What makes a “Search Engine” an “Intermediary”?

Introduction:

The size and reach of the Internet has expanded to encompass all facets of the economy and society, similar is the position of internet intermediaries supplying the essential infrastructure and forums of the internet by enabling interactions and transfers between third parties, application and services. They facilitate a range of activities through wireless technologies. Intermediaries offer a forum for modern, quicker, and affordable communication technologies, along with creative and efficient gains, and the availability of new goods and services.[1]

Internet search engines and websites are overflowing with advertisements as their main source of revenue. They are seeing strong growth resulting from the need for more effective search functions and the expansion of the variety of resources they provide. Thus, the increasing requirement of intermediaries as facilitating various services has made it necessary to characterize what might fall under the category of intermediaries. This article attempts to ascertain the liability of an intermediary and rationalize as to why a search engine is included under the category of intermediary.

What is an ‘Intermediary’?

‘Intermediaries’ are such entities that enable the deliverance of online content to the end-user. Information Technology Act, 2000 (hereafter referred to as IT Act) defines ‘intermediary’ as a person who on the behalf of another person receives, stores, or transmits electronic records or facilitates any service relating to such record.[2] Examples of some intermediaries include telecom service providers, network service providers, internet service providers (hereafter referred to as ISP), web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places, and cyber cafes.[3]

The definition of ‘intermediaries’ was changed by the It Act amendment of 2008 so as to widen the scope of an intermediary and to offer a distinction between the role of originator, addressee, and intermediary. The definition of ‘originator’ under Section 2(1) (za) and the definition of ‘addressee’ under Section 2(1) (b) specifically exclude ‘intermediary’, thus it is well established that an intermediary is the third party and cannot play the role of either an addressee or an originator.

Further, the definition of ‘intermediary’ is very generic; it is defined only in terms of an electronic message. Also, this definition includes both professional and nonprofessional intermediaries; it can be any third party, who performs the functions of an intermediary. The key functions of intermediaries’ are-

1. Providing an infrastructure;
2. Collection, arrangement, and assessment of distributed information;
3. Facilitate social interaction and dissemination of resources;
4. To take into account the interests of both buyers/users and sellers/advertisers.[4]

Why is a ‘Search Engine’ an ‘Intermediary’?

Search Engines is a website service that constantly catalogs the continuously evolving content on the Internet. Internet users find the required information by looking for keywords, phrases, or other identifiers-in a search engine that easily creates access to different websites, the contents of which refer to the information sought. Unlike web directories managed by human editors, search engines work algorithmically or are a combination of algorithmic and human input.[5]

To ascertain that a search engine is similar to an intermediary we must ascertain that a search engine acts as an enabler of information and provides the information asked by the user without knowing the identity or intent of the user. The role of an intermediary must be checked in isolation for its existence is dependent on the originator and address.

Search engine like Google and Bing allow the users to search for specific information on the web and also provide links to different websites which have content relevant to the term searched by the users. Search engines also provide a platform where a person or entity can share their content and the users can utilize such content. Search engines allow millions of users to find content on the Internet. It is a facilitator of information between two parties.

Thus, search engines act as a source of disseminating information and aid users to access the internet, host content, and conduct business. The content provided by such search engines is not produced by them it is merely made available by them. Therefore, search engines are categorized as intermediaries between the person who publishes the content and the person who uses such content.

An addressee is a person who is intended by the originator to receive the electronic record.[6] Whereas an originator is the person who sends, generates, stores, or transmits the electronic message or causes the message to be sent or cause such message to be sent, generated, stored, or transmitted to any other person.[7] A search engine merely acts as a link between the two.

When a user accesses the search engine, the types or provides certain keywords based on which the search engine presents various results. Now, these results are not produced by the search engine but the search engine acts as an enabler to access these results. The keywords typed by the user acts as an ‘electronic message’ based on which the search engine shows the results.

These results are in the form of website links or web pages and the search engine as a mere facilitator of the platforms. The search engine is an enabler against the searched keyword. Hence a service provider presents a list of websites, where the information related to the keyword may be found. The search engine has no role in producing or editing the information found on the website, neither it controls the choice of the user, thus it acts on the command of the user. Thus a search engine is an intermediary.

What is the Liability of an Intermediary?

The 2008 amendment to the IT Act altered Section 79 providing safe harbor protection to intermediaries. The case of Avnish Baja v State established that there is an expedite requirement to expand the range of protection offered to the intermediaries[8] and thus the amendment of 2008 was brought into effect. Currently, Section 79 provides safe harbor to all intermediaries from all unlawful acts rather than only offenses or contravention and lack of exercise of due diligence for claiming safe harbor.[9] Section 79 thus provides conditional immunity for as long as the intermediary sticks to the prescribed provisions.

