International Journal of Pure and Applied Mathematics
Volume 119 No. 17 2018, 1637-1647
ISSN: 1314-3395 (on-line version)
url: http://www.acadpubl.eu/hub/
Special Issue
http://www.acadpubl.eu/hub/
Liability of Intermediaries under IT Act with Special
Reference to Internet Service Provider
1
E. Hariharan and 2Aswathy Rajan
1
Saveetha School of Law,
Saveetha Institute of Medical and Technical Sciences,
Saveetha University, Chennai.
harielango83@gmail.com
2
Saveetha School of Law,
Saveetha Institute of Medical and Technical Sciences,
Saveetha University, Chennai.
aswathyrajan.ssl@saveetha.com
Abstract
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
marketplaces and cyber cafes(Riordan 2016).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(Kim et al. 2017).
Key Words:Intermediary, IPR, Infringement, Guidelines, IT Act, 2000.
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1. Introduction
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, 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 intermediare after, a
clarification 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.
Research Question
Whether the IT act 2000 and clause 6 of section 29 of trademark act 1999 is
liability to imposed the intermediaries is effectively with the comparison of
Section 79 of IT act and the intermediaries guideline act 2000.
2. Aim of Study
To find out the internet service provider online trademark infringement
To analysis the liability of intermediaries
To examine the cases relating to internet service provider
Hypothesis
HA:The internet service provider can effectively monitor and implement
measures for prevent cyber offences
HO:As law stands today the Internet service provider need more effective
supervision from government or law enforcement agencies
3. Review of Literature
Child's right to free flow information via internet: liability and responsibility
of the internet service provide
https://doi.org/10.1016/j.sbspro.2012.03.336
Laws that govern the dissemination of information through internet are still
struggling to control the flow of illegal information via web. This has in a way
open up a path that leads to the corruption of an innocence mind of a
child(Whitfield et al. 2017). The objectives of this study are to critically outline
the extent of a child's right to information access. This research adopts the
qualitative methodology as it provides a deeper understanding of social
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International Journal of Pure and Applied Mathematics Special Issue
phenomena on the extent of liabilities of the internet service provider(Barber et
al. 2017). The outcome of the study is to propose the amendment to the current
relevant laws in Malaysia
Indian Internet Copyright Law: With Special Reference to Author's Right in
the Digital World.
This book is purely based on the right of Indian copyright holders in the digital
world. Indian Copyright Law is not considering the digital world for copyright
protection, whereas Indian information Technology Act of 2000 contains only
one section (sec. 79) dealing with digital copyright problem. So in the light of
the above section, the book is analyzing the Digital Millennium Copyright Act
of United States and other International dimensions in this regard(Yu et al.
2016; Lieberman 2016; Reisert et al. 2014; Bollepalli et al. 2018; Su and
Carlson 2017; Vitish-Sharma et al. 2018; Escobar et al. 2016; 2009). At the
same time, the work proceeds through various landmark cases and comments of
other legislations and courts-the rights available to the authors and copyright
owners as well as the theories of liability, etc., deeply discussing in the book.
The need of an apt legal framework is the main focus of the work; otherwise,
the modern technological changes and ambiguous interpretation of the present
copyright law will lead to unsettled problems. The book also discusses the
moral right in the digital world. Intermediary liability is another important focus
of the work. In most jurisdictions, Internet Service Providers are transmitting
information to and from third parties and are hosting information for that
particular purposes, and there appears to be a growing consensus among
legislators and judges that they should not be held liable absolutely for
violations committed by others; hence, the balancing tendency of courts in
deciding this type of cases is another important aspect of the book
Internet service provider liability for subscriber copyright infringement,
enterprise liability and the first amendment boston college law school research
paper no. 2000-03
The Internet offers the fastest reproduction and distribution of information ever
known, presenting fundamental challenges to copyright law. (Tonge et al.
2017)Practically anyone with a personal computer can receive and send
information over the Internet, and so practically anyone has access to
copyrighted works and can duplicate them, adapt them, or disseminate them.
From the perspective of a copyright holder, even a single innocent use
represents a threat. This Article examines the controversial proposal that
Internet Service Providers ("ISPs") be held liable for the copyright
infringements of the subscribers. The Article takes the position that the existing
case law considering ISP liability for subscriber copyright infringement - under
theories of direct liability, vicarious liability, and contributory liability - thus far
has struck an acceptable balance between the property interests of copyright
holders and the First Amendment rights of subscribers. The Article supports this
contention with an examination of the rationales underlying the closely
analogous field of enterprise liability in tort. It then examines recent
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International Journal of Pure and Applied Mathematics Special Issue
Congressional legislation - the Digital Millennium Copyright Act ("DMCA") -
providing "safe harbors" for ISP liability. The Article concludes that the
DMCA, unless properly interpreted, threatens to upset the balance struck by the
case law by creating an incentive to unduly restrict the free speech of
subscribers
The liability of internet intermediaries and disclosure obligations in Greece
secondary liability of internet service providers pp 317-338| cite as
Blogs with defamation and insults, social networks with fake profiles and
blackmailing content, downloading of illegal copies of music and movies,
„phishing‟ frauds and „denial of service‟ attacks, cyber-bullying, child
pornography, offenses committed in cybergames: In Web 2.0 anyone can
become the producer of information. Countless „intermediaries‟ function as go-
betweens for the transmission of such data and information: Classical access
and host providers (ISPs), search engines (Google, Yahoo), social networks
(Facebook, Myspace), electronic encyclopedias (Wikipedia), websites for video
uploading (YouTube), blogs, internet games platforms (Second Life, World of
Warcraft), webpages for short messages (Twitter) etc. In what circumstances
can they be liable for the data involved? In 2000, the EU Electronic Commerce
Directive established immunity of ISPs from liability for illegal and harmful
content. Greek Constitution and subsequent interpretations of legislation have
imposed controversial disclosure obligations. This Chapter tries to identify the
role of the players in this disputed field and to address questions such as: What
are the limits for disclosure of personal data? (Tonge et al. 2017; Haller et al.
