Author: Aditi Raj, Government Law College

In this paper, the author talks about how intermediary safe harbors apply to digital marketplaces and social media such as Facebook, Instagram, Twitter, YouTube etc. With the sudden increase of e-commerce platforms, intermediaries have become an important part of how people interact and carry out their transactions online. The paper seeks to examine the role of the safe harbour in the context of the Information Technology Act, 2000, as well as the challenges in the context of the changing dynamics in cyber law today. It argues that the role of the safe harbour is crucial in the digital space today. However, it is now slowly becoming inadequate in the context of the changing dynamics in cyber law today and why it is essential to find and get a balance. With the rise of problems such as online fraud, counterfeit products, and harmful online content in online marketplaces, there has also been a visible shift in the direction of imposing greater responsibilities on online intermediaries. In this regard, the paper also discusses the dilemma of striking a balance between the need to ensure neutrality in the functioning of online intermediaries and the need to impose stricter compliance obligations on online intermediaries. It also discusses the challenges that online intermediaries may face in striking a balance in this regard, as the consequences of over-regulation may also be the stifling of online commerce in the country.

KEYWORDS:

Safe Harbour, Cyber law, Intermediary, Information Technology Act, 2000, Protection

Safe harbour is a legal protection that defends a person or entity from liabilities, only if they follow certain rules and conditions laid down by law. Intermediary liability refers to the legal responsibilities of social media platforms or entities that act as a link between the users and content. It refers to the legal responsibility of platforms or entities that act as a middleman between users and content such as Google, Facebook, YouTube. Like for example, someone uploads a defamatory post on Facebook then, Is Facebook responsible? or only the person who posted it is liable? That’s where intermediary liability rules apply. The intermediary safe harbour concept has become an essential and controversial legal protection for platforms against potential liability for the content provided by third parties in some specific situations. In India, Information Technology Act, 2000 deals with such types of laws, which allows for intermediaries non-liability if they act in a certain manner and follow certain rules, carry out due diligence requirements. The previous intent of this framework was to support the growth of digital platforms through limited legal exposure. However, because the way online harm and illegal activity are changing, these protections continue to receive greater scrutiny. These days, Countries' regulatory focus has shifted from data misuse, and user-harming websites to demanding more accountability and responsibilities from intermediaries. This shift in emphasis is putting effective regulation and maintaining platform neutrality at odds. The concept of intermediary safe harbour is changing as cyber governance frameworks develop. This calls into question the applicability of the legal notion of intermediary safe harbour and its capacity to address the present problems in the digital marketplace. It looks at how the digital marketplace is redefining what constitutes a safer intermediary under evolving cyber governance frameworks.

Before the internet period, it was easy to decide and fix responsibilities. If something illegal was published, the publisher was liable. But once the internet arrived, this clear distinction started to fall apart. Suddenly, platforms were not creating content but they were just hosting millions of users who were creating it themselves and gaining out of it. Governments in the 1990s confronted a dilemma regarding differing options available for government according to how to classify online platforms. If they were to classify those platforms as publishers, then those platforms would take responsibilities for all content provided by contributors using those platforms. But doing so would virtually make it impossible for those platforms to function. As a result, the legislation must change and adapt; this could be attributed to the government’s implementation of Safe Harbor protection. Safe Harbor basically states that "as long as you follow with certain obligations, we will not hold you accountable for any content given by your contributors." As a result, this method made it possible for websites to continue expanding on the Internet without the ongoing legal concerns that come with each one. Safe Harbour provisions for intermediaries in India are found under the Information Technology Act, 2000 (“IT Act”) and its corresponding rules. The Safe Harbour rules have evolved a lot since their enactment, majorly through amendments of the underlying act and rules, and partly through the way in which these provisions are interpreted by the Law of Court.

Under its initial version of the IT Act, there was no Safe Harbour defence available to internet intermediaries. To illustrate this point, the term intermediary was defined only as an entity (who on behalf of someone else) receives, stores and transmits an electronic message or provides a service in relation to that electronic message. Thus, even those intermediaries that were determined to fit strictly within this narrowly defined category of intermediary were protected only with respect to any offence defined by the IT Act and not any other offence created under the law.

Due to the inadequacy of these few provisions for protecting an intermediary against third party content, an instance occurred in 2004 when a CD containing pornographic material was publicly offered for sale on bazee.com by a user. Mr. Ravi Raj, the seller, and Mr. Avnish Bajaj, who was the CEO of bazee.com. he was arrested and charged with the same crime as a result of this incident. The case illustrates the problems with existing laws governing internet intermediaries, as well as exposing mediators to potential liability for materials that they did not create and that were only provided with a means of posting/publishing by the intermediary. By creating potential liability for intermediaries and with the continued growth of e-commerce may have been obstructed. Therefore, in 2008, the IT Act was amended to increase the scope of intermediaries' safe harbour protections.

