Information Technology Act, 2000
Sections 2(1)(w) & 79 and Rule 3(2) of the Information Technology (Intermediary Guidelines) Rules, 2011—Intermediary—Exemption from liability—Complaint filed by second respondent against petitioner, who is an online e-commerce entity, provides its portal for sale of product to other sellers—FIR registered petitioner under Section 63 of the Copyright Act and Section 103/104 of the Trade Marks Act—Prayer to quash FIR—Plea of due diligence and exclusion of liability under Rule 3 of Guidelines and Section 79 of the Information Technology Act respectively—Obligation of the intermediary is to observe “due diligence” and “follow” the guidelines that may be prescribed by the Government in this behalf—Non-compliance of Guidelines/Rules have not been declared as an offence under the IT Act, while violation of Section 63 of the Copyright Act and Sections 103/104 of the Trade Marks Act are declared offences—Unless an active role is disclosed in the commission of the offences complained of, the intermediary, such as the present petitioner, would be entitled to claim protection under Section 79 of the IT Act—When compliance with “due diligence” requirement under Rule 3 of the I.T. Guidelines is evident, ex facie, the exclusion of liability under Section 79 of the I.T. Act would include exclusion from criminal prosecution—FIR quashed.
[Paras 20, 21, 25, 26 & 31]
Sections 2(1)(w) & 79 and Rule 3(2) of the Information Technology (Intermediary Guidelines) Rules, 2011—Intermediary—Safe harbour—Entitlement—Complaint filed by second respondent against the petitioner, who is an online e-commerce entity, provides its portal for sale of product to other sellers—FIR registered petitioner under Section 63 of the Copyright Act and Section 103/104 of the Trade Marks Act—Prayer to quash FIR—When the intermediaries have been granted the “safe harbour” qua civil liability, and when a higher standard of culpability is required for a criminal prosecution, such “safe harbour” should be available even in respect of criminal prosecution— Admittedly, the petitioner has complied with the Guidelines by putting it on their “Terms of Use” under the title of the “use of the platform” and “selling”, that the users cannot display what belongs to another person and over which they have no right; or which infringes upon or violates any third party’s rights, including but not limited to intellectual property rights, rights of privacy or rights of publicity; or promotes an illegal or unauthorized copy of another person’s copyrighted work; or infringes any patent, trademark, copyright, proprietary rights, third-party’s trade secrets, rights of publicity or privacy, or is fraudulent or involves the sale of counterfeit or stolen items; or which violates any law for the time being in force—“Due diligence” under Rule 3(2) of the I.T. Guidelines has been complied with—FIR quashed.
[Paras 25 & 26]