Social Media Platforms and their responsibility to curb the spread of fake news
The Madras High Court (“Court”) on September 19, 2019, has observed in the case of Antony Clement Rubin v. Union of India & Ors. that social media companies should be held accountable for damage done to society due to fake news or rumors being spread on their platforms.
Background of the Case
This petition was originally instituted before the Court, seeking linkage of Aadhaar card or other Government authorized identity proof to social media accounts, to ensure traceability of anonymous persons on the Internet, engaging in cyber bullying. Subsequently, the Court in the proceedings expanded the scope of the petition to include issues namely intermediary liability, and curbing cybercrime.
On September 19 2019, Antony Clement Rubin (“Petitioner”) filed an application before the Court to amend the original prayer in the petition, to remove mention of Aadhaar, and instead seek authentication of ‘any Government authorized identity’ for the creation of an account on social media platforms. However, the Court did not entertain the application and went on to discuss the importance of holding social media companies accountable for user content, observing that they should not escape such liability by claiming the defense of ‘merely being an intermediary’. It laid emphasis on the potential psychological damage to individuals that could be the result of fake news, hate speeches and misinformation. It stated that the social media platforms could not evade liability for the disruption of law and order caused due to content made available by them.
Counsel representing the social media company Whatsapp, made the argument that linking any identity to social media accounts would constitute a violation of the right to privacy that was recognized as being guaranteed by Article 21 of the Constitution of India (Justice K.S Puttuswamy v. Union of India). Responding to this argument, the Court stated that the right to privacy as envisaged by the Constitution of India was not absolute and it had to be balanced against the impact of such content on peace in society. Such user content tended to have wide ranging implications on societal peace.
This case raises the age-old question of whether intermediaries should be made answerable for content on their platforms. They have been classified as ‘intermediaries’ as they facilitate information exchange between people without exercising control on the content. Unlike newspapers that have editors to control what is published, these platforms lack such control. For this reason they are allowed immunity from being prosecuted for user content under Section 79 of the Information Technology Act, 2008, popularly known as the ‘safe harbor doctrine’. This is subject to the intermediary fulfilling other requirements of Section 79, that it has to take down content alleged to be illegal within 36 hours of the receipt of an order from a court having jurisdiction or a government authority. Going by the observations of the Court in the instant case, the obvious solution would be to amend Section 79 to include more stringent obligations on such intermediaries to control user content. However, that would result in impeding the freedom of users to express themselves, and also create greater obstacles for the platform’s business. The provision appears to be sufficient in its present form. Instead of attempting to resolve the issue of fake news and cyber bullying by way of legislative amendments, a more workable solution could be to introduce measures to motivate such social media companies to implement internal changes to deal with these issues. For instance, in 2018 Whatsapp introduced an indicator to mark messages that have been forwarded, to ensure that recipients of the message are able to identify the source of content, aimed to control the spread of misinformation.
Further, to resolve the issue of cyber bullying and the spread of misinformation, it is required that there be better implementation of the laws in existence governing cyber crimes. In the instant case, the Petitioner was motivated to file this writ petition, as the police did not revert to him regarding his complaint against an anonymous user posting repeated threats on a social media platform.
It is a question of balancing the freedom of speech and expression on the one hand and societal interests on the other. Though the Court has laid emphasis on the latter, it has not decided the matter in its entirety and it is yet to be seen how these observations fit in the larger context of the case.
Disclaimer: This post has been prepared for informational purposes only. The information/or observations contained in this post does not constitute legal advice and should not be acted upon in any specific situation without seeking proper legal advice from a practicing attorney.