Law

Information and Communication TechnologyLiability of ISPs

Law

Information and Communication TechnologyLiability of ISPs

Law

Information and Communication TechnologyLiability of ISPs

Items Description of ModuleSubject Name LawPaper Name Information and Communication TechnologyModule Name/Title Liability of Internet Service Providers

Module Id XX

Objectives 1. To understand the concept of Internet Service

Providers (ISP).

2. To discuss the justification for imposing liability on

ISPs for third party information.

3. To understand the various approach in deciding the

liability of ISPs.

4. To do a comparative study of liability of ISPs under

various heads in the jurisdiction of European Union,

USA and India.

5. To understand the legal provisions relating to liability

of ISPs in India and Intermediaries Guidelines Rule,

2011.

Prerequisites Basic understanding of functioning of internet and the

role of ISPs in providing services.

Role Name AffiliationPrincipalInvestigator Prof. (Dr.) RanbirSingh Vice Chancellor,National LawUniversity, DelhiCo-PrincipalInvestigator Prof. (Dr.) G.S.Bajpai Registrar, NationalLaw UniversityDelhiPaper Coordinator Dr. Aparajita Bhatt AssistantProfessor, NationalLaw UniversityDelhiContentWriter/Author Dr. Gurujit Singh AssistantProfessor, GuruGovind Singh IndraPrastha University,New DelhiContent Reviewer Mr. Pavan Duggal Advocate,Supreme Court ofIndia

Key words Intermediaries, Internet Service Providers (ISP), onlineservice provider, Information Technology Act (IT Act),Digital Millennium Copyright Act (DMCA), EuropeanUnion Directives (EU), Caching

Module Overview:

ISPs play central role in overall functioning of internet as it provides connectivity of

internet to users. It make possible for users to access and store information by using

various services of ISPs. The sharing, accessing and storing of information on internet

raise issues of liability in case of misuse. ISPs as facilitators of various services can

manipulate, control and supervise the flow of information deliberately. Therefore, for

smooth functioning of internet their role has to be regulated effectively. States in the

absence of uniformity worldwide on the issue have legislated national rules to

regulate it within jurisdiction. The current module makes comparative analyses of

three State’s law relating to ISPs liability.

Learning outcomes:

1. To understand the role of ISPs in Cyberspace.

2. To appreciate the liability and exemption of ISPs.

1. Introduction:

‘Internet Service Providers’ (ISPs) also known as internet providers, service providers

or access providers are the public or private owned agencies responsible for providing

internet connectivity or access and related services to users or clients. They play

major role in the development of cyberspace by facilitating various activities to

perform like email services, ecommerce, social networking, online payments etc.. The

lists of utilities are gradually growing with the development of sophisticated

technologies in the form of innovative hardware to software. Various kinds of ISPs

are responsible for making t and related services available to users, such as Access

ISPs 1 , Mailbox ISPs 2 , Hosting ISPs 3 , Transit ISPs 4 and Virtual ISPs 5 . The

1 Access providers ISP make available the internet connectivity to the users through a variety oftechnologies such as broadband connections comprising of cable, fiber optic service (FiOS), DSL(Digital Subscriber Line) and satellite and dialup. It only connects to the cyber world.2 Mailbox ISPs provide email mailbox hosting services and email servers. It facilitates the sending ,receiving and storing of email.

classification is not very clear cut as there are servers which provide more than one

kind of services such as some Access providers ISPs provide hosting and mailbox

facilities also and vice versa. The connectivity speed and operation of computer to the

internet depend to a great extent on the nature of its connectivity with ISPs like dial

modem is an outdated technology and provides slow speed of connectivity in

comparison to broadband or wireless modem. Smart phones are connected to internet

through the wireless means.

