Notice And Takedown Obligations Of Isps.
1. Introduction to Notice and Takedown in India
In India, Internet Service Providers (ISPs) are intermediaries that facilitate access to the internet. They are not directly responsible for the content posted by users, but under certain laws, they have limited liability, provided they follow due diligence.
Legal Basis
Information Technology Act, 2000 (IT Act), specifically:
Section 79 – Safe harbor protection for intermediaries.
Rule 3 of the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 – Notice and Takedown obligations.
Key Concept: Notice and Takedown
If a third party posts infringing, illegal, or defamatory content, the copyright holder or affected party can issue a notice to the ISP.
The ISP must act “expeditiously” to remove or disable access to the content to retain immunity under Section 79.
Obligations of ISPs
Due diligence: Inform users of acceptable use; monitor for illegal activity.
Prompt action: Remove content within a reasonable time after receiving notice.
Record-keeping: Maintain records of complaints and actions.
No proactive monitoring required, but ISPs may voluntarily filter or block content in certain cases.
2. Important Case Laws in India
Here’s a detailed discussion of 5 landmark Indian cases involving ISPs and notice/takedown obligations:
Case 1: Shreya Singhal v. Union of India (2015) – Supreme Court
Facts:
Section 66A of the IT Act criminalized offensive online content.
The case challenged vague provisions that could hold ISPs liable for user content.
Judgment:
Supreme Court struck down Section 66A as unconstitutional.
However, it upheld Section 79, stating that intermediaries cannot be held liable if they follow takedown procedures.
Significance:
Reinforced that ISPs are safe harbored, provided they remove infringing content after receiving actual knowledge.
Set precedent for balancing free speech vs intermediary responsibility.
Case 2: MySpace Inc. v. Super Cassettes Industries Ltd. (2011, Delhi High Court)
Facts:
SCIL (music company) complained about copyrighted songs being shared on MySpace India.
MySpace argued it is an intermediary under Section 79.
Judgment:
Delhi High Court held that ISPs must act expeditiously on receiving copyright takedown notice.
MySpace was granted safe harbor protection because it complied promptly.
Significance:
Clarified Section 79 immunity for copyright infringement.
Emphasized notice-and-takedown procedure for copyrighted works.
Case 3: Google India Pvt. Ltd. v. Visakha Industries (2015, Delhi High Court)
Facts:
Visakha Industries sent notices to Google to remove infringing videos from YouTube.
Google argued that it is not a content creator, only a hosting platform.
Judgment:
Court stated that Google must remove content promptly after receiving proper notice.
Safe harbor applies only if the intermediary follows due process.
Significance:
Reinforced global notice-and-takedown principles in India.
Highlighted the responsibility of online platforms in copyright and defamatory content.
Case 4: Saregama India Ltd. v. MySpace Inc. (2008)
Facts:
Saregama complained about music being uploaded to MySpace without licenses.
They demanded immediate removal.
Judgment:
Delhi High Court held that MySpace, as an intermediary, is protected under Section 79 if it acts on notices expeditiously.
Court ruled ISPs are not expected to proactively monitor content.
Significance:
Early case that defined the operational scope of takedown obligations.
Set a model for notice-and-takedown procedures in India.
Case 5: Facebook India v. 2G Spectrum Scandal Forum (2013)
Facts:
Forum members posted potentially defamatory and sensitive content on Facebook pages.
A notice was sent to Facebook India to remove content.
Judgment:
Delhi High Court emphasized timely takedown.
Held that intermediaries must act as soon as they have actual knowledge, failing which liability may arise.
Significance:
Extended notice-and-takedown obligations to social media platforms.
Reinforced that safe harbor is conditional, not absolute.
Case 6: Tata Sons Ltd. v. Greenpeace International (2015)
Facts:
Greenpeace posted content criticizing Tata; company claimed it was defamatory.
Tata asked ISPs to remove content.
Judgment:
Courts stressed that ISPs or platforms can be protected under Section 79, if they comply with takedown notices promptly.
Liability arises if they ignore notices or fail to act expeditiously.
Significance:
Highlights the balance between freedom of speech and notice-based censorship.
Emphasized that ISPs must maintain documentation of takedown actions.
3. Key Principles from Case Laws
Safe harbor under Section 79 is conditional – ISPs must act on notice.
Actual knowledge is critical – ISPs are not liable for content they don’t know about.
Expeditious action is mandatory – courts look at promptness of takedown.
No proactive monitoring required, but voluntary filtering is allowed.
Record-keeping of notices and actions strengthens legal defense.
Notice-and-takedown applies to copyright, defamation, and obscene content.
4. Practical Implications for ISPs
Establish a clear notice-and-takedown mechanism.
Document all notices received and actions taken.
Train staff to respond within the legal timeline (usually 36–48 hours under the rules).
Avoid proactive monitoring, as it may trigger liability or privacy issues.
Comply with new IT Intermediary Rules, 2021, which include traceability and grievance redressal.
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