© 2018 JETIR October 2018, Volume 5, Issue 10 www.jetir.

org (ISSN-2349-5162)

ROLE OF INTERMEDIARIES IN CYBER

ENVIRONMENT: CONSTITUTIONAL AND
LEGISLATIVE PERSPECTIVES
Dr. Pandhare B.D. 

Abstract
In India, the Information Technology Act, 2000 lays down the legal framework for regulating the
cyberspace. The Government of India notified the Information Technology (Intermediaries Guidelines)
Rules, 2011 in April 2011 which laid down detailed procedures for regulation of intermediaries and online
content. Countries like the US, members of the European Union and India now provide protection to
intermediaries from such user generated content. Such protection is often termed as a 'safe harbor'
protection. Section 79 of the Information Technology Act, 2000, exempts intermediaries from liability in
certain instances. It states that intermediaries will not be liable for any third party information, data or
communication link made available by them. The Act extends safe harbor protection only to those instances
where the intermediary merely acts a facilitator and does not play any part in creation or modification of the
data or information. The provision also makes the safe-harbor protection contingent on the intermediary
removing any unlawful content on its computer resource on being notified by the appropriate Government
or its agency or upon receiving actual knowledge. This provision was added to the Act by the Information
Technology (Amendment) Act, 2008 on the demand of the software industry and industry bodies to have
protection from liability that could arise because of user generated content.

Key Words: Intermediary, Information Technology, Cyber Space, Freedom of Speech and Expression and
Internet

INTRODUCTION

As the Internet penetration in India grows, the medium offers great potential for information
exchange, services delivery as well as political discourse. Various platforms like facebook twitter and blogs
make it easy for people to communicate and to get their messages across a vast audience. The potential for
content to be delivered in local languages makes the medium more accessible to the common man all over
the country. According to the Indian Telecom Services Performance Indicators Report released by TRAI1 on


Assistant Professor: AJMVP’s New Law College, Ahmednagar

1
Telecom Regulatory Authority of India, The Indian Telecom Services Performance Indicators (October – December 2018),
available at www.trai.gov.in

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April 28, 2014, the total number of Internet subscribers in India at the end of December 2017 is 238.71
million. This growth is largely fuelled by the increasing mobile penetration with subscribers who accessed
Internet through mobile devices constituting 219.92 million. A study conducted by the Internet and Mobile
Association of India (IAMAI) predicted that in 160 constituencies, Facebook would be a critical tool that
could influence the results in the 2019 Lok Sabha elections 2

In this context the present paper analyses the role of intermediaries in the platform for the internet
users and their regulations by law. It also provides for the liability and responsibility of the intermediaries
towards the law enforcement agencies and general public. In order to make clear the status and legal
position of he intermediaries in cyber space this paper critically studied the relevant provisions of the
Information Technology Act, the rules made there under and recent judgments delivered by the
constitutional courts in India

REGULATION OF CYBE SPACE

 INFORMATION TECHNOLOGY ACT, 2000

 INFORMATION TECHNOLOGY (INTERMEDIARIES GUIDELINE) RULES,2011

In India, the Information Technology Act, 2000 lays down the legal framework for regulating the
cyberspace. The Government of India notified the Information Technology (Intermediaries Guidelines)
Rules, 2011 in April 2011 which laid down detailed procedures for regulation of intermediaries and online
content. The Information Technology Act, 2000 (IT Act) was introduced with the objective of providing
legal recognition for transactions carried out by means of electronic commerce and to facilitate electronic
filing of documents with the Government agencies. However, major changes were made to the Act by the
Information Technology (Amendment) Act, 2008. This amendment clarified and expanded the definition of
intermediary and gave them better protection from legal liabilities that could arise out of user generated
content.
DEFINITION OF INTERMEDIARY
Section 2(1)(w) of the Information Technology Act, 20003 defines an intermediary as any person
who on behalf of another person receives, stores or transmits that record or provides any service with
respect to that record. Further, the definition of intermediary includes,

2
The News Report is available at www.thehindu,com

3
Section 2(1)(w), Information Technology Act, 2000:
"intermediary", with respect to any particular electronic records, means any person who on behalf of another person receives,
stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network
service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction
sites, online-market places and cyber cafes.

