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 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]


January 13, 2012

Related Article: Delhi HC warns Facebook, Google to face blackout or comply to Indian laws



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