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LEGISLATIONThe Copyright Act of 1957, as amended by the Copyright (Amendment) Act 2012 [(1) The protection provided to intermediaries under Section 79 of the Information Technology Act (see below) is not available for offences under the Copyright Act of 1957 as amended by the Copyright (Amendment) Act of 2012.  (2) The Copyright Act was amended by the Copyright Amendment Act of 2012 and contains some provisions affecting the intermediaries. Section 52(b) of the act provides that transient or incidental storage of a work made in the technical process of electronic transmission or communication to the public shall not constitute copyright infringement. Further, Section 52(c) stipulates that transient and incidental storage of a work for the purpose of providing electronic links, access or integration, where such links, access or integration has not been expressly prohibited by the right holder, shall not constitute infringement, unless the intermediary has reasonable grounds for believing that such storage is of an infringing copy. (3) However, the proviso to Section 52(1)(c) creates a notice and takedown procedure as it lays down that when a person responsible for storage (intermediary) gets a written notice from a rights holder claiming the storage to be infringement copyright, then it shall disable access for a period of 21 days; and if the right holder desires the takedown to stay beyond 21 days, then he must obtain a court order. Although, in case the rights holder fails to get a court order within twenty one days then the access can be restored. The procedure for notice and takedown is provided by Rule 75 of the Copyright Rules of 2013.] Information Technology (Intermediaries Guidelines) Rules, 2011 (to be read with Section 79 of the IT Act) [(1) Setting up due diligence provisions to be observed by intermediaries while discharging their duties, including the publications of rules and regulations, privacy policy and user agreement for access-or usage of the intermediary's computer resources.  (2) Rule 3 of the Information Technology (Intermediaries guidelines) Rules, 2011 lays down the due diligence standard that needs to be observed by the intermediary. The rules require the intermediaries publish rules and regulations, privacy policies and user agreement. These published terms and conditions or user agreement shall forbid the user from publishing any information that is grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, paedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating to or encouraging money laundering or gambling, harm minors in any way, impersonate another person, belongs to another person and to which the user does not have any right to or violates any law among other things.  (3) Rule 3(4) creates a notice and takedown regime, where the intermediary was mandated to remove any such information mentioned above within 36 hours, either when it gets to know on its own or receives actual knowledge that such information is being stored, hosted or published on its computer system. However, the requirement of taking down content within 36 hours has since been clarified by the Ministry of Communication and Information Technology to mean that the intermediary should respond or acknowledge the complaint within thirty six hours of receiving it and should initiate appropriate action.]  Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (to be read with section 69A of the IT Act) [(1) If the Government is of the view that it is necessary to block certain information 'generated, transmitted, received or stored in any computer resource' it can direct the intermediaries to block access to such content. However, such blocking can only be ordered if it meets certain criteria have to be met which are laid down in clause (1) of section 69A. The section also mandated that the reasons for the blocking must be recorded in writing. Additionally, the section carries criminal penalties and intermediaries can be punished with an imprisonment for a term which may extend to seven years and are also liable to fine if do not comply with the requests. (2) The detailed procedure for blocking access to any such information has been laid down in the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009. Under the said rules, only ministries and agencies of the Central Government or any of the State or a Union Territory can ask for blocking access to the information. No individual can directly request for blocking of access to any content. (3) All the requests received for blocking are examined by a committee consisting of the designated officer and representatives from the ministries of Law and Justice, Home Affairs and Information and Broadcasting and the Indian Computer Emergency Response Team (CERT-In) within seven days. The committee examines the request and determines whether it is covered under the grounds mentioned in Section 69A and provides recommendations. The recommendations are presented to the Secretary, Department of Technology who decides whether the information should be blocked or not. Rule 9 lays down the procedure for blocking in case of an emergency in which a decision needs to be taken without any delay.] Information Technology Act 2000, as amended by the Information Technology (Amendment) Act 2008 [This statute came into force on and provided legal recognition for electronic commerce and gave effect to a resolution of the UN General Assembly. The statute was subsequently amended in 2008 along with the definition of intermediary and the provision for safe harbour for intermediaries provided under Section 79 of the IT Act.  (1) Definition of Intermediary. An ‘Intermediary’ with respect to any particular electronic records is defined under Section 2(w) of the Information Technology Act as ‘any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-marketplaces and cyber cafes.' (2) Safe Harbour Provisions. Under Section 79 of the IT Act, intermediaries are exempted from liability in certain cases. Section 79 states that an intermediary shall not be liable:

1. 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.
2. 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.
3. 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."] (3) Data retention and intermediaries. According to Section 67C of the IT Act, intermediaries are required by law to ‘preserve and retain certain specified information for specific durations in a manner prescribed by the Central Government’. Any intermediary who intentionally or knowingly fails to retain such information shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.]

Administrative RegulationsRegulatory Entity: Committee ex Rule 7 of the IT Rules, 2009 [A committee consisting of the designated officer and representatives from the ministries of Law and Justice, Home Affairs and Information and Broadcasting and the Indian Computer Emergency Response Team (CERT-In) examines within seven days all the request received for blocking access to online information according to Section 69(A)(1) of the IT Act (see above). Section 69A of the IT act provides the government with the "power to issue directions for blocking for public access of any information through any computer resource [ . . . ] [w]here the Central Government or any of its officers specially authorised by it in this behalf is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above." (See also "Supreme Court, Shreya Singhal v. Union of India" below.)]

DECISIONS

Superior Courts

JUSTICE K.S.PUTTASWAMY(RETD) & ANR v. UNION OF INDIA & ORS. August, 24, 2017.

