SUPREMACY OF THE INFORMATION TECHNOLOGY ACT, 2000?

INTRODUCTION

The Information Technology Act, 2000, is a special act enacted to give legal recognition to any transaction which is done by electronic method or through the medium of the internet. The Act further provides the categories of crimes pertaining to electronics and the internet and also provides the medium for the courts to adjudicate upon it. The I.T. Act provides that an Intermediary shall not be liable for any third party information, data, or communication hosted by them.[1] If we look into the exemption from liability under section 79 of the act in a situation, where an intermediary is being charged with a violation in Copyright Law, even if they have violated the Copyright Law theoretically, they should be able to avail of the exemption that has been provided under the I.T. Act, which protects them from prosecution. However, because of the proviso of Section 81, the intermediary will not be able to use the exemption that has been provided under Section 79 for violation or supposed violation of the rules and regulation laid down on the Copyright Act, because it lays down that Copyright Act shall supersede the I.T. Act, which basically means that the intermediaries find themselves in a situation where although there is a provision to protect their interests, they cannot avail it.

CONTRADICTION BETWEEN SECTION 79 AND 81 OF THE IT ACT

To discuss the concept of ‘Intermediary Liability,' we first need to understand what an intermediary is. An intermediary is any person for an organization that receives, stores, and transmits messages for providing any service concerning any electronic messages or record for a third party. Any person who does this and falls under the category of an intermediary can include a telecom service provider or internet service, provider. Organizations like Zomato, Uber, search engines like Google all of them are in the service of providing business to other parties, and for providing services, they either receive or store or transmit the electronic messages on behalf of others. Amazon Prime and Netflix, which we use to watch movies and, etc. are also service providers. Exemptions from liabilities are stated uber section 79 of the I.T. Act, which is the safe harbour provisions for the intermediaries. To explain this with suitable illustration, it happens like- Mr. X creates an obscene profile using the free social networking website provided by Google. As long Google is unaware of this, it is not liable. If Google is informed about this profile by any user or the police and still it does not remove access to the profile, then it will be liable. Suppose Google sends out promotional emails that contain obscene matter, then it will be liable as that is not the third party information.

To discuss the controversy of Section 79 with Section 81, here, section 81 states that the I.T. Act has an overriding effect except to that of the Copyright and Patent Act. Now the problem where the intermediaries get stuck is that let’s suppose Mr. Y is a producer of the certain movie, and the movie is about to be released, but before the official launching of the movie, someone releases the pirated print on a torrent site, which usually happens often enough. The producer of the movie approaches the Court of Law and seeks that the website must be blocked, not that the content needs to be removed from the website. We know that the Torrent is a service provider as well; all it provides is the platform on which information can be exchanged. It fulfills all the intermediary obligations, so technically, it should be exempted from liability under section 79. The producer can ask for banning the entire Torrent site, not removing the objectionable content from the site, which generally should happen. The producer can ask to ban the entire site, and there is nothing that Torrent could do because Copyright Act does not have safe harbor provision like that of the I.T. Act, and as soon as we say that it violates of the Copyright Act, Section 81 of the I.T. Act comes into force saying no problem, copyright infringement under the Copyright Act cannot avail the exemption provided under Section 79 of the I.T. Act because of exemption available which basically brings intermediary back to square one. Although there is a provision available and is in violation of the Copyright Act, it cannot claim exemption.

REASONS BEHIND IMMUNITY FROM CLAIMS

The foremost reason behind intermediaries like Google, Yahoo, or Blogger has immunity from claims is that, even if it is logically possible and cheap, would we want these intermediaries to track every content? The answer is self-evident that we would never want this to happen. We don't ever want them to start filtering our content on their own.

If we imagine a world where our Internet Service Providers keep checking the content we upload infringes the copyright or not. Further, our content is verified by the email or blog hosting services that we use. Thus, to argue on this point that if the content is filtered, it is the violation of privacy that none of us want, and this would take away all the neutrality that intermediaries provide to its users. Thus there is no justified reason for an intermediary making any prima-facie discrimination in regards to the content transmitted by its users.

THE NEED OF SAFE HARBOUR PROVISIONS

The above-argued points make it clear why intermediaries need safe harbor provisions due to the third-party content. If we agree to the reason mentioned above, we should also agree to a clear provision that gives immunity against all liabilities, regardless of whether they arise from copyright or not. The most important point here is that the immunity under Section 79 of the Act should be independent of any defense that the intermediary may or may not be able to take under the legislative laws governing the types of liability. To explain further, Copyright Law may or may not give Google or other intermediaries a defense against the claims for infringement. Thus the authors, while stating this point, are of the view that Google or Yahoo must be given immunity not out of the provisions of the Copyright Act but only because of its status as an intermediary.

JUDICIAL APPROACH

Myspace Inc. v. Super Cassettes Industries Ltd,[2]In this case, the Hon'ble Court stated that the provisions of the Information Technology Act, 2000, have to be read harmoniously with the Copyright Act of 1957. The respondent/ plaintiff filed a suit for seeking permanent injunction restraining the appellant/defendant from copyright infringement owned by it in sound recordings, films, musical and literary works, the copyright of which existed with the respondent. The court held that under Section 79 of the I.T. Act intermediary can be exempted from liability subject to certain terms enunciated was considered baseless as Section 81 has overriding effect, contains a proviso that under the I.T. Act no one can be restricted from protecting rights under the Copyright Act and Patent Act as copyright and patent owner. The court stated that the Copyright Act is a complete code of rights and remedies. And also, under section 79, except Internet Service Providers, intermediaries were not wholly immune from the liability of copyright infringement. So, the Copyright Act would apply to it. The intention of lawmakers behind proviso to Section 81 is not to disturb the rights of the copyright and patent owners. Hence the appellant is prima facie liable for copyright infringement under Section 51 of the Copyright Act.

Luxottica Group S.P.A v. Mify Solutions Pvt. Ltd,[3] In this case, the plaintiff alleged that the defendants were liable for the Trade Mark infringement as the defendants were selling a replica of the plaintiff's famous brand of goggles and sunglasses 'OAKLEY' on their website. The question before the court of law was whether the defendants would be exempted from liability under Section 79 read with Section 81 of the Information Technology Act, 2000. Section 81 of the I.T. Act has an application when there is any inconsistency between the provisions of the Trade Mark Act with provisions of the I.T. Act. In the present case, the provisions of the Trade Mark Act were not inconsistent with the provisions of the I.T. Act. Hence the defendants' website was not entitled to any immunity as Section 81 was not applicable.

CONCLUSION

To conclude, the provisions of the Information Technology Act, 2000 shall prevail over any other Act, but no provisions of this act shall restrict any person from exercising any rights conferred under the Copyright Act, 1957, and Patents Act, 1970. Section 79 of the Act does not provide intermediaries from claims of the third party in regards to Copyright infringement. The intermediaries should also have security before it permits any person to use its services of diffusing information so that the person using its services can easily be traced for his or her acts. Thus, the authors are of the view that intermediaries should be permitted to carry on their business without any shackles, but at the same time, it should ensure that it acts in due care and caution and does not cheat the copyright or the patent owner indirectly or directly.

{This Article is co-authored by Piyush Kumar Jalan, Amity Law School, Kolkata, and Akshita Jain UPES Dehradun, School of Law,}

[1] Section 79, Information Technology Act, 2000

[2] 2016 SCC Online Del 6382

[3] 2018 SCC Online Del 12307