Neutral Citation Number: 2023:DHC:2806
In cases like these, the Court must appreciate that the matter is not
adversarial in nature with no right or wrong, and the directions/guidelines
are not such that there is an element of impossibility in its implementation,
thereby frustrating the entire exercise; the aim of this exercise is to ensure
that the victim of NCII dissemination does not have to undergo any further
distress. Any solution that is provided must be deliberate and proportional,
and should not be akin to a remedy that is worse than the disease. This Court
cannot burn the house to roast the pig [Refer to decision of Supreme Court
of United States in Reno v. American Civil Liberties Union, 521 US 244].
40.
As has been discussed above, intermediaries are granted protection
and are not amenable to the principle of secondary liability on account of
Section 79 of the IT Act. The principle of secondary liability denotes the
legal responsibility that must be discharged by an entity for the actions of
another. Section 79 exempts an intermediary from incurring this liability,
and the rationale behind the same is that the fundamental rights of the users
and the free flow of information on the internet must remain intact.
However, once an intermediary, upon receiving actual knowledge, or on
being notified by the appropriate Government or its agency that an unlawful
act is being committed by way of any information, data or communication
link residing in or connected to a computer resource controlled by the
intermediary, fails to remove or disable access to the said material, then
Section 79(1) shall not apply. It is only under these exceptional
circumstances that the principle of secondary liability is activated, and,
despite NCII abuse being perpetuated by a third-party user and causing harm
to a stranger, the intermediary becomes liable for the conduct of the thirdparty user. Further, the IT Rules also devise a mechanism for the user/victim
to directly approach intermediaries for removal of NCII content without
Signature Not Verified
Digitally Signed
By:SHAZAAD ZAKIR
Signing Date:26.04.2023
17:19:50
W.P.(CRL) 1505/2021
Page 64 of 88
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