Internet intermediaries refer to entities which provide services that facilitate people to use the internet. They include network operators, network infrastructure providers, internet access providers, internet service providers, social networks, search engines and aggregators, internet cafes etc.1 The social networks offer platforms for users to publish self-generated content whereas the search engines index and provide access to user-generated content. The e-commerce sites provide the users an online platform for buying/selling of products/services. In the initial days, the social networks and other internet platforms were believed to promote free speech as the users were to voice their opinions and comments on various social and political issues without an editorial process. These online platforms were supposed to be regulating themselves to prevent unlawful content appearing in them. Therefore, the intermediaries were given 'safe-harbour' against third party content2 . In other words, they were not considered liable for user generated content. However, with the passage of time, these intermediaries have grown in stature with millions of users around the world. Self-regulation has become practically impossible due to the huge volume of user generated data handled every day by these platforms. The propagation of false information and unlawful content through the online platforms has raised alarms worldwide. Also, there have been instances where intellectual property rights have been infringed by the content hosted by these intermediaries. Consequently, there is an increasing demand for imposing greater liability on the internet intermediaries for intellectual property rights infringement3 .

Internet intermediary liability refers to the legal responsibility of intermediaries for unlawful activities carried out by the users through their services4 . The present article examines internet intermediary liability with special reference to the infringement of intellectual property rights in the context of the Indian law.

Internet intermediary

As per the Organization for Economic Co-operation and Development (OECD) "internet intermediaries bring together or facilitate transactions between third parties on the internet. They give access to, host, transmit and index content, products and services originated by third parties on the internet or provide internet-based services to third parties5 ". Internet intermediary is defined in section 2(1) (w) of the Indian Information Technology Act. The act reads - "Intermediary, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, on-linemarket places and cyber cafes6 ".

Extent of intermediary liability

There are different viewpoints worldwide on the extent to which an intermediary should be held responsible for the content generated by the user. In general, these could be summarized in the form of three models namely - strict liability model, safe harbour model and broad immunity model.

  • In the strict liability model, the intermediaries are held unconditionally liable for usergenerated content and hence they should monitor the content and ensure its compliance with the law7.
  • In the safe-harbour model, the intermediaries are granted conditional immunity provided they fulfill some requirements as specified by the law. This model includes "notice-andtakedown" processes, which are procedures regarding the receipt and processing of content takedown requests to be followed by the intermediaries. The intermediaries may be instructed to have content filters in place so as to avoid hosting or transmission of unlawful content. The safe-harbour model of intermediary regulation is followed by the EU e-commerce directive, US Digital Millennium Copyright Act and the Indian Information Technology Act8 .
  • In the broad immunity model, the intermediaries are given broad, sometimes conditional, immunity from liability for user-generated content. In this model, the intermediaries are not required to monitor the user generated data for unlawful content.

However, irrespective of the liability model followed, the intermediaries are obliged to take down unlawful content when they are instructed to do so through legal procedures9 .

Intermediary liability jurisprudence in India

The Indian Copyright Act of 1957 was amended in the year 2012 whereby the section 52 described a number of instances where exemption could be granted for copyright infringement. As per the section 52(1) (c), the acts of intermediaries are exempted from copyright infringement unless they are aware or have reasonable grounds for believing that such storage is of an infringing copy10 . The intermediaries are exempted from liability under the section 79 of the Indian Information Technology Act if the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence. Therefore, the intermediary is protected from copyright infringement if they were not aware that the hosted content was copied material11 .

The section 79 of the Indian Information Technology Act containing the "safe-harbour provision" was amended in 2008. The definition of intermediary was broadened to include the telecom and internet service providers, search engines, online marketplaces and cyber cafes. The safe-harbour protection was extended to all intermediaries. The intermediaries were given protection from all unlawful acts rather than offences covered under the IT Act. However, the intermediaries are required to observe due diligence and follow government guidelines. They should abstain from conspiring, abetting, aiding or inducing the commission of any unlawful act. Also, they should promptly remove unlawful content upon receiving 'actual knowledge' or notice from the government2 . Further the Information Technology (intermediaries guidelines) Rules, 2011, specified a set of conditions to be fulfilled by the intermediaries in order to obtain safe-harbour protection. These include (1) publishing of privacy policies and user agreements (2) specification of prohibited content including the infringing intellectual property rights (3) a stringent notice and takedown process (4) support to law enforcement agencies (5) reporting of cyber security incidents to the authorities and (6) appointment and notification of a grievance officer12 .

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