What happens when an e-commerce website merely provides the platform and its role is restricted to being an intermediary between different parties? To what extent are such intermediaries liable for the illegal acts of third parties?
Section 79 of the Information Technology (IT) Act, 2000 lays down exemptions to the liability of intermediaries if certain requirements, as laid down below, have been fulfilled:
The intermediary merely provides access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted;
The intermediary does not at its instance
- initiate the transmission
- determine the receiver of the transmission
- choose or alter the information contained in the transmission; and
Section 79 of the IT Act further provides that exemption from liability shall not apply if “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”.
The Central Government also issued the Information Technology (Intermediaries Guidelines) Rules, 2011 (“Intermediaries Rules”) in April 2011, which stipulate in detail the due diligence procedures to be observed by an intermediary. Some of the important aspects of the Intermediaries Rules are as follows:
The intermediary must not knowingly host or publish any prohibited information and must “act” on the same within 36 hours of knowledge about the same, and where applicable, work with the user or owner of the information to disable such information.
Thus an e-commerce company can avoid any liability arising by virtue of providing a platform for third parties by complying with the aforesaid guidelines.
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