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 Telecom service providers,

 Network service providers,
 Internet service providers,
 Web-hosting service providers,
 Search engines,
 Online payment sites,
 Online-auction sites,
 Online-market places, and
 Cyber cafes.
The amended definition of intermediary includes every person/entity who facilitates transactions
between a recipient and a content provider. Safe Harbour Protection to Intermediaries The intermediaries
like ISPs, web hosts, social networking sites and blogging platforms play an important role in dissemination
of information by providing tools and platforms that allow users to access the Internet, host content, share
files and transact business. Websites like Blog spot, YouTube and Facebook provide a platform for users to
post their content, but generally do not exercise editorial control over third-party user generated content.
Governments across the world realised that these intermediaries must be given protection from legal liability
that could arise out of illegal content posted by users, considering the importance of these intermediaries in
the online space and the fact that their mode of operation was quite different from the traditional brick-and
mortar business.

SAFE HARBOUR PROTECTION (SEC.79)

Countries like the US, members of the European Union and India now provide protection to
intermediaries from such user generated content. Such protection is often termed as a 'safe harbour'
protection. Section 79 of the Information Technology Act, 20004 exempts intermediaries from liability in

4
Section 79, Information Technology Act, 2000:
(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of subsection (2) and
(3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by
him.
(2) The provisions of sub-section (1) shall apply if—
(a) the function of the intermediary is limited to providing access to a communication system over which information made
available by third parties is transmitted or temporarily stored or hosted; or
(b) the intermediary does not
i. initiate the transmission,
ii. select the receiver of the transmission, and
iii. select or modify the information contained in the transmission;

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certain instances. It states that intermediaries will not be liable for any third party information, data or
communication link made available by them. The Act extends safe harbor protection only to those instances
where the intermediary merely acts a facilitator and does not play any part in creation or modification of the
data or information. The provision also makes the safe-harbor protection contingent on the intermediary
removing any unlawful content on its computer resource on being notified by the appropriate Government
or its agency or upon receiving actual knowledge. This provision was added to the Act by the Information
Technology (Amendment) Act, 2008 on the demand of the software industry and industry bodies to have
protection from liability that could arise because of user generated content. This was mainly prompted by
the controversial case 5 in which Avnish Bajaj, the CEO of Baazee.com, an auction portal, was arrested for
an obscene MMS clip that was put up for sale on the site by a user.
The provision states that an intermediary needs to observe due diligence while discharging its duties
under the Act and observe such other guidelines as prescribed by the Central Government. These other
guidelines were laid down in the Information Technology (Intermediaries Guidelines) Rules, 2011 framed in
the exercise of powers conferred by Section 87 read with subsection (2) of Section 79 of the Information
Technology Act, 2000. The Rules were notified on April 11, 2011. Information Technology (Intermediaries
Guidelines) Rules, 2011 The Intermediaries Guidelines Rules lay down the guidelines that the
intermediaries have to follow so that they qualify for the safe-harbor protection provided under the Act.
PROCEDURE FOR TAKE-DOWN OF USER GENERATED CONTENT
The Intermediaries Guidelines Rules lay down the procedures that an intermediary has to follow to
avail safe harbor. Rule 3(2) 6 of the Intermediaries Guidelines Rules lists the categories of information, if

(c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as
the Central Government may prescribe in this behalf.
(3) The provisions of sub-section (1) shall not apply if—
(a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission
of the unlawful act;
(b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data
or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the
unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating
the evidence in any manner.
Explanation.—For the purpose of this section, the expression “third party information” means any information dealt with by an
intermediary in his capacity as an intermediary.
5
Avnish Bajaj v. State, 150 (2008) DLT 769 and Aneeta Hada v. Godfather Travels and Tours Pvt. Ltd. , AIR 2012 SC 2795

