JUDGMENT DAY FOR THE LEGAL STATUS OF SEARCH ENGINES IN INDIA: ARE “AGGREGATORS” LIABLE AS “SOCIAL MEDIA INTERMEDIARIES”?
BY KABIR SINGH
The Government of India released the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 in February 2021 (herein after referred to as IT Rules, 2021) under the Information Technology Act, 2000. These Rules are one of the most talked about and controversial pieces of legislature in recent times. The Rules mainly aim to regulate social media, digital media and Over-The-Top Platforms. Many of the applicants have moved various High Courts, and even the Supreme Court, questioning the constitutional validity of these Rules. Whilst these challengers occupy most of the attention of India, another gigantic covert legal battle
On 2nd June 2021, in the High Court of Delhi, Google LLC challenged a single judge’s order of holding Google as a “significant social media intermediary” (herein after referred to as SSMI) under the IT Rules, 2021. This case must be followed closely, as it is akin to a ticking time bomb, which is going to potentially affect the digital experience of 622 million Indian internet users, soon expected to reach 900 million. Search engines for the common man are akin to the gateway of the entire internet and they pass through it almost every day. Before continuing, we must first understand how exactly Google came to be termed as a social media intermediary. For this, an overview of the judgment of [X v. Union of India and Ors](https://web.archive.org/web/20221222090305/http:/164.100.69.66/jupload/dhc/AJB/judgement/20-04-2021/AJB20042021CRLW10822020_142528.pdf)., which led to the above-mentioned challenge, is needed.
Case Background – A petitioner had approached the High Court of Delhi, with the grievance that some of her private images and photographs had been posted on a pornographic website, by the name of “www.xhamster.com” by an unknown user named “Desi Collector”. The images available were from the petitioner’s private social media accounts of “Facebook” and “Instagram”. They had been posted unlawfully and had been taken without her consent or knowledge. Under this matter, the single bench judge has applied the new IT Rules, 2021 to issue a direction of de-indexing and de-referencing the offending content globally within 24 hours on 20th April. The direction was issued to “search engines Google Search, Yahoo Search, Microsoft Bing and DuckDuckGo*”. While the directions application on a global scale has also been challenged, our primary focus will be on the applicability of the IT Rules. Some of the main rules applied by the Judge while passing the judgment were Rule 3(2)(b), Rule 3(1)(j), Rule 4(8) and Rule 7. Essentially, the judgment treats Google as a “significant social media intermediary” and thus establishes the precedent of them coming under the purview of the IT Rules, 2021. This is precisely what Google wants to avoid, and has thus called their treatment as “misinterpreted and misapplied under the IT Rules” by the Judge. This precedent has numerous implications, as while Google already carried the regulatory burden of being an intermediary, it must now also carry the regulatory burden of being a social media intermediary (herein after referred to as SMI). This means complying with the special due diligences prescribed by the IT Rules 2021, such as mandatory storing user’s registration information for at least 180 days (Rule 3(h)), mandatorily providing user/content information to law enforcement within 72 hours of their request (Rule 3(j)) etc. Due to possessing more than 50 lakhs users, Google shall also qualify as a SSMI. SSMI’s have to follow even more regulations than SMI’s, such as appointing a Chief Compliance Officer who can be held criminally liable on the event of Google’s failure of adhering by the IT Rules 2021 (Rule 4(1)(a)); appointing a nodal contact person solely for co-coordinating with law enforcement agencies for ensuring compliance with government requests (content takedown, user data requests etc.) (Rule 4(1)(b)). Of course, non-compliance with any of these rules would lead to the revocation of the safe-harbour clause enjoyed by all intermediaries (Section 79(1) of the Information Technology Act, 2000). Section 79(1) is extremely integral for the functioning of any intermediary, since according to it, no intermediary can be held liable for any third-party data or information hosted by them, while keeping in mind the conditions laid in Sections 79(2) and (3), thereby providing intermediaries a safe harbour and granting them legal immunity. Thus, Revocation of the safe-harbour clause would change Google’s legal status from an intermediary to that of a publisher, leaving them open to actions and lawsuits for content posted/hosted on their platform. This is precisely why safe-harbour clauses are internationally recognised as being essential for the functioning of any intermediary. Now that we have an understanding of the implications and significance of the case, let us take a look at their main arguments.
