Safe harbour law in India: raising the red flag in the wake of Myspace v Super Cassettes

Abstract

The authors

• Ishaan Saha graduated with an LL.M from Cornell University in 2015 and proceeded to pass the New York Bar Exam. He is currently practising as an advocate at the Calcutta High Court in India, specializing in Intellectual Property Law. Oieshi Saha is a final year student at the West Bengal National University of Juridical Sciences.

This article

• The internet would look very different had safe harbour laws not shielded online service providers from liability for the unlawful acts of their third-party users.

• The Delhi High Court, in the case of Myspace v Super Cassettes has one of the first opportunities to shape the still inchoate safe harbour law in India. Making use of this opportunity, the court has imported the red flag test from US jurisprudence into Indian law in an attempt to strike a balance between preserving creativity and freedom of speech on the internet on the one hand and sparing online service providers the onerous burden of policing the content uploaded and shared by third party users via their platforms on the other.

• This paper seeks to analys the rationale behind the judgment in Myspace v Super Cassettes as well as the red flag test itself as understood in American jurisprudence, in the context of the Indian legal framework and endeavours to make a case that the red flag test is not conducive to the Indian legal framework as envisaged in the Indian Copyright Act, 1957 and the Information Technology Act, 2000.