CHAPTER XI A & CHAPTER XII

CHAPTER XI A: EXAMINER OF ELECTRONIC EVIDENCE

Section 78A: Central Government to notify Examiner of electronic evidence

The Central Government may, for the purposes of providing expert opinion on electronic form evidence before any court or other authority notify any Department, Body or Agency of the Central or the State Government or any suitably qualified expert as an Examiner of Electronic Evidence. The procedures and conditions for the notification of such examiner shall be as prescribed by the Central Government.

Explanation: For the purposes of this section “Electronic Evidence” means any information of probative value that is either stored or transmitted in electronic form and includes computer evidence, digital audio, digital video, cell phones, digital fax machines etc

The new section 78A, as suggested by Dr. Vishwanathan Follow-up committee, has been incorporated with minor changes.

This is a good provision to be incorporated.


CHAPTER XII: LIMITATION ON THE LIABILITY OF INTERMEDIARY

79. Exemption from liability of intermediary in certain cases

(1) An “Intermediary” shall not be liable under any law for the time being in force, for any third party information, data, or link made available by him, except when the intermediary has conspired or abetted in the commission of the unlawful act.

(2) The provisions of sub-section (1) shall apply in circumstances including but not limited to where:

(a) Intermediary’s function is limited to giving access to a communication network over which information made available by third parties is transmitted or temporarily stored; or The intermediary: (i) does not initiate the transmission, (ii) does not select the receiver of the transmission, and (iii) does not select or modify the information contained in the transmission.

(3) The provisions of sub-section (1) shall not apply if, upon receiving actual knowledge of, or being notified by the Central Government or its agency that any information, data or link residing on a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails expeditiously to remove or disable access to that material on that resource.


Explanation: For the purpose of this section:-

(a) Term ‘Intermediary’ has been defined in Chapter I, Section 2(w).

(b) ‘Intermediary’ shall include, but not limited to, telecom service providers, network service providers, Internet service providers, web-hosting service providers, search engines including on-line auction sites, online-market places, and Cyber Cafes.

(c) ‘Third Party Information’ means any information dealt with by an intermediary in his capacity as an intermediary.

This section is revised in lines with the EU Directives on E-Commerce 2000/31/EC issued on June 8th 2000. The objective of this Directive is to create a legal framework to ensure the free movement of information between Member States and not to harmonise the field of criminal law as such. This Directive strikes a balance between the different interests at stake and establishes principles upon which industry agreements and standards can be based. The exemptions from liability established in this Directive cover only cases where the activity of the information society service provider is limited to the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored. A service provider can benefit from the exemptions for ‘mere conduit’ and for ‘caching’ when he is in no way involved with the information transmitted; this requires among other things that he does not modify the information that he transmits; this requirement does not cover manipulations of a technical nature which take place in the course of the transmission as they do not alter the integrity of the information contained in the transmission. A service provider who deliberately collaborates with one of the recipients of his service in order to undertake illegal acts goes beyond the activities of ‘mere conduit’ or ‘caching’ and as a result cannot benefit from the liability exemptions established for these activities.

An analysis of the provisions of the EU Directives shows that nowhere it recommended “harmonisation’ of criminal laws of various countries and it is very clear while establishing liability of intermediaries. The Directives have made intermediaries liable for their involvement in dealing with offensive material. An important aspect of EU Directives is that they maintain a “balance’ between various conflicting interests and no primacy or blanket protection is available to the intermediaries. The introduction of the elements of “conspiracy or abetment” has diluted the criminal liability of the intermediaries to a great extent and its ramifications will be felt in the distant future. The socio economic conditions of India are different and the law must be formulated keeping in mind these ground realities.

Section 79(3) has, however, preserved the requirements of “due diligence” and even if an intermediary has not conspired or abetted the posting or transmission of an offensive material, he/it can be held liable if he/it had the “knowledge’ about such offensive material and failed to remove the same. Thus, innocent violations have been excluded from the penal sanctions.