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Legal Scenario Relating to the Role and Responsibility of the Internet
Service Providers in India: An Assessment
Smt. Jyothi Vishwanath **^ _& Srinivas C Palakonda_*
I. Introduction The Internet serves as a powerful mechanism for the collaboration, communication and interaction between individuals regardless of their geographic location. It has proven to be a tremendous success - connecting more than 100 million computers^1 &^2 and is further growing beyond the wildest expectations of the Homo
sapiens. Internet users cannot be regarded as a homogenous group. It is imperative to distinguish the liability of those who give individuals and corporations access to the Internet from that of individual users. The former includes not only Internet Service Providers (ISPs) but also non-commercial hosts such as universities, offices, other educational institutions, corporate sectors etc. ISP is an entity that connects people to the Internet and provides related services such as web site building and hosting. ISPs are also sometimes described as Online Service Providers. ISPs are today largely immune from liability for their role in the creation and propagation of worms, viruses, obscene and defamatory material and other forms of malicious computer codes. In the spirit of promoting electronic transactions, it becomes all the more essential to clarify the position regarding the
1 B.A., LL.M., M.Phil., (Ph.D), Lecturer, P.G. Department of Studies in Law & University Law College, Bangalore University, Bangalore. ** B.A., LL.M, Lecturer, Bangalore Institute of Legal Studies (BILS), Bangalore.
. S.K.Bansal., “Cyber Crime”, 2003, APH Publishing Corporation, New Delhi, p. 277. (^2). Today this figure is more than 1000 million computers. Refer Illustration. 2 for more details. (^35). Ratanlal and Dhirajlal., “The Law of Torts”, 22nd Edition, 1992, Wadhwa and Co, Nagpur, pp. 217-267. (^36). Defamation may also be committed by conduct, which is a hybrid type of defamation not falling within the above two categories - Noor Mohd vs MohdJiauddin, 1991 MPLJ 503. (^37). Ratanlal and Dhirajlal., “Indian Penal Code”, 27th Edition, 1992, Wadhwa and Co, Nagpur, p. 576. (^38). Ibid., p. 577. (^39). Whosoever defames another is liable to be punished under Section 500, I.P.C, 1860 with a simple imprisonment for a term extending to 2 years or with fine or with both. 40 44. Supra note 37 at p. 595. negative duplicating equipment or other device used for or intended to be used for. Plate is defined as including any stereotype plate, stone, block, mould, matrix, printing or reproducing copies of any work. - Section 2 (t) I.T.Act, 2000. (^45). Section 292 (1). (^46). Selling, letting on hire, distributing, public exhibition, circulating or possessing such material or object for above purpose/ imports, exports or conveys any obsceneobject for the above purposes; takes part in/receives profits from any business associated with the obscene objects/advertising about any person engaged in any actunder this section/offering or attempting to do any act which is an offence under this Section.
liability of the ISPs. Amidst this scenario, this paper makes a sincere attempt to analyse the concepts of Cyberspace, Network, Internet and ISP; the role played by the ISPs as intermediaries; the possible Internet crimes for which ISPs may incur liability; the responsibility of the ISPs for the Internet crimes; the consequences flowing from such liability; and the measures required to be adopted in this direction. II. Meaning of Cyberspace The computer’s ability to share data with other computers over a network linked through telephone has led to a major telecommunication revolution. A computer network is a network consisting of a central computer usually known as server and a number of remote stations say 20-30 reporting to it. Networking has led to the concept of cyberspace.^3 &^4
It is a term used to describe a ‘computer world’ created by the connection of computers and the computer networks. The resulting whole is a decentralised, global medium of communication that links people, institutions, corporations and governments. III. Meaning of Network A ‘network’ is a set of related, remotely connected device and communication facility including more than one computer system with the capability to transmit data among them through the communications facilities on the server. It is a logical
. Suresh.T.Vishwanathan., “The Indian Cyber Law”, 1st Edition, 2000, Bharat LawHouse, New Delhi, p.96. (^4). The term ‘cyberspace’ was never known to the world till 1984. It first appeared in William Gibson’s novel “Necromancer” which was published in 1984. The worddescribes the ‘online’ world of computers and the constituents of society that use these computers. Online broadly indicates a computer connected to another; a computer as part of a network linked through a modem. – Ibid., at p.96.
