Website Blocking and John Doe orders: Barking up the wrong tree? (Part II)

by Kartik Khanna. Part I is available here.

I had discussed in Part I of this post that Reliance Communication’s [‘RCOM’] initiative in blocking websites on the basis of the John Doe order has no legal basis in IP Law. RCOM has relied on Section 79 of the Information Technology Act [‘IT Act’] to claim that they are bound by the order. I will discuss the relevant provisions to see the veracity of this statement.

IT Act

Section 79 provides for exceptional cases when intermediaries will not be held liable under the IT Act, notwithstanding any other law.

An intermediary under Section 2(1)(w) of the Act includes “any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web hosting, service providers, search engines, online payment sites, online-auction sites, online market places and cyber cafes.” Websites like Megaupload are clearly included in this ambit.

Sub-section (2) of Section 79 provides that intermediaries will be absolved of liability if the information provided is third-party information. Alternatively, the intermediary should not initiate the transmission, select the receiver of, or modify the information in the transmission. Sub-section (3) in turn, provides an exception to the same, when the intermediary receives notice that the information is being used to commit an unlawful act or aids the commission of the unlawful act. In such an eventuality, the intermediary must remove the information and prevent its access.

The blocking of websites for copyright claims, on the basis of Section 79, is a misinterpretation of the IT Act. Super Cassettes Industries v. Myspace Inc. & Anr. discussed the effect of a conjoint reading of Section 79 and 81 of the Act. Section 81 reads:

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 or the Patents Act 1970

By virtue of the proviso, an intermediary cannot invoke Section 79 as a safe-harbour provision. This in turn means that the exceptions to Section 79 cannot be used against the websites to hold them liable. Therefore, Reliance’s claim of being bound by the order under the Act is clearly wrong.

Even if this interpretation is ignored, I believe that file-sharing websites will qualify under Section 79(2). Arguably, these websites are used to transmit or store information (the temporariness of storage is questionable). Undoubtedly, they do not initiate the transmission, select the receiver of, or modify the information transmitted. Therefore, the question of intermediary liability does not arise when considering this sub-section. In other words, these websites will not be liable until sub-section (3) comes into play.

An intermediary can at the most, violate Section 79 if he fails to remove the source of infringement after being served notice. In the instant case however, the website itself has been blocked and not the page hosting the content or the content itself, which is clearly the ‘source of infringement’. Clearly, a much wider step than that envisaged under the section has been taken. This observation is cemented by a perusal of the rules framed under the said section.

IT Rules

Assuming RCOM’s adherence to Section 79 to be correct, it means the Information Technology (Intermediaries guidelines) Rules, 2011 [‘IT Rules’] that have been laid down under the section must also apply. It specifies the due diligence to be carried out by each website operator. It mandates in Rule 3(2) that due notice be given to users that no content should be shared that infringes copyright. Sub-Rule (3) mandates that the website operator should not knowingly host infringing information or select the receiver of transmission, and select or modify the infringing information contained in the transmission. As was the case with Section 79 itself, the websites like Megaupload comply with these requirements and hence, there is no violation of the IT Rules.

Rule 4 provides that “the intermediary, on whose computer system the information is stored or hosted or published, upon obtaining knowledge by itself or been brought to actual knowledge by an affected person in writing or through email signed with electronic signature about any such information as mentioned in sub-rule (2) above, shall act within thirty six hours and where applicable, work with user or owner of such information to disable such information that is in contravention of sub-rule (2).”

The Rules mandate that once the intermediary is aware of infringing information, it must take down the said information. The implication of this requirement is that the intermediary can be obligated to disable access to information that is mentioned in Rule 3(2). In the case of websites such as Megaupload where a host of information is shared, it is illegal to disable access to the entire website. It is akin to blocking all of Youtube if it hosts a video that amounts to a copyright infringement. The action by RCOM ignores the fact that Megaupload hosts perfectly legal information as well.

Conclusion

Under IP Law as I have already mentioned, RCOM could be held to be secondarily liable. However, I believe that no liability can be imposed on RCOM till they are aware of infringement. Two implications flow from this. Firstly, that RCOM must be made aware of the infringement. It cannot be expected to do by screening content across the web. There must be a specific direction given to them to act on the lines of blocking content. Secondly, the act of infringement must take place. It is unlawful to start blocking websites pre-emptively before the infringement takes place to try and escape liability under IP law.

Further, Reliance’s claim of being bound under Section 79 of the IT Act by the order is misdirected. As I have shown already, Section 81 of the IT Act makes it clear that all rights under the Copyright Act will apply irrespective of what is given in the IT Act. This means that the burden of liability to be imposed on RCOM will stem from the Copyright Act. It need not rely on Section 79 to define its liability. Clearly then, RCOM has reacted without reason to block these websites. Its actions are not predicated on any legal liability, whether under IP or IT law.

I do believe that in case of websites containing scores of files, blocking the entire website for infringement of a single work would amount to restricting access to even work that is not infringing copyright. Website blocking in such cases, besides being a ridiculously disproportional response, amounts to throwing the baby out with the bathwater. Additionally, there is no compulsion for ISPs to start regulating content under the IT laws cited by RCOM. The only obligation on websites is to ensure that no infringing work continues to be hosted after notice of the same.

Instead of website blocking, one should aim for content removal by placing reliance on the Terms of Content [‘TOC’] of file-sharing websites. These usually provide for cases of copyright infringement. For instance, clause 7.4 of Megaupload’s TOC provides that the user represents that he/she is the owner of the information stored and that there is no violation of copyright law. Any violation can be a ground for termination of transmission by the user. This is similar to the practice adopted by Youtube when it displays a message that reads “This video has been removed because its content violated YouTube's Terms of Service. Sorry about that.” Such websites can be compelled to remove the infringing content by a John Doe. It cannot however, be the ground of blocking a website as doing so would amount to a violation of the IT Act and its allied rules. This flagrant misinterpretation of the law must cease. Otherwise, every release of a marquee film will see the suspension of the net citizenry’s right to store/access information on file-sharing websites.