Apar GuptaInternet Intermediary Liability is no longer the dark horse in the field of technology law. With the increasing controversy around it resulting in the arrest of a CEO of a multinational company, [The Bazee.com case] and in light of the recent amendments to the IT Act, the topic has received much attention, with increasing apprehension from several quarters. Given the contemporary relevance of this topic therefore, it has been chosen as the theme of this year’s edition of Consilience, an annual conference on Technology organized by the Law and Technology Committee of National Law School of India University. The only one of its kind, the conference has, in the past brought together notable legal luminaries like Montek Singh Aluhwalia (Deputy Chairman, Planning Commission), Mr. R. Ramraj (MD and CEO, Sify Technologies Ltd.,), Mr. Richard Stallman (Founder – GNU Project), Hon’ble Justice Yatindra Singh (Allahabad High Court, India), and have discussed issues relating to “Legal Aspects of Business Process Outsourcing”, and “Free and Open Source Software”. This year’s edition, held on 29th and 30th May 2010, is sponsored by the Centre for Internet and Society and Google, will see the attendance of several notable personalities from every field concerned with the topic, notably Hon’ble Justice Ravindra Bhatt, (Delhi High Court, India) for the judiciary, Dr. Gulshan Rai, (Director General Indian Computer Emergency Response Team) and Mr. G. R. Raghavender, (Registrar of Copyrights and Under Secretary, MHRD) from the Government, Mr. Amitabh Lal Das (General Counsel, Yahoo! India) and Rahul Ajatshatru (Counsel, T-Series) to present the industry front, and Prof. Gavin Sutter (Lecturer in Law, QMUL, University of London) Wendy Seltzer, (Fellow, Berkman Center, Harvard University) from renowned academic circles. The keynote address will be delivered by Hon’ble Justice Muralidhar.
The theme of the conference is one which has far reaching implications. The main basis of intermediary liability is the perceived difficulty in bringing the real culprits to justice and also the possibility of the real culprits being unable to pay the damages which will, inevitably be imposed upon them if the cases ever came to court. Hence, with intermediaries having deep enough pockets to pay compensatory costs, the idea of holding them responsible for illegal third party content, access to which is facilitated by such intermediaries has emerged. However, whether imposing such liability has a legal grounding or not, and whether the justification for it withstands the tests of reasonability and other jurisprudential principles remains a matter of uncertainty. Independent of a pure legal analysis, the position of intermediary liability in India today is as stated in S 79 of the IT Act, which provides selective immunity. If intermediaries do act as mandated in the statute, they qualify for immunity. But the law on the subject still remains unclear, with the law preferring to take refuge behind the usage of vague and indeterminate terms like ‘knowledge’, ‘extent of control’, ‘due diligence’ etc which prove to be a veritable minefield for Courts to play with. Usage of such terms, especially when the spectre of liability could involve damages of huge sums of money, results in the inevitable consequence of more uncertainty, with predictable negative consequences. It is not certain whether or not this confusion can be cleared since, as most legal scholars can testify, some areas of law are dependent upon such terms. In a lot of situations, they are faced with the simple impossibility of defining liability with more specificity.
The internet being a medium of high social value, the impact that the current law will have on the costs of using the internet and the entire industry has to be accounted for. Intermediary Liability will affect almost everyone who uses the internet, yet there is surprisingly little academic literature on the subject outside of the reports released by the government itself. Consilience, by bringing together notable legal scholars, government representatives, advocates, industry representatives and Indian academicians, will be a forum where diverse viewpoints from across jurisdiction are expressed and debated upon. By a comparative study of the law in different countries, the conference aims at a consensus that will address the lacunae in Indian law with little scope for indeterminacy. For more information kindly visit the conference website by clicking here.
