• Intermediaries are entities that store or transmit data on behalf of

other persons, and include telecom and internet service providers,

online marketplaces, search engines, and social media sites.
• The Information Technology Act, 2000 (IT Act) was amended in 2008
to provide an exemption to intermediaries from liability for any third-
party information.
• Following this, the IT (Intermediary Guidelines) Rules, 2011 were
framed under the IT Act to specify the due diligence requirements for
intermediaries to claim such exemption.
• The Information Technology (Intermediary Guidelines and Digital
Media Ethics Code) Rules, 2021 were notified on February 25, 2021,
to replace the 2011 Rules.
• Key additions under the 2021 Rules include additional due diligence
requirements for certain social media intermediaries, and a
framework for regulating the content of online publishers of news and
current affairs, and curated audio-visual content.
• The Ministry of Electronics and Information Technology noted that
the changes were necessitated due to widespread concerns around:
(i) prevalence of child pornography and content depicting sexual
violence, (ii) spread of fake news, (iii) misuse of social media, (iv)
content regulation in case of online publishers including OTT
platforms and news portals, (v) lack of transparency and
accountability from digital platforms, and (vi) rights of users of digital
media platforms.
• The validity of the 2021 Rules have been challenged in various High
Courts.
• Who are intermediaries under the IT Act
• -is a person or third party
• Link between two parties
• facilitates communication between the two

• Section 2(1)win 2000 Act-intermediary as a person who receives,

stores or transmits any electronic record and provides any service
relating to such record on the behalf of another person. Intermediary
includes network service providers, telecom service providers, internet
service providers, search engines, web-hosting service providers,
online-auction sites, online payment sites, online-marketplaces and
cyber cafes.
• Intermediaries perform functions such as hosting content, collecting
information and evaluating information, facilitating communication
and information exchange, facilitating the use of the internet etc.
Examples of intermediaries include social media platforms such as
WhatsApp, Twitter, Instagram, Facebook; e-commerce sites such as
Myntra, Amazon; search engines, cloud service providers etc.
• But after the Amendment Act of 2008, the definition of the
intermediary under the Act and Section 79 of the Act were amended to
provide for a wider scope of protection to intermediaries.
• Section 79 of the IT Act provides for ‘Exemption from liability of
intermediary in certain cases
• Exemption from liability:- s-79(1) provides for exemption from
liability of an intermediary for any third party information, data, or
communication link made available or hosted by him. However, this
shall be subject to provisions of sub-section (2) and sub-section (3) of
Section 79.
• When exempted:-Section 79 (2) provides for the conditions which
must be fulfilled for granting exemption from liability to an
intermediary, which are as follows:
1.The intermediary’s function is limited to providing access to a
communication system over which information made available by
third parties is transmitted, hosted or stored;
2.The intermediary does not:
1. initiate the transmission,
2. select who receives the transmission, and
3. select or modify the information contained in the transmission,
3.The intermediary observes due diligence while performing his duties
under this Act and also observes such other guidelines prescribed by
the Central Government.
• Third-party information
• According to the explanation attached to Section 79 of the IT Act,
‘third party information’ means information that is dealt with by an
intermediary in his capacity as an intermediary.
• When can intermediaries be held liable:-Section 79 (3) of the IT Act
provides an exception to the immunity granted to intermediaries from
liability for third party information and acts under Section 79 (1) of
the Act. Intermediaries can be held liable for third party content hosted
by them in the following cases:
1.The intermediary is guilty of conspiring, abetting, aiding or inducing
the commission of the unlawful act;
1.Intermediary fails to expeditiously remove or disable access to any
material residing in or connected to a computer resource upon
receiving actual knowledge, or on being notified by the Government
that any information residing in or connected to such computer
resource controlled by the intermediary is being used to commit an
unlawful act. Such removal or disabling of access has to be done
without vitiating the evidence in any manner.
• Thus, the immunity provided to intermediaries is not absolute but is
subject to fulfilment of certain duties and following of certain
guidelines or rules issued as by the government.
The Information Technology (Intermediary Guidelines and Digital Media
Ethics Code) Rules, 2021

• were notified by the Central Government on 25th February 2021.

