Intermediaries are widely recognized as essential cogs in the wheel of exercising the right to freedom of expression on the Internet. Most major jurisdictions around the world have introduced legislations for limiting intermediary liability in order to ensure that this wheel does not stop spinning.
Intermediaries are entities that provide services enabling the delivery of online content to the end user. The IT Act regulates internet intermediaries using the defined term ‘intermediaries’, which means,
“with respect to any particular electronic records, 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.”
This definition of intermediaries was inserted by the IT (Amendment) Act, 2008 which replaced the previous definition as presented in the original act.
Looking at the definition, it appears that any person providing any service with respect to electronic messages including receiving, storing, transmitting it would qualify as an Intermediary.
ROLE OF INTERMEDIARIES IN INDIA
“Intermediary” is defined in Section 2(1) (w) of the Information and Technology Act 2000. "Intermediary" with respect to any particular electronic message means any person who on behalf of another person receives stores or transmits that message or provides any service with respect to that message. The liability of the intermediaries is lucidly explained in section 79 of the Act.
SECTION 79 OF INFORMATION AND TECHNOLOGY ACT, 2000
Section 79 of the Information Technology Act, 2000 exempts intermediaries from liability in certain instances. It states that intermediaries will not be liable for any third party information, data or communication link made available by them. The Act extends “safe harbor 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- harbor 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.
This provision was added to the Act by the Information Technology (Amendment) Act, 2008 on the demand of the software industry and industry bodies to have protection from liability that could arise because of user generated content. This was mainly prompted by the controversial case in which Avnish Bajaj, the CEO of Baazee.com, an auction portal, was arrested for an obscene MMS clip that was put up for sale on the site by a user. The provision states that an intermediary needs to observe due diligence while discharging its duties under the Act and observe such other guidelines as prescribed by the Central Government. These other guidelines were laid down in the Information Technology (Intermediaries Guidelines) Rules, 2011 framed in the exercise of powers conferred by Section 87 read with subsection (2) of Section 79 of the Information Technology Act, 2000. The Rules were notified on April 11, 2011.
According to Section 79 of Information and Technology Act, 2000, for the removal of doubts, any person who is providing any service as a network service provider shall not be liable under this act for certain cases, rules or regulations made there under for any third party information or data made available by him. Even if proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention. For the purposes of this section, —
- "Network service provider" means an intermediary;
- "Third party information" means any information dealt with by a network service provider in his capacity as an intermediary;
An intermediary would be liable and lose the immunity, if the intermediary has conspired or abetted or aided or induced whether by threats or promise or otherwise in the commission of the unlawful act. Sections 79 also introduced the concept of “notice and take down” provision as prevalent in many foreign jurisdictions. It provides that an intermediary would lose its immunity if upon receiving actual knowledge or on being notified that any information, data or communication link residing in or connected to a computer resource controlled by it is being used to commit an unlawful act and it fails to expeditiously remove or disable access to that material. On the other hand, another interpretation can be drawn where section 79 of the IT Act, 2000 absolves ISPs (the internet service providers), who work as intermediaries, of its liability if it can prove its ignorance and due diligence, it does not specify who would be held liable for such contravention in such an event. Therefore, this provision will cause problems when an offence regarding third party information or provision of data is committed.
ANALYSIS OF THE INFORMATION TECHNOLOGY (INTERMEDIARIES GUIDELINES) RULES, 2011
The Intermediaries Guidelines Rules lay down the guidelines that the intermediaries have to follow so that they qualify for the safe-harbour protection provided under the Act.
The Intermediaries Guidelines Rules lay down the procedures that an intermediary has to follow to avail safe harbour. Rule 3(2)7 of the Intermediaries Guidelines Rules lists the categories of information, if posted online, which could be considered as illegal. According to Rule 3(4)8 an affected person could write to the intermediary to remove any content which is listed as unlawful under Rule 3(2). The intermediary has to act within 36 hours to remove the content. If the intermediary does not act within the stipulated time then the intermediary cannot avail safe harbour.
This provision was criticized by intermediaries who said that it is not easy to take down content or take action in 36 (thirty six) hours. Thereafter, a clarification9 was issued by the Government on March 18, 2013 stating that the intermediary shall respond or acknowledge the complaint within 36 hours. Thereafter, the intermediary has 30 (thirty) days time to redress such complaints. What constitutes redressal is unclear and no guidance has been provided by the rules.
