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Author:Advocate Rachit Gupta

Internet Service Provider (ISP) is an entity that connects people to the Internet and offers additional services such as website development and hosting. An ISP has the necessary equipment and telecommunications line access to serve as a point of presence on the Internet in the geographic area served. To deliver content online, multiple intermediaries are involved in the process. A person starts by getting an account with a hosting service provider and uploading web pages to their server, which is a large hard disk accessible online. The uploaded pages are instantly available to anyone with an internet connection. An access provider provides access to the internet, and the content is transported through a network provider's infrastructure to the end user. ISPs play an instrumental role in transmitting or disseminating third-party content, but they do not initiate or participate in the decision to disseminate specific material.

The two main services provided by ISPs are:

Website development and hosting: It is performed by an entity that provides space and management for individual or business Web sites; 

Access providing: It is performed by an entity that arranges for an individual or organization to have Internet access.

In India the provisions relating to the ISPs are specifically legislated in the IT Act, 2000. According to section 2(w) of the Act, "Intermediary, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-marketplaces and cyber cafes. "

Liabilities of ISP under Indian Law

ISPs can face liability in various forms under different laws, which can be criminal or civil in nature. Defining the liability of ISPs in a single place is impractical, as is amending all laws to limit their liability. The liability of ISPs is first determined by the relevant statute, and then filtered through section 79 of the IT Act. For example, if an ISP is accused of distributing pirated music, their liability is first determined under the Copyright Act, 1957, and if found liable, it is then tested against section 79 of the IT Act.

The Copyright Act, 1957 was created before the existence of the Internet and does not specifically address ISP liability. However, some provisions in the Act can be interpreted to affect the liability of ISPs.

According to Section 51(a)(ii) of the Act, copyright in a work shall be deemed to be infringed, When any person, without a licence granted by the owner of the Copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act … permits for profit of any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright. 

Section 51(a)(ii) of the Copyright Act can be divided into two parts: "permits for profit" and "any place."

ISPs allow the storage and transmission of user-generated material on their servers and telecom facilities, which are located on their business premises hence they would readily come under the expression “any place” and can be held liable for infringing activities of third parties if they store or transmit the material for profit. The requirement of "permits for profit" means the ISPs should be making a financial benefit from the infringing activities, which is often fulfilled by charging for their services or through indirect profit such as advertisements. So, these two requirements are fulfilled by ISPs for most of their activities.

Exemptions from Liabilities:

Section 79 of the Information Technology Act limits the liability of ISPs under certain circumstances:

"Exemption from liability of intermediary in certain cases.–

(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.

(2) The provisions of sub-section (1) shall apply if–

(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or

(b) the intermediary does not–

(i) initiate the transmission,

(ii) select the receiver of the transmission, and

(iii) select or modify the information contained in the transmission;

(c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.

(3) The provisions of sub-section (1) shall not apply if–

(a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act;

(b) 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.

Explanation.–For the purposes of this section, the expression ―third party information means any information dealt with by an intermediary in his capacity as an intermediary."

Section 79 of the IT Act provides these two major grounds under which an ISP can seek exemption from liability:

l  Lack of Knowledge:

The knowledge of the illegal contents is very important to hold the ISP liable under Section 79 of the IT Act, 2000. The ISP can avoid liability if it can be demonstrated that it was unaware of the content stored on and passing through its servers. However, if the ISP is notified that infringing material is being stored or passing through servers, it must take appropriate action to remove or disable that material; otherwise, it may be held liable.

l  Due diligence:

Section 79 of the Act requires ISPs to exercise "due diligence" to avoid liability for infringing material passing through their servers. This requires actual knowledge or breach of duty of care. The extent of the requirement is a complex issue, as full monitoring and judging the legality of all files is impossible. ISPs are not liable for passing infringing material through their servers unless they are made aware of it. If an ISP encounters particularly suspicious circumstances, it may be subject to "due diligence," or a duty of care to further investigate whether the material he hosts or refers to is unlawful and, if so, to block access.

References:

https://blog.ipleaders.in/liability-internet-service-provider/

https://egyankosh.ac.in/bitstream/123456789/7674/1/Unit-13.pdf