In today’s world, the Internet and social media have become an integral part of our lives, giving rise to a significant online presence of individuals and organizations alike. There are certain provisions in place to safeguard the people and businesses that form the essential infrastructure for this online world. 

One such provision is the Safe Harbour to protect intermediaries, such as websites like Instagram and YouTube, from being held liable for the actions of third parties who use their platforms. These websites only offer a platform for users to share their content and do not exert any editorial control over the materials posted by users.

Crux of Safe Harbour 

The Safe Harbour provisions designed explicitly for intermediaries in India are outlined in Section 79 of the Information Technology Act, 2000 (‘IT Act’) and its corresponding Rules. Over time, these provisions have undergone significant evolution, influenced both by amendments to the underlying Act and Rules, as well as the interpretation given by the courts. The continuous development of these Rules has shaped how intermediaries are protected and held accountable in the digital landscape.

An ‘Intermediary’ is essentially a facilitator that helps in transmitting content between the creator and the consumer. These intermediaries play a crucial role in handling all kinds of information - including from harmless to potentially harmful, as they navigate through the vast spectrum of data available online.

Consequent Amendments 

The need to expand safe harbour provisions became evident in 2008 in the case of Avnish Bajaj vs. State (N.C.T.) Of Delhi, when the CEOof a website was charged under the Indian Penal Code for an obscene video that a third-party uploaded on their platform. In response to this situation, the IT Act underwent an amendment in 2008. It introduced a provision stating that intermediaries, which function merely as platforms for information transmission, would not be held liable for any offenses committed on their platform without their knowledge. 

Following the 2008 amendment, it was clarified that an intermediary’s eligibility to claim safe harbour largely depends on two crucial factors - whether they had actual knowledge of any unlawful activity and whether they fulfilled their due diligence obligations as prescribed by the law.  Then came the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 (IT Rules 2021) that made it obligatory for social media and digital streaming platforms to adhere to them if they wish to enjoy the ‘intermediary safe harbour’ status. This status essentially shields them from being held responsible for any content posted by third parties on their platforms. Undeniably, the IT Rules 2021 have significantly transformed the requirements compared to the IT Rules of 2011, where minimal compliance was sufficient to claim safe harbour protection.

View of the Indian Court

To clarify the position of intermediary, the Supreme Court, in the case of Shreya Singhal v. Union of India 2015 (5) SCC 1, clarified that intermediaries were not obligated to remove any material from their platform until and unless they received a court order directing them to do so. 

Further highlighting the eligibility criteria for intermediaries, the Delhi High Court in Christian Louboutin SAS v. Nakul Bajaj and Ors. stated that Safe Harbour protection applies exclusively to ‘passive’ intermediaries, which means intermediaries that function as mere conduits or passive transmitters of records or information. The judgment also outlined specific conditions an e-commerce intermediary must fulfill to be eligible for safe harbour protection.

In terms of the liability of intermediaries, in the recent case of Flipkart Internet Private Ltd. v. State of NCT of Delhi & Anr., the Delhi HC emphasized that intermediaries enjoy safe harbour protection from civil liability. Moreover, the court clarified that this protection should extend even in the context of criminal prosecutions, where a higher level of culpability is required. As long as the intermediary does not actively participate in the commission of the alleged offenses, they are eligible to seek protection under the IT Act.

Way forward 

The safe harbour principle holds significant value for entities operating in the digital realm as it helps them avoid unwarranted prosecution. This principle not only protects these entities from arbitrary penalties but also ensures that private companies do not dictate the fundamental rights of users. 

However, in recent times, the relevance of the safe harbour principle has been diminishing. Various jurisdictions worldwide have introduced stringent legislation to bypass this principle, aiming to hold companies accountable for user data regulation and imposing greater self-regulation duties on intermediaries.

In the next part of this series, we will delve into the government’s plans concerning safe harbour in the upcoming Digital India Act.

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