24/09/2015
NOTE ON LIABILITY OF WEBSITES AS INTERMEDIARIES UNDER INDIAN LAW
To understand the law as its stands today, the following statutory provisions and judgments need to be looked at:
1. Section 79 of Information Technology Act 2000 (hereafter referred to as “IT Act”) and the Information Technology (Intermediaries Guidelines) Rules 2011 framed thereunder
2. Section 81 of the IT Act
3. Section 52(1)(a),(b) and (c) of the Copyright Act 1957
4. Super Cassettes Industries Ltd. vs. Myspace Inc., 2011 Del HC (decision dated 29/7/2011 of Single Judge Bench) per Manmohan Singh, J.
5. Shreya Singhal vs. Union of India, 2015 SC (decision dated 24/3/2015 of Division Bench of Justices Chelameshwar and Nariman) per R.F. Nariman, J.
1. Section 79 of the IT Act creates the exemption/safe harbor from liability for intermediaries, provided the intermediaries adopt measures of due diligence. These measures of due diligence are stated in the Rules of 2011.
2. Section 81 of the IT Act however states that nothing in the IT Act shall affect any rights that are created under the Copyright Act.
As a result of the above, the question that arises is whether the safe harbor under Section 79 of the IT Act would be available to an intermediary in case of a complaint of copyright infringement.
The Delhi High Court in Myspace Inc case answered the question in the negative by stating that section 79 of IT Act will not come to the rescue of websites because of section 81 of the IT Act.
The next question that arises, therefore, is whether there is any safe harbor provision available for intermediaries/websites in the event of a complaint of copyright infringement. The answer is yes. The safe harbor provisions can be found in sections 52(1)(b) and (c) of the Copyright Act.
“Section 52. Certain acts not to be infringement of copyright.- (1) The following acts shall not constitute an infringement of copyright, namely:-
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(b) the transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public;
(c) transient or incidental storage of a work or performance for the purpose of providing electronic links, access or integration, where such links, access or integration has not been express prohibited by the right holder, unless the person responsible is aware or has reasonable grounds for believing that such storage is of an infringing copy:
Provided that if the person responsible for the storage of the copy has received a written complaint from the owner of copyright in the work, complaining that such transient or incidental storage is an infringement, such person responsible for the storage shall refrain from facilitating such access for a period of twenty-one days or till he receives an order from the competent court refraining from facilitating access and in case no such order is received before the expiry of such period of twenty-one days, he may continue to provide the facility of such access;”
Conclusion:
The Supreme Court of India (highest court of the country) has ruled in Shreya Singhal case on 24th March 2015 that websites do not need to take down content upon receiving a complaint, unless there is a court or government order asking such websites to take down the content. However, this clarification has come with respect to the 2011 Rules under Section 79 of the IT Act.
Therefore, what this means is that as far as complaints relate to copyright infringement, there are two scenarios:
Scenario 1- Section 52(1)(b)- complete exemption
Scenario 2- Section 52(1)(c)- exemption is subject to the following 3 conditions:
(i) rights holder has not expressly prohibited what intermediary did
(ii) intermediary was not aware and did not have reasonable ground to believe that such storage is of an infringing copy
(ii) the website has to take down the content for 21 days and can thereafter have the content back online if no court order is produced in these 21 days.
However, if the complaint does not relate to copyright infringement but some other violation of IT Act, then the website does not need to take down the content unless the complaint is accompanied by a court or government order.
It may be worthwhile to add here that another clarification had come on 18th March 2013 with respect to the 2011 Rules under Section 79 of IT Act that the obligation “to act on complaint within 36 hours” merely means that the website has to respond with acknowledgment of complaint within 36 hours and the website has one month to finally redress the complaint.
