Liability of Internet intermediary under Indian Law

Legal obligation of Intermediary

Information Technology Act, 2001; Section 79 is as under:

Exemption from liability of intermediary in certain cases— (1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.
(2) The provisions of sub-section (1) shall apply if—
(a) 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; or
(b) 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;
(c) 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.
(3) The provisions of sub-section (1) shall not apply if—
(a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act;
(b) 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.
Explanation— For the purposes of this section, the expression “third party information” means any information dealt with by an intermediary in his capacity as an intermediary.

Intermediary is under an obligation to remove unlawful content if it receives actual notice from the affected party of any illegal content being circulated/published through its service.

Intermediary is bound to comply with Information Technology (Intermediaries Guidelines) Rules 2011. Rule 3(3) of the said rules read with Rule 3(2) requires an intermediary to observe due diligence or publish any information that is grossly harmful, defamatory, libelous, disparaging or otherwise unlawful.

per Manmohan Singh, J. of Delhi High Court in Vyakti Vikas Kendra, India Public Charitable Trust v. Jitender Bagga, in CS(OS) No.1340/2012 decided on: 09.05.2012.

Failure of intermediary to comply:

An intermediary is liable for third party if despite actual knowledge, it fails to remove such illegal information, then the court can ask the party to disclose the identity of the person who is involved therein.
Per Manmohan J. of Delhi High Court in Nirmaljit Singh Narula v. Indijobs, in CS (OS) No.871/2012  decided on 30.03.2012.

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