Previously, SpicyIP readers have come across a discussion surrounding the liability of Internet Service Providers in the light of the provisions of the Information Technology Amendment Act, 2008. Following the notification of said Act (here), a Guest Post (here) had been put by Aditya Gupta, final year student of National University of Law, Jodhpur, and a follow-up post by Professor Shamnad Basheer (here). All these posts sought to discuss the different dimensions of intermediary liability under the Information Technology (IT) Act. In response to these posts, SpicyIP now brings to its readers another Guest Post, penned by Kaushik Krishnan, a final year student of the National University of Juridical Sciences.
For this post, Kaushik has mainly taken into considerations Sections 79 and 81 of the IT Act and the safe harbour provisions regarding ISP liability.
Section 79, which deals with intermediary liability, was amended by the IT (Amendment) Act, 2008.
Section 79 - Exemption from liability of intermediary in certain cases
(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of 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. (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 hosted; 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;
(c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.
(3) The provisions of sub-section (1) shall not apply if-
(a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise 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.
Explanation.-For the purposes of this section, the expression "third party information" means any information dealt with by an intermediary in his capacity as an intermediary.
I find it useful to break down the operative portions of this provision:
· notwithstanding any other law in force.
· an intermediary shall not be liable for any third party information hosted by him.
· if he:
o only provides access
o and does not:
§ initiate the transmission,
§ select the receiver of the transmission, and
§ select or modify the information contained in the transmission
o and exercised due diligence.
· But, he will be liable if he:
o aided or abetted in the commission of the unlawful act, or
o failed to expeditiously remove or disable access to the material upon receiving knowledge or notice by the Government.
So broadly, despite what any other law may say, an intermediary will not be liable for any third party information he hosts as long as he could not have reasonably known about its existence, and was the uploading outside his sphere of control.
This interpretation seems reasonable enough. However, the problem is complicated because of another provision in the Act.
Section 81 - Act to have overriding effect
The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.
Provided that nothing contained in this Act shall restrict any person from exercising any right conferred under the Copyright Act, 1957 (14 of 1957) or the Patents Act, 1970."
This section therefore says that the provisions of the IT Act will override any conflicting provisions in other Acts. The 2008 Amendment added a proviso to section 81 that limits its application to the Copyright and Trademark Acts. It says that ``nothing contained in this Act shall restrict any person from exercising any right conferred under the Copyright Act, 1957 or the Patents Act, 1970''.
Copyright and Intermediary Liability
Clearly, the proviso to section 81 means that a copyright holder continues to exercise his rights despite what anything in the IT Act, which includes section 79, may say. That is, despite there being a provision that gives intermediaries immunity from legal action arising due to third party content, a copyright holder will still have the right to take action against an intermediary for copyright infringement.
Many commentors pointed out that even if the Copyright Act applied, intermediaries can still defend the uploads by showing that they had no knowledge that the content was infringing. That may be the case, but it is not clear, and is a matter of interpretation. Personally, I feel that the threshold in section 79 (due diligence) is much lower than the knowledge requirement under the Copyright Act. That is, Google may well be aware that there are copyright violations on the blogs it hosts. It may even specifically know that portions of a particular book in which copyright still exists are unlawfully reproduced on some of its blogs, because the book is new and popular. That may prove knowledge, but should Google be held liable for knowingly allowing the book's infringement?
But that is irrelevant. The point is regardless of whether there exists a defense in copyright law, intermediaries should still be given immunity from such cases. Section 81 prohibits us from reading that immunity into section 79.
Why Have a
Provision Safe Harbour
To understand why the proviso in section 81 defeats the purpose of section 79, it would serve us well to consider why safe harbour provisions are needed.
Let's take the case of Blogger. Assume that I create a blog on Blogger and put up some content that is copyrighted. For Blogger to prevent any copyright infringement, it has to track every blog for any infringing content. Let's step back and see what that means. Technocrati reported that it was tracking 112,800,000 (112.8 million) blogs in 2008. That number is only likely to have gone up. To be (very) safe, let's assume that only 10% of those blogs are hosted by Blogger.
