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Recently, the telegram CEO Pavel Durov was arrested in Paris on account of a litany of serious crimes, including enabling the distribution of child sexual abuse material on the app, facilitating drug trafficking, and refusing to cooperate with law enforcement. His arrest has put the spotlight on the debate regarding the liability of Digital Platform Owners for User-generated content.
What are the key issues with user-generated content on digital platforms?
The key issues surrounding platform liability for user generated content include:
| Defamation and Reputational Harm | Defamatory statements made by users on digital platforms often lead to legal disputes and reputational harm. For ex- Defamatory statements on social media platforms like X (formerly twitter) |
| Hate Speech and Online Harassment | Hate speech and online harassment regularly thrive in the anonymity of digital platforms. This in turn harms individuals and creates toxic environments. For ex- a. Bois locker room group on Instagram, which led to women harassment. b. Germany’s request for removal of 64 channels that potentially breached German hate speech laws. |
| Copyright Infringement | User generated content sometimes contains copyrighted material owned by others. This creates issues of copyright infringement. For ex- Napster was sued by the music industry for enabling illegal file-sharing of copyrighted songs. |
| Misinformation and Fake News | During the COVID-19 pandemic, platforms like Facebook, Twitter, and YouTube saw widespread dissemination of false health information. For ex- Misinformation regarding 5G towers causing the spread of COVID-19. |
What are the arguments in support of limited liability of Digital Platforms for User-generated content?
1. Safe harbour principle- The well-established safe harbour principle stipulates that a platform should not be held liable for user-generated content, as it merely acts as an intermediary.
2. Protection of Privacy- The protection of privacy of an individual prompts the social media platforms to avoid excessive monitoring or interception of user communications.
3. End-to-end encryption- The use of end-to-end encryption inherently limits the ability of the digital media platforms, like WhatsApp, to view reported messages and take appropriate action.
4. Minimal record of Metadata- Laws like the EU (European Union) law, clearly prohibit the platforms to record metadata to avoid the monitoring and spying on the users. Platforms that are designed to minimally record metadata face significant constraints in cooperating with law enforcement agencies regarding user data.
What are the arguments supporting the liability of digital platform owners for user-generated content?
1. Prioritisation of perceived harms of ‘disinformation’ over free speech- The prioritisation of harm from ‘disinformation’ over the need for freedom of expression, has led to global calls and actions demanding liability of digital platform owners. For ex- The decision of X to deplatform Donald Trump during the last U.S. presidential election for spreading disinformation.
2. Accountability for Harmful Content- Platforms that host UGC should be held accountable for the content they allow, as they play a crucial role in moderating and curating that content. This accountability can deter harmful activities and protect users from illegal or dangerous content, such as hate speech, harassment, and misinformation.
3. Economic Incentives for Self-Regulation- Imposition of liability can incentivize platforms to implement better content moderation practices and invest in technologies to detect and remove harmful content.
4. Protection of Intellectual Property Rights- The liability encourages platforms to take active steps to prevent copyright infringement, such as implementation of automated content recognition systems.
5. Adaptation to Changing Technologies- With the evolution of digital platforms with rising of AI and algorithm-driven content recommendations, platforms should be held responsible for the consequences of their algorithms, if they promote harmful content to susceptible users.
What are the regulations that seek to induce some sort of liability of Digital Platforms?
| Digital Services Act (EU) | The Digital Services Act in the EU seeks to hold platforms accountable while balancing innovation and user rights. |
| India’s Information Technology Act, 2000 | Section 79 of the IT Act offers a safe harbour to intermediaries, but it also stipulates that platforms must act upon receiving notice of illegal content. If they fail to do so, they can be held liable. Recent amendments and discussions are pushing for stricter regulations on content moderation and accountability. |
| UK Online Safety Bill | This proposed legislation seeks to impose a duty of care on platforms to protect users from harmful content. Platforms would be required to take proactive measures to prevent the spread of illegal and harmful material, increasing their liability for user-generated content. |
| Australia’s Online Safety Act | Establishes a regulatory framework that holds platforms accountable for harmful content, particularly regarding cyberbullying and child exploitation. |
What Should be the Way Forward?
1. Criminal liability in cases of personal complicity or direct involvement- The founder of a messaging platform should not incur any criminal liability for the acts of the platform’s users, except in instances where there is personal complicity or direct involvement.
2. Appointment of compliance officers- Platforms should appoint compliance officers or designated representatives to cooperate with law enforcement, provided that due process is followed.
3. Imposition of higher penalties- The imposition of higher penalties for repeated offences or banning the persistently non-compliant entities, will help in ensuring accountability of digital platforms.
4. Robust mechanisms and strict adherence to laws- Platforms need robust mechanisms to promptly identify and address defamatory content to avoid potential legal actions. Platforms must implement stringent content moderation policies and adhere to relevant laws like the IT Act and Indian Penal Code.
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