2. Definition of Internet Service Provider

ISPs play centric role in the development of overall internet infrastructure. However, the term

is not defined specifically under Information Technology Act, 2000 (IT Act). Instead the Act

defines the concept of “intermediary” and lays down the guidelines to be followed while

operating as Intermediaries. Section 2(w) of the Act defines it as,

“Intermediary”, with respect to any particular records, means any personwho on behalf of another person receives, stores or transmits that record orprovides any service with respect to that record and includes telecomservice providers, network service providers, internet service providers,web hosting service providers, search engines, online payment sites, onlineauction sites, online market places and cyber cafes.

The above definition can be classified into two parts. The first part explains the nature and

functions of activity of intermediaries with regards to any records i.e., receiving, storing,

transmitting the records on behalf of another person and provides any service related to it.

The second part recognizes the eight different kinds of intermediaries differentiated on the

basis of services of the above nature or any related services provided by them. The eight

intermediaries recognize under the Act are telecom service providers 6 , network service

providers7, internet service providers8 , web hosting service providers9 , search engines10 ,

3 Hosting ISPs provides the users or agencies to provides various kind of information by hosting themin the form of web hosting. email, File Transfer Protocol (FTP), web-hosting services, virtualmachines, clouds and physical servers.4 Transit ISPs are the facilitator of large amounts of bandwidth needed to connect hosting ISPs andaccess ISPs.5 Virtual ISPs Purchase services from other ISPs to allow customers Internet access6 Telecom Service Providers are communication service provider through the telephone and similarnature of services. Currently in India Airtel is the leading telecom service provider.7 Wikipedia define Network service providers are the business organisation that sells bandwidth ornetwork access by providing direct internet access. They are also known as backbone provider. Theyare very similar to Internet Service provider. Information available athttp://en.wikipedia.org/wiki/Network_service_provider8 Internet Service Providers (ISPs) provide services to the user for accessing, storing, transmittinginformation in internet. The natures of service allowed by it are internet transmission, domain nameregistration, web hosting etc.

online payment sites11, online auction sites12, online market places13 and cyber cafes14. The IT

Act does not make any attempt to define the intermediaries. While some ISPs provides the

exclusive hardware facility for connectivity to cyberspace, other intermediaries provide

software facility which facilitates the search and transfer of information and in combination

of both of these components the internet provides diverse nature of services. The ISPs are

passive carrier of information and therefore play the neutral role in disseminating

information. Currently in India there are State owned15, privately owned16 and enterprise

wholesale17 ISP are operating as ISPs. In fact, the amendments to IT Act in 2008 allow the

appropriate government to order the service provider18 for the efficient delivery of service to

public to set, maintain and upgrade the computerized facilities.19

9 Web Hosting Service Providers are the organizations that provides space on a server owned or leasedfor a client to create their website to be accessed through world wide web.10 Search Engines are software specifically designed to search the information on World Wide Web onthe request of users. The outcomes of the request are known as search result.11 Online Payment Sites are the servers facilitating the online transfer of payments. They play the majorrole in the development of ecommerce.12 Online Auction Sites facilitate the users to participate in the online auctions in the capacity of selleror purchaser.13 Online Market Places Are The Part Of Ecommerce Where Product Related Specific InformationWith The Inventory Are Provided By The Third Party.14 Cyber Cafes facilitate multiple users to connects to the internet through multiple computers at sametime to transmit, store and access the information on economic consideration.15 BSNL, MTNL.16 Aircel, Airtel, Idea Celullar, Reliance Communications, Tata DoCoMo, Vodafone etc.17 SKYDOT COMMUNICATIONS LTD, Tata Communications, Bharti Airtel, Bharat Sanchar Nigam,Reliance Communications, Vodafone India, Sify, Railtel, Powertel, Tikona Digital Networks, TulipTelecom etc.18 Service provider so authorized may be any individual, private agency, private company, partnershipfirm , sole proprietor firm or any other agency.19Information Technology Act 2000, Section 6A.

