, exceptions, and defences available to content provider/ contact details of the issuing party/evidence of legal standing to issue the request/ declaration of good faith and accuracy ● Requests based on intermediary’s content restriction policies must contain: reasons why the content at issue is in breach/ Internet identifier and description of the alleged violation of the content restriction policies/ contact details of the issuing party or their agent/ declaration of good faith and accuracy ● NTN - Intermediaries hosting content should be required to respond to requests by either forwarding compliant requests to the user or by notifying the complainant of the reason when not possible to do so ● Intermediaries should not be required to have the capacity to identify users ● When forwarding the request, intermediary must provide a clear, accessible explanation of the user rights, including any available counter-notice or appeal mechanisms ● Abusive or bad faith content restriction requests should be penalized

PRINCIPLE 4: Laws and content restriction orders and practices must comply with the tests of necessity and proportionality ● Any restriction of content should be limited to the specific content at issue ● When restricting content, the least restrictive technical means must be adopted ● If content is restricted because it is unlawful in a particular geographical region, and if the intermediary offers a geographically variegated service, then the geographical scope of the content restriction must be so limited ● If content is restricted owing to its unlawfulness for a limited duration, the restriction must not last beyond this duration, and the restriction order must be reviewed periodically to ensure it remains valid

PRINCIPLE 5: Laws and content restriction policies and practices must respect due process ● Before any content is restricted, the intermediary and the user content provider must be provided an effective right to be heard except in exceptional circumstances, in which case a post facto review of the order and its implementation must take place as soon as practicable ● Any law regulating intermediaries must provide both user content providers and intermediaries the right of appeal against content restriction orders ● Intermediaries should provide user content providers with mechanisms to review decisions to restrict content in violation of the intermediary’s content restriction policies. ● In case a user content provider wins an appeal under (b) or review under (c) against the restriction of content, intermediaries should reinstate the content ● An intermediary should not disclose personally identifiable information about a user without an order by a judicial authority, nor should there be any requirement to do so without an order by a judicial authority ● When drafting and enforcing their content restriction policies, intermediaries and governments should respect human rights

PRINCIPLE 6: Transparency and accountability must be built into laws and content restriction policies and practices Governments ● Publish all legislation, policy, decisions and other forms of regulation in a timely fashion and in accessible formats ● Not use extra-judicial measures to restrict content including collateral pressures to force changes in terms of service, to promote or enforce so-called “voluntary” practices and to secure agreements in restraint of trade or in restraint of public dissemination of content ● Publish transparency reports that provide specific information about all content orders and requests issued by them to intermediaries Intermediaries ● Publish clear, accessible content restriction policies—keep them updated including notifying users of changes ● Publish transparency reports including including actions taken on government requests, court orders, private complainant requests, and enforcement of content restriction policies ● Display a clear notice that explains what content has been restricted and the reason for doing so Governments, intermediaries and civil society ● Develop, maintain—independent, transparent, and impartial oversight and review mechanisms to ensure the accountability of the restriction policies and practices, the costs, demonstrable benefits and impact on human rights ● Regular, systematic review of implementation and impact of rules and guidelines—ensure that they are up to date, effective, and not overly burdensome

THANK YOU