The aforementioned internet services are currently being charged under three sections of the Indian penal code: “292 (sale of obscene books etc), 293 (sale of obscene objects to young person etc), 120-B (criminal conspiracy)”. As you might have noticed, none of these are laws that are designed to tackle the new challenges posed by the internet. This is slightly befuddling as India already has laws equipped for handling information technology related complaints. The Information Technology Amendment Act was passed in December 2008, and received the President’s assent in February 2009.
The IT Act has an entire section dedicated to the culpability of social networks, search engines, and web hosting providers. Section 79 states that “an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him”. Of course, this comes with its own reasonable restrictions. I have embedded below the clause pertaining to exemption of liability.
In 2011, the government issued another notification to elaborate on the ambiguous and contentious portions of the IT Act. Here’s what the “Information Technology (Intermediaries Guidelines) Rules, 2011” states:
The intermediary shall not knowingly host or publish any information or shall not initiate the transmission, select the receiver of transmission, and select or modify the information contained in the transmission as specified in sub-rule (2): provided that the following actions by an intermediary shall not amount to hosing, publishing, editing or storing of any such information as specified in
sub-rule: (2) —
(a) temporary or transient or intermediate storage of information automatically within the computer resource as an intrinsic feature of such computer resource, involving no exercise of any human editorial control, for onward transmission or communication to another computer resource;
(b) removal of access to any information, data or communication link by an intermediary after such information, data or communication link comes to the actual knowledge of a person authorised by the intermediary pursuant to any order or direction as per the provisions of the Act;
I am not a lawyer, but it does appear that the Indian IT Act offers a safe harbor to companies like Google, Facebook, and Microsoft. However, even without getting into technicalities, it’s surprising that no one mentioned the provisions of the IT Act, even though they are infinitely more relevant to the case at hand.