Section 79 normally exists in a number of legislations. Section 79 however in the context of the Information Technology Act 2000 in India refers to the clarificatory position of law on the liability of network service providers. This is a law that began with the proposition that network service providers have to be made liable for third party data or information made available by them.
Although just a solitary section, Section 79 has huge long-term ramifications. These ramifications impact the direct business activities, operations and businesses of any real entity which qualifies to be either intermediary or a network service provider.
Let us round look at the language of Section 79 of the Information Technology Act 2000 which is passed by the Indian parliament
NETWORK SERVICE PROVIDERS NOT TO BE LIABLE IN CERTAIN CASES
“79. Network service providers not to be liable in certain cases.
For the removal of doubts, it is hereby declared that no person providing any service as a network service provider shall be liable under this Act, rules or regulations made thereunder for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention.
Explanation.—For the purposes of this section, —
(a) “network service provider” means an intermediary;
(b) “third party information” means any information dealt with by a network service provider in his capacity as an intermediary;”
Section 79 of the Information Technology Act 2000 is one of the most classic examples of clever legislative drafting.
Section 79 of the Information Technology Act 2000 is drafted with a “feel really good element”. A normal vanilla reading of the said section would show that the said section is indeed a normal provision of law and that there is nothing more.
However, a detailed reading of the said provision begins to unravel the huge ramifications and the traps that are set within the language of the said section.
One of the most distinguishing features of Section 79 of the Information Technology Act 2000 is that it has , for the first time in the history of independent India, varied the principle relating to the onus of proof.
Normally speaking in criminal jurisprudence in India, a man is presumed to be innocent unless proved guilty. This principle has been upheld by courts of law across decades. However , Section 79 reverses the principle of onus of proof.
A network service provider or intermediary is presumed to be guilty till such time it proves its own innocence.
One way for the network service provider or the intermediary to prove its ignorance is to prove that it had no knowledge of any offence or contravention under the law.
Another way for the network service provider to prove its innocence is to prove that despite the exercise of due diligence,it still could not prevent the commission of any offence or contravention under the law.