computers sharing information on every conceivable subject of interest to humankind.9^ It allows millions of computers to be linked together connecting universities, offices, individuals, government agencies, corporate entities and private enterprises. In American Civil Union vs Reno,^10 the term Internet was defined as: “The Internet is not a physical or tangible entity, but rather a giant network which inter- connects numerable smaller group of linked computer networks. It is network of networks. Many networks are connected to other networks, which in turn are connected to other networks in a manner which permit each computer in any network to communicate with computers on any network in the system. This global web of linked networks and computers is referred to as the Internet.” WWW 11 is defined as the use of distributed data bases and remote information retrieval on the Internet. It is not controlled by a single organization, but by separate operators throughout the world. It serves as a platform for storing information on the global online and is accessible to the Internet users around the world.^12 Internet is fast becoming a way of life for millions of people.^13 Illustration. 2 depict the number of internet users in the world over in percentage and numbers. 14 Illustration 2:
1.^ Total Internet Users in the World Asia^ In Percentage 38.7%^ 510 Million users In numbers (^9). Nandan Kamath., “Law Relating to Computers, Internet and E-Commerce”, 2nd Edition, 2000, Universal Law Publishing Co.Pvt.Ltd, Delhi, p. 2. (^10). [(929 F) (Supp. 824): (1996) US District Court of Pennsylvania Report.] (^11). American Civil Liberties case - Ibid. (^1213). Supra note 7 at p. 221. new users per day). In 1998 the number went up to 85 million total users (200,000. According to statistics provided in 1997, there were 12 million total users (34, new users per day) and in 1999 it has touched 370 million users (811,000 new usersevery day). - http://www.intergov.org/ public_ administration/information/ latest_web_stats.html. 14 The information is gathered from www.internetworldstats.com visited on 21/4/2008 at. Total Internet Users estimate in the world is 1,329,872,109 for the year-end 2007. 1.31 p.m.
2.3. EuropeNorth America 26.4%18.0% 348 Million users238 Million users 4.5. Latin America/CaribbeanAfrica 9.6%3.4% 126 Million users44 Million users 6.7. Middle EastAustralia 2.5%1.5% 34 Million users19 Million users
The above Illustration makes it clear that due to the large number of internet subscribers which is growing with every passing day, it is all the more difficult for the intermediaries to control them and their online behaviour. V. The ISP A Network Service Provider means any person who provides access to information service in an electronic form.^15 They are the entities that provide individual and institutional subscribers with access to Internet.^16 Section 79 of the Information Technology Act, 2000 (I.T. Act, 2000) deals with the liability of the Network Service Providers. The explanation to this section provides that ‘Network Service Providers’ means an ‘Intermediary’. According to Section 2 (w) ‘Intermediary’, with respect to any particular electronic message “means any person who on behalf of another receives, stores or transmits that message or provides any service with respect to that message.” 17 Looking at the definitions, it appears that any person providing any service with respect to electronic messages including receiving, storing, transmitting it would (^15). Vakul Sharma., “Information Technology Law and Practice”, 2005, Universal Law Publishing Co.Pvt.Ltd, Delhi, p. 186. (^16). Mark. F. Grady and Francesco Parisi., “The Law of Economics of Cyber Security”, 1st Edition, 2006, Cambridge University Press, New York, p. 226. (^17). Proposed to be amended by the I.T Amendment Act. The new section runs like this, Sec 2(w): “Intermediary with respect to any particular electronic record meansany person who on behalf of another person receives/stores/transmits that record or provides any service with respect to that electronic record.”
