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122. Section 79(3)(b) has to be read down to mean
that the intermediary upon receiving actual
knowledge that a court order has been passed
asking it to expeditiously remove or disable access
to certain material must then fail to expeditiously
remove or disable access to that material. This is for
the reason that otherwise it would be very difficult
for intermediaries like Google, Facebook, etc. to act
when millions of requests are made and the
intermediary is then to judge as to which of such
requests are legitimate and which are not. We have
been informed that in other countries worldwide
this view has gained acceptance, Argentina being in
the forefront. Also, the Court order and/or the
notification by the appropriate Government or its
agency must strictly conform to the subject-matters
laid down in Article 19(2). Unlawful acts beyond
what is laid down in Article 19(2) obviously cannot
form any part of Section 79. With these two caveats,
we refrain from striking down Section 79(3)(b).
123. The learned Additional Solicitor General
informed us that it is a common practice worldwide
for intermediaries to have user agreements
containing what is stated in Rule 3(2). However,
Rule 3(4) needs to be read down in the same
manner as Section 79(3)(b). The knowledge spoken
of in the said sub-rule must only be through the
medium of a court order. Subject to this, the
Information Technology (Intermediaries Guidelines)
Rules, 2011 are valid.”
27.
We have referred to the aforesaid aspect as it has been
argued by Dr. Singhvi that the appellant is protected under
the said provision, even if the entire allegations are accepted.
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