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Take the site 10minutemail.com for example. What if someone uses the temporary email and logs into somewhere on the internet and does something illegal. When the investigations happen, the email will link back to 10minutemail.com and then the investigators will probably sue 10minutemail.

In situations like these, how would they save themselves? Because, I don't see any "Terms and Conditions" in their site as well.

Also, does having a "Terms of service" help in any way here?

EDIT:

I am building a site which, technically is similar to the one I've mentioned. This site is being built and hosted in India, so the law here might be different from the ones in some other country. So, it would be helpful if someone could give some info keeping the country India in mind.

  • Thanks for the edit. It is always helpful to have jurisdiction information so readers can provide more useful answers. As my original answer below indicates, it may not apply in India. I'll see what I (or other contributors) can find. – ohwilleke Aug 17 '17 at 16:29
  • @ohwilleke Yah I agree, I am new to this forum. I mostly roam around in stackoverflow. So, didn't realise the importance of mentioning the country. Hope someone is able to give an answer. – Parthapratim Neog Aug 17 '17 at 16:39
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    Updated to reflect the law of India. – ohwilleke Aug 17 '17 at 22:08
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In general, a federal law called "Section 230" (47 U.S.C. § 230 which is part of the Communications Decency Act) makes a provider of a potentially legitimate Internet service immune from civil or criminal liability in the United States for user generated content, so long as the provider does not participate in generating the content along with the user.

Your mileage in jurisdictions outside the United States may vary. Most other countries are not as solicitous of the rights of Internet service providers as the United States.

So, generally, there would be not liability for this service in the United States.

This is true even when the provider has good reason to believe that the provider's service is being used to perpetrate crimes and receives payment for use of the service by users, as in the case of "BackPage" a classified ad site used on a paid basis to advertise prostitutes including human traffickers (as found in a recent criminal case launched by a California prosecutor).

On the other hand, if the provider actively marketed the site as a means by which someone could commit crimes, that might very well cross the line. Also, the site would probably have to cooperate with law enforcement subpoenas to investigate the site's customer/users, even if this harmed their business.

Appendix: The Full Text of Section 230

(a) FindingsThe Congress finds the following:

(1) The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.

(2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.

(3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.

(4) The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.

(5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.

(b) Policy

It is the policy of the United States—

(1) to promote the continued development of the Internet and other interactive computer services and other interactive media;

(2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;

(3) to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;

(4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material; and

(5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.

(c) Protection for “Good Samaritan” blocking and screening of offensive material

(1) Treatment of publisher or speaker

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2) Civil liability

No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

(d) Obligations of interactive computer service

A provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors. Such notice shall identify, or provide the customer with access to information identifying, current providers of such protections.

(e) Effect on other laws

(1) No effect on criminal law

Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, or any other Federal criminal statute.

(2) No effect on intellectual property law

Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.

(3) State law

Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.

(4) No effect on communications privacy law

Nothing in this section shall be construed to limit the application of the Electronic Communications Privacy Act of 1986 or any of the amendments made by such Act, or any similar State law.

(f) Definitions

As used in this section:

(1) Internet

The term “Internet” means the international computer network of both Federal and non-Federal interoperable packet switched data networks.

(2) Interactive computer service

The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

(3) Information content provider

The term “information content provider” means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.

(4) Access software provider

The term “access software provider” means a provider of software (including client or server software), or enabling tools that do any one or more of the following:

(A) filter, screen, allow, or disallow content;

(B) pick, choose, analyze, or digest content; or

(C) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.

UPDATE: While I don't have full access to the relevant legal sources, I can point you in the right direction and the news isn't great. The regulatory scheme in India has been described as "Onerous Yet Inadequate".

ISPs have been specifically categorized as internet intermediaries under the Information Technology Act, 2000(amended in 2008 and hereinafter referred to as the Act). Section 79 of the Act provides immunity to the ISPs in certain cases of internet wrongs even if committed through their networks provided they follow the due diligence guidelines, prescribed in detail in the Information Technology (Intermediaries guidelines) Rules, 2011 and expediently remove/disable access in case of any actual knowledge of unlawful act or on receipt of government notification to that effect. This immunity from liability, however, does not apply when the unlawful act concerns copyright or patent infringement, both of which have been specifically excluded by way of proviso to section 81 of the Act.

In view of internet being one of the prime mediums for accessing, distributing and most importantly infringing copyrighted content, liability of ISPs in case of copyright infringement is fixed by the Copyright Act, 1957 mostly under Section 51(a) (ii) of the Act which, inter alia, holds, any person providing "any place" for communication of infringing work, for profit, to the public, liable of infringement unless she can prove that she was not aware or she had no reasonable grounds for believing such communication to be infringing.

Section 79 of the Information Technology Act, 2000 as amended and as clarified by regulation and case law, is India's equivalent to Section 230. This states (verbatim):

CHAPTER XII: NETWORK SERVICE PROVIDERS NOT TO BE LIABLE IN CERTAIN CASES

  1. For the removal of doubts, it is hereby declared that no person providing any service as a network service provider shall be liable under this Act, rules or regulations made thereunder for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention.

