‘IT rules don’t apply to search engine’

American technology giant Google told the Delhi high court on Wednesday that India’s new Information Technology Act rules for social media companies don’t apply to its search service since it cannot be classified in the way Twitter or Facebook are.

The submission was made as part of the company’s challenge to an April 20 order by a single-judge bench of the high court, which classified Google as a “social media intermediary” or a “significant social media intermediary” while hearing a request to take down links to pornographic websites where a woman’s images were uploaded by some people.

Senior counsel Harish Salve told a two-judge bench of chief justice DN Patel and justice Jyoti Singh that the search engine has been “mischaracterised”, and that it differed from social media services since the function of a search engine is to gather existing information available or published or hosted by independent, third-party websites.

The high court on April 20 said that if Google, like other social media intermediaries, failed to take action, it was liable to lose the exemption from liability.

NEW DELHI: American technology giant Google told the Delhi high court on Wednesday that India’s new IT rules for social media companies don’t apply to its search service since it cannot be classified in the way Twitter or Facebook are.

The submission was made as part of the company’s challenge to an April 20 order by a single-judge bench of the high court, which classified Google as a “social media intermediary” or a “significant social media intermediary” while hearing a request from a woman to take down links to pornographic websites where her images had been posted.

Senior counsel Harish Salve told a two-judge bench of chief justice DN Patel and justice Jyoti Singh that the search engine has been “mischaracterised”, and that it differed from social media services since the function of a search engine is to gather existing information available or published or hosted by independent, third-party websites. “Such a process of crawling and indexing is done in a passive and automated manner with no human intervention or user interaction,” the company told the court.

Rules under the Information Technology Act give social media companies the legal prerogative to moderate content in good faith, and they have legal immunity for these decisions so long as they adhere to certain conditions – such as following takedown orders.

The high court on April 20 said that if Google, like other social media intermediaries, failed to take action, it was liable to lose the exemption from liability. In that case, a woman moved court for directions to Google to remove links to pornography websites to which her images had been uploaded by some people.

The IT rules were amended and notified on February 25, which add new compliance requirements for social media companies such as appointing compliance officers and identifying the originator of content within 36 hours. Google said it will not be able to comply with such provisions.

“The impugned direction is impossible for a search engine to comply with given its automated and passive functioning. It also violates the settled principle that no proactive monitoring can be directed as it has a chilling effect on free speech and may result in over-blocking of even content that is otherwise legitimate,” the plea said.

The company said that while it was an intermediary as defined by the Information Technology Act 2000’s section 2(1)(w), it was not a “social media intermediary” or “a significant social media intermediary” as laid down in IT rules, 2021.

“The single judge has misinterpreted and misapplied the New Rules 2021 to the appellant’s search engine. Additionally, the single judge has conflated various sections of the IT Act and separate rules prescribed thereunder and has passed template orders combining all such offences and provisions, which is bad in law,” Google said in its plea. The court has asked the Centre to clarify its stand on the internet giant’s contention by July 25. It declined Google’s requests to pass an order halting any possible coercive actions, saying the matter would be finally heard on July 25.

Google CEO Sundar Pichai last month said local teams were studying the new rules and it is committed to working with local laws. It has already agreed to comply with the new IT rules for “aggregators”.

The single judge has misinterpreted and misapplied the New Rules 2021 to the appellant’s search engine. GOOGLE, IN ITS PLEA