Information Technology Act, 2000 as amended in 2008

Cyber Law in India:

Information Technology Act, 2000 is the law governing e-commerce, internet and Cyber laws in India. The only legal commentary on the subject has been thoroughly revised and updated and now it’s 2014 edition is available for sale as Kindle Edition.

About the Kindle eBook on Information Technology Act, 2000:

“Facebook arrests, blocking of web sites etc. wakes up to understand what is the law behind such Government action and if it was justified. The relevant law in India is Information Technology Act, 2000. This kindle book is a legal commentary on the provisions of Information Technology Act, 2000 as enacted by the Parliament of India. This statute primarily governs the law relating to Internet, Digital Communication and other such matters. This statute covers variety of new legal rights and liabilities apart from creating various authorities for enforcement of new rights and liabilities. Certain acts have been defined as offenses which are punishable with fine or imprisonment. This book, apart from the original enacted provisions of the statute also contains legal commentary on virtually every provision to assist the the legal implications of each provision. Commentary also contains reference to existing case law on the subject without confining itself to the courts of India and incorporating judicial precedents from all over the world. Where ever direct case law is not available, an anlogous provision and case law thereon has been dealt with to thoroughly analyze the provisions of this Act. This is a 2014 edition and includes a thorough commentary on the notorious provisions introduced by Amending Act of 2008. “

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Section 66-A, is a restriction upon the right of ‘Free Speech’ or ‘Freedom of Speech & Expression’ guaranteed under Article 19(1)(a) of Constitution of India. It curtails the freedom of expression by prohibiting under coercion of penal action, certain kinds of expression. However the restrictions under this provision have to meet the test of reasonableness as specified under article 19(2) Which is as under:

‘Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercises of the right conferred by the said sub-clause in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign, State, public, order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.’

Since, we shall be discussing the cases from around the globe, it may be pointed out that in USA, the freedom of speech is absolute as there is no provision in the constitution similar to article 19(2). However Supreme Court of USA has evolved several tests, one of which is the test of ‘clear and present danger’ which is similar to test of reasonableness provided in article 19(2) but it is not the same. In fact Justice Douglus of USA Supreme Court was of the view that even in USA the ‘Judges sometimes try to read the word “reasonable” into the First Amendment or make the rights it grants subject to reasonable regulation.’1 He also took note of the fact that ‘this limitation is strictly construed; any restriction amounting to an “imposition” which will “operate harshly” on speech or the press will be held invalid.’2

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More extracts:

Constitutional Validity u/a 19(1)(a) The restrictions imposed by the s. 66-A have to be tested on the anvil of objects for which it is permissible to impose the restriction u/a. 19(2) of Constitution. These can be summed up as under:

1. Interest of Sovereignty and Integrity of India,
2. Security of State,
3. Friendly relations with foreign State,
4. Public order
5. Decency or morality,
6. Contempt of court
7. Defamation or
8. Incitement to an offence.

All the above subjects are covered by specialized laws which deal with matters ex post facto. Some of above subjects are also covered by other provisions of this Act, itself. It is yet to be seen as to under which of the above 8 objects, s.66-A, seeks to achieve. At best S. 66-A can relate to decency or cyber-stalking but it does not employ these words. It would be appropriate to deal with each clause of section 66-A separately.

Clause (a) deals with an act of ‘Intimidation’ through electronic message while former is covered by IPC. Obviously c. (a) is similar in term with the c. (a) of 127 of U.K. Communications Act, 2003 in so far as word ‘menace’ is concerned. But similarity ends there itself. Obviously this clause relate to an offence of intimidation itself and not an ‘incitement to do an offence’. It may be seen that unless a message falls within one of the 8 categories specified in article 19(2) of Constitution, it would be hit by Article 19(1)(a) of the Constitution. Act of intimidation, unless it is contrary to interest of Sovereignty and Integrity of India or Security of State or Friendly relations with foreign State or in alternative it is accompanied by disturbance of public order or incitement to commit an offence or is contrary to decency or morality or amounts to contempt of court or defamation, mere menacing nature of message is beyond the legislative competence of the Parliament and is unconstitutional, being hit by article 19(1)(a).

Clause (b) starts with the word ‘false’ and thereafter employs a series of words which have different………….

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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.