In this article, Aditya Arora who is currently pursuing Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata, discusses the liability of Facebook in India if a crime is committed through use of their service.

• Under the Information Technology Act, 2000 the term ‘intermediary’ has been defined under as “intermediary”, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes Telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes.[1]”
• The amendment to the 2008 Information Technology Act has further clarified and widened the ambit of intermediary and now also includes telecom providers, internet providers, online payment platforms, online market places, web hosting service providers, etc. ISPs like Airtel, BSNL, Idea and social media websites such as Facebook, Google, etc. have now been included under the term ‘intermediary’ under the Act.
• Since Facebook is a platform giving options to people to socialize, therefore it will be considered to be an intermediary for the purposes of determining its liability under the Information Technology Act. One of the famous examples outlining intermediary’s liability is the Baazee case where the CEO of the service provider was jailed for selling obscene MMS Clip on its platform, otherwise banned by law.
• The Baazee case highlighted the extent of liability to which the online service providers can be exposed to. Though in this case the content was generated by a third party, intermediaries could still be held liable for offences committed by their users while using the services.
• “The Delhi High Court while considering a petition to quash the criminal proceedings against Avnish Bajaj in this case, found that the website which hosted the MMS could be held to be liable for ‘Sale etc… of obscene books’ under Section 292 of IPC as well as Section 67 of IT Act, 2000 relating to publishing of information which is obscene in electronic form. “[2]
• Section 79 of the old Act was vaguely drafted and its interpretation proved to be harsh on the intermediaries. Though the intermediaries were exempted only to the extent if they proved that they had no knowledge of the infringement or they had exercised all due diligence to prevent such infringement or offence, it made the websites liable even if constructive knowledge could be proved. This harsh approach led to the amendment of the old Act.
• In the Information Technology Amendment Act, 2008, it states that “an intermediary shall not be liable for any third party information data or communication link made available or hosted by them”[3]

But such relaxation as seen in the amendment is subjected to a set of conditions:

1. the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted;
2. the intermediary does not initiate the transmission or select the receiver of the transmission and select or modify the information contained in the transmission;
3. the intermediary observes due diligence while discharging his duties.

As a result of the amendment, it releases service providers such as Facebook, Google, Twitter of their liability as long as they satisfy the abovementioned conditions. These conditions also apply to ISPs such as Airtel, Idea, BSNL etc., thereby releasing them from the liability on fulfilling the conditions. This

This immunity, however, is not unlimited and the intermediary would loose such immunity if there is evidence that the intermediary has conspired or abetted or aided or induced whether by threats or promise or otherwise in the commission of the unlawful act.

Section 79 also introduces this concept “notice & takedown” under which it states that an intermediary would lose its immunity if upon receiving actual knowledge or on being notified that any information, data or communication link residing in or connected to a computer resource controlled by it is being used to commit an unlawful act and it fails to expeditiously remove or disable access to that material.

As mentioned above, Section 79 though provides protection to the intermediaries, they could still be held liable under Section 72A of the Amendment Act for disclosure of personal information of any person without their prior consent with the intention of causing wrongful loss in breach of a lawful contract. The Act, by the virtue of it being overridden in nature, prescribes imprisonment as punishment for such breach up to three years or fine up to five lac rupees or both.

Now let us examine various legal issues that will apply to Facebook as well its users in India

Defamation

In India, the reputation of a person is protected under section 499 of the Indian Penal Code. It includes anything in writing, electronically or published, which is not true and directed to offend an individual, will constitute to defamation. Section 500 of the IPC subsequently prescribes the punishment for defamation. Taking Facebook as an example of the social networking site, if an individual with over five thousand followers posts something defamatory pertaining to somebody with intention and such content is not even reviewed by the authorized personnel of Facebook since it is posted directly from the users page. Therefore, the issue will be with regard to the liability of Facebook for merely facilitating the platform. Under Section 4(4) of the Information Technology Rules 2011, the executives of Facebook will be held to be liable along with the user who posted such remarks, if Facebook fails to pull it down within thirty-six hours of the content being published on the platform.

Impersonation

The Information Technology Act also provides for protection of individuals from impersonation. According to section 66D of the Act, “Whoever by means of any communication device or computer cheats by impersonating someone else, shall be punished with imprisonment up to three years and shall be liable to pay a fine of one Lakh Rupees. If Facebook, by the virtue of being an intermediary does not remove the impersonating account as per the guidelines prescribed in the Act, then it would be held criminally responsible for the act and be liable for punishment, along with the individual who has committed the impersonating act, to have committed the offence of impersonation. Facebook subsequently will be unable to invoke the defences as laid down under section 79 of the Act.

Communal Hatred

Any individual who by using Facebook writes content as form of a post, which incites communal hatred and/or violence, will be held accountable under section 153A of the Penal Code, which punishes any individual or a group of individuals who incite communal hatred between two religious communities using words – either in spoken or written form. The punishment stipulated under this section is three years’ imprisonment with a fine. Facebook should remove such content from its servers once it is brought to its notice in order to be eligible to use the defence of section 79 of the Information Technology Act. If it fails to remove the content within the 36 hours stipulated as per the guidelines laid down in the Act, it will lose the protection offered under section 79. In such a situation Facebook may be held responsible as a contributing party and its executives may be charged under section 153A of the Indian Penal Code.

Obscenity

Any form of Pornographic content as well as any other obscene content, is prohibited in India. Therefore, any individual who publishes pornographic/obscene content via any social media platform will be punished with an imprisonment sentence of a minimum of five years, along with a fine of Rupees One Lakh as prescribed under the Act. Facebook is also obliged to take a note of such content being uploaded onto its social networking platform and should remove such offending content within the stipulated time limit in order to avoid prosecution, procedure of which is laid down under the Act.

Section 67 of the Act restricts publishing of electronic information in any platform which is considered to be obscene. “It prohibits any material, which is lascivious, or appeals to the prurient interest, or if its effect would tend to deprave or corrupt persons who are likely to read, see or hear the matter contained or embodied in it. After the 2008 Amendment of the IT Act in India was passed, sections 67A and 67B were subsequently added so as to specifically prohibit publishing or transmitting of material containing sexually explicit acts (depicting children, for example), in electronic form.”[4]

Conclusion

Facebook is considered to be one of the revolutionary social media platform with it being one of the most successful one in the networking sphere. With the biggest consumer base amongst all, it also gives immense responsibility to Facebook to regulate the content posted by its users. Therefore, Facebook should make every possible effort to abide by the laws of India, such as IT Act. Such legislations have been enacted in order to maintain law and order within the internet environment, because without any IT legislation, the internet would be unregulated and could result in social unrest, cyber terrorism etc, which if not stopped at the correct moment, could lead to undermining the very existence of the state.

[1] Section 2 (w) of the Information Technology Act

[2] Software Freedom Law Centre, “Intermediaries, users and the law – Analyzing intermediary liability and IT Rules”

[3] Section 79 of the Information Technology Amendment Act, 2008

[4] Rodney D Ryder and Ashwin Madhavan, Intermediary liability under Indian law, 2013