Gaurav Pathak*
The Supreme Court has delivered an important verdict[1]on the power of the Delhi Legislative Assembly’s Peace and Harmony Committee to summon Facebook over its involvement in the Delhi riots. While examining the constitutional norms of legislative privilege and functions of the Assembly, the Supreme Court has also extensively discussed the role of social media platforms, which claim themselves to be “intermediaries”. The concept of “intermediary” is an important part of Information Technology Law in India as it is directly related to liability. Non-recognition as an intermediary threatens the very business model of social media. This article aims to discern if Facebook is no longer an intermediary from the observations of the Supreme Court.
GROWING INFLUENCE OF FACEBOOK AND THE ADDITIONAL RESPONSIBILITY OF AN INTERMEDIARY
Facebook, with more than 2.65 monthly active users, is the biggest social media platform in the world.[2] It has always claimed that Facebook is simply a platform where messages are transferred from one person to the other. When Facebook challenged the summons issued by Peace and Harmony Committee, it compared itself to messaging services like WhatsApp, Signal, Telegram and claimed that like them, Facebook was also not liable for third-party information hosted on it. Facebook also claimed that Section 79 of the Information Technology Act, 2000[3] directed only due diligence by intermediaries, and as Facebook did not initiate or control any transmission, it cannot be held liable for any third-party content. However, this simple definition does not cover everything that Facebook does. Facebook might have started as a platform to share posts and images, but has grown on to become a digital behemoth. It donned the role of a broadcaster when it decided to live-stream La-Liga, the Spanish Football League[4]. Facebook has taken editorial decisions on numerous occasions, be it widespread removal of posts[5], or first deleting, then re-instating the photo of the Napalm Girl[6]. Its decision to suspend the account of President Donald Trump[7], and several other politicians[8] and government pages, is said to be censorship of the highest order like in North Korea[9]. Also, in the present case, the Supreme Court compared Facebook to a mass-circulation media platform that has concerns over editorial responsibility[10]. The Court noted that Facebook admitted to having removed over 22.5 million pieces of content in the last quarter of 2020, and hence it surely has an editorial responsibility like other traditional media platforms.
It is clear that the Supreme Court did not identify Facebook as a mere platform, but what about its status as an intermediary? Section 2(w) of the Act[11] defines an intermediary as a person who acts on behalf of other persons in relation to the transmission of the message. From the provision, it is clear that “intermediary” status is provided under the law on a case-to-case basis, or rather based on the “electronic record” in question. Thus, no platform can claim “intermediary” status in general. At the same time, the definition provided under the Act gives us a broad idea that pure messaging platforms, whose role is limited to transmitting messages, can most likely be considered as intermediaries in their function. Therefore, it can be understood that Facebook in general is not an intermediary, but can claim to be an intermediary for its operations that are covered within Section 2(w) of the Act. As a consequence, the exemption from liability under Section 79 is also on a case-to-case basis.
FACEBOOK’S USE OF ALGORITHMS AND CHANGING ROLE OF INTERMEDIARIES
While it is true that Facebook generally does not initiate any transmission, its claim of not having any control is false. The Supreme Court has said, “In this modern technological age, it would be too simplistic for [Facebook] to contend that they are merely a platform for exchange of ideas without performing any significant role themselves – especially given their manner of functioning and business model.” The Supreme Court also noted that Facebook’s “algorithms select the content based on several factors including social connections, location, and past online activity of the user. These algorithms are often far from objective with biases capable of getting replicated and reinforced.”[12] Therefore, it cannot be said that Facebook has no control over the dissemination of information. Accordingly, the Supreme Court concluded, “the role played by Facebook is, thus, more active and not as innocuous as is often presented when dealing with third party content”. These observations of the Supreme Court, although do not affect any statutory law but are vital for intermediary related jurisprudence. The finding over “control” by the highest court of the land is perhaps the biggest jolt to Facebook’s claim of being an intermediary, and could shape future legislative actions. Secondly, Facebook’s mutually contradictory claim of being a “publisher” in the United States to claim First Amendment Rights, and of being an “intermediary” in India also did not find favour with the Supreme Court. This shows that social media platforms functioning in different countries cannot have a legal strategy that operates in silos but need to have a comprehensive outlook in mind, which affects their global business.
