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If Suggested Amendments to ITA-2000 are accepted..Orkut would feel better!

The Orkut's anti India community issue has attracted worldwide attention. Thanks to the  action taken by an enterprising lawyer from Aurangabad and the quick decision by the High Court bench, Orkut is now under the scrutiny of ITA-2000. Though it is an intermediary and is eligible for certain protection against any offence committed by its members, once a notice has been served, it is under obligation to take suitable steps to stop any illegal activity that may be going on on the web space under its control. It would be interesting to observe that had the amendments to ITA-2000 proposed by the "Expert Committee" last year had been accepted, Orkut could have breathed easy.

At present the liability of Orkut is covered under section 79 which states as under:

79.    For the removal of doubts, it is hereby declared that no person providing any service as a network service provider shall be liable under this Act, rules or regulations made thereunder for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention.

Explanation:- For the purposes of this section, -

 (a)             “network service provider” means an intermediary;

(b)             “third party information” means any information dealt with by a network service provider in his capacity as an intermediary;

Under this provision, even if Orkut pleads that there is no negligence on its part until the issue was brought to its notice that an act which was an offence under Indian law was being committed, it cannot escape its liability now since a Court has confirmed that there indeed is a violation of law.

There are two interesting points to be discussed here.

1. Is a Network service provider liable only in the case of offences (or Contraventions)  under ITA-2000?  eg: obscene content on its pages.

2.Does the responsibility for due diligence under Section 79 refer to only those offences (or contraventions) that come within the provisions of ITA-2000?

First of all, if there is a law of the land and an offence is committed under the law, the offender is liable as per the provisions of such law. It is not appropriate to consider  that a network service provider is liable only for offences under ITA-2000 and is immune to others. He would be liable just like any other business entity. Hence if anti national activity such as burning of the Indian flag is an offence, the person who perpetrates the offence and all those who abet in the act or otherwise facilitate the same must take up at least the vicarious liability.

Can Section 79 be then considered as indicating protection for the network service provider for offences committed by its users?

Section 79,  says that a network service provider is not liable for offences under ITA-2000 if he has observed due diligence. This could mean that he may be liable under other laws with or without due diligence.

This is not to be treated as an anomaly. since  Section 79 does not try to address offences under other statutes and is therefore silent on the liability or protection of a network service provider when the offence is not under ITA-2000.

We may therefore consider that under the present laws, Orkut was clearly liable for the offence indicated in the suit before Aurangabad High Court.

What if Amendments become a law?

Now let us look at the proposed amendments as suggested by the Expert Committee in 2005 and which are being erroneously supported by some.

The proposed new section 79 is as follows:

79. Exemption from liability of intermediary in certain cases

1.      An “Intermediary” shall not be liable under any law for the time being in force, for any third party information, data, or link made available by him, except when the intermediary has conspired or abetted in the commission of the unlawful act. 

2.      The provisions of sub-section (1) shall apply in circumstances including but not limited to where:

 a.      Intermediary’s function is limited to giving access to a communication network over which information made available by third parties is transmitted or temporarily stored; or The intermediary:

(i) does not initiate the transmission,

(ii) does not select the receiver of the transmission, and

(iii) does not select or modify the information contained in the transmission.

 3. The provisions of sub-section (1) shall not apply if, upon receiving actual knowledge of, or being notified by the Central Government or its agency that any information, data or link residing on a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails expeditiously to remove or disable access to that material on that resource.

 Explanation: For the purpose of this section:-

a.      Term ‘Intermediary’ has been defined in Chapter I, Section 2(w).

b.‘Intermediary’ shall include, but not limited to, telecom service providers, network service providers, Internet service providers, web-hosting service providers, search engines  including on-line auction sites, online-market places, and Cyber Cafes.

 c.      ‘Third Party Information’ means any information dealt with by an intermediary in his capacity as an intermediary

It is interesting to note that under the new section, the Intermediary would not be liable under "any law" "except when the intermediary has conspired or abetted in the commission of the unlawful act.". ..Clearly a pre condition that is unlikely to be met in the Orkut's case.

However, under sub section 3, the immunity would be lost after the court's notice is received, if the Court is considered either as the "Central Government" or as "an agency of the Central Government.". Since a "Court" is a body independent of a Government, it is not clear if it comes under the provisions of this section.

Perhaps a "Court" can claim its right to direct a person to stop commission of an offence and does not require any specific mention under  ITA-2000. However, it is to be noted that the proposed amendments can make it more difficult for law to catch up with portals like Orkut flouting the law of the land to make money.


(comments welcome)


October 12, 2006

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