Rajesh Vellakkat: Killing ISPs

The increasing importance of the internet in business and social life has raised many legal issues on fixing liability on the participants in this medium.One hotly debated issue is the liability of service providers for transmitting content created by others. This includes the questions of liability of the internet service provider (ISP), if the content transmitted violates the copyright of others, or infringes the trademark of others, or the content is pornographic, or if the content is objectionable under laws of defamation, morality, and of any of the penal laws.

The Information Technology Act 2000 expressly exempts ISPs from all liabilities. Section 79 of the Act prescribes, "For the removal of doubts, it is hereby declared that no person providing a 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 with out his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention."

The government identified the requirements to modify the existing Information Technology Law and a Bill to that effect was introduced in Parliament in 2006. The bill was referred to a standing committee for further study and recommendations. The amendment bill also contains a provision to amend Section 79 referred above. The proposed amendment to Section 79 reads as follows:

"(1) Notwithstanding anything contained in any other law for the time being in force but subject to the provisions of sub-section (2) and (3), an intermediary shall not be liable for any third-party information, data or communication link made available 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.

(3) The provisions of sub-section (1) shall not apply if (a) the intermediary has conspired or abetted 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.

(4) The intermediary shall observe such other guidelines as the central government may prescribe in this behalf."

By this amendment the government wishes to exonerate ISPs from the onus of proving their innocence if the ISP's activities are limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored and the intermediary does not initiate the transmission, or select the receiver of the transmission, and select or modify the information contained in the transmission.

However, newspapers report the Standing Committee has recommended a reversal and suggested that ISPs be made liable for the content that they transmit and the wrongs associated with it. The logic or reasoning behind this recommendation is not clear. If the Standing Committee recommendations in this regard are adopted, they will impose upon ISPs the contributory liability on all wrongs occuring within the internet space, even when the ISPs may be unaware of such wrongs. The recommendations are not in tune with the law prevailing in a majority of the countries and, if implemented, would be disastrous to internet business as such.

The author is Partner, White Forest Law Offices, Bangalore