European Union (EU) regulates the function of ISPs under the “Directive Principles Relating

to E Commerce” (Directives)20. The Directives define “Sevice Provider” as any natural or

legal person providing an information society services. 21 It defines "information society

services" as "any service normally provided for remuneration, at a distance, by means of

electronic equipment for the processing (including digital compression) and storage of data,

and at the individual request of a recipient of a service”. As per Recital 18 of the Directives,

the Information society services includes wide range of online economic activities such as

selling goods on line, service on line. It also cover non economic activities such as online

information, commercial communications or those providing tools allowing for search, access

and retrieval of data.22

In case of United States (US), the Digital Millennium Copyright Act, 1998 (DMCA) define a

“service provider” as an entity offering the transmission, routing, or providing of connections

for digital online communications, between or among points specified by a user, of material

of the user's choosing, without modification to the content of the material as sent or

20Directive of Electronic Commerce (EC) 2000/31 Certain Legal Aspects of Information SocietyServices, in Particular Electronic Commerce, in The Internal Market [2000], available at http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32000L0031&from=EN.21 Id., Article 2(b)22Id.,

Telecomservice

provider

Networkservice

provider

Internetservice

provider

Cyber cafeSearch enginee payment

E auction Web hosting Online market

received”.23 The definition along with the other relevant provisions reflects the net neutrality

of service provider as carrier of the information only. Generally, it is expected that the

Service provider during the course of transmission, routing or providing access to connection

will not modify or alter the information or source of information.

a. Role of Internet Service Provider

ISP plays a central role in the overall functioning and development of internet. It

opens a route by connecting computers through modem to a borderless territory,

where information passes through without the physical interference of human

element. With the legal recognition of records, file in electronic form or means, the

credibility and trust of the internet users has increased manifold which gets reflected

in total numbers of users worldwide and the variety of activities or services online

right from opening of an account to share files and maintaining of websites etc. The

cyberspace allows users to involve in economic activities in the form of E Commerce

like Customer to Customer (C2C), Customer to Business (C2B), Business to

Customer (B2C), Business to Business (B2B), Business to Government (B2G), and

Government to Business (G2B) models. These E Commerce activities have created

various proprietary rights in the form of intellectual property rights (copyright,

patents, design, trade secret and trade mark) of users and corporate sector. Social

media has added a new platform to form opinions and share views within social

circles. The nature, popularity and the reach of cyberspace has forced Governments

around the world to recognize it as potential medium to deliver promises directly to

its subjects without delay and interference of corrupt agencies. The transparency and

accountability factors of internet have been well appreciated by judiciary and

executive organ of government and become part of E Governance. All this would

have not possible without the ISPs who provide continuous, neutral, trustworthy

connectivity to cyberspace. Generally, it is expected that the ISPs should be remain

neutral and passive carrier while accessing, storing or transmitting information by

users.

b. Theory of Internet Service Provider Liability

The role of ISP is to make the connectivity alive in cyberspace. Generally the role of

ISP is of passive carrier, but it provide the platform to the parties to do various nature

23 Digital Millennium Copyright Act 1998, Section 512((k)(1). Available at the websitehttp://www.copyright.gov/title17/92chap5.html#512.

of activity such as transmission, storing and publishing the texts, picture, songs,

movies, literature work, defamation statement with or without the proper permission

of the parties. While such nature of activity creates legal problems for the users who

upload, download or transmit of publish the things without the permission of actual

author, it also raise the question of liability of ISP for providing platform or

technological means to perform unlawful activities causing wrongful loss or wrongful

gain to someone. Therefore, various arguments have been made time and again for

and against fixing the liabilities of ISPs for their own and third party conduct. The

justifications of the arguments are as follows;

(a) Arguments for liability

1. Difficult to identify the culprit due to anonymity of culprit, whereas ISP is located

and identified.

2. Economic resources of ISP are far strong compare to violator. Therefore in case of

mass violation it is ISP which can bear the burden.

