Supreme Court issues significant decision on intermediaries' liability

India

In Singhal v Union of India (Writ Petition (Criminal) No 167 of 2012), the Supreme Court of India, as well as striking down Section 66A of the Information Technology Act 2000 and upholding the constitutional validity of the provisions relating to the blocking powers of the government under Section 69A of the act and related rules, has interpreted Section 79(3)(b) of the act and Rule 3(4) of the Information Technology (Intermediaries Guidelines) Rules 2011 as meaning that an intermediary will be required to remove infringing content only if it becomes aware of such content by way of a court order and/or a notice from the government or a government agency.

Under Rule 3(4) of the Intermediaries Rules, an intermediary is obliged to remove content within 36 hours of becoming aware, either by itself or through an affected party, that such content is in contravention with any of the items mentioned in Rule 3(2) of the Intermediaries Rules - one such item being infringement of trademark rights. In most cases, intermediaries who received takedown notices from persons alleging contravention of Rule 3(2)  used to comply with the notices irrespective of whether the content was infringing or not.

As a consequence, writ petitions were filed before the Supreme Court challenging the constitutional validity of Section 79 and the Intermediaries Rules. The petitions were tagged and heard along with matters in which Sections 66A and 69A of the act were being challenged.

Section 79 of the act and the Intermediaries Rules were attacked by the petitioners on the following grounds:

  1. Rule 3(4) of the Intermediaries Rules, which governs the takedown procedure, was improper, as it entailed that an intermediary, which is supposed to be a neutral party, exercised its own judgement to disable the content at issue. In addition, the terms used in the rules were allegedly vague and overbroad, and there was a lack of procedural safeguards.
  2. Section 79(3)(b) of the act was improper to the extent that it made intermediaries exercise their own judgement upon becoming aware that information was being used to commit unlawful acts. Further, the expression ‘unlawful acts’ under Section 79(3)(b) went beyond the specific subjects delineated in Article 19(2) of the Constitution of India.

Against this background, the Supreme Court interpreted Section 79(3)(b) of the act as meaning that immunity from liability will not be available to an intermediary if it fails to take down content even after receiving directions from a court or a notice from the government or a government agency. It further held that the court order and/or government notification must strictly conform to the eight subject matters laid down in Article 19(2) of the Constitution of India. The Supreme Court also interpreted Rule 3(4) of the Intermediaries Rules in a similar manner, holding that intermediaries are obliged to remove content if they become aware that such content is infringing by way of a court order.

This decision is significant, as the Supreme Court has watered down the liability of intermediaries as far as takedown notices are concerned. Previously, a party could directly request that an intermediary take down content on the ground that it infringed trademark rights, without a court order; the intermediary had no option but to remove the content to retain immunity under Section 79 of the act. However, following this Supreme Court decision, an intermediary is obliged to act only if there is a court order and/or a notice by the government or a government agency requesting the removal of such content.

Sanjeev Kapoor and Sahil Narang, Khaitan & Co, Mumbai

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