Dear Sir, Just now read your email on the subject. To avoid any sort of arguments, writing to you privately about what I feel its implications should be as far as our group is concerned. My analysis is based on section 66A, in which I have covered what type of information is prescribed in this section, and its applicability as per the act. Then comes the definition of intermediaries as applicable to us, followed by the guidelines which prescribes due diligence on part of the intermediaries under Rule 3. Subrules (2), (3) and (4) are very important. It is little long email, so you may please adjust it accordingly. Skip the section 66A part if needed.
If an analysis of section 66A is done, then it deals with 3 things: 1. Any information which is grossly offensive, or which is menacing in character. Since the terms offensive and menacing have no definitions in this act, the general definitions are to be adopted. In that sense, what is offensive in nature is declared by Indian Law, mainly Indian Penal Code and Criminal Procedure Code. The term menacing is nowhere defined so dictionary meaning shall prevail, which should mean that the information should be such which should be threatening in nature. 2. Clause B is self-explanatory, which says that any information which is known to the person sending being false, but it is being sent to cause the stated effects as mentioned in that clause. 3. Clause (c), deals with such emails which either cause stated effects such as annoyance or inconvenience, or which mislead the person receiving at the other end about its origen. The section is applicable to the person who is the sender, and none else. Now comes our part, the intermediaries part. The definition of intermediaries in section 2 (1) (w) of the principle act is clearly applicable to us as we are receiving information on behalf of the other person and transmitting the same. We are exempted from the originator part as defined under Section 2 (1) (za), hence section 66A is not applicable to us in any case (even by stretch of imagination of crooked lawyers). Now, the guidelines: (1) This sub-rule clearly prescribes that the intermediary should have published its rules privacy policy user access agreement etc. In that sense, we have the list guidelines. I don't know whether those are the part of the welcome email or not, but for safer side in order to come under the term 'publish', I recommend it to be put up on our main page of joining itself. (2): This is the main rule which prescribes that: The intermediary shall inform the user of the computer resource ..... not to transmit, host, display, share and publish.... any information as prescribed in various sub-clauses thereafter. (3) The intermediary shall not **knowingly** host, publish, initiate the transmition of such information. Exception (saving clause for us): (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; Thus, the mailing software being automated, the transmition of such information is not applicable to us as we are not intervening. Second saving clause: (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; Thus, unless there is any order issued under this act by the authorities, or any direction given in that behalf, we are safe. (but read below, the next subrule imposes the obligation on us) Work to be done as a moderator under sub-rule (4) by deleting the message from archives which violates subrule 2, if it is in your actual knowledge or is being brought to your knowledge **in writing** or by a **digitally signed email**, then the information is to be removed within 36 hours. Which shall be then preserved for 90 days for investigation purposes. As it is already done, you have to keep the users informed that any information in violation of this rule will be removed and the user's rights will be terminated. A best suggestion is to include a small note in the signature stating that violation of list guidelines and any act / rules which are applicable to us (or mention the name) will result in termination of user and removal of such information. I have not gone through Information Technology (Reasonable security practices and procedures and sensitive personal Information) Rules, 2011. So I cannot say whether they have any obligation on us to keep our systems in what way secure to avoid transmition of such information. If required, I can look into it. I hope, that whatever little knowledge I have, according to that I have been able to address your concerns satisfactorily. I will be more than happy to give my interpretations or discuss anything if required. And would also look forward for correction of my knowledge wherever I have gone wrong. Regards, -- Amar Jain. Website: www.amarjain.com Register at the dedicated AccessIndia list for discussing accessibility of mobile phones / Tabs on: http://mail.accessindia.org.in/mailman/listinfo/mobile.accessindia_accessindia.org.in Search for old postings at: http://www.mail-archive.com/[email protected]/ To unsubscribe send a message to [email protected] with the subject unsubscribe. To change your subscription to digest mode or make any other changes, please visit the list home page at http://accessindia.org.in/mailman/listinfo/accessindia_accessindia.org.in
