This week, on the edges of RightsCon Southeast Asia in Manila, Philippines, digital rights groups from around the world came together for two days of intensive work to finalize a new, ambitious standard to safeguard freedom of expression and innovation online. The approach the document takes to further these objectives is by focusing on the liability of Internet intermediaries—such as search engines, web hosts, social networks, domain hosts and ISPs—for online content of their users. Hence the document, officially launched today to applause from delegates of every continent, is named the Manila Principles on Intermediary Liability.
The six simple principles that the document advances, in summary form, are:
- Intermediaries should be shielded by law from liability for third-party content
- Content must not be required to be restricted without an order by a judicial authority
- Requests for restrictions of content must be clear, be unambiguous, and follow due process
- Laws and content restriction orders and practices must comply with the tests of necessity and proportionality
- Laws and content restriction policies and practices must respect due process
- Transparency and accountability must be built in to laws and content restriction policies and practices
By chance, on the very same day that the Manila Principles were released, a far-reaching court decision [PDF] was handed down that shows exactly why principles such as these as important. The decision, of the Supreme Court of India, struck down the notorious Section 66A of the Information Technology Act, which since 2009 had allowed both criminal charges against users and the removal of content by intermediaries based on vague allegations that the content was “grossly offensive or has menacing character”, or that false information was posted “for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will”. Not only is the potential overreach of this provision obvious on its face, but it was, in practice, misused to quell legitimate discussion online, as in the case that prompted the plaintiff in this case to take action; that of two young women, one of whom made an innocuous Facebook post mildly critical of a city shutdown, and the other who “Liked” it.
The court's judgment ruled that section 66A infringed the fundamental right of free speech and expression guaranteed by Article 19(1)(a) of the Constitution of India. Justice Nariman wrote:
Information that may be grossly offensive or which causes annoyance or inconvenience are undefined terms which take into the net a very large amount of protected and innocent speech. A person may discuss or even advocate by means of writing disseminated over the internet information that may be a view or point of view pertaining to governmental, literary, scientific or other matters which may be unpalatable to certain sections of society. … In point of fact, Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net. Such is the reach of the Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total.
The relevance to the Manila Principles arises in that the intermediary liability provisions of Indian law were also under consideration in the case. Section 79 of the Act provided that an intermediary's immunity from liability could be suspended if it fails to take down content upon “receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit [an] unlawful act”. The court ruled—channelling principle 2 of the Manila Principles—that section 79 did not make intermediaries liable for such illegal content unless they failed to comply with an order directing them to remove it, rather than merely a private party request. The court did not go further and limit this to a court order, or strike down rules that allow for court-ordered blocking, as we think it should have done, but nonetheless this case is a victory against government overreach that attempts to use intermediaries as a chokepoint to restrict constitutionally protected communication online.
This landmark Supreme Court of India decision vindicates the approach we took in the Manila Principles, holding that there are no circumstances in which private parties should be able to force content offline simply by sending a notice to an Internet intermediary; because this opens the floodgates for the infringement of users' freedom of expression and other human rights online, as well as inhibiting intermediaries from offering innovative services that build on user-generated content. We'll be writing more about the Manila Principles on Intermediary Liability in future posts. Meanwhile, we encourage you to read the principles in full and to add your endorsement if you agree that intermediaries should not be made liable for their users' communications, in order to promote freedom of expression and online innovation.
Correction: an earlier version of this report misidentified the two young women as plaintiffs in the case. Details of the subject of their Facebook post and the effect of the order in relation to section 79 have also been clarified.