The advent of the internet has revolutionized communication, commerce, and information dissemination. However, this digital transformation has also led to new legal challenges, particularly concerning liability for online content. As people increasingly rely on digital platforms for communication and business transactions, issues such as defamation, copyright infringement, trademark violations, and obscenity have become more prevalent.

The role of intermediaries—such as social media platforms, e-commerce websites, and digital service providers—has been a focal point in legal debates worldwide. These platforms host and transmit vast amounts of user-generated content, leading to conflicts regarding their responsibility for objectionable or illegal material.

In India, the legal framework governing intermediaries is primarily outlined in the Information Technology Act, 2000 (amended in 2008) and the Information Technology (Intermediary Guidelines) Rules, 2011. These laws define the scope of an intermediary's liability, the due diligence requirements, and the legal protections available to aggrieved parties.

This article delves into landmark judicial pronouncements that have shaped the legal landscape surrounding intermediary liability in India. By analyzing key cases, we seek to understand how Indian courts interpret these laws and balance the interests of free speech, privacy, and regulatory enforcement.

Legal Framework Governing Intermediaries in India

Section 79 of the Information Technology Act, 2000 (Amended in 2008)

Section 79 of the IT Act provides a "safe harbor" provision, protecting intermediaries from liability for third-party content, provided they fulfill certain conditions. According to this provision:

• The intermediary's role is limited to providing access to a communication system without initiating the transmission.
• The intermediary does not select the receiver of the transmission.
• The intermediary does not alter or modify the information contained in the transmission.
• The intermediary exercises due diligence while discharging its duties under the law.

However, intermediaries lose this protection if they conspire, abet, aid, or induce an unlawful act. They are also required to remove any objectionable material upon receiving actual knowledge or a government notice.

Rule 3(4) of the Information Technology (Intermediary Guidelines) Rules, 2011

• Intermediaries must act within 36 hours of receiving written notice about any illegal content.
• They must cooperate with law enforcement agencies.
• They are required to preserve such information for at least 90 days for investigative purposes.

The core principle behind these provisions is that intermediaries should not be held liable for content posted by users unless they have knowledge of illegal material and fail to take prompt action.

The Relevant Provision till date:

• IT Act, 2000: Initially offered limited protection to "network service providers" under Section 79.
• IT (Amendment) Act, 2008: Broadened the definition of "intermediary" and introduced a robust safe harbour under Section 79.
• IT (Intermediary Guidelines) Rules, 2011: Specified due diligence obligations for intermediaries.
• IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021: Expanded obligations including proactive monitoring and traceability for SSMIs.

Judicial Precedents on Intermediary Liability in Chronological Order

• Google India Pvt. Ltd. v. Vishakha Industries (2009):
  Held that intermediaries are not liable for user content unless they fail to act upon notice. Set early groundwork on intermediary liability.
• Avnish Bajaj vs. State (Bazee.com Case) (2004):
  Exposed the inadequacy of pre-2008 safe harbour provisions and led to the 2008 amendment. Highlighted lack of filters on platforms.
• Shreya Singhal vs. Union of India (2015):
  Struck down Section 66A. Read down Section 79(3)(b) requiring content removal only upon court or government order.
• MySpace Inc. vs. Super Cassettes Industries Ltd. (2016):
  Clarified copyright-related takedowns do not need court orders. Intermediaries must act on specific IP notices.
• Sabu Mathew George vs. Union of India (2017):
  Required auto-blocking of sex-selection ads. Introduced proactive intermediary duties in specific statutory contexts.
• Kamlesh Vaswani v. Union of India (2017):
  Directed intermediaries to block child pornography sites per government directions. Emphasized public interest duties.
• Christian Louboutin SAS vs. Nakul Bajaj & Ors. (2018):
  Safe harbour denied to intermediaries actively involved in sales. Introduced 26-factor test for active vs passive role.
• Kent RO Systems Ltd. vs. Amit Kotak & Ors. (2017):
  eBay retained safe harbour but required to remove infringing content upon notice, aligning with IP case law.
• Amway India Enterprises Pvt. Ltd. vs. 1MG Technologies Pvt. Ltd. (2019):
  Denied safe harbour to platforms engaging in unauthorized sale of Amway's products. Expanded Louboutin ruling.
• Google India Pvt. Ltd. vs. Visaka Industries (2020):
  Reaffirmed that intermediary liability requires a court or government order, not just a private complaint.
• Ajit Mohan vs. Legislative Assembly, NCT of Delhi (2021):
  Safe harbour does not exempt intermediaries from legislative inquiries; cooperative obligations remain intact.
• DRS Logistics (P) Ltd. and Anr. v. Google India Pvt. Ltd. and Ors. (2021):
  Delhi HC reiterated need for intermediaries to act upon gaining actual knowledge of defamatory content.

Conclusion: A Developing Legal Landscape: India's approach to intermediary liability has come a long way—from the unclear rules of the Bazee.com era to the more balanced and nuanced regime we see today. Early cases revealed serious legal gaps. The Shreya Singhal judgment protected freedom of speech, while later rulings like Christian Louboutin and Amazon placed greater responsibility on platforms engaged in active commerce. The Sabu Mathew George case showed courts may impose specific proactive duties in public interest matters.

As of March 2025, the legal framework continues to evolve, particularly in light of the 2021 IT Rules and the expanding role of intermediaries in commerce and public discourse. Future judicial decisions are expected to further test and define the scope of proactive obligations, shaping the next chapter of India's digital regulation.

Disclaimer: The information shared here is intended to serve the public interest by offering insights and perspectives. However, readers are advised to exercise their own discretion when interpreting and applying this information. The content herein is subjective and may contain errors in perception, interpretation, and presentation.

Written By: Advocate Ajay Amitabh Suman, IP Adjutor - Patent and Trademark Attorney
Email: [email protected], Ph no: 9990389539