Introduction
The explosion of digital content has brought with it a serious challenge — the spread of illegal or inappropriate materials online. Among the most pressing issues is the circulation of pornographic content. With the increasing consumption of internet-based services, ISPs (Internet Service Providers) find themselves in a tight spot — are they merely a pipeline, or do they share liability? This article dives deep into a situation where pornographic content was made accessible through an ISP, and we examine its legal consequences under the Information Technology Act, 2000.
Facts of the Case
An Indian internet user recently accessed pornographic content using the services of a reputed Internet Service Provider (ISP). The content, which violated Indian decency and obscenity standards, was neither created nor hosted by the ISP but was made available to users via its platform. A public interest litigation was filed, alleging that the ISP facilitated the access and distribution of obscene materials. The government initiated an inquiry to assess the ISP’s role in allowing such content, whether knowingly or due to negligence. This sparked a national debate on digital responsibility and accountability.
Issues in the Case
Was the ISP directly involved in creating the content?
No evidence pointed to the ISP being the original creator of the obscene content. The content was hosted on a third-party website, but the ISP provided access to that site.
Can an ISP be held responsible for third-party content?
This is the crux of the issue — whether an ISP, as an intermediary, can be held accountable for content it does not host or generate.
What steps did the ISP take to prevent such incidents?
The case highlighted the ISP’s content filtering policies. Were they updated? Did they respond to any takedown orders?
What does “due diligence” mean for an ISP?
Under Indian law, ISPs must demonstrate that they took all reasonable steps to prevent the transmission of illegal content.
Legal Principles Covered
Information Technology Act, 2000
Section 67
This section criminalizes the publishing or transmission of obscene material in electronic form. If convicted, the offender faces imprisonment and fines.
Section 79
This crucial section gives intermediaries — including ISPs — a “safe harbor” from liability if they do not initiate, select the receiver, or modify the transmission and follow due diligence.
IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
These rules outline the responsibilities of intermediaries, including:
- Appointing grievance officers
- Disabling access to illegal content within 36 hours upon receiving a complaint
- Implementing robust monitoring mechanisms
Relevant Case Laws
Shreya Singhal v. Union of India (2015)
This landmark judgment clarified that intermediaries are only liable after receiving actual knowledge via court orders or government notices.
Myspace Inc. v. Super Cassettes Industries Ltd.
This case reinforced the limited liability of intermediaries and their duty to act only after being informed.
Google India Pvt. Ltd. v. Visaka Industries
The court ruled that an intermediary must act promptly upon receiving notice to continue enjoying safe harbor protection.
Analysis of ISP Liability
Definition of ISP as an Intermediary
An ISP is considered an intermediary under Section 2(w) of the IT Act — meaning it provides access to third-party information systems.
Safe Harbor Protection
Under Section 79, ISPs are shielded unless they fail to exercise due diligence or act on illegal content notifications.
When Is Safe Harbor Lost?
- If the ISP had actual knowledge but didn’t act
- If the ISP consciously permitted content
- If the ISP refused to comply with takedown requests
Notice and Takedown
Once notified by users or authorities, the ISP must remove the content. Delays can be seen as wilful negligence.
Judicial Trends and Interpretations
Indian courts have generally supported a balanced approach:
- ISPs should not be expected to pre-screen everything (unreasonable burden)
- But they must act once alerted
- Courts look for evidence of intent, negligence, or delay
Possible Judgement
Scenario 1: ISP Fulfilled Due Diligence – No Liability
If the ISP has robust filtering, responds quickly to takedown requests, and has no prior knowledge — the court may exempt them from liability.
Scenario 2: ISP Was Negligent – Partial Liability
If the ISP failed to respond in a reasonable time or didn’t upgrade content detection tools — the court may impose a fine or compliance directive.
Scenario 3: ISP Ignored or Promoted Content – Full Liability
If proven that the ISP knowingly allowed access or turned a blind eye to obscene content — full legal consequences including criminal charges may follow.
