Network Service Providers

V.Sahiti
Introduction
• ‘Network Service Providers’ also referred as Internet 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..
Definition of Intermediary: Sec 2(1) (w)
• “Intermediary”, with respect to any particular 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.
Types of Services provided by Intermediary
• Telcom Service
• Network service
• Internet service
• E- payment
• Search Engine
• E- auction
• Web hosting
• Online Markets
Role of Internet Service Provider
• Overall functioning and development of Internet Service Provider
• 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.
• All this would have not possible without the ISPs who provide
continuous, neutral, trustworthy connectivity to cyberspace.
• ISP Acts as a facilitator
Liability of Intermediary
• Section 79 of IT Act,2000
• The Information Technology (Intermediary Guidelines)
• Rules, 2009
• The Information Technology (Intermediary Guidelines) Rules, 2011
• The Information Technology (Intermediary Guidelines and Digital
Media Ethics Code) Rules, 2021
Section 79
• An intermediary shall not be liable for third party information data or
communication link made available or hosted by the intermediary, if;
• The function of intermediary is limited to provide access to a
communication system on which the third party is transmitting
information; or
• 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.
• The intermediary Shall maintain due diligence while discharging his
duties
Section 79
• Section 79(3) illustrates 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. Upon receiving actual knowledge, or on being notified by the
appropriate government 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.
 The Information Technology (Intermediary
Guidelines) Rules, 2011
• The Rule requires the ISP to maintain the due diligence while
• discharging the duties
• 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 or Violates any other
laws;
• (e)Deceives or misleads the addresses about the origin of information;
• (f) imposter others;
• (g) contain software virus;
• (g) threatens the unity and integrity of the country;
The Information Technology (Intermediary
Guidelines) Rules, 2011
• ISPs shall publish rules relating to their Privacy regulation.
• 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
• 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.
• ISP shall cooperate with the Government Agencies who are lawfully
authorised for investigation, protective, cyber security.
 Google India Pvt. Ltd. v. MIS Visaka Industries
Ltd
• The High Court of Andhra Pradesh held that Google did not remove
the defamatory materials in spite of being notified regarding their
existence
• Therefore, Google cannot claim any exemption under section 79
• The High Court of Andhra Pradesh further opined that, in cases where
the intermediary enters into a conspiracy, the exemption under
section 79 cannot be applied.
KN. Govindacharya v. Union of India

• The Delhi High Court observed that, regarding Rule 3(4), the
intermediary shall respond to or acknowledge the complainant within
thirty-six hours, and the complaint shall be redressed promptly in no
more than thirty days.
• The Intermediary can take action both on a complaint in writing from
affected persons as well as upon obtaining the knowledge internally
Nirmaljit Singh Narula v. Indijobs at
Hubpages.com
• In this case a certain defamatory materials regarding a spiritual guru
were posted on a website; the website failed to remove the materials
despite a request to do so.
• The Delhi High Court held that the website was required to remove
the objectionable content and by refusing or failing to do so, it
violated Rule 3(4) of the Rules.
• Therefore, the website was not protected under Section 79 of the
Act.
Intermediary Liability in Copyright
Infringement
• Contributory copyright infringement.
• Section 51 (a) (ii) of the Copyright Act, 1957 (hereinafter 'the
Act')contributory infringement occurs when a person who instigates
or induces another to directly infringe a copyright will be liable for
contributory infringement, provided the infringer had the knowledge
of such infringement or has reason to know about it. The infringer
must have included or encouraged the direct infringer or has
materially (not remotely or incidentally) contributed to the primary
infringement. Internet intermediaries can thus be held liable for the
same.
 My Space Inc. v. Super Cassettes Industries
Ltd
• The appellant contended that it was immune as per Section 79 of the IT
Act. It contended further that Section 79 should be read with Section 81
which provided the IT Act is to have an overriding effect over other laws
that are inconsistent with it.
• The court held that Sections 79 of the IT Act and Section 51 (a) (ii) of the
Act must be construed harmoniously and not pitted against each other.
• It also held that the intermediary must have actual or constructive
knowledge of the infringing content to disqualify it from claiming immunity
under the safe harbour principle. General awareness or even an
apprehension that an unlawful activity is being carried out on its platform
is not sufficient to constitute contributory infringement.
 My Space Inc. v. Super Cassettes Industries
Ltd
• Furthermore, in the present case existence of user agreements that
prevent the users from uploading unauthorized content, post
infringement mechanisms that deal with such content, and the fact
that around 10000 copyrighted songs were shared with the appellant
it is not pragmatic to expect them to detect any and all possible
infringements in relation to the songs. For these reasons, the Court
held that the appellant is not liable.
• It is essential to maintain the balance between not placing the burden
of liability on intermediaries, and not letting them scot-free for the
maintaining infringing material on their platform.
The Information Technology
(Intermediary Guidelines and Digital
Media Ethics Code) Rules, 2021
Broad Aspects
• Part 1: PRELIMINARY

