India has adopted various provisions of the Information Technology Act from Singapore’s law. The provisions of Section 79 are quite similar to the provisions regarding liability of network service provider under Singapore’s Electronic Transactions Act 1998 and new law of 2010. Under the Electronic Transactions Act , 2010 the network service provider will be held liable if any kind of obligation is imposed upon him under the contract.
Electronic Transactions Act , 1998 earlier provided for the liability of network service provider. The Act was repealed in 2010 and replaced by Electronic Transactions Act,2010. It extends the liability of network service provider for infringement of copyright. Section 26 exempts the network service provider from any civil or criminal liability for any electronic records if it only provides access to any third party material. Such liability to be founded on the making, publication, dissemination or distribution of such materials or any statement made in such material or the infringement of any rights subsisting in or in relation to such material.
The Section provides the exception where the network service provider will be held liable if any obligation is there in the contract, the obligation of a network service provider as such under a licensing or other regulatory regime established under any written law, any obligation imposed under any written law or by a court to remove, block or deny access to any material and network service provider fails to follow such obligations.
Section 79 of the Information Technology Act, 2000 covers the aspect of liability of intermediaries including Internet service providers. An ‘intermediary’ is defined by IT Act, 2000 in Section 2(w) as ‘any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to electronic 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’. Section 79 deals with the liability of the intermediaries as defined in the Act.
Section 79 stands amended by IT (Amendment) Act, 2008. It exempts intermediaries from liability in certain instances. It states that an intermediary will not be liable for any third party information, data or communication link made available or hosted by him except as specified in Sections 79(2) and (3). The ‘third party information’ is described in Explanation to Section 79 as any information dealt with by an intermediary in his position as an intermediary. The Act extends safe harbour protection only to those instances where the intermediary merely acts a facilitator and does not play any part in creation or modification of the data or information. The provision also makes the safe-harbour protection contingent on the intermediary removing any unlawful content on its computer resource on being notified by the appropriate Government or its agency or upon receiving actual knowledge. The intermediary is also not liable if it does not initiate the transmission, select the recipient and select or change the information contained in the message.An intermediary is not liable for third party information if it observes due diligence in performing its duties and complies with the guidelines of the Central Government. Section 79(3) provides conditions when an intermediary is liable for third party information. Section 79(3) (a) states that an intermediary is liable if it conspires or abets or aides or induces through threats or promises or otherwise to commit an unlawful act and the intermediary is also liable if on receiving actual knowledge or on receiving a notice from the government or its agency that any information residing in or connected to a computer resource which is managed by an intermediary is being used to commit the unlawful act, the intermediary does not quickly remove or disable access to that material without vitiating the evidence in any manner.
This post has been contributed by Miss Poonam Pant, who is working as an Assistant Professor at LLR Group of Institutes, Solan, Himachal Pradesh.
Image from here