Why Times of India is Wrong
By publishing the article "Recipe for Killing Internet in India", Times of India has undertaken a special public opinion mobilization task against the provision of ITA 2000 which provides for vicarious liability for Intermediaries for third party content in certain circumstances. The content of the article consists of mis statements and in parts plain falsehood and is misleading the public. One such statement made in the article is that in other countries the Intermediaries are not liable in similar cases.
Here is one example from Danish law to state that the information contained in the said article is incorrect.(More references will follow):
Paragraph 10 of the Danish Produktansvarslov (Law on Product Liability) provides that an intermediary "is directly liable in respect of defective products vis-à-vis injured parties and subsequent intermediaries in the distribution chain".
The result of the Danish rules on the vicarious liability of intermediaries is that injured parties may bring an action directly against the intermediary (a term which is covered by "suppliers", as defined in Article 3(3) of the directive), provided that the conditions governing an action in respect of defective product liability against the manufacturer are satisfied, that is to say, in so far as the injured party can establish that damage has been incurred as the result of a defective product. The issue as to whether the intermediary has or has not acted negligently is thus irrelevant in regard to the imposition of vicarious liability. The determinant factor is that liability in respect of the defective product can be imposed on the manufacturer.
Any person on whom, as an intermediary, vicarious liability has been imposed, may, under Paragraph 11(3) of the Produktansvarslov, bring an action for indemnification against both the preceding intermediary and the manufacturer.
It is the vicarious liability imposed on the intermediary that is contrary to the directive. The reason for this is that the directive provides that strict liability for defective products may be imposed on the manufacturer — and on the manufacturer alone. It is only in the instances indicated by the directive (Article 3(3)) that liability in respect of defective products can be imposed on the intermediary on an objective basis.
It is not only in the case of obscene information posted on the website hosted by an intermediary as in the case of baazee.com that such liabilities are discussed. There are umpteen number of cases on baazee.com where consumers are cheated by the sale of spurious products, there are cases of swisscash.net type of internet frauds, there are false and defamatory profiles being hosted by Orkut.com type of sites, there are IPR violating websites, there are terrorist supported websites, job fraud sites, Matrimonial sites that steal photographs, etc. All these websites come under the definition of an "Intermediary". If there is no liability for these sites to maintain security procedures under "Due Diligence", then there will be chaos in the society...Naavi October 19, 2007
October 19, 2007
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