Intermediaries and Their Liabilities

Definition of Intermediary (Section 2(1)(w))

Any person who provides services for the transmission or reception of electronic records or provides access to cyberspace

As per Section 2(1)(w) of the Information Technology Act, 2000, an intermediary means any person who on behalf of another person receives, stores or transmits any electronic record or provides any service with respect to that record. This includes services that facilitate access to or transmission of data in the digital environment.

Examples: ISPs, Hosting Services, Search Engines, Online Marketplaces

Examples of intermediaries under Indian law include:

• Internet Service Providers (ISPs) – e.g., Airtel, Jio
• Web Hosting Platforms – e.g., GoDaddy, Bluehost
• Search Engines – e.g., Google, Bing
• Social Media Platforms – e.g., Facebook, Twitter
• Online Marketplaces – e.g., Amazon, Flipkart, OLX
• Messaging Services – e.g., WhatsApp, Telegram

These entities provide infrastructure and services that support the digital ecosystem and are essential for online communication, commerce, and data exchange.

Safe Harbour Provisions (Section 79)

Exemption from liability for intermediary

Section 79 of the IT Act, 2000 provides the concept of "safe harbour" to intermediaries. It exempts them from liability for third-party content hosted or transmitted through their platforms, provided certain conditions are met.

Meaning: Intermediaries are not liable for unlawful content posted by users as long as they do not initiate, select the receiver of, or modify the content.

Conditions for exemption (due diligence, compliance with IT Act and rules)

The safe harbour is conditional and available only if the intermediary:

• Acts as a passive conduit: Does not initiate the transmission
• Does not modify the information: Remains a neutral platform
• Observes due diligence: As per the Intermediary Guidelines Rules
• Acts upon takedown notices: Removes illegal content when notified by government or court orders

Loss of Protection: If intermediaries fail to act on official takedown requests or fail to comply with due diligence norms, they lose this immunity and can be held legally accountable.

Intermediary Guidelines and Directions for Information Technology (Intermediaries Guidelines and Digital Media Ethics Code) Rules, 2021

Due diligence obligations

Under the 2021 Rules, intermediaries must:

• Publish terms and conditions, privacy policy, and user agreements
• Prohibit users from posting content that is unlawful, harmful, or offensive
• Deploy automated tools to identify and remove explicit content
• Inform users about removal or disabling access to content

Take-down notices

Intermediaries must act upon:

• Government orders under Section 69A of IT Act
• Court orders under Code of Civil/Criminal Procedure

They must take down unlawful content within 36 hours of receiving such orders and preserve user data for 180 days post-removal for investigation.

Traceability requirements

Significant social media intermediaries (SSMIs) like WhatsApp are required to:

• Enable traceability of originators of unlawful content
• Appoint a Chief Compliance Officer (CCO), Grievance Officer, and Nodal Contact Person — all based in India

Note: This provision has raised concerns about end-to-end encryption and privacy rights. The issue is pending legal review in Indian courts.

Conclusion

Intermediaries play a crucial role in the digital ecosystem. The evolving legal framework seeks to strike a balance between freedom of expression, platform immunity, user rights, and state interests. Compliance with due diligence is now not just ethical but a legal imperative to retain safe harbour protections.