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. Supreme Court, Criminal, Shreya Singhal v. Union of India, No. 167/2012, March 24, 2015[online speech, freedom of expression, dangerous speech, hate speech, IT Act, Intermediaries Guidelines, constitutionality] [(1) The Supreme Court of India issued a landmark decision regarding the constitutionality of several provisions included in the Indian Information Technology Act ("IT Act"). The provisions dealt with content removal online and blocking orders. According to the Supreme Court, vague standards for blocking and removing content online are unconstitutional. Additionally, content blocking must be mandated only by a reasoned order from a judicial, administrative or governmental body and must be transparent. (2) The case was brought before the Supreme Court by two young ladies arrested by the police for posting on a social networking site critical comments about a city shutdown. Actually, one of these two young women just reinforced the original comment by "liking" it. (3) First, the Indian Supreme Court struck down provisions heavily censoring online speech through the implementation of amorphous and overbroad standards. Specifically, the Court declared Section 66A of the Information Technology Act as unconstitutional. Section 66A allowed both criminal charges against users and the removal of content by intermediaries based on allegations that the content was “grossly offensive or has menacing character”, or that false information was posted “for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will." The Court noted that Section 66A did not qualify as a reasonable restriction on freedom of expression by being vaguely worded and allowing misuse by the police. (4) Second, the Supreme Court construed Section 79 of the IT Act in such a manner that removal of content online may only occur if an adjudicatory body issues an order compelling intermediaries to remove the content. Section 79 of the IT Act provided that safe harbors from liability for online intermediaries could be suspended if the intermediary fails to take down content 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 [an] unlawful act”. The Supreme Court interpretation of Section 79 shields intermediaries from liability unless they fail to comply with an order directing them to remove the illegal content, rather than merely a private party request. (5) The judgment still maintains in place Section 69A of the IT act that provides the government with the "power to issue directions for blocking for public access of any information through any computer resource [ . . . ] [w]here the Central Government or any of its officers specially authorised by it in this behalf is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above."  (6) Finally, the court stated that transparency standards should apply to blocking orders and all website blocking orders should be made public.] [See also CIS Blog] Supreme Court, Rajeev Chandrasekhar (pending)[IT Act, Intermediaries Guidelines, Constitutionality, Freedom of Expression] [Rajeev Chandrasekhar, a member of the Rajya Sabha, the upper house of the Parliament of India has filed a petition in the Indian Supreme Court challenging Section 66A of the Information Technology Act, 2000 and Rules 3(2), 3(3), 3(4) and 3(7) of the Information Technology (Intermediaries Guidelines) Rules, 2011 as violative of Articles 14, 19 and 21 of the Indian Constitution.] Supreme Court, Common Cause (pending)[IT Act, Intermediaries Guidelines, Constitutionality, Freedom of Expression][Common Cause, a NGO along with senior Aam Aadmi Party leader and former Law Minister of Delhi Somnath Bharti has filed a writ petition in the Supreme Court of India arguing that Section 66A,  Section 69A and Section 80 of the IT Act, the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 are in violation of Article 14, 19 and 21 of the Indian Constitution. ] Supreme Court, Mouthshut.com PVT.LTD v. Union of India, 2013 (pending)[Intermediaries Guidelines, Constitutionality, Freedom of Expression] [Mouthshut, India's leading online community for consumer reviews, filed a petition before the Supreme Court for quashing the Information Technology Rules (Intermediaries Guidelines), 2011 and declaring them violative of Articles 14 (equality before the law), 19 (freedom of expression) and 21 (protection of life and personal liberty) of the Constitution of India] [See Mouthshout.com's press release here]. Supreme Court, People’s Union for Civil Liberties (pending)[IT Act, Intermediaries Guidelines, Constitutionality, Freedom of Expression] [Peoples' Union for Civil Liberties has filed a writ petition in the Supreme Court of India arguing that Section 66A of the Information Technology Act, 2000, the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 and the Information Technology (Intermediaries guidelines) Rules, 2011 are in violation of Articles 14, 19 and 21 of the Indian Constitution.]

Lower CourtsHigh Court of Gujarat, Vyas v. Gujarat, No. 191/2015, September 15, 2015[freedom of expression, dangerous speech, public order, access providers, blocking order] [(1) In response to public protests and agitations, the State of Gujarat, India blocked Internet access through mobile phones for a week pursuant to Section 144 of the Code of Criminal Procedure. (2) Petitioner Gaurav Sureshbhai  Vyas brought the present public interest litigation before the High Court of Gujarat, seeking to declare that the state lacked authority to block Internet access under Section 144 and argued that such blockage violates Articles 14, 19, and 21 of the Constitution. (3) The High Court of Gujarat held that the temporary ban on Internet through mobile phone services was permissible though the invocation of Section 144 as the state government had sufficient justification to prevent public disturbance and maintain public order. The Court further noted that a ban on Internet access may not be considered a per se violation of the right to freedom of expression if such restriction is "minimal." According to the Court, Gujarat's ban was a minimal restriction as access to Internet through broadband and Wi-Fi services was still permitted.] [See also Columbia GFE] High Court of Delhi, Vinay Rai v. Google et al, 2012[objectionable content, obscene content, dangerous speech, users' platforms, website blocking, criminal conspiracy] [Summoned executives from Google, Facebook, Twitter and other companies to remove objectionable content from their website within the prescribed time period failing to which may result into blocking of the websites in India and the executives facing trial for criminal conspiracy. The case centred on a petition filed by a journalist named Vinay Rai, who referred to obscene depictions online of Jesus Christ, the Prophet Mohammed, and various Hindu deities. Charges against the intermediaries included "promoting enmity between groups"  and "deliberate malicious acts intended to outrage."]

CONTRIBUTORSCentre for Communication Governance at National Law University, DelhiEmail: ccg at nludelhi.ac.in[website] Gaurav GuptaLLM Candidate at Stanford Law SchoolEmail: gaurav2 at stanford.edu

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