2015)Will Intermediaries become, in the future, quasi-judges controlling every
Internet activity? Are They entitled to defend not only the rights of users but,
generally, legitimacy in Cyberspace? Legislators must take into serious
consideration the attitude of these new custodians toward compliance and social
responsibility.
Internet service provider liability for copyright infringement on the internet
This Chapter tries to identify the role of the players in this disputed field and to
address questions such as: What are the limits for disclosure of personal data?
Will Intermediaries become, in the future, quasi-judges controlling every
Internet activity? Are they entitled to defend not only the rights of users but,
generally, legitimacy in Cyberspace? Legislators must take into serious
consideration the attitude of these new custodians toward compliance and social
responsibility.
4. Materials and Methods
The researcher more on relied on the secondary source of data such as books,
journals, e-sources, articles and newspaper. Due to the shortage of the time, the
researcher in which primary source of the data such as interview and field
research is not more adequacy in result of data collection and interpretation in
which parameters so described (Tonge et al. 2017; Haller et al. 2015; Rajkumar
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International Journal of Pure and Applied Mathematics Special Issue
and Nallani Chackravatula Sr...)Under this counteractive action and early
intercession structure, immense research is being directed to figure out which of
the numerous current projects are genuinely powerful.
5. Research Methodology
The present research is conclusive, descriptive and based on non- empirical
design. Qualitative data was generated to test the research hypothesis. In order
to collect data on the dimensions of the study, a research instrument was
designed. (Tonge et al. 2017; Haller et al. 2015; Rajkumar and Nallani
Chackravatula Sr...; Thornton et al. 2006)The study was conducted on
secondary source of data books, articles, journals, e-sources, theories and the
relevant provision with decided case laws. Focusing on these three areas put
forward specific research problems.
6. Sample Size Calculation Sources of Study
Only secondary sources are available. The secondary sources include books
which is available in English, E-sources. Primary source of interview can‟t be
conducted which researcher unable to refer due to shortage of time.
7. Limitation of the Study
Primary sources, compared to the secondary sources, are limited. Researcher
had to rely more on secondary sources available in books, e-sources gather
information about the study. The researcher was unable to visit and interview
the personnel like construction workers and their employers
CHAPTERIZATION -1
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. (Tonge et al. 2017; Haller et al. 2015; Rajkumar and Nallani
Chackravatula Sr...; Thornton et al. 2006; United Nations Development
Programme ...)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
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International Journal of Pure and Applied Mathematics Special Issue
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
Bazee.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.
12
1
"liability of intermediaries under information technology act, 2000." http://www.rna-cs.com/liability-
of-intermediaries-under-information-technology-act-2000/. Accessed 7 June. 2018.
2
"Internet intermediary - Wikipedia." https://en.wikipedia.org/wiki/Internet_intermediary. Accessed 6
June. 2018.
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International Journal of Pure and Applied Mathematics Special Issue
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
intermediare after, a clarification 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.
CHAPTERIZATION -2
aries who said that it is not easy to take down content or take action in 36 (thirty
six) hours.
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.
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International Journal of Pure and Applied Mathematics Special Issue
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 online 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.
8. Findings
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
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International Journal of Pure and Applied Mathematics Special Issue
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 clarification 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 reprisal 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.
9. Suggestions
Hence under amended section 79 of the IT Act, the requirement of knowledge
has now been expressly changed to receipt of actual knowledge. This has been
combined with a notice and take down duty. There is a time limit o f 36 hours to
respond to such a request. If an intermediary refuses to do so, it can be dragged
to the court as a co-accused. Under the Amendment Act the safe harbour
provisions is available only to an Internet service provider where the function of
the intermediary is limited to giving access to a communication network over
which information made available by the third party is transmitted or
temporarily stored or where the intermediary does not initiate the transmission,
does not select the receiver of the transmission and does not select or modify the
information contained in the transmission.
Section 79 of the IT (Amendment) Act 2008 thus deals with immunity of
intermediaries. It is purported to be a safe harbour provision modelled on EU
Directive 2000/31. The Safe Harbour provisions found in the IT Act are similar
to that found in the US Laws which essentially say that the intermediaries who
merely provide a forum weren't liable for what users did. The only condition
being that they respond promptly to a notice telling them about a violation. If
the website took that file off then they were in the clear.
10. Conclusion
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
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International Journal of Pure and Applied Mathematics Special Issue
constitution and provide natural justice for better functioning in the dynamic
India which is becoming promoter of freedom of speech and expression.
References
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[2] http://www.karnikaseth.com/liability-of-network-service-providers-
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mation+Technology+Amendment+Act+2008
[4] http://singhassociates.in/intello-property/2.html
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And ... on 18 November, 2016
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