Internet Intermediary Liability In India

Information Technology Act 2000 (IT Act 2000) is the sole cyber law of India. IT Act 2000 is also regulating the functioning of Internet intermediaries in India. Internet intermediaries’ law and liability in India has become very stringent after the passing of the Information Technology (Intermediaries Guidelines) Rules, 2011 of India.

These Internet intermediaries liability Rules of India demarcates the rights and responsibilities of internet intermediaries in India. If the Internet intermediaries follow these Rules and exercise proper cyber due diligence, they are entitled to a “safe harbour protection”. Otherwise, they are liable for various acts or omission occurring at their respective platforms once the matter has been brought to their notice.

Social media due diligence in India has also emerged out of IT Act 2000 and the corresponding Rules. Now legal actions against foreign websites can be taken in India. Further, cyber litigations against such foreign websites would increase in India in the near future.

Privacy violations and data breach investigations would also be required to be undertaken by these companies in India. Data protection requirements would also add further obligations upon these companies and websites in India. It is of utmost importance for these foreign companies and websites to follow Indian laws in true letter and spirit.

The cyber laws due diligence requirements for companies in India are strenuous in nature and Internet intermediaries in India need to take care of the same to avoid legal troubles. Companies like Google, Facebook, etc must appoint nodal officers in India that can be served with notices and communication pertaining to Internet intermediary obligations in India.

Cyber law due diligence in India is also required to escape liability for online violations of intellectual property rights in India. Liability of Internet intermediaries for copyright violation in India is well known and even foreign companies recognise this fact. The Online Copyright Infringement Liability Limitation Act (OCILLA) of United States has been enacted as part of the Digital Millennium Copyright Act (DMCA) 1998. Foreign companies like Google, Facebook, etc are complying with the DMCA requirements while taking down intellectual property violating contents.

However, these foreign companies and websites are still not aware of the requirements of India laws. Further, even if they are aware, they are not complying with the same in the appropriate manner. Time has come for these foreign companies to take Indian laws, especially intellectual property and cyber law, more seriously.

Are Google, Facebook, Microsoft, Heading For A Trouble?

Companies like Google, Facebook, Yahoo, Microsoft, etc facing a cyber battle in New Delhi, India. A criminal complaint against these companies is pending before a Trial Court of New Delhi. Obviously, these companies did what was best in their interest. They petitioned the Delhi High Court for quashing of criminal complaint against them.

Before the Delhi High Court, the respondent has placed it final arguments on 02-02-2012 and the petitioner would put its final arguments on 14-02-2012. Meanwhile, the Delhi High Court has dismissed a plea of a business man to hear him in this case for violation of his right to speech and expression. The Delhi High Court observed that till date neither the Trial Court nor the Delhi High Court has passed any order which curtailed the citizens' fundamental rights of freedom of speech and expression.

The Delhi High Court also observed that Google and Facebook do have the right to freedom of speech and expression but they are not above the law. There is no second opinion about this proposition as companies like Google, Facebook, Microsoft, Yahoo, etc must comply with Indian laws. Further, legal actions against foreign websites in India can be taken if they fail to comply with Indian laws. In fact, cyber litigations against foreign websites would increase a lot in India.

In fact companies like Twitter and Google have already taken steps to ensure compliance with Indian laws. Twitter has put in place a country specific mechanism to censor/remove offending tweets. Google has also started redirecting Indian bloggers to ***.blogspot.in domains instead of ***.blogspot.com domain. This method would allow Google to remove offending contents pertaining to ***.blogspot.in alone once a valid legal request is made from a particular country or residents of that country.

Yahoo has separately approached Delhi High Court and requested for a separate trial as its case falls in a different category. The Delhi High Court has accepted the request of Yahoo and issued necessary notices in this regard.

Now the companies in question have two options. Either they declare that these laws are not binding upon them or they comply with the same. It seems companies are deliberately avoiding observance of Indian laws. This is an unacceptable behaviour that Indian government cannot afford to allow. It is not a case that only Indian government is feeling offended by non observance of Indian laws. Even private individuals and companies face problems when requests for removal of offending and intellectual property violating contents are made.

