Case note on latest judgments on Section 79 of Information Technology Act, 2000

1. Amazon Seller Services Pvt. Ltd. vs. Indusviva Health Sciences Pvt. Ltd.
MANU/KA/6581/2019
a) The appellant did not dispute products being sold on its platform neither
did it dispute having received email communication and legal notice but it
takes a stand that such communication was not knowledge attributable to
it to stop sale.
It was held that the appellant cannot remain oblivious of the request and
no sooner it had received the request it should have stopped trading the
products. (Para 8)
b) While citing the case of Myspace Vs. Super Cassettes Industries Ltd. it was
observed that if the host has specific knowledge that the transmitted
content is unlawful, then no safe harbour can be urged. (Para 9)
c) While citing the case of Amway Enterprises Pvt. Ltd. Vs. 1 MG Technologies
Ltd. it was observed that due diligence requirement has to be met for the
intermediaries to continue enjoying their status and non compliance
would render them out of the ambit of safe harbour. (Para 10)
d) It was further observed that if the appellant issues bill for the products in
its name besides providing logistic support etc. it cannot claim protection
under Section 79. (Para 11)

2. Swami Ramdev Vs. Facebook (Delhi High Court)

CS (OS) 27/2019
a) That if any information, data is residing in or connected to a computer
network, i.e. a computer resource, the intermediary has to remove or
disable access to the said information or data on that resource. Thus, if an
information or data has been uploaded on a computer network, the platforms
would be bound to remove it and disable it from that computer network
completely. (Para 78)
b) If any information or data has been uploaded from India on to a computer
resource which has resulted in residing of the data on the network and
global dissemination of the said information or data, then the platforms
are liable to remove or disable access to the said information and data
from that very computer resource. The removal or disabling cannot be
restricted to a part of that resource, serving a geographical location. (Para
81)
c) So long as the uploading from India led to the data or information residing
in the network or being connected to the network, the same ought to be
disabled or blocked globally. Any other interpretation of Section 79 would
result in reducing the efficacy of the provision. (Para 82)
 d) If uploading of data which the Court considers defamatory or offensive
has taken place from IP addresses located in India, then Indian Courts
would have jurisdiction to direct the platforms to remove and disable
access to the said information or material, from the computer network of
these platforms on to which the said information and data has
been replicated. (Para 82)
e) Geo-blocking as is being suggested by the platforms would not be in
consonance with Section 79 or with the purport and intent in the judgment
of Shreya Singhal. (Para 84)

3. Luxottica Group S.P.A. Vs. Mify Solutions Pvt. Ltd.

MANU/DE/4081/2018
a) While citing the judgment in Christian Louboutin the court observed the
test to be applied while deciding if a party falls under the protection
provided to intermediaries under Section 79. (Para 17, Sub Paras
66,70,71,78)
b) While applying the tests laid down in Christian Louboutin it was held that
the platform was not be treated as an intermediary for the following
reasons (Para 29):
i) The User Agreement had contradicting clauses since in one Clause
it was set out that the platform is merely a facilitator while in the
other clause it was claimed that the products are authentic
ii) The sellers’ details were properly disclosed
iii) The due diligence and care required under Sec. 79 were not met

4. Skullcandy Inc. Vs. Shri Shyam Telecom

MANU/DE/4082/2018
a) The online market place could be considered to be an intermediary
because of a number of reasons (Para 20):
i) The Sellers’ details were contained in the invoice and the same are
visible on the website. The website however, is facilitating payment
and allowing sellers to use its partners for logistical support.
ii) The website has a take-down policy called as PIP programme, as
per the Intermediary Guidelines, 2011.
b) The factors disqualifying the online market place for exemption under
Section 79 of the Act (Para 21):
i) The website guarantees that all products are 100% genuine;
ii) Repeated sales of counterfeits been encountered on the website;
iii) Despite several infringement actions, the website has not taken
precautions to stop sale of counterfeits;
 iv) There is a separate Replica window for advertisement and selling of
lookalike products.
v) The Replica window encourages sellers to post lookalike products
and this feature would constitute to aiding and abetment of
violation of intellectual property.

5. Google India Pvt. Ltd. Vs. Visaka Industries Ltd.

MANU/AP/0682/2016
a) The provisions of Section 79 are not applicable if the intermediary has
conspired or abetted or induced whether by threats or promise of
otherwise upon receiving actual knowledge or being notified by the
Government or its agency that data controlled by the intermediary is being
used to commit unlawful acts and the intermediary fails to expeditiously
remove such material. (Para 61)
b) In view of the law laid down in Shreya Singhal, it is for the intermediary to
prove that it had exercised due diligence in allowing posting of any
content. (Para 70)