Section 79 and the IT Rules: Privatising censorship in India

Part of The Information Technology (Amendment) Act, 2008

Section 79 of the Information Technology (Amendment) Act, 2008 regulates the liability of a wide range of intermediaries in India. The section came in the limelight mostly because of the infamous Intermediary Guidelines Rules, or IT Rules, which were made under it. The IT Rules constitute an important and worrying move towards the privatisation of censorship in India.

Section 79 provides safe harbour to intermediaries provided their activities fall within the ambit laid out by the provision.

In addition, as per section 79 intermediaries are also expected to adhere to several sets of fairly detailed rules that have been issued under this provision. One of these is the IT Rules, which can be found in full at the very bottom of this page.

Section 79 reads as follows:

79. Exemption from liability of intermediary in certain cases 

(1) Notwithstanding anything contained in any 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 or hasted [sic] 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 hasted [sic]; 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;

© the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.

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

(a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise 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.

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

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