Intermediary Liability in India

Online intermediaries are entities that encourage the greater part of the exchanges that happen on the web. The extent of the data that flows through such intermediaries on a daily basis presents several privacy concerns. In India, the privilege to protection isn’t expressly ensured by the Constitution, however the Supreme Court has deciphered Article 21 of the Constitution (which accommodates the privilege to life or individual freedom) as verifiably giving the privilege to security.

In continuance of the mandate to secure the right to privacy of individuals in India, the Government has presented a large group of administrative measures that seek to

  1. protect the data collected by intermediaries from individuals; and
  2. protect individuals from infringement of their right to privacy via content that is hosted by intermediaries.

In the context of the internet, the Information Technology Act 2000 requires intermediaries to protect the data they collect and handle, and imposes conditional liability on intermediaries for their hosted content if such content infringes the privacy of an individual. Notwithstanding, these laws are deficient to manage the new worries that have emerged because of the fast advances in innovation and re-forming of the web.

However, these laws are inadequate to deal with the new concerns that have arisen as a result of the rapid advances in technology and re-shaping of the internet. Keeping in mind these concerns, a Group of Experts on Privacy was organised in order to analyse the state of India’s law on privacy and make recommendations that would form the basis for a new privacy framework in India.

These recommendations have resulted in a Draft Privacy Bill, which takes significant steps toward harmonizing the data protection standards and intermediary liability laws in India with those of the rest of the world. In India, intermediaries are governed under the Information Technology Act, 2000, which defines an intermediary as “any person who on behalf of another person receives, stores, or transmits that electronic record or provides any service with respect to that record”. This definition is very wide and covers a diverse set of service providers, ranging from Internet service providers, search engines, web hosting service providers, to e-commerce platforms or even social media platforms.

This post has been contributed by Ashmika Agarwal , who is a final year law student specializing in Energy Laws at UPES University due to graduate in April 2018.

L&P Editorial Team

The Law & Practice Blog's editorial team.

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