Once content has been placed on the Web site/portal, the licensee should also put up necessary notices and disclaimers regarding the copyright of the matter/works on the requisite pages, or in case of trademarks, the trademark rights.

A disclaimer regarding the reliability of information should also be included. For instance, in a site offering legal advice, visitors to the site should be informed that the information contained therein should not be relied upon as legal, business or tax advice. Further, that the operator would not be responsible for any losses or damages that may occur as a result of using site content.

A content provider must also ensure that the content so displayed on the Web site is as up-to-date as possible. In any event, each page should contain a notice as to the last date of revision. Recently, Virgin Atlantic Airlines was fined $15,000 for advertising an expired fare on it's Web site.

These legal terms should exist not only on the home page but in all the subsequent pages as well. The reason for this is that sometimes a user may, instead of going through the home page, directly connect to a particular page on a Web site, missing out on the disclaimer/notices or legal terms laid down on the home page.

This situation usually occurs where there is a hyperlink. A hyperlink is where a Web site (X) provides relevant links to other Web sites (Y). However, if the said link bypasses the home page of Y, where the user may be required to register his usage, then does the Web-hoster i.e. Web site X become responsible for the nature and type of content on Web site Y, just by virtue of providing a link? One of the easiest ways to solve this is to provide a disclaimer on any page that contains a link to external sites, that by virtue of selecting a particular link, a visitor will be transferred to a third party's Web site, for whose content the current Web site assumes no responsibility.

Jurisdiction

Another question that arises is in the case of cross-border content transaction. What happens if a licensee in India is displaying content licensed to it by an American content company which contains, for e.g., liquor advertisements. Although it is not illegal to display these ads in the US, they may be censored in certain UAE countries. The party liable would naturally be the one hosting the Web page, however only if it can be brought under UAE jurisdiction. This can happen if the defaulter:

(a) agrees to be subject to the jurisdiction of the court (in this instance, the UAE courts)

(b) is domiciled or residing in the court's jurisdiction

(c) entered into a contract within the Court's jurisdiction

In most cases the person hosting the content is not intentionally trying to send it to any particular place, he merely places it on the Web where it is accessible to anyone who wishes to access it. The US is a safehouse for content provider and owners placing objectionable/controversial matter onto the Internet. The First Amendment of the US Constitution confers the freedom of expression to all citizens. Content providers use this lacuna to create content and place it on US servers, from where matter is easily accessible globally.

In India, we have defamation laws and it would be considered a crime if somebody accessed pornographic sites from India. The courts may hold the owner of the Web site responsible under Section 292/34 of the Indian Penal Code. The Delhi Police registered a case against some Web site holders for placing obscene material on display on the Internet. As the Web site launchers were connected to the Indian Web site in displaying and circulating pornographic material which was found to be lascivious, a case under section 292/34 of IPC against all the Web site holders connected to the said Indian Web site was registered.

Section 66 of the Information Technology Act 2000, which deals with the above, provides for punishment on first conviction with imprisonment of either description for a term which may extend to two years and with fine which may extend to Rs. 25,000 and in the event of a second or subsequent conviction with imprisonment of either description and for a term which may extend to five years and also with fine which may extend to Rs. 50,000.

The other question that arises is who is to bear responsibility for the hosting of such defamatory/obscene Web pages. One party would definitely be the content licenser and/or the content licensee. Would the Internet service provider (ISP) also be held responsible? In most cases, the ISP is merely the carrier, and very often is unaware of the contents that are being carried. However if it has been alerted as to the existence of illegal content on its network, then the ISP would be responsible if it fails to take any action. Section 79 of the Information Technology Act 2000 deals with the ISP's liability.

Caching

When a Web site lacks bandwidth or is very frequently accessed, an ISP may, in order to ensure quick access, download the popular Web site on to his Web server. This would ensure that the moment a user clicks on the Web site it would be easily retrieved from the ISP's Web server. Very often, this decision to cache a particular Web site may be made automatically by the equipment that handles the Internet traffic.

This raises certain questions:

Is the ISP infringing the copyrights of the concerned Web site by storing it on his Web server?

Is the Web site up to date? Very often the stored Web site will not have been updated. In that case, who would bear the liability of outdated information?

The US has enacted special laws to deal with issues such as caching. Under the Digital Copyright Millennium Act, certain types of caches are allowed. In the absence of such laws in India, caching would be akin to a copyright infringement.

Broadcasting on the Net

The latest trend on the Internet is broadcasting radio and even television (TV) stations. This has been taken up by not only traditional radio and TV stations, such as BBC and CNN, but also by a smaller company as the Internet does not require the infrastructure and set-up that traditional broadcasting would require. Internet broadcasting only requires a computer, modem and telephone line. Traditional broadcasting on the other hand would require a studio, transmitter, antenna and requisite licences. Broadcasting over the Web would have the same applicable decency/controversial content norms. In addition, broadcasting stations are required to obtain permission from music societies such as ASCAP and BMI internationally and the IPRS and PPL in India. It remains to be seen whether broadcasting on the Internet would require similar permission.