Are Intermediaries Liable for Third-Party Content?

What is an Intermediary?

An intermediary has been defined under Section 2(w) of the Information Technology Act, 2000 as “any person who on behalf of another person receives, stores, or transmits that record or provides any service with respect to that record and include telecom service providers, web- hosting service providers, search engines, online payment sites, online auction sites, online market places, and cyber cafes.” By way of the 2008 Amendment Act, the definition of the term “intermediary” has been broadened and made an inclusive one.

Intermediary Liability Under The Information Technology Act, 2000

The need to protect intermediaries was recognized and in light of the same, certain provisions granting immunity to intermediaries were incorporated in the Information and Technology Act, 2000 in the form of ‘safe harbour’ provisions.

Section 79 of the Act is a ‘safe harbour’ provision that grants conditional immunity to intermediaries from liability for third party acts. It grants immunity concerning any third-party information, data, or communication link made available or hosted by them. This immunity is however, subject to the provisions of Section 79(2) and 79(3) of the Act.

Section 79(2) essentially covers cases where the activity undertaken by the intermediary is of a technical, automatic, and passive nature. For applicability of Section 79(2), the intermediaries should neither have knowledge nor control over the information which is transmitted or stored. Furthermore, Section 79(3)(b) of the IT Act, 2000 envisages a ‘notice and takedown’ regime, wherein the intermediary is required to take down unlawful content upon receiving actual knowledge of its existence. Furthermore, the Information Technology (Intermediary Guidelines) Rules, 2011 were notified by the Central Government which inter alia prescribed due diligence practices to be adopted by the intermediaries.

Case Laws Regarding Intermediary Liability

However, the case of Avinash Bajaj v. NCT highlighted the lacunae in these provisions of the IT Act, of 2000.

In the year 2005, the case of Avinash Bajaj v. NCT changed the construct of Section 79 of the IT Act, 2000. Mr. Bajaj, the CEO of Bazee.com (the erstwhile subsidiary of auction portal eBay.com) was arrested after a video clip containing an objectionable matter was posted on his website. This case brought forth issues and concerns relating to intermediaries and in particular discussed the onus of proof lies heavily with the intermediary. Thereafter, Section 79 of the Act was amended in 2008 and exonerated the intermediary from liability for third-party information albeit with riders provided under Section 79, sub-section (2) and (3) of the Act.

In matters related to Intellectual Property Rights, the Delhi High Court in the case of My Space Inc. v. Super Cassettes Industries Ltd. held that an intermediary was liable to take down/remove access to infringing content within 36 hours only upon receiving actual notice which also meant that the complainant ought to have provided the specific details and locations of the works which were being infringed, to enable the intermediary to identify them. The Court opined that the intermediaries can act on actual knowledge and not on the basis of an apprehension. This decision also provided a breather to intellectual property owners who did not have to obtain court decisions to make intermediaries take down infringing content.

Section 230 of the Communications Decency Act, USA

Section 230 of the Communications Decency Act governs online intermediary liability in the United States. It contains two main provisions. The first, Section 230(c)(1), prevents online services from facing liability for third-party content on their platforms. The second, Section 230(c)(2), protects online services from facing liability for removing objectionable third-party content from their platforms. Section 230 also contains a few major exceptions; notably, its liability shield does not apply to federal criminal law, state or federal sex trafficking law, or intellectual property law. The United States also has a separate law, the Digital Millennium Copyright Act (DMCA), that governs online copyright law.

Reflecting the United States’ historic commitment to free speech, Section 230 offers broad intermediary liability protections in order to protect and promote free expression online, whereas most other countries without First Amendment protections offer narrower protections in order to prevent bad actors from taking advantage of the Internet. As U.S. lawmakers consider making changes to Section 230, There are many options beyond the binary of preserving Section 230 as it is and repealing it altogether. U.S. policymakers consider a variety of proposals to reform Section 230.

This shall be discussed in length in the upcoming cases of Gonzalez v. Google and Twitter v. Taamneh which will also lay a precedent for other countries as these are giant global platforms.

Conclusion

As far as the Indian jurisprudence on the concept of Intermediary liability is concerned, the judiciary is proactively taking steps in interpreting the safe harbour exemption and the rights and liabilities of intermediaries in India.

The Intermediary Guidelines (Amendment) Rules seek to strengthen our Information technology regime but numerous concerns with it also exist. As the intermediaries continue to play a vital role in our day-to-day lives, it is necessary that a delicate balance should be maintained in granting exemptions and imposing liability on them.

Author: Radhika Verma, Legal Intern at PA Legal.

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