Of late Internet intermediary liability has been given due importance in India. Although Internet intermediary liability is well established in countries like United States yet India is a new player in this regard.
The Information Technology Act, 2000 (IT Act 2000) is the chief source for prescribing the Internet intermediary liability in India. IT Act 2000 is also the sole cyber law of India. Due to the defects and weaknesses of the Indian cyber law, experts have been suggesting that the cyber law of India should be repealed. However, as on date the IT Act 2000 is a binding law and is governing the Internet intermediary liability in India.
Similarly, the recent Copyright Amendment Act, 2012 (CAA 2012) has also incorporated some related provisions in this regard. For instance, the digital rights management provisions have been incorporated and made applicable by the CAA 2012 for the first time. These include protection of technological measures used by copyright owners and making their unauthorised circumventions punishable under the Copyright Act. The liability of internet intermediaries for copyright violations in India has also been established by the CAA 2012.
However, the cyber law of India is creating lots of troubles for Indian citizens. There is an inherent conflict between human rights and civil liberties in Indian cyberspace. There is no doubt that civil liberties and national security requirements must be reconciled by India. The IT Act 2000 has failed to do so rather it is actively violating the civil liberties of Indian netizens in cyberspace.
Recently clarification on the information technology (intermediary guidelines) rules, 2011 under section 79 of the information technology act, 2000 were given by the department of electronics and information technology. This occurred as the parliamentary standing committee on subordinate legislation was not happy with the state of affairs happening in Indian cyberspace.
This would also increase litigation and the internet intermediary liability and due diligence related disputes and regulations. We strongly recommend either a much elaborative and holistic clarification must be given by the department or amendments/fresh enactment of rules must be undertaken in this regard.
We should avoid piecemeal legislations and rules to fill the voids of Indian cyber law. Rather a more comprehensive and holistic cyber law of India is need of the hour.