is no punishment for the person who filed the complaint. Given this lack of punishment, Prakash has argued, the law is open to widespread abuse: it allows anyone “to remove content from the internet without following any ‘due process’ or ‘fair procedure’.”109 Clearly, this amendment to the Copyright Act therefore violates the principles of necessity and proportionality that are integral to the validity of any action that seeks to censor content online. But there are two further aspects of the judgment that were remarkable and also deserve attention here. First, when determining whether MySpace had knowledge of the presence of copyright-infringing content on its platform, Justice Singh highlighted the mechanisms instituted by MySpace to trail and curtail copyright infringement, as well as efforts by MySpace to cooperate with industry in this area, as one indication that MySpace did indeed have such knowledge (the Justice was not convinced they also authorised such actions though). With this, the Justice went against the grain of what is increasingly considered best practice in this area in the international community, where such proactive measures on the part of intermediaries generally have been lauded. Justice Singh’s pronouncements on this issue were of importance because having actual knowledge was a ground on which intermediaries can lose the safe harbour provided to them by section 79 IT Act as well. Finally, the Justice also argued that “if the defendants are put to notice about the rights of the plaintiff in certain works, the defendants should do preliminary check in all the cinematograph works relating Indian titles before communicating the works to the public rather than falling back on post infringement measures.” He further stated: for a pre-screening mechanism on the table. Fortunately, in December 2016, following an interlocutory appeal, a two-judge bench of the Delhi High Court overturned the 2012 order, and ruled that pre-screening requirements cast an enormous burden on intermediaries.110 This welcome order cited the challenges that inhere in requiring intermediaries to regulate speech on the internet. Ongoing challenges to India’s intermediary liability regime Challenges to India’s intermediary liability regime, nevertheless, continue. Two separate, ongoing cases in the Supreme Court are of particular importance. In Sabu Mathew George v. Union of India & Ors.,111 the petitioner seeks to ensure that advertisements for services related to sex selective abortions do not show up in search engine results – be they paid results or organic results – as they violate section 22 of India’s Pre-Conception and Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (henceforth PCPNDT Act). Section 22 reads: 22. Prohibition of advertisement relating to pre-conception and pre-natal determination of sex and punishment for contravention.— (1) No person, organisation, Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, including Clinic, Laboratory or Centre having ultrasound machine or imaging machine or scanner or any other technology capable of undertaking determination of sex of foetus or sex selection shall issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated any advertisement, in any form, including internet, regarding facilities of pre-natal determination of sex or sex selection before conception available at such Centre, Laboratory, Clinic or at any other place. (2) No person or organisation including Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic shall issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated any advertisement in any manner regarding pre-natal determination or pre-conception selection of sex by any means whatsoever, scientific or otherwise. if there is any due diligence which has to be exercised in the event of absence of any provision under the Act, the said due diligence must be present at the time of infringement and not when the infringement has already occurred so that the infringement can be prevented at the threshold and not when the same has already occurred. Various aspects of MySpace working practices convinced the Justice that it should be technically feasible to do so. Although Justice Singh made his pronouncements in a case relating to copyright, with this, he was the first to put the supposed need 109 Prakash, P. (2012, 23 May). Analysis of the Copyright (Amendment) Bill 2012. Centre for Internet and Society. www.cis-india.org/a2k/ blog/analysis-copyright-amendment-bill-2012 110 Nair, B. (2016, 25 December). Breaking News: Del HC Division Bench Rules in Favour of Safe Harbour for Intermediaries in MySpace-T Series Copyright Dispute. Spicy IP. https://www. spicyip.com/2016/12/breaking-news-division-bench-rules-infavour-of-safe-harbour-for-intermediaries-in-myspace-t-seriesdispute.html 111 WP (Civil) 341 of 2008. INDIA / 71