Intermediaries and Internet Service Providers in Indian IT Law: Defining Roles and Liabilities

Understanding Intermediaries in Indian IT Law

According to Section 2(1)(w) of the Information Technology Act, 2000 (hereinafter "IT Act"), an "intermediary" refers to any person who on behalf of another person receives, stores, or transmits any particular electronic record or provides any service concerning that record. Intermediaries could range from telecom service providers, web hosting companies, search engines, online payment sites, online auction sites, online marketplaces, and cyber cafes.

Liability of Intermediaries

The liability of intermediaries is addressed under Section 79 of the IT Act. According to this section, intermediaries are generally exempted from liability for any third-party information, data, or communication link made available or hosted by them. However, this immunity is conditioned on the intermediary's role being limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted.

There are specific scenarios where this exemption does not apply, and the intermediary could be held liable:

1. The intermediary has initiated the transmission.

2. The intermediary has selected the receiver of the transmission.

3. The intermediary has selected or modified the information contained in the transmission.

Also, according to Section 79(3)(b), an intermediary, upon receiving actual knowledge or 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 an unlawful act, shall expeditiously remove or disable access to that material.

Relevant case law is Shreya Singhal vs. Union of India (2015). The Supreme Court held that an intermediary is mandated to remove or disable access to certain content only upon receiving actual knowledge from a court order or on being notified by the government.

Defining Internet Service Provider (ISP)

An Internet Service Provider (ISP) is a type of intermediary that offers services for accessing, using, or participating in the internet. ISPs may provide internet e-mail accounts to users, which allow them to communicate with one another by sending and receiving electronic messages through their ISP servers.

Nature of ISP Liability

ISPs, like other intermediaries, are governed under Section 79 of the IT Act. They are not liable for any third-party information, data, or communication link made available or hosted by them, provided they meet the conditions set out in the Act.

However, ISPs have some additional obligations in comparison to other intermediaries. Under the License Agreement for Provision of Internet Service (including Internet Telephony) in India, ISPs are required to prevent the network from being used for any activity which contravenes the Indian Telegraph Act, 1885, Indian Wireless Telegraphy Act, 1933, IT Act, 2000, or any other law of the land.

An example of an ISP's liability can be found in the case of Avnish Bajaj vs. State (NCT of Delhi) (2005), where the CEO of Baazee.com (now eBay India), an online marketplace, was arrested after a video of a minor involved in a sexual act was sold on the website. The Delhi High Court stated that intermediaries like ISPs could be held liable for cybercrime committed through their network if they have actual knowledge and fail to exercise due diligence.

Conclusion: Intermediaries and Internet Service Providers

Intermediaries and Internet Service Providers have a pivotal role in the digital ecosystem. While the IT Act offers them certain protection, they have the crucial responsibility to ensure their platforms are not used to commit unlawful acts. The liability of intermediaries and ISPs is not absolute but conditional based on the premise of their knowledge and the extent of due diligence exercised.