eBay had referred to Section 79 of the IT Act which provides that an intermediary shall not be liable for any third party information, data or communication link made available by him. It submitted that 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 hosted
This raised the important issue of the role of an intermediary in light of the IT Rules.
The Court analysed Rule 3 of the IT Rules which deals with the due diligence to be observed by an intermediary. It then held that,
The Court, therefore, turned down the contention that there was an obligation on the intermediaries to not only remove infringing content but also screen content before hosting the same on its portal.
In this regard it held that,
“To hold that an intermediary, before posting any information on its computer resources is required to satisfy itself that the same does not infringe the intellectual property rights of any person, would amount to converting the intermediary into a body to determine whether there is any infringement of intellectual property rights or not. All persons claiming any intellectual property rights will then, intimate the intermediaries of their claims and the intermediaries then, before hosting any material on their computer resources would be required to test the material vis-a-vis all such claims lodged with them, else would be liable for infringement.”
The Court also analyzed the intention of the legislature at time of enacting the IT Rules stating that,
“If the intention of the Legislature been to require the intermediaries to be vigilant, the Legislature would have merely observed that the intermediary will not permit to be hosted on its website any information infringing intellectual property rights of any other person if such person had informed the intermediary of the same. However, the Legislature has not done so and has required the intermediaries to only declare to all its users its policy in this regard and advise them not to host any infringing information on the website of the intermediary and to on receipt of complaint remove the same within 36 hours.”
The Court, therefore held,
“Merely because intermediary has been obliged under the IT Rules to remove the infringing content on receipt of complaint cannot be read as vesting in the intermediary suo motu powers to detect and refuse hosting of infringing contents.”
This, it concluded, would amount to
“…an unreasonable interference with the rights of the intermediary to carry on its business.”
Interestingly, as a post script, the Court has referred to an order passed by the Supreme Court in the case of Sabu Mathew George Vs. Union of India . In that case, the Supreme Court had evolved the doctrine of ‘auto-block’ and directed constitution of an expert body by Google, Yahoo and Facebook to detect violation of The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. The Court, however, goes on to state that the same was under Section 22 of the PNDT Act and not under the IT Act or Rules.
Written and Published by barandbench.com/