No Protection for Intermediaries under Section 79 prior to 2009

The Supreme court of India made a fine distinction between Section 79 of ITA 2000 as it existed  before the amendment on 27th October 2009 and earlier. In an appeal from Google contending that it cannot be made liable for defamation under IPC 499/500 for not removing the content even after a notice from a Court, the Supreme Court ruled that prior to the amendments, protection was available only for offences under ITA 2000 and not under other acts.

Prior to the amendments the section stood as follows:

Network Service Providers not to be liable in certain cases

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.

After the amendments the section was reworded as follows

 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 

According to the reports  the protection did not extend to offences outside ITA 2000 and hence rejected the appeal.

Naavi

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