Gatekeeper Liability and the Intermediary Dilemma

Gatekeeper Liability and Intermediary Dilemma have become the central issue in the modern world. As digital platforms and intermediaries increases control over the flow of the information. Question arises that how far their responsibility should extend when any misconduct occurs. At the heart of this lies the intermediary dilemma: should platforms be held liable for? should platforms be treated as neutral facilitators? or accountability shall be fixed as publishers? 

The internet has brought a massive change in the way we interact or communicate. It has decentralised the power of communication infrastructure. In earlier times if you wanted to get your word out or if you wanted to communicate with the mass audience, you had to get through the bureaucrats , you had to get the approval from the editorial gatekeepers of those centralized system of communication and only after than you can be aired. For eg. if you are writing a book you have to pre approved it, if you want to get on FM it had to be approved. But now, in the internet era or digital era it has completely changed and the power has been decentralised. Now if you want to put your words out, you have to send a message and want to communicate with the mass irrespective of city, country. you don’t need anyone’s approval or permission, you just go ahead and communicate.

Now, as it revolutionizes the right to speech it also gave rise to an eminent threat i.e. whom to held liable if it violates the law? you can say just simply held speaker liable. Is that so? over internet speaker can be from any country or jurisdiction. Speaker can be anonymous, they tend to be hiding behind the fake identities? In that case whom to be held liable for if speaker is unknown and cannot be traced? This is where Gatekeeper’s Liability comes into the picture.

Understanding Gatekeeper Liability

“Gatekeepers” are intermediaries – Professionals/Entities which functions as the checkpoint in flow of the information/transactions across platforms ensuring compliance with the laws. Examples are social media platforms, credit rated agencies, search engines, Internet service providers (ISPs) and content delivery networks (CDN) which acts as gateways to online content.

Gatekeeper Liability in Earlier Times – (Pre Digital Era)

In pre digital era gatekeeper liability primarily focused on the intermediaries who were in a position to control the flow of the information or goods and were held responsible for preventing misconduct. The liability was primarily based on direct control of specific channels and mediums and vicarious liability.

1. Controlling Middlemen
2. Publishers and Booksellers
3. Enforcement/Legal Actions
4. Vicarious Liability

Gatekeeper Liability in Today’s Time – (Digital Era)

In today’s era i.e. digital era of 21st century “gatekeepers” expanded beyond professionals to include digital intermediaries such as commerce platforms, social media platforms, data processors etc. Gatekeeper liability in India is an evolving field/area of law, which is shifting its ambit from safe harbour to more robust and responsibility driven framework through key legislations Like IT rules, 2021, Digital Personal and Data Protection (DPDP) Act, 2023 and proposed Digital Competition Bill 2024.  

Why it is difficult to hold primary speakers liable online?

1. Speakers can be anonymous
2. They can be in different jurisdictions
3. Online speakers can use fraudulent identities
4. There can be many speakers regarding same content

Why does the law hold platforms/Intermediaries Liable for the wrongdoing of their users?

1. Platforms financially benefit from their users. If they benefit, they should pay a price as well. i.e. they should have a system in place to catch the wrongdoers.
2. Platforms facilitate the wrongdoing of their users.
3. Users may abscond, but platforms rarely do.

The Liability of intermediaries can be understood by distinguishing between 2 types of platforms – one who act as Neutral Intermediaries (Distributors) and one who act as Content Controllers (Publishers). The extent to which a platform exercise editorial control over the content determines the platform’s legal character. Platform who is acting as neutral intermediary (distributor) and do not perform editorial role will not be liable for third party content whereas platform who is acting as a content controller (publisher) and performing editorial role will be held liable for any illegal or wrongful content published hence publisher in this case will be held liable for any content published.

Technically if a platform chooses to control the editorial rights, it ceases to be an intermediary for that content. Indian law does not give intermediary a free choice to alternate between immunity and liability whereas their conduct determines the liability. Hence it can be truly said that “the extent of editorial control over the platform determines the functioning of the platform whether it functions as neutral intermediary or as a publisher”.

“AVNISH BAJAJ VS. NCT OF DELHI” also known as bazee.com case also known as DPS MMS Scandal case was the first case where Intermediary Liability was acknowledged as a serious issue in india.

Key Judicial and Policy developments

Shreya Singhal Vs. Union of India

Information Technology Rules, 2021 – Intermediary Guidelines & Digital Media Ethics Code

Section 79 of IT Act : Section 79 of the IT Act, 2000 says that any intermediary shall not be held liable for any 3rd party information, data or communication link made available/hosted on it’s platform. The protection to intermediaries under section 79 of IT act shall not be applicable if the said intermediary in any way :

a. Initiate the transmission of message in question.

b. Select the receiver of the text message.

c. Modify any information contained in the transmission.

It simply means until and unless platform is just acting as a messenger who is carrying a message without interfering in any manner it will be safe from legal prosecution.

Case Laws related to Intermediary Liability

1. 1.  Shreya Singhal Vs. Union of India
   2. Myspace Inc Vs. Super Cassettes Industries Ltd. 
   3. Kent RO Systems Ltd. Vs. Amit Kotak & Ors. 
   4. Christian Louboutin Vs. Nakul Bajaj & Ors.
   5. Amazon Vs. Amway
   6. Google India Pvt. Ltd. Vs. Visakha Industries Ltd. & Ors.
   7. Kunal Kamra Vs. Union of India (UOI) 

Conclusion

In pre digital era and Digital era the principle of intermediaries remains the same i.e. to control the access, influence trust and enable compliance or face legal consequences.