Explanation.—For the purposes of this section,—

(a) "network service provider" means an intermediary;

(b) "third party information" means any information dealt with by a network service provider in his capacity as an intermediary;

Thus, unlike Section 230, which automatically provides immunity for third-party content violations generally even if the provider suspects that the service is being misused, Section 79 provides immunity only if the Internet company proves the affirmative defense of lack of knowledge or exercise of due diligence.

The 2011 regulations do clarify what constitutes due diligence somewhat. But, the regulations turn out to be rather onerous indeed. One of the first requirements is to have a Terms of Service Agreement with many terms required by regulation that must be enforced. The regulations state (definitions omitted) that:

  1. Due diligence to he observed by intermediary — The intermediary shall observe following due diligence while discharging his duties, namely : —

(1) The intermediary shall publish the rules and regulations, privacy policy and user agreement for access-or usage of the intermediary's computer resource by any person.

(2) Such rules and regulations, terms and conditions or user agreement shall inform the users of computer resource not to host, display, upload, modify, publish, transmit, update or share any information that —

a) belongs to another person and to which the user does not have any right to;

b) is grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, paedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever;

c) harm minors in any way;

d) infringes any patent, trademark, copyright or other proprietary rights; violates any law for the time being in force;

e) deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;

f) impersonate another person;

h) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource;

i) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation

(3) The intermediary shall not knowingly host or publish any information or shall not initiate the transmission, select the receiver of transmission, and select or modify the information contained in the transmission as specified in sub-rule (2): provided that the following actions by an intermediary shall not amount to hosing, publishing, editing or storing of any such information as specified in sub-rule: (2) —

(a) temporary or transient or intermediate storage of information automatically within the computer resource as an intrinsic feature of such computer resource, involving no exercise of any human editorial control, for onward transmission or communication to another computer resource;

(b) removal of access to any information, data or communication link by an intermediary after such information, data or communication link comes to the actual knowledge of a person authorised by the intermediary pursuant to any order or direction as per the provisions of the Act;

(4) The intermediary, on whose computer system the information is stored or hosted or published, upon obtaining knowledge by itself or been brought to actual knowledge by an affected person in writing or through email signed with electronic signature about any such information as mentioned in sub-rule (2) above, shall act within thirty six hours and where applicable, work with user or owner of such information to disable such information that is in contravention of sub-rule (2). Further the intermediary shall preserve such information and associated records for at least ninety days for investigation purposes,

(5) The Intermediary shall inform its users that in case of non-compliance with rules and regulations, user agreement and privacy policy for access or usage of intermediary computer resource, the Intermediary has the right to immediately terminate the access or usage lights of the users to the computer resource of Intermediary and remove noncompliant information.

(6) The intermediary shall strictly follow the provisions of the Act or any other laws for the time being in force.

(7) When required by lawful order, the intermediary shall provide information or any such assistance to Government Agencies who are lawfully authorised for investigative, protective, cyber security activity. The information or any such assistance shall be provided for the purpose of verification of identity, or for prevention, detection, investigation, prosecution, cyber security incidents and punishment of offences under any law for the time being in force, on a request in writing staling clearly the purpose of seeking such information or any such assistance.

(8) The intermediary shall take all reasonable measures to secure its computer resource and information contained therein following the reasonable security practices and procedures as prescribed in the Information Technology (Reasonable security practices and procedures and sensitive personal Information) Rules, 2011.

(9) The intermediary shall report cyber security incidents and also share cyber security incidents related information with the Indian Computer Emergency Response Team.

(10) The intermediary shall not knowingly deploy or install or modify the technical configuration of computer resource or become party to any such act which may change or has the potential to change the normal course of operation of the computer resource than what it is supposed to "perform thereby circumventing any law for the time being in force: provided that the intermediary may develop, produce, distribute or employ technological means for the sole purpose of performing the acts of securing the computer resource and information contained therein.

(11) The intermediary shall publish on its website the name of the Grievance Officer and his contact details as well as mechanism by which users or any victim who suffers as a result of access or usage of computer resource by any person in violation of rule 3 can notify their complaints against such access or usage of computer resource of the intermediary or other matters pertaining to the computer resources made available by it. The Grievance Officer shall redress the complaints within one month from the date of receipt of complaint.

One could quibble over whether the service you describe is really an "Intermediary" but this appears to be the most sensible reading of the statute and the regulations as the instructions in those authorities can be applied in a way that makes sense to your proposed venture.

  • Hi, thank you so much for the response. I got the idea from the perspective of law in the United States, but unfortunately I forgot to mention my country from where I am developing and hosting my site, which is India. If you could give me an insight keeping that in mind, it would be really helpful. – Parthapratim Neog Aug 17 '17 at 16:01
  • The update was really helpful. From what I understand, if I give a proper User Agreement, Terms of Service and Privacy policy as stated, and keep track of the IP Addresses requesting my site, I should be fine? – Parthapratim Neog Aug 18 '17 at 4:31
  • @ParthapratimNeog If you do everything in the regulations which involves ongoing active due diligence and not just promulgating a set of a policies, and you respond properly to an incidents that come up very quickly, you have a good argument that you have complied with the law. (The issues related to users using other's intellectual property are somewhat more complex as noted in the link.) – ohwilleke Aug 18 '17 at 18:50

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