Law

Information and Communication Technology

Liability of ISPs
Role Name Affiliation
Principal Prof. (Dr.) Ranbir Vice Chancellor,
Investigator Singh National Law
University, Delhi
Co-Principal Prof. (Dr.) G.S. Registrar, National
Investigator Bajpai Law University
Delhi
Paper Coordinator Dr. Aparajita Bhatt Assistant
Professor, National
Law University
Delhi
Content Dr. Gurujit Singh Assistant
Writer/Author Professor, Guru
Govind Singh Indra
Prastha University,
New Delhi
Content Reviewer Mr. Pavan Duggal Advocate,
Supreme Court of
India

Items Description of Module

Subject Name Law
Paper Name Information and Communication Technology
Module Name/Title Liability of Internet Service Providers
Module Id XX
Objectives 1. To understand the concept of Internet Service
Providers (ISP).
2. To discuss the justification for imposing liability on
ISPs for third party information.
3. To understand the various approach in deciding the
liability of ISPs.
4. To do a comparative study of liability of ISPs under
various heads in the jurisdiction of European Union,
USA and India.
5. To understand the legal provisions relating to liability
of ISPs in India and Intermediaries Guidelines Rule,
2011.
Prerequisites Basic understanding of functioning of internet and the
role of ISPs in providing services.
 Key words Intermediaries, Internet Service Providers (ISP), online
service provider, Information Technology Act (IT Act),
Digital Millennium Copyright Act (DMCA), European
Union Directives (EU), Caching

Module Overview:
ISPs play central role in overall functioning of internet as it provides connectivity of
internet to users. It make possible for users to access and store information by using
various services of ISPs. The sharing, accessing and storing of information on internet
raise issues of liability in case of misuse. ISPs as facilitators of various services can
manipulate, control and supervise the flow of information deliberately. Therefore, for
smooth functioning of internet their role has to be regulated effectively. States in the
absence of uniformity worldwide on the issue have legislated national rules to
regulate it within jurisdiction. The current module makes comparative analyses of
three State’s law relating to ISPs liability.
Learning outcomes:
1. To understand the role of ISPs in Cyberspace.
2. To appreciate the liability and exemption of ISPs.

1. Introduction:

‘Internet Service Providers’ (ISPs) also known as internet providers, service providers
or access providers are the public or private owned agencies responsible for providing
internet connectivity or access and related services to users or clients. They play
major role in the development of cyberspace by facilitating various activities to
perform like email services, ecommerce, social networking, online payments etc.. The
lists of utilities are gradually growing with the development of sophisticated
technologies in the form of innovative hardware to software. Various kinds of ISPs
are responsible for making t and related services available to users, such as Access
ISPs 1 , Mailbox ISPs 2 , Hosting ISPs 3 , Transit ISPs 4 and Virtual ISPs 5 . The

1
Access providers ISP make available the internet connectivity to the users through a variety of
technologies such as broadband connections comprising of cable, fiber optic service (FiOS), DSL
(Digital Subscriber Line) and satellite and dialup. It only connects to the cyber world.
2
Mailbox ISPs provide email mailbox hosting services and email servers. It facilitates the sending ,
receiving and storing of email.
classification is not very clear cut as there are servers which provide more than one
kind of services such as some Access providers ISPs provide hosting and mailbox
facilities also and vice versa. The connectivity speed and operation of computer to the
internet depend to a great extent on the nature of its connectivity with ISPs like dial
modem is an outdated technology and provides slow speed of connectivity in
comparison to broadband or wireless modem. Smart phones are connected to internet
through the wireless means.

2. Definition of Internet Service Provider

ISPs play centric role in the development of overall internet infrastructure. However, the term
is not defined specifically under Information Technology Act, 2000 (IT Act). Instead the Act
defines the concept of “intermediary” and lays down the guidelines to be followed while
operating as Intermediaries. Section 2(w) of the Act defines it as,
“Intermediary”, with respect to any particular 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.

