Dainik Jagran v. Telegram: Can Intermediaries be Held Liable for Users’ Actions
Written by Deeksha Singh
Research Associate at Law & Order (July-Aug 2020)
Fifth Year, BA. LLB. Symbiosis Law School, Pune
Source: Inc42
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order
Introduction
Social Media platforms have taken over the conventional methods of knowledge, entertainment, and print media. In recent times, social media platforms have been in the news for several negative reasons. The current issue due to which these platforms are in the limelight is because of the ongoing illegal activities carried on by some of their users. Activities such as sponsoring terrorism[1], inciting action against the State[2], sharing of illegally downloaded films[3], etc. are some of the illegal activities being conducted on these platforms.
One recent example of such an illegal activity being carried out was observed in the case of Dainik Jagran v. Telegram,[4] where the newspaper company Dainik Jagran’s e-newspaper was shared on some of Telegram’s channels. The newspaper is not free and for access to the e-paper, instead needs to have subscription to one of its plans. Dainik Jagran came to know that such activity is happening on certain channels of Telegram. Subsequently, on 09 April 2020, the newspaper issued a legal notice to Telegram, which is headquartered in Dubai, stating that Telegram needs to take cognizance of the illegal act and find the culprit groups (called ‘channels’ by Telegram) behind this and further to take them down or to block them. However, even after the service of the notice, there was no response provided by Telegram.
After serving several notices (dated 16th April 2020, 30th April 2020 and 1st May 2020) to Telegram, Dainik Jagran finally received a reply stating that the particular channels have been blocked. Yet, just after a few days, Dainik Jagran came to know that the channels are still functioning and that they have, on the contrary, grown in numbers with a wide range of viewers. It then, on the 29th of May 2020, filed a case in the Delhi High Court praying for holding Telegram liable as an intermediary under the Information Technology (IT) Act, 2000. The court agreed with the plaintiff’s contention and ordered telegram to disclose the identity of the group admins of the particular channels.
However, the court passed no comments regarding the liability of the intermediary, in this case being Telegram.
This brings up the important question of whether social media platforms like Telegram can be held liable as an intermediary due to the actions of their users.
Can intermediary be held liable for the actions of the users?
There are so many cases where intermediaries are not actually responsible for the actions of their users, but again, there have also been cases where an intermediary was held liable for the same.
One recent example where an intermediary could not be held liable was the “Bois locker room” case.
This case involved a group of young school-going boys who shared altered photos of young and underage girls and remarked explicitly on these girls.[5] Although notices were sent to Instagram, the intermediary in this case, it was the admins of the group who were arrested for the toxic conversation they had allowed to be promulgated on the platform.[6]
In the present case of Dainik Jagran, the situation is a little twisted. Telegram was told by the plaintiff to take down the channels sharing the paid copies of the plaintiff’s e-newspaper, yet it did not do so. Telegram replied to one of the notices by the plaintiff claiming that the channels have been blocked but just a few days later, the plaintiff noticed that the channel was still running and instead this time they had grown in number.
According to Section 79 of the IT Act, 2000, an intermediary has to conduct proper due diligence if it comes to know that its platform is being misused for any illicit intentions.[7]
In the instant case, Telegram can be held liable under Section 79 of the IT Act for failure to act even after receiving the plaintiff’s notices.
In the landmark case of Ashish Bhalla v. Suresh Choudhary and Ors[8], the Delhi High Court stated that
“To make an Administrator of an online platform liable for defamation would be like making the manufacturer of the newsprint on which defamatory statements are published liable for defamation. When an online platform is created, the creator thereof cannot expect any of the members thereof to indulge in defamation and defamatory statements made by any member of the group cannot make the Administrator liable therefore. It is not as if without the Administrator’s approval of each of the statements, the statements cannot be posted by any of the members of the Group on the said platform.”
It is quite clear by the above statement that group administrators are protected and they do not fall under Section 79 of the IT Act, 2000 and hence cannot be held liable if the actions are done by some other group member. However, it is still unclear as to what happens when the group administrators know of the defamatory statements or infringing content being passed by the members of their group, who post such explicit and inappropriate content on their platform regularly, yet the group admins fail to take any action against them?
