As I was settling into my role as eBay’s first Legislative Counsel, my office received an urgent call from CEO Meg Whitman requesting help with the India Situation, a.k.a. “Operation Save Avi!”
It was 2004 and Avnish Bajaj, American citizen and Harvard Business school graduate, was head of eBay subsidiary Bazee.com. Up for auction, without his knowledge, was a link to a video clip of New Delhi students having oral sex. The seller, a different student, listed the item for a little under $3. The clip was never sold and was never shown. Avi had nothing to do with the video and never even viewed it.
The illicit item was immediately taken down by Bazee.com upon notification of its pornographic content. The end user license agreement prohibited pornography and Bazee.com acted accordingly. The company, and Avi personally, fully cooperated with all legal proceedings and complied with all requests by the Indian government. Despite his cooperation, Avi personally was arrested and charged with violating India’s Information Technology Act of 2000.
Under the act, Avi faced up to five years in prison and thousands of dollars in fines. Specifically, §67 establishes liability for anyone who “publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct,” even without knowledge or intent. Moreover, §85 of the act imposes liability not only on the person who engaged in the violation of the act but also on the person in charge of and responsible to the company.
Avi’s arrest caused an uproar in the U.S. government. Members of Congress became involved and then Secretary of State Condoleeza Rice called on the Indian government to ensure Avi’s safety and to grant him a fair trial. The U.S. embassy submitted a statement indicating that there was a high level of interest in the U.S. government regarding the case. While eBay’s government relations team felt like we were doing our best to save Avi, it was almost Christmas Eve and Avi was sleeping on the floor of a jammed prison cell merely because of third-party content posted on an eBay site. For my team in Washington, it was unfathomable and terrifying.
Fortunately, cooler heads eventually prevailed, and soon after Avi was released and charges were dropped. But the Bazee.com legal saga highlights what could happen without a strong third-party liability protection standard for Internet businesses. Avi’s case is a real-world example where limited liability protections in §230 of the CDA did not exist. A petri dish scenario where we can observe what could happen if there were not protections–like those established in the seminal limited liability decision Zeran v. AOL–for intermediaries like Avi and Bazee.com from liability based on third-party content.
In the United States, however, these liability protections are in place and are the cornerstone of the modern day internet and an enabler of the burgeoning Internet of Things (IoT). Without the protections of §230, nascent e-commerce companies like eBay or Amazon might not have grown into thriving enterprises, and might not have survived at all. News of a CEO thrown into U.S. prison because of something unknowingly listed on a site (not even sold) could have potentially brought e-commerce to a standstill.
In India, the impact of the Bazee.com case led to an appeal by industry to amend the Information Technology Act of 2000 to provide liability protection to intermediaries with respect to user-generated content. It took eight more years for India to begin to implement a better system to protect intermediaries from liability. In 2008, an amendment to §79 of the Information Technology Act created a new standard of limited liability: “an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him” and requires “actual knowledge.” Additionally, it established a new notice and take down regime with safe harbor provisions modeled after the EU Directive 2000/31 and similar U.S. laws such as §230 of the CDA and 17 USC § 512.
Even under this amended law, however, intermediary liability protections in India remained limited compared to the U.S. This proved true in Google India v. Visaka Industries, which involved a defamation lawsuit against Google for not taking down alleged defamatory third-party blog posts railing against the evils of an asbestos company. Google argued for third party immunity under §79 of India’s amended Information Technology Act 2000. The Indian court refused to drop the defamation charges against Google holding that Google failed to take any steps to block or stop the dissemination of the defamatory material despite receiving notice.
In essence, the Indian court took the opposite approach from the U.S. court in Zeran. Whereas Zeran construed §230 broadly to bar lawsuits seeking to hold an intermediary liable for objectionable third-party content, the court in the Google India case construed protections narrowly, such that an intermediary may be held liable if it had knowledge of allegedly defamatory content and failed to take it down, notwithstanding the absence of any judicial finding of defamation.
While the Google India case is still on appeal, a landmark decision in 2015 may increase Google India’s prospects and suggests third-party liability protections are broadening. In Singhal v. Union of India several liability-imposing provisions of the Information Technology Act were held unconstitutional. Singhal involved the arrest of two women using social media to criticize local government. The court absolved them of liability and struck down §66A of the Information Technology Act because it imposed criminal liability based on an unduly vague legal standard. Moreover, the court examined §79 (at issue in the Google India case), and, while it declined to strike down the measure, it held that liability may be imposed under the statute only if an Internet company refuses to take down objectionable material after a court orders it to do so.
Echoing the reasoning of Zeran, the Singhai court held that “it would be very difficult for intermediaries like Google, Facebook etc. to act [pre-emptively] when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not.” The Singhai case is a testament to just how far India has come since the “Save Avi” days.
As we celebrate the 20th anniversary of AOL v. Zeran, let us reaffirm that intermediary liability protections should remain strong to encourage innovation and promote a thriving civil society both in the United States and worldwide. Otherwise, another young legislative counsel may have to save another Avi one day soon.
Hillary Brill is the Practitioner-in-Residence at the Washington College of Law’s Glushko-Samuelson Intellectual Property Clinic. She was an attorney at Covington & Burling during the beginning of the dot.com era, and worked in-house for 10 years at eBay and Paypal in several roles including Legislative Counsel, Senior Global Policy Counsel, and Head of Government Relations.
This essay is part of a larger collection about the impact of Zeran v. AOL curated by Eric Goldman and Jeff Kosseff.