Sticky points on the Web

When you visit some Web sites, you settle for whatever content the Web site owner has decided to offer on the site. However, there are other Web sites that allow you to post or ‘publish' your content on the site — as comments, text, videos, audio, etc.

This freedom of expression offered by a Web site to its users could, however, lead to certain liability for the owner of the Web site as well as to other intermediaries, such as the Internet service provider, the search engine, the cyber café, etc, that facilitated the posting of the user-generated content on the site.

For instance, if a user uploads content that violates a third party's intellectual property rights or is obscene or defamatory, he/she would be liable for such illegal acts. In addition, the Web site, as an intermediary that allowed or facilitated the publishing of the illegal content, could also be liable.

You will remember that the CEO of eBay India was arrested a few years ago for pornographic material sold on the site by a user in direct violation of the terms and conditions of eBay India.

Due diligence

In order to do away with such an extensive liability, the Information Technology Act, 2000 (IT Act) had incorporated a provision (Section 79) which provides for exemption of liability of ‘intermediaries' for material uploaded by users.

Internet service providers, telecom service providers, webhosting service providers, search engines, cyber cafes and others involved in receiving, storing or transmitting are all intermediaries under the IT Act.

The exemption of the liability for Web sites is not absolute and depends on several factors, including whether the Web site played any active role in uploading the material, and most importantly, whether the Web site exercised “due diligence” over the material available on the site.

As per the IT Act, the owner of a Web site will be exempt from liability only if it has exercised “due diligence” with respect to the content posted.

However, the IT Act did not explain what was meant by the term “due diligence” and there was confusion on the exact steps that a Web site had to take to ensure that it did not become liable as a result of user-generated content hosted by it.

To clarify this issue, the Ministry of Communication and Information Technology recently released a set of draft guidelines on the Due Diligence to be Observed by Intermediaries.

The most important aspect proposed by these draft guidelines is that a Web site that follows these guidelines will not be required to independently verify all material uploaded by its users to its site to ensure that the material is legal.

Due diligence guidelines

The first requirement of the draft guidelines is that a Web site has to have exhaustive terms and conditions dealing with all the issues listed in the guidelines so that users of the site are aware of what activities are prohibited on the Web site.

Users must be informed that they cannot upload material that is objectionable, blasphemous, pornographic, abusive, infringes any third person's IPR, violates anyone's privacy, impersonates any third party, etc.

Second, Web sites must quickly remove objectionable material as soon as they come to know of it and should notify the police. Web sites must also have a take-down policy, which informs the users that objectionable material will be removed and that the police will be informed of any such post.

Finally, Web sites are required to follow certain operational guidelines. For instance, they must inform users that their membership will be cancelled if they post objectionable material.

Personal information of users must not be disclosed without their permission though the Web site is required to provide information to government agencies for investigative, protective, cyber security or intelligence activity.

Finally, Web sites must have a designated agent to receive notices regarding claims of infringement.

As of now, these guidelines have been released as a draft (which can be found on the Web site of the Department of Information Technology) and are yet to come into effect.

Even so, it is advisable for every Web site that allows user-generated content to move in the direction of compliance with these guidelines, failing which the sites will not be able to enjoy the exemption from liability for illegal user-generated content posted on their site and may face dire consequences.

The authors are with Indojuris Law Offices.

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