6
Rule 3(2), Information Technology (Intermediaries Guidelines) Rules, 2011:
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 —
(a) belongs to another person and to which the user does not have any right to;

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posted online, which could be considered as illegal. According to Rule 3(4)7 an affected person could write
to the intermediary to remove any content which is listed as unlawful under Rule 3(2). The intermediary has
to act within 36 hours to remove the content. If the intermediary does not act within the stipulated time then
the intermediary cannot avail safe harbor. This provision was criticized by intermediaries who said that it is
not easy to take down content or take action in 36 (thirty six) hours. Thereafter, a clarification 8 was issued
by the Government on March 18, 2013 stating that the intermediary shall respond or acknowledge the
complaint within 36 hours. Thereafter, the intermediary has 30 (thirty) days time to redress such complaints.
What constitutes redressal is unclear and no guidance has been provided by the rules.
The Information Technology (Intermediary Guidelines) Rules, 2011 make it obligatory for
intermediaries to appoint a grievance officer and provide the name and contact details of such officer on
their website. The grievance officer shall redress the complaints within 30 days from the receipt of
complaint.
FREEDOM OF SPEECH AND EXPRESSION
The Constitution of India confers on its citizen’s freedom of speech and expression 9 in order to
strengthen the democratic structure of the country. However at the same time this freedom is not absolute,
as same Constitution provides for the reasonable grounds on which the above freedom can be curtail. 10
Therefore in this context it is desirable to focus upon the provision relation to intermediary provided by te
Information Technology Act dealing with the freedom of speech and expression.

(b) is grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, paedophilic, libellous, invasive of another's
privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or
otherwise unlawful in any manner whatever;
(c) harm minors in any way;
(d) infringes any patent, trademark, copyright or other proprietary rights;
(e) violates any law for the time being in force;
(f) deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly
offensive or menacing in nature;
(g) impersonate another person;

7
Rule 3(4), Information Technology (Intermediaries Guidelines) Rules, 2011:
The intermediary, on whose computer system the information is stored or hosted or published, upon obtaining knowledge by itself
or been brought to actual knowledge by an affected person in writing or through email signed with electronic signature about any
such information as mentioned in sub-rule (2) above, shall act within thirty six hours and where applicable, work with user or
owner of such information to disable such information that is in contravention of sub-rule (2). Further the intermediary shall
preserve such information and associated records for at least ninety days for investigation purposes.
8
Department of Electronics & Information Technology, Clarification on the Information Technology (Intermediaries Guidelines)
Rules, 2011 under Section 79 of the Information Technology Act, 2000 (March 18, 2013), available at www.deity.gov.in
9
Article 19 (1) (a) of the Constitution of India
10
Article 19(2) of the Constitution of India

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Rule 3(5) mandates the intermediary to inform users that in case of non-compliance with rules and
regulations, user agreement and privacy policy for access or usage of intermediary computer resource, the
intermediary has the right to immediately terminate access or usage rights of users to the computer resource
of the intermediary and remove non-compliant information. This provision will result in termination of
services to a user on posting of any content which the intermediary deems as unlawful without actually
notifying the user of the reason for such termination. This provision does not provide for any checks and
balances for use of this power to terminate the access of a user. Such a power mandated to be exercised by
the intermediary is arbitrary. The right to freedom of speech and expression guaranteed by the Constitution
includes the right to receive information. Article 19(2) of the International Covenant on Civil and Political
Rights states that "Everyone shall have the right to freedom of expression; this right shall include freedom to
seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing
or in print, in the form of art, or through any other media of his choice. ” The Hon'ble Supreme Court has
held in People's Union of Civil Liberties (PUCL) v. Union of India (UOI) and Anr11,that “It is almost an
accepted proposition of law that the rules of customary international law which are not contrary to the
municipal law shall be deemed to be incorporated in the domestic law”. The disconnection of the service by
an intermediary will affect the right of a citizen to receive information and this is a violation of the
fundamental right under Article 19(1) of the Constitution of India.
The Hon'ble Supreme Court has held in The Secretary, Ministry of Information & Broadcasting v
Cricket Association Of Bengal12, that: “The freedom of speech and expression includes right to acquire
information and to disseminate it. Freedom of speech and expression is necessary, for self expression which
is an important means of free conscience and self fulfillment. It enables people to contribute to debates of
social and moral issues. It is the best way to find a truest model of anything, since it is only through it, that
the widest possible range of ideas can circulate. It is the only vehicle of political discourse so essential to
democracy. Equally important is the role it plays in facilitating artistic and scholarly endeavours of all sorts.
The right to communicate, therefore, includes right to communicate through any media that is
available whether print or electronic or audio-visual such as advertisement, movie, article, speech etc. That
is why freedom of speech and expression includes freedom of the press. The freedom of the press in terms
includes right to circulate and also to determine the volume of such circulation. This freedom includes the
freedom to communicate or circulate one's opinion without interference to as large a population in the
country as well as a broad as impossible to reach.”

