Liability of Intermediaries under the Information Technology Act

Introduction
Recently Delhi high court has summoned Google, Facebook and Twitter to remove objectionable content from their website within the prescribed time period failing to which may result into blocking of the websites in India. So the question which triggers is What is the liability of the intermediaries like Google, Facebook and Twitter under Indian law?

Who is an Intermediary?
“Intermediary” under Section 2(1) (w). It reads as –
“intermediary”, with respect to any particular electronic records, means any
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, network service providers, internet service providers, webhosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes;’.

Liability of Intermediaries
Section 79 of the IT Act exempts intermediaries from liability in certain cases. The Section reads as –Sec. 79
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 hosted 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 hosted; 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 otherwise 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.
This provision arises two questions –

• What is the meaning of “observing due diligence”?
• What is the time frame to remove objectionable material from resource?

To address these and other issues the Information Technology (Intermediary guidelines) Rules, 2011 are introduced. They are applicable from 11th April, 2011.
Features of the rules are as follows
Observing Due Diligence - Rule 3
Of the said rules has given circumstances which if complied satisfies the criteria of observing Due Diligence. It reads as –
1. The intermediary shall publish the rules and regulations, privacy policy and user agreement for access-or usage of the intermediary's computer resource by any person.
2. Such rules and regulations, terms and conditions or user agreement shall inform the users of computer resource not to host, display, upload, modify, publish, transmit, update or share any information that —
    a) belongs to another person and to which the user does not have any right to;
    b) is grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, pedophilic, libelous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging         money laundering or gambling, or otherwise unlawful in any manner whatever;
    c) harm minors in any way;
    d) infringes any patent, trademark, copyright or other proprietary rights;
    e) violates any law for the time being in force;
    f) deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;
    g) impersonate another person;
    h) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource;
    i) threatens the unity, integrity, defense, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any other nation

• The intermediary, on whose computer system the information is stored or hosted or published, upon obtaining knowledge by itself or been brought to actual knowledge by an affected person in writing or through email signed with electronic signature about any objectionable information as mentioned above, shall act within thirty six hours and where applicable, work with user or owner of such information to disable such information that is in contravention.
• Further the intermediary shall preserve such information and associated records for at least ninety days for investigation purposes.
• The intermediary shall take all reasonable measures to secure its computer resource and information contained therein following the reasonable security practices and procedures as prescribed in the Information Technology (Reasonable security practices and procedures and sensitive personal Information) Rules, 2011.
• The intermediary shall publish on its website the name of the Grievance Officer and his contact details as well as mechanism by which users or any victim who suffers as a result of access or usage of computer resource by any person in violation of rules can notify their complaints against such access or usage of computer resource of the intermediary or other matters pertaining to the computer resources made available by it. The Grievance Officer shall redress the complaints within one month from the date of receipt of complaint.
• credits;http://www.chmag.in/article/feb2012/liability-intermediaries-under-information-technology-act

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