“Safe Harbour” Protection Available To Intermediaries Qua Criminal Prosecution Unless ‘Active Role’ Is Disclosed In Commission Of Offence
Case: Flipkart Internet Private Ltd. V. State Of Nct Of Delhi & Anr.
Coram: Justice Asha Menon
Case No.: W.P.(CRL) 1376/2020
Court Observation: “When the intermediaries have been granted the ―safe harbour qua civil liability, and when a higher standard of culpability is required for a criminal prosecution, such “safe harbour” should be available even in respect of criminal prosecution. Thus, unless an active role is disclosed in the commission of the offences complained of, the intermediary, such as the present petitioner, would be entitled to claim protection under Section 79 of the I.T. Act.”
“For instance, to establish criminal liability for negligence, the standard of proof is set much higher than for “civil liability” under the law of Torts for negligence. There is no reason why that higher standard should not be available to courts to determine whether an intermediary would be liable under the criminal law for action or inaction,”
“the question must be answered in the affirmative that when compliance with the “due diligence” requirement under Rule 3 of the I.T. Guidelines is evident, ex facie, the exclusion of liability under Section 79 of the I.T. Act would include exclusion from criminal prosecution.”
“Without determining the rights of those other sites to sell the products, prima facie, the petitioner has not committed any offence, leave alone under the Copyright Act or the T.M. Act,”
“This is one such case where the registration of an FIR against an intermediary would lead to miscarriage of justice. Therefore, this Court finds itself justified in allowing the present petition and quashing the FIR qua the petitioner. However, further investigations are not barred in order to ascertain the identity of those who are infringers and/or unauthorized sellers of the products of the Czech company.”
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