• Part 2: DUE DILIGENCE BY INTERMEDIARIES AND GRIEVANCE

REDRESSAL MECHANISM

• Part 3:CODE OF ETHICS AND PROCEDURE AND SAFEGUARDS IN

RELATION TO DIGITALMEDIA
Important rules
• Social Media Intermediaries-”‘social media intermediary’ means an
intermediary which primarily or solely enables online interaction
between two or more users and allows them to create, upload, share,
disseminate, modify or access information using its services”
• ‘significant social media intermediary’ means a social media
intermediary having number of registered users in India above such
threshold as notified by the Central Government;
• Present Threshold is 50 Lakhs, A significant social media intermediary
will be required to do additional due diligence along-with the due
diligence that a social media intermediary
Due Diligence
• The rules lay down the due diligence obligations that social media
intermediaries and Significant Social media intermediaries will have to
follow.
• Every six months Significant Social Media Intermediary has to prepare
compliance reports, mention the complaints received, an action that was
taken on such complaints, the subject matter of complaint, and whether
such information was removed or disabled in pursuance of the complaint
• On receipt of any judicial order or order passed under section 69 of the IT
Act, Significant Social media intermediaries that primarily provide services
in the nature of messaging will have to identify and give details of the first
originator of the message.
Due Diligence
• Deploy automated tools for identifying any content of child sexual abuse,
child pornography, rape, and revenge porn. Also, to supervise the working
of automated tools, significant social media intermediaries will have to
employ human oversight who will be responsible for evaluating the
accuracy and fairness of such tools.
• Physical address: Mention physical contact address in India on its website
or mobile-based application or both.
• Notice of removal: If the significant Social media intermediary removes or
disables access to any information, data, or communication link, then the
originator of the message should be given a notice explaining the action
being taken and the grounds for taking such action. The originator of the
message should be given an opportunity to be heard and present his case
as to why the information or link should be reinstated.
Grievance Redressal Mechanism
• A 3-tier grievance Redressal mechanism should be established by
Significant Social Media Intermediary
1. Chief Compliance Officer( Rule 5A)
2. Nodal Person of contact (Rule 5B)
3. Resident Grievance Office (Rule 5C)
Chief Compliance Officer( Rule 5A)

• The intermediary has to appoint a chief compliance officer from

amongst its employees. This compliance officer has to be a resident
of India, having an Indian passport.
• The main function of the officer is to ensure that its intermediary
complies with the acts and rules.
• If any third-party information, data, or communication link is available
to the intermediary bypassing the due diligence, then the compliance
officer is liable to be prosecuted in any such proceedings
Nodal Person of contact (Rule 5B)

• Significant Social Media Intermediary shall appoint a nodal person

who shall be available 24*7 for contact and co-ordination by law
enforcement agencies. This nodal person is to be appointed from the
employees of the intermediary who shall be a resident of India.
Resident Grievance Office (Rule 5C)

