- Notwithstanding anything contained in any law for the time being 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—(a) 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; or (b) the intermediary does not—(i) initiate the transmission, (ii) select the receiver of the transmission, and (iii) select or modify the information contained in the transmission; (c) the intermediary observes 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—(a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or authorise in the commission of the unlawful act; (b) 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. Explanation.—For the purposes of this section, the expression “third party information” means any information dealt with by an intermediary in his capacity as an intermediary."]
The Supreme Court of India recognized in August, 24, 2017, that privacy is a fundamental right guaranteed within article 21 of India's Constitution, that protects life and personal liberty. The judgment recognized that the right of privacy may also be recognized under the other fundamental rights in the Indian Constitution (part III, chapter on fundamental rights). The Indian constitution does not explicitly states a right to privacy in any other specific article.
The constitutional foundations of the right to privacy were recognized in the judgement of a number of complaints against the Unique Identification Authority of India (UIDAI), set up in 2009 to generate and assign unique 12 digit ID number to residents, named Aadhaar. The project eventually became mandatory and collected a broad range of personal information (including biometric data) from residents, leading to a large number of questions, petitions and court decisions.
The court considered different aspects of a right to privacy, including the idea of informational privacy and the vast possibilities of profiling and surveillance created by technology and the collection of data by governments or private parties.
Note: the recognition of the fundamental right to privacy in this decision is only part of the broader case against Aadhaar, that is yet to be fully heard and decided by the Court.
For more information and a full coverage of the judgement, check the series of posts by the Center for Communication Governance of the NLU Delhi here.
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