3. ISP is in better position to supervise and control the events and therefore his

negligence or unwillingness to perform it makes it liable.

(b) Arguments against liability

1. They are only the passive carrier and mere conduits of information. Net neutrality is

the rule.

2. With development of sophisticated technology in the terms of hardware and software

(bandwidths), and growth in the participation of users, the number of the business has

increased many folds. It is impossible to scrutinize each and every websites or

transmissions for an ISP.

Irrespective of above arguments, the ISPs have been made liable at various

jurisdictions for copyright violation, defamation, content posting etc.. Understanding

their passive and neutral role in overall ICT infrastructure and the nature of activities

they perform, finding the suitable theory of liability is a contentious issue. Currently

two options are available with the legislature i.e., strict liability or fault liability.24

Under strict liability the ISP will be held responsible even if the ISP does not have the

knowledge or control over the activity on the matter. In fault liability theory, the ISP

can be only made responsible in case he intentionally violates the rule of law in

cyberspace. Intentions of ISP can be further categories as actual knowledge and

24Pablo Baistrocchi, 'Liability of Intermediary Service Providers in the EU Directive on ElectronicCommerce' [2002] Santa Clara High Technology Law Journal 111, 114.

constructive knowledge. In case of actual knowledge the ISP knows of the violation

very much so he can control it and therefore his liability arises. The constructive

knowledge the ISP should have some clue or reasonable grounds to ascertain the

violation and therefore he should act diligently to control and supervise it. In case he

does perform carefully and diligently the liability will be on him. Majority of

legislation on the ISP impose the liability on the basis of either of these theories. 25

c. Liability of Internet Service Providers

Regulation of ISPs effectively can go a long way in the development of Internet.

They earn the due importance due to their central role in functioning of internet.

Worldwide there are two different approach of regulating ISPs. The first theory of

regulation i.e., horizontal approach put more emphasis on the uniformity of

application of law and therefore decides the liability of ISPs for any act according to

one uniform provision. The European Union follows the horizontal approach of

regulating ISPs through Directives of Ecommerce. In case of non horizontal approach

as followed in US, the liabilities are decided under various legislations for separate

unlawful activities.

i. European Union

The European Union’s Directive on Ecommerce26 follows the horizontal approach of

regulating ISPs. The Directive broadly categorized the activities of ISPs as “mere

conduit”, “caching” and “hosting”. Article 12 of Directive provides an objective

exemption for ISPs engaged in “mere conduit” activities and subjective exemption are

allowed in case of activities of “caching” and “hosting”.1. Mere Conduit27

As per Article 12 of the Directive in case of transmission of communication network,

the service provider shall not be liable in case it fulfill three conditions such as,

a. It does not initiate the transmission.

b. Does not select the recipient of the information.

c. Does not modify or alter the information.28

25 EU directive principle is closer to constructive knowledge fault theory.26 Supra note 20.27Id., Article 12.28 Id.

The above conditions reflect the inherent character of ISPs i.e., neutral. While

transmission of information through ISPs it should not control any part of

information.

2. Caching29

Caching is temporary storage of used information on computers memory for

retrieving it faster at the time of requirements. ISPs also have caching services

whereby the high demand information are stored on local servers automatically,

intermediate and temporary. ISPs are exempted from the liability for caching on the

conditions as prescribed i.e.,

a. The provider does not modify the information

b. The provider complies with conditions on access to the information

c. The provider complies with rules regarding the updating of the information, specified

in a manner widely recognized and used by industry

d. The provider does not interfere with the lawful use of technology

e. On receiving the actual knowledge that the original source of information has

withdrawn or removed the information the service provider act expeditiously to

remove or disable access to the information stored.30

3. Hosting31

Hosting is like providing renting space to the individuals, organizations on the server

to advertise or propagate their ideas. This is the space where users can post any kind

of materials, upload photos, files, profiles etc. ISPs in this nature of activity as hosting

will not be held liable if it fulfill the condition lays down in Article 14 i.e.,

a. The provider does not have actual knowledge of illegal activity or information and as

regarding claims for damages, is not aware of facts or circumstances from which the

illegal activity or information is apparent; or

b. The provider, upon obtaining such knowledge or awareness, acts expeditiously to

remove or to disable access to the information.32

29 Id., Article 13.30 Id.31 Id., Article 14.32 Id.

ii. USA

USA is the hub of information technologies. It follows the non horizontal

approach in deciding the liability of ISPs.