LEGITIMACY OF THE COMMITTEE SUMMONING FACEBOOK
The Information Technology Act, 2000 was enacted using Entry 31 of Union List (List 1) of the 7th Schedule to the Constitution. Facebook contended that a Committee of Legislative Assembly of Delhi could not summon an entity that was regulated by a law whose legislative competence was solely with Parliament. In Delhi’s case, it was emphasized that “public order” and “police” was outside the mandate of Delhi Legislative Assembly due to the special scheme of constitutional provisions in this regard. The Supreme Court noted Facebook’s argument that “special entry of “communication” overrides the general entries of “inquiries” and “criminal law” (List III), which the Delhi Assembly had attempted to rely on”[13]. The Union Government also contended on similar lines and stated that the Peace and Harmony Committee was a colourable exercise of power, and could not be sustained because of the bar on legislative competence. On the other hand, the Committee relied on concepts of ragbag legislation, which suggest that “legislative and executive powers need not be traced to only one entry, but may instead be traced to multiple entries in the relevant list in the 7th Schedule.”[14] The Committee also contended that Information Technology Act, 2000 was an example of “cooperative federalism” and the statute itself recognized the role of State Governments. However, the Supreme Court while accepting the contentions raised by Facebook and the Union Government, held that the Peace and Harmony Committee can trace its legitimacy to “several Entries in List II and List III without encroaching upon the excluded fields of public order or police.”[15] Finally, the Supreme Court held “in any eventuality, as speculative as it may be, if the Committee seeks to traverse the path relating to the excluded Entries, i.e. law and order and police, any representative of Facebook who would appear before the Committee would be well within their right to refuse to answer the query and such an approach cannot be taken amiss with possibility of inviting privilege proceedings.”[16]
The contentions and the judgment show that the Supreme Court restricted itself to the task at hand, i.e. examining whether the Peace and Harmony Committee had the power to summon Facebook. While it did uphold this power, the manner in which, and the reasons that were given in this aspect will perhaps spur more litigation. The situation might become a lot like cross-examination in Trial Courts, where one side is often objecting to the questions of the other. Any Committee of the Legislature is not empowered to initiate suo-motu action, but can only make recommendations through reports. It would have been better if the Committee was allowed untrammeled powers to examine, and only the administrative action, taken in pursuance of the report of the Committee be subjected to judicial review, if required. This approach would have been in furtherance of the doctrine of separation of powers, and would also have kept a necessary check on the real and effective steps that a Government might take.
CONCLUSION
The judgment of the Supreme Court directing Facebook to appear before the Peace and Harmony Committee of Delhi Legislative Assembly is a marked change[17] in Indian jurisprudence on ascertaining liability of social media platforms. Courts until now, have consistently held the view that social media platforms cannot be held liable for the content that is present on them. Facebook, eventually, may or may not be finally held liable for the use of its platform in the Delhi riots in 2020, but the observations of the Supreme Court, which of course remain obiter dicta, cannot be left unseen. The material observations on summoning power of the Peace and Harmony Committee are a hugely important step, as companies like Facebook may now face scrutiny before myriad Committees in different States. Contradictory responses before different forums will have a worldwide bearing, and could well seriously threaten their claims of being an intermediary.
*Gaurav Pathak is a Delhi-based technology lawyer who has been associated with several landmark litigations of cyber-jurisprudence.
[1] Ajit Mohan & Ors. v. Legislative Assembly National Capital Territory of Delhi & Ors., 2021 SCC OnLine SC 456 (India).
[2] 21 Top Social Media Sites to Consider for Your Brand –, Buffer Library, https://buffer.com/library/social-media-sites/ (last visited Aug. 5, 2021).
[3] The Information Technology Act, 2000, No. 21 of 2000, INDIA CODE (2000) § 79
[4] La Liga Returns to Traditional TV in India as Facebook Deal Ends, Reuters, https://www.reuters.com/lifestyle/sports/la-liga-returns-traditional-tv-india-facebook-deal-ends-2021-07-05/ (last visited Jul. 10, 2021).
[5] Facebook Removes Seven Million Posts for Sharing False Information on Coronavirus, https://www.nbcnews.com/tech/tech-news/facebook-removes-seven-million-posts-sharing-false-information-coronav-rcna77 (last visited Jul. 10, 2021).
[6] Facebook Backs down from “napalm Girl” Censorship and Reinstates Photo, the Guardian, http://www.theguardian.com/technology/2016/sep/09/facebook-reinstates-napalm-girl-photo (last visited Jul. 10, 2021).
[7] Reuters, Facebook Suspends Former U.S. President Donald Trump’s Account until 2023, The Hindu (Jun. 4, 2021), https://www.thehindu.com/news/international/facebook-suspends-former-us-president-trumps-account-until-2023/article34731201.ece.
[8] Reuters Staff, Facebook Bans Indian Ruling Party Politician for Policy Violation, Reuters (Sep. 3, 2020), https://www.reuters.com/article/facebook-india-int-idUSKBN25U1CL.
[9] Reuters Staff, Reaction to Facebook Blocking Australian News, Reuters (Feb. 18, 2021), https://www.reuters.com/article/us-australia-media-facebook-quotes-idUSKBN2AI072.
[10] Para 150
[11] The Information Technology Act, 2000, No. 21 of 2000, INDIA CODE (2000) § 2(w)
[12] Ajit Mohan and Ors. v. Legislative Assembly National Capital Territory of Delhi and Ors, 2021 SCC OnLine SC 456 (India).
[13] Ajit Mohan and Ors. v. Legislative Assembly National Capital Territory of Delhi and Ors, 2021 SCC OnLine SC 456 (India).
[14] Ajit Mohan and Ors. v. Legislative Assembly National Capital Territory of Delhi and Ors, 2021 SCC OnLine SC 456 (India).
[15] Ajit Mohan and Ors. v. Legislative Assembly National Capital Territory of Delhi and Ors, 2021 SCC OnLine SC 456 (India).
[16] Ajit Mohan and Ors. v. Legislative Assembly National Capital Territory of Delhi and Ors, 2021 SCC OnLine SC 456 (India).
[17] Shreya Singhal v. Union of India, (2015) 5 SCC 1 (India). Facebook Inc. v Surinder Malik & Ors, 2019 SCC OnLine Del 9887 (India). Swami Ramdev and Another v. Facebook, Inc. and Others, 2019 SCC OnLine Del 10701 (India).