CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821

B...
INTRODUCTION
CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 -...
LIABILITY OF THE INTERMEDIARIES
CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 0...
NEED FOR INTERMEDIARIES LIABILITY
CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600...
ISP LIABILITY FOR COPYRIGHT
INFRINGEMENT
CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chenna...
CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821

B...
INFORMATION TECHNOLOGY (INTERMEDIARY
GUIDELINES) RULES, 2011
CHENNAI

•

The intermediary shall publish the rules and regu...
CHENNAI
3rd Floor, ‘Creative Enclave’,

•

Intermediaries may be targeted in two ways:

•

The first is the notice and tak...
CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821

B...
CASE LAWS
CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 24...
CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821

B...
CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821

B...
CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821

B...
CONCLUSION
CHENNAI
3rd Floor, ‘Creative Enclave’,

•

The law as it exists today in India does not adequately protect
the ...
CHENNAI
3rd Floor, ‘Creative Enclave’,
148-150, Luz Church Road,
Mylapore,
Chennai - 600 004.
Tel: +91 - 44 - 2498 4821

B...
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Intermediary liability

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Intermediary liability

  1. 1. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com INTERMEDIARY LIABILITY P.ILANANGAI IP CONSULTANT PATENT DEPARTMENT
  2. 2. INTRODUCTION CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com • Recently Delhi High Court has summoned intermediaries to remove objectionable content from their website within the prescribed time period failing to which may result into blocking of the websites in India. • Who are Intermediaries? • Intermediaries are third party organizations that offer intermediation services between the parties trading amongst themselves.
  3. 3. LIABILITY OF THE INTERMEDIARIES CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com What is the liability of the intermediaries like Google, Facebook and Twitter under Indian law? • Internet service providers, payment systems, search engines, and auction sites provide the infrastructure necessary for Internet transactions. • Internet intermediaries are, under certain conditions, liable for the content that their subscribers or even other Internet-users put online.
  4. 4. NEED FOR INTERMEDIARIES LIABILITY CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com • Every wrongful act involves a perpetrator and a victim. Transmission of an online communication can only be made possible by the interference of third parties namely the service provider. • Therefore commission of a wrong over the internet cannot occur without intentional or unintentional involvement of service provider who facilitates the communication take place. • This awakened the widespread debate about internet service providers [ISPs] liability for copyright infringement committed by third parties and the extent of such liability. • While the copyright holder demand the liability should be imposed on ISPs as a right to receive compensation for the use and reproduction of their material, the ISPs on the other hand vehemently lobbying for limiting their liability.
  5. 5. ISP LIABILITY FOR COPYRIGHT INFRINGEMENT CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com • Direct infringement - doing or authorizing an act restricted to the owner of the copyright ("restricted act“). • Indirect infringement - selling or dealing in unlicensed copies or otherwise facilitating a primary infringement. • If an ISP is accused of illegally distributing pirated copies of music or videos then his liability be first determined under Section 51(a)(ii) and Section 63 of the Copyright Act, 1957. If he is found liable then his liability would be tested under Section 79 of the Information Technology Act, 2000.
  6. 6. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE • Section 79 of the IT Act exempts intermediaries from liability in certain cases. • An intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him. • To be able to gain exemption from liability for any violation caused because of the information transmitted, an intermediary must generally not:- Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 Originate a communication of an information by itself or, Select by itself, the originator or the recipient of the communication or, Alter or modify the content of the communication. EMAIL info@altacit.com WEBSITE www.altacit.com • The intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central
  7. 7. INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES) RULES, 2011 CHENNAI • The intermediary shall publish the rules and regulations, privacy policy and user agreement for access or usage of the intermediary's computer resource by any person. • Such rules and regulations, terms and conditions or user agreement shall inform the users of computer resource not to host, display, upload, modify, publish, transmit, update or share any information that- belongs to another person and to which the user does not have any right to; is grossly harmful, harassing, harm minors in any way; infringes any patent, trademark, copyright or other proprietary rights; violates any law for the time being in force; .. • 3rd Floor, ‘Creative Enclave’, Under the proposed amendment, intermediaries like Google would not be held responsible for problematic content on their systems that they did not create. Instead, intermediaries would be protected so long as they follow appropriate lawful process after being notified of the content in question. 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com