The above definition can be classified into two parts. The first part explains the nature and
functions of activity of intermediaries with regards to any records i.e., receiving, storing,
transmitting the records on behalf of another person and provides any service related to it.
The second part recognizes the eight different kinds of intermediaries differentiated on the
basis of services of the above nature or any related services provided by them. The eight
intermediaries recognize under the Act are telecom service providers 6 , network service
providers 7 , internet service providers 8 , web hosting service providers 9 , search engines 10 ,

3
Hosting ISPs provides the users or agencies to provides various kind of information by hosting them
in the form of web hosting. email, File Transfer Protocol (FTP), web-hosting services, virtual
machines, clouds and physical servers.
4
Transit ISPs are the facilitator of large amounts of bandwidth needed to connect hosting ISPs and
access ISPs.
5
Virtual ISPs Purchase services from other ISPs to allow customers Internet access
6
Telecom Service Providers are communication service provider through the telephone and similar
nature of services. Currently in India Airtel is the leading telecom service provider.
7
Wikipedia define Network service providers are the business organisation that sells bandwidth or
network access by providing direct internet access. They are also known as backbone provider. They
are very similar to Internet Service provider. Information available at
http://en.wikipedia.org/wiki/Network_service_provider
8
Internet Service Providers (ISPs) provide services to the user for accessing, storing, transmitting
information in internet. The natures of service allowed by it are internet transmission, domain name
registration, web hosting etc.
online payment sites11, online auction sites12, online market places13 and cyber cafes14. The IT
Act does not make any attempt to define the intermediaries. While some ISPs provides the
exclusive hardware facility for connectivity to cyberspace, other intermediaries provide
software facility which facilitates the search and transfer of information and in combination
of both of these components the internet provides diverse nature of services. The ISPs are
passive carrier of information and therefore play the neutral role in disseminating
information. Currently in India there are State owned 15 , privately owned 16 and enterprise
wholesale17 ISP are operating as ISPs. In fact, the amendments to IT Act in 2008 allow the
appropriate government to order the service provider18 for the efficient delivery of service to
public to set, maintain and upgrade the computerized facilities.19

9
Web Hosting Service Providers are the organizations that provides space on a server owned or leased
for a client to create their website to be accessed through world wide web.
10
Search Engines are software specifically designed to search the information on World Wide Web on
the request of users. The outcomes of the request are known as search result.
11
Online Payment Sites are the servers facilitating the online transfer of payments. They play the major
role in the development of ecommerce.
12
Online Auction Sites facilitate the users to participate in the online auctions in the capacity of seller
or purchaser.
13
Online Market Places Are The Part Of Ecommerce Where Product Related Specific Information
With The Inventory Are Provided By The Third Party.
14
Cyber Cafes facilitate multiple users to connects to the internet through multiple computers at same
time to transmit, store and access the information on economic consideration.
15
BSNL, MTNL.
16
Aircel, Airtel, Idea Celullar, Reliance Communications, Tata DoCoMo, Vodafone etc.
17
SKYDOT COMMUNICATIONS LTD, Tata Communications, Bharti Airtel, Bharat Sanchar Nigam,
Reliance Communications, Vodafone India, Sify, Railtel, Powertel, Tikona Digital Networks, Tulip
Telecom etc.
18
Service provider so authorized may be any individual, private agency, private company, partnership
firm , sole proprietor firm or any other agency.
19
Information Technology Act 2000, Section 6A.
 Telecom Network Internet
service service service
provider provider provider

e payment Search engine Cyber cafe

E auction Web hosting Online market

European Union (EU) regulates the function of ISPs under the “Directive Principles Relating
to E Commerce” (Directives)20. The Directives define “Sevice Provider” as any natural or
legal person providing an information society services. 21 It defines "information society
services" as "any service normally provided for remuneration, at a distance, by means of
electronic equipment for the processing (including digital compression) and storage of data,
and at the individual request of a recipient of a service”. As per Recital 18 of the Directives,
the Information society services includes wide range of online economic activities such as
selling goods on line, service on line. It also cover non economic activities such as online
information, commercial communications or those providing tools allowing for search, access
and retrieval of data.22

