Online Intermediary Liability and Privacy in India

Abstract

Online intermediaries are entities that facilitate all of the transactions that take place on the internet. The extent of the data that flows through such intermediaries on a daily basis presents several privacy concerns, which are the subject of this Report. In India, the right to privacy is not explicitly guaranteed by the Constitution, but the Supreme Court has interpreted Article 21 of the Constitution (which provides for the right to life or personal liberty) as implicitly granting the right to privacy. In furtherance of the mandate to secure the right to privacy of individuals in India, the Government has introduced a host of legislative measures that seek to (i) protect the data collected by intermediaries from individuals, and (ii) protect individuals from infringement of their right to privacy via content that is hosted by intermediaries. Currently, these laws are fragmented and are largely sector specific. In the context of the internet, the Information Technology Act 2000 requires intermediaries to protect the data they collect and handle, and imposes conditional liability on intermediaries for their hosted content if such content infringes the privacy of an individual. However, these laws are inadequate to deal with the new concerns that have arisen as a result of the rapid advances in technology and re-shaping of the internet. Keeping in mind these concerns, a Group of Experts on Privacy was convened in order to analyze the state of India’s law on privacy and make recommendations that would form the basis for a new privacy framework in India. These recommendations have resulted in a draft Privacy Bill, which takes significant steps toward harmonizing the data protection standards and intermediary liability laws in India with those of the rest of the world.

Keywords: Intermediary Liability, Online Privacy, Indian IT Act, 2000