Presently the definition of an ‘intermediary’ has been broadened to include “any person, who on behalf of another person, receives, stores or transmits any particular electronic record or provides any service with respect to that record.” Safe Harbour provisions are found under Section 79 of the Information Technology Act, 2000 (“IT Act”). Section 79 (2) lists out the requirements to avail safe-harbour protection. The Information Technology (Intermediary Guidelines) Rules, 2011 (“Intermediary Guidelines”) are the primary guidelines which intermediaries need to observe to avail safe-harbour protection. These guidelines list out the due diligence requirements that must be observed by intermediaries to avail the safe-harbour protection.

Safe Harbour provisions are the need of the hour for the smooth functioning of the current digital marketplaces. These include Amazon, Snapchat, Flipkart, Facebook, Instagram, etc., where millions of users are involved, posting content on the platform every day. It would be almost impossible for these platforms to verify each and every piece of content before it is uploaded. Safe Harbour provisions come into the picture here, where these platforms cannot be held responsible for the content uploaded by the users, provided they act responsibly when the situation arises. This is essential because it gives digital platforms a chance to expand and be innovative without the constant fear and threat of legal consequences.

Imagine, for instance, that before any firm can start operating, all user actions must be approved. This would impede growth and make it challenging for businesses to enter the industry. As a result, Safe Harbour allows them to grow, which benefits customers through their inventions.

The necessity for Safe Harbour has grown as ecommerce and digital interactions have increased. Every day, countless transactions and user-generated content are published on digital platforms, making it impractical to monitor everything closely. Safe Harbour helps these platforms operate effectively while motivating them to establish robust reporting and grievance mechanisms to address issues such as counterfeit goods or false statements. At the time Safe Harbour does not mean a free pass. Social media platforms have to act. They must remove harmful content when they know about it. Platforms have to be careful with the content they allow. Safe Harbour protection is not a get-out-of-jail- card. They still have to follow the rules. 

The goal is to find a right balance that the digital platforms are protected at any cost. They are also responsible for any illegal content on their site. They have to make sure they do not spread any unusual or illegal content. Safe Harbour is really important because it gets people involved. It helps sellers and buyers work together. Small businesses and people who sell things on their own can join websites that sell things without having to deal with a lot of legal stuff. At the time buyers feel okay about sharing what they think about the things they bought. When people can say what they think it makes everything more open and honest. This is really important for any website that sells things to be successful. Safe Harbour makes it easier for people to trust these websites and for these websites to be transparent. Transparency and trust are key to making a marketplace work well and Safe Harbour helps with that by making it easy for sellers and buyers to participate.

Additionally, it lessens the legal and operational constraints. Without it, platforms would require enormous resources to continuously track and validate every activity, which would result in increased expenses. In the end, these expenses would be transferred to customers. Safe Harbour reduces liability, freeing businesses from constant legal scrutiny to concentrate on enhancing customer satisfaction, logistics, and services. It is crucial because it maintains equilibrium between new concepts and regulations. 

By limiting liability, Safe Harbour allows companies to focus on improving services, logistics, and customer experience instead of being stuck in continuous legal checks.

It is important as it helps keep rules and new ideas in balance. At the time it makes them act responsibly. They need to set up systems. These systems help report and remove illegal content. This balance is good. It keeps marketplaces safe and competitive. 

• Section 69A of the Information Technology Act, 2000 empowers the government to block access to online information in the interest of sovereignty, security, and public order, or to prevent incitement to an offence. Where the Central Government or a State Government or any of its officers specially authorised by the Central Government or the State Government, as the case may be, in this behalf may, if satisfied that it is necessary or expedient so to do, in the interest of the sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above or for investigation of any offence, it may subject to the provisions of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of the appropriate Government to intercept, monitor or decrypt or cause to be intercepted or monitored or decrypted any information generated, transmitted, received or stored in any computer resource.

• Section 79 of the IT Act: The intent behind inserting section 79 is for providing safe harbour for intermediaries who should not be held liable unreasonably.

• Exemption from intermediary liability in specific circumstances: (1) An intermediary shall not be liable for any third-party information, data, or communication link made available or hosted by him, regardless of anything stated in any currently enacted law, subject to the provisions of sub-sections (2) and (3).(2) Subsection (1)'s provisions will only be applicable if (a) the intermediary's role is restricted to granting access to a communication system that transmits, temporarily stores, or hosts information made available by third parties; or (b) the intermediary does not: 

1. start the transmission;

2. choose the recipient of the transmission; or 

3. choose or alter the information contained in the transmission

(c) When carrying out his responsibilities under this Act, the intermediary exercises due diligence and complies with any additional rules that the Central Government may specify. (3) If the intermediary has colluded, assisted, abetted, or induced the conduct of the unlawful act, whether via threats, promises, or other means, the requirements of sub-section (1) shall not apply. (b) The intermediary fails to promptly remove or disable access to that material on that resource without tainting the evidence after learning or being informed by the relevant Government or its agency that any information, data, or communication link located in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act.

