Hello All!

Welcome to our podcast session of Techbreaks where you enjoy your sip of tea and we bring the tech content across the globe just for you.

Since the previous conversation had been so enlightening for our audience, we’re back with more interesting questions to our guest, Mr. Abhishek MR, advocate at Karnataka High Court, Bengaluru and also a founding partner at Lawsmith & Co. He also carries the experience of working with Holla Associates.

Who is an intermediary as per the IT Act? What are their obligations?

Intermediaries are entities that provide services enabling the delivery of online content to the end user. Let us look at the players involved in this chain:

Section 2 (w) of the Information Technology Act,2000 (IT Act, 2000) :
Defines Intermediaries as - “intermediary”, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record.

Intermediaries and liability for user generated content:
The best illustration for the liability of intermediaries is the Baazee case in which Avnish Bajaj, the CEO of Baazee.com, an auction portal, was arrested for an obscene MMS clip that was put up for sale on the site by a user. The Baazee case showed the legal risks that corporates in the online business space could be exposed to.

The Baazee.com case resulted in an appeal by the industry to amend the Information Technology Act, 2000 by providing protection to intermediaries from liabilities arising out of user-generated content. The Information Technology (Amendment) Act, 2008 amended Section 79 of the It Act, 2000 to provide for a safe – harbour protection to intermediaries.

The safe harbour protection available to intermediaries is conditional upon their observing “due diligence” while discharging their duties and observing guidelines issued by the Government in this regard. These guidelines have now been issued in the form of the Information Technology (Intermediary Guidelines) Rules, 2021

How do the intermediary rules operate?

● The new intermediary rules mandate the intermediaries to impose a set of rules and regulations on users.

● Any person aggrieved by any content on the internet can ask the intermediaries to take down such content. Intermediaries are obliged to remove access to such content within a period of 36 hours from the time of receipt of the complaint.

● The intermediaries that do not comply with take-down notice loses the protection from any legal liability that could arise over user content.

● The Rules mandate that intermediaries have to co-operate with government agencies and provide information to them for the purpose of verification of identity, or for prevention, detection, investigation, prosecution etc when a request has been made by the agency in writing.

What are the chilling effects of IT Act?

● The rules empower the Government agencies to obtain information of users from intermediaries. This power granted to the Government agencies do not have any system of checks and balances to safeguard the interests of users. The rules also mandate the intermediaries to inform the users that their services can be terminated if they violate the terms of service. This provision could have far serious consequences than the three strikes legislation that has been introduced in countries like France, South Korea and Taiwan.

● The Intermediary rules, in short, affect the right to freedom of speech and expression of the users.