Can't Become Super-Censor, No Compulsion To Proactively Monitor 'Unlawful Content' On FB, Insta: Meta Tells MP High Court

Meta has deposed before the Madhya Pradesh High Court (Indore Bench) that it can't be compelled to proactively monitor its platforms (Facebook, Instagram & WhatsApp) for unlawful content and that it can't become a super-censor for billions of users and billions of pieces of content posted on its platforms every day.

Essentially, Meta has filed an affidavit in a Public Interest Litigation (PIL) plea filed before the Madhya Pradesh High Court against Facebook, Instagram, WhatsApp, and Twitter for allegedly displaying/hosting obscene, unregulated, uncertified, sexually explicit, and legally restricted content.

The PIL was filed last year through advocates Amay Bajaj and Ashi Vaidya seeking a direction to Facebook, Instagram, WhatsApp and Twitter to remove all such 'Unlawful conten' content from their websites as well as the internet with immediate effect.

Read more about the PIL plea here: "Hosting Abusive & Defamatory Content Against Govt., Judiciary, Executive": Plea in MP HC Against Facebook, Instagram, WhatsApp, Twitter

The averments in the affidavit filed by Meta

Challenging the maintainability of the petition before the High Court, Meta has submitted that the PIL has been rendered infructuous by the introduction of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code Rules 2021) IT Rules, as the rules take care of one of the prayers in the PIL by prescribing due diligence guidelines for social media intermediaries and regulate content.

Meta has also stated in its affidavit that petitioner's prayer to direct Meta to identify and remove allegedly unlawful content on its platforms, if granted, would contravene Section 79 of the IT Act and the Hon'ble Supreme Court's precedent that intermediaries, like Meta, cannot be compelled to proactively monitor their platforms for unlawful content.

"The Facebook Service and Instagram Service are platforms wherein third parties upload content of their choosing. Meta is neither the author nor the publisher of the content on the Facebook or Instagram Services, nor does it have any role in initiating, selecting the receiver of, and/or selecting or modifying such content...Meta has no duty to disable access to content unless it receives "actual knowledge" that specific content is unlawful from a valid (i) court order, or (ii) direction from an appropriate Government agency."

Against this backdrop, Meta has argued that it cannot be required to proactively monitor and screen the Facebook or Instagram Services for"explicit" or"unlawful" content as Petitioner requests.

Importantly, Meta has also stated that compelling Meta to monitor for and adjudicate the lawfulness of content on the Facebook and Instagram Services is infeasible, especially given the billions of users and billions of pieces of content posted and shared on those services each day, and it would improperly require Meta to become a "super censor" in contravention of the Supreme Court's decisions in Shreya Singhal and Google India.

"In sum, Indian law is unequivocal that intermediaries cannot be compelled to proactively monitor their platforms for unlawful content, and only have a duty to remove or disable access to unlawful content upon receiving 'actual knowledge' through a Court order or appropriate Government direction sufficiently identifying the specific content that is unlawful," the affidavit states.

Further, Meta has also objected to the maintainability of the PIL by stating that Meta is a private entity, and not a "State" or "Other Authority" of the Government under Article 12 of the Constitution, and that the PIL improperly seeks reliefs in the nature of Mandamus absent any statutory duty.

"This Hon'ble Court's writ jurisdiction is not maintainable against Meta because Meta is (1) a private, not public, entity; (2) neither owned, funded, dominated, nor controlled in any way by the Government; and (3) not required to, and does not, discharge a public duty, positive obligation of a public nature, or a statutory function. Further, any control that the Government exercises over Meta is "merely regulatory" in nature," the Affidavit avers.

Importantly, WhatsApp has also filed a separate Affidavit in the matter opposing the maintainability of the PIL on grounds similar to what has been averred in the affidavit filed by Meta.