• The name and contact details of the resident Grievance officer should
be published on the website so that victims can directly address their
grievances.
• The officer has to acknowledge the receipt of the complaint within 3
working days and resolve it within a month. Apart from the
complaints by victims, the grievance officer has to acknowledge the
order, notice, direction issued by the government or court.
• A unique ticket number will be provided to the complainant to track
the status of their complaint.
non-consensual transmission
• Any complaint against non-consensual transmission of any material
that exposes the private area of any person, or shows such person in
full or partial nudity or involved in any sexual act or conduct,
including artificially morphed images, then the intermediary must
remove or disable access to such content that is stored, hosted,
published or transmitted by it within 24 hours.
• In the earlier Intermediary rules of 2011, the separate provision to
takedown non-consensual transmitted information was not in place
and hence victims had to file a cyber-complaint with the nearest
police station, which would take time in removing or disabling such
content.
Hosting of Unlawful Information
• When an intermediary receives an order from a court or by
government or its agency for hosting any information that, threatens
the sovereignty and integrity of India, the security of the State,
friendly relations with foreign States, public order, decency, or
morality or where it concerns with contempt of court, defamation, or
incites to commit an offense,
• then the intermediary should immediately cease hosting, storing and
publishing such information within thirty-six hours and not later than
that
Voluntary Verification
• Significant Social Media Intermediaries will have to give an option to
users to voluntarily verify their accounts. The verification mechanisms
can be similar to KYC verification.
• After a user successfully verifies his account, his account would be
given a badge indicating it as “Verified account” This will also prove
helpful from the investigation point to trace the culprit.
Notification of other intermediaries
• The government may ask any other intermediary, which is not a
significant Social media intermediary to comply with the rules made
for Significant Social Media Intermediary if the intermediary permits
transmission of any information which creates a material risk for
Sovereignty and Integrity of India, the Security of state and friendly
relations with foreign states or public order.
• Thus, this blurs the difference between the social media intermediary
and Significant Social Media Intermediary on the number of users.
Also, it is a very moot question of what information would constitute
a material risk and the ambit of public order is very wide.
Investigation
• If the intermediary is served with any order from the court to provide
information in its possession or to assist law enforcement machinery
for any investigation or evidence gathering purposes, then it should
provide such information within 72 hours
CODE OF ETHICS AND PROCEDURE AND
SAFEGUARDS IN RELATION TO DIGITALMEDIA
Regulation of OTT platforms
• Content Classification: “U” rating;U/A 7+” rating; “U/A 13+” rating;
U/A 16+” rating; and ‘A” Rating
• Display of Classification
• Restriction of access to certain curated content by a child
• Measures to improve accessibility of online curated content by
persons with disabilities
Mandates Social Media to Exercise Greater
Diligence
• Broadly, the IT Rules (2021) mandate social media platforms to
exercise greater diligence with respect to the content on their
platforms.
• The rules establish a soft-touch self-regulatory architecture with a
Code of Ethics and three-tier grievance redressal mechanism for OTT
platforms.
• Also, every publisher needs to become a member of a self-regulating
body. Such a body will have to register with the Ministry of
Information and Broadcasting and address grievances
Grievance Redressal Mechanism:
• The grievance officer of the platform’s redressal mechanism is
responsible for receiving and resolving complaints of the users.
• She/he is expected to acknowledge receipt of the complaint within 24
hours and dispose of the same in an appropriate manner within 15
days.
• Its access and spread by any other means on the platform should also
be disabled.
IT (Intermediary Guidelines and Digital Media
Ethics Code) Amendment Rules, 2023
Obligatory for Intermediaries
• No platform can allow harmful unapproved online games and their
advertisements.
• Self-Regulatory Bodies:
• Platforms providing online gaming will have to register with a Self-
Regulatory Body (SRB) that will determine whether or not the game is
"permissible."
• The platform should ensure that online games do not involve any
gambling or betting elements. They should also comply with legal
requirements, standards, and safety precautions such as parental
controls
Fact-checking unit
• An online intermediary – including social media platforms like
Facebook, YouTube and Twitter and internet service providers like
Airtel, Jio and Vodafone Idea – should make “reasonable efforts”
• To not host content related to the Central Government that is
“identified as fake or misleading” by a “fact check unit” that may be
notified by the IT Ministry.
Critique of 2023 rules
• No Clear Definition of fake news
• Does not specify what qualifies as false or misleading information
• Intermediaries will remove information deemed false by the Fact
Check Unit, leaving only the state to determine what is true.
Kunal Kamra v Union of India
• In 10 April 2023, comedian and political satirist Kunal Kamra
challenged the Rules in the Bombay High Court. Kamra claimed that
the formation of a fact-check unit is in conflict with Section 79
• Kamra argued that the IT Rules 2023 violate his right to carry out his
profession as a political satirist under Article 19(1)(g).
• Lack of Grievance Redressal: Violates the principles of natural justice
• Bombay High Court refuses to put a stay on the notification for
formation of fact-check unit
Kunal Kamra v Union of India
• Issues
• 1. Does the formation of a fact-check unit under the IT Rules, 2023
violate Article 14 for being arbitrary?

• 2. Does a fact-check unit restrict the freedom of speech and

expression under Article 19?
Kunal Kamra v Union of India
• ‘Misleading’ is entirely subjective. And as to ‘truth’ and ‘falsity’, throughout
recorded human history, there are few, if any, absolute truths.” Further, he
expressed concern that social media intermediaries are a “vulnerable
segment” who would comply with take down requests due to the risk of
losing safe harbour.
• This application was not concerned with the constitutionality of the
amendment. It was held that notifying the fact check unit would not lead
to an “irreversible situation” as any action by the unit would be subject to
the validity of the amendment which was still undecided due to the split
verdict.
• On 21 March 2024, the Supreme Court put a stay on the Union’s
notification establishing the fact check unit