S
Sahaj Vidhi
Law Optional 2023 Paper II solved

तृतीय पक्ष-सामग्री उन्हीं द्वारा होस्ट (प्रस्तुत) करने का उत्तरदायी, किसी मध्यस्थ को, किन परिस्थितियों में ठहराया जा सकता है ? सूचना प्रौद्योगिकी अधिनियम में सुसंगत विधिक उपबंधों और अन्य समकालीन विकासों (गतिविधियों) के प्रकाश में मध्यस्थों के उत्तरदायित्व की व्याख्या कीजिए । Under what circumstances, can an intermediary be held liable for third party-content hosted by them? Explain the liability of intermediaries in the light of the relevant legal provisions in IT Act and other contemporary developments.

Verified Answer

  1. Core Legal Answer & Context: Intermediaries (e.g., ISPs, social media platforms, search engines) generally enjoy 'safe harbor' protection under the Information Technology Act, 2000 (IT Act) from liability for third-party content they merely host. However, this protection is conditional. An intermediary can be held liable if: a. They fail to exercise 'due diligence' in discharging their duties. b. They fail to comply with government directions to remove or disable access to unlawful content. c. They have 'actual knowledge' of unlawful content and fail to remove or disable access to it expeditiously. d. They are actively involved in the creation, modification, or selection of the content, moving beyond a passive hosting role. e. They fail to comply with the rules and regulations prescribed by the government, such as the Intermediary Guidelines.

  2. Relevant Statutes and Sections:

  • Information Technology Act, 2000 (IT Act):
    • Section 2(1)(w): Defines 'intermediary'.
    • Section 79: Provides exemption from liability for intermediaries in certain cases, provided they observe due diligence and other conditions.
  • Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021):
    • Rule 3: Mandates due diligence requirements for all intermediaries, including publishing rules, privacy policy, and user agreements, and acting on complaints within specific timelines.
    • Rule 4: Imposes additional due diligence obligations on 'Significant Social Media Intermediaries' (SSMIs), such as appointing a Chief Compliance Officer, Nodal Contact Person, and Resident Grievance Officer.
    • Rule 7: States that if an intermediary fails to observe these rules, Section 79's safe harbor protection shall not apply, making them liable under the IT Act or other laws.
  1. Important Landmark Cases:
  • Shreya Singhal v. Union of India (2015): The Supreme Court upheld the constitutionality of Section 79 but clarified that intermediaries would be liable only upon receiving 'actual knowledge' of unlawful content, either through a court order or a government notification, and failing to act expeditiously. This judgment was pivotal in defining the scope of safe harbor.
  1. Clear Conclusion: While Section 79 of the IT Act provides a crucial safe harbor for intermediaries, this protection is not absolute. The Shreya Singhal judgment and the subsequent IT Rules, 2021, have established that intermediaries must adhere to stringent due diligence requirements and act promptly upon receiving actual knowledge of unlawful content. Failure to comply with these obligations can lead to the loss of safe harbor, making intermediaries liable for third-party content, reflecting a dynamic regulatory environment aimed at balancing free speech with online safety and accountability.