The laws governing intermediaries1 in India have had to change continually to adapt to the dynamic nature of the internet. With unimaginable amounts of data being shared between users in a matter of seconds, it is highly impossible for intermediaries to effectually monitor what is being exchanged over their platforms. As such, the law, as it stands today is, is much different than it was two decades ago when the internet was at a more nascent stage. It has taken several amendments to the Information Technology Act (“IT Act”) and rules, as well as judicial rulings, to bring about relaxations in the liability of internet intermediaries.
When the IT Act came into force in 2000, it only recognised network service providers as intermediaries and thereby placed on every other internet platform the burden of regulating content stored or shared by third-parties via their platform. The liability of internet platforms was enmeshed with any content that was stored or uploaded on their platform, which was an impossible task for such providers and so, an issue of great concern. It was the case of Avnish Bajaj v. State2 that triggered the much-needed amendment to the IT Act. The case centred around the lack of safeguards on internet platforms and almost had the managing director of the website ‘www.bazee.com’ face criminal prosecution for third-party content. The Court recognised that, while third-party content displayed on the website was illegal by law, the managing director could not be implicated in this matter in lieu of the company he oversaw.
Safe Harbour Protection – As a result of the Avnish Bajaj case, the 2008 amendment to the IT Act was amended to offer greater protection to digital intermediaries on the internet under Section 79. It was made clear that the definition of ‘intermediaries’ was to be expanded to include various internet platforms that handle third-party content. The amendments also provided such intermediaries with more protection against being held liable or accountable for any third-party content on their platforms.
With that said, the protection provided under Section 793 of the IT Act was not blanket protection since certain conditions needed to be met in order to claim such protection, such as:
It would be prudent to note that such safeguards under Section 79 do not apply in cases where the intermediary has conspired with, abetted, aided, induced the unlawful act, or has possessed prior knowledge of such content but failed to act upon it. Intermediaries are obliged to adhere to a set of rules and regulations in the discharge of their duties in order to claim protection under Section 79 of the IT Act. As such, another development was introduced by the Government of India – The Information Technology (Intermediary Guidelines) Rules, 2011. While intermediaries, to some extent, remained largely free from prosecution arising out of any third-party content on their platforms, their problems were far from over. The two key points discussed below explain why:
No duty to entertain all user requests – As the internet continued to expand its user base, the number of end users occupying the platforms of such intermediaries rose explosively as well. On such platforms, issues arose regarding content regulation, privacy policy, disagreements on current affairs, etc., resulting in millions of users flagging down offensive or unlawful content and reporting it to the intermediary on a daily basis. Such intermediaries would thus be flooded with user requests and complaints and attending to each request became a colossal task. Relief was provided to intermediaries in the case of Shreya Singhal v. Union of India4 where the Supreme Court held that it would be challenging for intermediaries to act upon every user request to take down allegedly unlawful content. The Court further modified the term ‘actual knowledge’ under Section 79(3)(b) of the IT Act to exclude such user requests and instead clarified that it implied a court order or being notified by the government or an appropriate agency.
No duty to screen illegal content or copyright infringement – The case of My Space Inc. v. Super Cassettes Industries Ltd.5 resulted in further relaxations to the duties and obligations of intermediaries when it came to pre-screening content that was being stored or uploaded onto their platform. Here, the Delhi High Court stated that if intermediaries were to take up such pre-screening responsibilities, it would denote that free speech and censorship would be in the hands of private entities. However, the Court noted, as an exception, that when the intermediary is notified by any content owner about an infringement, they must take appropriate steps to take it down and there shall be no requirement for a court order or notice from the government in such cases.
It is significant to note that for intermediaries to benefit from the safeguards above mentioned, they would be required to adopt appropriate due diligence measures to try and avoid such situations to the best of their ability. The Delhi High Court emphasised on this in the case of Christian Louboutin SAS v. Nakul Bajaj and Ors6; it held that failure to observe due diligence could amount to conspiring, aiding, abetting, or inducing the unlawful conduct.
While the relaxations above limited the liability of intermediaries in many ways, the government still sought to tighten existing rules and ensure that the residual responsibilities of intermediaries are being adhered to diligently. Accordingly, the Government of India notified The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021.7 For the benefit of intermediaries, it is clear that (from the various rules formulated under the IT Act) the government has taken into account judicial precedents and continues to recognise that intermediaries have limited control over third-party content on their platform and cannot be held liable for the same, except under certain circumstances.
Nevertheless, the new rules have provided for an exhaustive list of duties that intermediaries must follow, such as:
In order to tighten the grip of the executive over intermediaries, the rules have further gone on to differentiate social media intermediaries from significant social media intermediaries (determined by the number of users) by placing on them additional responsibilities given that their platforms are used by more users.
The changes to the IT laws over the years concerning intermediaries have been several and significant in nature and will continue to undergo changes as the digital landscape evolves. While liability over third-party content has decreased significantly, the duties of intermediaries have undergone a considerable increase as well. These changes have ensured that the basic meaning of the term ‘intermediaries’ remains sustained and that such online platforms are just spaces for social interaction between end users, wherein the platform itself shall not be liable for any wrongful acts of its users. The decision in the case of Avnish Bajaj v. State was a notable starting point when it came to major amendments to the IT Act on the functions of intermediaries. Further, the increase in duties through various amendments and rules ought to be taken in a positive light, as it is a means for intermediaries to safeguard themselves and avoid liability from the wrongful acts of users who occupy their platforms. However, it should be noted that these duties are stringent in nature and failure to abide by them would hold intermediaries liable to the fullest extent of the IT Act.
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