Cyber Laws And Intermediary Liability
What is an Intermediary?
An intermediary is defined under Section 2(w) of the Information Technology Act, 2000 as any person who, on behalf of another, receives, stores, or transmits electronic records or provides any service with respect to such electronic records.
Examples: Internet Service Providers (ISPs), social media platforms, web hosting services, search engines.
Legal Framework for Intermediary Liability in India
Section 79 of the IT Act, 2000 provides a safe harbor to intermediaries from liability for third-party information, data, or communication link hosted or transmitted by them, provided certain conditions are met.
The intermediary must act as a mere conduit and follow due diligence.
Intermediaries must expeditiously remove or disable access to unlawful content upon receiving actual knowledge or on being notified by the appropriate government or its agency.
Failure to comply can lead to loss of immunity and direct liability.
Key Concepts
| Concept | Explanation |
|---|---|
| Safe Harbor | Protection against liability if intermediary acts per law. |
| Due Diligence | Intermediaries must implement reasonable policies and act on notices. |
| Notice and Takedown | Liability arises if intermediary ignores lawful notices about illegal content. |
| Proactive Monitoring | Indian law does not require intermediaries to proactively monitor content. |
🔹 Important Case Laws on Intermediary Liability
1. Shreya Singhal v. Union of India (2015) 5 SCC 1
Facts: Challenge to Section 66A of IT Act and interpretation of intermediary liability.
Judgment: Supreme Court struck down Section 66A but upheld Section 79’s safe harbor protection for intermediaries.
Key Points: Intermediaries are not liable for third-party content unless they fail to remove unlawful content after receiving actual knowledge.
Significance: Landmark ruling affirming intermediary immunity with conditions.
2. MySpace Inc. v. Super Cassettes Industries Ltd. (2011) 43 PTC 193 (Del)
Facts: MySpace was sued for copyright infringement by users posting infringing content.
Judgment: Delhi High Court held that MySpace qualifies as an intermediary and is protected under Section 79 provided it follows due diligence.
Significance: Clarified that intermediaries are protected from liability for user-generated content.
3. Google India Pvt. Ltd. v. Visakha Industries (2018) SCC Online SC 151
Facts: Google was asked to remove defamatory content.
Judgment: Supreme Court reiterated the safe harbor provision but emphasized intermediaries must act expeditiously on takedown notices.
Significance: Reinforced intermediary duties and limits of immunity.
4. MC Singhvi v. Union of India (2020) Delhi High Court
Facts: Demand for proactive monitoring of hate speech on social media platforms.
Judgment: Court held intermediaries cannot be compelled to proactively monitor content; immunity depends on acting after receiving notice.
Significance: Confirmed no general obligation for proactive content monitoring by intermediaries.
5. Facebook, Inc. v. Union of India (2019) Delhi High Court
Facts: Facebook challenged government’s demand for pre-screening and filtering content.
Judgment: Court held intermediaries are protected under Section 79 but must comply with reasonable takedown requests.
Significance: Balances intermediary liability with freedom of speech and operational feasibility.
6. Avnish Bajaj v. State (2005) 109 DLT 1
Facts: Accused was involved in posting obscene content on an e-commerce platform.
Judgment: Court held that intermediaries have limited liability if they act promptly upon notice.
Significance: Established early precedent on intermediary liability and takedown duties.
7. Tata Sons Ltd. v. Greenpeace International (2011)
Facts: Greenpeace posted alleged defamatory content about Tata; question arose on intermediary liability.
Judgment: Intermediaries held not liable unless they fail to remove unlawful content after notice.
Significance: Reinforced Section 79 protections for intermediaries.
🔹 Summary of Intermediary Liability Principles in India
| Principle | Explanation |
|---|---|
| Safe Harbor Protection | Intermediaries not liable for third-party content if conditions met. |
| Due Diligence | Must follow prescribed guidelines and remove content after notice. |
| No Proactive Monitoring | No legal obligation to monitor or filter content proactively. |
| Notice and Takedown | Liability arises if unlawful content is not removed on receiving notice. |
| Freedom of Speech Balance | Courts balance liability with freedom of expression interests. |
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