Cant have moral brigade orders

Senior advocate and jurist Soli Sorabjee wondered what could constitute anti-social and offensive. While there should be some guidelines to prevent hurting of religious sentiments,I dont think law allows such monitoring of websites. Ridiculing the PM or Sonia Gandhi or any other politician cant be offensive, he said.

Legal experts said the Information Technology Act,2000,following the amendments made in 2008,has clear rules governing derogatory,defamatory and inflammatory content being posted in websites,especially those which are owned/managed by intermediary.

Free speech is guaranteed under the Constitution as is distribution of free speech8230; Where is the law allowing the Delhi court to pass such an order? We cant have moral brigade judgments from the judiciary without any backing of law. These are contentious issues that cant be announced in this way, said senior advocate Rajeev Dhawan.

The amended law expands the definition of intermediary to include telecom services providers,network providers,internet service providers,web-hosting service providers,search engines,online payment sites,online auction sites and online market places. Simply put,every entity that hosts or allows data or material to be posted without making any changes to it is an intermediary.

While finalising amendments in consultation with the Law Ministry,the IT Ministry then still under the charge of now-in-jail A Raja wanted to include a provision on how to monitor intermediaries and,if need be,penalise them for content not in conformity with Indian laws.

Basically,the IT Ministry cited the lack of adequate powers with the law enforcement agencies to deal with cases like the one involving the CEO of bazee.com,who had been arrested a few years earlier for allowing a student to post on his website an obscene video for auction, a source in the Law Ministry told The Sunday Express. We told the IT Ministry officials that such a law would lead to an uproar and may even be held unconstitutional. How can you hold somebody responsible for an illegal act committed by a third person without or connivance? The matter ended there.

The then Union Legislative Secretary T K Vishvanathan,who is currently Secretary General,Lok Sabha,said,The issue of liability of third-party service providers in such cases was discussed. But the amended Section 79 took care of the matter adequately.

Under the amended Section 79,the intermediary cant be held liable for any third party information data made available or hosted by him if he fulfills three conditions: his role is limited to providing access to a third-party to transmit or store data/information; he does not initiate the transmission or select the receiver of the transmission and select or modify the information; and,lastly,he observes due diligence while discharging his duties.

What the law says

As per the Information Technology Intermediaries Guidelines Rules,2011,which governs Section 79 of the IT Act,intermediaries like Facebook,Twitter,Orkut,etc,are immune from liability as long as they satisfy the conditions provided under the section. But they would lose the immunity if after receiving information about any information posted on their site being used to commit an unlawful act,they fail to expeditiously remove that material. The time-frame for removing such information under the law is 36 hours.