The Ministry of Home Affairs has notified the Indian Cyber Crime Coordination Centre (I4C) as the agency of MHA that can send takedown orders to intermediaries on illegal content related to cyber crimes under Section 79(3)(b) of the Information Technology Act. I4C is the second agency under MHA to be designated as such. The National Crime Records Bureau was notified in 2018.
HT reported on February 4 that Section 79(3)(b) is a provision that legal experts say has created a grey area for who can direct intermediaries to remove content, for what reason, and if it can be challenged. A key issue was whether the central ministries and state governments need to specifically notify agencies in the official gazette to empower them to send takedown notices to intermediaries, including social media companies.
To establish the appropriate authority, the appropriate government must issue a gazette notification, Priyadarshi Banerjee, partner at Delhi-based Banerjee & Grewal Advocates, had said. “It is because the executive believes in following the principle of contemporanea exposito [best meaning of a law is given by those who made it],” he said. This is evidenced by Meity’s January 2021 office memorandum, the MHA’s gazette notification in 2018 notifying the National Crime Records Bureau, and the MoHFW’s gazette notification in 2021 notifying an officer (Tobacco Control) as authorised agencies under Section 79(3)(b).
But the ministry of information and broadcasting and the state government of Tamil Nadu announced designated officers through a public notice in November 2023 and an official order in April 2022, respectively. Experts had earlier told HT that it might not matter. “I have my doubts about their validity but there is a practical difficulty. In the IT Rules, the word ‘notification’ has been used to mean both gazette notifications and intimation,” Banerjee had said.
{{/usCountry}}But the ministry of information and broadcasting and the state government of Tamil Nadu announced designated officers through a public notice in November 2023 and an official order in April 2022, respectively. Experts had earlier told HT that it might not matter. “I have my doubts about their validity but there is a practical difficulty. In the IT Rules, the word ‘notification’ has been used to mean both gazette notifications and intimation,” Banerjee had said.
{{/usCountry}}“Section 79(3)(b) erects a blocking process separate from Section 69A with a much lower threshold for issuing takedown notices and grants power to a much larger swathe of ministries, departments and law enforcement agencies,” Pavit Singh Katoch, general counsel at Inshorts, said in February.
Section 79 in itself lays down conditions for an intermediary to claim safe harbour protections from liability for third party content. Section 79(3)(b) says that such protection is not available if the intermediary fails to remove or disable access upon being informed by the “appropriate” government or “its agency”.
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