Supreme Court on Section 79(3) and 69A of ITA 2008

In the din created by the striking down of Section 66A, the part of the judgement that related to Sections 79(3) and 69A have been submerged. Let’s now see what the judgement says about these two sections.

Section 79 provides that an “Intermediary” shall be liable for contraventions under the Act attributable to the use of the Intermediary’s resources such as a “platform” unless he has observed “Due Diligence”.  Under subsection (3) of Section 79, it is stated

“(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.”

Under this section, some interpreted that the intermediary upon receiving information from any source about a content being objectionable is required to remove the content. This view was also guided by the rules notified on April 11, 2011 under the Act which was actually ultra-vires the section and stated under para 4 as follows.

“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, “

This sub rule referred to sub rule (2) which spoke of terms and conditions or user agreement in which the user should have agreed to certain conduct rules. It was therefore drawing attention to the fact that the content violated one of the own rules set by the platform owner. More than being a complaint against the person posting the offending information, the rule questions the compliance of the platform owner to his own rules.

Naavi.org has always held an opinion and orchestrated it at all times that what this rule means is that the site owner needs to put in motion the “Grievance Redressal System” upon receipt of the notice within the period of 36 hours as stated. This was corroborated by the Government in its subsequent clarification issued on 18th March 2013.

Now this judgement further confirms that what the act calls as “Actual Knowledge” is about an order from a competent authority such as a Court or a designated Government agency. (para 117 of the judgement).

This part of the judgement is therefore well within the interpretations already provided by the industry observers and does not hold any surprise.

Similarly the judgement held that Section 69A is not violating the constitution because its scope is limited and there is a due process enunciated there in before any site is blocked. (para 109 of the judgement). The Court did not however go into the fact whether the procedures laid down in the rules which perhaps saved the section from being struck down like Section 66A were in fact ever used and if so whether there was any documentation was available to prove that the section was not misused.

Since the status quo has been maintained in this respect, we can leave the discussion on Section 69A here.

In summary, we can accept the verdict of the judgement as regards section 79 and section 69A but our objections on the unfairness of striking down of Section 66A continues.

Naavi

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About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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