11
(1997)1 SCC 301

12
1995 AIR SC 1236

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In Tata Press Ltd. Vs. Mahanagar Telephone Nigam Limited and Ors 13, the Hon'ble Supreme
Court held that: “Article 19(1)(a)not only guarantees freedom of speech and expression, it also protects the
rights of an individual to listen, read and receive the said speech.”
Rule 3(5) by providing for terminating access to the services of an intermediary without laying down
any procedures and safeguards, results in violation of a citizen's right to freedom of
speech and expression.
INFRINGMENT OF ARTICLE 19(2)
Clause (2) of Article 19 of the Constitution of India permits the State to make laws mandating
reasonable restrictions on the exercise of the right conferred by Article 19(1)(a) in the interests of
sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order,
decency or morality or in relation to contempt of court, defamation or incitement to an offence.
Thus, any restrictions that can be imposed on the right of citizens to freedom of speech and
expression can only be within the ambit of clause (2) of Article 19. Clause (I) of Rule 3(2) has listed the
reasonable restrictions to freedom of speech permissible under Article 19(2) of the Constitution of India.
Apart from clause (i) of Rule 3(2), all the clauses attempt to impose restrictions that are beyond what can be
imposed under Article 19(2).
In Express Newspapers (Private) Ltd. and A n r . Vs. The Union of India (UOI) and Ors14, The
Hon'ble Supreme Court held that if any limitation on the exercise of the fundamental rights under Art. 19(1)
(a) does not fall within the four corners of Article 19(2) it cannot be upheld. Thus, these restrictions that are
imposed are violative of the constitutional provisions.
JUDICIAL POSITION OF THE INFORMATION TECHNOLOGY ACT AND RULES

Rajeev Chandrashekhar v. Union of India – Filed by a serving Member of Parliament, Rajeev

Chandrashekhar, this public interest petition seeks to declare Section 66A and certain provisions of the
Information Technology (Intermediaries Guidelines) Rules, 2011 as unconstitutional. The petitioner points
out that Section 66A is ambiguous in its phraseology and imposes statutory limits on the exercise of internet
freedom. Further, the Intermediaries Guidelines Rules are similarly ambiguous and require private
intermediaries to subjectively assess objectionable content. They actively water down the exemptions from
liability granted to intermediaries by Section 79 of the IT Act, and prescribe unfeasibly minuscule time-
frames for the removal of objectionable content. Section 66A of the Act, and the Rules are thus violative of
Articles 14, 19 and 21 of the Constitution and the petitioner prays that they be declared as such.

