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The petitioner, Internet and Mobile Association of India (IAMAI), claimed that its right to freedom of expression under Article 19(1)(a) was curbed by Section 79(3)(b) of the IT Act.  Photo: Mint
The petitioner, Internet and Mobile Association of India (IAMAI), claimed that its right to freedom of expression under Article 19(1)(a) was curbed by Section 79(3)(b) of the IT Act. Photo: Mint

Supreme Court examines safe harbour provisions for ISPs

Court questions if an intermediary would have the right to freedom of expression as it was merely a conduit for information, not the content generator

New Delhi: The Supreme Court on Tuesday began examining the validity of the provision to remove third-party content being hosted by intermediaries or internet service providers (ISPs) under the Information Technology Act (IT Act), 2000.

The petitioner, Internet and Mobile Association of India (IAMAI), claimed that its right to freedom of expression under Article 19(1)(a) was curbed by Section 79(3)(b) of the IT Act.

A bench of justices J. Chelameswar and S.A. Bobe, however, questioned if an intermediary would have the right to freedom of expression as it was merely a conduit for information, not the generator of the content.

Section 79 provides intermediaries “safe harbour" for user-generated content, and they are exempt for any content posted by third parties. However, under Section 79(3)(b), “upon receiving actual knowledge", or the government’s intimation 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 loses this immunity. IAMAI said that this immunity had to be “unfettered".

Further, IAMAI also contended that the term “unlawful" in Section 79(3)(b) conferred a wide discretion and could be easily abused. It said that Section 69A of the IT Act, which is used for blocking content, also “qualitatively" did the same thing, but were subject to certain reasonable restrictions.

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