LIABILITY OF INTERMEDIARIES UNDER THE INFORMATION TECHNOLOGY ACT, 2000
Author: Anushi Agarwal, V year of B.A., LL.B.(Hons.) from Symbiosis Law School, Pune
Section 2(1) (w) of the Information Technology Act, 2000 defines intermediaries as any person who receives, stores or transmits any particular electronic message on behalf of any other person. It includes online market places, search engines, internet service providers and network service providers. Intermediaries provide services online enabling content to the end-user and so is a facilitator between an originator and an addressee. Hence, intermediaries are those essential cogs that help to move the wheel of right to freedom of speech and expression on the internet worldwide. With this, intermediaries also have certain liabilities that are explained in Section 79 of the Information Technology Act, 2000.
Technological innovations are represented by intermediaries that can further be used in a lawful as well as an unlawful manner which makes it important to balance the rights with the liabilities of the intermediaries to avoid any lawlessness. Section 79 provides that balance between the technological necessity of the users and the legal necessity that makes intermediaries liable.
Since intermediaries provide a medium for the posting and communicating of content by parties, they can be held liable for copyright infringement, defamation, child pornography, privacy violations, obscenity etc for which the parties offended may not only seek injunctions but can also initiate civil and criminal proceedings and there have been cases wherein High Courts have issued ad-interim injunctions against the intermediaries.[i]
Section 79 of the Act is a ‘safe harbour’ provision which grants conditional immunity to the intermediaries for the acts performed by the third parties. Sub-section (1) of Section 79 provides for the exemption of intermediaries from liabilities for any third party information, data or communication link made available or hosted by him, and sub-section (2) and (3) provides for when can the exemption rule under sub-section (1) can apply and when cannot, wherein third party information refers to any information with which any network service provider is dealing in the capacity of an intermediary. The burden of proof shall be on the prosecution to establish that the intermediary is guilty and should be held liable.
Since intermediary acts only as a facilitator that provides a platform for posting data or content, it just plays a passive role and does not initiate any transmission or modification of such content on itself which is why it can be exempted from liabilities under sub-section 2 of the act. Also, if the intermediary has observed due diligence while discharging its duties that fall under this Act and also takes care of any such guidelines as the Central Government may prescribe on this behalf. “Due diligence” refers to the reasonable steps taken by the person to avoid the commission of any offence or unlawful act.[ii] For example, such reasonable steps are taken to determine whether the content posted on the platform is lawful or any such step or measure is taken that a reasonable and prudent man is expected to,[iii] under particular circumstances that cannot be measured by any absolute set standard but depend on the relative facts of the special case.
According to sub-section (3) of the Act, 2000, the intermediary shall not be exempted from any liability and so will lose the immunity if the intermediary has been engaged in conspiracy or abetment, has aided or has caused inducement by threats or promises or otherwise has violated the provisions of the Act as this provision gives immunity from prosecution for an offence only under Technology Act itself.[iv] Also, If upon receiving actual knowledge or on receiving any notifications that any data, information or communication link is being used to commit any unlawful act, the intermediary does not take quick action and fails in expeditiously removing such data or content from its platform or disabling access to the same[v], the intermediaries shall lose their immunity. Knowledge has a definite connotation, i.e. consciousness or awareness and not mere possibility or suspicion of something likely.[vi]
“Actual Knowledge” here means constructive knowledge, i.e. a person should be having constructive knowledge regarding the content posted or the data and material, which would put any reasonable or prudent person on notice as to the suspect nature of the material. In other words, the intermediary already knows or there is a proper reason to believe that the data or information that is being transmitted is unlawful. Knowledge can be obtained through various sources such as most importantly appropriate filters, then moderators or receipt of notices from other parties etc. This concept of “notice and takedown” is an opportunity given to intermediaries to exempt themselves from incurring any kind of liability is prevalent in may foreign jurisdictions also. In a way, the aforesaid section of the Act is consistent with the statutory provisions prevailing in other countries.
[i]JCB India v. Abhinav Gupta, CS (OS) No. 691/2008.
[ii]ChanderKanta Bansal v. Rajinder Singh Anand, (2005) 57 SCL 262 (SAT).
[iii]Black’s Law Dictionary, 6th Edition., pg. 457.
[iv]Sanjay Kumar Kedia v. Narcotics Control Bureau, (SLP (Crl.) No. 3892 of 2007.
[v]Avnish Bajaj v. State, (2005) 3 CompLJ 364 Del.
[vi]Super Cassettes Industries Ltd. v. Myspace Inc. &Anr, 2011 (48) PTC 49 (Del).
Anushi Agarwal is a fifth year law student of Symbiosis Law School, Pune. She always aspired to pursue law as she possess the quality of leadership and easily blends into the working environment.She ignores distractions and focuses on the positivity around that helps her in writing. She is passionate about every work she does and aspires to do.