Guidance can also be sought from the decision of the Hon’ble Delhi High Court in Christian Louboutin v. Nakul Bajaj, where the Hon’ble Court, in the context of trademark infringement online, acknowledged classification of intermediaries into active and passive and held that the protection under Section 79 of the Information Technology Act is available only to passive intermediaries, acting as mere conduits. Lack of knowledge claimed merely on the ground that the content on an online platform is user-generated is not sufficient to avail of the safe harbour provision.
As a consequence of the growing litigation in the context of intermediaries, a need was felt to modify the law as it stood at the time. Thus, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 were promulgated. These are amended from time to time. The said Guidelines, in their current form, primarily regulate three kinds of intermediaries – social media platforms, OTT websites and digital media and online news agencies which could use individuals who run news channels. By subsequent amendments, online gaming platforms were also brought within the ambit of the Guidelines.
Other than this, specific rules and guidelines under different statutes are also applicable to different categories of intermediaries, which guidelines aligned with the overall object and purpose of the statute. For example, consumer redressal mechanisms put in place for e-commerce entities under the Consumer Protection Act.
The aim of the Intermediary Guidelines, 2021 was to affix greater responsibility on intermediaries operating in various sectors for user-generated content. The Intermediary Guidelines, now mandate intermediaries to make reasonable efforts by themselves to not host, display, publish or share information which is obscene, harmful to children, infringes any Intellectual Property, violates any law for the time being in force, etc. They are obligated to inform their users periodically as to what could amount to such a violation.
Upon receipt of actual knowledge in the form of a court order or notification by the appropriate government agency, the intermediary is obligated to take action within thirty-six hours of receipt of intimation against any content violative of the Intermediary Guidelines, 2021.
In addition, a Grievance Redressal Mechanism for users also has to be put in place by all intermediaries and complaints received have to be resolved within a period of 15 days of receipt of such complaint. However, requests for removal of content have to be addressed within 72 hours. In case of significant social media intermediaries and online gaming intermediaries, additional due diligence obligations are provided for.
From a holistic reading of the above, the test for claiming exemption from liability under the Information Technology Act and prevalent Rules is to see when “actual knowledge” of the violation was received by the intermediary and consequent actions taken.
Source: Barandbench
