Introduction
- In today’s modern day and age, the rate at which products and brands can be infringed upon has increased significantly.
- To address the modern legal challenges arising from the same, the law has been evolving to safeguard businesses against commercial losses.
Relevant Laws
- The term “Intermediary” has been defined under Section 2(1)(w) of the IT Act.
- Section 79 of the IT Act – intermediaries are required to conduct due diligence and observe the guidelines as prescribed by the Central Government.
- Intermediary Guidelines (Digital Media Ethics Code) Rules, 2021 (“IT Rules”) vide Rule 3(1)(b) – the intermediaries have been mandated to intimate their users about their rules and regulations, privacy policy and user agreement and make reasonable efforts to cause their user to not host, display, upload etc. information which is inconsistent with the law.
Summary of Statutory Provisions
| Provision | Key Requirement |
|---|---|
| Section 2(1)(w), IT Act | Defines the term “Intermediary” |
| Section 79, IT Act | Mandates due diligence and compliance with government guidelines |
| Rule 3(1)(b), IT Rules, 2021 | Requires user intimation and reasonable efforts to prevent unlawful content |
Judicial Precedents
- The Hon’ble Supreme Court in Shreya Singhal vs. Union of India1 interpreted the IT Act and the erstwhile IT Rules to hold that, intermediaries are required to act on third-party information upon receiving court orders. While the Hon’ble Delhi High Court in Super Cassettes Industries Ltd. v. MySpace Inc. & Another2 emphasised the precarious situation of an intermediary to pre-screen volumes of third-party information and ascertain the infringing contents. In the judicial precedents prior to the cases of Kunal Kamra vs. UOI3 and Starbucks Corporation v. NIXI4 (as discussed below), the immunity of the intermediaries hinged on the fact whether, the intermediaries had “actual knowledge” of the infringing content and acted upon the same. However, post the amendment of the IT Rules, the immunity is hinged on whether, the intermediaries have undertaken “reasonable efforts”.
- The term “reasonable efforts” have neither been defined in the statute nor explained in the judicial precedents even though, the precedents have made references to the said term.
Case Law References
In Shreya Singhal v. Union of India, AIR 2015 SC 1523.
2 Super Cassettes Industries Ltd. v. MySpace Inc. & Another CS (OS) 2682/2008.
3 Kunal Kamra v. Union of India, Writ Petition (L) No. 9792 of 2023.
4 Starbucks Corporation & Anr. v. National Internet Exchange of India & Ors, CS (COMM) 224/2023.
Judicial Interpretation of “Reasonable Efforts”
In the Hon’ble Bombay High Court’s case of Kunal Kamra5 the court observed that, “making reasonable effort saves an intermediary from losing safe harbour” and “the option of a ‘disclaimer’ to that of a ‘take down’ falls within the meaning of reasonable effort as contemplated in the Rule”.
Furthermore, in the Hon’ble Delhi High Court’s case of Starbucks6, the court held that the expression “reasonable efforts” used in Rule 3(1)(b) of the IT Rules, 2021 is vague and asked the Central Government to provide clarity so intermediaries could effectively regulate their platform. However, the said case is still pending adjudication before the court.
Conclusion
Since, the term “reasonable efforts” has not been accorded with a definition, the compliance requirements for intermediaries are uncertain. As per the erstwhile IT Rules, the intermediaries are required to meet the due diligence requirements such as, sharing the terms and conditions, disclaimers, grievance redressal IDs thus, the legislative intent to add “reasonable efforts” in amended IT Rules shall mean additional measures over and above the already outlined due diligence requirements.
In addition, intermediaries’ measures to pre-screen content to ascertain infringement have also been met with critic as, such pre-screening measures could curtail the freedom of speech and expression under Article 19(1)(a) and can essentially mean that, the intermediaries have been delegated with the power to decide on whether a content is infringing or not, which rest with the judiciary.