These rules have been framed by the central government in exercise of
the power conferred on it by Section 87 of the IT Act and will
supersede the
Information Technology (Intermediary Guidelines) Rules, 2011.
• these rules are divided into three parts, namely,
1.Preliminary providing for Definitions
2.Due Diligence by intermediaries
3.Code of ethics and procedure and safeguards in relation to digital media
• Part II of the rules (Rule 3-7) dealing with ‘Due Diligence by
intermediaries and grievance redressal mechanism’ provide for due
diligence requirements to be followed by all social media intermediaries
and additional due diligence requirements to be followed by significant
social media intermediaries. Thus, the rules categorise the digital
intermediaries into two categories:
1.Social Media Intermediaries (SMI);
2.Significant Social Media Intermediaries (SSMI).
• Due diligence by intermediaries: Under the IT Act, an intermediary is
not liable for the third-party information that it holds or transmits.
However, to claim such exemption, it must adhere to the due diligence
requirements under the IT Act and the Information Technology
(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
(which replace the earlier 2011 Rules).
• Under the 2011 Rules, the requirements included: (i) specifying, in
service agreements, the categories of content that users are not allowed
to upload or share, (ii) taking down content within 36 hours of receiving
a court or government order, (iii) assisting law enforcement agencies,
(iv) retaining blocked content and associated records for 90 days, and (v)
providing a grievance redressal mechanism for users and affected
persons and designating a grievance officer. The 2021 Rules retain these
requirements, while: (i) modifying the categories of content that users are
not allowed to upload or share, and (ii) prescribing stricter timelines for
the above requirements
• Significant social media intermediaries: The 2021 Rules define social
media intermediaries as intermediaries which primarily or solely
enable online interaction between two or more users. Intermediaries
with registered users above a notified threshold will be classified as
significant social media intermediaries (SSMIs).
• The additional due diligence to be observed by these SSMIs include
Personnel: An SSMI must appoint: (i) a chief compliance officer for
ensuring compliance with the Rules and the Act, (ii) a nodal person
for coordination with law enforcement agencies, and (iii) a grievance
officer, all of whom should reside in India.
• Identifying the first originator of information: An SSMI, which
primarily provides messaging services, must enable the identification
of the first originator of information within India on its platform. This
may be required by an order of a Court or the competent authority
under the IT Act. Such orders will be issued on specified grounds
including prevention, detection, and investigation of certain offences
such as those relating to national security, public order, and sexual
violence. Such orders will not be issued if the originator could be
identified by less intrusive means.
• Technology-based measures: SSMIs will endeavors to deploy
technology-based measures to identify: (i) content depicting child
sexual abuse and rape, or (ii) information that is identical to the
information previously blocked upon a court or government order.
Such measures: (i) must be proportionate to interests of free speech
and privacy of users, and (ii) have a human oversight and be reviewed
periodically. User-centric requirements: SSMIs must provide users
with: (i) a voluntary identity verification mechanism, (ii) a mechanism
to check the status of grievances, (iii) an explanation if no action is
taken on a complaint, and (iv) a notice where the SSMI blocks the
user’s content on its own accord, with a dispute resolution
mechanism
• Digital Media Publishers: The 2021 Rules prescribe certain
requirements for online publishers of: (i) news and current affairs
content which include online papers, news portals, aggregators and
agencies; and (ii) curated audio-visual content, which is defined as a
curated catalogue of audio-visual content (excluding news and current
affairs) which is owned by, licensed by, or contracted to be
transmitted by publishers and available on demand. The Rules
institute a three-tier structure for regulating these publishers: (i) self-
regulation by ,[6],[7],[8] ,[10] publishers, (ii) self-regulation by
