India: Intermediaries Under The Information

Technology (Amendment) Act 2008

Last Updated: 6 March 2013
Article by Alaya Legal
Alaya Legal

Under the Information Technology Act 2008 an intermediary was defined as any person who
on behalf of another person stores or transmits that message or provides any service with
respect to that message.

The Information Technology Amendment Act 2008 has clarified the definition of intermediary
by specifically including the Telecom service providers, internet service providers, web-
hosting service providers in the definition of intermediaries. Further search engines, online-
payment sites, online auction sites, online market places and cyber cafes are also included
in the definition of intermediary.

Before the Information Technology Amendment Act 2008 came into force, the scenario in
India was worse for intermediaries. Intermediaries were liable for their users content. This
led to the arrest of Bazee.com chief Avinash Bajaj in connection with the sale of the
infamous DPS Noida MMS clip CD on the website. Post the Bazee.com fiasco the
Information Technology Laws have been amended. According to section 79 of the IT
Amendment Act 2008 an Internet service provider shall not be liable under any law for the
time being in force for any third party information, data or communication link made available
by him except when the intermediary has conspired or abetted in the commission of the
unlawful act or 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.

Hence under amended section 79 of the IT Act, the requirement of knowledge has now been
expressly changed to receipt of actual knowledge. This has been combined with a notice
and take down duty. There is a time limit o f 36 hours to respond to such a request. If an
intermediary refuses to do so, it can be dragged to the court as a co-accused. Under the
Amendment Act the safe harbour provisions is available only to an Internet service provider
where the function of the intermediary is limited to giving access to a communication network
over which information made available by the third party is transmitted or temporarily stored
or where the intermediary does not initiate the transmission, does not select the receiver of
the transmission and does not select or modify the information contained in the transmission.

Section 79 of the IT (Amendment) Act 2008 thus deals with immunity of intermediaries. It is
purported to be a safe harbour provision modelled on EU Directive 2000/31. The Safe
Harbour provisions found in the IT Act are similar to that found in the US Laws which
essentially say that the intermediaries who merely provide a forum weren't liable for what
users did. The only condition being that they respond promptly to a notice telling them about
a violation. If the website took that file off then they were in the clear.

The Delhi High Court in a case against myspace.com held that safe harbour provisions did
not apply in the case of myspace because it added advertisements to clips of songs thus
modifying them – something intermediaries are not supposed to do if they want to be
covered by the safe harbour rules. Further the Copyright Act in its current form did not really
allow for the provision of sending a notice for taking down the clip. The only way for Myspace
to avoid being liable was to do its due diligence before the copyright violation. The Indian
Copyright law does not allow for the kind of process that protects internet intermediaries.
The Indian law is however moving towards importing the safe harbour provisions in the IT
(Amendment)Act into the Indian Copyright Law. Amendments to the Copyright Act are
pending in the Parliament.

Intermediaries are though given immunity under section 79, they could still be held liable
under section 72A for disclosure of personal information of any person where such
disclosures are without consent and with intent to cause wrongful loss or wrongful gain or in
breach of a lawful contract. Proviso to section 81 of the IT (Amendment) Act states that
nothing contained in the Act shall restrain any person from exercising any right conferred
under the Copyright Act 1957 and the Patents Act 1970. This provision has created a lot of
confusion as to the extent of liability provided under section 79.

The Information Technology (Amendment) Act 2008 makes a genuine effort to provide
immunity to the intermediaries but needs to plug in some gaps so as to enable the
intermediaries to operate without fear and inhibitions.

The content of this article is intended to provide a general guide to the subject matter.
Specialist advice should be sought about your specific circumstances.
79. Exemption from liability of intermediary 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 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.