Another problem that Indian government must take care of pertains to conflict of laws. When laws of India are clearly violated, there is no sense in complying with laws of foreign jurisdictions, especially when the companies involved in such process also have sound business and commercial presence in India. India must develop an alternative mechanism to DMCA complaints to such India based subsidiary companies as well as their parent companies based in foreign jurisdictions.

These companies are openly violating the requirements of Information Technology (Intermediaries Guidelines) Rules, 2011 without any legal justifications. These companies cannot use the subsidiary argument for long as Indian government would formulate more stringent norms for Indian subsidiaries dealing in information and communication technology (ICT) related matters.

This proposition is also reflected in the recent hearing of the Delhi High Court. Justice Suresh Kait observed that these companies are not above the law and their rights are to be determined under the laws of the land. He further observed that nobody is against the freedom of speech and expression. In fact, despite the summoning order against the websites, neither the Trial Court nor Delhi High Court has asked the websites to shut or restrain from functioning. They have only been summoned in accordance with the law as nobody is above it.

The next date of hearing before the Delhi High court would be on 14-02-2012 where these companies would put forward their final arguments. Let us hope that the Delhi High Court would deliver cyber justice to India.

India Must Invent Alternatives Of DMCA Complaint To Google And Others

Of late foreign companies and websites like Google, Facebook, etc are increasingly finding themselves in the legal net of India. In fact, a criminal case is already pending against Google, Facebook, etc for failure to exercise cyber law due diligence.

If websites like Google, Facebook, etc fail to exercise cyber law due diligence as per the requirements of Indian information technology act, 2000 (IT Act 2000), the Internet intermediary protection is lost. All that is required to make Internet intermediaries like Google, Facebook, etc liable under Indian laws is to notify them about the objectionable contents.

The objectionable contents may take the form of defamatory contents, cyber stalking, pornography, religious riots incitement materials, intellectual property violating contents, etc. Indian cyber law allows 36 hours to such Internet intermediaries to remove the offending contents from their platforms.

While there is no problem in applying Indian laws to foreign companies and websites operating in India yet these companies and websites use the façade of parent company by declaring themselves as mere subsidiaries of such parent companies. And when these parent companies are called to comply with Indian laws, they openly deny the same by saying that they are governed by foreign laws.

Naturally, Indians also cannot be forced to follow foreign laws like Digital Millennium Copyright Act (DMCA) 1998 and Online Copyright Infringement Liability Limitation Act (OCILLA).

As many of you may be aware that we are currently pursuing a copyright violation, trademark infringement and impersonation matter with Google Incorporation and Google India. Further, Perry4Law and Perry4Law Techno Legal Base (PTLB) have also provided their suggestions to US Copyright office regarding remedies for small copyright claims in United States so that interests of small copyright holders can be protected.

We have also filed a DMCA complaint to Google Incorporation (US) and a notice under IT Act 2000 to Google India on 22-01-2012 for copyright violation, trademark infringement and impersonation.

From the responses we received so far, it seems Google Incorporation is not willing to respect and comply with Indian laws and Indian legal requests even if DMCA procedure is duly complied with. We are still waiting for the response of Google India and would proceed further once the time limit of 36 hours is expired.

However, this has forced us to think in a very different direction. We believe that India must take urgent steps so that companies and websites like Google, Facebook, etc comply with legal demands as per Indian laws as well. We suggest the following in this regard:

(1) All subsidiary/Joint ventures companies in India, especially those dealing in information technology and online environment, must mandatorily establish a server in India. Otherwise, such companies and their websites should not be allowed to operate in India.

(2) A stringent liability for Indian subsidiaries dealing in information technology and online environment must be established by laws of India.

(3) More stringent online advertisement and e-commerce provisions must be formulated for Indian subsidiary companies and their websites.

Further, US government needs to change its policies towards foreign IP infringements and enforcements. Incidences like not following laws of other jurisdictions are responsible for enacting harsh laws like SOPA and PIPA. These incidences are also responsible for filing of civil and criminal complaints against companies like Google in India.

Indian government and Indian courts need to consider these aspects while deciding various cases against foreign websites and social media platforms. If Indian intellectual property and cyber laws are not respected, there is no other option but to choose a harsh stand of foreign websites blocking in India.

The matter would come for hearing before the Delhi High Court on 02-02-2012 and we hope the Delhi High Court would take judicial note of these facts also while adjudicating upon that matter.