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Intermediary under the Information and Technology Act, 2000

  • Intermediary under the Information and Technology Act, 2000

    Date : 18-07-2018 11:02

    Intermediary under the Information and Technology Act, 2000

    Introduction:

    India is the second largest online market with over 460 million internet users. Now, a day’s Internet can be assessed very easily. We live in a society which is connected through phone and internet. These data generated through computers, internet or phone is handled by some entities. These entities are internet service providers, mobile service providers and many more. With the increase in the use of these data, the importance of service providers have also increased and these providers of services are intermediaries. Gmail, Rediffmail, and others are examples of email service providers. In terms of search engines, Google and Yahoo are intermediaries. These intermediaries provide services which enable the delivery of online content to the final/end consumer. The Information Technology, 2000 regulates internet intermediaries under the term Intermediary. The definition was inserted by IT (Amendment) Act, 2008 which has replaced the definition of the original Act and clarified its definition by including Telecom service providers, internet service providers, and web-hosting service providers. Section: 2 (1) (w) of IT Act, 2000 defines Intermediary as any person who on behalf of another person receives stores or transmits the electronic message or provides any service with respect to that message.

    Section: 79 of the Act explain the liability of intermediaries in which it exempts them from being liable for any third party information, data or communication link made by them. This protection was given on demand of the industries after the case of Avnish Baj, the CEO of Baazee.com who got arrested for an obscene MMS clip that was put by the user on the website.

    The Delhi High Court in 2011 in case of Super Cassettes Industries Ltd. v. Myspace Inc. & Anr. through its division bench held that intermediaries will be liable only when they will be having any actual or specific knowledge and not constructive knowledge of the existence of infringing content on their website. Further, it was also held that intermediaries are not obligated to continuously spot and remove such contents which are being uploaded on their websites. They only serve as a conduit between users for sharing of the information. The same was reiterated in the case of Kent RO Systems Ltd. & Anr. v. Amit Kotak & Ors. in 2017 by Delhi High Court.

    The decisions have been given in a positive step which ensures the protection of intermediaries as clarified by the judgments of Delhi High Court. They are only obligated to remove any infringing content on receipt of notification from a Government authority or order from a court. Such content has to be removed within 36 hours of receipt of such notification or order.  It was also made clear that intermediary screening the content on a daily basis is not advisable as they are ill-equipped to fulfill such obligations and further it will negatively impact their day-to-day business operations.   

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