During the pandemic, people started spreading misinformation and fake news regarding sources and precautions to be taken etc. about COVID-19 on the social media, and because of which an order was issued under Section 144 of the Criminal Procedure Code, 1973 via the powers granted to an Executive Magistrate, read with the Maharashtra Police Act, 1951.
The order stated that group admins would be held liable if they do not report about the false information shared by one of the group members and police will take strict action against the alleged person(s) under Section 188 of the Indian Penal Code (IPC), 1860.[9]
Though there are no provisions under any Act for liability of group admins, yet as per Section 120 (b) of IPC, members of the group can be charged for criminal conspiracy.
However, it is not that the government has not tried to pass laws for restricting the sharing of illegal and illicit content on social media platforms. It has actively sought to pass the Intermediary Guidelines (Amendment) Rules[10] for controlling such content citing reasons of terrorism and related activities.
The Intermediary Guidelines (Amendment) Rules, 2018
For long, the Government of India has dealt with the question of how to restrict unlawful content on social media platforms such as Facebook, Instagram, Whatsapp, etc. For this, it passed the Information Technology [Intermediary Guidelines (Amendment) Rules] 2018[11] in December 2018 for disabling the public from accessing unlawful content.
The Amendment proposes a larger responsibility on social media platforms as it requires the platforms to hand over the information regarding security, cybersecurity and investigation to the government bodies within 72 hours. They are then, after being notified by the government agency, required to take down or remove the content which is anti-national or is defamatory in nature within 24 hours and also to trace the origin of the same. As of now, the Rules are just a Bill and the same has not yet been passed by the Government. However, if the Bill passes, it would mean that the government would now have access to citizens’ conversations on social media. This can have a dangerously negative impact on people’s privacy, which is guaranteed under Article 21 of the Indian Constitution. The landmark case of K. S. Puttaswamy v. Union of India[12] for the first time held that the right to privacy is to be considered as a fundamental right guaranteed under Article 21 of the Constitution of India.
While one might always argue that a law such as this is necessary to curb the sharing of copyright infringing content as well to stop cases like “Bois Locker Room” from spreading, such a law would also have a drastic effect on the fundamental rights of the people. Social media platforms , such as Whatsapp, have denied following the amended Rules as it would mean that the end-to-end encryption that they provide to their consumers would now have to be stopped.[13] If the Intermediary Guidelines Rules are passed, it would stand to violate this fundamental right to privacy held in the Puttaswamy judgement.
Conclusion
As already discussed in the Dainik Jagran case, the intermediary can be liable if it neglects its responsibility to act upon the infringing parties even after it has been notified of such illegal actions taking place on its platform. In the instant case, Telegram should be held liable to the extent of not acting to take down the particular channels even after the service of several notices by Dainik Jagran.
However, in some situations, the case may not be the same. Holding an intermediary liable completely depends upon the facts of a case and how such an intermediary acted (or did not act) in such a situation.
Holding an intermediary liable for their users’ actions will also be unfair on the part of social networking sites, in such cases as it should be the particular individual or the group doing such acts which should be liable for their actions.
During the pandemic people have been sharing a lot of fake news or misinformation which again is not the responsibility of the intermediary until and unless they are aware of the same. Social media platforms like Whatsapp are one of the most trustworthy applications available due to its end to end encryption but imposing a law such as the Intermediary Guidelines (Amendment) Rules would take away the privacy of every individual as it will be infringed upon by the intermediary itself. Thus, there needs to be a careful reconsideration of the law so that in the future, intermediaries can still be held liable without the need for such a privacy-infringing law.
[1] Dipesh Gadher, ‘London Bridge terror attack planned on WhatsApp’, The Sunday Times (May 12, 2019), https://www.thetimes.co.uk/article/london-bridge-terror-attack-planned-on-whatsapp-32r38jz8v. [2] Gautam S. Mengle, State warns WhatsApp groups against fake news, hate speech, The Hindu (April 08, 2020), https://www.thehindu.com/news/states/state-warns-whatsapp-groups-against-fake-news-hate-speech/article31292240.ece. [3] Zoe Bernard, People are using the messaging app Telegram to share pirated movies and stolen Netflix and Spotify accounts, Business Insider (April 13, 2018), https://www.businessinsider.in/tech/people-are-using-the-messaging-app-telegram-to-share-pirated-movies-and-stolen-netflix-and-spotify-accounts/articleshow/63752901.cms.
