Responsibilities of an Intermediary under ITA 2008
Ever since the Government of India summoned the major social
networking companies namely Google, Face Book and Yahoo and
demanded that they install a pre-publication manual monitoring
system for content filtering, there has been considerable
discussions about what is right, what is feasible, what is legal
etc about the "Due Diligence" required to be exercised by
Intermediaries under Section 79 of the ITA 2008.
The concept of "Due Diligence" is always a moving bench mark and
cannot be confined to a check list. What was due diligence
acceptable for Baazee.com in 2004 cannot be expected as
sufficient or appropriate today without reapplying our minds to
the circumstances of a given dispute. Despite this, DIT decided
to notify certain rules under Section 79 on April 11, 2011, and
go on to specify certain things as "Due Diligence".
This error of judgement on the part of DIT has complicated the
scenario and introduced uncertainties on what can be considered
as Due Diligence". DIT is aware that in most disputes the first
impression created by their notification will prevail and it is
unlikely be subjected to detailed scrutiny. Hence misleading
inferences are deliberately planted through notifications though
they may be ultra-vires the Act or illegal.
Naavi has earlier brought to the notice of the public how the
guidelines under Section 43 A was spreading an
impression that ISO 27001 audit is mandatory under the
guideline. When pointed out DIT privately agreed that they
are not mandating ISO 27001 audit but the play of words were
cleverly designed that this perception would grow.
Now a similar misunderstanding is being created around Sec 79
notification where the popular perception is that a content on
which an objection is filed by an aggrieved person has to be
mandatorily removed within 36 hours. I would like to therefore
present my view point on this subject which may be at variance
with some popular views prevailing in the country and being
promoted by the Government.
What Section 79 Says
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 hosted
by him.
(2) The provisions of sub-section (1) shall apply if-
(a)
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
(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
on that resource without vitiating the evidence in any
manner.
Explanation:- For the
purpose of this section, the expression "third party
information" means any information dealt with by an
intermediary in his capacity as an intermediary.
The legislative history behind the 2008
amendments to Section 79 suggested that there was a pressure on
the Government at that time to exempt Intermediaries like
baazee.com from liabilities arising out of the actions of those
who use the Intermediary's platform. In the recommendations of
the "Expert Committee" in 2005 therefore there was an attempt to
remove the need for "Due Diligence" from the section. The
Standing committee however refused to budge and ensured that the
concept of "Due Diligence" remained in the law.
As a result the correct interpretation of
this section is that
"An intermediary shall be liable for any
contravention of law committed by any user unless the
Intermediary can prove that it has exercised due diligence and
had not conspired or abetted or aided or induced the commission
of the unlawful act".
The provisions of Sub Section (1) which
exempts the Intermediary from liability is annulled either by
Sub section (2) or Sub section (3). Sub section 2(c) indicates
that the exemption would not apply for failure of due diligence.
Subsection 3(b) suggests that "upon receiving actual knowledge"
or "being notified by the appropriate Government agency" if the
intermediary removes the offending content without vitiating the
evidence then also the exemption from liability will stay.
By cleverly introducing two sub sections,
Government retained the "Due Diligence" liability as well as an
escape clause for the intermediaries through "Expeditious
removal".
If an intermediary decides to be over
cautious, at the slightest hint of objection he can remove any
content. Since posting of a content in a given platform is a
contractual agreement, the author cannot claim a right that it
has to be published.
If however, there is some thing as "Freedom
of Expression" and it is considered as a "Democratic Right" of
the public, an attempt to get a content removed can be
questioned under this democratic principle and as a fundamental
constitutional right.
Unlike the "Privacy Right" which is also a
fundamental right but often supported by other legislations such
as the ITA 2008 "Freedom of Expression" is not supported
by a "Freedom of Expression Act" and hence if an Intermediary
removes a content, the Citizen has no right to ask for their
restoration. However, if the Intermediary removes the content
because of a direction from a Government agency, he (being a
Citizen of India) can invoke his constitutional right to demand
restoration of data.
