Do online advertising platforms qualify for ‘intermediary liability’ protection?

A couple of weeks ago, The Wire, published an article by Apar Gupta titled ‘The Supreme Court’s Slow March Towards Eroding Online Intermediary Liability’. In his very well-written piece Apar, a well-known lawyer in the media-IT space, laments the approach adopted by the Supreme Court in an ongoing case regarding the display of advertisements related to ‘sex determination’ kits on the internet.

pndtThe Pre-Natal Diagnostic Techniques Act, 1994 prohibits the advertising of any diagnostics which enable a person to determine the sex of an unborn foetus – the reason for the prohibition was the increasing use of such tests to conduct abortions of unborn female foetuses resulting in aa skewed sex ratio. The present case before the Supreme Court was triggered by a PIL (filed in 2008!) seeking action against search engines like Google and Yahoo for displaying advertisements pertaining to sex-determination kits. Since then the Supreme Court has directed the search engines to ensure the prohibition of advertisements for these kits and has also been exploring technical options to enforce the prohibition under the PNDT Act.

In his piece, Apar seems to suggest that the search engines are immune from liability under the PNDT Act because of the protection extended to internet intermediaries by Section 79 of the Information Technology Act, 2001. This ‘safe-harbour’ provision under the IT Act extends immunity to intermediaries for any offending material published by their users. I have to disagree with this position and side with the government’s argument as outlined in Apar’s piece – the government has argued that search engines are considered intermediaries while displaying search results that result from automated indexing but that they aren’t intermediaries when they accept publish paid for advertisements. In my opinion, the government’s position is absolutely correct. Let me explain why.

Under the IT Act, an online service provider has to fall within the definition of ‘intermediary’ under Section 79 in order to claim the safe harbour of the provision. Put briefly, to qualify as an intermediary, it is absolutely necessary that the online service provider does not actively participate in modifying any of the information that it displays or transmits. As long as the service provider is limited to this passive role it can enjoy the immunity under the law. So for example, a search engine automatically indexing millions of pages, or a YouTube like platform, which allows users to self-publish videos enjoy immunity for videos published by users. The logic of affording such protection to intermediaries is that it would be unrealistic to expect these intermediaries to have knowledge of the millions of transactions that take place on their websites.

While the search engines operated by Google or Yahoo most certainly fall within the definition of intermediaries while they operate in their capacity as search engines, they certainly do not qualify as intermediaries when they publish advertisements. When Google AdWords publishes advertisements, it is no longer an intermediary – it falls squarely within the definition of a publisher. Like any other publisher, it actively solicits advertisements from clients, negotiates rates for each advertisement, it follows an active editorial policy which you can find over here and pre-screens advertisements as per this policy before it makes the decision to publish the advertisement online – most of the pre-screening is automatic, while some of it does manually – this mode of functioning ensures that Google has knowledge of everything that it publishes. Google Ad-words is therefore no longer a platform facilitating automatic transactions – it is a publisher and should be held liable like any other publisher who has prior knowledge of the content that it is publishing. In fact, I think Google accepts that it is in fact a publisher – Google’s country wise policy, for India, which can be accessed over here, clearly prohibits certain categories of advertisements – it also provides a copy of the SC’s order disallowing PNDT adverts. It warns advertisers that such advertisements will be restricted – the problem therefore appears to be one of implementation.

Once we accept that Google and Yahoo are no longer intermediaries under the law, the question that remains is the remedies available to the Supreme Court – should it really be tailoring technical solutions to enforce the embargo? I don’t think so – if these online advertisers aren’t immune under the law, the law should proceed against them as prescribed under the PNDT Act – if that means criminal prosecution of these internet advertisers, so be it – although given the nature of the internet, it really makes little sense to attempt this mode of enforcement. The government would be better of enforcing the law against those selling such kits rather than publishers allowing advertisements for such kits.

Prashant Reddy

T. Prashant Reddy graduated from the National Law School of India University, Bangalore, with a B.A.LLB (Hons.) degree in 2008. He later graduated with a LLM degree (Law, Science & Technology) from the Stanford Law School in 2013. Prashant has worked with law firms in Delhi and in academia in India and Singapore. He is also co-author of the book Create, Copy, Disrupt: India's Intellectual Property Dilemmas (OUP).

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