In case of United States (US), the Digital Millennium Copyright Act, 1998 (DMCA) define a
“service provider” as an entity offering the transmission, routing, or providing of connections
for digital online communications, between or among points specified by a user, of material
of the user's choosing, without modification to the content of the material as sent or
20
Directive of Electronic Commerce (EC) 2000/31 Certain Legal Aspects of Information Society
Services, in Particular Electronic Commerce, in The Internal Market [2000], available at http://eur-
lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32000L0031&from=EN.
21
Id., Article 2(b)
22
Id.,
received”.23 The definition along with the other relevant provisions reflects the net neutrality
of service provider as carrier of the information only. Generally, it is expected that the
Service provider during the course of transmission, routing or providing access to connection
will not modify or alter the information or source of information.
a. Role of Internet Service Provider
ISP plays a central role in the overall functioning and development of internet. It
opens a route by connecting computers through modem to a borderless territory,
where information passes through without the physical interference of human
element. With the legal recognition of records, file in electronic form or means, the
credibility and trust of the internet users has increased manifold which gets reflected
in total numbers of users worldwide and the variety of activities or services online
right from opening of an account to share files and maintaining of websites etc. The
cyberspace allows users to involve in economic activities in the form of E Commerce
like Customer to Customer (C2C), Customer to Business (C2B), Business to
Customer (B2C), Business to Business (B2B), Business to Government (B2G), and
Government to Business (G2B) models. These E Commerce activities have created
various proprietary rights in the form of intellectual property rights (copyright,
patents, design, trade secret and trade mark) of users and corporate sector. Social
media has added a new platform to form opinions and share views within social
circles. The nature, popularity and the reach of cyberspace has forced Governments
around the world to recognize it as potential medium to deliver promises directly to
its subjects without delay and interference of corrupt agencies. The transparency and
accountability factors of internet have been well appreciated by judiciary and
executive organ of government and become part of E Governance. All this would
have not possible without the ISPs who provide continuous, neutral, trustworthy
connectivity to cyberspace. Generally, it is expected that the ISPs should be remain
neutral and passive carrier while accessing, storing or transmitting information by
users.
b. Theory of Internet Service Provider Liability
The role of ISP is to make the connectivity alive in cyberspace. Generally the role of
ISP is of passive carrier, but it provide the platform to the parties to do various nature

23
Digital Millennium Copyright Act 1998, Section 512((k)(1). Available at the website
http://www.copyright.gov/title17/92chap5.html#512.
of activity such as transmission, storing and publishing the texts, picture, songs,
movies, literature work, defamation statement with or without the proper permission
of the parties. While such nature of activity creates legal problems for the users who
upload, download or transmit of publish the things without the permission of actual
author, it also raise the question of liability of ISP for providing platform or
technological means to perform unlawful activities causing wrongful loss or wrongful
gain to someone. Therefore, various arguments have been made time and again for
and against fixing the liabilities of ISPs for their own and third party conduct. The
justifications of the arguments are as follows;
(a) Arguments for liability
1. Difficult to identify the culprit due to anonymity of culprit, whereas ISP is located
and identified.
2. Economic resources of ISP are far strong compare to violator. Therefore in case of
mass violation it is ISP which can bear the burden.
3. ISP is in better position to supervise and control the events and therefore his
negligence or unwillingness to perform it makes it liable.
(b) Arguments against liability
1. They are only the passive carrier and mere conduits of information. Net neutrality is
the rule.
2. With development of sophisticated technology in the terms of hardware and software
(bandwidths), and growth in the participation of users, the number of the business has
increased many folds. It is impossible to scrutinize each and every websites or
transmissions for an ISP.
Irrespective of above arguments, the ISPs have been made liable at various
jurisdictions for copyright violation, defamation, content posting etc.. Understanding
their passive and neutral role in overall ICT infrastructure and the nature of activities
they perform, finding the suitable theory of liability is a contentious issue. Currently
two options are available with the legislature i.e., strict liability or fault liability. 24
Under strict liability the ISP will be held responsible even if the ISP does not have the
knowledge or control over the activity on the matter. In fault liability theory, the ISP
can be only made responsible in case he intentionally violates the rule of law in
cyberspace. Intentions of ISP can be further categories as actual knowledge and

24
Pablo Baistrocchi, 'Liability of Intermediary Service Providers in the EU Directive on Electronic
Commerce' [2002] Santa Clara High Technology Law Journal 111, 114.
constructive knowledge. In case of actual knowledge the ISP knows of the violation
very much so he can control it and therefore his liability arises. The constructive
knowledge the ISP should have some clue or reasonable grounds to ascertain the
violation and therefore he should act diligently to control and supervise it. In case he
does perform carefully and diligently the liability will be on him. Majority of
legislation on the ISP impose the liability on the basis of either of these theories. 25
c. Liability of Internet Service Providers
Regulation of ISPs effectively can go a long way in the development of Internet.
They earn the due importance due to their central role in functioning of internet.
Worldwide there are two different approach of regulating ISPs. The first theory of
regulation i.e., horizontal approach put more emphasis on the uniformity of
application of law and therefore decides the liability of ISPs for any act according to
one uniform provision. The European Union follows the horizontal approach of
regulating ISPs through Directives of Ecommerce. In case of non horizontal approach
as followed in US, the liabilities are decided under various legislations for separate
unlawful activities.
i. European Union
The European Union’s Directive on Ecommerce26 follows the horizontal approach of
regulating ISPs. The Directive broadly categorized the activities of ISPs as “mere
conduit”, “caching” and “hosting”. Article 12 of Directive provides an objective
exemption for ISPs engaged in “mere conduit” activities and subjective exemption are
allowed in case of activities of “caching” and “hosting”.
1. Mere Conduit27
As per Article 12 of the Directive in case of transmission of communication network,
the service provider shall not be liable in case it fulfill three conditions such as,
a. It does not initiate the transmission.
b. Does not select the recipient of the information.
c. Does not modify or alter the information.28

