Source: Indian Express

Introduction

Indian New Agency, Asian News International (ANI) recently filed a defamation suit against Wikimedia Foundation Inc. As a result, a single judge bench of Delhi High Court directed Wikimedia to disclose the details of the administrators. Wikimedia filed an appeal against this in Division Bench whereby the organization was asked to submit information in sealed covers.

What is the Controversy?

• Wikipedia:
  • It is a community driven encyclopedia freely available on internet.
  • Wikimedia Foundation Ince, a non profit organization based in United States provides technical infrastructure to run platform and ensure that the editors don’t face hurdles when they create new pages adhering to guidelines developed by community.
  • For certain pages only ‘administrators’ can make changes.
  • Any editor who has sufficiently long standing account and a minimum number of edits to their name can apply to become an administrator and the members of the community elect them.
  • Wikimedia as an entity is not involved in the process of these elections.
• Defamation suit filed by ANI:
  • According to the suit some of the statements made in the Wikipedia page are defamatory.
  • The news agency has been criticized for having served the propoganda tool for the incumbent government.
  • It is the case of ANI that the defendants (Wikimedia is one of them) have tarnished the reputation of the plaintiff by publishing false, defamatory statements that discredit the standing of the plaintiff.
  • Further, the settings of the alleged Wikipedia have also been changed to prevent the ANI-associated editors from making changes to the page.
  • It is the case of ANI that Wikimedia violated obligations under the safe-harbour provisions of Information Technology Act, 2000 (IT Act) and the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

What are Safe Harbour Provisions?

• The Safe Harbour provisions provide that social media platforms are not held legally liable for user-generated content, as long as they act to remove or address flagged objectionable content, thus supporting free speech and ensuring platforms are not responsible for preemptive content control.
• Thus, these provisions protect the companies that host the data of the users with exception appended to it.
• Section 79 of Information Technology Act, 2000 (IT Act) embodies the principle of safe harbour.
  • Section 79 (1) of IT Act provides that an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.
    • This is however subject to sub-section (2) and (3).
    • Also, this is a non-obstante clause
  • Section 79 (2) provides that the protection of Sub Section (1) will be available if:
    • The intermediary's role is limited to providing access to a communication system for information shared by third parties.
    • The information is transmitted, temporarily stored, or hosted.
    • The intermediary does not initiate the transmission.
    • The intermediary does not select the receiver of the transmission.
    • The intermediary does not select or modify the information being transmitted.
    • The intermediary must exercise due diligence in performing duties under the Act.
    • The intermediary must comply with guidelines prescribed by the Central Government.
  • Section 79 (3) lays down the conditions for non applicability of Sub-section (1):
    • The intermediary has participated in the unlawful act by conspiring, abetting, aiding, or inducing its commission through threats, promises, or other means.
    • The intermediary is informed (via actual knowledge or notification from the Government or its agency) that its system is being used for an unlawful act.
    • The intermediary fails to promptly remove or disable access to the offending material without tampering with evidence.

What is Sealed Cover Jurisprudence?

• Sealed Cover Jurisprudence (SCJ) is a legal concept that refers to the practice of presenting sensitive or confidential information to a court or tribunal in a sealed envelope or cover, to be opened and reviewed only by the judge or judges in charge of the case.
• Even though there is no specific law to define the idea of sealed cover, the SC derives its power to use it from Rule 7 of order XIII of the Supreme Court Rules 2013 and Section 123 of the Indian Evidence Act of 1872.
• The Court can ask for information in a sealed cover in broadly two circumstances:
  • When information is connected to an ongoing investigation,
  • When it involves personal or confidential information whose disclosure may result in violation of an individual’s privacy or breach of trust.
• In the present case through a consent order the Division Bench of the Court directed Wikimedia to submit the subscriber information of the alleged ‘administrators’ in sealed covers.
• The disclosure of information regarding the identity of the ‘administrators’ of the platform could damage the reputation of the platform and could result in future editors losing confidence on the platform.

Conclusion

It is very important to provide an atmosphere to the social media companies whereby they can act without any fear. Safe harbour provisions do give these companies a sense of comfort and security. However, there has to be a fine balance between the protection given to the social media companies and the protection given to the rights of the individuals whose information is being used. This controversy will settle the matter and leave a long standing impact in the IT jurisprudence of the country.