Intermediary therefore holds the discretion
whether he will uphold the freedom of expression or bend to the
wishes of the Government.
It is unlikely that all Intermediaries will
have the guts to stand up and oppose a Government which may turn
vindictive and use its other machineries such as Income Tax
department or Police to twist the arms of the Intermediary. For
those of us who have the memories of Emergency in India we know
that " Many will crawl when asked to bend.", Even in the recent
Lokpal agitation we have seen how the Government is bringing
undue pressures on Baba Ramdev, Kejriwal, Kiran Bedi, Prashant
Bhushan, and even Mr Anna Hazare with cases and allegations
regarding tax evasion etc.
The future of "Freedom of Expression" is
therefore in the hands of only the Courts and the outcome of the
current litigations will determine whether Internet will play a
role in protecting our democracy the way it did recently in some
West Asian Countries or remain a subservient arm of the
Government as in China or Burma.
This does not mean that there is no case for
Government to get certain content removed forcibly when it could
disturb law and order situation in the country. Obscenity and
terrorism related content as well as denigration of Gods etc
come under this category of content which may require some
regulation. However, when it comes to political cartoons or
articles criticizing the Government, it would improper to get
the content blocked because it is not to the liking of the
political masters.
We are therefore at cross roads today when we
need to redefine the way we regulate content on the Internet
without hurting the "Right to Freedom of Expression".
If however any Intermediary is committed to
protecting the freedom of expression, Naavi suggests as follows.
It may be noted that the April 11 guidelines
suggest that
"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, "
Though this guideline only indicates that the
Intermediary "shall where applicable work with the user", it is
often misinterpreted as "Shall remove the content". It is also
necessary to notice that the guideline uses the word "Knowledge"
and not "Information". To convert "information" into
"knowledge" there has to be a "Process" of evaluation and it is
essential for the Intermediary to set up such a process as part
of the "Due Diligence".
Naavi therefore suggests the following plan
of action for Intermediaries to deal with the situation:
Section 79 Dispute Resolution Mechanism
for Intermediaries as suggested by Naavi:
1. Categorize content providers as "Guests"
and "Members". "Members" are those whose e-mail ID has been
verified and are therefore amenable to contact by the
administrator/Grievance redressal officer of the Intermediary.
All others will be treated as "Guests".
2. Postings by Guests would not be supported
by the Intermediary in case any objection is received and would
be removed without demur. However postings by members would be
supported by the Intermediary and defended unless it is ordered
to be removed by a competent judicial authority. Following
further process is recommended for handling complaints against
the content posted by members.
(a) Set up an Ombudsman for dealing
with objections to be received about content
(b) When a complaint is received by a
third party under Section 79 of ITA 2008 as provided by the
notification of April 11, action is "Initiated" towards
removal of content if necessary. Such action means referring
the complaint to the Ombudsman who will send a copy of the
notice to the member and asking for his comments. If no
comments are received the ombudsman can proceed to take a
view on his own. If comments are received they would be
taken into account.
(c) If after consideration of the
complaint if the Ombudsman considers it necessary he may
(i) Order that a rejoinder is
published along with the article/objectionable content
indicating the objection
(ii) Block objectionable words or
sentences without removing the entire content
(iii) Order removal of the entire
content
(d) Ombudsman may convey his decision to
the administrator of the Intermediary and also suggest to
the complainant that he can approach a suitable Judicial
authority if he needs a stricter action.
(e) Where the order is issued by a
Government agency, the Ombudmsan may also take a call if the
order has been issued after due process.
(f) Larger intermediaries may also
suggest that if the complainant and the author have
disagreements which cannot be settled by the Ombudsman
through mediation, the complainant can go through an online
arbitration process supported by the Intermediary before a
Court can be approached as a last resort.
While the above system is designed for large
Intermediaries such as Facebook, Google, Yahoo, Rediff, Sify,
Ibibo etc, others may adopt a similar approach customized for
their level of operations.
[Comments are welcome]
Naavi
January 13, 2012
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