3. Cyber defamation:

The concept of cyber tort is at its evolutionary stage and defamation and spam are

recognised torts. While defamation deals with the repudiation of one’s reputation in

the public view, the concept of spam deals with the unwanted and unwelcome posts

from identified or unidentified source creating nuisance to the enjoyment of cyber

connectivity. In both cases it might be difficult to identify or trace the source of

information; however the role of ISP is very clear on the matter as it provides a

platform or place to create tort of defamation and nuisance. Defamation starts with the

publication of the defamatory information or posting it on social media or online

newsletter, which are untrue and damaging in the eyes of right thinking person. In

case of online defamation the real issue is whom to make responsible or liable.

Defamation in cyberspace is possible with the help of two parties, one who uploads

the information or provides defamatory contents to the website and the ISP who

allows the users to access it. In the first case, some time it is difficult to identify the

source of information or the person who creates or upload the defamatory statements.

Directive ofElectronicCommerce

(EC) 2000/31

Mere Conduit(Article 12)

Caching(Article 13)

Hosting(Article 14)

The US Court in the case of Curby, Inc. v. CompuServe, Inc 33 ., held that

CompuServe, Inc. as an ISP had no editorial control over such publication. It is only

the distributor and not the publisher of information. It has no knowledge or reasons to

know of the defamatory statement made in the publication. Court realized the fact that

it is to impose an undue burden on ISP to examine every publication it carries and

court set out the liability of the ISPs.

In case of Straffon Oakmont, inc v. Prodigy Service Co.34 the court adopted the

different view and held that Prodigy service company an ISP was liable for

defamatory comment made by an unidentified party on Prodigy bulletin board. Court

further discovered in the case that the Prodigy had sufficient control over its computer

editorial bulletin board. It held that Prodigy acted like an original publisher than a

distributor.

The conflicting opinion of the Court on the above cases was resolved with the passing

of Communication Decency Act, 1996. The Act under Section 230(c )(i) immunize

the ISP from liability as “no provider or user of an interactive computer service shall

be treated as the publisher or speaker of any information provided by another

information content provider.”

4. Copyright

To deal with digital technology and its interface with copyright issue the USA has

framed Digital Millennium Copyright Act 1995 (DMCA). The Online Copyright

Infringement Liability Limitation Act (OCILLA) is part of DMCA. It creates

conditional safeguards in the form of Section 512 for intermediaries from primary and

secondary liability of copyright infringement. It exempts ISPs from transmitting,

caching, hosting or linking to infringing, material. To avail the exemption under it

two conditions are required to be fulfilled i.e.,

a. The service provider must adopt the policy of terminating services to users in

case of repeated infringements.

b. It must not interfere with standards technical measures.

33 776 F. Supp. 135.34 1995 WL 323710 (N.Y. Sup. Ct. 1995)

The section comprehensively deals with the issue of ISPs liability. Irrespective of the

nature and various kinds of ISPs the Act deals with four different kinds of activities

facilitated by the ISPs. The four different activity of ISPs mentioned in the Act are

transient storage, caching, linking and storage of information. The Act provides safe

harbor to service provider on conditions as mentioned below.