Section 79 lays down certain situations wherein the liability of intermediaries is excused. An intermediary cannot be held liable for any third party information, data, or communication link which facilitated or hosted by it.[10] However, the intermediary must not commence the process of transmission or select the receiver of transmission or modify or select the information included in the transmission.[11]

The protection given to an intermediary does not apply if the intermediary fails to act in due diligence[12] or if the intermediary conspires or abets or aids or induces by any threat or promise to commit any unlawful act.[13] If the intermediary has any knowledge or is informed by the government or its agency that any material or communication link connected to a computer resource under its control is being used for an unlawful activity, then the protection given to the intermediary under Section 79 will not apply if it does not immediately disables or removes access to that material on that resource, without vitiating the evidence in any manner.[14]

It is significant to note that the Central government has also provided the Information Technology (Intermediary Guidelines) Rule, 2011 specifying due diligence practices to be observed by the intermediaries. So for any intermediary to avail safe harbor under Section 79 of the IT Act must fulfill the requirements of these Rules and the IT Act. Rule 3 specifies fulfillment of these criteria as necessary to establish due diligence-

1. Intermediaries need to publish its rules, regulations, privacy policies, and user agreement;
2. These rules, privacy policies, and user agreement must specify all prohibited acts like an infringement of intellectual property, virus threat, violation of any law, copyright acts, any deceiving or misleading content, etc and also specify that violation of the same shall lead to termination of access;
3. Intermediaries require assistance from the authorized government agencies;
4. Intermediaries must take all reasonable measure to secure its computer source;
5. Intermediaries need to report any kind of cybersecurity incident to the Indian Computers Emergency Response Team;
6. Intermediaries are required to appoint a Grievance Officer and publish the details of the same.[15]

Conclusion

Thus it would be justified to conclude that the way a search engine functions and operates makes it in an intermediary. The search engine merely shows results as close as possible to the keyword search of the user. It does not generates, transmits or stores the electronic message neither it is intended by the originator to receive the electronic record. It merely acts as a medium for convey of this communication. It acts as a third-party who facilitates the information based on the command it receives. Search engines are expressly included in the ambit of ‘intermediary’ under the IT Act.

These search engines do not produce any content of their own; they produce a list a website and web pages which publish their content, thus search engine acts as a middleman and are included in the category of intermediary. The liability of an intermediary arises only when it does not act in due diligence or conspires, abets, induces or aids whether by threat or promise the commission of any unlawful act. The conduct of the search engine must be consistent with the IT Act and intermediary guidelines.

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[1] Ms. Karine Perset, The Economic and Social Role of Internet Intermediaries, Organization for Economic Co-operation and Development, DSTI/ICCP(2009)9/FINAL, (Jan 08, 2021, 11:09 AM) http://www.oecd.org/digital/ieconomy/44949023.pdf.

[2] Information Technology Act, 2000, Sec 2(1) (w), No. 21, Acts of Parliament, 2000 (India).

[3] Information Technology Act, 2000, Sec 2(1) (w), No. 21, Acts of Parliament, 2000 (India).

[4] Ms. Karine Perset, The Economic and Social Role of Internet Intermediaries, Organization for Economic Co-operation and Development, DSTI/ICCP(2009)9/FINAL, (Jan 08, 2021, 11:09 AM) http://www.oecd.org/digital/ieconomy/44949023.pdf.

[5] Abhishek, Online Copyright Infringement & Liability of Search Engines, Legal Services India, (Jan 09, 2021, 3:56 PM) http://www.legalservicesindia.com/article/97/Online-Copyright-Infringement-&-Liability-of-Search-Engines.html.

[6] Information Technology Act, 2000, Sec 2(1) (b), No. 21, Acts of Parliament, 2000 (India).

[7] Information Technology Act, 2000, Sec 2(1) (za), No. 21, Acts of Parliament, 2000 (India).

[8] Avnish Bajaj v. State, (2008) 150 DLT 769 (India).

[9] Saumya Kapoor, Tracing the development of ‘intermediary liability’ in India, Lexology, (08 Jan, 2021, 9:35 PM)https://s3.amazonaws.com/documents.lexology.com/8db09138-482a-4951-b255-6513ca1eaad3.pdf?AWSAccessKeyId=AKIAVYILUYJ754JTDY6T&Expires=1610195841&Signature=zqE0PtCaYYVeSDgoLm3jsGy7m5U%3D.

[10] Information Technology Act, 2000, Sec 79(1), No. 21, Acts of Parliament, 2000 (India).

[11] Information Technology Act, 2000, Sec 79(2) (b), No. 21, Acts of Parliament, 2000 (India).

[12] Information Technology Act, 2000, Sec 79(2) (c), No. 21, Acts of Parliament, 2000 (India).

[13] Information Technology Act, 2000, Sec 79(3) (a), No. 21, Acts of Parliament, 2000 (India).

[14] Information Technology Act, 2000, Sec 79(3) (b), No. 21, Acts of Parliament, 2000 (India).

[15] Information Technology (Intermediary Guidelines) Rules, 2011, Rule 3, Notification dated April 11, 2011, Central Government (India).