intermediary liability

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  • 1. CHENNAI 3rd Floor, Creative Enclave, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 6552921EMAILinfo@altacit.com WEBSITEwww.altacit.comINTERMEDIARY LIABILITY P.ILANANGAI IP CONSULTANT PATENT DEPARTMENT

2. INTRODUCTION CHENNAI 3rd Floor, Creative Enclave, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 6552921EMAILinfo@altacit.com WEBSITEwww.altacit.com Recently Delhi High Court has summoned intermediaries to remove objectionable content from their website within the prescribed time period failing to which may result into blocking of the websites in India. Who are Intermediaries? Intermediaries are third party organizations that offer intermediation services between the parties trading amongst themselves. 3. LIABILITY OF THE INTERMEDIARIES CHENNAI 3rd Floor, Creative Enclave, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 6552921EMAILinfo@altacit.com WEBSITEwww.altacit.comWhat is the liability of the intermediaries like Google, Facebook and Twitter under Indian law? Internet service providers, payment systems, search engines, and auction sites provide the infrastructure necessary for Internet transactions. Internet intermediaries are, under certain conditions, liable for the content that their subscribers or even other Internet-users put online. 4. NEED FOR INTERMEDIARIES LIABILITY CHENNAI 3rd Floor, Creative Enclave, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 6552921EMAILinfo@altacit.com WEBSITEwww.altacit.com Every wrongful act involves a perpetrator and a victim. Transmission of an online communication can only be made possible by the interference of third parties namely the service provider. Therefore commission of a wrong over the internet cannot occur without intentional or unintentional involvement of service provider who facilitates the communication take place. This awakened the widespread debate about internet service providers [ISPs] liability for copyright infringement committed by third parties and the extent of such liability. While the copyright holder demand the liability should be imposed on ISPs as a right to receive compensation for the use and reproduction of their material, the ISPs on the other hand vehemently lobbying for limiting their liability. 5. ISP LIABILITY FOR COPYRIGHT INFRINGEMENT CHENNAI 3rd Floor, Creative Enclave, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 6552921EMAILinfo@altacit.com WEBSITEwww.altacit.com Direct infringement - doing or authorizing an act restricted to the owner of the copyright ("restricted act). Indirect infringement - selling or dealing in unlicensed copies or otherwise facilitating a primary infringement. If an ISP is accused of illegally distributing pirated copies of music or videos then his liability be first determined under Section 51(a)(ii) and Section 63 of the Copyright Act, 1957. If he is found liable then his liability would be tested under Section 79 of the Information Technology Act, 2000. 6. CHENNAI 3rd Floor, Creative Enclave, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821BANGALORESection 79 of the IT Act exempts intermediaries from liability in certain cases.An intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.To be able to gain exemption from liability for any violation caused because of the information transmitted, an intermediary must generally not:-Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 6552921Originate a communication of an information by itself or, Select by itself, the originator or the recipient of the communication or, Alter or modify the content of the communication.EMAILinfo@altacit.com WEBSITEwww.altacit.comThe intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central 7. INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES) RULES, 2011 CHENNAIThe intermediary shall publish the rules and regulations, privacy policy and user agreement for access or usage of the intermediary's computer resource by any person.Such rules and regulations, terms and conditions or user agreement shall inform the users of computer resource not to host, display, upload, modify, publish, transmit, update or share any information that- belongs to another person and to which the user does not have any right to; is grossly harmful, harassing, harm minors in any way; infringes any patent, trademark, copyright or other proprietary rights; violates any law for the time being in force; ..3rd Floor, Creative Enclave,Under the proposed amendment, intermediaries like Google would not be held responsible for problematic content on their systems that they did not create. Instead, intermediaries would be protected so long as they follow appropriate lawful process after being notified of the content in question.148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 6552921EMAILinfo@altacit.com WEBSITEwww.altacit.com 8. CHENNAI 3rd Floor, Creative Enclave,Intermediaries may be targeted in two ways:The first is the notice and takedown situation, in which the intermediary is not itself found liable for defamatory content as long as it complies with a takedown notice under the applicable legal framework.Notice and takedown systems encourage intermediaries to remove the content once they are put on 'notice' by private parties or law enforcement agencies that a particular content is allegedly unlawful.148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821Under the Information Technology Rules 2011, Rule 4(4), the intermediary is bound to remove the objectionable content within 36 hours from its servers if the objectionable content is brought to the notice of the intermediary. If the intermediary fails to remove such content, then it would be held liable under the relevant laws of India.BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 6552921EMAILinfo@altacit.com WEBSITEwww.altacit.com 9. CHENNAI 3rd Floor, Creative Enclave, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 6552921EMAILinfo@altacit.com WEBSITEwww.altacit.com The second way in which intermediaries may be targeted is a situation in which intermediaries are deemed to have knowingly published defamatory material, and are sued in their capacity as publishers. A notice and takedown situation may evolve into a fault-based situation if the intermediary refuses to comply with a legitimate takedown request, although this view is contestable. For example, the English Court of Appeal decided that would be liable as a publisher of defamatory content where it failed to comply with a takedown notice within a reasonable time. There can be potentially three types of liability on an intermediary which can be imposed, (1) direct; (2) vicarious; and (3) contributory liability which might be civil or criminal in nature. 10. CASE LAWS CHENNAI 3rd Floor, Creative Enclave, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 6552921EMAILinfo@altacit.com WEBSITEwww.altacit.com Religious Technology Center v Netcom On-Line Communication Services, Inc A case recently instituted in the Bombay High Court by Parle Agro against Google, Facebook and Twitter, in which Parle has alleged that the Internet companies should be liable as intermediaries for promoting defamatory content, which in this case was a viral post alleging that Parles popular mango drink Frooti is contaminated. 11. CHENNAI 3rd Floor, Creative Enclave, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 6552921Liability of ISPs in India is determined by the License for Internet Services,

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