Information Technology Act, India – Liability of service provider

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Section 79 of the Information Technology act states:

“Intermediaries not to be liable 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 hasted 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 hasted; 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.”

The above section may be considered to represent the middle ground, as far as the liability of an intermediary access provider is concerned. He would not be liable for any third party information or data or communication link made available hosted by him. This is subject to the conditions that

The function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted, temporarily stored or hosted;

The intermediary does not initiate the transmission, select the receiver of the transmission, and select or modify the information contained in the transmission;

The intermediary observes due diligence in the discharge of his duties under this Act and also conforms to the guidelines that may be issued by the Central Government.

This protection is not available to the intermediary when he actually abets an offence or fails to disable access to any unlawful material from a computer resource under his control.

In any case, Section 79 of the Information Technology Act, 2000, dealing with the liability of network service providers does not cover all aspects of the issue. For example, Section 79 will apply only to contraventions of the Information Technology Act. What is important to be proved is at the very least, the knowledge of the internet service provider of an infringement taking place his system, if direct participation in the offence is not alleged.

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