1. Transient Storage: Section 512(a) of DMCA allows the service provider to transmit,

route and provide connection service to the users. During this course of action if the

copyright infringement occurs due to intermediate and transient storage of copyright

material, then ISP is exempted if,

a) service provider has not initiated the transmission,

b) it is the result of automatic technical process without an interference of

service provider

c) no selection process from service provider

d) material is transmitted through system without any modification of content.35

2. Caching : 2nd safe harbor is in the form of section 512 (b) is related to exemption of

copyright liability of service provider for intermediate and temporary storage of

material. The section illustrates the condition as :

a) the origin of the material should not be the service provider,

b) the storage is carried out by automatic technical process without the

interference of service provider

c) no modification of material or content of information

d) the provider should comply with the data communication rules relating to

refreshing, reloading and uploading of material and does not interfere with

the technology used.

e) the provider expeditiously follow the take down notice and remove infringing

material.36

3. Storage of Information on Network at User’s Discretion: 3rd safe harbor relates to

storing of information at the request of users request or direction. The exemption is

applicable in favor of service provider if,

1) the provider does not have actual knowledge that the material is of infringing

nature and after acquiring knowledge or awareness act expeditiously to

remove or block the material for further infringement

35 Digital Millennium Copyright Act, 1998, Section 512 (a).36 Section 512(b)

2) if the service provider by providing this facility of storage has the right and

control over such activity and does not receive a financial benefits directly

attributed to such infringing activity

3) where it take steps to the take down notice and block or remove the

infringing material

4) provider appoints the public designed agent to receive notifications relating

to infringing material.37

4. Information Location Tools: The information location tools are very important for

the smooth function and interconnectivity of the complex information. The tools

which are recognised by the Act include a directory, index, reference, pointer, or

hypertext link. 4rth safe harbor is in the form of Section 512(d) relating to referring or

linking facility. The service provider is exempted in these cases if,

a) he does not have the actual knowledge of nature of material i.e, infringing

one. After acquiring knowledge remove the link or disable the material

available.

b) It does not receive financial benefit attributable to the infringing activity even

if it has the right and ability to control such link.

5. India

The Information Technology Act, 2000 (IT Act) deals with the internet related issues.

It deals comprehensively the issue of ISP liability and lays down the guidelines to be

followed during functioning as service provider.

5.1 Cyber defamation

Section 66A of IT Act deals with defamatory statement and makes it an offence

punishable with 3 years of imprisonment and fine. As per section 79 of the Act

generally ISPs are made responsible for the third party information, data, or

communication link made available or hosted by him.38 The Act further exempt ISPs

from liability on fulfillment of the conditions i.e., (a) he did not initiate the

transmission, (b) did not selected the receiver of the transmission and (c) did not

select or modify the information in the transmission. Till the time ISP acts as passive

carrier of the information and remains neutral to information circulated he is

exempted from any liability. He can be held liable if at any time he has power of the

37 Section 512(c)38 Information Technology Act, 2000, Section 79(1).

controller, supervise dissemination of information. Upon receiving the take down

notice for withdrawing the information or blocking it, the ISP is required to act

expeditiously as per the law prescribed and act within specified time of 36 hours.39

5.2 Privacy and Data protections

Due to widespread use of internet as facilitator of transmission and storing

information, the issue of privacy data protection has gained prominence. Privacy has

not been defined under the IT Act, however the Rules 40 defined the sensitive

information and private information. Under Section 43A of the IT Act imposes

penalty and compensation in case failure to protect data by a body corporate. It is the

duty of the body corporate possessing such sensitive information to maintain

reasonable security measures and procedure. In case of failure to observe it, the body

corporate is liable to pay compensation to the persons affected. During the course of

providing connectivity to users, ISPs as body corporate collect information of private

nature. With regard to it they should maintain reasonable standard of security and

procedure to deal with it. They may also liable under Section 79, if they conspired or

abet or aid or induce, by means of threats or promise or otherwise commence the

unlawful act, or after receiving knowledge of wrongdoing or notified by the

appropriate government, the ISP fails to remove or disable access to that material.

