What measures are mandated under Section 79 of the IT Act for intermediaries to avoid liability in case of unlawful content?

Detailed Legal Analysis

Section 79 of the Information Technology Act, 2000 (IT Act) provides a safe harbor for intermediaries, protecting them from liability for unlawful content hosted on their platforms, provided they adhere to certain mandated measures.

To qualify for this exemption from liability, intermediaries must meet specific requirements outlined in Section 79(2) of the IT Act:

• Acting as Intermediaries: The entity must be functioning as an intermediary, meaning they are merely providing a platform for the transmission of information or hosting content without any control over the content themselves.
• Due Diligence: Intermediaries are required to observe 'due diligence' while discharging their duties. This includes taking necessary steps to prevent the hosting of unlawful content.
• Knowledge of Unlawful Content: The intermediary must not have actual knowledge of the unlawful content. If they become aware of such content, they must act expeditiously to remove or disable access to it.
• Follow a Notice-and-Takedown Procedure: Upon receiving a complaint regarding unlawful content, intermediaries are expected to establish a robust notice-and-takedown mechanism. This is crucial for complying with the provisions of the IT Act.
• Compliance with Government and Law Enforcement Requests: Intermediaries must comply with directions issued by the government or law enforcement agencies, which may involve removing or disabling access to specific content deemed unlawful.
• Terms of Service and User Guidelines: Intermediaries should create clear terms of service and user guidelines that prohibit the uploading of unlawful content, thereby reinforcing their commitment to preventing such content on their platforms.

Furthermore, Section 79(3) specifies that intermediaries will not be eligible for the safe harbor if they are found to be complicit in the unlawful act or if they fail to comply with the due diligence requirements outlined in the Act. This provision ensures that intermediaries take an active role in monitoring and managing the content that is shared on their platforms.

In summary, intermediaries in India must implement strict due diligence measures, adhere to a notice-and-takedown policy, and ensure compliance with legal directives to avoid liability under Section 79 of the IT Act.