Telecom industry: How a SC ruling will protect the intermediary in 2016

Many have lauded the SC for what it did to Article 66A of the IT Act—it said that Section 66A of the Information Technology Act, 2000 was unconstitutional and struck it down in its entirety for being violative of Article 19(1)(a) and not being saved under Article 19(2)—but few have praised it for what it did to 79(3)(b), which benefits TSPs immensely.

 In the case Shreya Singhal v. Union of India [24th March 2015, Writ Petition (Criminal) No.167 of 2012], the SC diluted 79(3)(b) and said that a court order was required for its execution.

 According to the IT Act (2000), an “intermediary” with respect to any particular electronic message means any person who on behalf of another person receives, stores or transmits that message or provides any service with respect to that message. This includes ISPs, NSPs and TSPs.

While the Supreme Court struck down as unconstitutional Section 66A, sections 69A (blocking access) and 79 (exemption to intermediary) have withstood judicial scrutiny.

 While the Supreme Court struck down as unconstitutional Section 66A, sections 69A (blocking access) and 79 (exemption to intermediary) have withstood judicial scrutiny—a Bench of Justices J. Chelameswar and Rohinton F. Nariman turned down a plea to strike them down in their entirety.

 However, one good thing for TSPs is that 79(3)(b) was diluted and the SC said that, “…the intermediary upon receiving actual knowledge that a court order has been passed asking it to expeditiously remove or disable access to certain material must then fail to expeditiously remove or disable access to that material” to be deemed liable. Article 79 needs to be read with Article 19(2), said the SC.

 Section 79(3)(b) originally read:

 “…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.”

 The SC ruling means that, since a court order is required, an intermediary—in this case, a TSP—is not liable to remove content if no court of law deems it to be objectionable.

The SC ruling means that, since a court order is required, an intermediary—in this case, a TSP—is not liable to remove content if no court of law deems it to be objectionable.

 The Bench reasoned that Section 79 is an exemption provision and is closely related to provisions which provide for offences including Section 69A. “The intermediary applying its own mind to whether information should or should not be blocked is noticeably absent in Section 69A read with 2009 Rules,” it observed.

Related Links

How Digitization is Redefining Barclays: Ashok VaswaniWhy Broadband is like a riverNet Neutrality: It’s Time TRAI Batted for End UsersDTH operators are facing a Darwinian threat