[4] CS(COMM) 146/2020. [5] Andrew Clarence, Ayesha Perera, Bois Locker Room: Indian teens' lewd Instagram group causes outrage, BBC News (May 05, 2020), https://www.bbc.com/news/world-asia-india-52541298. [6] Jyoti Yadav, Delhi women’s commission wants ‘Bois Locker Room’ probed, sends notice to Instagram, police, The Print (May 04, 2020), https://theprint.in/india/delhi-womens-commission-wants-bois-locker-room-probed-sends-notice-to-instagram-police/414350/#:~:text=New%20Delhi%3A%20The%20Delhi%20Commission,and%20planning%20'gang%20rapes'. [7] Section 79, Information Technology Act, 2000. [8] CS (OS) No. 188/2016. [9] Times Now Digital, WhatsApp admins to be held responsible for ‘fake news, rumours' on groups: Mumbai top cop's order sparks row, Times Now News (May 26, 2020), https://www.timesnownews.com/mumbai/article/how-mumbai-polices-new-order-curbs-criticism-against-uddhav-thackeray-govt/596685. [10] The Information Technology [Intermediary Guidelines (Amendment) Rules] 2018. Ministry of Information and Technology, Government of India (2018). [11] S. S. Rana & Co., Analysis Of The Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018, Mondaq (March 29, 2019), https://www.mondaq.com/india/social-media/794624/analysis-of-the-information-technology-intermediaries-guidelines-amendment-rules-2018. [12] (2019) 1 SCC 1. [13] Analysis of the Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018, Lexology (March 27, 2019), https://www.lexology.com/library/detail.aspx?g=12977711-1098-4b20-83f9-e510282e0b66. Bibliography
Dipesh Gadher, ‘London Bridge terror attack planned on WhatsApp’, The Sunday Times (May 12, 2019), https://www.thetimes.co.uk/article/london-bridge-terror-attack-planned-on-whatsapp-32r38jz8v.
Gautam S. Mengle, State warns WhatsApp groups against fake news, hate speech, The Hindu (April 08, 2020), https://www.thehindu.com/news/states/state-warns-whatsapp-groups-against-fake-news-hate-speech/article31292240.ece.
Zoe Bernard, People are using the messaging app Telegram to share pirated movies and stolen Netflix and Spotify accounts, Business Insider (April 13, 2018), https://www.businessinsider.in/tech/people-are-using-the-messaging-app-telegram-to-share-pirated-movies-and-stolen-netflix-and-spotify-accounts/articleshow/63752901.cms.
Times Now Digital, WhatsApp admins to be held responsible for ‘fake news, rumours' on groups: Mumbai top cop's order sparks row, Times Now News (May 26, 2020), https://www.timesnownews.com/mumbai/article/how-mumbai-polices-new-order-curbs-criticism-against-uddhav-thackeray-govt/596685.
Yatti Soni, Dainik Jagran Vs Telegram Revives Platform Liability Debate Over Newspaper PDFs, Inc42 (June 22, 2020), https://inc42.com/buzz/dainik-jagran-vs-telegram-revives-platform-liability-debate-over-newspaper-pdfs/.
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S. S. Rana & Co., Analysis Of The Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018, Mondaq (March 29, 2019), https://www.mondaq.com/india/social-media/794624/analysis-of-the-information-technology-intermediaries-guidelines-amendment-rules-2018.
Times Now Digital, WhatsApp admins to be held responsible for ‘fake news, rumours' on groups: Mumbai top cop's order sparks row, Times Now News (May 26, 2020), https://www.timesnownews.com/mumbai/article/how-mumbai-polices-new-order-curbs-criticism-against-uddhav-thackeray-govt/596685.
Jyoti Yadav, Delhi women’s commission wants ‘Bois Locker Room’ probed, sends notice to Instagram, police, The Print (May 04, 2020), https://theprint.in/india/delhi-womens-commission-wants-bois-locker-room-probed-sends-notice-to-instagram-police/414350/#:~:text=New%20Delhi%3A%20The%20Delhi%20Commission,and%20planning%20'gang%20rapes'.