13
(1995) 5 SCC 139

14
AIR 1958 SC 578

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Internet & Mobile Association of India v. Union of India – This petition has been filed by IAMAI
– an industry association – challenging the constitutionality of Section 79(3)(b) of the Information
Technology Act, 2000 and sub-Rules (2)(b), 4 and 7 of Rule 3 of the Information Technology (Intermediary
Guidelines) Rules, 2011. The petitioner alleges that these provisions are violative of Article 14, 19 and 21 of
the Constitution and thereby unconstitutional.
The petitioner argues that while under the Copyright Act, an intermediary has to refrain access to
content only for 21 days upon receiving a complaint after which the complainant has to secure a court order
to support his claim, default of which the content will be accessible again to public at large, no such
protection has been offered to intermediaries under Section 79(3)(b) of the IT Act. The lack of protection
given to intermediaries under Copyright Act makes Section 79(3)(b) arbitrary and discriminatory and
thereby violative of Article 14. Also, the content sought to be restricted under Section 79(3)(b) is violative
of Article 19(1)(a) as it has a ‘chilling effect’ over user’s speech. The user is not given any notice of
takedown of content or an opportunity to give an explanation and such a restriction goes beyond state’s
power to regulate speech under Article 19(2). Rule 2(b) has been alleged to be excessively vague for using
terms for which no codified definition exists, and violative of Article 19(1)(a) for making unreasonable
restrictions on free speech. Rule 3(4) has been argued to be ultra vires to parent statute as it imposes a
proactive duty on intermediaries to monitor user data while no such obligation exists upon intermediaries
under Section 79(3)(b). Rule 3(7) has been argued to be violative of the users’ right to privacy recognized as
being part of Article 21. The petitioner accordingly has sought from the court that Section 79(3)(b) of IT
Act and sub-Rules (2)(b), 4 and 7 of Rule 3 Intermediary Guidelines be declared unconstitutional and
violative of Article 14,19,and 21.
In Shreya Singhal V. Union of India15 Constitutional Validity of Section 66-A, Section 69A and
the Information Technology (Procedure & Safeguards for Blocking for Access of Information by Public)
Rules 2009, Section 79, Section 79(3) (b), Information Technology “Intermediary Guidelines” Rules, 2011
and Section 118(d) of the Kerala Police Act were challenge being violative to fundamental rights. Because
of the common question of law and fact involved in all the above petitions Supreme court decided to club
these petitions and give a common order. The Supreme Court has directed that the above-mentioned cases
will be heard ‘on merit’ and no direction on the next date of hearing has been issued. The scheduled hearing
will be interesting, to say the least, since several substantial questions of law have been raised in the
collective, the answers to which will have far-reaching implications on Indian technology law and the civil
liberties of its citizens. It is now time to cross our metaphorical fingers and wait for the Apex Court of the
country to deliver what will hopefully be a landmark decision that carefully balances the interests of all
stakeholders involved in India’s technology regulatory framework.

15
Writ Petition (Criminal) No. 167 of 2012 Decided on 24th March 2015

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The Supreme Court made the position clear in this judgment in the following terms Section 66A of
the Information Technology Act, 2000 is struck down in its entirety being violative of Article 19(1)(a) and
not saved under Article 19(2) Section 69A and the Information Technology (Procedure & Safeguards for
Blocking for Access of Information by Public) Rules 2009 are constitutionally valid. Section 79 is valid
subject to Section 79(3)(b) being read down to mean that an intermediary upon receiving actual knowledge
from a court order or on being notified by the appropriate government or its agency that unlawful acts
relatable to Article 19(2) are going to be committed then fails to expeditiously remove or disable access to
such material.
Similarly, the Information Technology “Intermediary Guidelines” Rules, 2011 are valid subject to Rule 3
sub-rule (4) being read down in the same manner as indicated in the judgment.16
By taking recourse to due diligence clause provided y rule 3 of intermediaries rules The Ministry of
Communication and IT, Department of Telecommunications, Government of India has issued the
Notification on31st July 2015. It was circulated to the entire Internet Service license Holders, as per list
contained therein. The Department o Electronics and Information Technology has requested Department of
telecommunications to notify intermediary for disablement of the URLs under the provision of Section
79(3)(b) of the Information Technology Act, 2000, as the contents posted on these websites infringed
morality, decency.
Recently in In Re “In the matter of, Incidence of Gang Rape in a Bparding School, situated in
Bhauwala, District Deharadun. V. State of Uttarakhand and others17 the High Court of Uttarakhand has
taken cognizance of the three news items which appeared in the Hindustan times and Times of India, that a
minor student was raped in the school premises by four students. Offence against all was registered under
appropriate laws and the matter is under investigation. Since all the four students were minor, they were
produced before the appropriate forum.
As per the news items, these boys had seen porn movies and, thereafter, called the minor girl to the
store room, where she was sexually assaulted. The court observed that, unlimited access to these
pornographic sites is required to be blocked to avoid adverse influence on the impressionable mind of the
children.
The Court appointed Mr. Arvind Vashisth, learned Senior Counsel as Amicus Curiae to assist the
Court. He has drawn the attention of the Court to the Information Technology Act, 2000 and its relevant
provisions and rules framed there under.