associations of publishers, and (iii) oversight by the central
government.
• Code of Ethics: For publishers of news and current affairs, the
following existing codes will apply: (i) norms of journalistic conduct
formulated by the Press Council of India, and (ii) programme code
under the Cable Television Networks Regulation Act, 1995. For online
publishers of curated content, the Rules prescribe the code of ethics.
This code requires the publishers to: (i) classify content in specified
age-appropriate categories, restrict access of age-inappropriate
content by children, and implement an age verification mechanism,
(ii) exercise due discretion in featuring content affecting the
sovereignty and integrity of India, national security, and likely to
disturb public order, (iii) consider India’s multiple races and religions
before featuring their beliefs and practices, and (iv) make content
more accessible to disabled persons.
• Grievance redressal: Any person aggrieved by the content of a
publisher may file a complaint with the publisher, who must address it
within 15 days. If the person is not satisfied with the resolution, or the
complaint is not addressed within the specified time, the person may
escalate the complaint to the association of publishers, who must also
address the complaint within 15 days.
• The complaint will be considered by an interdepartmental committee
constituted by the Ministry of Information and Broadcasting if: (i)
escalated by the complainant or the association under certain
conditions, or (ii) referred by the Ministry itself.
• Oversight by Ministry: The Ministry of Information and Broadcasting
will: (i) publish a charter for self regulating bodies, including Codes of
Practices, (ii) issue appropriate advisories and orders to publishers;
(iii) have powers to block content on an emergency basis (subject to
review by the inter-departmental committee). Any directions for
blocking content will be reviewed by a committee headed by the
Cabinet Secretary.
• Rule 7 of the said rules provides that failure to observe
these rules shall disqualify an intermediary from
exemption from liability under Section 79(1) of the IT
Act and such intermediary shall be punishable under IT
Act and the Indian Penal Code 1860.
• Case laws:-
• Shreya Singhal v. Union of India (2015)
• n this landmark judgement, the Hon’ble Supreme Court
struck down Section 66A of the IT Act 2000 as being
violative of Article 19(1)(a) of the Constitution of India.
In this case, Section 79(3)(b) of the IT Act was also
challenged to the extent that it allows the intermediary
to exercise its own judgment upon receiving actual
knowledge that any information is being used to commit
unlawful acts. It was also contended that the expression
“unlawful acts” in the said section goes way beyond the
subjects provided in Article 19(2) of the Constitution.
• My Space Inc. v. Super Cassettes Industries Ltd. (2016)
• In this case, Super Cassettes India Ltd. filed a suit
against myspace.com alleging that it allows its users to
share Super Cassette’s copyrighted work without
permission. The Court held that Sections 79 and 81 of
the IT Act and Section 51(a)(ii) of the Copyright Act
have to be read harmoniously. The Court also
introduced the concept of ‘actual or specific knowledge’
to hold that the intermediaries could be held liable if
they have either actual or specific knowledge of the
existence of unlawful content on their website and if
they do not take down such content despite notice.
• Christian Louboutin SAS v. Nakul Bajaj and Ors. (2018)
• In this case, Delhi High Court had to decide on the
liability of an e-commerce platform, darveys.com for
infringement of trademark rights of Christian Louboutin
whose products were being sold on the platform. The
court distinguished ‘active’ and ‘passive’ intermediaries
and held that Section 79 of the IT Act is to protect
genuine intermediaries and cannot be abused by
extending it to those persons who are not
intermediaries and are active participants in the
unlawful act.
• Amazon Seller Services Pvt. Ltd. v. Amway India Enterprises Pvt. Ltd.
and Ors (2020)
• In this landmark case, the Delhi High Court held that
there is no distinction between passive and active
intermediaries so far as the availability of the safe
harbor provisions is concerned and an intermediary
shall not be liable for any third-party information, data
or communication link made available or posted by it,
as long as it complies with Sections 79 (2) or (3) of the
IT Act.