In three
earlier posts I have discussed the Information Technology (intermediaryguidelines) Rules, 2011 which were notified by the Ministry of Information
Technology of the Government of India on April 11, 2011. The Rule that appears
to be giving sleepless nights to intermediaries is Rule 3, which has 11 sub-rules.
Only those sub-rules of Rule 3 which are relevant to this post are reproduced below:
3. Due
diligence to be observed by intermediary — The intermediary shall observe
following due diligence while discharging his duties, namely : —
(1) 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.
(2) 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 —
(a) belongs to
another person and to which the user does not have any right to;
(b) is grossly
harmful, harassing, blasphemous defamatory, obscene, pornographic, paedophilic,
libellous, invasive of another's privacy, hateful, or racially, ethnically
objectionable, disparaging, relating or encouraging money laundering or
gambling, or otherwise unlawful in any manner whatever;
(c) harm minors in any way;
(d) infringes
any patent, trademark, copyright or other proprietary rights;
(e) violates
any law for the time being in force;
(f) deceives or misleads the addressee about the
origin of such messages or communicates any information which is grossly
offensive or menacing in nature;
(g) impersonate
another person;
(h) contains
software viruses or any other computer code, files or programs designed to interrupt, destroy or
limit the functionality of any computer resource;
(i) threatens the unity, integrity, defence,
security or sovereignty of India, friendly relations with foreign states, or
public order or causes incitement to the commission of any cognisable offence
or prevents investigation of any offence or is insulting any other nation.
(3) The
intermediary shall not knowingly host or publish any information or shall not initiate
the transmission, select the receiver of transmission, and select or modify the information contained in the
transmission as specified in sub-rule (2):
provided that
the following actions by an intermediary shall not amount to hosting, publishing,
editing or storing of any such information as specified in sub-rule: (2) —
(a) temporary or transient or intermediate
storage of information automatically within the computer resource as an
intrinsic feature of such computer resource, involving no exercise of any human
editorial control, for onward transmission or communication to another computer
resource;
(b) removal of
access to any information, data or communication link by an intermediary after such information, data
or communication link comes to the actual knowledge of a person authorised by
the intermediary pursuant to any order
or direction as per the provisions of the Act;
(4) The intermediary, on whose computer
system the information is stored or hosted or published, upon obtaining
knowledge by itself or been brought to actual knowledge by an affected person
in writing or through email signed with electronic signature about any such
information as mentioned in sub-rule (2) above, shall act within thirty six
hours and where applicable, work with user or owner of such information to
disable such information that is in contravention of sub-rule (2).
Further the intermediary shall preserve such information and associated records
for at least ninety days for investigation purposes.
The common assumption appears to be that Sub-rule
4 requires the intermediary to take down material upon receipt of notice from
an affected person within 36 hours, without asking any questions or without
having the freedom to apply his mind. I don’t think this assumption is reflective of the true position of the law.
This is because sub-rule 4 says the
intermediary shall act within 36 hours and “where applicable, work with
user or owner of such information to disable such information that is in contravention
of sub-rule (2)”. The reference in the provision is to "information that is in contravention of sub-rule(2)", and not information that is claimed by the aggrieved person as contravening sub-rule (2). Therefore, there is no requirement to blindly take down material within 36
hours just because notice has been received from an “affected person”. The only requirement is to "act within 36 hours", which means to do something concrete to redress the grievance of the affected person.
What happens when the "affected person" claims that information sought to
be taken down attracts sub-rule 2(d), which refers to
infringement of IP rights? Here too, the caveat applies.
This means the intermediary has the right to determine if the information
sought to be taken down is indeed infringing the IP rights of the affected party.
This is also borne out from an interpretation
of Sections 79, 81 and Proviso to Section 81. Following are the said provisions:
Section 79. Exemption from liability of intermediary
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 hosted by him.
(2) The provisions of sub-section (1) shall apply if
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 hosted; 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
or 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
Section 81:
Act to have overriding effect- The provisions of this Act shall have effect
notwithstanding anything inconsistent therewith contained in any other law for
the time being in force.
Provided that nothing contained in this Act shall
restrict any person from exercising any right conferred under the Copyright
Act, 1957 (14 of 1957) or the Patents Act, 1970 (39 of 1970)
A combined reading of Sections
79, 81 and the Proviso to 81 bears out the following:
A. Section 79 prevails
over any provision
contained in any law, which includes all other provisions of the Information
Technology
Act (including Section 81 of
the Act).
B. Section 81 says
the provisions of the IT Act (including Section 79) shall prevail over any “other
law” (which means laws other than the IT Act).
C. The Proviso to
Section 81 says that the exception to the over-riding effect of the IT
Act under Section 81 are the rights available to any person under the
Copyright Act or the Patents Act. This means that neither Section 79 nor Section 81 or any other
provision of the IT Act truncates or limits the exercise of the legitimate
rights available to “any person” under the Copyright Act or the Patents Act.
D. Critically,
the reference to
“any person” in the Proviso is not just to a right owner. In fact, it includes all third parties
who are entitled to exercise fair use and fair dealing rights under the Copyright Act and Patents Act.
This includes intermediaries.
Therefore, an
intermediary has the right to decide whether or not the material sought to
taken down by an IP right owner amounts to an infringement. If the material does
not infringe any right, and has been uploaded in exercise of the
intermediary’s legitimate rights under the Copyright or Patents Act, he need
not take down the material.
Comments and
Corrections are Welcome!