This Article is written by Khushi Bagaria of MNLU, Mumbai
Introduction
The dilemma on governmental regulation of social media companies and their liability regarding misinformation, hate speech and cyber-crimes thereof is an imperative element in determining the legal implications of the activities of social media platforms. The range of socio-legal problems associated with the widely accessible and easily dispersible nature of misinformation on social media weaponized through targeted advertising, manipulation, and polarization leading to the development of various anti-social activities in the cyberspace compel the consideration of revision of the legal liability of service providers whose “self-regulating” community standards are mostly shielded by their role as intermediaries. An upcoming potential method of countering this problem is considered to be the application of the absolute liability principle on social media platforms.
This article studies the concept of absolute liability in the context of the functioning of social media platforms. It considers the necessary elements for the imposition of absolute liability on social media platforms and the effects of such imposition on free speech and expression.
The concept of absolute liability
The concept of absolute liability as developed by the Supreme Court in MC Mehta v. Union of India[1] finds its roots in the English case of Rylands v. Fletcher[2] which provided for the concept of strict liability to compensate the harmed individual in cases of harm caused to him on the escape of an object brought by a person to his land and collected and kept by him. The absence of direct application of strict liability in the MC Mehta case was because it did not satisfy the strict liability requirement of escape of object causing harm along with the qualification of the conduct of the plaintiff for the exception of community benefit. This compelled the court in the MC Mehta case to develop its jurisprudence suitable to the scientific and technological development of the modern industrial society[3].
The Supreme Court developed the principle of absolute liability to be an absolute non-delegable duty to the community owed by enterprises engaged in hazardous or inherently dangerous activities posing a potential threat to the health and safety of people working in the factories and people in the surrounding areas. This absolute non-delegable duty created an obligation to conduct the hazardous or inherently dangerous activity with the highest standards of safety and, in cases of harm caused due to such activities, created an absolute liability to compensate for the harm irrespective of the fulfilment of standards of reasonable care and the absence of any negligence. The permission to conduct hazardous or inherently dangerous activities was held to be conditional to absorbing costs of accidents with the obligation to guard against and provide warnings of potential hazards[4].
Applicability of Absolute Liability on Social Media Platforms
A necessary element in the application of the absolute liability principle is that the enterprise in question conducts hazardous or inherently dangerous activities as seen in the use of oleum gas by Shriram Foods & Fertilizers in MC Mehta v. Union of India[5]. The concept of inherently dangerous activity in common law jurisprudence arose from its qualification as an exception to the general absence of liability of an employer towards an independent contractor[6] where an inherently dangerous activity is an activity "of a nature likely to involve injurious consequences to others”[7]Furthermore, an activity is not inherently dangerous if it causes no injury when executed with due care[8]. Thus, the qualification for an activity to be inherently dangerous or hazardous is dependent on the nature and conduct of the activity which in the context of absolute liability is activities having the nature and conduct of chemicals and fertilizers. An obvious implication of such a qualification is that internet service providers such as social media platforms do not conduct activities that are by nature dangerous or hazardous. The facilitation of information, communication, and data transfer is not inherently dangerous or hazardous. The domino effect of the deliberate misuse of the activities of social media platforms on the health and safety of concerned individuals may still be considered dangerous as seen in cybercrimes, voter manipulation, fake news, hate speech, etc. Thus, in the presence of due care in the activities on social media platforms, no injury is caused.
Furthermore, it can also be argued that social media companies themselves do not conduct these activities but merely facilitate the conduct of potentially dangerous activities by providing a platform that may give rise to the obligation of due care but not absolute liability of the activities as a whole. This is because social media platforms, while being creators of the social media platforms and the supervisors of the activities on the platforms, are intermediaries and not producers or publishers of the content on their platform. Another hindrance in the applicability of absolute liability on social media platforms in context of their role is that a potential threat to the health and safety of people on the platform (with reference to the people working in the factories and people in the surrounding areas in MC Mehta v. Union of India[9]) is not posed by the creation of the social media platforms by the intermediaries but by the conduct of activities by individuals on the platform towards each other. Thus, social media platforms are not engaged in hazardous or inherently dangerous activities that pose a potential threat to the health and safety of people on the platform.
The rationale behind the inception of an absolute liability in the Indian jurisprudence was the significance of the growth of law necessitated by the rapid changes in economic and industrial development beyond the scope of 19thcentury law. The modern industrial society has since the introduction of absolute liability in the 1980s grown at an unprecedented rate into the postmodern data and information driven globalised society through the development of internet services. A plain and direct application of the standards of absolute liability created in the context of modern industrialization is unreasonable and extreme in relation to the nature of activity conducted on social media platforms and the role of the social media companies and hence should not be operated.
Implications on Free Speech & Expression
In addition to the legal unfeasibility of the imposition of the absolute liability principle on social media companies, such an imposition will have far reaching consequences on the constitutionally guaranteed right to free speech and expression under Article 19(1)(a)[10] affirmed in its application to internet services in Shreya Singhal vs. Union of India[11] and subsequently in Anuradha Bhasin vs. Union of India[12]. Even if the principle of absolute liability is applied to the functioning of social media platforms disregarding the qualifications set forth in MC Mehta v. Union of India[13], it would provide social media companies with the power to extensively regulate the flow of information and communication on their platforms in view of their absolute liability. This is because the imposition of absolute liability creates an obligation to conduct the activity with the highest standards of safety and guard against any harm caused by the activity. Furthermore, the imposition of absolute liability would effectively disprove the role of social media platforms as intermediaries which has been statutorily[14] and judicially[15] determined to be significant for the protection of free speech and expression in common law jurisprudence. This legal rationale behind the intermediary status of social media platforms has been adopted by India through Section 79 of the Information Technology Act, 2000.
Conclusion
The regulation of misinformation, hate speech, and crime on internet services should not be carried out by compromising free speech and expression with complete disregard to the legal nature of social media platforms. The principle of absolute liability, while fair and reasonable in its application to the liability of industrial enterprises involved in hazardous practices, is counterproductive in its application to the practices of social media platforms. The spread of misinformation, hate speech and cybercrimes is not a result of some inherent danger in communication and exchange of information and data through social media platforms but is caused due to the absence of external regulation of the conduct on and by social media platforms through effective legislation. In light of the possibility of curbing misinformation, hate speech and cybercrimes by minimizing the self-regulation of social media entities and developing regulatory legislations along with regulatory institutions specifically crafted to cater to the novel functioning of internet services, the imposition of absolute liability is regressive and undesirable.
[1] MC Mehta v. Union of India, 1987 AIR 1086. [2] Rylands v. Fletcher (1868) LR 3 HL 330. [3] Supra. Note 1. [4] Id. [5] Id. [6] Bower v. Peate, 1 Q.B.D. 321 (1876). [7] The City of St. John v. Donald, (1926) S.C.R. 371, 383. [8] Id. [9] Supra. Note 1. [10] India. Const. art. 19, § 1, cl. A. [11] Shreya Singhal vs. Union of India, AIR 2015 SC 1523 [12] Anuradha Bhasin v. Union of India, 2020 SCC OnLine SC 25. [13] Supra. Note 1. [14] Communications Decency Act, 47 U.S.C. § 230. [15] Cubby v. CompuServe, 776 F. Supp. 135 (S.D.N.Y. 1991).
Comments