Search Engine Arguments – Google considers itself as an “aggregator”, fundamentally different from SMI’s and thus considers themselves removed from the purview of the applications of the IT Rules, 2021. They have submitted that they have a limited passive role in the actual functioning of search engines, as they are functioning autonomously via “crawlers”. These are automatic software which analyze the content of a website they visit. Afterwards, they sort the analyzed data from the websites into an “index”, which is similar to a library catalogue. The “crawlers” group similar content together and the entire process is considered to be completely automated and passive. “Index” has been referred to as a library catalogue. Being similar to one; they only consist of the location of a particular piece of information, and do not contain the actual information itself. This is precisely what differentiates them from “publishers”, as “indexes” only categorize already existing information, unlike the former. The main line of difference between “search engines” and “publisher websites” lies on the matter of how they both treat their content. The former only indexes it, and does not publish, host or control it. The latter on the other hand, hosts content on a digital platform, which is controlled by someone, such as the owner. In such cases, the owner is considered as the “publisher” of the content on their website. Google’s spokesperson said that search engines are only the reflection of the information available on the internet, and that the Delhi High Court’s order has obligations which would lead to Google’s classification as a SSMI.
Validity of Claims and Future Possibilities – While legal experts do believe that Google’s claim has merit, these views are not free from worries. The primary common concern is that despite not being a social media intermediary, Google is still an intermediary (same has been confirmed by themselves), and as mentioned earlier, is also exceeding the threshold (50 lakhs users) for being a SSMI as notified by the government under Rule 2 (v). Another concern is the fact that due to the presence of the term “online interaction” in Rule 2 (w), the purview of the Rules has increased drastically. Legal experts predict that they might even be applicable on any digital platform which facilitates communication such as emails, chat boxes, multiplayer games, search engines etc. Going by the sweeping application of the IT Rules 2021, Google might be potentially liable, because it allows users to communicate with one another via auxiliary features such as reviewing any place or book on Google. To elucidate, consider the Google review feature. Upon googling a book, such as the Lord of the Rings, on the right side of the page, one might notice the sub-section of “Audience Reviews”. This heading consists of the reviews left by readers, which indirectly also allows them to communicate with each other. This is merely one example of potential places where users might be able communicate with each other. However, contrary to the above concern, the Ministry of Electronics and Information Technology published the ‘Frequently Asked Questions on The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (herein after referred to as “FAQs”). FAQ 12 states that business transactions related intermediaries, such as Search Engines are typically beyond the scope of SMI’s. The key word in this is “typically”, which suggests that this exclusion is not absolute and at the end of the day may be open to legislative and judicial interpretation. The same is apparent by the High Court’s decision in the present case. Hence, Google’s and legal expert’s worries are not misplaced. As mentioned earlier, Google had challenged the Judge’s order in the Delhi High Court on 2nd June 2021. They had utilized most of the arguments mentioned above; the stark difference between a “significant social media intermediary” & an “aggregator” was also drawn & highlighted and finally an interim order for protection against any possible coercive action under the IT Rules, 2021 was requested. However, this request was rejected and only a notice in the same matter was issued to the Center, Facebook, the plaintiff whose images were leaked, Internet Service Providers’ Association of India, the pornographic site on which the images were leaked and the Delhi government (parties involved in the first case). The author believes that Google’s claims, despite being rejected by the Court, have a solid and stable legal ground. They are supplemented by international jurisprudential precedents, and possess veracity. To illustrate, Courts in the U.K. have not declared Google as a SMI, and noted that search engines are a “different kind of internet intermediary”. The Court in Metropolitan International Schools Limited accepted the argument that search engines are not publishers, and instead mere facilitators, and thus dismissed a defamation complaint filed against Google. This case also noted that a similar position has also been followed by Courts in Spain, which in the case of Palomo held that search engines cannot be held liable for disseminating third-party content. Even US Courts, in the IP-infringement case of Perfect 10 indirectly noted Google’s role as an index, by holding that they cannot be held liable since they have not disseminated the infringed content in question, and merely hosted links to third-party infringing websites.
Conclusion – It must be noted that around 15th July 2021, the government of India withdrew a letter from Apple asking it to comply with the IT Rules, 2021. This might be indicative of the government’s attitude of letting SSMI’s scope being equivalent to a common man’s prima facie understanding of them i.e. being restricted to only social media platforms and not on any intermediary beyond it. The author concurs with such a view, and believes that search engines, and other similar non-social media intermediaries should indeed be excluded from the scope of Significant Social Media Intermediaries, as defined under the IT Rules 2021. Nonetheless, the above cannot be unfortunately determined in an absolute and concrete fashion, while keeping in mind the vagueness of the FAQ’s and the IT Rules themselves. The confusion and lack of clarity surrounding the IT Rules, 2021 serves as a reminder of the need of more interaction between the state and intermediaries. As of now, all eyes shall be on the Delhi High Court’s decision, as it might be the determiner of whether Google is a “significant social media intermediary” or an “aggregator”, while also setting a landmark precedent for all the other search engines in India.