Cyber Crimes and Domain Hosts – Where does the liability lie?

Cyber Crimes and Domain HostsDomain hosts are the providers of domain names, for instance, if you want to buy abcxyz.in, you will approach the .IN registry or any of registrars accredited (godaddy.com, name.com, rediff.com etc.) by them in order to secure a domain name. Likewise, you can find a number of registrars if you want to register .com, .biz, .net, .org etc. Basically, the domain host provides you space in the virtual world to create your own website and display content for a nominal amount. In this article, I’ll be mainly dealing with the liability of the domain hosts in situations where there is any content, be it defamatory or obscene or seditious, which is against public morality and is illegal in nature.

On perusal of the terms of service, privacy policy and legal terms of domain hosts, one will find that they clearly lay down how much information they can provide about the User, obligations of the User, liability in civil and criminal matters and rights they have against Users who go against the terms and conditions laid down. I’d like to briefly put forth some of the pertinent information regarding the same.

Privacy Policy

The registrars make it amply clear that any information given by the User will remain confidential and will not be disclosed without expression and prior permission. However, the registrars will be bound by law enforcement agencies and other government authorities.

Termination Policy

Registrars have the right to pre-screen content, check for appropriate content, remove any item or terminate services, and they can take all of these actions even without giving prior notice to the User. They also have the additional right to deny, cancel, suspend, lock or even modify access to the User in cases, inter alia, where court orders are issues against the User or domain name, to defend any legal action or threatened legal action (godaddy.com has this as a part of their legal policy) and to avoid legal and criminal liability.

Limitation of liability

Most of the registrars that make it clear that they will not be personally liable under any circumstances and that they are willing to comply with any law enforcement agency. Further, the User undertakes to indemnify, protect, defend and hold them harmless in case of any liability to be incurred or damages to be paid.

Therefore, let’s consider a situation where abcxyz.in is a domain name which is issued by rediff.com to Mr.XYZ and he starts publishing defamatory content about an eminent scientist or any well-known person. Considering that his identity isn’t disclosed on the website, the first place to check any details regarding the same will that of the registrar. However, due to their privacy policy one might not be able to access any such information. The registrar will not be bound to accept your request for disclosure of identity unless there is a legal order to comply with and thus it becomes very important in such matters to send a legal notice to the registrar in order to able to identify the person concerned. Further legal action of suspending or cancelling the domain name is the discretion of the domain host, as mentioned earlier. However, if there is a legal order for the same, the registrar is bound to comply with it.

Now, like in every other legal enforcement issue, this one too has a loop hole. It might be possible that the registrant has provided incorrect personal and contact details, wilfully or otherwise. In such cases, it becomes even more difficult to locate the person. Moreover, it is quite impossible to identify or locate persons in the cyber space if we don’t have anything to begin with. Even in these cases, it is difficult to hold the domain hosts liable because when a person is registering himself to acquire a domain name, he agrees (by clicking on the terms and conditions check-box) that the information being provided by him is accurate. The only possible recourse of any aggrieved party will be to request the Court to suspend or cancel the services of the website through the registrar. The legal maxim ‘ubi jus ibi remedium’ meaning that ‘where there is a right, there is a remedy’ seems quite apt for this case!

Further, though a domain host falls under the definition of ‘intermediary’ provided under Section 2(1) (w) of the Information Technology Act, 2000, it is important to note that they are given a safe harbour under Section 79 of the said Act and will only be bound to comply with any disclosure of details but that necessarily doesn’t mean that the burden of any offence that has been committed using the website/domain will be charged on them.

In India, the judicial precedents on this issue are very limited and involve cases where persons have taken offence to defamatory matter put up on a website and acted in furtherance of it by filing a suit in the court. In most of these cases, the aggrieved party is aware of the writer/blogger. The Courts have either directed the domain host to provide the complete details of identity and Author Log in data including contact details, registration data, residence address and IP address in a sealed cover or required the domain host to remove the defamatory content.

Before wrapping up, I’d like to briefly summarise the procedure for requesting disclosure of identity of a User. Surprisingly, it is a very simple process whereby you write to the registrar/domain host on the contact details provided on the respective website. Some domain hosts charge a nominal amount to research, courier and provide copies of the details. The most important document required is the court order requiring the domain host to disclose information and if it’s not in English, a certified translation of the same needs to be sent.

In practicality, enforcing these rights may seem tedious but what’s remarkable is that there is a way out even without holding the domain hosts completely liable, more so because their legal policies claim that they’re willing to cooperate. It can thus be concluded that taking down defamatory or obscene or any illegal content from a domain hosting or platform providing website isn’t an impossible task to accomplish.

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