beyond section 79

“Beyond Section 79”

Apar Gupta Partner

Consilience 2010Internet intermediary liability in India

1. Intermediary Litigation Trends

2. Safe Harbor Provision(s)

3. Courts will go ‘beyond Section 79’

1974

FOREIGN EXCHANGE REGULATION ACT

60%

1977

Exit India

Identifiable Patterns

ONE

legal uncertainty risks

TWO

compliance costs exceeds market benefits

THREE

compliance conflicts with the central ethos

Exit India

Are we promoting the same legal climate ?

1. Intermediary Litigation Trends

A. Intellectual Property Litigation

Trademarks

Exit

Copyright

B. Sensitivity Litigation

Pornography

Defamation

Community and Leaders

2. Uncertainty on Section 79

a success

an arrest

an amendment

“The combined interpretation of Sections 79 and 81 of the amended IT Act has been discussed on SpicyIP in quite a few posts with the comments equally providing a lot of food for thought. Some of us argue that the proviso to Section 81 has the effect of depriving an ISP of the exemption to liability available under Section 79 and a few others are of the opinion that the proviso only clarifies that rights available to any party under the Copyright Act will not be nullified by any provision of the IT Act. It will be interesting to watch how the Court interprets these provisions.”

J. Sai Deepak

An Amendment (substiution)

I think a great many practical absurdities will result by applying legal logic strictly. Which is why I believe that we (or at least I) need to think through the issue of primary liability of intermediaries more carefully.

Pranesh Prakash

indeterminacy

legal uncertainty risks

2010 instead of 2004

no bar to suits/criminal cases

shotgun pleadingscivil cases

civil cases

ORDER 39 Rules 1 and 2

more 3 years non-bailable section 77B

criminal cases

apply for bail section 67 IT Act, 292 and 294 IPC

criminal cases

passport will be impounded conditions for grant of bail

criminal cases

personal attendance conditions for grant of bail

criminal cases

trial

evidence

dismissal of Suit Order 7, Rule 11

civil cases

quashing of FIR / Charges Section 482 of the Cr.Pc.

criminal cases

equitable relief in the interim

3. Courts will go ‘beyond Section 79’

indeterminacy

beyond section 79

1. exemptions will be strictly construed

2. inherent passivity

3. compliance alacrity

Section 79 (2)(a), (b) and 3(a)

inherent passivity

Section 79 (2)(c) and 3(b)compliance alacrity

4. bad actors will be punished

I admit

It is still hazy

but some issues are clear

ONE

legal uncertainty risks

uncertainty will have chilling effects

VC funding may be hit

the dangers of litigation

TWO

compliance costs exceeds market benefits

THREE

compliance conflicts with the central ethos

exit india

thank you

apar@accendolaw.com