Section 79 IT Act: Exemption from liability of intermediary in certain cases
Information Technology Act, 2000
Section 79 IT Act at a Glance
Section 79 IT Act exempts an intermediary from liability under any law for third party information, data, or communication links it hosts or makes available, subject to conditions on limited role, due diligence, and removing unlawful material.
Section 79 IT Act Bare Act Text
79. Exemption from liability of intermediary in certain cases.
(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.
(2) The provisions of sub-section (1) shall apply if—
(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or
(b) the intermediary does not—
(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the transmission;
(c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.
(3) The provisions of sub-section (1) shall not apply if—
(a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act;
(b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.
Explanation.—For the purposes of this section, the expression “third party information” means any information dealt with by an intermediary in his capacity as an intermediary.
Amendments to this section
- Subs. by s. 40, ibid., for Chapter XII (w.e.f. 27-10-2009).
Section 79 IT Act in Simple Words
Section 79 IT Act gives an intermediary (a term defined in Section 2 IT Act) a statutory exemption from legal liability for third party content. Under Section 79(1) IT Act, overriding any other law in force, an intermediary is not liable for any third party information, data, or communication link made available or hosted by the intermediary, as long as the conditions in Section 79(2) IT Act are met and none of the disqualifications in Section 79(3) IT Act apply.
Section 79(2) IT Act sets the conditions for this defence to apply. Under clause (a), the intermediary's function is limited to providing access to a communication system over which information made available by third parties is transmitted, temporarily stored, or hosted; or under clause (b), the intermediary does not initiate the transmission, select the receiver of the transmission, and select or modify the information contained in the transmission. Under clause (c), the intermediary observes due diligence (required care) while performing duties under the IT Act and also follows any other guidelines that the Central Government may prescribe.
Section 79(3) IT Act lists two situations in which the exemption under Section 79(1) IT Act is lost. First, under Section 79(3)(a) IT Act, the exemption does not apply if the intermediary has conspired, abetted (helped or encouraged), aided, or induced, whether by threats, promise, or otherwise, the commission of the unlawful act. Second, under Section 79(3)(b) IT Act, the exemption does not apply if, after receiving actual knowledge or being notified by the appropriate Government or its agency that any information, data, or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously (promptly) remove or disable access to that material without vitiating (destroying or spoiling) the evidence in any manner.
The Explanation to Section 79 IT Act defines "third party information" for Section 79 IT Act as any information dealt with by an intermediary in the capacity of an intermediary. The due diligence an intermediary must currently observe is set out in the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. Act 10 of 2009 substituted Chapter XII, which contains Section 79 IT Act, with effect from 27 October 2009.
When Section 79 IT Act Applies
- The information, data, or communication link hosted or made available must be third party information dealt with by the intermediary in the capacity of an intermediary.
- Either the intermediary's function is limited to providing access to a communication system for transmitting, temporarily storing, or hosting third party information, or the intermediary does not initiate the transmission, select the receiver, and select or modify the transmitted information.
- The intermediary observes due diligence under the IT Act and follows other guidelines prescribed by the Central Government.
- The intermediary has not conspired, abetted, aided, or induced the commission of the unlawful act.
- Upon receiving actual knowledge or notification from the appropriate Government or its agency of material on a computer resource controlled by the intermediary being used for an unlawful act, the intermediary expeditiously removes or disables access to that material without spoiling the evidence.
Example of Section 79 IT Act
When Section 79 IT Act Does Not Apply
- Where the information is not third party information dealt with by the intermediary in the capacity of an intermediary.
- Where the intermediary fails to satisfy the limited function or transmission neutrality conditions and the due diligence or Central Government guideline requirements in Section 79(2) IT Act.
- Where the intermediary has conspired, abetted, aided, or induced, by threats, promise, or otherwise, the commission of the unlawful act under Section 79(3)(a) IT Act.
- Where, upon receiving actual knowledge or notification from the appropriate Government or its agency of material on a computer resource controlled by the intermediary being used to commit an unlawful act, the intermediary fails to expeditiously remove or disable access without spoiling the evidence under Section 79(3)(b) IT Act.
FAQs on Section 79 IT Act
What is Section 79 IT Act?▼
Section 79 IT Act protects an intermediary from liability under any law in force for third party information, data, or communication links made available or hosted by the intermediary. This protection applies only when the intermediary meets the conditions in Section 79(2) IT Act and does not trigger the disqualifications in Section 79(3) IT Act.
Does an intermediary lose protection under Section 79 IT Act if the intermediary aids an unlawful act?▼
Yes. Under Section 79(3)(a) IT Act, the exemption from liability does not apply if the intermediary has conspired, abetted, aided, or induced, whether by threats, promise, or otherwise, the commission of the unlawful act.
What must an intermediary do under Section 79(3)(b) IT Act when notified by the Government about unlawful material?▼
Expeditiously remove or disable access to that material. Under Section 79(3)(b) IT Act, when the intermediary receives actual knowledge or notification from the appropriate Government or its agency about material on a computer resource controlled by the intermediary being used to commit an unlawful act, the intermediary must promptly remove or disable access without spoiling the evidence.
What does "actual knowledge" mean in Section 79(3)(b) IT Act?▼
Knowledge through a court order or a notification by the appropriate Government or its agency. In Shreya Singhal v. Union of India (2015), the Supreme Court read Section 79(3)(b) IT Act this way, and held that the unlawful acts concerned must relate to the grounds of reasonable restriction in Article 19(2) of the Constitution.
What does 'third party information' mean in Section 79 IT Act?▼
Information handled as an intermediary. The Explanation to Section 79 IT Act defines 'third party information' as any information dealt with by an intermediary in the capacity of an intermediary.
Does Section 79 IT Act protect an intermediary that modifies transmitted information?▼
No, unless clause (a) of Section 79(2) IT Act applies. Under Section 79(2)(b) IT Act, the intermediary qualifies by not initiating the transmission, not selecting the receiver, and not selecting or modifying the information contained in the transmission, alongside observing due diligence and prescribed guidelines under Section 79(2)(c) IT Act.
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Sources: Bare Act Text, Information Technology Act, 2000 ·