The evolution of the liability paradigm of internet intermediaries


While the growth of internet penetration in India has led to an increase in the number of social media users, it also poses a risk of illegal activities, such as the spread of false information, hate speech and cyber threats. , and intermediaries are no longer neutral pipelines to correct information and data.

The question is therefore: should intermediaries be held liable for illegal content posted on their platforms by third parties and to what extent should they be prosecuted? Soon, India is expected to come up with rules to regulate social media platforms to mitigate the risks to internet consumers. But should India move from a “they didn’t know” standard to a “they should have known” standard?

Supratim Chakraborty, Partner, Khaitan and Co., said entrepreneurs also need to know if they fall under intermediaries, as the definition of the word was also a problem, with some clarity lately. While due diligence should be exercised by intermediaries, Chakraborty believes they are still opposed to it, considering authorship tracing an issue if companies use end-to-end encryption.

He said social media intermediaries with 5 million registered users must appoint compliance officers, a nodal contact person and a resident grievance officer, and must understand Indian sensitivities to create a model around the India.

Anushka Sharda, Partner, Khaitan & Co., said appointing a compliance officer could also lead to excessive censorship, as he could be the only person held accountable despite not being the decision maker. Additionally, the 24-hour time limit for removing offensive content may not be practically possible. She said there may not be a perfect solution to regulating social media intermediaries as technology will always overtake the law, but hopes the rules will continually evolve to address the issues.

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