Introduction: What is an Intermediary
The term 'Intermediary' has been defined in clause (w) of sub-section 1 of section 2 of the Information Technology Act, 2000 (" IT Act") as "any person who on behalf of another person receives, stores or transmits an electronic record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes".
This is a very broad definition. This not only covers social media companies (e.g., Facebook, Twitter) but also a wide range of players in the internet ecosystem including search engines (Google Inc., Yahoo Inc.), online payment sites (Paypal, Phonepe), online-market place (Amazon, Flipkart), telecom service providers (Jio, Vi), and cyber-cafes. The definition applies to any company where the user has an identity in the intermediary in form of a unique account/number (though some intermediaries may not require prior registration for access), who accesses, uses, and interacts with other users (who may or may not be of the same kind) and the intermediary enables these interactions. Cyber-cafes would be an exception to this notional definition.
Regulation of Intermediary in India
Intermediaries did not have protection of safe harbour until 2008. That is, there was nothing in the IT Act which protected intermediaries from content posted by its users. This became clear in Avinash v State1, where the managing director of an e-commerce company was charged with criminal provisions of the Indian Penal Code, 1860 for the content posted by third parties on the e-commerce company. The Delhi High Court observed that there was a requirement for widening the scope of protection given to intermediaries. Consequently, the IT Act was amended in 2008 to include a safe harbour regime under Section 79 of the IT Act, along with an amendment in the definition of intermediaries.
Intermediary Guidelines, 2011 and the Shreya Singhal Judgement
In the landmark judgment of Shreya Singhal v Union of India2, the Supreme Court also discussed the intermediary liability, "Section 79 is valid subject to Section 79(3)(b) being read down to mean that an intermediary upon receiving actual knowledge from a court order or on being notified by the appropriate government or its agency that unlawful acts relatable to Article 19(2) are going to be committed then fails to expeditiously remove or disable access to such material.... Similarly, the Information Technology "Intermediary Guidelines" Rules, 2011 are valid subject to Rule 3 sub-rule (4) being read down in the same manner as indicated in the judgment."
Intermediaries Guidelines 2021
The Intermediaries Guidelines 2011 were superseded by Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 ("Intermediary Guidelines"). The new guidelines inter alia have brought a classification of intermediaries. They classified them into social media intermediary and significant social media intermediary, based on the number of users served by the intermediary. Significant social media intermediary, which has a higher threshold of registered users (50,00,000 (fifty lakh) as per a recent notification3), has certain additional obligations. Unlike the Intermediary Guidelines, 2011, these guidelines also regulate OTT channels and providers of news and current affairs on the internet under a different chapter.
A 'significant social media intermediary' has
to observe certain additional due diligence4 such as
appointing an Indian resident as Chief Compliance Officer, a nodal
contact person for 24x7 coordination with law enforcement agencies
and a Resident Grievance Officer and publisha
monthly compliance report.
It is only logical that intermediaries cannot be made responsible for what third parties post on their platforms but to absolve them entirely from third-party liability would not be advisable in this hyperconnected world where companies like Facebook and Twitter are universes in themselves. Cambridge Analytica scandal showed the potential of these platforms. Facebook, which remains the first and often the only source of information for many people could influence the world in manners no one can, and could affect public order, markets, and entire democracies, on a very large scale. The point is to strike a balance between the two opposite ends of the spectrum. The bottom line is provide freedom to intermediaries to operate smoothly but have enough checks and compliances to prevent them from becoming uninhibited, archaic tech nations. Intermediary Guidelines so far as the social media intermediaries are concerned (which cannot be said about the regulation of digital media and OTT platforms), have arguably struck the balance between the security of the State and privacy of the citizens.
1. 2008 (105) DRJ 721
2. (2013) 12 S.C.C. 73
3. Ministry Of Electronics and Information Technology, [F. No. 16(4)/2020-CLES], (Notified on 25.02.21)
4. Rule 4, Information Technology (Intermediaries Guidelines) Rules, 2011
Originally published 4 January, 2022
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.