Hence, ISPs play an instrumental role in transmitting or disseminating third party content, but neither initiates nor takes any part in a decision to disseminate any particular material.
ISPs perform the following tasks:
- (^) Provides access^21 to the network.
- Website building and hosting.
- Hosting mailing list, e-mail services.
- Act as an intermediary with respect to any particular electronic message between an originator^22 and an addressee 23 but is himself none of them.
- (^) Offer electronic news, storage space, games and other entertainment; or
- Simply receive data, convert that data into a form consistent with the IP protocol and forward the results to independent computers that in turn provide richer services and interactions. They control the point at which information residing on a privately owned computer network first comes in contact with the public network. They control the gateway through which every legal and illegal act and information enters and re-
(^21). means gaining entry into, instructing or communicating with the logical, arithmetical or memory function resources of a computer, computer system orcomputer network. - Section 2 (a) I.T. Act, 2000. (^22). means a person who sends, generates, stores or transmits any electronic message, or causes any electronic message to be sent, generated, stored or transmitted to any other person but does not include an intermediary. - Section 2 (za) I.T. Act, 2000. (^23). means a person who is intended by the originator to receive the electronic record but does not include any intermediary. - Section 2 (b) I.T. Act, 2000.
enters the public network. It can be said that ISP may act as an ‘information carrier’^24 or as ‘information publisher’ 25 depending upon the nature of its functions. VII. The possible Internet crimes for which the ISPs may attract liability The Internet is being transformed into a haven for criminals. The crimes rate on the Internet is increasing at 4.2% every week. 26 Internet has become host for a plethora of crimes. The computer crimes can be classified into two broad categories.^27 They are depicted in Illustration. 3. Illustration 3: Computer Based Crimes Computer Assisted Crimes/Computer Related Crimes
- Specifically termed as Cyber Crimes & ComputerCrimes, since they are committed on the Internet with
- the help of a computer.Computer & computer network is essential for the
- feasibility of these offences.Here the computer is an accused, a victim as well as a
- tool used to commit the crime.To deal with these crimes, I.T. Act, 2000 has been
- evolved & Section 65, 66 & 67 deal with such crimes.Offences such as hacking, destruction of digital information through the use of virus, unauthorisedaccess to a computer/computer system with an intention to commit theft, fraud & forgery fall underthis category. - Here computer becomes a part of evidence & acrime takes place with the help of a computer. - Computer only forms a part of the complete crimescene. - Here computer is used as a medium to assist insome activity which is already prohibited by law. - These crimes attract the provisions of I.P.C, Cr.P.C,Law of Evidence & the law relating to Intellectual Property Rights, depending upon the nature of thecrime. - Offencesobscenity, copyright infringement are covered here. such as defamation, pornography,
In both these types of crimes, where either the computer is a tool to commit a crime or it has become a victim of a crime, the ISP acts as a witness. Any information regarding the mails, location, telephone number, Internet provider address of the computer used by accused 28 can be retrieved from the ISP, for further suitable action against offender. A brief review of these crimes: (^24). A network service provider, which merely acts as a carrier of information transmitting ‘electronic message’ from one place to another, without examining itscontent— Supra note 15 at p. 187. (^25). A network service provider whose primary function is to publish and transmit the information and to take reasonable care in relation to its publication - Ibid., at p. 187. (^26). ‘Web Usage Statistics’, at http://www.intergov.org. (^27). Barkha., and U.Rama Mohan., “Cyber Law and Crimes”, 2006, Asia Law House, Hyderabad, p. 1 and Supra note 9 at pp. 273-279 and 301-303. (^28). Barkha., and U.Rama Mohan., Ibid., p. 1.