  8. 8. CHENNAI 3rd Floor, ‘Creative Enclave’, • Intermediaries may be targeted in two ways: • The first is the notice and takedown situation, in which the intermediary is not itself found liable for defamatory content as long as it complies with a takedown notice under the applicable legal framework. • Notice and takedown systems encourage intermediaries to remove the content once they are put on 'notice' by private parties or law enforcement agencies that a particular content is allegedly unlawful. • 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 Under the Information Technology Rules 2011, Rule 4(4), the intermediary is bound to remove the objectionable content within 36 hours from its servers if the objectionable content is brought to the notice of the intermediary. If the intermediary fails to remove such content, then it would be held liable under the relevant laws of India. BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com
  9. 9. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com • The second way in which intermediaries may be targeted is a situation in which intermediaries are deemed to have knowingly published defamatory material, and are sued in their capacity as publishers. A notice and takedown situation may evolve into a fault-based situation if the intermediary refuses to comply with a legitimate takedown request, although this view is contestable. • For example, the English Court of Appeal decided that would be liable as a publisher of defamatory content where it failed to comply with a takedown notice within a “reasonable time”. • There can be potentially three types of liability on an intermediary which can be imposed, (1) direct; (2) vicarious; and (3) contributory liability which might be civil or criminal in nature.
  10. 10. CASE LAWS CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com • • Religious Technology Center v Netcom On-Line Communication Services, Inc A case recently instituted in the Bombay High Court by Parle Agro against Google, Facebook and Twitter, in which Parle has alleged that the Internet companies should be liable as intermediaries for “promoting” defamatory content, which in this case was a viral post alleging that Parle’s popular mango drink Frooti is contaminated.
  11. 11. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 • Liability of ISPs in India is determined by the License for Internet Services, according to clause 33 of this license: • ISPs must prevent unlawful content, messages or communications from being carried on their network. ISPs must ensure that content carried by them does not infringe “international and domestic cyber laws”. The use of ISP networks for anti-national activities would be construed as an offence punishable under the Indian Penal Code or other laws. ISPs are required to comply with the IT Act provisions. ISPs must provide necessary facilities to the Government to counteract espionage, subversive acts, sabotage or any other unlawful activity. • • • • EMAIL info@altacit.com WEBSITE www.altacit.com
  12. 12. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 • In US, the law generally gives immunity to website operators where the defamatory material was entirely provided by a third party, unless the website is ‘responsible for the creation or development of information provided through the Internet’. • The European hosting defence provides that a host is generally not liable for users' information which it is merely storing. To benefit, the host: must not have actual knowledge of the unlawful activity or be aware of facts or circumstances from which the unlawful activity is apparent; and EMAIL info@altacit.com WEBSITE www.altacit.com if the host obtains such knowledge or awareness, it must act quickly to remove or disable access to it.
  13. 13. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com • In England, a website operator/ISP may also benefit from a defence under section 1 of the Defamation Act 1996 if it proves that: it was not the author, editor or publisher of the statement complained of, it took reasonable care in relation to its publication, and it did not know, and had no reason to believe, that what it did caused or contributed to the publication of a defamatory statement.
  14. 14. CONCLUSION CHENNAI 3rd Floor, ‘Creative Enclave’, • The law as it exists today in India does not adequately protect the interests of Internet intermediaries in cases where their users post defamatory content. It is essential for the law to lay down robust norms protecting the interests of intermediaries, because there is a worrying amount of hostility towards social media in India today. The best way may be to redesign the notice and takedown regime under the IT Act. • Google Transparency Report: India second in seeking user data. 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com
  15. 15. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com THANK YOU
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