The Information Technology (Intermediary Guidelines) Rules, 2011 make it obligatory for intermediaries to appoint a grievance officer and provide the name and contact details of such officer on their website. The grievance officer shall redress the complaints within 30 days from the receipt of complaint.
SUPREME COURT AND THE IT ACT
Since its introduction back in October 2000, the Information Technology Act has proved to be a highly controversial piece of legislation. In its thirteen-odd years of operation, the Act has managed to draw considerable criticism from the legal community and the general public. It is alleged to contain a whole spectrum of flaws, shortcomings and pitfalls ranging from being inefficient in tackling cyber crimes to placing unfair curbs on the civil liberties of citizens.
Making matters worse, a 2008 Amendment introduced to the Act the now-infamous Section 66A. This section defines the punishment for sending “offensive” messages through a computer or any other communication device like a mobile phone or a tablet. A conviction can fetch a maximum of three years in jail and a fine. The main problem with this section is the vagueness about what is “offensive”. The word has a very wide connotation, and is open to distinctive, varied interpretations. It is subjective, and what may be innocuous for one person, may lead to a complaint from someone else and, consequently, an arrest under Section 66A if the police prima facie accepts the latter person’s view.
Apart from Section 66A, the Information Technology (Intermediaries Guidelines) Rules, 2011 have also seen their fair share of criticism. While Section 79 exempts intermediaries from liability in certain cases, the Rules water down these exemptions and force intermediaries to screen content and exercise on-line censorship. Additionally, the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 provide for blocking of web pages without proper publication or notice to public containing the reasons for blocking. The process of blocking is undisclosed and fails to meet Constitutional safeguards of natural justice.
Section 66A of the Information Technology Act, 2000 was struck down in its entirety for being in violation of Article 19(1) (a) and not falling under the scope of 'reasonable restriction', under Article 19(2) of the Indian Constitution. Section 66-A of the Act stipulates punishment for sending offensive messages through communication service by the Supreme Court while determining its constitutionality in Shreya Singhal v Union of India. Section 66A is ambiguous in its phraseology and imposes statutory limits on the exercise of internet freedom. Further, the Intermediaries Guidelines Rules are similarly ambiguous and require private intermediaries to subjectively assess objectionable content. They actively water down the exemptions from liability granted to intermediaries by Section 79 of the IT Act, and prescribe unfeasibly minuscule time-frames for the removal of objectionable content. Section 66A of the Act, and the Rules are thus violative of Articles 14, 19 and 21 of the Constitution and the petitioner prays that they be declared as such. The vagueness of language invites blatant transgressions of Fundamental Rights and the grounds for incrimination under 66A are beyond the scope of reasonable restrictions on Fundamental Rights allowed by Article 19(2) of the Constitution. Due to the vague and undefined purported offences contained within 66A, the power to punish speakers and writers through arrest and threat of criminal trial is at the first instance granted to complainants with offended sentiments and police officials. A significant proportion of the offences in Section 66A do not even fall within the permissible categories of restriction in Article 19(2) of the Constitution. Further, the Intermediaries Guidelines Rules provide for vague and undefined categories that require legal determinations and effective censorship by private online service providers. The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 provide for blocking of web pages without proper publication or notice to public containing the reasons for blocking. The process of blocking is entirely secret and ex facie fail to meet constitutional safeguards of natural justice.
The intermediaries should be classified and according to this classification all the different intermediaries, rules should be followed for different types of intermediaries, as an intermediary which might need more than 36 hours time for applying action on take down notice. Also the guidelines should be refined and advanced for not infringing the essentials of Article 19 of Indian constitution and provide natural justice for better functioning in the dynamic India which is becoming promoter of freedom of speech and expression. Shashank Pathak, Information and Technology (Intermediaries Guidelines) Rules 2011: Thin Gain with Bouquet of Problems.
 Section 2(1)(w), IT Act.
 Avnish Bajaj v. State, 150 (2008) DLT 769
 Shreya Singhal v Union of India, (2013) 12 SCC 73.
 Rajeev Chandrashekhar v Union of India, W.P.(C) No. 23 of 2013.
 Common Cause v Union of India, W.P. (C) No. 21 of 2013.
 People’s Union for Civil Liberties v Union of India, (1997) 1 SCC 301.