An intermediary is a person or entity that acts as a link between the sender and receiver of information in digital form. It facilitates the transmission, storage, or access of data and does not have ownership or editorial control over the data being handled.
Examples include:
- Internet service providers (like Jio, Airtel)
- Social media platforms (like Facebook, WhatsApp, Instagram)
- E-commerce platforms (like Amazon, Flipkart)
- Blogging platforms (like WordPress, Blogger)
- Web hosting companies (like GoDaddy, HostGator)
2. Role and Functions of Intermediaries
- Hosting and Storing Data: Platforms like YouTube and Dropbox host and store content uploaded by users.
- Data Transmission: ISPs transmit data packets across the internet.
- Online Marketplaces: E-commerce platforms provide a space for sellers and buyers to interact.
- Communication Services: Email services (like Gmail) and messaging apps (like WhatsApp) facilitate direct communication.
- Financial Transactions: Payment gateways like Razorpay and Paytm enable online money transfers.
3. Legal Protection under Section 79 – Safe Harbour Provision
Section 79 of the IT Act provides conditional immunity to intermediaries for the third-party content they host.
They will not be held legally responsible for unlawful content posted by users, if they comply with the following:
- Do not initiate the transmission.
- Do not select the receiver of the transmission.
- Do not modify any part of the content.
- Take action to remove illegal content upon receiving government/court directions.
This concept of “safe harbour” is vital to ensure intermediaries are not burdened with the liability of monitoring all content uploaded on their platforms.
4. IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
These rules outline new compliance obligations, especially for significant social media intermediaries (those with more than 50 lakh users).
Key requirements:
- Grievance Officer: A person must be appointed to handle user complaints.
- Content Removal: Intermediaries must remove content within 36 to 72 hours of government or court direction.
- Traceability: Messaging apps like WhatsApp must identify the first originator of a message in case of serious offences.
- Compliance Reports: Monthly reports showing complaints received and action taken.
- User Verification: Platforms should offer voluntary account verification for users.
- Code of Ethics: For digital news and OTT platforms to ensure responsible content publishing.
5. Types of Intermediaries and Examples
| Type | Description | Examples |
|---|---|---|
| Internet Service Providers | Enable internet access to users | Airtel, Jio, BSNL |
| Social Media Platforms | Allow content sharing and networking | Facebook, Instagram, Twitter |
| Hosting Providers | Host websites and applications | GoDaddy, Bluehost |
| Online Marketplaces | Facilitate online buying and selling | Amazon, Flipkart |
| Payment Gateways | Enable digital financial transactions | Razorpay, Paytm, CCAvenue |
| Email/Messaging Services | Provide electronic communication | Gmail, Outlook, WhatsApp |
6. Importance of Intermediaries
- Enable Digital Ecosystem: They are essential for communication, trade, and content distribution on the internet.
- Facilitate E-Commerce and E-Governance: They power everything from online shopping to digital government services.
- Provide Platforms for Expression: Allow users to share opinions and content freely.
- Handle Data Responsibly: They are custodians of massive user data, responsible for securing it.
- Bridge Government and Citizens: Through portals and services, intermediaries help governments reach people directly.
7. Challenges Faced by Intermediaries
- Content Regulation vs Free Speech: Striking a balance between preventing harmful content and respecting free speech rights.
- Fake News and Misinformation: Platforms struggle to control the spread of misinformation.
- Privacy vs Traceability: Enforcing traceability (like in WhatsApp) can weaken user privacy and end-to-end encryption.
- Overload of Compliance: New regulations demand complex legal and technical compliance.
- Jurisdictional Issues: Content hosted in one country might violate the laws of another.
8. Legal Cases and Examples
- Shreya Singhal v. Union of India (2015): Supreme Court struck down Section 66A of IT Act and clarified the responsibilities of intermediaries, ruling that intermediaries are not liable unless they fail to act after a court order.
- Avnish Bajaj v. State (Bazee.com Case): CEO of an online marketplace was held responsible for an obscene MMS posted by a user — this case raised major questions about intermediary liability.
Conclusion
Intermediaries are critical pillars of India’s digital economy and infrastructure. While they facilitate communication and commerce, their legal responsibilities are increasing with the rise in cybercrime and misuse. The IT Act and Intermediary Rules aim to hold platforms accountable while protecting them from undue liability if they follow due diligence.