That means that Blogger would have to track 11 million blogs every second. Now, let's consider how many copyrighted works there are. I searched for a figure, and haven't been able to find one, but we can safely assume that every book published in the
Can Blogger, or any other content hoster, be reasonably asked to have knowledge of each violation of copyright?
Let's assume that there is some way for an intermediary to actually track every user and monitor each copyright violation. Such tracking would be considerably expensive, both in terms of money and resources. Is it right for the hoster of the content, who has nothing to do with its uploading, to pay the large sums needed to track all that content?
The idea of a dual use technology is that it can be used for both legitimiate and illegitimate purposes. This doctrine led to the idea that the uploading and hyperlinking of content that is copyrighted, by someone like Google, is not an infringement because of the highly transformative nature of the use (Perfect 10 v. Amazon).
The U.S. Ninth Circuit Court of Appeals held in that case, that Google made available to the public the new and highly beneficial function of "improving access to [pictorial] information on the Internet." This had the effect of recognizing that, "search engine technology provides an astoundingly valuable public benefit, which should not be jeopardized just because it might be used in a way that could affect somebody's sales."
The most important reason why intermediaries like Google and Blogger should have immunity from claims is because, even if it is possible, and cheap, do we want them to track all our content? Even more importantly, do we want these intermediaries to begin filtering our content on their own?
Imagine a world where your Internet Service Provider (BSNL or Airtel) checks if the content you are uploading infringes a copyright. Then, your content is verified by the e-mail provider or blog hosting service that you use. The filtering itself is a violation of privacy that no one would want. Doing so would take away any neutrality that intermediaries should provide to their users and content. There is no justifiable reason why an intermediary should make any prima facie discrimination based on the content that users transmit.
I can only think of very heinous crimes like hate speech or child pornography, that could possibly justify any tracking. Even in those cases, the answer is far from clear.
What Should a
Provision Do? Safe Harbour
All the points above make clear why intermediaries need safe harbour provisions due to third party content. If we agree to the reasons above, we should agree to a clear provision that gives immunity against all types of liabilities, regardles of whether they arise from copyright or not. Most importantly, this immunity should be independent of any defense that the intermediary may or may not be able to take under the body of laws that govern the type of liability.
That is, copyright law may or may not give Google a defense against claims of infringement. Despite that, there needs to be clear immunity given to Google, not out of principles of copyright law, but because of its status as an intermediary.
Section 79 tries doing that, but is hampered by section 81. This needs to be corrected. Ideally, section 79 should incorporate something along the lines of the
The Reason for the Problem
The confusion caused because of section 81 is because section 79 was only supposed to grant intermediaries immunity from criminal actions. While this is not clear in the Act, the Standing Committee Report on the Amendment Act indicates this. The Report clearly says that the Ministry's view was that the `proposed Section 79 did not absolve the network service providers from civil liabilities'.(Standing Committee Report, p. 17) This supports what Prof. Basheer said in his earlier post, that section 79 was a response to the Bazee fiasco. Its intended purpose seems only to have been to give intermediaries immunity from criminal cases. If that is the case, then Section 79 is hardly a safe harbour provision. This would also explain Section 81's proviso, since section 79 would never have give intermediaries immunity from copyright infringement in the first place.
Section 81's place should not be confused either. While there may be interpretations to suggest that its proviso does not invalidate section 79 (assuming that the latter provides any immunity), the Standing Committee's Report clearly says that the purpose of the proviso is to prevent any provisions of the IT Act from derogating provisions of either the Copyright or Patents Act. (Standing Committee Report, p. 103)
Given the legislative history behind the Amendment, I feel that section 79 does not give intermediaries immunity from claims of third party copyright infringement. In light of the Standing Committee Report, I doubt that section 79's scope is intended to extend beyond immunity from criminal liability.
That being the case, there is a clear need for the IT Act (or some other legislation) to give intermediaries immunity from any liability that may arise due to third party content. I hope that a subsequent amendment either cleans up section 79, or adds a new provision.