Fake news: No legal basis to hold internet intermediaries accountable

The Minister for Electronics, IT, Law and Justice, Ravi Shankar Prasad on Wednesday said that multinational social media platforms are accountable for their use, misuse or abuse. He added that while companies such as WhatsApp are welcome to do business in India, they cannot vacate responsibility when their platforms are used to spread misinformation that results in criminal activities.

The minister was speaking to journalists on the sidelines of an event in New Delhi. He referred to incidents of lynching based on fake news that circulated on WhatsApp. His ministry, in fact, came up with a press release a day before saying pretty much the same thing.

"Instances of lynching of innocent people have been noticed recently because of large number of irresponsible and explosive messages filled with rumours and provocations are being circulated on WhatsApp. The unfortunate killing in many states such as Assam, Maharashtra, Karnataka, Tripura and west Bengals are deeply painful and regrettable," the release stated.

"While the Law and order machinery is taking steps to apprehend the culprits, the abuse of platform like WhatsApp for repeated circulation of such provocative content is equally a matter of deep concern. The Ministry of Electronics and Information Technology has taken serious note of these irresponsible messages and their circulation in such platforms. Deep disapproval of such developments has been conveyed to the senior management of the WhatsApp and they have been advised that necessary remedial measures should be taken to prevent proliferation of these fake and at times motivated/sensational messages. The government has also directed that spread of such messages should be immediately contained through the application of appropriate technology. It has also been pointed out that such platform cannot evade accountability and responsibility especially when good technological inventions are abused by some miscreants who resort to provocative messages which lead to spread of violence".

The minister today said that WhatsApp has responded and has promised to use machine learning technology to identify misuse of its platform.

The liability of social media platforms, nevertheless, is only a moral one - there is no legal basis.

Sajan Poovayya, Senior Advocate at the Supreme Court of India and the High Court of Karnataka says that not just under Indian law, but under any mature legal jurisdiction, the liability of an intermediary amounts to nearly nothing.

"An intermediary is someone who does not select the news, does not modify the news, does not select the viewer of the news, nor does it select the recipient of the news. If you satisfy these four conditions you become an intermediary on the Internet. Consequently, there is no liability," he says.

The question of liability is in business only when a platform has been notified by the government or a governmental agency about a particular fake news being transmitted. "If they don't pull down the content despite the communication, or if they transmit further, that is when liability arises under the Information Technology Act," Poovayya says.