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Legal Reasoning · 5 questions · about 1 min to read

The Intermediary's Shield

Read the passage, answer the questions, then open each answer to check it. The explanation says why the right option is right.

The passage

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An intermediary is a person who, on behalf of another, receives, stores or transmits an electronic record, or provides any service with respect to that record. Network service providers, search engines, online marketplaces and social media platforms are intermediaries.

An intermediary is not liable for third-party information made available or hosted by it, provided three conditions are satisfied. First, its function must be limited to providing access to a communication system over which the information is transmitted, stored or hosted. Second, it must not initiate the transmission, select its receiver, or select or modify the information transmitted. Third, it must observe due diligence and such guidelines as the Government may prescribe.

The exemption is lost in two situations: where the intermediary has conspired, abetted, aided or induced the unlawful act, whether by threats, promise or otherwise; and where, upon receiving actual knowledge that a court order or a notification by the appropriate Government agency requires it to remove or disable access to material being used to commit an unlawful act, it fails expeditiously to do so.

The expression "actual knowledge" has been read narrowly. A private complaint by a member of the public, however emphatic, does not amount to actual knowledge; the intermediary must receive a court order or an authorised government notification. The reason given is that an intermediary faced with lakhs of private demands, and threatened with liability for refusing any of them, will simply remove whatever is complained of, and lawful speech will disappear along with the unlawful.

Automatic removal by an algorithm the intermediary has itself deployed does not amount to selection or modification of content by the intermediary for these purposes.

  1. Q1. An individual writes to a video platform demanding removal of a video he says defames him. The platform does not act. Three weeks later a court orders removal, and the platform complies the same day. On the principles above, the platform:

    1. Loses the exemption, because it ignored the complaint for three weeks
    2. Retains the exemption only if it also pays compensation to the complainant
    3. Loses the exemption, because the video was in fact defamatory
    4. Retains the exemption, because a private complaint is not actual knowledge and it acted expeditiously once the court order arrived
    Show answer

    Answer: D. Retains the exemption, because a private complaint is not actual knowledge and it acted expeditiously once the court order arrived

    A private complaint, however emphatic, does not constitute actual knowledge; a court order or authorised government notification is required. The platform complied expeditiously once the order arrived, so the exemption survives.

  2. Q2. A marketplace's employees edit seller listings to add promotional descriptions written by the marketplace, and one such description is defamatory of a rival. On the principles above, the marketplace:

    1. Retains the exemption, since it is an intermediary by definition
    2. Retains the exemption, since the underlying listing was uploaded by the seller
    3. Loses the exemption, since it modified the information and so fails the second condition
    4. Loses the exemption only if a court order is disobeyed
    Show answer

    Answer: C. Loses the exemption, since it modified the information and so fails the second condition

    The exemption requires that the intermediary not select or modify the information transmitted. By writing and inserting its own promotional description, the marketplace modified the content and fails the second condition.

  3. Q3. A messaging service receives an authorised government notification to disable access to specified material used to commit an unlawful act. It takes no action for four months. On the principles above:

    1. It loses the exemption, having failed to act expeditiously upon actual knowledge
    2. It retains the exemption, since only court orders trigger the obligation
    3. It retains the exemption, since it did not itself create the material
    4. It loses the exemption only if the material is later held unlawful at trial
    Show answer

    Answer: A. It loses the exemption, having failed to act expeditiously upon actual knowledge

    Actual knowledge arises on receipt of an authorised government notification as much as on a court order. A four-month inaction is not expeditious, so the exemption is lost.

  4. Q4. A platform's executive privately assures a user that he may post whatever he likes about a competitor and that the platform will shield him, and the user then posts unlawful content. On the principles above, the platform:

    1. Retains the exemption, as it did not itself post the content
    2. Retains the exemption unless it disobeys a subsequent court order
    3. Loses the exemption, having abetted or induced the unlawful act
    4. Retains the exemption, since assurances are not guidelines prescribed by Government
    Show answer

    Answer: C. Loses the exemption, having abetted or induced the unlawful act

    The exemption is unavailable where the intermediary has conspired, abetted, aided or induced the unlawful act, whether by threats, promise or otherwise. An assurance of protection is such an inducement.

  5. Q5. The narrow reading of "actual knowledge" described in the passage is justified primarily on the ground that:

    1. Intermediaries lack the technical means to remove content quickly
    2. Private complainants are usually acting in bad faith
    3. Liability for refusing private demands would drive intermediaries to remove lawful speech along with unlawful
    4. Courts are better placed than governments to assess electronic evidence
    Show answer

    Answer: C. Liability for refusing private demands would drive intermediaries to remove lawful speech along with unlawful

    The reason given in the passage is that an intermediary threatened with liability for refusing private demands will remove whatever is complained of, so lawful speech will be taken down along with unlawful speech.

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