he shall be liable to pay damages, not exceeding one crore rupees to the affected person. This section provides pecuniary remedy to the victim. ISP may attract liability due to the commission of these above offences by any of its subscribers. Under the I.T.Amendment Act, 2006 the limit of one crore is proposed to be removed. (iii) Defamation: Every person has a right to have his reputation preserved inviolate. This right of reputation is acknowledged as an inherent personal right of every person. It is a jus in rem, a right good against the entire world. A man’s reputation is his property, more valuable than other property. 34 The issue of ISPs liability is gaining importance with the increase in the Internet offences in the area of the abetment of defamation. Illustration.4 provides a comparative analysis of the offence of defamation. Illustration 4: Law of Torts Indian Penal Code,
- The wrong of defamation maybe committed by way of
- writing or by way of speech.The former is called as libel. Libel is a publication of a false& defamatory statement tending to injure the reputationof another person without lawful justification or excuse.The statement must be expressed in some permanentform, e.g. writing, printing, picture,effigy. statue, waxwork &
- The latter is termed as slander.Slander is a false & defamatoryspoken words statement or gestures by tending to injure the reputationof another. 35 & 36
Offence of Defamation Section 499 Abetment of Defamation^ Section 501 It consists of 3 essential ingredients, viz,• Making or publishing any imputation
- concerning any personSuch imputation must have been made by
- Words, either spoken or intended to beread.
- Signs
- • There must have an intention of harming or^ Visible representations knowledgeimputation willor reasonharm theto (^) reputationbelieve that of thethe person concerning whom it is made.^37
- The crux of this crime lies in the publication i.e.communication of the defamatory matter to some person other than the person about whomit is addressed, e.g. dictating a letter to a clerk is publication.^38 &^39 - Whoeverengraves any matter prints or - knowinggood reasonor having to - believethat such matter is defamatoryperson of any - is guilty of abetmentof defamation & - wouldimprisonment upto 2 be liable to years or with or withboth. 40
(^34). Dixon vs Holden, (1869) LR 7 Eq 488.
It is clear from the above Illustration that intention is one of the essential ingredients if defamation is a crime but not if it is a civil wrong. On the Internet, defamation may occur in e-mail message, mailing list,^41 news groups,^42 and World Wide Web. A question here arises if the ISP hosting the web page, mailing list or e- mail service or news group is liable under Sec 501 of IPC, if it contains any defamatory matter, since he acts as its publisher and distributor. (iv) Copyright infringement: The issue of online Copyright infringement liability for ISPs is gaining momentum with rapid growth of Internet users the world over and with the inherent difficulties of enforcing the copyrights against the individual Internet users world wide. Illustration.5 provides a brief picture of the concept of copyright and its violations. Illustration 5:
(^41). Various persons can subscribe by e-mail to the mailing list. There is a central host who administers it. Mail is sent by the user to every member of the list. - Supra note9 at p. 289. (^42). News groups are discussion forums, where comments posted by their subscribers are published and available to be read for a particular period in hundreds of countries across the world -Ibid.
- A book / pamphlet/ paper/writing/ drawing/ painting/ representation / figure/objectshall be deemed to be obscene, if it is• lascivious or
- appealsinterest or to the prurient
- if its effect is such as totend to deprave/corrupt persons who are likely, toread/ see/ hear the matter contained or embodied init. 45
- Section 292 (2) (a) to (e) listsout the activities which are covered under this provision.^46
- Making pornography availableas well its possession is treated
- as an offence.For 1 st^ conviction: imprisonment upto 2 yrs withfine upto Rs.2000/-.
