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.
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