Taking responsibility for internet content

By Rahul Chaudhry, Lall Lahiri & Salhotra
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The internet is undoubtedly one of the most powerful and influential media of communication today; a vast variety and amount of information is being exchanged online at any given time. The structure of the internet makes it easy for users to search for information, sort search results and access selected documents. This capacity is rapidly leading the internet to take precedence as a source of information over analog formats such as printed media, including books.

Rahul Chaudhry Partner Lall Lahiri & SalhotraRahul Chaudhry Partner Lall Lahiri & Salhotra
Rahul Chaudhry
Partner
Lall Lahiri & Salhotra

However, the quality of information delivered over the internet is often questionable, due to the anonymity of authors. In many cases, it is difficult or impossible to verify the source of information, and the repetition of information is no guarantee of its accuracy.

While there is general awareness that information delivered via the internet is often unreliable, it is still common for people to base actions upon such unverified information. In cases of injury resulting from such actions, the challenging question then arises as to how to determine the extent and type of liability, and the person to be held liable.

In cases where harm is caused as a direct result of erroneous information, the basis of liability is negligence. An essential requirement of liability for negligence is that the person must have owed a duty of care to the injured party, and that such duty was not fulfilled. This requirement is almost always satisfied in the case of providers of information over the internet, keeping in mind the principle of the direct responsibility to the end user as established in the venerable case of Donghue v Stevenson.

However, as has been observed through various precedents, the liability of the manufacturer of a defective product is much greater than that of a person providing false or erroneous information. In cases where a person has suffered harm due to reliance on wrong information, courts have not been as generous in their imposition of liability as they have been in cases of product defects.

In the case of the internet, the onus of responsibility for any false information lies squarely upon the person providing the information; this is reflected in the disclaimers ubiquitously published on websites. However, certain English judgments tend to muddy the waters.

For example, in relation to the non internet-related case of Candler v Crane Christmas & Co, Lord Denning stated: “A scientist or expert (including a marine hydrographer) is not liable to his readers for careless statements in his published works. He publishes his work simply for the purpose of giving information, and not with any particular transaction in mind at all. But when a scientist or an expert makes an investigation and report for the very purpose of a particular transaction, then, in my opinion, he is under a duty of care in respect of that transaction.”

This opinion implies that, in the case of information being posted on the internet solely to make it generally available, there is no liability for error in such information. However, given the nature and typical usage of the internet, it is unlikely that this principle will hold good for long. Careless publication of incorrect information can lead to damage, and the ease with which it can be accessed, coupled with the tendency of ordinary people to place a reasonable degree of reliance on it, means that greater responsibility must be expected of persons posting information online.

Another important question concerns who is to be held liable. The person who authors information on a website is undeniably responsible for his own actions, but the liability of internet service providers (ISPs) with regard to offensive or dangerously false or misleading matters is much more contentious. It has often been argued that ISPs must maintain strict control over the information they allow to be published, and they have often had liability imputed to them for illegal or allegedly harmful content on their servers.

However, an opposite and more tenable argument is that given the volume of content that is channelled through the internet, it is unreasonable to expect ISPs to monitor and control it. The IT Act has accordingly incorporated section 79, which seeks to limit the liability of service providers “for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised due diligence to prevent the commission of such offence or contravention”.

Factors such as the growing interactivity of the internet and the emergence of social networking make it increasingly difficult to limit a content provider’s liability. Questions arise concerning the rights and responsibility of commercial website providers to censor user-submitted content, which in turn raises problems regarding the privacy, autonomy and content ownership of internet users. Apart from questions of feasibility and implementation, the development of law in this regard requires public interest and the constitutional rights of individuals to be balanced.

Rahul Chaudhry was called to the bar in September 2002. He joined Lall Lahiri & Salhotra in January 2004 and became a partner just four years later. Along with the firm’s founding partners, Anuradha Salhotra and Amar Raj Lall, Chaudhry is regarded as one of the most prominent faces of IP management in India.

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