5.2.1 Copyright Protection

The peer to peer file sharing system violates the copyright of owners, if the proper

authority of the owner is not taken in this regard. The entertainment industry i.e.,

music and cinematography industry are the most affected parties. New movies, songs,

music album etc. get published and circulated among the users of net with the help of

various online website facilitating transmission and storage facilities like bit torrent,

pirate bay etc. affecting the economic rights of rightful owners. Therefore, to deal

with it now the trend followed by the parties who apprehend the copyright

infringement of their work to get an ex-parte interim injunction order in the form of

39 The Information Technology (Intermediaries Guidelines) Rules, 2011, Section 3(4).40 The Information Technology (Reasonable Security and Procedures and Sensitive Personal Data orInformation) Rules, 2011, Section 3.

“Ashok Kumars” or “John doe”41at the time of release of movie. The injunction order

restrains any websites or intermediaries from providing a platform for infringement of

copyright.

The specific legislation in the form of Indian Copyright Act, 1957 (ICA) deals with

the concept of infringement under Section 51. As per it, if any person without a

license or consent of the rightful owner of copyright work or the registrar of copyright

or in contravention to license granted under the Act (a) does anything which is the

exclusive right of the owner of the work, or (b) permits for profit any place to be used

for communication of work to the public42, then it amounts to copyright infringement.

The first point deals with the primary infringement and the second points focus on the

secondary infringement43 of copyright work. Depending on the nature of ISPs in

providing services to the users the liability under the Act will be decided. The ISPs

which only provide the access service or webhosting facility to users are of the

secondary infringement as they provide the technological means to exploit the work.

The ICA under section 51 and 52 reading together exempt ISPs from some cases of

copyright infringement under some conditions as follows:

i. If the person violating the copyright had no reasonable grounds to believe that

such communication to the public would be an infringement.44

ii. The transient or incidental storage of a work or performance purely of technical

process of transmission or communication to public;45

iii. The transient or incidental storage of a work or performance 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.46

iv. If the intermediary responsible for such storage has received a written complaint

from the owner of work, the intermediary should stop facilitating work for a

41 Ashok Kumars” or “John doe” orders are ex-parte interim injunctions and are exceptional whencompared to traditional injunctions where the defendants ‘are identified beforehand. In John doe orderplaintiff is allowed to add parties responsible for infringement of copyright even after the filing of suit.It is combined with Anton Pillar order making it possible for the seizure of any infringing material. TheIndian version of John doe order is also known as Ashok Kumars order.42 Indian Copyright Act 1957, Section 51(a)43 Id., Section 51(a)(ii) and Section 63.44 Id., Section 51(a) (ii).45 Id., Section 52(b)46 Id., Section 52(c )

period of 21 days or until he receives an order from a competent court in this

regards.47

Further Section 79 of the IT Act limits the liability of the Intermediary/ISP. As per it

an intermediary shall not be liable for third party information data or communication

link made available or hosted by the intermediary, if;

1. The function of intermediary is limited to provide access to a communication system

on which the third party is transmitting information; or

2. The intermediary does not (a) Initiate the transmission, (b) select the receiver of the

transmission, and (c) select or modify the information contained in the transmission.

3. The intermediary maintain due diligence while discharging his duties.48

The third part of section 79 illustrate the situation when an ISP may be held liable i.e.,

i. If the intermediary conspired or abet or aid or induce, by means of threats or

promise or otherwise commence the unlawful act,

ii. After receiving knowledge of wrongdoing or notified by the appropriate

government, the ISP fails to remove or disable access to that material.

