Intermediary Guidelines.. Who is and who is not an intermediary?

The following are the comments from Naavi.org on the proposed modified rules under Section 79 of ITA 2000/8 released for public comments on 24th December 2018.

After the passage of amendments to ITA 2000 in December 2008, which was notified with effect from 27th October 2000, a notification was released under G S R 314(E) dated 11th April 2011. This notification was called ” Information Technology (Intermediate guidelines) Rules, 2011 and laid out the requirements of “Due Diligence” to be followed by “Intermediaries”.

Who is and Who is Not an “Intermediary”?

The Intermediaries are defined under Section 2(w)  as follows:

“Intermediary” with respect to any particular electronic records, means 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 market places and cyber cafes.

The intermediaries includes the many IT giants such as the Google, Facebook, WhatsApp etc.

Though some of the E Commerce websites may also be treated as “Intermediaries” and Banks have also tried to wear this hat some times to claim exemption of liabilities for cyber crimes, it must be noted that the definition applies to those organizations who process third party information without “initiating the transmission”, “Selecting the receiver of the information” or “Select or modify the information contained in the transmission” . (Refer section 79(2)).

In other words, most of the intermediaries who today interfere with the messages passing through them by trying to use the content for their own benefit including for advertising purposes lose the status of an “Intermediary”. They become users of the information passing through them and would fall under “Due Diligence” or “Reasonable Security Practices” as required under Section 43A of the ITA 2000/8. (This aspect needs to be kept in mind when Section 43A is removed with the introduction of PDPA 2018)

It is not a Section for Exemption..But for defining Due Diligence

While Section 79 has often been interpreted as a section which provides “Exemptions to Intermediaries” from liabilities, it must be remembered that it actually extends all the liabilities under ITA 2000/8 that may be attributed to a computer/human resource owned by an organization to the organization itself and also triggers the liabilities under Section 85, if the conditions under Section 79(3) are not fulfilled.

According to Section 79(1), an intermediary shall not be liable for any third party information, data, or communication link  hosted by him only if  the provisions of sub-sections (2) and (3), are fulfilled”.

Sub section (2) clarifies who is an intermediary and Sub section (3) talks of conspiracy, abetment and assistance including inducement and threats and the action to be taken on receipt of knowledge.

Before we start discussing the Guidelines issued by the Ministry now, it is essential for all of us to be familiar with Section 79  since the rules are to be interpreted within the provisions of the Act/Section and cannot be ultra vires the Act itself. If the “Rules” try to change the “Act”, it has to be held invalid.

Possibility of Mistakes by the Court

In the course of the discussion of the new rules, some members of the media have referred to the Shreya Singhal judgement which resulted in the scrapping of Section 66A which remains a symbol of the inability of the honourable Supreme Court to appreciate the need of certain parts of the law.

This has been extensively debated earlier and we would not like to digress here except to highlight that Supreme Court is amenable to be misguided by Vocal PIL Advocates into decisions which are short sighted and it has to guard itself against such attempts in every case where a political motivation is evident.

It is often observed that lawyers who are supposed to be “Servants of the Court” and assist the Judges in arriving at a truth through a judgement, often resort to complete falsehoods in trying to justify their client’s interest bordering on committing a “Fraud on the Court”.  The Court cannot therefore drop its vigilance and go entirely by the averments of the advocates.

The silence of the defense advocates which lead to some recent wrong decisions was also evident in the withdrawal of some tender notifications by UIDAI on media monitoring which were wrongly projected in the Court as a possible violation of Privacy and the Court appeared to concur with it.

While Courts are required to adjudicate on genuine differences of views on legal issues they often are called upon to adjudicate on differing political views. If the Court is not fully conscious of this possibility, there could be slip ups which come to haunt them later and adversely affect the reputation of the judiciary either for their in efficiency or for bias.

The recent Aadhaar judgement which inter-alia killed the e-Sign system of authentication, which many of the experts who support the judgement never realized, is another example of how the Court may be driven into an incorrect decision with a blinkered vision particularly when the matter can be linked to a “Constitutional Right”.

Now a days, every politician including the enemies of the State have become conscious of their rights under the constitution and drag Supreme Court to sit in judgement of every administrative order issued by the Government. This is a gross misuse of the resources of the Supreme Court.

Though the current CJI has been conscious of the fact that the precious time of the Court is being wasted in politically motivated cases, we need to still witness the courage of the Court to put its foot down on frivolous and politically motivated litigation which are brought up only to gain media attention and score a political point.

The PIL filed by advocate Mr M.L. Sharma on the MHA notification on Section 69 will be a test case on whether the current Supreme Court does exhibit its resolve to focus on the more important matters of the Citizens or devote most of its energies to satisfy the political debates in the garb of upholding the constitutional rights of citizens. (This requires a separate debate which we shall do shortly).

It is one of the strategies of the opposition to engage the Court in such a manner that more important cases gets relegated hopefully until the Government changes. Citizens are watching if the Supreme Court is conscious of this clever manipulations.

We hope there would not be one more PIL on the proposed Section 79 rules and all those who have a view will try to place their comments with the Ministry rather than going straight to the Court.

While we donot expect everybody to accept the views presented here, I suppose these views would be considered before they come to their own conclusions.

So…let us proceed further on the proposed changes in the intermediary responsibilities…

…. To Be Continued

Naavi

Previous Articles:

New Intermediary Guidelines… Legitimate and Well within the rights of the Government: 
Proactive technology tools to identify violation..new intermediary rules: 
New Intermediary Guidelines.. Intermediaries need to have Indian Subsidiaries..: 
Intermediary Guidelines.. Who is and who is not an intermediary?: 
Draft Intermediary Guidelines 2018… Public Comments invited:
Copy of the guidelines: