According to the Organization for Economic Cooperation and Development, online intermediaries can be defined as companies or organizations which "bring together or facilitate transactions between third parties on the internet. They give access to, host, transmit and index content, products and services originated by third parties on the internet or provide internet-based services to third parties."1
The intermediary ecosystem in India is in a Stage of Evolution. The major players in India that engage in online intermediary system are familiar global giants given the fact that the internet access is concentrated in urban areas and among people who are familiar with the digital technology.
However, the expansion of global connectivity via internet gives rise to three major concerns that are - to counter terrorism, counter hate speech and ensure protection to minors.
The role of online intermediaries can never be undervalued. They have come a long way in providing employment and entrepreneurship opportunities to people by lowering physical and social barriers. By facilitating exchange of ideas, they have become an advocate of free speech like no one else.
It is pertinent to mention that most of the intermediaries have explicit code of conduct and internal policies to counter possible illegal activities. However, it has been found that these policies are insufficient to deal with the issues. These regulations vis-à-vis internal policies are supplemented by various rules and provisions enacted by the government. Also, in most jurisdictions, there is a liability clause to ensure the compliance to community standards by these intermediaries.
ROLE OF ONLINE INTERMEDIARIES
Various roles played by the intermediaries are:2
a. Develop and maintain infrastructure
b. Collect and dissimilate information that has been gathered
c. Facilitation of communication and exchange of information
d. Improve market processes
e. To maintain an account of requirements of consumers
However, there are a variety of problems which the intermediary might have to face while carrying out its role. For example, in an effort to provide personalized services to its clients, the intermediary has to keep in mind that it does not cross the line of infringement of Right to Privacy of its consumers and to provide protection to their personal data.
EVOLVING RESPONSIBILITIES OF ONLINE INTERMEDIARIES
Intermediaries are generally not made responsible for the conduct of third party as far as the issue of copyright infringement is concerned. However, there is an exception to this principle. Intermediary shall attract liability in a case where it had knowledge or control over the content that was a result of copyright infringement.
New issues that have arisen with respect to the role of online intermediaries are:
1. New kinds of intermediaries whose role has increased in recent times such as social networks require a distinct safe harbours for themselves
2. Safeguards need to be put in place to ensure protection of fundamental rights of individuals such as freedom of speech, right to privacy, protection to life etc.
3. There is a need to address complex issues with assent of all the stakeholders involved.
4. With the global distribution of data and other information, it has become imperative that global rules vis-à-vis liability are periodically reviewed to add strength to them.
EXECUTIVE AND LEGAL FRAMEWORK VIS-À- VIS ONLINE INTERMEDIARIES IN INDIA
It is imperative to mention that the Indian law has left no stone unturned to match the pace of the vastly growing cyberspace in India. The online intermediaries have been subjected to both civil liability and criminal liability through various regulations and provisions. The significant legislations which regulate the role of intermediaries in India are the Information Technology Act, 2000 and the Copyright Act of 1957. The other ancillary legislations that may be applicable are Indian Penal Code of 1860, Law of Torts, Protection of Children from Sexual Offences Act, 2012 and Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989.
The major problem in the lack of control over online intermediaries is that they cannot be subjected to domestic regulations due to their transnational nature. The other associated problem is that these online intermediaries are outside the physical control of the government as they are connected to wide public domain. The Internet Service Providers are subjected to the licensing system of India. However, this is not the case with the online intermediaries.
ROLE OF INFORMATION TECHNOLOGY ACT, 2000
One of the main purposes of the enforcement of this Act was to give legitimacy to e-commerce. The other purpose was to give effect to the United Nations Commission on International Trade Laws' Model Law on E-commerce3.
It is pertinent to mention that the IT Act was amended in 2008, to broaden the scope of liability of the intermediaries. The intermediary loses protection of the Act if4:
1. It initiates the transmission,
2. selects the receiver of the transmission, and
3. selects or modifies the information.
For instance, an intermediary might automatically inject advertisements in all transmissions, but that modification does not go to the heart of the transmission, or make it responsible for the transmission in any way. Similarly, the intermediary may have a code of conduct, and may regulate transmissions with regard to explicit language (which is easy to judge) but would not have the capability to make judgments regarding fair use of copyrighted materials.
Further, the government has the power to block the access to any website or public access of any information through any computer resource u/s 69A of Information Technology Act, 2000. This section mandates the intermediaries to assist the government to intercept, monitor and encrypt information stored in computer or computer sources. If the intermediaries fail to comply with this provision, they can be imprisoned for a period up to seven years.
Interception orders are communicated by the nodal officer who authenticates the same and conveys the same to the designated person within the intermediary. Under Regulation 23(2) of the Information Technology (Procedures and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009, the intermediaries are required to burn the records within two months of discontinuance of monitoring unless they are required for the purposes of ongoing investigation.
ROLE OF COPYRIGHT ACT OF 1957
Under the Act, the safeguards provided to the intermediaries are subjected to Section 8 of the same legislation. According to section 81, no person shall be barred from exercising his right under the Copyright Act of 1957.
A safe harbor has been provided under Section 52 of the Act which states that "transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public"5 shall not amount to copyright infringement under the Act.
Also, incidental storing of data in order to provide online access shall also not constitute copyright infringement unless the intermediary has reasonable grounds to believe that such storage is a result of copyright infringement.
In Super Cassettes Industries Ltd v. Myspace Inc,6, the court held that the presence of algorithm-generated advertisements is an indication of knowledge of infringement.
Copyright Act makes the immunity granted to the intermediaries, conditional. Section 52(1)( c ) requires the intermediary to freeze access to a material if a complaint has been made alleging it to be a result of copyright infringement. However, this access may be restored after a period of twenty-one days unless a court order has been received making directions to the contrary.
Thereby, it is pertinent to mention that the legal framework which governs functioning of intermediaries in India has to be in compliance with the provisions of the Constitution of India, 1950. The rules, regulations and the restrictions should clearly respect the freedom of speech enshrined under Article 19 of the Constitution of India.
In today's time, the internet commerce heavily relies upon online intermediaries. Thus, it has become imperative that a strict watch is kept on the inflow and outflow of information through these intermediaries. Online intermediaries allow the consumers to act both as seller and the buyer. This has enabled the consumers to have an alternate source of income.
Distance between online sellers and the buyers has reduced significantly as the online intermediaries make available tremendous amount of information to the consumers from which they can pick their convenient options. Online intermediaries have led to a world that is full of transparency, product variety and time efficiency and play a key role in enhancing democratic goals such as exchange of thoughts and promoting the cause of freedom of speech. The online intermediaries have started to affect day-to-day lifestyles of a common man by creating vast employment opportunities thereby contributing to and boosting the economy.
1 The Economic and Social Role Of Internet Intermediaries, accessed at https://www.oecd.org/internet/ieconomy/44949023.pdf
2 Value creation and new intermediaries on Internet. An exploratory analysis of the online news industry and the web content aggregators (2007), Ana Rosa del Águila-Obraa, Antonio Padilla-Meléndeza, and Christian Serarols-Tarrésb, based on Anderson & Anderson, 2002; Grover & Teng, 2001; Sarkar, Butler & Steinfield, 1998.
3 G.A. Res. 51/162, Model Law on Electronic Commerce, U.N. Doc. A/ RES/51/162 (Jan. 30, 1997).
4 https://cis-india.org/internet-governance/publications/it-act/short-noteon- amendment-act-2008
5 Section 52 of Copyright Act of 1957
6 M.I.P.R. 2011 (2) 303 (India
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