By the end of this year, India will surpass USA in terms of number of internet users. It's indeed good news for the "carriers of the internet" i.e. companies that provide internet access and are accordingly called internet service providers (ISPs); whose revenues are all set to soar as more and more Indians continue to be captivated by the charms of the internet and the myriad possibilities it offers. But to sustain the charm, internet access needs to be quick, smooth, open and transparent which, no doubt, is the responsibility of the ISPs and yet cannot be left totally to their control. Most of them are, after all, private entities actuated only by business considerations and may adopt opaque and invidious practices as and when it suits them or simply may not be able to cater to the needs/interests of the consumers. This necessitates that the legal and regulatory regime in which they are functioning is enabling and dynamic without being unnecessarily overbearing. Unfortunately, this does not seem to be the case in India at present.
Overview of Regulatory Framework
ISPs have been specifically categorized as internet intermediaries under the Information Technology Act, 2000(amended in 2008 and hereinafter referred to as the Act). Section 79 of the Act provides immunity to the ISPs in certain cases of internet wrongs even if committed through their networks provided they follow the due diligence guidelines, prescribed in detail in the Information Technology (Intermediaries guidelines) Rules, 2011 and expediently remove/disable access in case of any actual knowledge of unlawful act or on receipt of government notification to that effect. This immunity from liability, however, does not apply when the unlawful act concerns copyright or patent infringement, both of which have been specifically excluded by way of proviso to section 81 of the Act.
In view of internet being one of the prime mediums for accessing, distributing and most importantly infringing copyrighted content, liability of ISPs in case of copyright infringement is fixed by the Copyright Act, 1957 mostly under Section 51(a) (ii) of the Act which, inter alia, holds, any person providing "any place" for communication of infringing work, for profit, to the public, liable of infringement unless she can prove that she was not aware or she had no reasonable grounds for believing such communication to be infringing.
The phrase "any place" has been interpreted to include web space1 by the judiciary making ISPs both proper and necessary parties in any copyright infringement across internet. In fact in one of the orders Madras High Court2 went on to suggest that without ISPs there would be no piracy across internet. Well, true but there would be no internet access as well. Hon'ble Court further expressed that since under IT Act, ISPs have the power to block any website; it is for them to ensure that any illegal or immoral content is not made available implying, a little erroneously, that it is the power of the ISPs that makes them liable for copyright infringement (Hohfeld would not be happy).
To provide relief to the ISPs the 2012 amendments to the Copyright Act introduced certain safe harbour provisions but to no avail. In a recent order by Delhi High Court in Star India Pvt. Ltd v. Haneeth Ujwal3, it was held that ISPs have an obligation to ensure that no violation of third party intellectual property rights takes place through its networks. The Court invoked the License Agreement between the Department of Telecommunications and the ISP to saddle the ISP with the responsibility of ensuring that any infringing work is not carried on its network. Interestingly there was no mention of the recently introduced safe harbour provisions.
Indian judiciary seems to be shifting the burden of identifying infringement on ISPs which essentially is the obligation of the copyright owner ignoring the fact that ISPs lack both the institutional and logistical capacity to assimilate information of infringement across millions of URLs that can be accessed through their networks. In fact in Kamlesh Vaswani v. Union of India4, a PIL filed before Supreme Court of India in 2013 , seeking blanket ban on online pornography , ISPAI(Internet Service Provider Association of India) made an unequivocal statement before the Apex Court that without adequate legal support from the government or judiciary, ISPs cannot ban websites. Though the issue did not involve copyright infringement, however, the argument of the ISPs that "they cannot be made liable for what people do on their networks just like telecom companies are not liable for peoples' conversation" seems well founded and applicable even in instances where they are not only held responsible for copyright infringement but also obligated to identify it.
What if ISPs actually start following the regulatory mandate and start blocking websites according to their sweet will. Of course website owners can approach judiciary, argue freedom of speech and litigation can go on happily ever after. But what if website is a small start-up, wary of being involved in an expensive litigation? Who would then set right the excesses of online censorship where ISPs have an unfettered discretion in deciding who they provide access to?
Though in all the orders discussed above, judiciary has mandated ISPs to ensure no online piracy takes place, there are simply no guidelines to suggest which websites should be banned, should only infringing URLs (Uniform Resource Locators) be blocked or complete websites, what about one –off instances of infringement and do they also warrant complete ban and in case of ban - who examines its legality and what rights are available to website owners?
And what if these ISPs, encouraged by such unbridled power, also start discriminating between various kinds of content, providing preferential access to some online content providers over another as per their interests and not consumers' choices? Considering that India does not have a law that makes net neutrality mandatory for ISPs it indeed is a possibility. For instance Bharti Airtel, leading ISP in India, had in 2013 tied up with Google to provide free data service up to 1GB for accessing Google search engine , Gmail and other Google + services.
Considering that ISPs incur a lot of expenditure on providing an efficient bandwidth infrastructure to websites desirous of faster access, they may want to recover it by charging higher rates from them. But can such discrimination between content be justified? Wouldn't it mar the openness internet is known for. And even if allowed to an extent, it certainly needs to be regulated. But net neutrality is yet to be addressed by Indian regulatory framework pointing clearly to a regulatory gap.
In the meanwhile it remains to be seen when India will do away with the ironical contrast of having an onerous yet inadequate legislation.
1 Super Cassettes Industries Ltd. v. Myspace Inc. & Another, Delhi High Court , CS(OS)2682/2008
2 RK Productions v. BSNL, Madras High Court ,Civil Suit 208/2012, O.A No. 230 of 2012
3 Star India Pvt. Ltd v. HaneethUjwal, Delhi High Court, CS(OS) 2243/2014
4 KamleshVaswani v. Union of India, Supreme Court of India,Writ Petition (Civil) No(s). 177 of 2013
Priya is an Associate at LexOrbis
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