Liability of Intermediaries

Internet intermediaries can be held liable for wrongs and offences committed within cyberspace. The wrongs could be a copyright violation, the transmission of objectionable/illegal content, child pornography, etc.

Who are Intermediaries?

An ‘intermediary’ has been defined in Section 2(w) of the Information Technology (IT) Act, 2000 with respect to any particular electronic record as “any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, web-housing service providers, search engines, online payment sites, online auction sites, online market places, and cyber cafes”.  

Under section 79 of the IT Act, Intermediaries enjoy safe harbor protection against liability for third-party information, data, or communication link hosted by them.

However, this protection is conditional:

1) No Active participation: As per section 79(2) of the IT Act 2000, the immunity is granted to the intermediaries only if the intermediary does not:

1. Initiate the transmission
2. Select the receiver of the transmission
3. Select or modify the information under transmission

2) Due Diligence: The intermediaries enjoy protection if they observe due diligence while discharging their duties and also observe other guidelines prescribed by the Central Government on this behalf.

In the Avnish Bajaj V. State of Delhi Case, Delhi High Court had held that the ISP had failed to exercise due diligence as it failed to prevent the listing/sale of pornographic records on the website (Bazee.com). The Supreme Court quashed the proceeding against Avnish Bajaj by holding that “ The director could not have been held liable for the offences under Section 85 of the IT Act.”

3) Absence of Knowledge: Intermediaries are not liable if they do not have knowledge of the illegal contents. As soon as an Intermediary gets to know about illegal content, it becomes essential to take immediate steps to remove such content.

Limitation of the exemption: As per section 79(3), safe harbor protection will not apply if:

1. The intermediaries have abetted or conspired in the commission of the unlawful act.
2. If the intermediaries upon receiving actual information or on being notified by the appropriate government that any information, data, or communication link residing in a computer resource controlled by them is being used to commit the unlawful act, fail to remove access to that material.