A case in the Supreme Court of India is going to set an important precedent in the way user generated content is looked at. Ajit D had started an anti-Shiv Sena community on Orkut, and following anonymous abusive comments on the community, a Shiv Sena member filed a police complaint under Sections 506 and 295 A. Ajit D reportedly sought the quashing of the complaint, suggesting that the comments were restricted to a community, and were an exercise of an individuals freedom of speech. Gauravonomics has put together a timeline.
A Bench of Supreme Court Chief Justice KG Balakrishnan and Justice P Sathasivam said that “We cannot quash criminal proceedings. You are a computer student and you know how many people access internet portals. Hence, if someone files a criminal action on the basis of the content, then you will have to face the case. You have to go before the court and explain your conduct.”
Why is this important for us?
We’re looking at this from a liability perspective. Apart from blogs, websites like Rediff, IBNLive, NDTV.com and communities like Yahoo Groups, Orkut and Facebook receive significant number of comments. Every one of the posts on Amitabh Bachchans blog receives hundreds of comments (466 comments for the latest). When a comment is published on a website, blog or a social network, the following entities are involved:
— Commenter – who has left the comment
— Moderator – who has the ability to moderate comments
— Owner – who owns or has started the community, blog, group or sub-network
— Platform – or the platform which allows such comments and communities
— ISP – who provides access and the ability to publish these comments
Three things to note:
— Internet as a published/broadcast medium: the comments of the bench appear to suggest that since a large number of people access the Internet, a comment online will be seen as something of a public broadcast – and perhaps seen in the same light as the printed word or a message on TV. It is not restricted to a small group or community, and hence liable for, in this case, criminal proceedings on the basis of the content.
— Where does the buck stop? Does the ability to moderate make a moderator accountable? Does the ownership of a community make a blogger liable? Or, in case of a social network or a blogging platform, is the network/liable liable? Section 79 of the IT Act 2008 discusses the independence of an intermediary, but does not clearly define it. For the time being (until the rules are finalized), that interpretation is for courts to make. In this case, it appears that the owner of the community (Ajit D) is being identified as an intermediary, but not the Platform (Orkut).
— Freedom of Speech? Though a majority of the blogs are towing the freedom of speech line, we’re not very sure if that argument is valid here. For a moment, forget that an abusive comment was not made against the Shiv Sena, but against you. The freedom of speech is not the freedom to abuse, and if a criminal case has been filed, the liable entity has to be identified.
Implications
In this case, the court is going to verify whether or not the person who has started and runs a community is liable or not. If a community owner and/or moderator is held liable in this case, then other community owners (including us) will have to moderate all comments before they are published, because once published – we are likely to be held accountable.
Related: How India’s New IT Act Affects User Generated And Copyright Content
