VIRTUAL ISSUE

Hosts liable only for own content on Net
Manoj Mitta | TNN

New Delhi: While internet users may face libel for what they write themselves, the “intermediaries” who host such content are liable only if they are consciously complicit to the offence or fail to remove the offending material immediately after it is brought to their notice by the authorities.
This is evident from the amended Information Technology Act, which came into effect barely 20 days ago. Hence, when the Supreme Court rebuffed this week an internet user’s plea to quash criminal action, it steered clear of making any observations about the corresponding liability of intermediaries.
The new Indian law is in keeping with the international trend of limiting the liability of intermediaries to situations where they act as “publishers” (with scope to moderate or edit the content) rather than as “distributors” (aggregators of information like libraries and book shops).
Accordingly, the amended section 79, which was in the Bill that was passed by Parliament in December 2008, says that where the intermediary in effect acts as no more than a distributor, he “shall not be liable for any third party information, data or communication link made available or hosted by him.”
Section 79 provides that the intermediary is exempt from liability in all cases where:
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;
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;
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.
An ‘‘intermediary’’ has been defined in the amended law as “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, online market places and cyber cafes.”
The elaborate safeguards for intermediaries contained were drafted in the wake of the industrywide scare spread by the 2004 DPS-MMS scandal, which led to the arrest of the CEO of auction site baazee.com where a CD containing the salacious clip was offered on sale by a user.
Conversely, section 79 says that the immunity against criminal liability shall not apply in cases where “the intermediary has conspired or abetted or aided or induced whether by threats or promise or otherwise in the commission of the unlawful act.”
But the police had sought to justify the CEO’s arrest by accusing him of taking too long to remove the CD from the auction site. Now the amended section 79 stipulates that the intermediary is liable to criminal action where “upon receiving actual knowledge, or on being notified by the appropriate government or its agency that any information ... the intermediary fails to expeditiously remove ... that material’’.
Courtesy: TOI