Over the last year, there has been a remarkable trend of Supreme Court judges speaking out, both in the courtroom and at public events, about the increasing pressures they face from commentary on social media.
Last year, while hearing arguments in a case involving WhatsApp, the now-retired Supreme Court Justice Deepak Gupta had remarked about how innocents were being trolled online and how anonymous entities used social media to drag reputations through the mud.
Chief Justice Bobde made similar remarks in the context of judges feeling harassed by commentary on social media and how it was likely to affect the performance of some judges.
A few months earlier, a different bench consisting of Justices Indira Banerjee and Ajay Rastogi, spoke about how even judges had to face the brunt of social media. Similarly, during an online lecture on fake news and misinformation, earlier this year, Justice Sanjay Kishan Kaul spoke out against a social media fueled intolerance against the judiciary, especially the trend of imputations being made against the judiciary.
The latest utterance is by Justice N.V. Ramana, in line to be the next chief justice, who recently commented about judges becoming the target of “slanderous social media postings”.
While it is unprecedented for so many judges of the Supreme Court to voice a similar opinion about any form of media, none of the above utterances are surprising.
The Indian judiciary has not been accustomed to much criticism in the traditional media, mostly because of the liberal use of contempt proceedings by various high courts and the Supreme Court against editors and journalists.
The commentary on social media has most surely come as a rude surprise for most of the higher judiciary and they are acting out in various ways, from launching contempt proceedings against ordinary citizens to issuing gag orders.
What remains to be seen is how this aversion to social media commentary plays out in cases involving disputes over the extent of legal immunity offered to social media platforms by the law.
Back in the early 1990s, when the internet was still in its infancy, it was an American judge who carved out the first immunities for internet service providers and online bulletin board administrators in the Netcom case. Faced with questions of liability of the intermediaries for content posted by third party users, Judge Whyte ruled that no liability could be attributed to Netcom, which was the intermediary, for acts of their users until they had been specifically informed of the problematic content by the party aggrieved. Once informed, the clock on their liability would begin to tick if they did not take down the content.
A few years later, the US Congress codified the Netcom test into the now famous ‘safe harbour’ provisions of the Digital Millennium Copyright Act (DMCA), 1998 which then served as a template for other countries. The immunities offered to intermediaries had vast implications for the growth of Silicon Valley because liability for content is the greatest risk faced in the information business – just ask any editor in the news business. By providing Silicon Valley with de jure immunity for third party content, policymakers and judges significantly reduced the business risks faced by Silicon Valley making it possible for them to experiment with various business models, including social media.
In India, policymakers did not take the same route. The Indian version of intermediary liability, contained in Section 79 of the Information Technology Act required all intermediaries to exercise “due diligence” while dealing with third party content in order to enjoy immunity for such content. The phrase “due diligence” is quite vague and for all practical purposes, the interpretation of that crucial phrase was left to the judiciary.
Five years ago, when Silicon Valley was still the darling of the world, the Supreme Court interpreted Section 79 in the Shreya Singhal case to provide intermediaries like Facebook and Google with an expansive immunity from the law i.e. the court said they would be liable only after a court made a decision on the legality of the content and they had been informed about such a court order. This gave internet intermediaries far more protection in India than in other jurisdictions. As I have argued earlier in these pages, this interpretation of the law was incorrect and entirely lacking in any cogent reasoning. The outcome, however, serves as a useful reminder of the outsized influence that judges of the Supreme Court can have on the interpretation of the law.
The trillion-dollar question for Silicon Valley, and now even Indian intermediaries, is whether a Supreme Court filled with judges who feel besieged by social media-fueled criticism, will feel as sympathetic towards internet intermediaries, the next time the court is faced with a case involving an interpretation of Section 79?
It is no secret that outcomes of legal cases in India are influenced not only by the legal rules in question but also by the approach of individual judges. There is an entire school of jurisprudence dedicated to this approach in the west. Closer home, in India, in almost every courtroom there are experienced lawyers who can anticipate legal outcomes in cases based on their knowledge of the judge’s approach.
The Prashant Bhushan contempt case was only a warning shot against Twitter. The future bears bad portents for internet intermediaries unless parliament intervenes with a more sensible model for intermediary liability that will increase the burden on Silicon Valley to reform its hate-fueled business models.
Prashant Reddy is a lawyer.