Editor: I. Mallikarjuna Sharma Volume 11: 15-31 March 2015 No. 5-6

ISC-170 Shreya Singhal v. Union of India [IND-SC] (2015) 1 LAW
109. It will be noticed that Section 69A unlike
Section 66A is a narrowly drawn provision with
several safeguards. First and foremost, blocking
can only be resorted to where the Central
Government is satisfied that it is necessary so to
do. Secondly, such necessity is relatable only to
some of the subjects set out in Article 19(2).
Thirdly, reasons have to be recorded in writing in
such blocking order so that they may be assailed
in a writ petition under Article 226 of the
Constitution.
110. The Rules further provide for a hearing
before the Committee set up – which Committee
then looks into whether or not it is necessary to
block such information. It is only when the
Committee finds that there is such a necessity that
a blocking order is made. It is also clear from an
examination of Rule 8 that it is not merely the
intermediary who may be heard. If the “person”
i.e. the originator is identified he is also to be
heard before a blocking order is passed. Above
all, it is only after these procedural safeguards are
met that blocking orders are made and in case
there is a certified copy of a court order, only
then can such blocking order also be made. It is
only an intermediary who finally fails to comply
with the directions issued who is punishable
under sub-section (3) of Section 69A.
111. Merely because certain additional safeguards
such as those found in Section 95 and 96 CrPC
are not available does not make the Rules
constitutionally infirm. We are of the view that
the Rules are not constitutionally infirm in any
manner.
Section 79 and the Information Technology
(Intermediary Guidelines) Rules, 2011.
112. Section 79 belongs to Chapter XII of the Act
in which intermediaries are exempt from liability
if they fulfill the conditions of the Section.
Section 79 states:
“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.]”
113. Under the 2011 Rules, by Rule 3 an
intermediary has not only to publish the rules and
regulations, privacy policy and user agreement
for access or usage of the intermediary’s
computer resource but he has also to inform all
users of the various matters set out in Rule 3(2).
Since Rule 3(2) and 3(4) are important, they are
set out herein-below:-
Law Animated World, 15-31 March 2015
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