信息技术法基础知识产权执法

电子商务网站上中介机构的责任

的Information Technology Act, 2000 [hereinafter,the “IT Act”] and 在formation Technology (Intermediaries Guidelines) Rules, 2011 [hereinafter the “Rules”] govern the role and function of intermediaries. Section 79 of the IT Act provides that an 中介 is not liable for any third-party content hosted/made available through such 中介 when:

  1. 违反行为是在不知情的情况下完成的,或者
  2. 的intermediary observes due diligence and abides by other guidelines as prescribed.

的Intermediary Rules of 2011 provide for a diligence framework to be followed by intermediaries in order to avail of the exemption under Section 79 of the IT Act. Numerous procedures have been recommended which need to be adhered to by an 中介, such as:

  1. 的need to inform the users of the computer resource not to transmit any information that, inter-alia is harmful, obscene or defamatory. Further, it cannot infringe any patent, trademark, copyright or other proprietary rights.
  2. 中介机构被迫“法案“ 内 三十六小时 and where applicable, work with user or owner of such information to disable such information that is in contravention of such Rules regarding not posting of the above mentioned prohibited matter.
  3. 中介机构必须严格遵守 “法案” 或当前有效的任何其他法律。

的Court of Justice of the European Union (Grand Chamber), in the case of Google法国 SARL, Google 在c. v. Louis Vuitton Malletier SA& Ors. [hereinafter,‘Google France’], one of the point noted with respect to intermediaries was that“it is necessary to examine whether the role played by that service provider is neutral, in the sense that its conduct is merely technical, automatic and passive, pointing to a lack of knowledge or control of the data which it stores.”

Google法国 case has laid out certain principles on the liability of intermediaries and the 克里斯蒂安·卢布托(Chrisitan 卢布丁) case, which was decided by the Hon’ble High Court of Delhi makes a reference to these. Below are some useful excerpts from the judgment:

  1. 豁免中介人的责任是 限于操作和提供访问权限的技术过程 communication network. Such an exemption is needed for the purposes of making 传输效率更高。
  2. 中介的活动仅仅是 technical, automatic and passive – meaning thereby that the 中介 does not have any knowledge or control over the information which is transmitted or stored.
  3. 中间人获得豁免的好处 for being a “mere conduit” and for “caching”, when it is 不参与传输/翻译的信息。
  4. 服务提供商是否故意合作 对于服务的接受者,免税不再适用。
  5. 在 下令服务提供商继续享受豁免 obtaining knowledge of any illegal 法案ivity, the service provider has to remove 或禁用对信息的访问。
  6. 在 order to constitute a 单纯的导管, the service provider should not initiate the transmission, select the receiver of the transmission, or select or modify 传输中包含的信息。
  7. 信息的存储必须是自动的, 中间和短暂的。
  8. 提供者不应基于 信息的使用。
  9. 要求免除损害赔偿时,服务 提供者不应对非法活动有任何了解 acquiring knowledge, should expeditiously remove or disable the information.
  10. 服务 providers do not have a general obligation to monitor the information which is 传输或存储。

法院在 卢布丁 case, did give the following directions to the defendant on the 法案ivities of running the website as an 中介 so as to:

  • disclose the complete details of all its sellers, their addresses and contact details on its website
  • 从卖方那里获得货物真伪的证明
  • If the sellers are not located in 在dia, prior to uploading a product bearing the plaintiff’s marks, it shall notify the plaintiff and obtain concurrence before offering the said products for sale on its platform
  • If the sellers are located in 在dia, it shall enter into a proper agreement, under which it shall obtain guarantee as to authenticity and genuinity of the products as also provide for consequences of violation of the same
  • Upon being notified by the plaintiff of any counterfeit product being sold on its platform, it shall notify the seller and if the seller is unable to provide any evidence that the product is genuine, it shall take down the said listing and notify the plaintiff of the same, as per the 在termediary Guidelines 2011
  • It shall also seek a guarantee from the sellers that the product has not been impaired in any manner and that all the warranties and guarantees of the plaintiff are applicable and shall be honoured by the seller. Products of any sellers who are unable to provide such a guarantee would not be, shall not be offered on the defendant’s platform
  • All meta-tags consisting of the plaintiff’s marks shall be removed with immediate effect.

清单 参考案例:

  1. Christian 卢布丁 SAS诉Nakul Bajaj and Ors。CS(COMM)344/2018
  2. Luxottica Group S.P.A.&Anr. v. Mify Solutions Pvt. Ltd.&Ors., CS (COMM) 453/2016
  3. Skullcandy,Inc.诉Shri Shyam Telecom&Ors。,CS(COMM)979/2016
  4. 欧莱雅诉布兰德世界&Anr。,CS(COMM)980/2016
  5. Google法国 SARL, Google 在c. v. Louis Vuitton Malletier SA&Ors, C-236/08, DoJ- 23.03.2010
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尼基尔·纳伦(Nikhil Naren)

知识产权和信息技术法的热爱者。

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