Intermediaries are the means through which a lot of sellers exercise their right to freedom to carry-out any business. India has adopted legislations in order to limit intermediary liability. In the year 2008, an amendment was made to the Information Technology Act 2000. With this amendment India introduced a notice and takedown regime for limiting the liabilities of intermediaries.
In April 2011, Information Technology [Intermediaries Guidelines] Rules 2011, which provides guidelines for administration of takedowns by intermediaries. As per these guidelines, an intermediary may be held liable for an infringing content only when it has specific or actual knowledge or a reason to believe that such information may be infringing.
Section 79, Information Technology Act, 2000:
“79. INTERMEDIARIES NOT TO BE LIABLE IN CERTAIN CASES
(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hasted by him.
(2) The provisions of sub-section (1) shall apply if—
(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hasted; or
(b) the intermediary does not—
(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the transmission;
(c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.
(3) The provisions of sub-section (1) shall not apply if—
(a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or othorise in the commission of the unlawful act;
(b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.
Explanation.—For the purposes of this section, the expression “third party information” means any information dealt with by an intermediary in his capacity as an intermediary.”
Following are the cases that discuss the liability of Intermediaries with regard to Section 79, IT Act:
Court: Supreme Court of India
Coram: Justice Dipak Misra and Justice Prafulla C. Pant
Section 67 clearly stipulates punishment for publishing, transmitting obscene materials in electronic form. The said provision read with Section 67A and 67B is a complete code relating to the offences that are covered under the IT Act. Section 79 is an exemption provision conferring protection to the individuals. Section 81 also specifically provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. All provisions will have their play and significance, if the alleged offence pertains to offence of electronic record. The IT Act is a special enactment. It has special provisions. Section 292 of the Indian Penal Code makes offence sale of obscene books, etc. but once the offence has a nexus or connection with the electronic record the protection and effect of Section 79 cannot be ignored and negated. It is a special provision for a specific purpose and the Act has to be given effect to so as to make the protection effective and true to the legislative intent. This is the mandate behind Section 81 of the IT Act. The additional protection granted by the IT Act would apply.
Court: High Court of Andhra Pradesh and Telangana
Coram: Justice M. Satyanarayana Murthy
While referring to Shreya Singhal Vs. Union of India decided by the Supreme Court, this Hon’ble court observed that, it is difficult for any intermediary to keep watch on millions of postings and requests by the users of internet, but when it is brought to the notice of the intermediary, the intermediary is under obligation to remove such objectionable content.
Court: Delhi High Court
Coram: Sangita Dhingra Sehgal
Definition of ‘Intermediary’: Para 11 of the Judgment:
“The 'Intermediary' has been defined under the I.T. Act as a ‘person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, web hosting service providers, search engines, online payment sites, online-auction sites, online market places and cyber cafes’.”
After relying upon the para 122 of the Shreya Singhal Judgment it was held that:
“On a reading of the 'The Information Technology (Intermediaries Guidelines' Rules), 2011' in conjunction with Section 79 of the I.T. Act, the outcome is that the aforesaid Guidelines are binding on the service providers and do not provide a remedy for criminal defamation, therefore, it can be construed that the remedy lies under Section 499/500 of the IPC.”
Court: Supreme Court of India
Held, see Para 122:
Section 79(3)(b) has to be read down to mean that the intermediary upon receiving actual knowledge that a court order has been passed asking it to expeditiously remove or disable access to certain material must then fail to expeditiously remove or disable access to that material. This is for the reason that otherwise it would be very difficult for intermediaries like Google, Facebook, etc. to act 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. We have been informed that in other countries worldwide this view has gained acceptance, Argentina being in the forefront. Also, the Court order and/or the notification by the appropriate Government or its agency must strictly conform to the subject-matters laid down in Article 19(2). Unlawful acts beyond what is laid down in Article 19(2) obviously cannot form any part of Section 79. With these two caveats, we refrain from striking down Section 79(3)(b).
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