CASES

Christian Louboutin SAS v. Nakul Bajaj & Ors. [1]

  • Under this case, Indian luxury e-commerce site Darveys.com said it was an intermediary, and claimed safe harbour protection under section 79 of the Information Technology Act, 2000 (IT Act)
  • However, the court observed that Darveys.com was more than a conduit between sellers and customers as it received payments, transported products and guaranteed their authenticity.

Avnish Bajaj v. State [2]

  • It is popularly referred to as the ‘Bazee.com case’
  • In this 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)
  • 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.

Shreya Singhal v. Union of India [3]

  • The Supreme Court in this case significantly read down the statutory provisions and held that ‘knowledge’ under Section 79(3) of the IT Act would only mean knowledge of the intermediary pursuant to an order of a court of law
  • Accordingly, the Supreme Court held that an intermediary would be liable if it does not expeditiously remove any objectionable content despite receipt of a court order directing removal of such content.

Myspace Inc. v. Super Cassettes Limited [4]

  • The single bench of the Delhi High Court, in this judgment, surprisingly took a view that that intermediaries cannot disclaim liability in relation to claims for infringing content posted by third party users on its website
  • The judgment of the single bench placed an onus on the intermediary to conduct preliminary checks on all content before such material is transmitted to the public.
  • However, in appeal, the division bench overruled the single bench decision and held that intermediaries are immune from liability against copyright infringement for third party content unless ‘actual knowledge’ on their part can be proved.
  • The courts held that Section 79 provides a ‘safe harbour’ to intermediaries.

Sanjay Kumar Kedia v. Narcotics Control Bureau [5]

  • Under this case, the counsel for the petitioner cited section 79 as a defence stating that it granted immunity from prosecution. He stated that the companies of the petitioner only provided third party data and information without any knowledge as to the commission of an offence under the Act.
  • The respondents (Narcotics Control Bureau) rebutted this by stating that the petitioner and its associates are not an intermediary as defined under section 79 of the said Act as their acts and deeds was not simply restricted to provision of third party data or information without having knowledge as to commission of offence under the NDPS Act.
  • The company (Xponse Technologies Ltd. And Xpose IT Services Pvt. Ltd headed by Sanjay Kedia) has designed, developed, hosted the pharmaceutical websites and was using these websites, huge quantity of psychotropic substances (Phentermine and Butalbital) have been distributed in USA with the help of his associates.
  • The Supreme Court quite correctly applying the law as it stands held that (a) the petitioner was not an innocent intermediary as defined under section 79 of the Technology Act according to the investigating agencies, they were the owners and were responsible for the contents therein; and (b) Section 79 will grant immunity to an accused who has violated the provisions of the Information Technology Act, 2000 and not grant an immunity under the Narcotic Drugs and Psychotropic Substances Act, 1985.

Kent RO Systems LTD & ANR v. Amit Kotak & Ors. [6]

  • Kent RO had lodged Complaint with eBay as to IPR violation of its rights by a seller on latter’s platform and wanted Ebay to verify the products before it is uploaded on its platform.
  • Court said the IT Intermediary Rules only require the intermediary to publish the Rules and Regulations and Privacy Policy and to inform the users of its computer resources not to host, display, uphold or publish any information that infringes any Intellectual Proprietary Rights.
  • Further, the IT Rules require the eBay as an intermediary to, upon any person as the plaintiffs approaching it in writing, of products infringing that person’s patent, trademark or copyright rights to within 36 hours disable the infringing information.
  • Court held that hosting of information on such portals is automatic and it is not expected of the eBay to screen each and every information except when the same is brought to its knowledge. Therefore, to require an intermediary to do such screening would be an unreasonable interference with the rights of the intermediary to carry on its business.

Google India Pvt Ltd v. Visaka Industries Limited [7]

  • In this case, Google petitioned that, being a platform provider, it was not responsible for any content hosted on its servers. The court observed that Google failed to remove the defamatory contents when the respondent brought those to the notice of Google
  • The court dismissed Google’s petition saying that Google cannot claim any exemption under section 79 of ITA-2000.

Vyakti Vikas Kendra & Ors. v. Jitender Bagga & Google [8]

  • In this case, the Delhi High Court held in this case that the defendant, Blog Publishing Service which allows and create blog is regarded as intermediary by the Delhi High Court under Section 79, Information Technology (Amendment) Act, 2008
  • It said that defendant was bound to comply with the provision of IT ACT (Intermediaries Guidelines) Rules, 2011
  • Rule 3(3) of the said Rules require an intermediary to observe due diligence.

[1] ‘Anti-counterfeiting measures in draft e-commerce policy risk slowing down online trade’ (India Business Law Journal, 15 May 2019) <https://www.vantageasia.com/e-commerce-policy-anti-counterfeiting/> accessed 9 June 2019

[2] 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

[3] ibid

[4] ibid

[5] Apar Gupta, ‘Liability of Intermediaries — Judicially Defined and Explained’ (India Law and Technology Blog, 5 December 2017) <https://iltb.net/liability-of-intermediaries-judicially-defined-and-explained-a37cde262283> accessed 9 June 2019

[6] ‘Judgements’ (Information Technology Act) <https://www.itlaw.in/judgements/> accessed 9 June 2019

[7] Anil Vaidya, ‘Doing Business in India Requires Digital Compliance’ (2013) 6 ISACA <https://www.isaca.org/Journal/archives/2013/Volume-6/Documents/Doing-Business-in-India-Requires_jrn_English_1113.pdf> accessed 9 June 2019

[8] Harshita Srivastava, ‘Blogging as Cyber Defamation’ (Young Arena Litigators, 8 July 2017) <http://youngarenalitigators.blogspot.com/2017/07/blogging-as-cyber-defamation-harshita.html?view=classic> accessed 9 June 2019