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 : —
(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!