The news report headlined “Recipe for killing Internet in India” published in Times of India on October 17th has created a small stir amongst Internet and Cyber Law observers in India. This report has been followed up by an editorial today titled “Don’t Chain The Net
and an online survey on “Holding Internet Service Providers responsible for what content flows through their network is insane.”

With these actions, Times of India has taken a strong position on the issue trying to create a public opinion against the standing committee’s reported recommendation.

To clarify the situation, public must be made aware of the following developments.

Information Technology Act 2000 (ITA-2000) was notified with effect from October 17, 2000, It contained a few sections denoting offences. It also contained a section 79, where in the “Network Service Providers” were given protection from liabilities subject to them “Not being aware of a crime being committed in their network” and their having exercised “Due diligence”.

The section is reproduced below:

79.NETWORK SERVICE PROVIDERS NOT 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;

As one can see clearly, this section was not to penalize the Internet Service Providers or Killing the Internet but to instil a sense of responsibility in the intermediaries about their service. For example, if your sister’s photograph has been placed on Orkut.com in an obscene manner, you send a notice to Orkut.com and they fail to remove the information within reasonable time, then they would be liable for the offence of “publishing obscene content in electronic form” under section 67 of the act. If the portal proves that the offence was committed without their knowledge then they can still claim exemption.

The next question that would be asked is “Whether the portal has excersised due diligence”?. “Due diligence” means, reasonable care to prevent commission of any crime. For example, the reasonable care required in this case would be “Notifying the person who has created a profile that posting of false information is punishable”, “Maintaining the correct contact details of the person who creates a profile along with the log in history of IP addresses” etc. After a “Notice of Offence” is received, the portal should again make attempts to get the conformation from the profile creator if the information posted is correct and then if no proper response is received take steps to suspend the page.(In any case, posting of obscene content is punishable whether or not impersonation is also involved)..

If the portal fails in either of the two tests, then they would become punishable.

Is this unfair?

The problem started when one of the customers of Baazee.com posted a video containing a live recording of a sexual encounter between two children (This comes under Child pornography which is a grave offence world wide) and used the facilities of the portal to sell the video clipping and make profit. The Delhi police launched a prosecution on the CEO of Baazee.com some time in end 2004. This company which is now known as ebay.in is so powerful that since that day there has been an attempt to change the law to ensure that the CEO of Baazee.com is not harmed. The disinformation campaign has also been going on since then and the innocent Prime Minister was wrongly briefed to force him to order a “Revision of ITA-2000”. Powerful business personalities such as the Chairman of of Infosys and Secretary of FICCI were made to express support for such a change of law not knowing that what baazee.com was asking for was “No Punishment Even if I am Negligent”.

Baazee.com was negligent since it did not have the basic security check of ” Legality of Goods and Services Sold in their Network”. If they had run a site search facility with appropriate key words, they would know any time when an illegal product is put on sale in their network. In the instant case, they failed to do so and hence were rightly accused by Police as negligent. It was open for the Company to argue their case in a Court of law rather than trying to change the law to suit them.

The Ministry of Information Technology (MIT) played ball with baazee.com and constituted an expert committee which mainly consisted of “Portal Owners” who all had vested interest in the case. As expected, the committee came up with some atrocious recommedations in August 2005. (Referred to as ITAA 2005 in Naavi.org. Details available here).

Naavi.org took serious objection to the proposed amendments and several meetings were held at industry fora to inform the public about the real nature of the proposed amendments.

These expert committee recommendations suggested the following modified Section 79:

79. Exemption from liability of intermediary in certain cases

1. An “Intermediary” shall not be liable under any law for the time being in force, for any third party information, data, or link made available by him, except when the intermediary has conspired or abetted in the commission of the unlawful act.

2. The provisions of sub-section (1) shall apply in circumstances including but not limited to where:

a. Intermediary’s function is limited to giving access to a communication network over which information made available by third parties is transmitted or temporarily stored; or The intermediary:

(i) does not initiate the transmission,

(ii) does not select the receiver of the transmission, and

(iii) does not select or modify the information contained in the transmission.

3. The provisions of sub-section (1) shall not apply if, upon receiving actual knowledge of, or being notified by the Central Government or its agency that any information, data or link residing on a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails expeditiously to remove or disable access to that material on that resource.

Explanation: For the purpose of this section:-

a. Term ‘Intermediary’ has been defined in Chapter I, Section 2(w).

b.‘Intermediary’ shall include, but not limited to, telecom service providers, network service providers, Internet service providers, web-hosting service providers, search engines including on-line auction sites, online-market places, and Cyber Cafes.

c. ‘Third Party Information’ means any information dealt with by an intermediary in his capacity as an intermediary.

This section suggested that the Intermediary “Shall not be liable under any law ..except when he has conspired or abetted” which went beyond ITA 2000 into other legal domains such as the IPC, Anti Dowry Act, Anti Money Laundering Act etc. On the other hand, the original section 79 restricted its effect to ITA 2000 only. Further the section shifted the onus of proof on the complainant to prove that there was Conspiracy and Abetting where as in the earlier section the onus was on the accuse to prove that he had followed due diligence.

The intention was clear. At any cost, baazee.com should be spared.

The conspiracy in passing this change was evident also in the fact that the amendments suggested included “Compounding without the consent of the complainant or the trial court”.

Though even at that time, some members of the Press were made to write highly favourable reports on the amendments, Naavi.org published a series of articles (Series 1 : Series 2).

Once the fraudulent intention of the proposed amendments were exposed, the department had to take some corrective action. But the changes were still minimal and continued to protect the Intermediaries.

The amended section 79 which was then placed before the Parliament for clearance was as follows:

Exemption from liability of intermediary in certain cases

(1) Notwithstanding anything contained in any other 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 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

(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

(3) The provisions of sub-section (1) shall not apply if-

(a) the intermediary has conspired or abetted 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.

(4) Intermediary shall observe such other guidelines as the Central Government may prescribe in this behalf.

Explanation:- For the purpose of this section, the expression “third party information” means any information dealt with by an intermediary in his capacity as an intermediary.

We can observe that though the language of the section is more polished, it is essentially the same provision which the “Expert Committee Recommended.

Naavi.org has already highlighted that if the changes are implemented, Cyber Cafes and Portals like Orkut.com will be beyond law and investigations of Cyber terrorism and Internet frauds, Cyber defamation etc will be difficult to investigate and prosecute.

Now let us come to the TOI report. It refers to the “Standing Committee’s Recommendations” which have not been placed in the public domain so far. The publication has however been given a copy and there were already a series of articles in ET hailing some of the provisions of the amendments. How did one publication alone had the privilege of a copy of the standing committee recommendations which are yet to be posted on the MIT website? Now with this article of October 17th, the Cat is out of the Bag. The vested interests behind baazee.com are trying to create a public opinion against some of the suggestions of the committee one of which may have been to revert to the earlier version of Section 79.

I would like informed members of the public to see the current version of Section 79 of ITA 2000 and the revised version and give their opinion on what is wrong if ISPs are forced to follow “Due Diligence”.?

It appears that the TOI report is a planted story and contains false statements meant to mislead the public. The proposal of the standing committee by any chance is not killing the Internet but the report is definitely killing the credibility of the press.

Naavi

October 18, 2007

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