Liability Of Internet Service Providers In Digital Environment

Dec 2022

Isp Liability In India:

Internet Service Providers (ISPs) can be liable for the content on the sites they host. They can be liable even if they were merely passively hosting the site, unless they take down the objectionable material when they receive notice of it. The Copyright Act and the Information Technology Act includes the liability of ISP’s:

Criminal Liability:

As per Section 51(a)(ii) of the Copyright Act; An ISP can be held criminally liable when, he does an act of infringement or abets infringement of:

the copyright in a work, or
any other right conferred by this Act,

However, the Copyright Act clearly states that the ISP can be held liable only in the case he was unaware infringing material stored or being transmitted through their servers. This provides an exception to the liability.

Information Technology Act, 2000

Section 79 gives conditional immunity to (ISP) network service providers. It provides that a network service provider shall not be liable for any third party provider information or data made available by him if he proves that –

The data provided by third parties has transmitted through an ISP’s servers or temporarily stored or hosted.
The offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention.

But, an intermediary will not get the benefit of exemption if:

The intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of unlawful act.
Upon actual knowledge that any data controlled by the intermediary is being used for unlawful act, the intermediary fails to expeditiously remove or disable access to that material without vitiating the evidence in any manner.
A person is said to have done an act with due diligence when in the layman’s terms he had done that act or prevented an act by reasonable standards expected out of a prudent person who is said to have the knowledge about such illegal activity.

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