- For second / subsequentconviction: imprisonment upto 5 yrs & fine upto Rs.5000/-. - If any obscene objectas defined u/section 292 is sold/let on hire/distributed/ exhibited/ person under the agecirculated^47 to^ a of 20 yrs, the offenderis liable to be - punished with 1 st^ conviction: imprisonment of 3years with fine of - Rs.2000/-. 2 nd^ /subsequent conviction:imprisonment of 7 yrs with fine ofRs.5000/-. - If any person doesany obscene act in anyor public place - sings/utters any obscene recites/ songswords / (^) inballad any / publicthereby placeannoys & - othersis liable for imprisonmentupto 3 months or with fine or withboth. - If any person publishes /transmits / causes to be published in an electronicform 48 - • any materialwhich is lascivious or appealsinterest or to the prurient - its effect is such as totend to deprave / corrupt persons who are likelyto read / see or hear the matter contained in thematerial is liable to be - 1 st^ conviction,punished with imprisonment upto 5 yrs with fine upto Rs1lakh. - (^2) upto 10 yrs with fine upto Rs.ndconviction, imprisonment - 2 lakh.Mere possession is not - offence here.The provision is wide enough tobased in India and uploads or cover a person who is providespornographic content. material with
A question here arises that if a client’s webpage which is hosted on its server contains obscene material, can the ISP be held liable. It is worth noticing that none of these above provisions demand the presence of knowledge or absence of due diligence for imposing liability. After considering these different offences, it needs to be examined if ISP can be held liable for any of them.
VIII. Responsibility or Liability of ISPs If a person commits a wrong,^49 he is said to be liable or responsible for it. Liability or responsibility is the bond of necessity existing between the wrongdoer
(^47). Offering/attempting to do these acts is also punishable. (^48). The material may be in the form of words, drawings, pictures, cartoons, sounds, audio, video clippings. (^49). P.J.Fitzgerald., “Salmond on Jurisprudence”, 12th Edition, 1966, Universal Law Publishing Co. Pvt. Ltd, Delhi, p.215.
and the remedy of the wrong. It may be either civil/remedial or criminal/penal depending upon the purpose with which it is imposed by law.^50 Normally the person who is liable for a wrong is he who does it. 51 This is termed as direct liability. One may also be held liable in respect of wrongful acts/ omissions of another person. Such liability is termed as indirect liability 52 or vicarious liability.^53 Normally a person is vicariously liable if he is an employer/master and the wrongful act is done by his employee/his servant and if the act is done by the latter while on the job/during the course of employment.^54 The new information technologies have stimulated and accelerated the reframing of legal rules according to which information intermediaries are held legally responsible for harmful information created by someone else. Such vicarious liability might be imposed for defamation, copyright infringement, distribution of obscene material or for invasion of privacy if they facilitate unauthorised intrusion into someone else’s computer/computer system/computer network by hacking or unauthorised access.^55 Chapter XII, Section 79 of I.T. Act, 2000 deals with the liability of Network Service Providers (NSP). It provides that
- no person providing any service
- as a Network Service Provider shall be liable,
- under the Act/rules/regulations made under it,
(^50). The purpose being remedial in the former and penal in the case of the latter. - Ibid., p. 349. (^51). Ibid., p.400. (^52). Supra note 16 at p. 227. (^53). Supra note 49 at pp.400-404 and Supra note 35 at pp.124-132. (^5455). Supra note 52 and Supra note 35 at p.125.
the illegal act; it does not participate in the crime directly and does not participate in. Direct liability cannot be imposed on the ISP since it does not reap the benefits of the very act of uploading/downloading information.
- If A infringes the copyright existing in an online information belonging to B, can Z, the ISP be held liable, since it allows and enables the Internet copyright pirates to exist and is in a position of policing the Internet?
- If A lodges obscene material/objectionable or defamatory statement sufficient to deprave B or defame him, can Z the ISP be held liable?
