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
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
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.
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