25
EU directive principle is closer to constructive knowledge fault theory.
26
Supra note 20.
27
Id., Article 12.
28
Id.
The above conditions reflect the inherent character of ISPs i.e., neutral. While
transmission of information through ISPs it should not control any part of
information.
2. Caching29
Caching is temporary storage of used information on computers memory for
retrieving it faster at the time of requirements. ISPs also have caching services
whereby the high demand information are stored on local servers automatically,
intermediate and temporary. ISPs are exempted from the liability for caching on the
conditions as prescribed i.e.,
a. The provider does not modify the information
b. The provider complies with conditions on access to the information
c. The provider complies with rules regarding the updating of the information, specified
in a manner widely recognized and used by industry
d. The provider does not interfere with the lawful use of technology
e. On receiving the actual knowledge that the original source of information has
withdrawn or removed the information the service provider act expeditiously to
remove or disable access to the information stored.30

3. Hosting31
Hosting is like providing renting space to the individuals, organizations on the server
to advertise or propagate their ideas. This is the space where users can post any kind
of materials, upload photos, files, profiles etc. ISPs in this nature of activity as hosting
will not be held liable if it fulfill the condition lays down in Article 14 i.e.,
a. The provider does not have actual knowledge of illegal activity or information and as
regarding claims for damages, is not aware of facts or circumstances from which the
illegal activity or information is apparent; or
b. The provider, upon obtaining such knowledge or awareness, acts expeditiously to
remove or to disable access to the information.32

29
Id., Article 13.
30
Id.
31
Id., Article 14.
32
Id.
 Directive of
Electronic
Commerce
(EC) 2000/31

Mere Conduit Caching Hosting

(Article 12) (Article 13) (Article 14)

ii. USA
USA is the hub of information technologies. It follows the non horizontal
approach in deciding the liability of ISPs.

3. Cyber defamation:

The concept of cyber tort is at its evolutionary stage and defamation and spam are
recognised torts. While defamation deals with the repudiation of one’s reputation in
the public view, the concept of spam deals with the unwanted and unwelcome posts
from identified or unidentified source creating nuisance to the enjoyment of cyber
connectivity. In both cases it might be difficult to identify or trace the source of
information; however the role of ISP is very clear on the matter as it provides a
platform or place to create tort of defamation and nuisance. Defamation starts with the
publication of the defamatory information or posting it on social media or online
newsletter, which are untrue and damaging in the eyes of right thinking person. In
case of online defamation the real issue is whom to make responsible or liable.
Defamation in cyberspace is possible with the help of two parties, one who uploads
the information or provides defamatory contents to the website and the ISP who
allows the users to access it. In the first case, some time it is difficult to identify the
source of information or the person who creates or upload the defamatory statements.
The US Court in the case of Curby, Inc. v. CompuServe, Inc 33 ., held that
CompuServe, Inc. as an ISP had no editorial control over such publication. It is only
the distributor and not the publisher of information. It has no knowledge or reasons to
know of the defamatory statement made in the publication. Court realized the fact that
it is to impose an undue burden on ISP to examine every publication it carries and
court set out the liability of the ISPs.

In case of Straffon Oakmont, inc v. Prodigy Service Co.34 the court adopted the
different view and held that Prodigy service company an ISP was liable for
defamatory comment made by an unidentified party on Prodigy bulletin board. Court
further discovered in the case that the Prodigy had sufficient control over its computer
editorial bulletin board. It held that Prodigy acted like an original publisher than a
distributor.

