Our Senior Associate, Urfee Roomi discusses “The Case of the Bois Locker Room and the Role of Intermediaries”
Recently, the social media platform, Instagram, caught public attention for all the wrong reasons when obscene messages shared among members of a private chat group called ‘Bois Locker Room’ became public. While objectionable content shared on this group left most of us enraged, it also opened the pandora’s box raising questions regarding the liability of intermediaries, such as Instagram, for hosting outrageous content. What aggravated the liability of Instagram in this case was that the chats were exchanged within the confines of a virtual chat room and were not meant for public viewing.
Notably, intermediaries, being mere facilitators of information, enjoy conditional immunity in India under the Information Technology Act, 2000 to the extent that they are not actively involved in transmitting and modifying the content they host. This immunity, however, is taken away if the intermediary does not remove the questionable content upon receiving “actual knowledge” of it. The legal position on what constitutes actual knowledge in such cases has been settled by the Supreme Court of India in Shreya Singhal v. Union of India to mean knowledge by way of a court order or on being notified by the appropriate government agency. The Information Technology (Intermediary Guidelines) Rules, 2011 also casts an obligation on the intermediaries to carry out due diligence while discharging their duties.
Further, the liability of intermediaries is enhanced in cases of offences against minors under the Protection of Children from Sexual Offences Act, 2012 (“POSCO Act”) where even a stranger having knowledge of an offence against a minor anywhere, including on a virtual platform, can file a complaint on behalf of the minor. Additionally, there is a duty cast on the intermediaries under the POSCO Act to provide the necessary details and to report the commission of any offence which is sexually exploitative of a child, within their knowledge, to the Special Juvenile Police Unit, or the local police. Taking this a step further, in March 2020, the Protection of Children from Sexual Offences Rules, 2020 were enacted under which an intermediary, in addition to reporting any such an offence, shall also hand over the necessary material, including the source from which such material may have originated, to the relevant police authority.
However, these rules and guidelines are vain in instances such as the Bois Locker Room case. This is because social media platforms, such as Instagram, can effortlessly dodge liability for the crimes fostering on their own platforms owing to the private nature of the chatrooms. While platforms such as Instagram follow a Report Abuse Policy, the threshold to meet the requirements under this policy are quite high. Further, even if Instagram removes the objectionable content on receiving a complaint, there is no mechanism to control that such questionable content is not generated in the first instance. In this regard, the Ministry of Electronics and Information Technology has prepared a draft of the Information Technology (Intermediary Guidelines (Amendment) Rules, 2018. These guidelines amend the due diligence requirements for such intermediaries and require them to deploy automated tools to identify and remove unlawful content from public access. However, the same are yet to be notified. The horizon of intermediaries’ liability in India for content shared on their platforms surely needs to broaden. Until this happens, such interactive platforms the likelihood of crimes remains high.