16
See Shreya Singhal V. Union of India Writ Petition (Criminal) No. 167 of 2012 Decided on 24th March 2015 Para 117 at Page
No. 120

17
Writ Petition(PIL) No. 158 of 2018 interim order dated 27th September 2018

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The Court further observed that, though the directions were issued to all the Internet Service License
Holders, but till date, all the Intermediaries have not followed the same in letter and spirit. The sites are
readily available to the children to view obscene and indecent acts, including pornography. It was expected
from all the Internet Service License Holders that they would block these sites to protect the children of
impressionable age. The psyche of the children of impressionable age is also affected, which, at times, result
in commission of crimes. The entire society, including parents, teachers, and school management is
responsible to safeguard the interest of the children.
The Court issued the following mandatory directions:
1) There shall be a direction to all the Internet Service License Holders to punctually obey the
Notification dated 31st July 2015 and to block the publication or transmission of obscene material
in any electronic form, transmitting of material containing sexually explicit act or conduct and
also publishing or transmitting of material depicting children in sexually explicit act or conduct
forthwith.
2) Government was directed to suspend the licenses of the Internet Service License Holders under
Section 25 of the Information Technology Act, 2000, if the Notification dated 31st July, 2015 is
not complied with.
3) Government is directed to ensure due compliance of the orders.
4) State is directed to ensure completion of the inquiry and investigation within a period of eight
weeks from today and, thereafter, to put up the Challan in accordance with law in FIR No. 390
of 2018, registered at P.S. Sahaspur, District Dehradun

CONCLUSION

The Constitutional validity of The Intermediaries Guidelines Rules in their current form is upheld by
the apex court with the modification to the effect that, “intermediary upon receiving actual knowledge that a
court order has been passed asking it to expeditiously remove or disable access to certain material must then
fail to expeditiously remove or disable access to that material.” It means that to make the intermediary liable
there must be failure on the part of intermediary in spite of the court order for removal of information.
The authorities are well equipped by the IT Act to block any objectionable information in the interest
of national security or public order, rendering private censorship efforts such as those embodied by the
current Rules superfluous.
The Rules need to be amended by removing unconstitutional restrictions on free speech, adding a
counter-notice and put-back provision so that the rights of content-creators are protected. The final decision
on whether content is unlawful should be made by the judiciary. The provision for law enforcement
agencies to access user-data should be removed from these Rules as such provisions exist in other statutes.

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In India, the spread of mobile phone has been a truly revolutionary phenomenon and has made
communication possible across the length and breadth of the country. The availability of Internet on mobile
as the figures released by TRAI shows could be the driving factor for Internet adoption in the country. New
models similar to CGNet Swara44 could evolve making it easy for anyone, even the illiterate, to contribute
content on the Internet. This could lead to greater transparency and accountability in governance and better
access to knowledge. As technology evolves at a fast pace, the law should not be found wanting. The law
should be an enabling factor that ensures that citizens enjoy their right to freedom of speech and expression
without any hindrance. India, being the largest democracy in the world should lead the world in ensuring
that the citizens enjoy the right to express themselves freely online.

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