Information Technology Act Section 79 — Exemption from liability of intermediary in certain cases
CHAPTER XI OFFENCES
Cyber Law
Summary
Sub-section (1) states that, despite anything in any other law, an intermediary is not liable for third party information, data, or communication links that it makes available or hosts, but this protection is subject to sub-sections (2) and (3).
Sub-section (2) sets out the conditions under which the protection in sub-section (1) applies. Under clause (a), the intermediary's role must be limited to providing access to a communication system over which third parties' information is transmitted, temporarily stored, or hosted. Under clause (b), the intermediary must not initiate the transmission, select the receiver of the transmission, or select or modify the information in the transmission. Under clause (c), the intermediary must observe due diligence while performing its duties under this Act, and also follow any other guidelines that the Central Government may prescribe.
Sub-section (3) lists the situations where the protection in sub-section (1) does not apply. Under clause (a), the protection is lost if the intermediary has conspired, abetted, aided, or induced the commission of the unlawful act, whether through threats, promises, or otherwise. Under clause (b), the protection is lost if, after receiving actual knowledge, or after being notified by the appropriate Government or its agency that information, data, or a communication link on a computer resource controlled by the intermediary is being used to commit an unlawful act, the intermediary fails to quickly remove or disable access to that material without damaging the evidence in any way.
The Explanation clarifies that, for this section, the term third party information means any information dealt with by an intermediary in its capacity as an intermediary.
Official Text
(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections
(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;
(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 purposes of this section, the expression ―third party information‖ means any information dealt with by an intermediary in his capacity as an intermediary. CHAPTER XIIA EXAMINER OF ELECTRONIC EVIDENCE