The conflicting opinion of the Court on the above cases was resolved with the passing
of Communication Decency Act, 1996. The Act under Section 230(c )(i) immunize
the ISP from liability as “no provider or user of an interactive computer service shall
be treated as the publisher or speaker of any information provided by another
information content provider.”

4. Copyright

To deal with digital technology and its interface with copyright issue the USA has
framed Digital Millennium Copyright Act 1995 (DMCA). The Online Copyright
Infringement Liability Limitation Act (OCILLA) is part of DMCA. It creates
conditional safeguards in the form of Section 512 for intermediaries from primary and
secondary liability of copyright infringement. It exempts ISPs from transmitting,
caching, hosting or linking to infringing, material. To avail the exemption under it
two conditions are required to be fulfilled i.e.,
a. The service provider must adopt the policy of terminating services to users in
case of repeated infringements.
b. It must not interfere with standards technical measures.

33
776 F. Supp. 135.
34
1995 WL 323710 (N.Y. Sup. Ct. 1995)
The section comprehensively deals with the issue of ISPs liability. Irrespective of the
nature and various kinds of ISPs the Act deals with four different kinds of activities
facilitated by the ISPs. The four different activity of ISPs mentioned in the Act are
transient storage, caching, linking and storage of information. The Act provides safe
harbor to service provider on conditions as mentioned below.
1. Transient Storage: Section 512(a) of DMCA allows the service provider to transmit,
route and provide connection service to the users. During this course of action if the
copyright infringement occurs due to intermediate and transient storage of copyright
material, then ISP is exempted if,
a) service provider has not initiated the transmission,
b) it is the result of automatic technical process without an interference of
service provider
c) no selection process from service provider
d) material is transmitted through system without any modification of content.35
2. Caching : 2nd safe harbor is in the form of section 512 (b) is related to exemption of
copyright liability of service provider for intermediate and temporary storage of
material. The section illustrates the condition as :
a) the origin of the material should not be the service provider,
b) the storage is carried out by automatic technical process without the
interference of service provider
c) no modification of material or content of information
d) the provider should comply with the data communication rules relating to
refreshing, reloading and uploading of material and does not interfere with
the technology used.
e) the provider expeditiously follow the take down notice and remove infringing
material.36
3. Storage of Information on Network at User’s Discretion: 3rd safe harbor relates to
storing of information at the request of users request or direction. The exemption is
applicable in favor of service provider if,
1) the provider does not have actual knowledge that the material is of infringing
nature and after acquiring knowledge or awareness act expeditiously to
remove or block the material for further infringement

35
Digital Millennium Copyright Act, 1998, Section 512 (a).
36
Section 512(b)
 2) if the service provider by providing this facility of storage has the right and
control over such activity and does not receive a financial benefits directly
attributed to such infringing activity
3) where it take steps to the take down notice and block or remove the
infringing material
4) provider appoints the public designed agent to receive notifications relating
to infringing material.37
4. Information Location Tools: The information location tools are very important for
the smooth function and interconnectivity of the complex information. The tools
which are recognised by the Act include a directory, index, reference, pointer, or
hypertext link. 4rth safe harbor is in the form of Section 512(d) relating to referring or
linking facility. The service provider is exempted in these cases if,
a) he does not have the actual knowledge of nature of material i.e, infringing
one. After acquiring knowledge remove the link or disable the material
available.
b) It does not receive financial benefit attributable to the infringing activity even
if it has the right and ability to control such link.

5. India

The Information Technology Act, 2000 (IT Act) deals with the internet related issues.
It deals comprehensively the issue of ISP liability and lays down the guidelines to be
followed during functioning as service provider.
5.1 Cyber defamation

Section 66A of IT Act deals with defamatory statement and makes it an offence
punishable with 3 years of imprisonment and fine. As per section 79 of the Act
generally ISPs are made responsible for the third party information, data, or
communication link made available or hosted by him.38 The Act further exempt ISPs
from liability on fulfillment of the conditions i.e., (a) he did not initiate the
transmission, (b) did not selected the receiver of the transmission and (c) did not
select or modify the information in the transmission. Till the time ISP acts as passive
carrier of the information and remains neutral to information circulated he is
exempted from any liability. He can be held liable if at any time he has power of the
37
Section 512(c)
38
Information Technology Act, 2000, Section 79(1).
controller, supervise dissemination of information. Upon receiving the take down
notice for withdrawing the information or blocking it, the ISP is required to act
expeditiously as per the law prescribed and act within specified time of 36 hours.39

