Net hosts liable only for their own content

By Kajol Singh

While internet users may face libel for what they write themselves, the "intermediaries” who host such content are liable only if they are consciously complicit to the offence or fail to remove the offending material immediately after it is brought to their notice by the authorities.

This is evident from the amended Information Technology Act, which came into effect barely 20 days ago.

Hence, when the Supreme Court rebuffed this week an internet user’s plea to quash criminal action, it steered clear of making any observations about the corresponding liability of intermediaries.

The new Indian law is in keeping with the international trend of limiting the liability of intermediaries to situations where they act as “publishers” (with scope to moderate or edit the content) rather than as “distributors” (aggregators of information like libraries and book shops).

Accordingly, the amended section 79, which was in the Bill that was passed by Parliament in December 2008, says that where the intermediary in effect acts as no more than a distributor, he “shall not be liable for any third party information, data or communication link made available or hosted by him.”

An “intermediary’’ has been defined in the amended law 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, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online auction sites, online market places and cyber cafes.”

The elaborate safeguards for intermediaries contained were drafted in the wake of the industry-wide scare spread by the 2004 DPS-MMS scandal, which led to the arrest of the CEO of auction site baazee.com where a CD containing the salacious clip was offered on sale by a user.

Conversely, section 79 says that the immunity against criminal liability shall not apply in cases where “the intermediary has conspired or abetted or aided or induced whether by threats or promise or otherwise in the commission of the unlawful act.”

There was no evidence to suggest that baazee.com had colluded with the person who put the offending CD on its site.