Online Intermediaries and Safe Harbour

In one line

A platform is not liable for what its users upload, provided it does not participate and takes the material down once it actually knows about a specific work.

In the wording a student can write in an exam: section 79(1) of the Information Technology Act, 2000 provides that notwithstanding anything contained in any law for the time being in force, but subject to sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data or communication link made available or hosted by him, and the Delhi High Court in My Space Inc. v. Super Cassettes Industries Ltd., decided on 23 December 2016, held that this safe harbour is available in a copyright case and that the knowledge required by section 51(a)(ii) of the Copyright Act, 1957 is actual knowledge of a specific infringing work.

Why the law has this at all

Because the platform did not do the act. A user uploaded the file. The platform provided a service that millions use lawfully.

Because there is no other defendant worth suing. The uploader is anonymous, judgment proof and often abroad.

And because a platform that must check everything cannot exist. A rule that made a service liable for anything a user does would require pre-screening of everything, which no service can do and which would suppress lawful material.

The two statutes

The Copyright Act, section 51(a)(ii). Copyright is infringed when a person "permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright".

Three ingredients, and a defence. Permitting a place, for profit, for an infringing communication to the public; and the defence of absence of awareness and of reasonable ground for belief.

The Information Technology Act, section 79(1). No liability for third party information, data or a communication link made available or hosted by an intermediary, notwithstanding anything in any other law, subject to sub-sections (2) and (3).

Section 79(2), the conditions. The intermediary's function must be limited to providing access to a communication system over which third party information is transmitted, temporarily stored or hosted; or it must not initiate the transmission, select the receiver, or select or modify the information; and it must observe due diligence and such other guidelines as the Central Government may prescribe.

Section 79(3), the disqualifications. The protection does not apply where the intermediary has conspired or abetted or aided or induced the unlawful act; or where, on receiving actual knowledge or on being notified by the appropriate Government or its agency that material residing in or connected to a computer resource it controls is being used to commit the unlawful act, it fails to remove or disable access expeditiously without vitiating the evidence.