5.2 Privacy and Data protections

Due to widespread use of internet as facilitator of transmission and storing

information, the issue of privacy data protection has gained prominence. Privacy has
not been defined under the IT Act, however the Rules 40 defined the sensitive
information and private information. Under Section 43A of the IT Act imposes
penalty and compensation in case failure to protect data by a body corporate. It is the
duty of the body corporate possessing such sensitive information to maintain
reasonable security measures and procedure. In case of failure to observe it, the body
corporate is liable to pay compensation to the persons affected. During the course of
providing connectivity to users, ISPs as body corporate collect information of private
nature. With regard to it they should maintain reasonable standard of security and
procedure to deal with it. They may also liable under Section 79, if they conspired or
abet or aid or induce, by means of threats or promise or otherwise commence the
unlawful act, or after receiving knowledge of wrongdoing or notified by the
appropriate government, the ISP fails to remove or disable access to that material.

5.2.1 Copyright Protection

The peer to peer file sharing system violates the copyright of owners, if the proper
authority of the owner is not taken in this regard. The entertainment industry i.e.,
music and cinematography industry are the most affected parties. New movies, songs,
music album etc. get published and circulated among the users of net with the help of
various online website facilitating transmission and storage facilities like bit torrent,
pirate bay etc. affecting the economic rights of rightful owners. Therefore, to deal
with it now the trend followed by the parties who apprehend the copyright
infringement of their work to get an ex-parte interim injunction order in the form of

39
The Information Technology (Intermediaries Guidelines) Rules, 2011, Section 3(4).
40
The Information Technology (Reasonable Security and Procedures and Sensitive Personal Data or
Information) Rules, 2011, Section 3.
“Ashok Kumars” or “John doe”41at the time of release of movie. The injunction order
restrains any websites or intermediaries from providing a platform for infringement of
copyright.

The specific legislation in the form of Indian Copyright Act, 1957 (ICA) deals with
the concept of infringement under Section 51. As per it, if any person without a
license or consent of the rightful owner of copyright work or the registrar of copyright
or in contravention to license granted under the Act (a) does anything which is the
exclusive right of the owner of the work, or (b) permits for profit any place to be used
for communication of work to the public42, then it amounts to copyright infringement.
The first point deals with the primary infringement and the second points focus on the
secondary infringement 43 of copyright work. Depending on the nature of ISPs in
providing services to the users the liability under the Act will be decided. The ISPs
which only provide the access service or webhosting facility to users are of the
secondary infringement as they provide the technological means to exploit the work.
The ICA under section 51 and 52 reading together exempt ISPs from some cases of
copyright infringement under some conditions as follows:
i. If the person violating the copyright had no reasonable grounds to believe that
such communication to the public would be an infringement.44
ii. The transient or incidental storage of a work or performance purely of technical
process of transmission or communication to public;45
iii. The transient or incidental storage of a work or performance for the purpose of
providing electronic links, access or integration, where such links, access or
integration has not been expressly prohibited by the right holder.46
iv. If the intermediary responsible for such storage has received a written complaint
from the owner of work, the intermediary should stop facilitating work for a

41
Ashok Kumars” or “John doe” orders are ex-parte interim injunctions and are exceptional when
compared to traditional injunctions where the defendants ‘are identified beforehand. In John doe order
plaintiff is allowed to add parties responsible for infringement of copyright even after the filing of suit.
It is combined with Anton Pillar order making it possible for the seizure of any infringing material. The
Indian version of John doe order is also known as Ashok Kumars order.
42
Indian Copyright Act 1957, Section 51(a)
43
Id., Section 51(a)(ii) and Section 63.
44
Id., Section 51(a) (ii).
45
Id., Section 52(b)
46
Id., Section 52(c )
 period of 21 days or until he receives an order from a competent court in this
regards.47

Further Section 79 of the IT Act limits the liability of the Intermediary/ISP. As per it
an intermediary shall not be liable for third party information data or communication
link made available or hosted by the intermediary, if;
1. The function of intermediary is limited to provide access to a communication system
on which the third party is transmitting information; or
2. The intermediary does not (a) Initiate the transmission, (b) select the receiver of the
transmission, and (c) select or modify the information contained in the transmission.
3. The intermediary maintain due diligence while discharging his duties.48

The third part of section 79 illustrate the situation when an ISP may be held liable i.e.,
i. If the intermediary conspired or abet or aid or induce, by means of threats or
promise or otherwise commence the unlawful act,
ii. After receiving knowledge of wrongdoing or notified by the appropriate
government, the ISP fails to remove or disable access to that material.

