Section 79 of IT Act - Is It a Defence or a Liability?
cyber general beginner concept_confusionI was revising for my Cyber Law exam and I'm having a major crisis - Section 79 of the IT Act seems to be completely against itself! Alright, so it says that an intermediary can't be held liable for 3rd party content, but only if they didn't know or have reason to know about it and didn't host it themselves. BUT then it goes on to say that they'll still be liable if they don't observe due diligence while discharging their duties under the Act! What does 'due diligence' even mean here? Is it a strict liability? Can someone please explain this to me?!
Is it just me or does anyone else find this section as confusing as I do?
2 Comments
Section 79 of the IT Act provides a safe harbour for intermediaries, like social media platforms, if they act in good faith. It's a defence, but with a rider - they mustn't know the facts or circumstances that make the hosted content unlawful. In short, if they act in good faith, no liability sticks to them. But don't take this for granted; courts might scrutinize your intentions very closely.
Bhai, I think you're misleading. Section 79 of IT Act isn't a straight-cut defence or liability. It's an intermediate ground. It provides safe harbour to intermediaries, but liability isn't absolved entirely. They still have to ensure due diligence and remove/desist from hosting inappropriate content. It's a conditional defence, more like 'qualified protection'. We should not misinterpret this provision, else it could lead to unintended consequences.