1. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
INTERMEDIARY LIABILITY
P.ILANANGAI
IP CONSULTANT
PATENT DEPARTMENT
2. INTRODUCTION
CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
• Recently Delhi High Court has summoned
intermediaries to remove objectionable content from
their website within the prescribed time period
failing to which may result into blocking of the
websites in India.
• Who are Intermediaries?
• Intermediaries are third party organizations that offer
intermediation services between the parties trading
amongst themselves.
3. LIABILITY OF THE INTERMEDIARIES
CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
What is the liability of the intermediaries like Google,
Facebook and Twitter under Indian law?
• Internet service providers, payment systems, search
engines, and auction sites provide the infrastructure
necessary for Internet transactions.
• Internet intermediaries are, under certain conditions, liable
for the content that their subscribers or even other
Internet-users put online.
4. NEED FOR INTERMEDIARIES LIABILITY
CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
• Every wrongful act involves a perpetrator and a victim.
Transmission of an online communication can only be made
possible by the interference of third parties namely the service
provider.
• Therefore commission of a wrong over the internet cannot
occur without intentional or unintentional involvement of
service provider who facilitates the communication take place.
• This awakened the widespread debate about internet service
providers [ISPs] liability for copyright infringement committed
by third parties and the extent of such liability.
• While the copyright holder demand the liability should be
imposed on ISPs as a right to receive compensation for the use
and reproduction of their material, the ISPs on the other hand
vehemently lobbying for limiting their liability.
5. ISP LIABILITY FOR COPYRIGHT
INFRINGEMENT
CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
• Direct infringement - doing or authorizing an act
restricted to the owner of the copyright ("restricted
act“).
• Indirect infringement - selling or dealing in
unlicensed copies or otherwise facilitating a primary
infringement.
• If an ISP is accused of illegally distributing pirated
copies of music or videos then his liability be first
determined under Section 51(a)(ii) and Section 63 of
the Copyright Act, 1957. If he is found liable then his
liability would be tested under Section 79 of the
Information Technology Act, 2000.
6. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
•
Section 79 of the IT Act exempts intermediaries from liability in
certain cases.
•
An intermediary shall not be liable for any third party
information, data, or communication link made available or
hosted by him.
•
To be able to gain exemption from liability for any violation
caused because of the information transmitted, an intermediary
must generally not:-
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
Originate a communication of an information by itself or,
Select by itself, the originator or the recipient of the communication or,
Alter or modify the content of the communication.
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
•
The intermediary observes due diligence while discharging his duties
under this Act and also observes such other guidelines as the Central
7. INFORMATION TECHNOLOGY (INTERMEDIARY
GUIDELINES) RULES, 2011
CHENNAI
•
The intermediary shall publish the rules and regulations, privacy policy
and user agreement for access or usage of the intermediary's computer
resource by any person.
•
Such rules and regulations, terms and conditions or user agreement shall
inform the users of computer resource not to host, display, upload,
modify, publish, transmit, update or share any information that- belongs
to another person and to which the user does not have any right to; is
grossly harmful, harassing, harm minors in any way; infringes any
patent, trademark, copyright or other proprietary rights; violates any law
for the time being in force; ..
•
3rd Floor, ‘Creative Enclave’,
Under the proposed amendment, intermediaries like Google would not
be held responsible for problematic content on their systems that they
did not create. Instead, intermediaries would be protected so long as they
follow appropriate lawful process after being notified of the content in
question.
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
8. CHENNAI
3rd Floor, ‘Creative Enclave’,
•
Intermediaries may be targeted in two ways:
•
The first is the notice and takedown situation, in which the
intermediary is not itself found liable for defamatory content as long
as it complies with a takedown notice under the applicable legal
framework.
•
Notice and takedown systems encourage intermediaries to remove the
content once they are put on 'notice' by private parties or law
enforcement agencies that a particular content is allegedly unlawful.
•
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
Under the Information Technology Rules 2011, Rule 4(4), the
intermediary is bound to remove the objectionable content within 36
hours from its servers if the objectionable content is brought to the
notice of the intermediary. If the intermediary fails to remove such
content, then it would be held liable under the relevant laws of India.
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
9. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
• The second way in which intermediaries may be targeted is a
situation in which intermediaries are deemed to have
knowingly published defamatory material, and are sued in their
capacity as publishers. A notice and takedown situation may
evolve into a fault-based situation if the intermediary refuses to
comply with a legitimate takedown request, although this view
is contestable.
• For example, the English Court of Appeal decided that
would be liable as a publisher of defamatory content where it
failed to comply with a takedown notice within a “reasonable
time”.
• There can be potentially three types of liability on an
intermediary which can be imposed, (1) direct; (2) vicarious;
and (3) contributory liability which might be civil or criminal
in nature.
10. CASE LAWS
CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
•
•
Religious Technology Center v Netcom On-Line Communication
Services, Inc
A case recently instituted in the Bombay High Court by Parle
Agro against Google, Facebook and Twitter, in which Parle has
alleged that the Internet companies should be liable as
intermediaries for “promoting” defamatory content, which in this
case was a viral post alleging that Parle’s popular mango drink
Frooti is contaminated.
11. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
•
Liability of ISPs in India is determined by the License for
Internet Services, according to clause 33 of this license:
•
ISPs must prevent unlawful content, messages or
communications from being carried on their network.
ISPs must ensure that content carried by them does not infringe
“international and domestic cyber laws”.
The use of ISP networks for anti-national activities would be
construed as an offence punishable under the Indian Penal Code
or other laws.
ISPs are required to comply with the IT Act provisions.
ISPs must provide necessary facilities to the Government to
counteract espionage, subversive acts, sabotage or any other
unlawful activity.
•
•
•
•
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
12. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
• In US, the law generally gives immunity to website operators where
the defamatory material was entirely provided by a third party,
unless the website is ‘responsible for the creation or development of
information provided through the Internet’.
• The European hosting defence provides that a host is generally not
liable for users' information which it is merely storing.
To benefit, the host:
must not have actual knowledge of the unlawful activity or be
aware of facts or circumstances from which the unlawful activity
is apparent; and
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
if the host obtains such knowledge or awareness, it must act
quickly to remove or disable access to it.
13. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
• In England, a website operator/ISP may also benefit from a defence
under section 1 of the Defamation Act 1996 if it proves that:
it was not the author, editor or publisher of the statement
complained of,
it took reasonable care in relation to its publication, and
it did not know, and had no reason to believe, that what it did
caused
or contributed to the publication of a defamatory
statement.
14. CONCLUSION
CHENNAI
3rd Floor, ‘Creative Enclave’,
•
The law as it exists today in India does not adequately protect
the interests of Internet intermediaries in cases where their users
post defamatory content. It is essential for the law to lay down
robust norms protecting the interests of intermediaries, because
there is a worrying amount of hostility towards social media in
India today. The best way may be to redesign the notice and
takedown regime under the IT Act.
•
Google Transparency Report: India second in seeking user data.
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
15. CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821
BANGALORE
Suite 920, Level 9,
Raheja Towers,
26-27, M G Road,
Bangalore - 560 001.
Tel: +91 - 80 - 6546 2400
COIMBATORE
BB1, Park Avenue,
# 48, Race Course Road,
Coimbatore - 641018.
Tel: +91 - 422 – 6552921
EMAIL
info@altacit.com
WEBSITE
www.altacit.com
THANK YOU