In pursuance to the Section 79, the IT Act in detail framed the Rules to maintain the

level of due diligence in The Information Technology (Intermediary Guidelines)

Rules, 2011 49 . The Rule requires the ISP to maintain the due diligence while

discharging the duties of ISP as follow:

1. It prohibit the user not to host, display, upload, modify, publish, transmit any

information which (a) belongs to others; (b) grossly harmful, defamatory, obscene,

pedophilic, violate the privacy, racial, ethnical in nature; (c) harm minors; (d)

infringes or violate the Intellectual Property Rights; (d) Violates any other laws; (e)

Deceives or misleads the addresses about the origin of information; (f) imposter

others; (f) contain software virus; (g) threatens the unity and integrity of the country;

2. ISPs shall publish rules relating to their Privacy regulation.

47 Id.48 Id., Section 79(2)49 The Information Technology (Intermediary Guidelines) Rules, 2011 are framed under the powerexercised and conferred by the clause (g) of Section 87(2) coupled with Section 79(2).

3. ISPs to act within 36 hours to disable the information if they acquire the knowledge

that the information contained therein is of the above categories. Further, the

information is to be preserved as records for 90 days for investigation purpose.

4. In case of non compliance with the intermediary rule and rule according the

guidelines the ISPs can terminate the access of usage rights of the user to the

computer resource of intermediary.

5. ISP shall cooperate with the Government Agencies who are lawfully authorised for

investigation, protective, cyber security.

The Court has limited exposure to ISPs related cases. In the case of Super

Cassettes Industries ltd. v. Yahoo Inc. & Another50, the High Court ordered the

defendant restraining it or its agents, representatives from reproducing, adaptation and

distribution of music in any of their website. The defendant in this case was streaming

the songs of the T Series and making available the public on their website

<www.video.yahoo.com>. Similar orders were passed by the High Court in the case

of Super Cassettes Industries Ltd. v. You Tube & Google SCIL51. The court gave

the interim relief to Super Cassettes by restraining Indian website from streaming

audio and video content from some movie for which T Series has music rights.

Delhi High Court in the case of Super Cassettes Industries Ltd. v. MySpace Inc.

and Anr.52, decided a cross border violation of copyright by website on foreign

territory. MySpace, a Social media being based on US shared the music of Super

Cassettes on their websites. Plaintiff filed case at Delhi High Court for copyright

infringement. The Court settled the jurisdiction issue in favour of High Court after

interpreting Section 62 of Copyright Act in favour of the Delhi High Court. Applying

the Indian Copyright Act, the court decided that MySpace violated the copyright of

Super Cassettes as it allowed the work to be made available for download at

subscription fee from their websites.

6. Summary

50Shrimant Singh & Varnika Singh, 'Internet Service Provider Liability For Copyright Infringement'(http://singhassociates.in 2010) <http://singhassociates.in/Intello-Property/2.html> accessed 04.08.1451 Id.52 IA No.15781/2008 & IA No. 3085/2009 in CS (OS) No. 2682/2008, available athttp://lobis.nic.in/dhc/MAN/judgement/02-08-2011/MAN29072011IA157812008.pdf

1. ISPs plays important role in the development of Internet. They set the net of networks.

They provide users various services like accessing, transmission and storing of

information.

2. The Information Technology Act, 2000 provides a list of eight intermediaries. ISP is one

important intermediary. The Act does not define ISP and give any hint as to how it is

different from others.

3. There are various arguments for and against setting the liability of ISPs for the third party

activities. Economic viability, physical presence and sharing technology are the decisive

factors in shifting the liability towards ISPs.

4. States follow the horizontal or non horizontal approach to set liability under various

legislations. European Union follows the horizontal approach and has a comprehensive

legislation i.e., Directives of Ecommerce on the issue of ISPs liability. USA follows the

non horizontal approach and therefore the issues of liability of ISPs are dealt under

various Acts as per the specific requirement.

5. For copyright violation the Indian Copyright Act has specific provision for ISPs liability.

6. Indian Information Technology Act 2000 under section 79 deals with the exemption of

liability of ISPs on the fulfillment of specific conditions.

7. The Information Technology (Intermediary Guidelines) Rules, 2011 are framed to guide

the ISPs regarding due diligence to apply in case of their functioning.