Removing Domain Name Registrars' Safe Harbour Protection for suggesting domain names
In the Snapdeal v. GoDaddy judgement the Delhi HC held that:
-domain name registrars (DNR) are intermediaries
-Since domain name registrars suggest possible names to registrants they are not qualified for safe harbour protection under Section 79 of the IT act
I do have two gripes with this judgement:
- profit Motive
The court's reasoning for removing safe harbour protection relies on the fact that DNR are suggesting domain names for profit.
"An intermediary, which operates for profit, as a business enterprise, cannot seek amnesty under Section 79 (1)."
Operating for profit is not a criteria for removing safe harbour under Section 79. I agree that DNR can very well lose their protection as they are acting as more than mere conduits by selecting the information in the form of suggesting the domain names.
But by saying that since the domain name suggestions are being given for profit they should not have safe harbor protection is reading something into the statue which simply does not exist.
It is totally possible that future judgements f competely gloss over this reasoning. But what if this reasoning is applied to other cases? In that case all intermediaries run the risk of losing their safe harbour protection since they all operate for profit.
- Passive/Active Distinction
The Court did not engage with one of GoDaddy's argument that suggesting Domain names is merely a passive activity and not their main activity. They tried to bring back the passive/active distinction (which was killed in Amazon Seller Services v. Amway India). Courts further explanation of what was held in Amazon Sellers and wether the passive/active distinction is applicable would have been an interesting read.