In pursuance to the Section 79, the IT Act in detail framed the Rules to maintain the
level of due diligence in The Information Technology (Intermediary Guidelines)
Rules, 2011 49 . The Rule requires the ISP to maintain the due diligence while
discharging the duties of ISP as follow:
1. It prohibit the user not to host, display, upload, modify, publish, transmit any
information which (a) belongs to others; (b) grossly harmful, defamatory, obscene,
pedophilic, violate the privacy, racial, ethnical in nature; (c) harm minors; (d)
infringes or violate the Intellectual Property Rights; (d) Violates any other laws; (e)
Deceives or misleads the addresses about the origin of information; (f) imposter
others; (f) contain software virus; (g) threatens the unity and integrity of the country;
2. ISPs shall publish rules relating to their Privacy regulation.

47
Id.
48
Id., Section 79(2)
49
The Information Technology (Intermediary Guidelines) Rules, 2011 are framed under the power
exercised and conferred by the clause (g) of Section 87(2) coupled with Section 79(2).
 3. ISPs to act within 36 hours to disable the information if they acquire the knowledge
that the information contained therein is of the above categories. Further, the
information is to be preserved as records for 90 days for investigation purpose.
4. In case of non compliance with the intermediary rule and rule according the
guidelines the ISPs can terminate the access of usage rights of the user to the
computer resource of intermediary.
5. ISP shall cooperate with the Government Agencies who are lawfully authorised for
investigation, protective, cyber security.
The Court has limited exposure to ISPs related cases. In the case of Super
Cassettes Industries ltd. v. Yahoo Inc. & Another50, the High Court ordered the
defendant restraining it or its agents, representatives from reproducing, adaptation and
distribution of music in any of their website. The defendant in this case was streaming
the songs of the T Series and making available the public on their website
<www.video.yahoo.com>. Similar orders were passed by the High Court in the case
of Super Cassettes Industries Ltd. v. You Tube & Google SCIL 51. The court gave
the interim relief to Super Cassettes by restraining Indian website from streaming
audio and video content from some movie for which T Series has music rights.

Delhi High Court in the case of Super Cassettes Industries Ltd. v. MySpace Inc.
and Anr. 52 , decided a cross border violation of copyright by website on foreign
territory. MySpace, a Social media being based on US shared the music of Super
Cassettes on their websites. Plaintiff filed case at Delhi High Court for copyright
infringement. The Court settled the jurisdiction issue in favour of High Court after
interpreting Section 62 of Copyright Act in favour of the Delhi High Court. Applying
the Indian Copyright Act, the court decided that MySpace violated the copyright of
Super Cassettes as it allowed the work to be made available for download at
subscription fee from their websites.

6. Summary

50
Shrimant Singh & Varnika Singh, 'Internet Service Provider Liability For Copyright Infringement'
(http://singhassociates.in 2010) <http://singhassociates.in/Intello-Property/2.html> accessed 04.08.14
51
Id.
52
IA No.15781/2008 & IA No. 3085/2009 in CS (OS) No. 2682/2008, available at
http://lobis.nic.in/dhc/MAN/judgement/02-08-2011/MAN29072011IA157812008.pdf
1. ISPs plays important role in the development of Internet. They set the net of networks.
They provide users various services like accessing, transmission and storing of
information.
2. The Information Technology Act, 2000 provides a list of eight intermediaries. ISP is one
important intermediary. The Act does not define ISP and give any hint as to how it is
different from others.
3. There are various arguments for and against setting the liability of ISPs for the third party
activities. Economic viability, physical presence and sharing technology are the decisive
factors in shifting the liability towards ISPs.
4. States follow the horizontal or non horizontal approach to set liability under various
legislations. European Union follows the horizontal approach and has a comprehensive
legislation i.e., Directives of Ecommerce on the issue of ISPs liability. USA follows the
non horizontal approach and therefore the issues of liability of ISPs are dealt under
various Acts as per the specific requirement.
5. For copyright violation the Indian Copyright Act has specific provision for ISPs liability.
6. Indian Information Technology Act 2000 under section 79 deals with the exemption of
liability of ISPs on the fulfillment of specific conditions.
7. The Information Technology (Intermediary Guidelines) Rules, 2011 are framed to guide
the ISPs regarding due diligence to apply in case of their functioning.