In the digital age, intermediaries play a central role in facilitating the exchange of information between users on the internet. From social media platforms to ISPs and cloud service providers, intermediaries are essential to the functioning of the digital ecosystem. However, given the enormous power they wield in content distribution and data handling, the question of their liability, especially when unlawful or harmful content is shared through their platforms, becomes critical. In India, the Information Technology (IT) Act, 2000, provides the legal framework for defining intermediaries and outlining the extent of their liability.
Who are Intermediaries?
The Information Technology Act, 2000, defines an “intermediary” under Section 2(1)(w) as any person who on behalf of another person receives, stores, or transmits any particular electronic message or provides any service with respect to that message. Intermediaries include:
- Internet Service Providers (ISPs)
- Social Media Platforms (e.g., Facebook, X, Instagram)
- Web Hosting Services
- Search Engines (e.g., Google, Bing)
- Online Marketplaces (e.g., Amazon, Flipkart)
- Payment Gateways
- Blogging Platforms
- Messaging Services (e.g., WhatsApp, Telegram)
These entities act as facilitators or enablers for the creation, storage, and exchange of digital content or transactions without themselves generating the content.
Need for Regulation
Intermediaries, while not originators of content, can be misused for spreading hate speech, fake news, child pornography, illegal sales, and other cybercrimes. Thus, regulation is necessary to ensure that:
- Intermediaries do not become safe havens for unlawful activity.
- Users’ rights are protected.
- There is accountability in content moderation and platform governance.
- Legal remedies are available to victims of cybercrime.
Liability of Intermediaries under the IT Act, 2000
The liability of intermediaries is primarily governed by Section 79 of the IT Act, 2000. This section provides a “safe harbour” protection to intermediaries, meaning they are not liable for third-party information, data, or communication links made available or hosted by them, provided they meet certain conditions.
✅ Conditions for Safe Harbour under Section 79:
- The intermediary must act as a mere conduit, not initiating or modifying the transmission.
- They must exercise due diligence while discharging their duties.
- Upon receiving actual knowledge (through a court order or a government notification) of unlawful content, they must act quickly to remove or disable access to the content.
Failure to comply with these conditions revokes their immunity and makes them liable for civil or criminal action.
Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
To clarify and enhance the due diligence requirements, the IT Rules, 2021 were notified under Section 87 of the IT Act. These rules impose additional responsibilities on intermediaries:
🧩 Key Features of the 2021 Rules:
- Due Diligence Obligations
- Publish terms of service, privacy policies, and user agreements.
- Inform users not to host or share content that is defamatory, obscene, or illegal.
- Grievance Redressal Mechanism
- Appoint a Grievance Officer to handle user complaints.
- Resolve complaints within 15 days.
- Significant Social Media Intermediaries (SSMIs)
Platforms with more than 50 lakh users in India (like WhatsApp, Facebook) have enhanced obligations:- Appoint a Chief Compliance Officer, Nodal Officer, and Grievance Officer – all residing in India.
- Enable traceability of the first originator of information, especially for messages related to security, sovereignty, or public order.
- Content Takedown
- Must act within 36 hours to remove unlawful content upon government or court notice.
- Must disable content within 24 hours in cases involving nudity or sexual content.
These rules aim to strike a balance between freedom of speech and the need to curb misuse of online platforms.
Judicial Interpretations
Several court rulings have clarified intermediary liability in India:
- Shreya Singhal v. Union of India (2015)
- The Supreme Court read down Section 79(3)(b), stating that intermediaries are not required to act on any user complaint unless directed by a court order or government notification.
- Protected free speech and narrowed the scope of takedown responsibility.
- MySpace v. Super Cassettes (2016)
- Delhi High Court held that proactive monitoring by intermediaries is not mandatory.
- Imposing such a duty would be impractical and unreasonable.
These rulings underline the principle that intermediaries cannot be treated as publishers, and their liability should be limited to their role and actual knowledge.
Exceptions to Safe Harbour
Intermediaries lose their protection under Section 79 if:
- They collaborate or conspire in the commission of an unlawful act.
- They fail to act on a takedown request after being informed of illegal content.
- They do not comply with the due diligence rules as per IT Rules, 2021.
Emerging Challenges
With the growth of AI tools, algorithmic content filtering, and encrypted communication, new privacy and accountability challenges are emerging:
- End-to-end encryption vs. traceability requirements
- Fake news and deepfakes spreading via messaging apps
- Data localization and cross-border jurisdictional issues
The government and courts are constantly updating interpretations and policies to keep pace with these developments.
Conclusion
Intermediaries are crucial players in India’s digital landscape, acting as platforms for free expression and commerce. However, with great power comes great responsibility. The IT Act, 2000, along with the 2021 Rules and judicial decisions, attempts to ensure that intermediaries remain facilitators—not abusers—of digital freedom. The “safe harbour” protection strikes a balance by holding intermediaries accountable only when they fail to act responsibly. As digital technology evolves, so must the law, ensuring user protection without stifling innovation.
Mnemonic Sentence to Remember Key Points:
🎓 “WISE GHOST POSTS SMOOTHLY”
- W – Who are intermediaries (Sec 2(1)(w))
- I – IT Act, 2000 foundation
- S – Safe Harbour (Section 79)
- E – Exceptions to safe harbour
- G – Grievance Officer requirement
- H – Hosting rules in IT Rules 2021
- O – Obligations under due diligence
- S – SSMI (Significant Social Media Intermediaries)
- T – Takedown mechanism (36-hour/24-hour window)
- P – Puttaswamy impact on privacy
- S – Shreya Singhal case clarity
- M – MySpace case on monitoring
- O – Originator traceability
- O – Online content regulation
- T – Technology & enforcement balance
