Google search engines not an intermediary under new IT Rules, says co

Files an appeal to set aside part of an order passed by Delhi HC in April that regards the search engine as a social media platform

Global technology giant Google on Wednesday moved Delhi High Court (HC), asking for interim protection against its declaration as a 'social media intermidiary'. 

Google petitioned to set aside a part of an April order that "mischaracterises" its search engine as a social media intermediary that has to comply with the new Information Technology (IT) Rules, 2021. 

Experts agreed there may be merit in Google asking not to be identified as a social media intermediary.

"Search engines are a reflection of the content and information available on the internet. While we maintain a consistent policy over removal of objectionable content from the search results, the Delhi HC order has cast certain obligations that would wrongly classify Google Search as a social media intermediary,” said a spokesperson for Google.

The Delhi HC had identified Google Search as an 'intermediary' in April as part of a case where a woman's pictures had been uploaded on a pornographic website without her consent. Despite court orders, the content could not be removed in entirety from the worldwide web.

The April 20 order issued a direction "to search engines Google Search, Yahoo Search, Microsoft Bing, DuckDuckGo to endeavour to use automated tools, to proactively identify and globally disable access to any content which is exactly identical to the offending content that may appear on any other  websites/online platforms".

“We’ve filed an appeal against this part of the order and look forward to explaining the steps we take to remove objectionable content from Google Search results,” the spokesperson added.

Google's contention is that a search engine has a different role compared to a social media intermediary such as Facebook, Instagram or Twitter. It had also submitted to the court in April that on the issue of removal of content or blocking access, the role of the search engine is reactive and limited to disabling access to specific uniform resource locators from the search results, once these are reported by governmental agencies or ordered by court. Search engines do not have a proactive role. 

“The single judge has misinterpreted and misapplied the new IT 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 has said in its appeal against the April 20 judgment.

It further said the April order issued "directions that would empower the local police and the criminal and civil courts to issue directions for take-down of websites and content, overlooking that the IT Act balances the freedom of speech and expression with powers of regulation of content by enacting a comprehensive code".

The court has issued notices to the Centre, Delhi government, Internet Service Providers Association of India, Facebook, the pornographic site and the woman, on whose plea the April ruling had come, and sought their responses to Google’s plea by July 25. 

The IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, published on February 25, detail new guidelines for platforms identified as intermediaries. 

Legal experts said there was some merit in Google's argument. 

The new IT Rules, 2021, define a social media intermediary as an entity that primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services. 

"The exceptions to this rule are intermediaries, which primarily enable commercial or business-oriented transactions, provide access to internet or computer networks, or is a search engine, online encyclopaedia, online directory or suggestion tool, email service or online storage service," said Sajai Singh, partner, J Sagar Associates.

"If the court was to accept the view being proposed by Google, then, though it may be an intermediary, with a subscription base larger than the thresholds provided, they may have some relief with regard to appointment of various officers, which a significant social media intermediary needs to appoint. I guess, the government may argue on other compliances like due diligence and take-down requirements," added Singh.

Atul Pandey, partner at Khaitan & Co, said, "Google’s contention that it is not a social media intermediary under the new IT Rules, 2021, but rather a search engine, may have merit, considering Google cannot be construed to be a ‘social media’ company having in excess of 5 million registered users (which is the threshold for being treated a social media intermediary. While Google has, in the past, conceded to being an intermediary under the IT Rules, given its role as a search engine, it may not qualify as a social media intermediary."

In the April order, the court noted Google's submission that "intermediaries that run search engines are not ‘publishers’ and that they merely ‘index’ existing information online and to that extent have only a limited role, owing to the automated manner of functioning of search engines. It has also been emphasised that the legal framework mandates that the internet be kept free from editorial intervention”.