• Google India Private Limited Versus M/S. Visakha Industries:

Facts of the case: Visaka Industries Ltd. filed a complaint against Google India because they said Google India defamed them. The problem started when someone wrote on a blog that Google lets people use, which is called Blogspot. Visaka Industries Ltd. Said that what was written was not true and it led to defamation of Visaka Industries Ltd. and hence they wanted Google India Pvt. Ltd. to take action on it. Google India responded that they were not to be blamed because they did not write the things they just let people use their service to write what they want so Google India should not get in trouble for what someone else wrote on Visaka Industries Ltd. And Google India.

Legal Issue: Now the issue arise was whether Google India can assert safe harbour as an intermediary under Section 79 or whether it can be held liable for the defamatory content provided by a third party.

Judgment: The Andhra Pradesh High Court ruled that Google India may be considered an intermediary under the Information Technology Act. But, Nevertheless, the Court did not provide Google with immunity at the very first stage.

It ruled that if the intermediary, having the knowledge of the unlawful content, fails to remove the content, then the intermediary may not enjoy the safe harbour immunity. In this case, there were accusations that Google had knowledge of the defamatory content, and therefore, the Court allowed the case to proceed.

Christian Louboutin SAS V. Nakul Bajaj:

Facts of the case: Christian Louboutin SAS is a very famous and luxury brand. It sells its red-soled shoes. They filed a complaint against Nakul Bajaj. He was the person who handled and ran the website called Darveys.com. This website was selling a lot of luxury products. Some of these products were said to be from Christian Louboutin. Christian Louboutin claimed that many of these products were fake and not of its original origin. They also said that the website was fooling people by saying it was allowed to sell Christian Louboutin products. Christian Louboutin said this was not right and that it was a case of Christian Louboutin trademark infringement and also that Darveys.com was pretending to be something it was not which is called passing off and that it was not a way to do business, which is called unfair trade practices.

Legal Issues: Whether Darveys.com was merely an intermediary or an active participant in the sale of goods and if the platform could claim Safe Harbour protection under the Information Technology Act, 2000.

Judgement: The Delhi High Court held that Darveys.com was not only a passive intermediary. The platform was found to be highly and actively involved in promoting products, guaranteeing authenticity, and managing the sales process. Due to this active participation, the court refused Safe Harbour protection. 

The situation with liability in India is really confusing. We have two laws: the Copyright law and the I.T. Act and they do not provide clear answers to many questions. Intermediaries have to do a lot now because they have better technology. The I.T. The Act and its guidelines show that intermediaries can do things so they have to follow certain rules.

The law in India is constantly evolving to keep up with ideas and it is trying to control what intermediaries do. For example, there were guidelines in 2021.

The government department MeiTY made some changes to the complaint process on 28^th October, 2022. All these changes show us what intermediaries have to do to handle objections. There is a committee which looks after all this, called the Grievance Appellate Committee that makes sure intermediaries follow the rules and abide by. It checks whether everything is according to law and fair. Intermediary liability in India is still a big issue and the law is trying to improve it and make sure intermediaries do what they are supposed to do. The I.T. Act and the Copyright law are important for liability, in India.

The 2021 guidelines are also an example of intermediaries’ compliance checklist. It stipulates every possible complexity which intermediaries might have to face in the future. It is a list of various circumstances when intermediaries need to remove the contents. Hence, intermediaries need to be proactive to find various effective ways to meet various expectations. The best option is to keep the compliance mechanism free of all ambiguity. It is all the more pertinent as India is turning out to be an important stakeholder in the digital economy.

Safe Harbour has been an important part of online business. It permits platform to operate and create content without the constant fear of legal liability for any and every piece of content generated by their users. Because of this protection, digital marketplaces and social networks have grown, giving new and greater opportunities for businesses and enhancing the experience for consumers.

With products, misinformation and online fraud on the rise we need to update Safe Harbour rules. In India laws such as the Information Technology Act, 2000 are being updated. This aims to make sure online platforms are transparent and responsible for their content and act. Though they still need to work on it efficiently. This is part of an effort to make the internet safer for all of us. Safe Harbour is not now thought of as a general protection for platforms to avoid all responsibility. There is now a need for platforms to behave responsibly and to make sure that it removes harmful or illegal material when informed of its presence. This is an important change because protection is not the only thing that is necessary; accountability is equally important. 

Safe Harbour today is about striking the right balance between supporting innovation and growth, and ensuring user safety and trust. We need to maintain a balance simply strict rules and regulations that will be crucial in a growing digital environment that is not only dynamic but also responsible for its circumstances.

• Gautam Bhatia, Intermediary Liability (Category Archive), Indian Const. L. & Phil. Blog, https://indconlawphil.wordpress.com/category/free-speech/intermediary-liability/.

• India Code, Ministry of Law & Justice, Govt. of India, https://www.indiacode.nic.in/.

• India Code (Digital Repository/Bitstream), Ministry of Law & Justice, Govt. of India, https://www.indiacode.nic.in/bitstream.

• Taylor & Francis Online Journals Platform, Taylor & Francis, https://www.tandfonline.com/.

• Press Information Bureau, Govt. of India, https://www.pib.gov.in/