Liabilities of Intermediaries In Information Technology Act

Today, Internet has brought about new vistas to social advancement and stimulated the globalization to an extended horizon. There is no denying to the fact that internet emerged as a revolutionary evolution of human civilization. The participants who are constituents of the end result of providing internet facility to the people are called intermediaries. Almost all of us are well acquainted with the online entities like google search engine, social networking websites like facebook, and messaging Apps like Gmail, Instagram and WhatsApp etc. and online e commerce platform like OLX, Amazon etc are all cover under one single terminology in Information Technology
Act, that is “Intermediary”. The term intermediary also include telecom service provider like Airtel, Jio etc under its coverage. Thus, Information technology Act,2000 inundate wide range of service provider to this term “intermediary”. The literal definition of the term intermediary is “one which operate as a link between two parties”. And if we try to define the term in context of cyber space, then it would be “intermediaries are entities that provide services enabling the delivery of online content to the end user.” Following are the major category that fall in the purview of term “intermediary” as per legislation:

a) Internet service provider (ISP): ISPs are the intermediaries that connect the people with internet/online server. Example AIRTEL, JIO, MTNL etc.
b) Search Engine: These are the websites that provide the user a platform to search specific information on the internet and then connect user through link to the website who can provide the searched information. Eg. Google, bing etc.
c) DNS providers: These service providers translate the domain names like (www.google.com) to addresses (eg 634:94:009:01 ) that is understood by computer.
d) Web hosts: These are service providers who accommodate space on internet server to place their files/data on their own websites they themselves created. Eg. Godaddy.
e) Social Networking websites: These are the online website wherein we create our profile i.e. online Identity and create network through making friends and thereby share post and comments and chat with the other peoples on the social sites. Eg. Facebook, Instagram,
f) E-commerce websites: These are those websites that operate as a link between buyer and seller/retailers. Eg. Flipkart, OLX, Amazon etc.
g) Cyber cafes: Though, it sounds odd but it does fall under intermediaries. This intermediary is not an internet website but it renders service of facilitating people to access internet.
h) Telecom service provider (TSP) : It supply network infrastructure like optic fiber cables cables and spectrum bandwidth over which internet data is transmitted.

Often, a positive social advancement, simultaneously, comes with its own negative effects. Similarly, the evolution of cyber world also comes with several negative effects and legislator legislated legislation Information technology Act,2000, in India, as a measure to cope with those negative effects of internet. The major participant who play vital role in viable functioning of cyber space are intermediaries, thereby legislator drafted provisions extensively involving intermediaries. The legal definition of intermediary as provided in section 2(w) of information technology act, 2000, after due amendment of 2008, says, “intermediary”, with respect to any particular electronic records, means 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, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online- auction sites, online-market places and cyber cafes.”

Liabilities of an Intermediary:

Intermediaries are the major player of cyber space and play vital role in smooth functioning of internet services. As intermediaries are capable to extensively regulate the activities done on the internet, their aiding towards the same is extremely important to ensure the inviolability of social proprieties. Thus, the government specifically issued the guidelines to intermediary through an enactment, namingly, Information technology (intermediaries, guideline) rules, 2011. Intermediary liability can be refer to the extent of liability that an intermediary may stands to incur due to their indulgence into those activities on internet platform which is non-permissible under the law in force for the time being. The predominant consensus has been that it would be unequitable to hold intermediaries strictly accountable for unlawful user generated content. It was predominant consensus to shift from vicariously liability approach to safe-harbour conception.

Due Diligence Required to Adhere by Intermediaries:

In order to avail immunity under section 79 of the IT act, all the intermediaries are required to observe the following due diligence given in Rule 3, of the IT (intermediaries, guidelines) rules 2011,which provides that all the intermediaries shall publish the rules and regulation, privacy policy and user agreement for access of services render by the concerned intermediaries. And must also intimate their users regarding termination of agreement to access or hail the service provided by intermediaries upon non-compliance of rules and regulation. Rule 3, clause 2 contains the broad list of content which user is bound not to publish or post on the internet networking using concerned intermediaries computer resource are;

a) Any information which belongs to another person and the user have no right on it,
b) something which 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) something which might harm minor in any way;
d) something which
infringes any patent, any trademark, copyright or other proprietary rights;
e) something which violates the law for the time being in force;
f) something which deceive 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) software virus or computer which will destroy, interrupt, or limit the function of any computer;
i) threatens the unity, integrity, security and sovereignty of India.

Rule 3 sub-clause 4 provides that the intermediary either upon noticing itself or upon being bought to knowledge by other affected party, through written application or email, that their computer resource is hosting or publishing something which is non permissible under law. The intermediary is liable to remove such content within 36 hours of such acknowledgment; however, it must hold that material in possession for ninty days. Intermediary is bound to
adhere to and observe the reasonable security measures as provided under IT(reasonable security practice and procedure and sensitive information) Rules, 2011 . These also prevent intermediaries from tempering with normal working of their computer resource to the extent which may breach any law in force, except such modification or alteration in computer system done for protection of computer resource and information. Intermediaries are bound to show the grievance officer on their website and due procedure which any affected party may make their complaint. The grievance officer is bound to redress the complaint within one month.

Cyber café:

As per Rules given in IT(guideline for cyber café) rules, 2011, every cyber café need to get itself register with registering agencies notified by appropriate government. It is duty of cyber café owner to observe the due diligence as notified in the Rules issued by the government. It must ensure that access to such sites as child pornography or other obscene information must be prohibited and ensure their computer is not being utilized for illegal activities. Café is bound to record the identity of every user who used their computer resources. The cubical, if made, must not be taller four and half feet and their facing must be outwards towards open area if not partitioned.

Intermediaries will always play vital role in providing cyber platform to their users. It is almost next to impossible to amend a permanent law, that too in information technology. This sector in contrast to others is nascent but holds very promising future. Every advancement in technology will demand improved regulation to regulate those social advancements and avoid social menace. Initially, IT act 2000 was introduced to regulate the E commerce but then it was amended to regulate and curb the crimes committed using advance technologies. Recent amendment is brought to curb the spread of sensitive information unlawfully or illegally rampant spread of false information leading chaos in the society. Law grows with the society.

Article By- Priyatam Bhardwaj

Editing By- Jasleen Kaur