In all the above circumstances if Z is able to prove that the offence was committed without his knowledge^58 or he had exercised all due diligence to prevent the commission of such offence, he will not be liable. Astonishingly, the burden of proof has been shifted to the ISP. Now anyone can pull him into litigation and the initial burden of proving the existence of these two foundational facts i.e., ‘lack of knowledge’ and ‘due diligence’ lies upon him. 59
Lack of knowledge: The ISP can escape liability, if he is able to prove that he was unaware of all that was stored and passing through his servers. But if he is put under a notice that some impinging material is either stored or passing through his servers, he has to take proper action for removing that material, otherwise he could be said to have knowledge of the infringing material and be held liable.^60
Due diligence: To escape liability ISP has to show exercise of due diligence. Due diligence means reasonable steps taken by a person in order to avoid commission of
(^58). Knowledge here means actual or constructive knowledge. A person is said to have constructive knowledge of the contents of the material, if it puts a reasonable andprudent person on notice so as to suspect the nature of the material. - Supra note 15 at p. 192. (^59). This provision operates in the form of a “reverse onus” clause since duty is cast upon the ISP to prove the facts. - Supra note 9 at p. 665. (^60). In Godfrey vs Demon Internet Ltd, [4 All ER 342, High Court] the High Court held an ISP liable for third party content on the ground that the ISP did not satisfy therequirements of having taken reasonable care and lack of knowledge, since the ISP was informed by the plaintiffs about the obscene and defamatory posting relating to plaintiff and in spite of having received the notice of the fact, they failed to remove it.
offence/contravention. The provision is silent regarding the extent and degree of ‘due diligence’ required. Is it required to monitor and judge the legality of millions of files that are present or passing through their servers? This seems to be an impossible task considering the gigabyte that is stored or passes through their servers.^61
IX. Reasons for imposing liability upon the ISP and the consequences of exemption Before imposing any liability upon the ISP, certain issues need to be considered. The nature of their functions, the long run impact of their liability, are certain matters which are to be borne in mind before reaching any conclusions in this regard. The following two illustrations deal with certain issues relating to the imposition of liability upon the ISPs. Illustration.7 speaks about the reasons justifying grant of immunity to them keeping in mind the probable consequences which may result out of such liability. Illustration.8 depicts the reasons which justify the imposition of liability upon the ISP.
Illustration 7:
(^61). S.K.Verma., and Raman Mittal, “Legal Dimensions of Cyberspace”, 2004, Indian Law Institute, New Delhi, p. 151.
rupees which the offender may notLoss may^ run^ into^ crores^ of be in a position to pay but the ISPis financially capable of paying the damages.^63 Encouragesmechanisms ISP (^) &to developadopt organizationaleffectively control bad actors. structure (^) 64 to
Realbeyond the reach of the law & offenders are usually difficult to locate.^65
Looking at the above illustrations, it becomes quite clear that holding the ISP liable may lead to disastrous and extreme consequences. Need is to adopt a flexible
(^63). This is one of the reasons why vicarious liability is imposed upon the employers.- Supra note 49 at p.402 and Supra note 35 at p.124. (^64). Supra note 16 at p. 232. (^65). This is either because they disappear or are outside the jurisdiction of the municipal laws.
approach towards them. But this does not mean that ISPs are free bird in the cyber world. They continue to be liable
- (^) to the Licensing and Regulatory authorities established under the I.T. Act,
- under any written law to remove/block/deny access to any material if directed by court.
- for their own content.
- for third party content, if they adopt or approve it.
X. Conclusion and Suggestions Considered from the enforcement aspects of the law, a question crops up as to who of the following should be held responsible and liable for the unlawful acts on the Internet.
- sender of the information
- the service provider
- the user or
- all of them together. The sender of the information or the user, either of them, may be offender. They should definitely be held liable if in case they are traced. Instead of burdening the ISPs with liability under every possible circumstance, thereby making them either overactive, since they resort to undesirable censorship or making them totally passive, since they want to show that they lack knowledge of the circumstances, it is more desirable that every thing possible should be done to trace the source of the information and make the originator primarily liable for the content. If they are not traceable or it is too difficult to trace the sender/ user, due to technical difficulties, still it will not be appropriate to fix the liability upon the ISPs. For e.g. in the physical world, if a letter containing defamatory matter is posted, if ever anyone is to be held liable, it is the addresser and if it is an anonymous letter, the
