Amended Section 79

The language of section 79 of the Information Technology Act 2000 and its interpretation in various cases ensured that the same created a huge controversy. The case of baazee.com was the singular case that was responsible for much public debate discussion and analysis of the said section. In that case, Mr Avnish Bajaj, the CEO of Bazee.com (now ebay.in) was arrested after an obscene media clip was posted by a user for sale on the website. While the Delhi High Court quashed the criminal proceedings against Mr Bajaj on procedural grounds, it held that the website hosting the video can be held liable under the Indian Penal Code 1860 and the Information Technology Act 2000 (IT Act).[1]  This judicial decision resulted in an industry wide appeal for amendment of the I-T Act such that intermediaries may be exempt from liability for user generated content posted on their web platforms. [2]

The IT Amendment Act, 2008, substituted the language of Section 79, with new language. Section 79 of the amended  IT Act,2000, as amended by the IT Amendment Act, 2008, essentially says:-

INTERMEDIARIES NOT TO BE LIABLE IN CERTAIN CASES

Despite any current law 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 hasted by him.

The provisions of sub-section (1) shall apply if 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 hasted. Secondly, the intermediary should not initiate the transmission, select the receiver of the transmission, and select or modify the information contained in the transmission.  And thirdly, the intermediary should observe due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.

The provisions of sub-section (1) shall not apply if the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act; or if 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.

[1] Aashutosh Sampat, Radhika Agarwal and Nishant Prasad, ‘Liability Of E-Commerce Companies As Intermediaries In India’ (CFO India, 8 February 2018) <https://www.cfo-india.in/article/2018/02/08/liability-e-commerce-companies-intermediaries-india> accessed 8 June 2019

[2] ibid