liability of network service providers intermediaries, for the offence of cyber pornography
Liability of Network Service Providers / Intermediaries for the Offence of Cyber Pornography
Explanation:
Network service providers (NSPs) or intermediaries, such as ISPs, social media platforms, or websites, play a critical role in transmitting or storing information online. In India, their liability is primarily governed under Section 79 of the IT Act, 2000, which provides “safe harbour” protection. This means intermediaries are generally not liable for third-party content hosted on their platforms, provided they follow due diligence and act upon receiving knowledge of illegal content.
Key Points:
Safe Harbour Protection:
Intermediaries are protected if they do not initiate, select, or modify content.
They must disable or remove offensive content once they receive actual knowledge or notification from a competent authority or victim.
Due Diligence Requirement:
Intermediaries must implement policies, terms of service, and complaint mechanisms to prevent circulation of prohibited content, including cyber pornography.
Offence of Cyber Pornography:
Posting, sharing, or distributing obscene material online can be penalized under Section 67 of the IT Act and Sections 292/293 IPC.
If the intermediary fails to remove such content after notice, they lose safe harbour protection and can be held liable.
Relevant Case Law:
1. Shreya Singhal v. Union of India (2015) [Supreme Court of India]
Facts: The petitioner challenged Section 66A of the IT Act and rules governing intermediaries’ liability.
Held: The SC upheld Section 79, stating that intermediaries are not liable for third-party content unless they know about the offensive content and fail to act promptly.
Significance: Established that NSPs must act on notice to avoid liability, including for cyber pornography.
2. Avnish Bajaj v. State (Delhi High Court, 2005)
Facts: The founder of an e-commerce website was accused of hosting obscene images.
Held: The court clarified that if the intermediary does not control content and removes it upon notice, they are not criminally liable.
Significance: Reinforced the safe harbour principle for intermediaries.
✅ Conclusion:
Network service providers or intermediaries are generally not liable for cyber pornography unless they fail to remove such content after receiving notice. They must follow due diligence and maintain complaint mechanisms to protect themselves from legal consequence
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